The UN Charter and subsequent legal developments in the United Nations have not taken into account the highly advanced technologies, in particular the latest electronic warfare (EW) capabilities which are becoming increasingly more intensive and intrusive¹⁵⁰. The crucial question is whether some of the EW-related activities conducted in or above the EEZ can be considered to be inconsistent with the UN Charter and thus the peaceful purposes clauses of the 1982 UNCLOS Convention. Particularly relevant in this context are active signals intelligence (SIGINT) activities conducted from aircraft and ships, some of which are deliberately provocative and intended to generate responses which can be monitored for purposes of military planning. Other SIGINT activities intercept naval radar and emitters, thus enabling the location, identification, and tracking of surface ships as well as the planning and preparation of electronic or missile attacks against them¹⁵¹. Other EW activities can include jamming and computer attacks. These activities appear to involve far greater interference with the communication and defense systems of the targeted coastal State than any traditional intelligence gathering activities conducted from outside national territory. It is likely these activities were not taken into account during the negotiations at UNCLOS III.

　

 Guidelines VI a, b, c should be considered as a whole. It recognizes the growing EW capabilities of States as well as incidents that have or can result there from. It suggests that a State's interference with the electronic systems of another is an unfriendly act and cautions both foreign States and coastal States to refrain from such activity. It also re-emphasizes the prohibitions in Article 109 of unauthorized broadcasting from the high seas and from the cross-reference in Article 58 (2), from the EEZ. Finally, it provides that these exhortations should be made more effective by concluding bi- or multilateral agreements on non-interference with electronic systems.

　

 This Guideline summarizes the jurisdiction over ships in an EEZ as provided by the 1982 UNCLOS. This is meant to be the overall governing regime regarding the Guidelines that follow in Guideline VII.

　

 This Guideline clears up an apparent contradiction between UNCLOS Articles 105 and 58(2). Article 105 provides that every State may seize a pirate ship or aircraft "on the high seas, or in any other place outside the jurisdiction of any State." But Article 58 (2) states that this Article (and other Articles) applies to the EEZ, which is under the jurisdiction of the coastal State. This Guideline states explicitly our interpretation of this dichotomy, i.e., that Article 109 should apply to the EEZ.

　

　

 This Guideline incorporates the Article 108 duty to co-operate 'in the suppression of illicit traffic in narcotic drugs or psychotropic substances' in the EEZ (per Article 58(2)) but adds to it 'terrorists', persons, arms and WMD-related cargoes. Guideline VIIc1 urges the flag state to board and search their own vessels if they are 'reasonably suspected' of transporting such cargoes. Guideline VIIc2 urges States to consent 'under appropriate circumstances' to the boarding and search for such cargoes on their flag vessels and the seizure of cargoes that 'may be mutually identified as such [illicit] by both States'. Thus Guideline VIIc recognizes the growing traffic in these items and encourages with proper safeguards the co-operation of the flag state in suppressing such traffic.

　

 This Guideline may be controversial. In earlier times this statement would have been considered self-evident and even unnecessary. However, there is an increasing possibility that such boarding and seizures may take place under the Proliferation Security Initiative.

　

 In a speech delivered in Poland May 31, 2003, US President George W. Bush outlined the "Proliferation Security Initiative whereby the United States is trying to mobilize "like-minded states" to prepare for and participate in naval intercept operations designed to inspect ships thought to be carrying nuclear materials to or from "rogue" states¹⁵², notably North Korea and perhaps also Iran. The 'core' countries actively supporting this US-initiative were Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain and the United Kingdom.

　

 Although the public statements have proclaimed that these endeavors would be undertaken in a manner that is consistent with international law, it is clear that the United States and its allies are seeking to expand international law to permit more active interception when warranted. President Bush's National Security Advisor Condoleezza Rice explained that:

 Australia's Foreign Minister Alexander Downer also has expressed support for changing the law permitting freedom of navigation on the high seas in order to stop North Korea's shipping of missiles, nuclear materials, and drugs to its allies or customers¹⁵⁴.

　

 The central concern is the question of intent, i.e. will PSI interdictions of vessels and aircraft comply with existing international law and UN processes, or will these be changed or bypassed to accomplish its purposes¹⁵⁵? Absent a UNSC resolution explicitly supporting interdiction, or, based on UNSCR 1540, clear evidence that WMD shipments are bound for 'terrorists', the legality of interdicting such shipments on the high seas without the consent of the flag state could violate and thereby undermine existing international law. The United States argues that such interdictions are pre-emptive self-defense. But the common interpretation of the concept of pre-emptive self-defense requires an imminent threat, such that the necessity of self-defense is instant and overwhelming leaving no choice of means or time for deliberation. And the fact remains that it is not illegal for non-signatories to the Nuclear Non-proliferation Treaty (NPT) or the Missile Technology Control Regime to ship nuclear materials or missiles on their own flagged ships to each other.

　

 Concerns with freedom of navigation surfaced when the United States introduced a resolution on WMD to the UNSC. The text UNSCR 1540 was agreed on only after the United States accepted China's demand to drop a provision authorizing the interdiction of vessels suspected of transporting WMD. The text which passed focuses only on non-state actors and tightens domestic safeguards. Similar concerns were mooted regarding US-proposed amendments to SUA to allow interdiction and boarding of a vessel suspected of carrying WMD if no response was received from the flag state within four hours. The concerns expressed included the fear that the amendments could undermine the principles of freedom of navigation, innocent passage and other established international law. Allowing legitimate commercial transport of WMD components would undermine the objective of the policy. But unilaterally interdicting legal shipments would undermine international law and the United Nations. This is the dilemma facing proponents of the PSI and the international community. This Guideline emphatically advises against such interdictions without flag state consent.

　

 This exhortation is just stating common courtesy and international comity. It does not suggest the arresting State request permission or even give prior notification to the coastal State, only that in the interest of building trust and confidence that it notify the coastal State of the action taken.