Issues and options

Abstract

The Proliferation Security Initiative (PSI), launched by US President Bush in May 2003, is intended to prevent traffic in elements of weapons of mass destruction (WMD).

Most WMD traffic moves by sea, and the focus of the PSI is on maritime interdictions and seizures. Although the PSI has had some significant successes, it has been criticised for lacking sufficient public accountability, stretching international law to the limits, undermining the UN system, potentially limited effectiveness and being politically divisive. Moreover, Asian countries that are key to PSI's successful implementation – notably China, India, Indonesia and South Korea – have deferred active involvement despite US pressure. Options for increasing PSI participation and enhancing its effectiveness include changes to existing international law; expanding existing conventions or developing a new one; obtaining an unambiguous empowering UN Security Council Resolution; obtaining NATO endorsement; arguing pre-emptive self-defence; and building a coalition of countries willing to perform such interdictions on each other's ships and aircraft on or over their territorial seas. However, each of these options would face obstacles and limitations that must be overcome for the PSI to be fully effective.

Notes

¹ These terms have been defined in the Draft Resolution introduced to the UN Security Council as follows:

‘Definitions for the purpose of this resolution only:

Means of delivery: missiles, rockets and other unmanned systems capable of delivering nuclear, chemical, or biological weapons, that are specially designed for such use.

Non state actor: individual or entity, not acting under the lawful authority of any State in conducting activities which come within the scope of this resolution.

Related materials: materials, equipment and technology covered by relevant multilateral treaties and arrangements, or included on national control lists, which could be used for the design, development, production or use of nuclear, chemical and biological weapons and their means of delivery.’

‘Draft Resolution on Non-Proliferation’, introduced to the UN Security Council by the United States of America and the United Kingdom of Great Britain and Northern Ireland, 24 March 2004. However it is not clear that the PSI uses the same definitions.

² Michael E. Beck, ‘The Promise and Limits of the PSI’, The Monitor, vol.10, no. 1, spring 2004, pp. 16-17.

³ Ye Ru'an and Zhao Qinghai, ‘The PSI: Chinese Thinking and Concern’, The Monitor, vol. 10, no. 1, spring 2004, p. 23.

⁴ ‘U.S. State Department Outlines Proliferation Security’, 29 December 2004, http://www.allamericanpatriots.com/.

⁵ Proliferation Security Initiative Frequently Asked Questions (FAQ), Fact Sheet, Bureau of Nonproliferation, US Department of State, 26 May 2005.

⁶ Barbara Demick, ‘CIA Lists North Korea as a Nuclear Country’, Honolulu Advertiser, 9 November 2003, p A8.

⁷ Dafna Linzer and Anthony Faiola, ‘U.S. Won't Confront Seoul on Nuclear Tests’, Washington Post, 25 November, 2004.

⁸ Wayde Boese, ‘The Proliferation Security Initiative: an Interview with John Bolton’, Arms Control Today, 3 December 2003.

⁹ Andrew C. Winner, ‘The Proliferation Security Initiative: The New Face of Interdiction’, The Washington Quarterly, vol. 28, no. 2, spring 2005, pp. 129-43.

¹⁰ Based on UNCLOS, Article 106, ‘Liability for seizure without adequate grounds’.

¹¹ Ibid.

¹² Ibid.

¹³ John R. Bolton, ‘Legitimacy in International Affairs: the American Perspective in Theory and Operation’, Remarks to the Federalist Society, Washington DC, 13 November 2003.

¹⁴ United Nations, Official Text of the United Nations Convention on the Law of the Sea, United Nations, New York, 1983, Article 19, http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm.

¹⁵ Natalino Ronzitti, ‘The Law of the Sea and the Use of Force Against Terrorist Activities’, in Natalino Ronzitti (ed.), Maritime Terrorism and International Law, (New York: Kluwer Law International, 1990), pp 1-15; Benjamin Friedman, ‘The Proliferation Security Initiative: The Legal Challenge’, The Bipartisan Security Group, 4 September 2003, http:gsinstitute.org/gsi/pubs/09_03_psi_brief.pdf

¹⁶ ‘Treaty on Non-proliferation of Nuclear Weapons’, Article I, http://www.fas.org/nuke/control/npt/text/npt2.htm

¹⁷ Jofi Joseph, ‘The Proliferation Security Initiative: Can Interdiction Stop Proliferation’, Arms Control Today, June 2004.

¹⁸ Thom Shanker, ‘U.S. Remains Leader in Global Arms Sales, Report Says’, New York Times, 25 September 2003, Section A, p 12.

¹⁹ David Krieger and Devon Chaffee, ‘Facing the Failures of the Nuclear Non-Proliferation Treaty Regime’, Institute for Energy and Environmental Research website, April 2003.

²⁰ Ron Hutcheson, ‘Libya Thaw May Yield Intelligence Booty’, Honolulu Advertiser, 21 December 2003.

²¹ Zahid Hussain, ‘Pakistan Opens Weapons Probe Nuclear-program Architect is Targeted and Evidence of Links to Iran and Libya’, Asian Wall Street Journal, 24 December 2003.

²² Douglas Frantz, ‘Israel Subs Can Launch Nuclear Missiles’, Los Angeles Times, 12 October 2003.

²³ ‘Japan Plans to Develop Missile Components with US’, Daily Times, 18 October 2004; ‘Japan Could Sell New Missiles: Ono’, The Japan Times, 15 July 2005.

²⁴ Mark Trevilyan, ‘Ship En Route to Iran Tests WMD Proliferation Deal’, Reuters, 26 April 2005.

²⁵ United Nations, UNCLOS, Article 108; Testimony by Rear Admiral John E. Crowley, Chief Counsel and Judge Advocate General, United States Coast Guard, Committee on Foreign Relations, 21 October 2003, Federal Document Clearing House Congressional Testimony.

²⁶ Natalino Ronzitti, ‘The Law of the Sea and the Use of Force Against Terrorist Activities’, p. 5.

²⁷ The Bush administration supports accession of the United States to the Convention. ‘Statement by Admiral James D. Watkins, Chairman, US Commissioner Ocean Policy, before the Committee on Senate Foreign Relations’, 14 October 2003, Washington DC, Federal Document Clearing House, Congressional Testimony.

²⁸ Devon Chafee, ‘Freedom or Force on the High Seas: Arms Interdiction and International Law’, 15 August 2003, Institute for Energy Environment Research, http://www.ieer.org/.

²⁹ Doug Wrenn, ‘L.O.S.T. Treaty Appropriately Named’, Magic City Morning Star (Millinocket, Maine) 27 January 2005; Frank Gaffney, ‘Freedom at Sea Too’, The Washington Times, 25 January 2005; Paul M. Weyrich, ‘Sovereignty Under Siege by International Sea Treaty’, 12 January 2005, http://www.gopusa.com/; Oliver North, ‘The Trojan Horse on America's Shores’, GOPUSA, 1 April 2005.

³⁰ Statement by the President, 10 March 1983, http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/USA_1983_Statement.pdf

³¹ Daniel H. Joyner, ‘The PSI and International Law’, The Monitor, vol. 10, no. 1, spring 2004, pp. 7-9.

³² Takao Hishinuma, ‘U.S. May Down Aircraft Thought to Carry WMD’, Daily Yomiuri, 19 December 2003.

³³ Natalino Ronzitti, ‘The Law of the Sea and the Use of Force Against Terrorist Activities’, p 12.

³⁴ Ibid.

³⁵ Raghu, ‘Where Have All the WMDs Gone?’, People's Democracy [weekly newspaper], vol. 28, no. 8, 22 February 2004; Stuart McMillan, ‘US Tackles ‘Rogue States’ Nuclear Weapons', New Zealand National Business Review, 20 February 2004.

³⁶ ‘Remarks by US Secretary of Defense Donald Rumsfeld at the International Institute for Strategic Studies Shangri-La Dialogue’ (Singapore), DOD News, 9 June 2004.

³⁷ Michael Byers, ‘Policing the High Sea; the Proliferation Security Initiative’, The American Journal of International Law, vol. 98, no. 526, July 2004, pp. 1-19.

³⁸ Andreas Persbo and Ian Davis, ‘Sailing into Uncharted Waters? The Proliferation Security Initiative and the Law of the Sea’, British American Security Information Council Research Report 2004.2, May 2004, http://www.basicint.org/pubs/research/04PSI.htm

³⁹ Michael Roston, ‘Polishing Up the Story on the PSI’, In the National Interest, 9 June 2004, http://www.inthenationalinterest.com/Articles/Vol3Issue23/Vol3Issue23Roston.html; Alexander Pojedinec, ‘Proliferation Security Initiative: Two Years and Counting’, 28 July 2005, http://www.cdi.org/pdfs/psi–2yrs.pdf

⁴⁰ Kari Huus, ‘Plan to Cut Off N. Korea Takes Shape’, 20 October 2003, http://www.msnbc.com/news/924919.asp?cp1=1.

⁴¹ ‘A Decade of Deception and Defiance’, 12 September 2002, http://www.rrojasdatabank.org/pfpc/decade.pdf

⁴² Security Council Resolutions, http://www.un.org/Docs/scres/2001/sc2001.htm

⁴³ Robert A. Hamilton, ‘International Maritime Expert: Law Supports War on Terror – German Law School Vice Dean Speaks to Coast Guard Class’, The Day, 9 November 2003, http://theday.com/eng/web/

⁴⁴ ‘US Measures for Combating Terror’, East African Standard (Nairobi), 14 July 2003.

⁴⁵ The Uniting for Peace Resolution is a method adopted by the UN Security Council in 1950 to ensure that stalemates between members of the Security Council would not prevent the UN from maintaining international peace and security. It provides that if, due to lack of unanimity on the Security Council, the UN cannot maintain peace because of a threat to the peace, breach of peace, or act of aggression, the UN General Assembly will consider the matter immediately. It has been used ten times including in 1956 against France and Britain's occupation of the Suez Canal and to pressure the Soviet Union to leave Hungary. Michael Ratner and Jules Lobel, ‘A UN Alternative to War’: “Uniting for Peace”', http://www.casi.org.uk/discuss/2003/msg01158.html

⁴⁶ Ibid.

⁴⁷ Beth Jinks, ‘US Worked with IMO on Maritime Security Measures’, The Business Times (Singapore), 11 February 2003.

⁴⁸ Mark Turner, ‘US Drafts UN Move to Reduce Flow of Weapons’, Financial Times, 18 December 2003.

⁴⁹ Colum Lynch, ‘U.S. Urges Curb on Arms Traffic’, Washington Post, 25 March 2004, p A20.

⁵⁰ Maggie Farley, ‘Resolution Seeks Ban on Spread of Weapons’, Los Angeles Times, 29 April 2004.

⁵¹ Ralph Cossa, ‘Introduction’ in ‘Countering the Spread of Weapons of Mass Destruction: the Role of the Proliferation Security Initiative’, Issues and Insights, vol. 4, no. 5, Pacific Forum CSIS, July 2004, pp. 1-6, http://www.csis.org/pacfor/.

⁵² ‘U.S. State Department Outlines Proliferation Security’, http://www.allamericanpatriots.com/, 29 December 2004.

⁵³ UN Security Council Resolution 1540, 28 April 2004, http://www.state.gov/t/np/rls/other/31990.htm; Center for Nonproliferation Studies, Monterey, 'United Nations Security Council Resolution 1540, May 2005, http://www.nti.org/f_wmd411/f2n.html

⁵⁴ Evelyn Leopold, Reuters, 25 March 2004.

⁵⁵ William Varner, ‘Pakistan Leads Opposition at UN to Terrorism Measure’, Bloomberg, 5 April 2004; Daily Times (Lahore), editorial, 1 May 2004.

⁵⁶ Jofi Joseph, ‘The Proliferation Security Initiative: Can Interdiction Stop Proliferation?’, Arms Control Today, June 2004.

⁵⁷ US Department of State, Fact Sheet, Bureau of Nonproliferation, Washington DC, 26 May 2005, http://www.state.gov/t/np/rls/fs/46839.htm

⁵⁸ Ibid.

⁵⁹ Wade Boese, ‘US Nonproliferation Resolution Advances at UN’, Arms Control Today, April 2005.

⁶⁰ ‘Security Council, Briefed by Chairman of Anti-Terrorism Committees; Call for Strengthened Cooperation, Enhanced Information Sharing’, http://i–newswire.com/, 26 April 2005.

⁶¹ ‘Pakistani Indicted in Nuclear Sales’, Honolulu Advertiser, 9 April 2005, p. A5; Josh Meyer, ‘Illegal Nuclear Deals Alleged’, www.latimes.com, 26 March 2005. It has now been revealed that the A.Q. Khan network supplied North Korea with centrifuges for enriching uranium as well as their designs. ‘Pakistani Expert Gave N. Korea Nuke Parts’, The Star (Penang, Malaysia), 26 August 2005, p. 36.

⁶² Foreign Policy Association, Proliferation Security Initiative: Principles and Practices, 7 September 2003, http://www.fpa.org/.

⁶³ ‘World Leaders Urged to Act Boldly’, Financial Express (New Delhi), 22 March 2005.

⁶⁴ ‘Listen to Annan’, International Herald Tribune, 26 September 2003, p. 8.

⁶⁵ John R. Bolton, ‘Remarks at Proliferation Security Meeting’, Paris, France, http://www.state.gov/t/us/rm/23801.htm

⁶⁶ Bill Gertz, ‘Rumsfeld Pushes “new sense of urgency”‘, Washington Times, 24 October 2003.

⁶⁷ John R. Bolton, ‘Remarks at Proliferation Security Meeting’.

⁶⁸ ‘Rice: U.S. Has Not Lost Patience With Six-Party Talks’, http://english.chosun.com/, 27 April 2005.

⁶⁹ ‘N Korea May Face Nuclear Dragnet’, The Australian, 13 May 2005; David Sanger, ‘White House May Go to U.N. Over North Korean Shipments’, New York Times, 25 April 2005.

⁷⁰ ‘US Mulls New Strategies Against North Korea’, http://channelnewsasia.com/, 23 March 2005.

⁷¹ Benjamin Friedman, ‘The Proliferation Security Initiative: The Legal Challenge’.

⁷² Nunn-Lugar Cooperative Threat Reduction Act of 2005 (Introduced in the Senate), S 313 IS, 109^th Congress, 1^st Session, 8 February 2005, Library of Congress, http://thomas.loc.gov/

⁷³ Ted L. McDorman, ‘From the Desk of the Editor-in-chief’, Ocean Development and International Law, vol. 35, 2004, pp. 379-384.

⁷⁴ John Duff, ‘A Note on the United States and the Law of the Sea: Looking Back and Moving Forward’, Ocean Development and International Law, vol. 35, 2004, pp. 195-219.

⁷⁵ United Nations Convention on the Law of the Sea, signed at Montego Bay, Jamaica, 10 December 1982, Part VII, Article 88, http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm

⁷⁶ ‘Different Perspectives on the Issues’, in The Regime of the Exclusive Economic Zone: Issues and Responses, A Report of the Shanghai Meeting, Ship and Ocean Foundation, Tokyo 2005, pp. 46-61.

⁷⁷ Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988, http://www.imo.org/Conventions/mainframe.asp?topic_id=259&doc_id=686

⁷⁸ J. Ashley Roach, ‘Initiatives to Enhance Maritime Security at Sea’, in Mark J. Valencia and Kazumine Akimoto (eds), ‘Military and Intelligence Gathering Activities in Exclusive Economic Zones: Consensus and Disagreement’, Marine Policy, Special Issue, vol. 28, no. 1, January 2004, pp. 41-66.

⁷⁹ International Chamber of Commerce (ICC), ‘Pirate Attacks Against Ships Increase’, 24 October 2002, http://www.iccwbo.org/; J. Ashley Roach, ‘Initiatives to Enhance Maritime Security at Sea’, p. 3; Jay Batongbacal, ‘Trends in Anti-Piracy Cooperation’, paper presented to the Okazaki Institute, March 2001, p. 125; ‘Nuclear Brinkmanship Tests US Resolve’, Oxford Analytica, 16 December 2002.

⁸⁰ Michael Richardson, ‘It's Full Steam Ahead in Hunt for Terror Arms Shipments’, Straits Times, 26 October 2003.

⁸¹ ‘UK Outlines Plans to Counter WMD Trafficking’, Xinhua News Agency, 25 February 2004.

⁸² ‘Japan Eyes Changes to Convention to Allow WMD Searches at Sea’, Asia Pulse, 27 January 2005.

⁸³ Michael Evans, ‘US Plans to Seize Suspects at Will’, The Times, 11 July 2003; ‘SUA Review Continues as Legal Experts Tackle Security’, IMO News, 2002, no. 4, p. 16.

⁸⁴ ‘Report of the Legal Committee on the Work of its Eighty-Seventh Session’, International Maritime Organization, Legal Committee, 87^th Session, Agenda Item 17, 23 October 2003.

⁸⁵ ‘Legal Committee (LEG) 88^th Session’, http://www.imo.org/index.htm, 19-23 April 2004.

⁸⁶ Amendments to Suppression of Unlawful Acts (SUA) Treaties Set for Adoption in October 2005, IMO Legal Committee 89^th Session, 25-29 October 2004; ‘IMO to Review Draft Amendments of SUA Convention and Protocol’, Taiwan News Online, 27 June 2005, http://www.etaiwannews.com/

⁸⁷ Ibid.

⁸⁸ Andrew J. Grotto, ‘Lack of American Leadership Impeding Nonproliferation Efforts’, Center for American Progress, 19 August 2004, http://www.americanprogress.org/site/c.biJRJ8OVF/b.8473/.

⁸⁹ ‘US Planning to Sign up More Countries to Curtail Weapons Sale’, http://www.xinhuanet.com/english/, 11 September 2003.

⁹⁰ Benjamin Friedman, ‘The Proliferation Security Initiative: The Legal Challenge’.

⁹¹ ‘New Command; Continuing Tensions’, Oxford Analytica, 16 June 2003.

⁹² Carol Gioacomo, ‘U.S. Won't Back off North Korea’, Reuters, 22 October 2003.

⁹³ ‘Treaty on the Non-Proliferation of Nuclear Weapons’, Article 1, http://www.un.org/Depts/dda/WMD/treaty/.

⁹⁴ Howard LaFranchi, ‘Bush in Asia: All About Security’, The Christian Science Monitor, 20 October 2003.

⁹⁵ ‘US Concerned by Syria's WMD Capabilities’, Scoop, 17 September 2003; Bob Edwards, ‘Training Exercises by 11 Nations to Perform Mock Aerial Interceptions of Weapons of Mass Destruction’, US National Public Radio, 12 September 2003.

⁹⁶ Vanessa Gera, ‘Iran to let U.N. into Nuclear Facilities’, Honolulu Advertiser, 19 December 2003, p. A9.

⁹⁷ George John, ‘Iran Reaffirms Nuclear Program Pledges’, Honolulu Advertiser, 9 November 2003; Ali Akbar Dareini, ‘Iran Authorizes Signing of Pact Calling for Nuclear Inspecting’, Honolulu Advertiser, 11 December 2003, p. A10; Vanessa Gera, ‘Iran to Let U.N. into Nuclear Facilities’, Honolulu Advertiser, 19 December 2003, p A9.

⁹⁸ Douglas Frantz, ‘Israel Subs Can Launch Nuclear Missiles’, Los Angeles Times, 12 October 2003.

⁹⁹ ‘Japan Concerned about US Plan to Make ‘Small’ Nuclear Arms’, Kyodo News Service, 25 November 2003.

¹⁰⁰ Mohamed ElBaredi, ‘7 Steps for Preventing Nuclear Proliferation’, http://www.asahi.com/english/, 16 February 2005.

¹⁰¹ Dafna Linzer, ‘U.S. Reverses Position on Weapons Inspections’, Washington Post, 1 August 2004.

¹⁰² G. Parthasarathy, ‘Nukes in the New World Order’, The Pioneer (New Delhi), 30 June 2005.

¹⁰³ David E. Sanger, ‘Month of Talks Fails to Bolster Nuclear Treaty’, The New York Times, 28 May 2005.

¹⁰⁴ Stephen Zunes, ‘Missile Love in Pakistan’, http://www.fpif.org/index.htm, June 2005.

¹⁰⁵ ‘A Blow to the NPT’, editorial, The Japan Times, 1 June 2005.

¹⁰⁶ Anticipatory self-defence is an attack upon another state which actively threatens violence and has the capacity to carry out the threat but has not yet done so; preventive self-defence is an attack against another state when a threat is feared or suspected but there is no evidence that the threat is imminent. Daniel H. Joyner, ‘The PSI and International Law’.

¹⁰⁷ John Kerin, ‘Net Tightens on North Korea – Australia Part of ‘Fast Track’ Coalition to Intercept Suspect WMD Ships', The Australian, 11 July 2003.

¹⁰⁸ Benjamin Friedman, ‘The Proliferation Security Initiative: The Legal Challenge’.

¹⁰⁹ ‘The Dossiers’, http://dossiers.genfoods.net/bwarcrimes.html; The White House, ‘III. Strengthen Alliances to Defeat Global Terrorism and Work to Prevent Attacks Against Us and Our Friends’, 14 September 2001, http://www.whitehouse.gov/nsc/nss3.html

¹¹⁰ Gerald F. Seib, ‘A Bush Doctrine is Put in Jeopardy by Weapons Hunt’, Asian Wall Street Journal, 9 October 2003.

¹¹¹ ‘U.S. May Allow Nuke Strikes Over WMD’, The Japan Times, 2 May 2005.

¹¹² Dale Eisman, Maritime Leaders Named to Joint Chiefs of Staff', The Virginia Pilot, 23 April 2005, http://home.hamptonroads.com/stories/story.cfm?story=85463&ran=57470

¹¹³ Gerald F. Seib, ‘A Bush Doctrine is Put in Jeopardy by Weapons Hunt’; Robert A. Hamilton, ‘International Maritime Expert: Law Supports War on Terror’.

¹¹⁴ Ibid.

¹¹⁵ ‘Charter of the United Nations’, Chapter VII, Breaches of the Peace and Acts of Aggression, Article 51, http://www.un.org/aboutun/charter/.

¹¹⁶ ‘Report of the Secretary General's High-Level Panel on Threats, Challenges and Change’, 2 December 2004, http://www.un.org/secureworld/report.pdf

¹¹⁷ ‘Fight on WMDs Boasts Global Backing’, The Washington Times, 23 December 2005.

¹¹⁸ 'World Leaders Urged to “Act Boldly”, Financial Express (New Delhi), 22 March 2005.

¹¹⁹ Michael Byers, ‘Policing the High Sea; the Proliferation Security Initiative’.

¹²⁰ Robert Block, ‘U.S. to Require Advance Notice on Cargo Update’, Asian Wall Street Journal, 24 November 2003.

¹²¹ John Kerin, ‘War on Terror's Shipping Focus’, The Honolulu Advertiser, 17 July 2003.

¹²² Michael Richardson, ‘It's Full Steam Ahead in Hunt for Terror Arms Shipments’; ‘U.S. Eyes Pact to Allow More Vessel Inspections’, The Daily Yomiuri, 28 October 2003, p. 2.

Additional information

Notes on contributors

Mark J. Valencia

Mark J. Valencia is a maritime policy analyst with a special interest in Asia.