6 Maritime Counter-Proliferation of Weapons …
103
that the innocence of the passage is determined in accordance with the externally
perceivable ‘manner’ of the passage of the ship. On this point, Professor Guilfoyle
states:
the assumption is that it is the external acts of a vessel engaged in innocent passage, not its
internal economy, which may prejudice a coastal state’s security. It is hard to see that a latent
threat in the vessel’s hold, destined elsewhere, has any ‘external’ manifestation capable of
affecting the character of passage. 23
According to the position of the UNCLOS, boarding and other measures in the
territorial seas are not permissible because of suspicions about the transport of WMD
and its related material, which is not included in the 12 acts of Article 19, and because
this has no ‘apparently direct nexus between the transit and “prejudice” of the coastal
state’ from an external manner of passage.
24
In addition, the hampering of innocent passage against a ship of a particular
nationality of a proliferation concern might be contrary to Article 24, paragraph 1
(b) that prohibits discriminating in form or against ships of any state or against ships
carrying cargoes to, from, or on behalf of any state. According to Professor Sakamoto,
the criteria of ‘innocence’ and the criteria of ‘maintenance of international peace and
security’, which constitutes the grounds of activities of the PSI are different.
25 The
risk of the threat to international peace and security is not legitimate grounds for
hampering the legal interest of the freedom of navigation of ships, represented in the
form of innocent passage, and this opinion is generally accepted in Japan.
26
6.3.3 Freedom of Navigation and the PSI
The original forms of the right of visit on the high seas are measures in the time of
war, for example, the verification of nationality of a hostile state previous to the arrest
of the ship by the belligerent state and investigation of prohibited cargoes by the ship
of a neutral state.
27 However, it is not a right for the suppression of crimes. Due to
such a background, in the time of peace, a warship cannot board a foreign ship to
exercise the right of visit only in so far as there is reasonable ground for suspecting a
specific crime. Furthermore, the boarding must be conducted in a specific way that is
permitted under international law.
28 For the current right of visit in the time of peace
that the PSI is supposed to be implemented, it is justified only if there is reasonable
ground for suspecting (a) piracy, (b) slave trading, (c) unauthorised broadcasting,
23 Guilfoyle, supra note 4, p. 242.
24 Ibid., p. 241.
25 S. Sakamoto, ‘PSI (Proliferation Security Initiative) and International Law (PSI (Kakusan Boshi
Koso) To Kokusaiho)’ in Jurist, Vol. 1279 (2004), p. 55 (in Japanese).
26 See also, Tanaka, supra note 9, p. 366.
27 J. Shinobu, Theory of Maritime International Law (Kaijo Kokusaiho Ron) (1957), p. 249 (in
Japanese).
28 S. Yamamoto, Law of the Sea (Kaiyoho) (1995), p. 227 (in Japanese).
103
that the innocence of the passage is determined in accordance with the externally
perceivable ‘manner’ of the passage of the ship. On this point, Professor Guilfoyle
states:
the assumption is that it is the external acts of a vessel engaged in innocent passage, not its
internal economy, which may prejudice a coastal state’s security. It is hard to see that a latent
threat in the vessel’s hold, destined elsewhere, has any ‘external’ manifestation capable of
affecting the character of passage. 23
According to the position of the UNCLOS, boarding and other measures in the
territorial seas are not permissible because of suspicions about the transport of WMD
and its related material, which is not included in the 12 acts of Article 19, and because
this has no ‘apparently direct nexus between the transit and “prejudice” of the coastal
state’ from an external manner of passage.
24
In addition, the hampering of innocent passage against a ship of a particular
nationality of a proliferation concern might be contrary to Article 24, paragraph 1
(b) that prohibits discriminating in form or against ships of any state or against ships
carrying cargoes to, from, or on behalf of any state. According to Professor Sakamoto,
the criteria of ‘innocence’ and the criteria of ‘maintenance of international peace and
security’, which constitutes the grounds of activities of the PSI are different.
25 The
risk of the threat to international peace and security is not legitimate grounds for
hampering the legal interest of the freedom of navigation of ships, represented in the
form of innocent passage, and this opinion is generally accepted in Japan.
26
6.3.3 Freedom of Navigation and the PSI
The original forms of the right of visit on the high seas are measures in the time of
war, for example, the verification of nationality of a hostile state previous to the arrest
of the ship by the belligerent state and investigation of prohibited cargoes by the ship
of a neutral state.
27 However, it is not a right for the suppression of crimes. Due to
such a background, in the time of peace, a warship cannot board a foreign ship to
exercise the right of visit only in so far as there is reasonable ground for suspecting a
specific crime. Furthermore, the boarding must be conducted in a specific way that is
permitted under international law.
28 For the current right of visit in the time of peace
that the PSI is supposed to be implemented, it is justified only if there is reasonable
ground for suspecting (a) piracy, (b) slave trading, (c) unauthorised broadcasting,
23 Guilfoyle, supra note 4, p. 242.
24 Ibid., p. 241.
25 S. Sakamoto, ‘PSI (Proliferation Security Initiative) and International Law (PSI (Kakusan Boshi
Koso) To Kokusaiho)’ in Jurist, Vol. 1279 (2004), p. 55 (in Japanese).
26 See also, Tanaka, supra note 9, p. 366.
27 J. Shinobu, Theory of Maritime International Law (Kaijo Kokusaiho Ron) (1957), p. 249 (in
Japanese).
28 S. Yamamoto, Law of the Sea (Kaiyoho) (1995), p. 227 (in Japanese).