BASIC NOTES
12 December 2003
The Proliferation Security Initiative:
Dead in the water or steaming ahead?
Prospects for the 16-17 December 2003 PSI meeting
in Washington
By Andreas Persbo, L.LM.
Introduction
The eleven original participants of the Proliferation Security
Initiative (PSI) have been trying to gather support for their new
approach to weapons of mass destruction (WMD) proliferation. On
9-10 October 2003 participants of the PSI met at Lancaster House in
London. The London meeting was the fourth meeting of the PSI. The
group has previously met in Madrid (12 June 2003); Brisbane (9-10
July 2003); and Paris (3-4 September 2003). The United States will
host the fifth meeting of the Proliferation Security Initiative
(PSI) Operational Experts in Washington on 16-17 December 2003.
This meeting will bring together military and law enforcement
personnel from the original eleven participating countries, as well
as Norway, Denmark, Singapore, and Canada.[1] The next plenary meeting of the PSI is going to be
held in January 2004.
The PSI participants have released a joint statement on interdiction
principles.[2] Claiming that the
United States needs, "the option of interdicting shipments to ensure
[that WMD] technology does not fall into the wrong hands".[3]
John R. Bolton, US Under-Secretary for Arms Control and International
Security, has stated that, "the PSI is legitimate and will ... be
extremely efficient in its efforts against weapons of mass destruction".[4]
The response from the international community has been mixed.
Canada, Denmark, Norway and Singapore have joined the initiative,
bringing the total number of participating states up to 15, while
the media have been reporting that as many as fifty states support
it. However, some states have openly raised their concerns.
For example, in the view of the Chinese government, "... the legality
of some of the PSI measures have some negative aspects that could
result in bad consequences and have raised a lot of concerns. PSI
member states should earnestly consider this ...".[5] On 3 December 2003, China released a White Paper
on its non-proliferation policy and measures. It states that, "...
the international non-proliferation mechanism must be continually
improved and export controls of individual countries must be updated
and strengthened, and on the other hand, proliferation issues must
be settled through dialogue and international cooperation".[6]
Stressing the need to consider the development of the initiative
within a multinational framework, Mr. Jianchao, spokesperson for
the Chinese government, previously argued, "... China has all along
maintained that the resolution of non-proliferation issues should
be done within the framework of international law and based on political
and diplomatic methods to resolve proliferation concerns ... Any
non-proliferation efforts should be beneficial to regional and international
peace, security and stability".[7]
Mr Bolton has described the PSI as, "more dynamic, creative, and
robust"[8] than, by implication,
existing arms-control and non-proliferation regimes. He has also
maintained that the interdiction efforts would be, "grounded in
existing domestic and international authorities". It appears that
the initiative parties have not, however, fully exchanged information
on what they believe international authorities permit. A draft boarding
agreement has been circulated among the initiative participants,
but has not been formerly accepted since there still are unsolved
questions pertaining to its conformity to international law. Mr.
Bolton has said that the "... national legal authorities of each
participant will allow us to act together in a flexible manner,
ensuring actions are taken by participants with the most robust
authorities in any given case. By coordinating our efforts with
other countries, we draw upon an enhanced set of authorities for
interdiction".[9]
Thus, each participating country will conduct interdictions
according to its national authorisation for the time being. For
now, the interdiction framework will not be consensually agreed,
but rather a 'coordinated', loose set of agreements. This would
make the PSI appear multilateral, when it, in essence, is
unilateral.
Lessons learned and future outlooks
The objective of the initiative is to, "stop the flow of [WMD items]
to and from states and non-state actors of proliferation concern".[10]
The participants already have their own view of which states are
the targets of the initiative. Mr Bolton has held that it, "...was
never contemplated as a blockade of any place. We are obviously
worried about some places more than others as proliferants or would-be
proliferants. In fact in Brisbane, at the meeting there, the 11
PSI participants said that North Korea and Iran were two states
of particular concern".[11]
Mr Bolton stated that, "legal experts will analyze their authorities
against real world scenarios and examine any gaps in authorities
that can be filled either through national legislation or policy
or international action" at the December 2003 Operational Meeting
of the PSI.[12] When it comes to
the participant's territorial waters, Mr Bolton said , "... we can
find a variety of ways to interdict illegal shipments when the vessels
carrying them come to port, given that sovereign power is at its
greatest in national waters".[13]
The sovereignty of a state can be said to increase as a foreign ship draws
closer to its coast. The costal state has limited criminal jurisdiction
over ships passing through its waters. By virtue of article 27 of
the United Nations Convention on the Law of the Sea (UNCLOS),[14]
the coastal state may conduct an investigation in connection with
a crime committed on board the ship during its passage if the consequences
of the crime extend to the coastal state; if the crime is of a kind
to disturb the peace of the country or the good order of the territorial
sea; or if such measures are necessary for the suppression of illicit
traffic in narcotic drugs or psychotropic substances.
For example, in 1999 India seized a shipment of North Korean missile
components en route to Pakistan. The ship was not interdicted but
seized when it had docked at an Indian port on the West coast.[15]
The Ku Wol San had began offloading sugar and when Indian
port officials boarded the ship on 25 June 1999, they found that
it was also carrying missile production blueprints, drawings and
instruction manuals, in addition to a sizeable shipment of missile
components and production materials.[16]
On 17 September the captain and chief officer were allowed to return
to the ship after an Indian magistrate said that no charges would
be pressed. No reason was given for the decision not to prosecute.[17]
The ship was later released on a sovereign guarantee.[18]
No state, except North Korea, raised objections to the way the Indian
authorities handled the incident.
On 23 June 2003 Greek forces interdicted the Baltic Sky
in its territorial waters.[19] About
680 tonnes of explosives and 8,000 detonators were discovered on
board. The ship was steaming towards Sudan and it later turned out
that the recipient was a company with a post office box address.
The cargo ship had been sailing under a flag of convenience from
Comoros, an African country.[20] Later, Mr. Essam Bakry Al-Khalifa, director of the recipient
company, insisted that the explosives were for routine projects
such as road construction, cement and oil production, and telecommunications.[21]
The captain and crew were put in remand by a Greek court pending
full investigation. This sparked a fierce exchange of views between
Sudan and Greece, but other than that, no state raised objections
to the way the Greek authorities handled the incident.
International law provides that if a ship has entered port, it is within the
internal waters of the coastal state and thus, provided that the
ship doesn't enjoy state immunity, subject to the coastal state's
criminal and customs laws. Thereafter, the state can make arrests
or conduct investigations in accordance with its own criminal or
customs legislation. However, according to widely accepted practice,
the exercise of the power of coercion is not generally applied to
foreign vessels in internal waters except with regard to acts, committed
on vessels, likely to disturb public order.[22]
That same principle applies if the ship has left the coastal states
internal waters and is steaming for the high seas.
Generally, PSI participants may find that the UNCLOS restricts
the coastal states options to enforce its laws on the high seas.
Mr Bolton has said that: "It is not the case that all of the interdictions
will take place in international waters or international airspace".[23]
But he has nevertheless maintained that states, "... may, under
well-accepted principles of customary international usage, be boarded
by any navy if they do not fly colors or show proper identification".[24]
On 9 December 2002 the Sosan, a Cambodian registered ship, was
intercepted in the Arabian Gulf by a combined Spanish and American
naval force - it was not flying its flag. UNCLOS provides that any
vessel sailing on the high seas is subject to the exclusive jurisdiction
of the flag state.[25] But the commander of a warship can decide to board if there,
inter alia, is reasonable ground for suspecting that the ship is
engaged in piracy or is without nationality.[26] Accordingly, in the case of the Sosan, there existed
objective reasons for investigation and boarding since it was flying
no flag proving its nationality.
Seizing of cargoes
Mr Bolton was vague on whether or not a boarding party may seize contraband
it found, and said: "The question of what is permissible for seizure
and what is not must be determined on a case-by-case basis".[27]
In the case of the Sosan, the Spanish and American navies
had to let the ship go after its identity had been established.
A warship may send a boat under the command of an officer to the
suspected ship to check its documents. If the suspicions remain
after the documents have been checked, the warship may conduct further
examinations on board the ship. These examinations 'must be carried
out with all possible consideration' and if the suspicions prove
to be unfounded, the ship boarded is entitled to redress. In the
Sosan case, US grounds for confiscation were weak, which was confirmed
by the White House on 11 December 2002, when Mr. Ari Fleischer stated
that:
There is no provision under international law prohibiting Yemen from
accepting delivery of missiles from North Korea. While there is
authority to stop and search, in this instance there is no clear
authority to seize the shipment of Scud missiles from North Korea
to Yemen. And therefore, the merchant vessel is being released.[29]
Now, however, Mr Bolton has stated that: "Properly planned and
executed, the interception of critical technologies can prevent
hostile states and terrorists from acquiring these dangerous capabilities.
At a minimum, interdiction can lengthen the time that proliferators
will need to acquire new weapons capabilities, increase their cost,
and demonstrate our resolve to combat proliferation"[30]
(emphasis added). What he is saying, apparently, is that US naval
power may be used to harass legitimate shipping by boarding the
vessels, even if the cargo can't be confiscated. The Australian
Foreign Secretary, Mr. Alexander Downer, has said that even though
the "initiative sends a clear message that the world will not tolerate
the illicit trade in these dangerous capabilities"[31] a boarding party would have to act within the constraints
of international law. He foresaw that the greatest use of the PSI
would be the sharing of naval intelligence.[32]
Recommendations
The movement of goods and personnel on the oceans is largely unregulated and
free. Commercial freighters are capable of moving bulky and heavy
equipment, such as missiles, as well as large quantities of explosives.
It is also possible to hide smaller items of WMD supplies, such
as nuclear materials, within a larger cargo. Therefore, proliferants
are likely to use the seas to transport their goods.[33]
However, the oceans are also an important lifeline of international
trade and commerce, and any venture to restrict the free flow of
goods should therefore be carefully implemented. Even though states
do enjoy a high level of sovereignty over their territorial waters,
they should consider that ships do enjoy the right of innocent passage
through it. The PSI is by no means dead in the water, but in order
to make it steam ahead, participants should at their forthcoming
Washington Operational Meeting:
- Consider harmonization of their national regulations in
respect to interdiction in their internal and territorial
waters;
- Consider what limitations the freedom of navigation on the
high seas place on the initiative;
- Emphasise the development of a consensually agreed
interdiction framework, preferably in the form of a legally binding
and publicly deposited document;
- Recommend to the Portugal plenary meeting scheduled in
January 2004, that such an agreed interdiction framework should be
in harmony with current international legal authorities, rather
then being based on a reinterpretation of customary international
law.
[1] Daily Press
Briefing, US Department of State, 3 December, 2003.
[2] 'Proliferation
Security Initiative (PSI): Statement of Interdiction
Principles', 4 September 2003.
[3] '"Legitimacy" in
International Affairs: The American Perspective in Theory and
Operation', Remarks to the Federalist Society, Washington, DC,
13 November, 2003.
[4]
Ibid.
[5] '
China voices concern over WMD non-proliferation plans
legality': in HiPakistan, 9 December 2003.
[6] '
White paper on China's non-proliferation policy and measures':
chapter 1, paragraph 2 in fine.
[7] '
China voices concern over WMD non-proliferation plans
legality': in HiPakistan, 9 December 2003.
[8] See
note 4 supra
[9] 'Nuclear Weapons and Rogue
States: Challenge and Response': Under Secretary Bolton's
remarks to the Conference of the Institute for Foreign Policy
Analysis, 2 December 2003.
[10]'Proliferation
Security Initiative (PSI): Statement of Interdiction
Principles', 4 September 2003.
[11] 'The
New Proliferation Security Initiative: an interview with John
Bolton': Arms Control Today, December 2003.
[12] 'Nuclear Weapons and Rogue
States: Challenge and Response': Under Secretary Bolton's
remarks to the Conference of the Institute for Foreign Policy
Analysis, 2 December 2003.
[13]See
note 4 supra
[14] U.N.
Convention on the Law of the Sea, 1833 UNTS 3, 21 ILM 1261.
[15] 'India
and proliferation security': Raja Mohan, The Hindu, 6
October 2003.
[16] CDISS Coverage, 23 July
1999.
[17]CDISS Coverage, 29
September 1999.
[18] '
India asks North Korea to pay for ship carrying missile parts',
New Kerala, 7 December 2003.
[19] 'Nato
'terror' tipoff on explosives ship sailing to Sudan', The
Guardian, 24 June 2003.
[20]< /a>
'Greece
traces route of seized ship', CNN 24 June 2003.
[21]''Black ship'
down', Al-Ahram Weekly On-line, Issue no 646, 10-16 July
2003.
[22] 'The
Distinction Between the Régime of the Territorial Sea and
the Régime of Internal Waters', Institute de droit
international (1957).
[23] See
note 4 supra.
[24]
Ibid.
[25] UNCLOS
Article 92.
[26] UNCLOS
Article 101.
[27] See
note 4 supra.
[28] UNCLOS
Article 101.
[29] White
House Press Briefing on 11 December 2002.
[30] 'Nuclear Weapons and Rogue
States: Challenge and Response': Under Secretary Bolton's
remarks to the Conference of the Institute for Foreign Policy
Analysis, 2 December 2003.
[31] 'The myth
of "little" Australia', address by Mr. Alexander Downer to the
National Press Club on 26 November 2003.
[32] '
Legal doubts over ship interceptions', Newscom, Australia.
[33] See
'
Al Qaeda's 'Navy' - How Much of a Threat?', Center for Defense
Information, 20 August 2003.
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