102
H. Banzai
in 2003. This demonstrates a wide acceptance of counter-proliferation in the United
States, whether the administration is composed of the Democrats or the Republicans. The first four elements of dissuasion, disarmament, diplomacy, and denial are
measures that extend the traditional idea of non-proliferation. Among them, the PSI
is considered as a measure of denial. However, we have to pay attention to the fact that
the range of counter-proliferation may be from legal measures of non-proliferation
to the extraterritorial exercise of enforcement jurisdiction with no justification of
international law or to the use of force without the authorisation of the UN Security
Council; the PSI is no exception. The initial objectives of the PSI were to (i) interdict
traders and smugglers of WMD materials, (ii) interdict the passage of suspicious
ships in the territorial seas and airs, and (iii) facilitate visits to suspicious ships on
the high seas. For the last objective, many harsh objections were posed from the
perspective of the principle of the flag state, and so the right of visit on the high
seas, which was the real purpose of the United States, cannot be exercised without
consent from the flag state.
19 Consequently, this has brought up questions about the
effectiveness of the PSI because it would be challenging to regulate the proliferation
activities of ships only in the territorial seas of the participant States, irrespective of
a large number of ships in the vast expansion of the ocean.
20
6.3.2 Innocent Passage and the PSI
The PSI can be implemented in the territorial seas of the participants, but its validity
is limited between them, and the measures in their territorial seas will have some
problems with the innocent passage of the ships of non-participant states.
21 In Article
17 of the UNCLOS, it states that ‘ships of all states……enjoy the right of innocent
passage through the territorial sea’. Additionally, the coastal state shall not hamper
the innocent passage of foreign ships through the territorial sea (Art. 24). Therefore,
participant States of the PSI cannot take measures to board the ship of a state of
proliferation concern, for example, for the reason of the transport of WMD and its
related material, unless the passage of the ship can be considered non-innocent.
The concept of innocence is defined with respect to the non-prejudicial nature of
the peace, good order, or security of the coastal state and 12 acts are enumerated as the
forms of passage with prejudicial nature in Article 19 of the UNCLOS. The purpose
of the enumeration of the forms of the passage of non-innocence is to restrict the
discretionary power of coastal states.
22 In other words, the UNCLOS takes a position
19 Ibid., pp. 13–14.
20 M. Asada, “Export Control Regime on Missiles (Misairu Kanren No Yushutsu Kanri Regime),”
M. Asada (ed.), Prevention of Proliferation of Weapons and Export Control: Regime and Practice
(Heiki No Kakusan Boshi To Yushutsu Kanri:Seido To Jissen) (2004), pp. 96–100 (in Japanese).
21 Klein, supra note 3, pp. 202–203.
22 H. Takabayashi, Study on the Regime of Territorial Sea – History of the Law of the Sea (Ryokai
Seido No Kenkyu – Kaiyoho No Rekishi) (1987), p. 344 (in Japanese).
H. Banzai
in 2003. This demonstrates a wide acceptance of counter-proliferation in the United
States, whether the administration is composed of the Democrats or the Republicans. The first four elements of dissuasion, disarmament, diplomacy, and denial are
measures that extend the traditional idea of non-proliferation. Among them, the PSI
is considered as a measure of denial. However, we have to pay attention to the fact that
the range of counter-proliferation may be from legal measures of non-proliferation
to the extraterritorial exercise of enforcement jurisdiction with no justification of
international law or to the use of force without the authorisation of the UN Security
Council; the PSI is no exception. The initial objectives of the PSI were to (i) interdict
traders and smugglers of WMD materials, (ii) interdict the passage of suspicious
ships in the territorial seas and airs, and (iii) facilitate visits to suspicious ships on
the high seas. For the last objective, many harsh objections were posed from the
perspective of the principle of the flag state, and so the right of visit on the high
seas, which was the real purpose of the United States, cannot be exercised without
consent from the flag state.
19 Consequently, this has brought up questions about the
effectiveness of the PSI because it would be challenging to regulate the proliferation
activities of ships only in the territorial seas of the participant States, irrespective of
a large number of ships in the vast expansion of the ocean.
20
6.3.2 Innocent Passage and the PSI
The PSI can be implemented in the territorial seas of the participants, but its validity
is limited between them, and the measures in their territorial seas will have some
problems with the innocent passage of the ships of non-participant states.
21 In Article
17 of the UNCLOS, it states that ‘ships of all states……enjoy the right of innocent
passage through the territorial sea’. Additionally, the coastal state shall not hamper
the innocent passage of foreign ships through the territorial sea (Art. 24). Therefore,
participant States of the PSI cannot take measures to board the ship of a state of
proliferation concern, for example, for the reason of the transport of WMD and its
related material, unless the passage of the ship can be considered non-innocent.
The concept of innocence is defined with respect to the non-prejudicial nature of
the peace, good order, or security of the coastal state and 12 acts are enumerated as the
forms of passage with prejudicial nature in Article 19 of the UNCLOS. The purpose
of the enumeration of the forms of the passage of non-innocence is to restrict the
discretionary power of coastal states.
22 In other words, the UNCLOS takes a position
19 Ibid., pp. 13–14.
20 M. Asada, “Export Control Regime on Missiles (Misairu Kanren No Yushutsu Kanri Regime),”
M. Asada (ed.), Prevention of Proliferation of Weapons and Export Control: Regime and Practice
(Heiki No Kakusan Boshi To Yushutsu Kanri:Seido To Jissen) (2004), pp. 96–100 (in Japanese).
21 Klein, supra note 3, pp. 202–203.
22 H. Takabayashi, Study on the Regime of Territorial Sea – History of the Law of the Sea (Ryokai
Seido No Kenkyu – Kaiyoho No Rekishi) (1987), p. 344 (in Japanese).