100
H. Banzai
above. Although a warship can attempt to board a ship that is suspected of being
engaged in the transport of WMD and its related material, the right of visit of the
warship cannot be justified because the proliferation of WMD is not included in the
elements of Article 110, paragraph 1, unless the ship has the same nationality as the
warship.
In addition, Article 110, paragraph 3, is noteworthy. This section includes provisions for the compensation of certain losses caused by interruptions to fishing activities, the delay of navigation of a commercial vessel according to the conditions of a
transport contract, and changes in the price of oil that a tanker is carrying. This means
that the ‘interests’ of navigation are not always the same as the ‘right’ of navigation
as the loss of interests may be beyond the scope of the protection of the right of navigation. These losses are related to the actual interests based on the real activities of
ships. Therefore, legally protected interests of navigation are interpreted as a specific
and definite concept of which the normative contents have been developed through
the long-term practices of states.
14
As examined above, a state other than flag state cannot interdict the activities of
ships engaged in the transport of WMD and its related material under the general
international law of the sea, considering the considerable protection of passage and
navigation of ships both in territorial seas and on the high seas. After 9/11, however,
the necessity to create a specific framework for the prevention of proliferation activities of terrorists became more apparent, and the Proliferation Security Initiative (PSI)
is a pilot plan to achieve this purpose.
6.3 PSI as a Pilot Plan for the Criminalisation
of the Proliferation of WMD
6.3.1 Basic Structure of PSI
The M/V So San Incident in 2002 was the direct impetus for the creation of the PSI.
When it was approached by a Spanish warship, the M/V So San was not flying a
flag and displayed no indication of its state of registry or home port. However, it
had a painted North Korean flag on its funnel and had Korean characters for So San.
Suspicions of its nationality, the Spanish warship approached the ship and concluded
that the failure to fly a flag constituted reasonable grounds for suspecting that the
ship was without a nationality (Article 110, para. 1 (d)). Subsequently, Spanish
authorities chose to exercise the right of visit of a warship to board a ship on the
high seas. The boarding team discovered a cache of 15 Scud surface-to-surface
missiles under sacks of cement, while the So San’s cargo list only included a cement
shipment. Nevertheless, it was concluded that no provision in UNCLOS and other
14 A. Kanehara, “Interests of Navigation and Enforcement Action (Koko Rieki to Shikko Sochi)”,
in Study on the Cases of International Disputes on Maritime Safety (Kaijo Hoan Kokusai Hunso
Jirei No Kenkyu), Vol. 2, (2001), p. 4 (in Japanese).
H. Banzai
above. Although a warship can attempt to board a ship that is suspected of being
engaged in the transport of WMD and its related material, the right of visit of the
warship cannot be justified because the proliferation of WMD is not included in the
elements of Article 110, paragraph 1, unless the ship has the same nationality as the
warship.
In addition, Article 110, paragraph 3, is noteworthy. This section includes provisions for the compensation of certain losses caused by interruptions to fishing activities, the delay of navigation of a commercial vessel according to the conditions of a
transport contract, and changes in the price of oil that a tanker is carrying. This means
that the ‘interests’ of navigation are not always the same as the ‘right’ of navigation
as the loss of interests may be beyond the scope of the protection of the right of navigation. These losses are related to the actual interests based on the real activities of
ships. Therefore, legally protected interests of navigation are interpreted as a specific
and definite concept of which the normative contents have been developed through
the long-term practices of states.
14
As examined above, a state other than flag state cannot interdict the activities of
ships engaged in the transport of WMD and its related material under the general
international law of the sea, considering the considerable protection of passage and
navigation of ships both in territorial seas and on the high seas. After 9/11, however,
the necessity to create a specific framework for the prevention of proliferation activities of terrorists became more apparent, and the Proliferation Security Initiative (PSI)
is a pilot plan to achieve this purpose.
6.3 PSI as a Pilot Plan for the Criminalisation
of the Proliferation of WMD
6.3.1 Basic Structure of PSI
The M/V So San Incident in 2002 was the direct impetus for the creation of the PSI.
When it was approached by a Spanish warship, the M/V So San was not flying a
flag and displayed no indication of its state of registry or home port. However, it
had a painted North Korean flag on its funnel and had Korean characters for So San.
Suspicions of its nationality, the Spanish warship approached the ship and concluded
that the failure to fly a flag constituted reasonable grounds for suspecting that the
ship was without a nationality (Article 110, para. 1 (d)). Subsequently, Spanish
authorities chose to exercise the right of visit of a warship to board a ship on the
high seas. The boarding team discovered a cache of 15 Scud surface-to-surface
missiles under sacks of cement, while the So San’s cargo list only included a cement
shipment. Nevertheless, it was concluded that no provision in UNCLOS and other
14 A. Kanehara, “Interests of Navigation and Enforcement Action (Koko Rieki to Shikko Sochi)”,
in Study on the Cases of International Disputes on Maritime Safety (Kaijo Hoan Kokusai Hunso
Jirei No Kenkyu), Vol. 2, (2001), p. 4 (in Japanese).