Convention
71 affords enough latitude to coastal states to prevent ultra-hazardous
materials from passing through their waters without certain precautions. Nevertheless, there does exist justification within UNCLOS itself for a coastal state to use
measures to prevent a ship carrying nuclear materials from coming within its
territorial waters or EEZ. Article 221
72 of UNCLOS gives coastal states enforcement
mechanisms to avoid pollution arising from maritime casualties and deals with
actual or “threatened damage” by maritime casualty “or acts relating to such a
casualty.” Here, the authority for state action is justified under both, customary
and conventional international law.
73
Jon van Dyke
74 has proposed various options to resolve the conflict between the
provisions of UNCLOS and precautionary principle. Incorporating precautionary
principle in the INF Code is the most pragmatic, global solution. In the absence of a
global solution, regional regimes such as the Bamako
75 and Waigani
76 Conventions
would be the next best option, although there would be some conflict between the
various approaches. Although it would be difficult to implement, van Dyke proposes
a third option of creating a universal shipping lane for ships carrying nuclear
materials.
5.3 Proliferation
The Proliferation Security Initiative is a non-treaty partnership between States which
aims to prevent the proliferation of weapons of mass destruction, their delivery
systems and related materials as a complement to the prevailing international arms
control arrangements such as the Treaty on the Non-Proliferation of Nuclear
Weapons, the Chemical Weapons Convention and the Biological Weapons Convention. Though it started off as a political initiative, it has been argued that the
objectives and working methods specified in the subsequent Statement of Interdiction Principles have the potential for most significant implications for the law of the
sea, especially for the regime of innocent passage.
77 Whereas on the one hand the
Interdiction Principles do state that PSI activities will not violate international law,
on the other hand, they call on participants to take appropriate actions to stop and/or
71 International Convention Relating to Intervention on the High Seas is cases of Oil Pollution
Casualties, 1969. U.N.T.S. Vol. 970-I-14049.
72 UNCLOS Article 221, Measures to avoid pollution arising from marine casualties, p. 112.
73 Dixon (2006), p. 94.
74 van Dyke (1996), and Dixon (2006), pp. 97–99.
75 Bamako Convention on the ban of the Import into Africa and the Control of Trans-boundary
Movement of Hazardous Wastes within Africa, 1991.
76 The Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes
within the South Pacific Region, 1995.
77 Winner (2005), pp. 129–143.
Innocent Passage Under UNCLOS: An Exploration of the Tenets, Trials. . .
241
71 affords enough latitude to coastal states to prevent ultra-hazardous
materials from passing through their waters without certain precautions. Nevertheless, there does exist justification within UNCLOS itself for a coastal state to use
measures to prevent a ship carrying nuclear materials from coming within its
territorial waters or EEZ. Article 221
72 of UNCLOS gives coastal states enforcement
mechanisms to avoid pollution arising from maritime casualties and deals with
actual or “threatened damage” by maritime casualty “or acts relating to such a
casualty.” Here, the authority for state action is justified under both, customary
and conventional international law.
73
Jon van Dyke
74 has proposed various options to resolve the conflict between the
provisions of UNCLOS and precautionary principle. Incorporating precautionary
principle in the INF Code is the most pragmatic, global solution. In the absence of a
global solution, regional regimes such as the Bamako
75 and Waigani
76 Conventions
would be the next best option, although there would be some conflict between the
various approaches. Although it would be difficult to implement, van Dyke proposes
a third option of creating a universal shipping lane for ships carrying nuclear
materials.
5.3 Proliferation
The Proliferation Security Initiative is a non-treaty partnership between States which
aims to prevent the proliferation of weapons of mass destruction, their delivery
systems and related materials as a complement to the prevailing international arms
control arrangements such as the Treaty on the Non-Proliferation of Nuclear
Weapons, the Chemical Weapons Convention and the Biological Weapons Convention. Though it started off as a political initiative, it has been argued that the
objectives and working methods specified in the subsequent Statement of Interdiction Principles have the potential for most significant implications for the law of the
sea, especially for the regime of innocent passage.
77 Whereas on the one hand the
Interdiction Principles do state that PSI activities will not violate international law,
on the other hand, they call on participants to take appropriate actions to stop and/or
71 International Convention Relating to Intervention on the High Seas is cases of Oil Pollution
Casualties, 1969. U.N.T.S. Vol. 970-I-14049.
72 UNCLOS Article 221, Measures to avoid pollution arising from marine casualties, p. 112.
73 Dixon (2006), p. 94.
74 van Dyke (1996), and Dixon (2006), pp. 97–99.
75 Bamako Convention on the ban of the Import into Africa and the Control of Trans-boundary
Movement of Hazardous Wastes within Africa, 1991.
76 The Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes
within the South Pacific Region, 1995.
77 Winner (2005), pp. 129–143.
Innocent Passage Under UNCLOS: An Exploration of the Tenets, Trials. . .
241