Counter proliferation activities and freedom of navigation

The threat of the proliferation by sea of weapons of mass destruction (WMD) and related precursor technologies (WMD materiel), especially to terrorist groups, is one which has attracted significant attention. The issue became particularly topical following the So San interdiction of 2002 and the launch of the Proliferation Security Initiative in 2003. Though the PSI has facilitated inter-governmental co-operation, the true extent of its achievements is at best unclear. Attempts to change the positive law dealing with maritime interdiction of WMD materiel have been notably limited in scope and, perhaps, of questionable practical value. While some feared the erosion of freedom of navigation in the name of counter-proliferation, such developments have not come to pass. If anything, developments have reinforced the primacy of freedom of navigation and the exclusive jurisdiction of the flag State on the high seas as fundamental tenets of the law of the sea. A further question, however, is why WMD proliferation has absorbed such attention when trafficking in small arms by sea is likely far more destabilising. The paper reflects upon the difficulties of containing the proliferation of both WMD and conventional weapons by sea.