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Navigational Freedoms in a Time of Insecurity

Online Publication Date: 01 March 2007To cite this Article: Van Dyke, Jon M. (2007) 'Navigational Freedoms in a Time ofInsecurity ', Strategic Analysis, 31:2, 365 - 399To link to this article: DOI: 10.1080/09700160701407070URL: http://dx.doi.org/10.1080/09700160701407070

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Strategic Analysis, Vol. 31, No. 2, March 2007

Navigational Freedoms in a Timeof Insecurity1

Jon M. Van Dyke

Abstract

Navigational freedoms have increasingly come under restrictions becauseof ecological, economic and security concerns of coastal states. Fishingvessels, oil tankers, ships carrying ultra-hazardous nuclear cargoes andeven military vessels have to conform to stringent international, regionaland national regulations. Often there is a conflict of interest as maritimeactivities of one state can interfere with the efforts of others to utilise the sea.The Law of the Sea Convention was adopted to provide a balance amongthese competing interests. But new state practices have created challengesfor the Convention that have to be better understood and dealt with. Thebalance between navigation and other national interests has continuouslychanged, and navigational freedoms appear to be disappearing during thisevolutionary process.

Our vision of the ocean is still dominated by the description given to usby the Dutch diplomat and scholar Grotius (Hugo de Groot) who explainedthat the oceans should not be subject to national ownership because, bytheir inherent nature, they are a common resource.2 One ship can cross theocean, he explained, and such passage does not interfere with the abilityof another ship to do the same. One fishing boat can cast its net into thesea and its catch will not affect the efforts of the next group of fishers whowant to fish in the same area. Today, however, we know that this vision isno longer accurate with regard to fishing, because with modern technologyand overcapitalisation of the fleets, the first group of fishers can indeed takea major portion of the fish in a region and seriously interfere with the abilityof others to find any remaining fish. Similarly, navigational activities canalso now interfere with the efforts of others to utilise the sea area, becauseof the pollution and security threats that may be caused by the navigationalactivities. The countries of the world have been searching to find a proper

ISSN 0970-0161 print / ISSN 1754-0054 onlineDOI: 10.1080/0970016070407070 C© Institute for Defence Studies and Analyses

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366 Strategic Analysis

balance among these competing activities. The formulations found in theLaw of the Sea Convention are now the starting point in understandingthis balance, but recent state practice must also be examined to determinethe current state of the law.

Coastal State’s Right to Stop and Search Fishing Vessels in the ExclusiveEconomic Zone

Article 58 of the Law of the Sea Convention states that ‘all states’ enjoyhigh seas freedoms of navigation and overflight in the exclusive economiczone (EEZ) of other states, but also states that these freedoms should beexercised with ‘due regard’ to the right of the coastal state to exploit the re-sources of the EEZ and the responsibilities of the coastal state to protect themarine environment, which are spelled out in Article 56.3 The patchworkof provisions in the Law of the Sea Convention relating to the EEZ revealsthe competing priorities.4 Rights of navigation are qualified ‘subject to therelevant provisions of this convention’5 and maritime states are directed to‘have due regard to the rights and duties of the coastal state’ and to ‘complywith the laws and regulations adopted by the coastal state in accordancewith the provisions of this convention and other rules of international lawin so far as they are not incompatible with this part’.6 Coastal states havebeen active in exploiting these resources and seeking to reduce pollution7

and have been placing limitations upon navigational rights when necessaryto protect their resources and the marine environment.8

Article 73(1) of the Law of the Sea Convention allows coastal countriesto stop and search any fishing vessel that it suspects has been violating itslaws governing resource exploitation in its EEZ:

The coastal state may, in the exercise of its sovereign rights to explore, ex-ploit, conserve and manage the living resources in the exclusive economiczone, take such measures, including boarding, inspection, arrest and judi-cial proceedings, as may be necessary to ensure compliance with the lawsand regulations adopted by it in conformity with this convention.

This provision appears to allow the coastal state to expect every foreignfishing vessel to identify itself and explain its intentions whenever it entersan EEZ, even if the fishing vessel is only transiting through the area on itsway to distant fishing grounds.

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Navigational Freedoms in a Time of Insecurity 367

This conclusion appears to follow from the decision of the InternationalTribunal for the Law of the Sea (ITLOS) in the Monte Confurco Case (Seychellesv. France),9 which involved a longline fishing vessel flying the Seychellesflag boarded by France in the EEZ around the French-claimed Antarcticisland of Kerguelen.10 The vessel had no fresh fish on board, but the Frenchfound 158 tonnes of Patagonian tooth fish in the cargo hold frozen to a verylow temperature (worth about $1.3 million) and longlines and defrostedbaitfish in the waters around the ship, which had apparently been jettisonedinto the sea.

Seychelles asserted that the Monte Confurco had been fishing outside theKerguelen EEZ for 2 1/2 months, and was sailing through the KerguelenEEZ to get to Williams Bank (in international waters) to continue fishing.Seychelles argued that the ship had failed to notify the French of its passagethrough the waters around Kerguelen because its fax machine was broken.France pointed out that the satellite telephone on the ship was working,challenged the claimed route of the vessel and submitted an expert whoclaimed that the vessel could not have caught the tooth fish at the locationmarked on the ship’s log. Seychelles responded that the ship’s crew hadlearned new techniques from Spain that enabled them to catch the toothfish at greater depths.

The tribunal ruled against the Seychelles on the basis of the testimonythat the tooth fish probably could not have been captured at the locationidentified in the ship’s log and the failure of the vessel to notify France ofits passage and its intentions.11 In other words, a fishing vessel found in anEEZ of another country without permission and with fish in its hold willbe presumed to have caught the fish in that EEZ. Apparently, the only wayfor a fishing vessel that is genuinely transiting through an EEZ to protectits cargo and itself from seizure is to provide notification to the coastal stateprior to such passage.

Restrictions on Navigation Related to Protecting the MarineEnvironment

Coastal State’s Right to Search Cargo Vessels in the EEZ

Perhaps, the most potent provision in favour of coastal state authorityis Article 220 (3)–(6) of the Law of the Sea Convention, which authorisescoastal states to obtain the identification of and to conduct a search of

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commercial cargo vessels in its EEZ that are suspected of violating thepollution regulations of the coastal state. Under Article 220 (3)–(6), if ‘cleargrounds’ for believing that a vessel is violating international pollutionstandards, a coastal state may:

� demand information,� physically inspect (if a ‘substantial discharge’ causes or threatens

‘significant pollution of the marine environment’), and� detain the vessel (if the discharge causes or threatens damage to

the coastline or resources).

This right of visit, inspection and detention gives the coastal state aright to take action in some circumstances, but state practice appears tohave expanded this right dramatically after the disastrous break-up of theoil tanker Prestige off the coast of Spain in November 2002. When futurehistories of navigational rights are written, they will probably point tothis incident as the defining moment that changed perceptions and thegoverning principles of international law. When this aged single-hull tankerstarted foundering and leaking its oil cargo, Spain refused to permit thecrippled vessel to come into one of its port for ‘safe haven’. And then,when the tanker was towed out into the open ocean, it broke apart causinga dramatic and destructive spillage of its cargo. After huge amounts of oilwashed up along the beautiful and resource-rich coasts of Spain, Portugaland France, the governments of France and Spain issued a decree that said:

A. All oil tankers travelling through these two countries’ EEZs willhave to provide advance notice to the coastal countries about their cargo,destination, flag, and operators.

B. All single-hulled tankers more than 15 years old travelling throughthe EEZs of Spain and France will be subject to spot inspections by coastalmaritime authorities while in the adjacent EEZs and will be expelled fromthe EEZs if they are determined, after inspection, to be not seaworthy.12

Shortly after the Spanish–French decree, Portugal announced that itwould also take the same position on this issue.13 Morocco then announcedthat single-hull oil tankers more than 15 years old carrying heavy fuel, tar,asphaltic bitumen or heavy crude oil would be subject to requirement thatthey provide prior notification and adhere to strict safety regulations.14

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In addition, in the spring of 2003, the European Union banned largesingle-hulled tankers carrying heavy-grade oil from coming into anyEuropean port.15 On April 3, 2003, the French National Assembly unani-mously adopted a new law asserting the right to intercept ships that releasepolluting ballast waters out to a distance of 90 miles from its Mediterraneancoast as well as imposing stricter controls on transient oil tankers.16 Captainsof vessels violating these new French rules can be sentenced to up to 4 yearsin prison and fined up to $600,000.17 About this same time, Spain, Franceand Portugal were joined by Belgium and the United Kingdom in submit-ting a petition to the International Maritime Organization (IMO) to declarevirtually their entire EEZs to be ‘particularly sensitive sea areas’ that wouldbe completely off-limits for single-hulled oil tankers and other cargo ves-sels transporting dangerous cargoes.18 Acting upon the recommendation ofits Marine Environmental Protection Committee (MEPC), the IMO Councilgranted this request in October 200419 and then established the West Eu-ropean Tanker Reporting System, which had the effect of superseding theinitiative of the European states that single-hulled tankers be prohibitedaltogether.20 This sequence of events initiated by five maritime countries toprotect their own coastal resources can be viewed as an example of ‘statepractice’ restricting navigational freedom in order to protect the resourcesof the EEZ.

Other examples of restrictions on navigational freedom in order to pro-tect environmental resources include the US proposal, which was approvedby the IMO in December 1998, to establish a mandatory ship reporting sys-tem off the northeast and southeast coasts of the United States to protectthe northern right whale from being hit by ships.21 This whale species washunted almost to extinction because of its oil, and is now thought to be therarest whale species in the world.22 This new mandatory ship reporting areajoins nine others that have been established by the IMO to protect fragileenvironmental areas. In May 1996, the IMO approved a reporting regimefor the Torres Strait region between Australia and Papua New Guinea andthe inner route of Australia’s Great Barrier Reef as well as the area adjacentto France’s Ushant islet.23 Six months later, the IMO gave this status toDenmark’s Great Belt Traffic Area, the Strait of Gibraltar and the area offCape Finisterre on the Spanish coast.24 On May 29, 1998, the IMO similarlyrequired that notice be provided by ships passing through the Strait ofBonifacio between Corsica (France) and Sardinia (Italy) and also throughthe Straits of Malacca and Singapore.25 In addition, on December 3, 1998,

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the IMO imposed this requirement on ships passing through the Strait ofDover/Pas de Calais as well as those going through the coastal watersadjacent to the northeastern and southeastern United States, as describedabove, to protect the remaining right whales.26

The US Department of Defense vigorously opposed the designationof the waters adjacent to the US eastern coastal areas as mandatory shipreporting areas, because it “‘was concerned that although public ships—notably warships—were exempt under the NOAA proposal, to requirecivilian vessels to report would make it possible to determine (by elimi-nation) which ships were military’ and thereby ‘would erode navigationalfreedoms globally and endanger American lives’ ”.27 The US Coast Guard,however, supported this initiative, because of its mandate to enforce USenvironmental laws, even though it recognised that this move might re-quire the United States to support similar initiatives by other countriesand might lead to the perception that ‘international law increasingly recog-nises environmental protection as a justifiable reason to curtail freedom ofnavigation’.28

The Transport of Ultra-hazardous Nuclear Materials29

Ratifying countries have lodged competing declarations to the Lawof the Sea Convention under Article 310 on the issue of ultra-hazardousnuclear transport. One group of mainly non-nuclear states consider thatArticles 22 and 23 of the convention presumes the existence of interna-tional conventions regulating such transport and that, until such treatiesare developed, coastal states can require prior notification or even prior au-thorisation for such shipments.30 Another group, of mainly nuclear states,emphasises the right of free navigation and disputes the obligations of priorconsent or even notification.31 Some of these declarations confuse the issuesof prior notification and prior informed consent. These issues are distin-guishable, and a particularly strong argument can be presented for priornotification and consultation where potential consequences for a coastalstate’s environment are serious.

Numerous states have declared that the shipments of ultra-hazardousnuclear cargoes should not transit through their EEZs. In 1992, for instance,South Africa and Portugal explicitly requested that Japan’s shipment stayout of their EEZs,32 and in response to an inquiry from Australia, Japanstated that ‘in principle’ the ship would stay outside the 200-nautical mile

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zone of all nations.33 In 1995, Brazil, Argentina, Chile, South Africa, Nauruand Kiribati all expressly banned the British nuclear cargo ship Pacific Pintailfrom their EEZs, while Chile sent its ships and aircrafts to force the shipout of its EEZ.34 In 1999, New Zealand issued a strong statement protestingthese shipments and stating that they should not be permitted throughNew Zealand’s EEZ because of the “‘precautionary principle’ enshrined inthe Rio Declaration.”35

In October 2002, Chile modified its ‘Law for Nuclear Safety’ to re-quire prior authorisation for any transport of ‘nuclear substances’ and ‘ra-dioactive materials’ through its EEZ.36 Such authorisation will be grantedonly if the transporter establishes that the shipment will ‘keep the en-vironment free of contamination’ and only after information has beenprovided regarding the date and route of the shipment, the ‘character-istics of the load’ and the ‘safety and contingency measures’ that are beingutilised.37

The San Onofre Nuclear Reactor

Another defining moment in the tension between navigational freedomand the right of coastal states to restrict the movement of ships throughtheir EEZs based on the nature of the ship and its cargo was the US an-nouncement on February 3, 2004, that it was abandoning its plan to shipthe 770-tonne decommissioned nuclear reactor from the San Onofre nu-clear plant in Southern California around Cape Horn at the tip of SouthAmerica to South Carolina for burial.38 This plan, which had previouslybeen approved by the US Department of Transportation despite conflict-ing views within the US government, was to put the reactor on a barge thatwould make a 90-day journey around South America. This journey wouldthus include the transiting of Drake’s Passage at the continent’s tip, whichis one of the world’s most dangerous nautical passages where gale forcewinds blow 200 days each year. Although logic would have favoured burialin California, or Hanford, Washington, or transporting the reactor acrossthe United States by train, these options had all been rejected because ofUS laws governing the disposal of nuclear wastes and because of liabilityconcerns.

The US State Department originally instructed Southern California Edi-son that it ‘should not apply for Chilean authorisation for the passagebecause it was concerned that our doing so would set an unfavourable

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precedent for future shipments’.39 Subsequently, however, the US Depart-ment of Transportation indicated that it thought consultations with Chilewould be logical because of the potential risks and the advantages of hav-ing emergency contingency plans.40 The Department of Transportation alsourged Southern California Edison to develop more realistic salvage plansin the case of a sinking.41

These concerns seemed to have resonated in the State Department be-cause a month later, in late November, it stated that ‘a number of significantissues’ needed to be resolved before the reactor could be shipped, and statedspecifically that Southern California Edison should consider another routearound South America, explain in detail its salvage contingency plans andshow it has adequate liability insurance.42 Finally, however, the Depart-ment of Transportation did issue a permit for the shipment on December1, 2003. Southern California Edison said that ‘the ocean journey will bemade in international shipping lanes hundreds of miles off the coasts ofCentral and South America. The journey around Cape Horn will have to becompleted before the beginning of the region’s winter storms, typically byApril’.43 It was never clear whether the vessel was going to avoid passingthrough Chile’s EEZ altogether by staying more than 200 nautical milesfrom the Chilean coast.

Argentina’s Court Decision

A second hurdle was presented by a January 2004 court decision inArgentina, which prohibited the passage of the reactor through Argentina’sEEZ.44 This decision issued by Argentine Federal Judge Jorge Pfleger citedthe Basel Convention on the Control of Trans-Boundary Movements ofHazardous Wastes and Their Disposal45 as authorising coastal countries toblock such shipments.46 After this decision, Argentine officials stated that ifthe shipment passed through Argentina’s EEZ, ‘the load will be interceptedby the military and escorted out of the nation’s territorial waters’.47 Thisimportant decision set the stage for a significant international incident ifthe shipment had taken place and had transited within 200 nautical milesof Argentina’s coast.

Opposition to Nuclear Cargoes From Other Countries

The decision to abandon the effort to ship the reactor by sea, and thusto leave it in place in Southern California, avoided confrontations, and also

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reinforced the view that countries can act to protect their coastal popula-tions and coastal resources by preventing passage of particularly dangerouscargoes and unseaworthy ships through their coastal waters. Numerousstates have previously declared that the shipments of ultra-hazardous nu-clear cargoes should not transit through their EEZs. In 1992, for instance,South Africa and Portugal explicitly requested that Japan’s shipment ofplutonium stay out of their EEZs,48 and in response to an inquiry fromAustralia, Japan stated that ‘in principle’ the ship would stay outside the200-nautical mile zone of all nations.49

Initiatives of the Small Island States

At the Pacific Islands Forum50 in August 2004, the independent islandstates of the Pacific sought to develop a region-specific environmental im-pact assessment of nuclear shipments, and restated their concerns abouta possible economic loss after an incident involving a nuclear shipmentthat did not result in a release of measurable radioactivity but nonethe-less caused fears that led to declines in the tourism and fishery industries.These small island states have long been concerned about the possibility ofeconomic losses their fragile tourism and fishing interests may suffer froma nuclear incident or accident in the region, regardless of actual contami-nation, thus leaving coastal states without compensation. The PermanentRepresentative of the Federated States of Micronesia, Masao Nakayama,stated at the United Nations in November 2004 that ‘[t]he continued ship-ment of plutonium and radioactive wastes through our Exclusive EconomicZones remains of great concern. Our Pacific Ocean is a vital breadbasketfor the entire planet. Any transhipment accident could have a serious im-pact on the livelihood of our peoples, our economies, and would be felt farbeyond our shores, for many generations to come’.51

On the occasion of the February 2005 shipment of high-level waste fromFrance to Japan, the Secretary General of the Pacific Islands Forum52 saidthat the forum was concerned about possible economic loss in the eventof an incident involving a nuclear shipment, whether or not that incidentresults in a radioactive release. In response to news of the shipment, NewZealand reportedly asked that the shipment stay out of its EEZ.53 A seriesof meetings have been held between the shipping states (France, Japan andthe United Kingdom) and the Pacific Island countries, which have involvedprimarily the restating of the positions of each side, without consensus, but

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an important concession was made at the 2004 meeting by a British officialwho said that the United Kingdom would provide ‘notification (vessel,cargo, route, timing of approach to and possible entry to EEZ) in advanceto both the [Pacific Island] Forum Secretariat and coastal states past whoseEEZs the vessel was passing’.54

The Caribbean nations have been equally united in their opposition toshipments of ultra-hazardous cargoes. Their coordinating body CARICOMexplained in its statement to the 2004 Prepcom of the Nuclear ProliferationTreaty that:

In addition to the provision of information regarding the shipment of ra-dioactive materials, CARICOM states continue to call for the establishmentof a comprehensive regulatory framework, to promote state responsibilitywith respect to disclosure, prior informed consent, liability and compen-sation in the event of accidents. While we appreciate the steps undertakenby states to prevent the likelihood of accidents, we cannot overstate thedamage that would be done to the ecosystems of our countries, and thepotentially catastrophic impact on our vulnerable economies should anaccident occur.55

Judicial Development

In the MOX Plant Case (United Kingdom v. Ireland),56 the ITLOS statedin its order of December 3, 2001, that ‘the duty to cooperate is a funda-mental principle in the prevention of pollution of the marine environmentunder Part XII of the [Law of the Sea] Convention and general interna-tional law and that rights arise therefrom which the Tribunal may considerappropriate to preserve under article 290 of the Convention’.57 This orderinstructed the United Kingdom to consult and cooperate with Ireland onpossible consequences resulting from the proposed expansion of the MOX(mixed plutonium/uranium oxide) plant at Sellafield on the United King-dom’s Cumbrian Coast facing the Irish Sea and to monitor risks and devisemeasures to prevent pollution. This order underscored the obligation toconsult under international law, particularly when read in light of the In-ternational Atomic Energy Agency (IAEA) General Conference resolutionsof 2003 and 2004 discussed below. Issues on which coastal states havedemanded consultation include prior notification of routes, emergency re-sponse preparations, the further development of liability and compensa-tion regimes, and the preparation of an environmental impact assessment.One shipping company, the French COGEMA, has started publicising the

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intended route of vessels transporting ultra-hazardous nuclear cargoesupon their departure.

Developments in the IAEA

The IAEA held an international conference on the Safety of Trans-port of Radioactive Material in July 2003.58 Notification of shipments tocoastal states was discussed, and the IAEA General Conference in Septem-ber 2003 welcomed the practice of some shipping states and operatorsof providing in a timely manner information and responses to relevantcoastal states in advance of shipments to enable them to participate inmaking preparations regarding safety and security, including emergencypreparedness, and invited other countries to do the same in order to im-prove mutual understanding and confidence regarding shipments of ra-dioactive materials.59 In March 2004, the IAEA developed an InternationalAction Plan for the Safety of Transport of Radioactive Materials,60 whichaddressed the issue of emergency responses to a maritime incident or anaccident involving radioactive material being transported in internationalwaters.61

In September 2004, the IAEA General Conference passed a resolutionthat recalled that states have under international law the obligation to pro-tect and preserve the maritime environment and (while reaffirming mar-itime and air navigation rights and freedoms) stressed the importance of in-ternational cooperation to enhance the safety of international navigation.62

The resolution again welcomed the practice ‘of some shipping states andoperators of providing in a timely manner information and responses torelevant coastal states in advance of shipments for the purpose of address-ing concerns regarding safety and security, including emergency prepared-ness’, and invited others to do so. This resolution recognised concerns aboutthe potential for damages resulting from an accident or incident during themaritime transport of radioactive materials, including pollution of the ma-rine environment, recognised the importance of having in place effectiveliability mechanisms, and stated that the principle of strict liability shouldapply in the event of nuclear damage arising from an accident or incidentduring the transport of radioactive materials.63 In addition, the resolutionstressed the need to take adequate measures to deter or defeat terroristand other hostile or criminal actions directed against carriers of radioactivematerials.

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Recent UN Developments

On January 14, 2005, at the UN meeting on Small Island DevelopingStates (SIDS) in Mauritius, these small island states and the rest of the in-ternational community participating in this event adopted the MauritiusDeclaration64 and a companion strategy65 to implement the Barbados Pro-gramme of Action66 for their sustainable development. The SIDS, composedof islands in the Caribbean, the Pacific and the AIMS region (Atlantic Ocean,Indian Ocean, Mediterranean Sea and South China Sea), were united in theiropposition to the transport of radioactive material through their regions.The statement that emerged from this important meeting recognised thatthe cessation of transport of radioactive materials through SIDS regionsis the ultimate desired goal of SIDS and some other countries (which wasrecognised to include New Zealand, whose representative was chairing thenegotiating meeting). The declaration notes that:

. . . cessation of transport of radioactive materials through small islanddeveloping states regions is an ultimate desired goal of small island devel-oping states and some other countries, and recognises the right of freedomof navigation in accordance with international law. States should maintaindialogue and consultation, in particular under the aegis of the IAEA andIMO, with the aim of improving mutual understanding, confidence build-ing and enhanced communications in relation to safe maritime transportof radioactive materials. States involved in the transport of such materialsare urged to continue to engage in dialogue with Small Island DevelopingStates and other states to address their concerns. These concerns includethe further development and strengthening, within the appropriate fora,of international regulatory regimes to enhance safety, disclosure, liability,security and compensation in relation to such transport.67

In addition, identical language was included in the Outcome Documentagreed upon at the UN Millennium Summit in New York in September200568 and in the resolution adopted by the UN General Assembly on‘Oceans and the Law of the Sea’ in November 2005.69

EEZ Group 21

Under the auspices of Japan’s Ocean Policy Research Foundation (withfunding from the Nippon Foundation), a group of 15 experienced ocean lawscholars and officials prepared ‘Guidelines for Navigation and Overflight inthe Exclusive Economic Zone’ in September 2005 after a series of meetings

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to discuss these issues. The following are among the guidelines adopted bythis group:

II. Rights and Duties of the Coastal State

a. A coastal state may, in accordance with international law, regulatenavigation in its EEZ by ships carrying inherently dangerous or nox-ious substances in their cargo....

V. Military Activities

F. Military activities of a state in the EEZ of another state should notcause pollution or negatively affect the marine environment or ma-rine living resources, including mammals. In particular, if prohibitedby the laws of the coastal state, such activities in a coastal state’sEEZ should not involve live weapons fire, underwater explosionsor creation of sound waves and dangerous or radioactive materi-als that may directly or indirectly harm marine life or cause marinepollution.70

The Inadequate Liability Regime

Article 235(3) of the Law of the Sea Convention requires states to ‘co-operate in the implementation of international law relating to responsibilityand liability for the assessment of and compensation for damage and thesettlement of related disputes, as well as, where appropriate, developmentof criteria and procedures for payment of adequate compensation, suchas compulsory insurance or compensation funds’. But the maritime andnuclear states have resisted developing a complete liability regime to gov-ern nuclear shipments, and the existing treaties are inadequate and arenot widely ratified.71 The Vienna and Paris conventions, even as recentlyamended, remain hedged with exceptions, and incidents related to ter-rorist attacks and damages related to the marine environment and lossesto the tourist and fishery industries are not likely to be covered by thesetreaties. The treaties do not identify any neutral tribunal for adjudication ofclaims, and so Pacific Island countries seeking to pursue a claim for dam-ages resulting from the shipments of ultra-hazardous nuclear materials onBritish-flagged vessels would have to file their claim in a British court. Suchan action would require hiring expensive British lawyers, paying high costsif they should lose and subjecting their claims to the restrictive British laws,which seem designed to protect the nuclear industry.72 Liability is limited

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by short statutes of limitations and by limits on the amount of damages thatcan be recovered. An example of an enlightened liability regime is the 1999Austrian ‘Act on Civil Liability for Damages Caused by Radioactivity’,73

which has generous definitions of damages, requires no sudden incidentand has no limit on liability.

Restrictions on Navigation Related to Security and Military Concerns

Traditional Concepts of Neutrality and Belligerency at Sea

Prior to the prohibition on the initiation of warfare that became for-malised in the 1928 Kellogg-Briand Pact74 and in Article 2(4) of the UNCharter, diplomats and scholars sought to reduce the scourge of war byrequiring attacking countries to issue formal declarations of war and pro-tecting those not involved in the conflict through measures designed toseparate ‘belligerents’ from ‘neutrals’.75 These rules have been particularlyimportant at sea, to allow commercial shipping to continue during times ofwar, and were specifically designed to protect the commercial ships of the‘neutrals’ from being attacked by the warships of the ‘belligerents’.

One of the first steps in this direction is documented in the Final Act ofthe Congress of Vienna (1815), signed by Austria, France, Great Britain, Por-tugal, Prussia, Russia and Sweden, which formally ended the Napoleonicwars. Among the norms that emerged from this congress were the prin-ciple of free navigation (not only for the riparian states but also for allstates) on the major rivers of Europe (the Rhine, the Neckar, the Mayne,the Moselle, the Meuse and the Scheldt), and recognition of the neutral-ity of Switzerland.76 Another important step was taken in 1817, when theUnited States and the United Kingdom agreed to limit their naval forces onthe Great Lakes, leading to a demilitarisation of the US–Canada border.77

Other demilitarised zones established during this era included those on theAaland Islands in the Baltic Sea, established in 1856 by a treaty betweenSweden, Finland and Russia (which remains demilitarised at present)78; thesouthern shore of the Strait of Gibraltar, demilitarised in 1904 by agreementbetween France and the United Kingdom reiterated in the treaty of Novem-ber 12, 1912, between France and Spain (and lasting until 1956 when theinternational status of this area ended)79; and Sakhalin Island and the Gulfof Tartary, which were demilitarised in the 1905 Treaty of Portsmouth afterthe defeat of Russia by Japan (remaining in effect for more than 30 years,probably because of the reciprocal nature of the treaty).

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When the 20th century began, the dramatic increase in destructiveweaponry resulting from the industrial revolution caused many to realisethat further constraints were needed on the use of force, and efforts ac-celerated to try to outlaw the initiation of warfare. Major internationalmeetings were called, the most significant being the 1899 and 1907 Hagueconferences, which were designed to codify the laws of armed conflict andestablish limits on certain types of military activities. The Hague peace con-ferences of 1899 and 1907 were convened during ‘a high tide of idealism’,80

and they marked important efforts to articulate the laws of armed con-flict and promote the peaceful settlement of disputes. The growth of dailynewspapers in the industrialised countries had the effect of allowing com-mon citizens to participate more fully in policy decisions, and led, in manycountries, to a democratisation of international politics.

A consensus was thus reached during this period that noncombatantsshould be protected even during the most terrible of wars. Grotius hadwritten eloquently on this topic in his celebrated treatise, De Jure Belli acPacis, which was written when “‘the Thirty Years’ War was in the full tideof its destructive progress’ marked by ‘[m]assacre, pillage and famine’,with ‘[n]either age nor sex’ being spared”.81 Grotius ‘protested’ ‘againstthis brutal infatuation’, and gradually ‘[t]he distinction between combat-ants and non-combatants [became] the vital principle of the modern lawof war’.82 Diplomat and Columbia University Law Professor John BassettMoore attributed this recognition to a ‘moral revolt’ resulting from ‘a loftierconception of the destiny and rights of man and of a more humane spirit’,83

but it also resulted from the mutual realisation that destruction of noncom-batants is not militarily advantageous to either side.84

These developments took shape with regard to naval warfare throughthe distinction drawn between ‘belligerents’ and ‘neutrals’. The laws of‘neutrality’ emerged to contain the spread of hostilities and limit the im-pact of war on nonparticipants, particularly with regard to commerce.85

Neutral countries remained free to trade with each other, and also to tradewith belligerents so long as they did not trade in ‘contraband’, whichwas defined as ‘those goods or materials, such as ammunition, that aredirectly related to war fighting, or that are war-sustaining, such as oil,electronic components, and industrial raw materials’.86 However, a greyarea still exists and it is frequently difficult to determine whether cer-tain goods will be used for military purposes. It is, therefore, best for thebelligerents to publish a specific list of prohibited goods. Today, if the

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UN Security Council has issued a ‘decision’ pursuant to its powers underChapter VII of the UN Charter, such a ‘decision’ is binding on all memberstates under Article 25 of the Charter and it would then appear to be im-possible for any country to opt out of its obligations claiming the status of‘neutrality’.87

Military Intercept Operations

The US and allied ‘military intercept operations’ during the past decadehave also imposed restrictions on navigational movement. Blockades havebeen used historically in wartime,88 and the United States imposed a ‘quar-antine’ around Cuba during the October 1962 Cuban Missile Crisis.89 Dur-ing the 1982 Falklands/Malvinas War, the United Kingdom declared a200-nautical mile military exclusion zone around the islands,90 which somemilitary lawyers viewed ‘as a bad mistake’ because it ‘strengthened thetrend by which a zone 200 miles from the shore is seen to have security aswell as legal implications’.91

Since then, the United Nations has authorised military intercept oper-ations in connection with the 1991 Gulf War,92 the civil war in the formerYugoslavia in 1991–1993,93 the internal conflict in Haiti in 1993–199494 andthe civil war in Sierra Leone in 1997.95 After the September 11, 2001, at-tacks, the United States began boarding vessels in the Indian Ocean, theRed Sea, the Strait of Hormuz and elsewhere in search of Osama bin Ladenand his Al Qaeda associates. Attempts have been made to undertake theseboarding operations with the consent of the masters of the vessels, but‘the US notification made to the maritime industry made it clear that ves-sels suspected of transporting or assisting bin Laden and senior Al Qaedaleadership would be subject to the use of force to compel a boarding’.96 Al-though the specific legal basis for these searches has never been articulated,US President George W. Bush has said generally that US actions to respondto the attacks by Al Qaeda are ‘acts of self-defense’.97

On December 9, 2002, a North Korean cargo vessel, the M/V So San,said to be registered variously in Cambodia or Singapore, was forciblystopped in the Gulf of Aden 600 miles east of the Horn of Africa by twoSpanish warships, which discovered 23 containers filled with 15 Scud mis-siles hidden beneath 40,000 sacks of cement.98 After some confusion and

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high-level negotiations involving US Vice President Dick Cheney and USSecretary of State Colin Powell talking with Yemen President Ali AbdullahSalih, the United States ‘[a]cknowledg[ed] that the purchase of the missileswas not unlawful’,99 and the vessel was released to continue its voyage toYemen.100

The Proliferation Security Initiative

Since then, the United States has shown an increased interest in us-ing its naval muscle to stop ships that it views as presenting a securitythreat. In a speech delivered in Poland May 31, 2003, US President GeorgeW. Bush outlined the ‘Proliferation Security Initiative’, or PSI, wherebythe United States has been trying to mobilise ‘like-minded states’ to pre-pare for and participate in naval intercept operations designed to inspectships thought to be carrying nuclear materials to or from the so-called‘rogue’ states, notably North Korea and, perhaps, also Iran. The countriesmost actively supporting this US initiative are Spain, France, the UnitedKingdom, Portugal, Australia, Germany, Italy, Japan, the Netherlands andPoland.

The countries coordinating these efforts met several times during 2003and 2004 and held a number of joint exercises to practice interdiction tech-niques. Related to these efforts were the seizure by Taiwan of 150 barrels ofdual-use chemicals from a North Korean freighter when it stopped in Kaoh-siung to refuel,101 the confiscation of 214 ultra-strong dual-use aluminiumpipes bound for North Korea on the French-flagged vessel Ville de Virgowhen it was about to enter the Suez Canal on April 12, 2003102 and Japan’ssearches of the cargoes of North Korean ferries when they are in Japaneseports.103

After numerous meetings, the concerned countries issued a ‘Statementof Interdiction Principles’ in September 2003 including the following:

� Countries agree to inspect suspicious vessels flying their own flagand will consider allowing other countries to inspect suspiciousvessels flying their flag.

� Countries agree to stop and search suspicious vessels in theirinternal waters, territorial seas or contiguous zones.

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� Countries agree to require suspicious vessels entering or leavingtheir ports, internal waters or territorial seas to be boarded andsearched prior to entry.

Although the public statements have stated that these endeavourswould be undertaken in a manner that is consistent with international law,it is also clear that the United States and its allies are seeking to modify inter-national law to permit more active interception when warranted. PresidentBush’s National Security Advisor Condoleezza Rice has explained that:

While all actions will be taken consistent with existing national and inter-national legal authorities, we are also seeking ways to expand those authorities.And it is for this reason that the president proposed in his September ad-dress to the United Nations that the Security Council adopt a resolutioncalling on all states to criminalize proliferation activities, establish effectiveexport controls, and ensure the safety and security of sensitive materialsand technologies.104

In addition, Australia’s Foreign Minister Alexander Downer has ex-pressed support for changing the law permitting free navigation on thehigh seas in order to stop North Korea’s shipping of missiles, nuclear ma-terials and drugs to its allies or customers.105 In January 2004, the Japanesepress reported that its government was planning to submit a bill to theDiet that would allow the Japanese Maritime Self-Defense Force to stopforeign vessels and inspect their cargo in its territorial waters or on thehigh seas near Japan during periods of emergency or conflict in the areassurrounding Japan.106

Australia’s 1000-Mile Maritime Identification Zone

In a proposal exemplifying the global trend recognising the require-ments of prior notification and consultation, Australia announced onDecember 14, 2004, its intention to establish a Maritime Information Zone,which extends up to 1,000 nautical miles from the Australian coastline.107

Upon entering this zone, vessels proposing to enter Australian ports willbe required to provide comprehensive information regarding its identity,crew, cargo, location, course, speed and intended port of arrival. The goalis thus to identify all vessels, other than day recreational boats, that arenavigating within its 200-nautical mile EEZ. Malaysia,108 New Zealand109

and Indonesia110 have expressed concern at the plan, with New Zealand

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providing its ‘understanding’ of this plan111 that vessels transiting the zonebut not travelling to an Australian port will be asked to provide informationon a voluntary basis.112

Military Manoeuvres in the EEZ

This topic, which has been examined in detail elsewhere,113 remainscontroversial. Do maritime nations have unlimited authority to engage inall variety of military activities in the EEZs of other coastal states, or doesthe duty of ‘due regard’ impose limits on such activities, particularly withregard to the launching of missiles and other weapons?

The Disagreements Regarding Hydrographic Surveys

The issue regarding whether hydrographic surveying to aid naviga-tional safety is ‘marine scientific research’ continues to fester.114 In De-cember 2002, China announced that it had enacted a new law explicitlyrequiring Chinese approval of all survey and mapping activities in its EEZ,and stating that unapproved ocean survey activity will be subject to finesand confiscation of equipment and data.115

Aerial Surveillance

The April 2001 incident involving the US surveillance plane flyingalong China’s coast, which was forced to land in China’s Hainan Islandafter it was hit by a Chinese fighter jet, has been described extensivelyelsewhere.116 A somewhat similar incident occurred along the North Ko-rean coast on March 2, 2003, when four North Korean fighter jets intercepteda US RC135S Cobra Ball reconnaissance aircraft and appeared to be tryingto force it to land in North Korea.117 The United States halted its surveil-lance for a few days, but news reports indicated they resumed on March 11,2003.

Other Recent Navigational Restrictions Based on Security Concerns

Restrictions on navigation based on security concerns have proliferatedduring the past 2 years. In December 2002, for instance, the IMO adoptedan International Ship and Port Facility Security Code that requires 25,000ships owned by 3,500 companies to have a security officer on board and to

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develop security plans that will be reviewed and certified by a recognisedsecurity organisation.118 All ships will have to have an identification numberon their hulls and provide onboard records of their last 10 ports of call.119

In January 2003, fearing terrorist attacks, Canada prohibited vessels fromcoming within 500 m of its military ports at Halifax, Nova Scotia, and thoseat Esquimalt and Nanoose Bay in British Colombia.120

Military Vessels, Sovereign Immunity and Environmental Rules

The Law of the Sea Convention treats military and commercial ves-sels without distinctions, and thus states that both are entitled to exercisefreedoms of navigation. This view remains somewhat controversial,121 how-ever, and it is interesting to note that the United States once took the viewthat warships were not entitled to exercise the right of innocent passage.In the North Atlantic Coast Fisheries Arbitration, the US agent Elihu Rootargued that warships did not have the right to pass through the territorialsea ‘without consent into this zone, because they threaten. Merchant shipsmay pass because they do not threaten’.122 Articles 31, 32 and 236 of theLaw of the Sea Convention state that warships have immunity from coastalstate jurisdiction, but also make it clear that the countries operating suchwarships are nonetheless liable for any environmental or other damagecaused by the operations of the warship.123

The Law of the Sea Convention and Armed Conflict

The question of the convention’s applicability in times of military con-flict remains unresolved. Does the convention apply in its entirety? Doesit apply, but with modifications as deemed necessary to accommodate theconflict? Do some provisions still apply, while others are in abeyance? Whatmeaning would Articles 88 and 301 of the Law of the Sea Convention haveif they can be swept aside when armed conflict erupts? The United Statesapparently accepted the right of Iran to search US-flagged vessels on thehigh seas for contraband during the Iran–Iraq war,124 and the United States,in turn, declared a 5-mile ‘moving bubble’ identification zone around itswarships in the Persian Gulf, requiring aircraft and vessels to identifythemselves before entering this bubble.125

Some commentators have written that the Law of the Sea Conventionwas designed ‘to regulate the uses of the seas in time of peace’,126 implying

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that it may not be applicable in times of war. Others have observed that the1958 Convention on the High Seas was clear in applying only to peacetimesituations, and that ‘[t]he same notion might apply to the 1982 Conven-tion where the application during times of armed conflict is not clearlyarticulated’.127 Professor R.P. Anand explained that ‘there is no doubt thatthe law of the sea, which has been codified for times of peace, is bound to bemodified during armed conflicts. These rules have been modified duringprevious wars, particularly in light of the more fundamental rules such asthe right of self-defense’.128 Two US military scholars have written that thelaws of armed conflict would apply in times of conflict, but that the law ofneutrality ‘is, in great part, consistent with the law of the sea; the maritimerights and duties states enjoy in peacetime continue to exist, with minorexceptions, during armed conflict’.129 A report written to the UN SecretaryGeneral in 1985 explained that:

In the exercise of the right of collective self-defence it is clear that partiesto these security arrangements may use force upon the high seas, withinthe limits prescribed by international law, to protect their armed forces,public vessels or aircraft. As always in the case of legitimate self-defence,the use of force shall not exceed a proportional response to the armedattack, taking into account its nature and magnitude.130

Transit Passage Through International Straits: the Malacca Straits

Historically, charges have been imposed on ships passing through theMalacca Straits. When the Portuguese controlled the straits, between 1511and 1641, they imposed a toll on vessels.131 The Dutch took over the strait in1641, and carefully controlled passage through it.132 Not until 1824, whenthe Dutch signed a treaty with the United Kingdom, was the right of passagefor vessels of all nations established.133

Both Malaysia and Indonesia have asserted at earlier points that thestraits are part of their territorial seas134 and that ‘the Straits of Malacca andSingapore are not international straits’.135 The earlier position of Indonesiaand Malaysia was that ‘the regime of innocent passage should obtain instraits used for international navigation that have been assimilated eitherby territorial or internal waters’, such as the Strait of Malacca.136 The ma-jor maritime powers objected to this position as too restrictive, and theLaw of the Sea Convention adopted the transit passage regime throughinternational straits to ensure that straits would be open to navigation.137

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The strait has been generally open to all international transit, but Singa-pore and Indonesia in 1993 opposed the passage of a Japanese ship carryingplutonium through the Strait of Malacca because of the danger of collisionsand piracy.138 Malaysia developed a plan to escort the ship through thestrait if that route were to be taken,139 but also threatened to block passageas a threat to its national security.140 The ship did not pass through the strait,and instead went south around Australia.141

Regime of Transit Passage Through International Straits

The United States has not yet ratified the Law of the Sea Convention,but has argued vigorously that the regime of transit passage through in-ternational straits is now part of binding customary international law. OnAugust 17, 1987, the United States said:

The United States particularly rejects the assertions that the rights of transitthrough straits used for international navigation, as articulated in the LOSConvention, are contractual rights and not codification of existing customsor established usage. The regimes of transit passage, as reflected in theconvention, are clearly based on customary practice of long standing andreflects the balance of rights and interests among all states, regardless ofwhether they have signed or ratified the convention.142

Other countries have, however, viewed transit passage as emanatingdirectly from the Law of the Sea Convention, and thus not applicable tocountries that are not contracting parties.143 Some commentators have sug-gested that the transit passage regime in the Law of the Sea Conventionmay not yet have been confirmed as customary international law becauseof ‘the attitude taken by a significant number of states which appear reluc-tant, either explicitly or implicitly, to accept the transit passage regime asa whole or some of its implications’.144 Some Greek scholars have argued,for instance, that Turkey would not be entitled to invoke the right of transitpassage through the Aegean Sea (if Greece were to claim 12-mile territorialseas around its Aegean islands), because Turkey is not a contracting partyto the Law of the Sea Convention.145

Professor Tullio Scovazzi has explained that the convention does notadequately protect the ‘vital concern’ of states bordering straits regardingthe protection of their marine environment.146 In particular, the conventionprovides only limited authority to the bordering states to enforce their en-vironmental regulations, it does not create an adequate liability regime, nor

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does it require the prior notification of transit of ultra-hazardous cargoesthat would allow coastal states to protect their coastal populations andresources.147 These inadequacies have led a number of straits-borderingstates to promulgate regulations that appear to go beyond what is permit-ted by the convention.148 Professor Scovazzi concludes that ‘[i]t is there-fore possible to argue that the LOS Convention transit passage regimeis still far from fully corresponding to present customary internationallaw’.149

Conclusion

This survey of governing documents and state practices involving nav-igation illustrates that shipmasters must carefully limit their movements inmany ways. Even military vessels that have immunity from seizure mustnonetheless respect the many rules that have been established to protectthe marine environment and the security of coastal populations.

Fishing vessels are subject to the most restraints and must now give no-tice whenever they travel through the EEZ of another country. Oil tankers,especially those with single hulls, are now subject to a wide variety ofrestraints, and any ship with a dangerous cargo must conform to interna-tional, regional and national regulations. Ships carrying ultra-hazardousnuclear cargoes have been told by many countries to avoid their EEZs, andthese ships have, in fact, picked routes designed to avoid most EEZs. Anew norm of customary international law appears to have emerged thatallows coastal states to regulate navigation through their EEZ based on thenature of the ship and its cargo.

The right to engage in military activities in the EEZs of other stateswas controversial during the negotiations that produced the Law of theSea Convention, and this topic remains controversial today, with groups ofcountries asserting dramatically opposing views. Countries remain deeplydivided on the legitimacy of launching of weapons, hydrographic survey-ing and surveillance activities in the EEZs of other countries.

Security concerns have increased dramatically during the past decade,and it has become almost commonplace for the major maritime and militarypowers to assert the right to stop and board merchant vessels to look forsuspect cargoes in all parts of the oceans. The relationship between thelaw of the sea and the laws of armed conflict has always been fuzzy, and

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the early efforts to define the laws of neutrality and blockades need to bere-examined and updated to deal with current security concerns.

Navigational rights in the EEZ of other countries are subject to thelegitimate concerns of the coastal country and are being restricted for awide variety of reasons. Coastal states have acted to control such navigationto protect their coastal living resources, to guard against marine pollutionand to protect the security of coastal populations, and it can be anticipatedthat such assertions of coastal state control will continue. In many cases,these claims have been approved by the IMO and by other regional andglobal organisations. The balance between navigation and other nationalinterests continues to develop, and navigational freedoms appear to bedisappearing during this evolutionary process.

Notes1 Sections of this article are adapted and updated from Jon M. Van Dyke, ‘The Disap-

pearing Right to Navigational Freedom in the Exclusive Economic Zone,’ MarinePolicy, 29, 2005, pp. 107–121; Duncan E.J. Currie and Jon M. Van Dyke, ‘Recent De-velopments in the International Law Governing Shipments of Nuclear Materialsand Wastes and Their Implications for SIDS,’ RECIEL, 14 (2), 2005, pp. 117–124;and Jon M. Van Dyke, ‘Balancing Navigational Freedom With Environmental andSecurity Concerns,’ Colorado Journal of International Environmental Law and Policy,15, 2003 Y.B., pp. 19–28.

2 Hugo Grotius, ‘Mare Liberum (The Freedom of the Seas),’ in James B. Scott (ed.)and Ralph Van Deman Magoffin (trans.), Oxford University Press, New York, 1916(originally written in 1633), p. 28; R.P. Anand, ‘Changing Concepts of Freedomof the Seas: A Historical Perspective,’ in Jon M. Van Dyke, Durwood Zaelke,and Grant Hewison (eds.), Freedom for the Seas in the 21st Century, Island Press,Washington, DC, 1993, p. 72.

3 See discussion in David Joseph Attard, The Exclusive Economic Zone in InternationalLaw, Clarendon Press, Oxford, 1987, pp. 43–69.

4 United Nations Convention on the Law of the Sea, December 10, 1982, U.N.A/CONF.62/122, 21 I.L.M. 1261 (1982). Article 55 establishes a specific legalregime; Article 56 lays down rights, jurisdiction and duties of the coastal state;and Article 58 lays down the rights and duties of other states in the EEZ.

5 Ibid., Article 58(1).6 Ibid., Article 58(3).7 David Joseph Attard, no. 3, p. 94.8 Donald R. Rothwell, ‘Navigational Rights and Freedoms in the Asia Pacific fol-

lowing Entry into Force of the Law of the Sea Convention,’ Virginia Journal ofInternational Law, 35, 1995, p. 487.

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9 Monte Confurco Case (Seychelles v. France), ITLOS 2000, at http://www.itlos.org/start2 en.html (Accessed December 8, 2003).

10 The Kerguelen Archipelago is situated at 49◦20′ South, 70◦20′ East, midway be-tween Africa, Antarctica and Australia. The main island is about 120 km by 140km, occupies 6,675 sq km, and is surrounded by around 300 other smaller islands,reefs and rocks, forming an archipelago of 7,215 sq km. These islets are barren andhave never had an indigenous population, but France has maintained a scientificoutpost on the main island since 1949, with a rotating population of some 50 to100. The French base at Port aux Francais has a small hospital, restaurant, library,sports centre, cinema and chapel (Notre Dame des Vents). The base is shared withCNES (The French National Space Centre), which operates a base dedicated tothe tracking of satellites. Because this islet has never supported a permanent pop-ulation and appears to be unable to do so because of its inhospitable nature, astrong argument could be made that it should be considered to be a ‘rock’ underArticle 121(3) of the Law of the Sea Convention that would be unable to generatean EEZ. See, for example, Jon M. Van Dyke, Joseph Morgan, and Jonathan Gurish,‘The Exclusive Economic Zone of the Northwestern Hawaiian Islands: When DoUninhabited Islands Generate an EEZ?’ San Diego Law Review, 25, 1988, p. 425.Nonetheless, the legitimacy of the French EEZ claim around Kerguelen does notappear to have been raised in the Monte Confurco litigation.

11 The Tribunal ruled, however, that it was not logical to assume that the entire cargohad been caught in France’s EEZ and reduced the bond from $8 million to a morereasonable $2.6 million.

12 See, for example, Emma Daly, ‘After Oil Spill, Spain and France Impose StrictTanker Inspections,’ New York Times, November 27, 2002, p. A5. Earlier, Francehad banned vessels of more than 1,600 tonnes from coming within 7 nautical milesof the coast around Cherbourg and Brest, to protect the fragile coastal environment.Robert Nadelson, ‘After MOX: The Contemporary Shipment of Radioactive Sub-stances in the Law of the Sea,’ International Journal of Marine & Coastal Law, 15(no.189), 2000, pp. 193, 224 (citing Joint Prefectorial Decree 326 Cherbourg/18/81 Brestof May 13, 1981).

13 Interview with Kristina Gjerde, Paris, November 12, 2003.14 Press release from the Government of Morocco, January 23, 2003.15 Marlise Simons, ‘France Clamps Down on Shipping Pollution,’ New York Times,

April 7, 2003, p. A8.16 Ibid.17 Ibid.18 ‘Interview with Kristina Gjerde,’ no. 13.19 International Maritime Organization Council, Summary of Decisions (IMO Doc.

C93/D, November 22, 2004), p. 16.

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20 Resolution MSC.190 (79) (December 6, 2004), at http://www.imo.org/ (AccessedMay 1, 2007). WETREP requires oil tankers of more than 600-tonnes deadweightto provide regular reports on their routing and cargo to adjacent coastal states.

21 Rachel Cantry (US Coast Guard), ‘The Coast Guard and Environmental Protection,’Naval War College Review, 52(4), Autumn 1999, p. 77.

22 Ibid., p. 78.23 IMO Resolution MSC 52(66) (May 30, 1996). Ushant (Ouessant in French) is the

most westerly of the islands off the coast of France, about 14 m from the coastof Finistre. Ushant is about 3,850 acres in extent and almost entirely granitic,with steep and rugged coasts accessible only at a few points, and rendered moredangerous by the frequency of fog. It has a small population of pilots, fishers andfarmers.

24 IMO Resolution MSC.63 (67) (December 3, 1996).25 IMO Resolution MSC.73 (69) (May 29, 1998).26 IMO Resolution MSC.85 (70) (December 3, 1998).27 Rachel Cantry, no. 21, p. 82 (quoting from a memorandum written by Rear Admiral

John Hutson, February 18, 1998, which was quoted in John H. Boit, ‘U.S. DefenseDepartment Says Whale Plan Threatens Security,’ Patriot Ledger (Quincy, MA),March 7, 1998.

28 Rachel Cantry, no. 21, p. 85.29 See Jon M. Van Dyke, ‘The Legal Regime Governing Sea Transport of Ultra-

hazardous Radioactive Materials,’ Ocean Development & International Law, 33, 2002,p. 77; Duncan E.J. Currie and Jon M. Van Dyke, ‘The Shipment of Ultra-hazardousNuclear Materials in International Law,’ Reciel, 8, 1999, p. 113; Jon M. Van Dyke,‘Applying the Precautionary Principle to Ocean Shipments of Radioactive Materi-als,’ Ocean Development & International Law, 38, 1996, p. 379; Jon M. Van Dyke, ‘SeaShipment of Japanese Plutonium Under International Law,’ Ocean Development &International Law, 24, 1993, p. 399.

30 For instance, Malaysia cited the inherent danger entailed in the passageof nuclear-powered vessels or vessels carrying nuclear material or mate-rial of a similar nature and stated that the government, ‘with all of theabove in mind, requires the aforesaid vessels to obtain prior authorizationof passage before entering the territorial sea of Malaysia until such timeas the international agreements referred to in Article 23 are concluded andMalaysia becomes a party thereto. Under all circumstances, the flag of stateof such vessels shall assume all responsibility for any loss or damage result-ing from the passage of such vessels within the territorial sea of Malaysia’, athttp://www.un.org/Depts/los/convention agreements/convention declarations.htm (Accessed May 1, 2007).

31 The UK stated that it considers that declarations and statements not in con-formity with Articles 309 and 310 include ‘those which purport to requireany form of notification or permission before warships or other ships exercise

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the right of innocent passage or freedom of navigation or which otherwisepurport to limit navigational rights in ways not permitted by the Convention’, athttp://www.un.org/Depts/los/convention agreements/convention declarations.htm (Accessed May 1, 2007).

32 See Jon M. Van Dyke, “Applying the Precautionary Principle,” No. 29, p. 386.33 Statement of Toichi Sakata, Director of the Japanese Science and Technology

Agency’s Nuclear Fuel Division, to participants in the Asia-Pacific Forum on SeaShipments of Japanese Plutonium, Tokyo, October 6, 1992.

34 See Jon M. Van Dyke, “Applying the Precautionary Principle,” No. 29, p. 386–87.35 Letter from Don McKinnon, New Zealand Minister of Foreign Affairs and Trade,

to Michael Szabo, July 7, 1999.36 Chile’s Law for Nuclear Safety, Law No. 18.302, Article 4, originally promulgated

April 16, 1984, and amended pursuant to Law-19825 on October 1, 2002.37 Ibid., Article 4(II).38 ‘Edison Scuttles San Onofre Reactor Trip,’ San Diego Union Tribune, February.

3, 2004, at http://www.signonsandiego.com/news/northcounty/20040203–1311-nuclear.html (Accessed May 1, 2007).

39 ‘Nuke Waste Move Plan Hits Snag,’ Associated Press, November 5, 2003, atCBSNEWS.com.

40 Ibid. ‘Although we recognize that advance notification of coastal states is not re-quired, we consider it to be an important element in preparation for contingencies’,Robert A. McGuire, the US Department of Transportation associate administratorfor hazardous materials, wrote in an October 17, 2003, letter. ‘It may be necessary toseek shelter in waters of a coastal state’. McGuire’s letter also noted that SouthernCalifornia Edison had made no arrangements for emergency equipment, such ascranes, backup tugs or salvage vessels.

41 Ibid. Quoting McGuire’s October 17, 2003, letter as saying: ‘Given that your trans-port is entirely over open ocean, your proposal to salvage only in water up to 300feet appears insufficient’.

42 ‘Significant Issues Delay Reactor’s Move,’ San Diego Union Tribune, November 21,2003.

43 H.G. Reza, ‘Edison Cleared to Ship San Onfre Reactor,’ L.A. Times, December 3,2003.

44 Dan Weikel and Hector Tobar, ‘Argentina Limits Reactor Route,’ L.A. Times, Jan-uary 16, 2004.

45 Basel Convention on the Control of Transboundary Movements of HazardousWastes and Their Disposal, signed at Basel March 22, 1989, entered into force May5, 1992, UNEP Doc. T/BSL/000, 28 I.L.M. 657 (1989).

46 For a discussion of the applicability of the Basel Convention to radioactive wastes,see Jon M. Van Dyke, “Applying the Precautionary Principle,” No. 29, p. 383–85.

47 Dan Weikel and Hector Tobar, no. 44.

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48 See Jon M. Van Dyke, ‘Applying the Precautionary Principle,’ no. 29, p. 386.49 See Statement of Toichi Sakata, no. 33.50 Thirty-Fifth Pacific Islands Forum, Apia, Samoa, August 5–7, 2004, Forum Com-

munique, at http://www.forumsec.org.fj (Accessed May 1, 2007).51 H.E. Ambassador Masao Nakayama, Permanent Representative of the Federated

States of Micronesia to the United Nations, before the 59th United Nations Gen-eral Assembly on Agenda Item 49: Oceans and the Law of the Sea, New York,November 17, 2004.

52 ‘Forum Expresses Concern on Nuclear Shipments,’ Pacific Islands Forum, February7, 2005, at http://www.forumsec.org.fj (Accessed May 1, 2007).

53 ‘NZ Objects Nuclear Waste Shipment Through Tasman Sea,’ OneNews, April 2,2005, at http://tunz.co.nz (Accessed May 1, 2007).

54 Fifth Meeting on Liability and Compensation for the Transport of Radioactive Ma-terials (Nadi, Fiji, June 21–25, 2004), Summary of Discussions with Shipping States,para 6. Despite this positive development, the Pacific Island countries remainedconcerned about the lack of a region-specific environmental impact assessment,the failure of the shipping states to coordinate their contingency response pre-paredness plans with countries in the region, and the deep disagreement betweenthe island and shipping states regarding the adequacy of the liability and compen-sation regimes and the measurement of damages.

55 Statement by CARICOM, April 26, 2004, presented by the Bahamas to the NPTPrepcom 2004.

56 The MOX Plant Case (Ireland v. U.K.), ITLOS (2001), 41 I.L.M. 405 (2002).57 Ibid., p. 415, para 82.58 International Conference on the Safety of Transport of Radioactive Material, July

7–11, 2003, Vienna, Austria, Summary and findings of the conference president, athttp://www.iaea.org/ (Accessed May 1, 2007).

59 IAEA GC47/RES/7, Sept 2003, at http://www.iaea.org/ (Accessed May 1, 2007).60 IAEA, International Action Plan for the Safety of Transport of Ra-

dioactive Materials, at http://www-ns.iaea.org/downloads/rw/action-plans/transport-action-plan.pdf ; see also IAEA Director-General’s Report, Measures toStrengthen International Cooperation in Nuclear, Radiation and Transport Safetyand Waste Management, GC(48)/INF/7, at http://www.iaea.org/(Accessed May1, 2007).

61 International Action Plan, B.1.10, citing Resolution GC (47)/RES/7.C OP 8.62 Resolution GC(48)/RES/10, Measures to Strengthen International Cooperation in

Nuclear, Radiation and Transport Safety and Waste Management, September 24,2004, at http://www.iaea.org/ (Accessed May 1, 2007).

63 See also International Action Plan, no. 61, at B.2.1.

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64 A/Conf.207/L.6.65 The Mauritius Strategy for the Further Implementation of the Programme of Ac-

tion for the Sustainable Development of Small Island States, January 13, 2005,at http://www.un.org/smallislands2005/pdf/sids strategy.pdf (Accessed May 1,2007).

66 Report of the Global Conference on the Sustainable Development of Small IslandDeveloping States, Bridgetown, Barbados, April 25–May 6, 1994, UN Sales No.E.94.1.18 and corrigenda.

67 The Mauritius Strategy for the Further Implementation of the Programme of Ac-tion for the Sustainable Development of Small Island States, Port Louis, Mau-ritius, January 13, 2005 (emphasis added), at http://www.un.org/smallislands2005/pdf/sids strategy.pdf (Accessed May 1, 2007).

68 Outcome Document, para 56(o), at http://www.un-ngls.org/un-summit-DOD.doc (Accessed May 1, 2007).

69 UN General Assembly Resolution, Oceans and the Law of the Sea, November 2005,para 46.

70 EEZ Group 21, Guidelines for Navigation and Overflight in the Exclusive EconomicZone, Ocean Policy Research Foundation, Tokyo, September 16, 2005 (emphasisadded). The members of EEZ Group 21 are Masahiro Akiyama, Chair, OceanPolicy Research Foundation, Tokyo, Japan; Rear Admiral (Retd.) Kazumine Aki-moto, Senior Researcher, Ocean Policy Research Foundation, Tokyo, Japan; SamBateman, University of Wollongong, New South Wales, Australia; Hasjim Djalal,Indonesian Maritime Council; Alberto A. Encomienda, Secretary-General, Mar-itime and Ocean Affairs Center, Department of Foreign Affairs, Philippines; Mori-taka Hayashi, Waseda University, Tokyo, Japan; Ji Guoxing, Shanghai Jiao TongUniversity, China; Commander Kim Duk-ki, National Security Council, Repub-lic of Korea; Pham Hao, Deputy Director General, Department of InternationalLaw and Treaties, Ministry of Foreign Affairs, Vietnam; Shigeki Sakamoto, KobeUniversity, Japan; Rear Admiral (Retd.) O.P. Sharma, College of Naval Warfare,Mumbai, India; Alexander S. Skaridov, Russian State Humanitarian University,St. Petersburg, Russia; Mark J. Valencia, Maritime Policy Analyst, Kaneohe, HI;Jon M. Van Dyke, University of Hawaii, Manoa, HI; and Judge Alexander Yankov,International Tribunal for the Law of the Sea, Hamburg, Germany.

71 See Duncan Currie, ‘Liability for Nuclear Power Incidents: Limitations, Restric-tions, and Gaps in the Vienna and Paris Regimes,’ in Stockinger Van Dyke, Updat-ing International Nuclear Law, Neuer Wissenschaftliche, Vienna, 2007; publicationforthcoming in the Denver Journal of International Law and Policy.

72 See, for example, Merlin v. British Nuclear Fuels, PLC, [1990] 2 QB 557, [1990] 3 AllER 711, [1990] 3 WLR 383, rejecting a claim for loss resulting from contaminationof a house from α-emitting radionuclides, even though the house had lost almosthalf its value because of the contamination, because the radionuclides caused no‘physical’ damage to the fabric of the property, and noting that ‘it is in the nature

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of nuclear installations that there will be some additional radionuclides presentin the houses of the local population’. The High Court also stated, in justifyingits rejection of the claim, that ‘the presence of alpha emitting radionuclides in thehuman airways or digestive tracts or even in the bloodstream merely increasesthe risk of cancer to which everyone is exposed from both natural and artificialradioactive sources. They do not per se amount to injury.

73 The Law on the Prohibition of the Use of Nuclear Fission for Energy Genera-tion in Austria: Bundesgesetz uber die zivilrechtliche Haftung fur Schaden durchRadioaktivitat (Atomhaftungsgesetz 1999—AtomHG 1999, BGB1.I No. 170/1998).See Monika Hinteregger, ‘The New Austrian Act on Third Party Liability forNuclear Damage,’ in Updating International Nuclear Law, no. 71; publication forth-coming in the Denver Journal of International Law and Policy.

74 The General Treaty for the Renunciation of War, Aug. 27, 1982, 28 Stat. 2343, T.S.No. 796, 2 Bevans 732, 94 L.N.T.S. 57. This treaty has been ratified by 66 countries,including the United States, and is still in effect. In Article I, the contracting parties‘condemn recourse to war for the solution of international controversies, andrenounce it as an instrument of national policy in their relations with one another’.

75 See, for example, The Prize Cases, 67 U.S. (2 Black) 635, 667 (1862) (‘The laws ofwar, as established among nations, have their foundation in reason, and all tendto mitigate the cruelties and misery produced by the scourge of war’.).

76 Thomas Buergenthal and Sean D. Murphy, Public International Law, West Publish-ing Co, St. Paul, MN, 2002, pp. 15–16; John Bassett Moore, International Law andOther Current Illusions and Other Essays, Macmillan, New York, 1924, p. 296; ArthurNussbaum, A Concise History of the Law of Nations, Macmillan, New York, 1954, pp.186–187.

77 Mark W. Janis, An Introduction to International Law, 4th ed., Aspen Law & Business,Goithersburg, MD, 2003, p. 172; Major General J.H. Marshall-Cornwall, GeographicDisarmament, A Study of Regional Demilitarization, 1935, pp. 54–55 .

78 See Anders Gardberg, Aland Islands: A Strategic Survey, Finland National DefenceCollege, Helsinki, 1995; Convention on Demilitarization of the Aland Islands,March 30, 1856, reprinted in ibid. p. 87.

79 Natalino Ronzitti, ‘The Aegean Demilitarization, Greek Turkish Relations and Mediter-ranean Security,’ in The Aegean Issues: Problems and Prospects, Foreign Policy Insti-tute, Ankara, Turkey, 1989, p. 295 (citing 51 British and Foreign State Papers 1053and De Martens, Nauveau Recueil general de Traites, II series, vol. 7, at 323–341,art. 1).

80 Mark W. Janis, no. 77, p. 173.81 John Bassett Moore, no. 76, p. viii.82 Ibid.83 Ibid., p. 13.

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84 The US Supreme Court adopted from Vattel, for instance, the view that: ‘Shouldthe sovereign conceive he has a right to hang up his prisoners as rebels, theopposite party will make reprisals; ...should he burn and ravage, they will followhis example; the war will become cruel, horrible, and every day more destructiveto the nation’. Ibid., p. 38 (quoting from The Prize Cases, 67 U.S. (2 Black) 635, 666,667 (1862)).

85 Cmdr. John Astley III and Lt.Col. Michael N. Schmitt, ‘The Law of the Sea andNaval Operations,’ Air Force Law Review, 42(119), 1997, p. 139.

86 Ibid., p. 142.87 Ibid., p. 147. ‘If the U.N. takes action against an aggressor, member states may

be obliged to assist and cannot remain neutral’. Louis Henkin, Richard CrawfordPugh, Oscar Scahchter, and Hans Smit, International Law: Cases and Materials, 3rded., West Publishing Co, St. Paul, MN, 1993, p. 940 (citing Louis Henkin, HowNations Behave, 2nd ed., Columbia University Press, New York, 1979, p. 140).

88 See, for example, The Prize Cases, 67 U.S. (2 Black) 635, 665-66 (1862).89 Presidential Proclamation No. 3504, 27 Fed. Reg. 10401 (1962).90 See generally R.R. Churchill and A.V. Lowe, The Law of the Sea, 3rd ed., Manchester

University Press, Manchester, 1999, p. 424.91 Ken Booth, ‘Naval Strategy and the Spread of Psycho-Legal Boundaries at

Sea,’ International Journal, Canadian Institute of International Affairs, Summer 1983,pp. 373, 384

92 S.C. Res. 665 (1990), reprinted in 29 I.L.M. 1329 (1990).93 S.C. Res. 787 (November 16, 1992) and 820 (April 17, 1993).94 S.C. Res. 875 (October 16, 1993) and 917, (May 6, 1994).95 S.C. Res. 1132 (October 8, 1997).96 Defense Institute of International Legal Studies (DIILS), Conference on Maritime

Operations organised by the Russian Academy of Liberal Arts and InformationTechnologies Education and DIILS 11-8, St. Petersburg, Russia, June 2003.

97 Ibid.98 Thom Shanker, ‘Scud Missiles Found on Ship of North Korea,’ New York Times,

December 11, 2002, p. A1.99 DIILS Conference on Maritime Operations, no. 96, at 11-9. See also Barry Schweid,

‘U.S. Releases Seized Scuds Being Shipped to Yemen,’ Honolulu Advertiser, Decem-ber 12, 2002, p. A2: ‘Bush administration officials acknowledged that boarding theship and taking charge of its cargo probably violated international law’.

100 David E. Sanger and Thom Shanker, ‘Reluctant U.S. Gives Assent for Missiles toGo to Yemen,’ New York Times, December 12, 2002, p. A1.

101 Christopher Cooper, ‘Taiwan Seizes North Korean Cargo,’ Asian Wall Street Journal,August 13, 2003, p. A4.

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102 These incidents are discussed in detail in Mark J. Valencia, The Proliferation SecurityInitiative: Making Waves in Asia, Routledge, London, 2005.

103 See, for example, James Brooke, ‘Japan Detains 2 North Korean Ships, Part ofPressure Strategy,’ New York Times, June 11, 2003, p. 13.

104 Speech by Condoleezza Rice to the National Legal Center for the Public Interest,Waldorf Astoria Hotel, New York City, November 2, 2003 (emphasis added).

105 Lincoln Wright, ‘Change to High Seas Law Sought,’ Canberra Times (Australia),June 12, 2003, p. 5.

106 ‘Bill Eyed for Ship Checks at Sea,’ Yomiuri Shimbun (Tokyo), January 30, 2004.107 Australian Prime Minister John Howard, Press release, December 15, 2004, at

http://www.pm.gov.au/news/media releases/ (Accessed May 1, 2007).108 ‘Back off With the Bulldozer, Malaysia tells PM,’ Sydney Morning Herald, December

20, 2004, at http://www.smh.com.au/ (Accessed May 1, 2007).109 Lloyds List, ‘Australia Security Plan Alarms Wellington,’ December 17, 2004.110 BBC, ‘Indonesia Rejects Australian Zone’, December 17, 2004, at http://news.bbc.

co.uk/ (Accessed May 1, 2007); Matthew Moore, ‘Jakarta Slams PM’s ‘Illegal’Sea Plan,’ The Age, December 18, 2004, at http:///www.theage.com.au/news/National/Jakarta-slams-PMs-illegal-sea-plan/2004/12/17/ (Accessed January 27,2007); The Indonesian-Australian Relationship, speech by Ali Alitas, July 4, 2006, athttp://www.politicalowl.com/Stories/July06/040706alialistasspeech.htm(Accessed January 27, 2007).

111 Australian Maritime Identification Zone, Press release from Phil Goff, NewZealand Minister of Foreign Affairs and Trade, December 16, 2004, athttp://www.scoop.co.nz/stories/PA0412/S00430.htm (Accessed January 27,2007).

112 See Natalie Klein, ‘Legal Implications of Australia’s Maritime Identification Sys-tem,’ International & Comparative Law Quarterly, 55(2), 2006, p. 337.

113 See Jon M. Van Dyke, ‘Military Ships and Planes Operating in the Exclusive Eco-nomic Zone of Another Country,’ Marine Policy, 28, 2004, pp. 29–39.

114 For examples, see ibid.115 ‘PRC Seeks Control Over Coastal Exclusion Zone,’ China Post, January 29, 2003.

China appears to be particularly concerned that its ‘interests in and jurisdictionover [its] exclusive economic zone should be fully respected’. In March 2002,Chinese Foreign Minister Tang Jiaxuan expressed continued concern about theJapanese vessel that chased the North Korean ‘mystery ship’ into China’s EEZ inDecember 2001. Also, ‘China’s Interests in Exclusive Economic Zone Should BeRespected,’ Xinhua News Agency, March 6, 2002.

116 See, for example, Jon M. Van Dyke, no. 113 and ‘Aerial Incident off the Coast ofChina,’ American Journal of International Law, 95, 2001, p. 630; see also Ralph Cossa,‘Do We Need So Many Surveillance Flights?’ Honolulu Star-Bulletin, April 18, 2001,

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p. A21. Quite some time ago, US Ambassador Elliot L. Richardson recommendedthe ‘outright cancellation’ of routine overflights of the exclusive economic zonein order to preserve friendly relations with other countries. Elliot L. Richardson,‘Power, Mobility and the Law of the Sea,’ Foreign Affairs, 58, 1980, pp. 906, 909.

117 Robert Burns, ‘Reconnaissance Flights Resume Off North Korea,’ Honolulu Star-Bulletin, March 13, 2003, p. A9.

118 Hugh O’Mahony, IMO ‘Measures Give Owners First Taste of the New Regime,’Lloyd’s List International, December 18, 2002.

119 Ibid.120 ‘Canada Bans Boats from Coming Within 500 Metres of Naval Ports,’ BBC Moni-

toring Asia Pacific—Political, January 13, 2003.121 For example, see John Astley III and Michael N. Schmitt, no. 85, p. 132: ‘The Con-

vention does not require prior notice or authorization before a ship may proceedin innocent passage. Nevertheless, some coastal states have imposed such require-ments on warships. Over 25 nations purport to require prior permission, 13 insiston prior notification, and five place impermissible special restrictions on nuclear-powered warships’. (In their footnote 50, the authors list the countries that havemade these claims.)

122 This statement is quoted with support in Philip Jessup, The Law of Territorial Watersand Maritime Jurisdiction, 1927, p. 120, and is discussed in R.P. Anand, ‘TransitPassage and Overflight in International Waters,’ in Jon M. Van Dyke, Lewis M.Alexander, and Joseph R. Morgan (eds.), International Navigation: Rocks and ShoalsAhead? Law of the Sea Institute, Honolulu, 1988, pp. 125, 146–147.

123 See John Astley III and Michael N. Schmitt, no. 85, p. 137: ‘Warships in InternationalWaters Must Comply With International Law Governing Pollution’.

124 See ‘Air Attacks on Neutral Shipping in the Persian Gulf: The Legality of the IraqiExclusion Zone and Iranian Reprisals,’ Boston College International & ComparativeLaw Review, 8, 1985, p. 517.

125 Harvey Dalton, ‘Comments on National Security Concerns,’ in Jon M. Van Dyke,Lewis M. Alexander, and Joseph R. Morgan (eds.), International Navigation: Rocksand Shoals Ahead? Law of the Sea Institute, Honolulu, HI, 1988, pp. 373, 374;Churchill and Lowe, no. 90, p. 425, have said, ‘It seems unlikely that movingzones will be accepted or tolerated by the international community as readily asfixed exclusion zones have been’.

126 Churchill and Lowe, no. 90, p. 421.127 Harvey Dalton, no. 125, pp. 373, 374.128 Jon M. Van Dyke, Lewis M. Alexander, and Joseph R. Morgan (eds.), International

Navigation: Rocks and Shoals Ahead? Law of the Sea Institute, Honolulu, HI, 1988,p. 378.

129 John Astley III and Michael N. Schmitt, no. 85, p. 138.

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130 General and Complete Disarmament Study on the Naval Arms Race—Report ofthe Secretary General, Doc. No. A/40/535 at 15 para. 178 (September 17, 1985).

131 K.E. Shaw, The Straits of Malacca, University of Education Press, Singapore, 1973,pp. 89–91.

132 Ibid.133 Ibid.134 Michael Leifer, Malacca, Singapore, and Indonesia, Martinus Nijhoff, Dordrecht, The

Netherlands, 1978, p. 91.135 Joint statement of the governments of Indonesia, Malaysia and Singapore, Novem-

ber 16, 1971, reprinted in Gary Knight and Hungdah Chiu, The International Lawof the Sea, Elsevier Applied Science, London, 1991, p. 294; in Komar Kantaat-madja, ‘Various Problems and Arrangements in the Malacca Straits (An Indone-sian Perspective),’ in Jon M. Van Dyke, Lewis M. Alexander, and Joseph R. Mor-gan (eds.), International Navigation: Rocks and Shoals Ahead? 1988, pp. 165, 168;and in Wan Awang bin Wan Yaacob, ‘Regional Co-Operation and the Straits ofMalacca,’ in Hamzah Ahmad (ed.), The Straits of Malacca: International Co-Operationin Trade, Funding & Navigational Safety, Pelanduk Publications, Maritime Instituteof Malaysia, Kuala Lumpur, 1997, pp. 15–16.

136 Michael Leifer, no. 134, p. 88.137 Law of the Sea Convention, no. 4, Articles 34–44.138 Mariita Eager and Ian Steward, ‘Freighter Heads for Nuclear Shipment,’ South

China Morning Post Wire Service, September 21, 1992.139 Agence France Presse, November 10, 1992.140 ‘Malaysia May Cite Security Laws to Block Japanese Plutonium Ship,’ UPI Business

and Financial Wire UPO1W, September 24, 1992.141 See Jon M. Van Dyke, ‘Sea Shipment of Japanese Plutonium under International

Law,’ Ocean Development & International Law, 24, 1993, pp. 399–430.142 Nihan Unlu, The Legal Regime of the Turkish Straits, Martinns Nijhoff, 2003, p. 74.143 The Turkish scholar Nihan Unlu lists the countries that ‘consider the regime of

transit passage as an exclusive part of the UNCLOS [UN Convention on the Lawof the Sea]’ as Chile, Denmark, Egypt, Greece, Iran, Indonesia, Italy, Japan, SouthKorea, Malaysia, the Netherlands, Oman and Spain. Ibid., p. 75.

144 Tullio Scovazzi, The Evolution of International Law of the Sea: New Issues, New Chal-lenges, Martinus Nijhoff, The Hague, 2001, p. 174 (reprinted from Recueil des Cours,vol. 286, 2000). Nihan Unlu agrees that ‘a general right of transit passage has notyet been established in customary law’. Nihan Unlu, no. 142, p. 75.

145 See, for example, George P. Politakis, ‘The Aegean Dispute in the 1990s: NavalAspects of the New Law of the Sea Convention,’ in Theodore C. Kariotis (ed.),Greece and the Law of the Sea, 1997, pp. 291, 303 (similar to George P. Politakis, ‘TheAegean Agenda: Greek National Interests and the New Law of the Sea Convention,’

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International Journal of Marine & Coastal Law, 497, 1995, p. 10) (summarising schol-arly discussion that indicates that all aspects of the transit passage regime have notyet crystallised into customary international law), and Anastasia Strati, ‘Greeceand the Law of the Sea: A Greek Perspective,’ in Aldo Chircop, Gerolymatos andIatrides (eds.),The Aegean Sea After the Cold War, 2000, pp. 89, 94: ‘it is highly ques-tionable whether the LOS Convention provisions on transit passage in all theirdetail reflect customary law, thereby entitling Turkey to benefit from them’ .

146 Tullio Scovazzi, no. 144, pp. 174–175.147 Ibid., pp. 175–177.148 Ibid., pp. 177–187 (providing examples from the Malacca Strait, the Canadian

Arctic Straits, the Russian Arctic Straits and the Turkish Straits).149 Tullio Scovazzi, ‘Management Regimes and Responsibility for International

Straits,’ in Hamzah Ahmad (ed.), The Straits of Malacca: International Co-Operation inTrade, Funding & Navigational Safety, Pelanduk Publications, Maritime Institute ofMalaysia, Kuala Lumpur, 1997, p. 344. See also Hamzah bin Ahmad, ‘Global Fund-ing for Navigational Safety and Environmental Protection,’ in Straits of Malacca,Ibid. pp. 125, 131: ‘the concept of transit passage is relatively new and cannot besaid to have acquired the status of customary international law’.

Jon M. Van Dyke is Professor of Law at the William S. RichardsonSchool of Law, University of Hawaii at Manoa.This article was presented at the International Seminar on “TheGeopolitics of Energy: The Rise of Asia”, organised by IDSA-PRIOin December 2006.

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