The proliferation security initiative: Towards relegation of navigational freedoms in UNCLOS? An Indian perspective

Abstract

Terrorism is a major challenge to maritime trade. Among the many measures introduced in the post-2001 period to address terrorism at sea, the Proliferation Security Initiative (PSI) has acquired a place of prominence, especially as the 2005 Protocol to the Convention on Suppression of Unlawful Activities against the Safety of Maritime Navigation has not yet entered into force. Even though the PSI is supposedly only a political initiative of America supported by a coalition of willing countries, the implications of the PSI for the existing law of the sea regime are significant. This article attempts to examine the compatibility of the PSI with the United Nations Convention on the Law of the Sea. It is submitted that when a few States act unilaterally, as in the case of the PSI, they give rise to new State practice which weakens and relegates existing international legal norms and institutions mainly relating to the freedom of navigation, right of innocent passage, exclusive rights of flag States and ship-boarding provisions enshrined in the law of the sea, though the degree of such relegation is debatable.