Threats of terrorism and threats to international legal structures: a law of the sea perspective

The events of 11 September 2001 have brought a myriad of security concerns to international attention. Those events have already brought pressure to bear on the international rules concerning the use of force, international humanitarian law, and human rights law. The effect of these attacks has also initiated change in another traditional area of international law, notably the law of the sea. It is the purpose of this paper to outline what challenges are being posed by maritime security concerns to the traditional construct of the law of the sea, and to argue that not all security-driven challenges to legal regimes are detrimental to the rule of law. There are three particular avenues that states have pursued in order to reduce the likelihood of a terrorist attack against international shipping, or otherwise to hinder terrorist activity: (1) the unilateral initiative of Australia in instituting an 1,000 mile Maritime Identification System (AMIS); (2) the Proliferation Security Initiative (PSI), an informal arrangement instigated by the United States; and, (3) the adoption of a new multilateral treaty, the 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. In exploring these efforts, it is possible to discern how these regimes either violate existing international law or are stretching the usual interpretations of legal rules (particularly in relation to the AMIS and the PSI). The difficulty that states have faced in each endeavour to improve their maritime security is that the traditional construct of the law of the sea emphasises the freedom of navigation and the exclusive authority of a state over vessels flying its flag. It is argued here that a small paradigm shift is necessary to enhance maritime security, and is viable without disrupting or nullifying the existing legal order.