Legal Limitations on Ensuring Australia's Maritime Security
2006; University of Melbourne; Volume: 7; Issue: 2 Linguagem: Inglês
ISSN
1444-8610
Autores Tópico(s)Law, logistics, and international trade
Resumo[In the wake of September 11, 2001, efforts to protect against future terrorist attacks have affected many areas of international law, including the law of the sea. Australia's interests in improving its maritime security, were articulated at the end of 2004 with the adoption of the Australian Maritime Identification System, which is intended to identify vessels within 1000 nautical miles of Australia's coast. One difficulty faced is that the steps that Australia may take to ensure better protection of maritime assets' and shipping against terrorist attack are limited under international law. States have endeavoured to improve the existing legal framework through the adoption of the International Ship and Port Facility, Security, Code, the Proliferation Security Initiative, bilateral treaties to allow ship-boarding, and a new protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. However, inadequacies remain because states are constantly constrained by the fundamental principles of the law of the sea, which emphasise the freedom of navigation and the exclusive authority of flag states. It is argued here that it is only when exclusive interests in flag state control and inclusive interests in the freedom of navigation are reconceived to account for a common interest in enhancing maritime security that weaknesses in the existing legal regime may be overcome.] CONTENTS I Introduction II The Balance of States' Interests in Different Maritime Zones A The Freedoms of the High Seas B Sovereignty over Territorial Seas C Sovereign Rights and Jurisdiction over the EEZ and the Continental Shelf III Post-September 11 Legal Developments to Enhance Maritime Security A The International Ship and Port Facility Security Code B The Proliferation Security Initiative C Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation D US Bilateral Ship-Boarding Agreements E Security Council Resolution 1540 IV The Need to Re-Balance States' Interests to Enhance Maritime Security V Conclusion I INTRODUCTION The events of September 11, 2001 brought myriad security concerns to international attention and provided the catalyst for significant changes in both national and international legal regimes. International rules concerning the use of force, international humanitarian law and human rights law have been adapted, or breached, in the face of perceived threats posed by al Qaeda and its associated organisations. Given the deadly use of aircraft on September 11, attention has subsequently been focused on the possibility of other modes of international transport being used for terrorist purposes. It is in this context that the maritime industry has been subjected to scrutiny, prompting modifications to existing legal regimes that deal with maritime security issues. Threats to maritime security may take various forms. Ships may be used for the transportation of terrorists, their supplies and their weapons. Of particular concern is the possibility of weapons of mass destruction being sent to terrorists or to states involved in the proliferation of these weapons. There is also the further risk of a large oil tanker, or a vessel shipping liquid natural gas, being hijacked and exploded in a narrow strait, or being rammed into a major port. Equally, small boats may be used to collide with an oil tanker or comparable vessel to similar effect, (1) In addition to the potential for loss of life and injury, the economic ramifications of a major terrorist attack against international shipping are significant, given that approximately 80 per cent of the world's goods are transported via the ocean. (2) Closure of a major port hub or vital shipping route could cause severe economic repercussions on a global scale. (4) The Australian Government is keenly aware of the dangers posed by maritime terrorism, including the proliferation of weapons of mass destruction among non-state actors. …
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