search in their territorial seas vessels that are ‘reasonably suspected’ of carrying such
cargoes to or from States or non-State actors of proliferation concern and to seize
such cargoes that are identified.
78 If all 105 States that are partners in the PSI were to
act unilaterally, they would not only establish a new State practice contrary to the
law of the sea but also significantly impinge on the right of innocent passage.
79
Similar would be case if flag States were to accept coastal State boarding of ships
engaged in innocent passage on the grounds of suspicion of illegal trafficking
of weapons of mass destruction and without prior permission of the flag State.
Therefore, the Proliferation Security Initiative has significant potential to impinge
on the right of innocent passage, although with noble intentions.
5.4 Arms and Ammunition
As regards passage of vessels carrying conventional arms, ammunition and parts and
components or other related material or logistical support intended for rebels,
non-State actors, or belligerent States, at first instance, coastal States would appear
to be having potentially conflicting obligations under UNCLOS and the Arms Trade
Treaty.
80 UNCLOS grants the right of innocent passage to all ships regardless of the
cargo onboard or the type of trade the vessel is engaged in whereas States Party to the
Arms Trade Treaty are obliged not to authorise transfers of conventional arms under
certain circumstances (Article 2) and, to take appropriate measures “to regulate,
where necessary and feasible, the transit or trans-shipment under its jurisdiction of
conventional arms covered under Article 2.1 through its territory in accordance with
relevant international law (Article 9).”
However, a closer reading of UNCLOS suggests that at least four different
articles would support the steps taken by a coastal State to prevent passage of such
a vessel carrying conventional arms. The passage, which in any case violates the
provisions of Article 88
81 according to which the high seas are reserved for peaceful
purposes, ceases to be innocent within the meaning of Article 19.2
82 leaving the
coastal State to exercise its discretion as per Article 25.1,
83 to take measures
78 see subparagraph 4(d)(1) of the Statement of Interdiction Principles under the Proliferation
Security Initiative.
79 In August 1993, the United States suspected the Chinese flagged Yinhe of carrying thiodiglycol
and thionyl chloride—chemicals that can be used to manufacture both mustard gas and sarin nerve
gas. After much disagreeing, China permitted the vessel’s inspection in a Saudi port prior to its
docking in Iran. The inspection did not uncover any of the suspected chemicals (Winner 2005).
80 The ATT seeks to “prevent and eradicate the illicit trade in conventional arms and to prevent their
diversion to the illicit market, or for unauthorised end use and end users, including in the
commission of terrorist acts”.
81 UNCLOS Article 88, Reservation of the High Seas for peaceful purposes, p. 57.
82 UNCLOS Article 19, Meaning of innocent passage, p. 31.
83 UNCLOS Article 25, Rights of protection of the Coastal State, p. 33.
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cargoes to or from States or non-State actors of proliferation concern and to seize
such cargoes that are identified.
78 If all 105 States that are partners in the PSI were to
act unilaterally, they would not only establish a new State practice contrary to the
law of the sea but also significantly impinge on the right of innocent passage.
79
Similar would be case if flag States were to accept coastal State boarding of ships
engaged in innocent passage on the grounds of suspicion of illegal trafficking
of weapons of mass destruction and without prior permission of the flag State.
Therefore, the Proliferation Security Initiative has significant potential to impinge
on the right of innocent passage, although with noble intentions.
5.4 Arms and Ammunition
As regards passage of vessels carrying conventional arms, ammunition and parts and
components or other related material or logistical support intended for rebels,
non-State actors, or belligerent States, at first instance, coastal States would appear
to be having potentially conflicting obligations under UNCLOS and the Arms Trade
Treaty.
80 UNCLOS grants the right of innocent passage to all ships regardless of the
cargo onboard or the type of trade the vessel is engaged in whereas States Party to the
Arms Trade Treaty are obliged not to authorise transfers of conventional arms under
certain circumstances (Article 2) and, to take appropriate measures “to regulate,
where necessary and feasible, the transit or trans-shipment under its jurisdiction of
conventional arms covered under Article 2.1 through its territory in accordance with
relevant international law (Article 9).”
However, a closer reading of UNCLOS suggests that at least four different
articles would support the steps taken by a coastal State to prevent passage of such
a vessel carrying conventional arms. The passage, which in any case violates the
provisions of Article 88
81 according to which the high seas are reserved for peaceful
purposes, ceases to be innocent within the meaning of Article 19.2
82 leaving the
coastal State to exercise its discretion as per Article 25.1,
83 to take measures
78 see subparagraph 4(d)(1) of the Statement of Interdiction Principles under the Proliferation
Security Initiative.
79 In August 1993, the United States suspected the Chinese flagged Yinhe of carrying thiodiglycol
and thionyl chloride—chemicals that can be used to manufacture both mustard gas and sarin nerve
gas. After much disagreeing, China permitted the vessel’s inspection in a Saudi port prior to its
docking in Iran. The inspection did not uncover any of the suspected chemicals (Winner 2005).
80 The ATT seeks to “prevent and eradicate the illicit trade in conventional arms and to prevent their
diversion to the illicit market, or for unauthorised end use and end users, including in the
commission of terrorist acts”.
81 UNCLOS Article 88, Reservation of the High Seas for peaceful purposes, p. 57.
82 UNCLOS Article 19, Meaning of innocent passage, p. 31.
83 UNCLOS Article 25, Rights of protection of the Coastal State, p. 33.
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