BASIC NOTES
OCCASIONAL PAPERS ON
INTERNATIONAL SECURITY POLICY
18 November 2004
The Proliferation Security Initiative:
Towards a New Anti-Proliferation Consensus?
By Fabrice Pothier*
Key Points
- The PSI is an American-led 17-country 'coalition of
convenience' seeking to strengthen non-proliferation cooperation
and to develop legal instruments to control weapons traffic on
land, in the air and at sea.
- Each of the 17 participating states has agreed to a politically
binding 'Statement of Interdiction Principles'; 60 additional
countries are reported by the US State Department to have shown
support for the initiative and its principles.
- With all the G-8 countries on board, the PSI is gaining
momentum, with China seemingly next earmarked for
participation.
- With the successful enlargement of the initiative, it becomes
increasingly imperative for European countries and institutions to
raise the issue of the governance of the PSI.
- A new UN Security Council resolution extending jurisdiction of
states beyond territorial sea, appears to be the most comprehensive
and feasible option for closing legal loopholes. Against US
reluctance to engage on this option, European countries, especially
the two European permanent members of the Security Council,
together with Russia, could pull in this direction.
- The lack of plan to define and codify within the PSI a
threshold of probable cause or a burden of proof for suspicions of
weapons trafficking is another area of concern. A more assertive
European group could turn this situation into an opportunity to
engage with the United States and the international community on
the development of a new framework that re-defines the idea of
'just war' or 'just intervention'.
- The effectiveness of the PSI in increasing the risk and costs
of weapons trafficking has still to be demonstrated.
Introduction
Beyond differences in style, the US Presidential contest will
certainly be remembered for the strong consensus between US leaders
on the need for new, effective counter proliferation measures. The
Proliferation Security Initiative is one of the post 11-September
measures that has contributed to shift the security paradigm, and
which was supported by both Presidential candidates. In this
context, European governments are faced more than ever with the
challenge of developing a more comprehensive and pro-active
response to new counter-proliferation measures.
Following the failed interception of a North Korean shipment of
Scud missiles to Yemen, US President Bush announced the
Proliferation Security Initiative (PSI) on May 31, 2003 in Krakow,
Poland. The PSI is an American-led 'coalition of convenience'
seeking to strengthen non-proliferation cooperation and to develop
legal instruments to control weapons traffic on land, in the air
and at sea. Beyond its operational purpose, the PSI is yet another
US Administration effort to shift traditional anti-proliferation
cooperation to more disaggregated grounds. However innovative, one
must ask whether this initiative provides an effective and
legitimate collective response to the re-defined threat of weapons
proliferation? This note looks at the broader strategic
implications of the PSI, particularly how it provides European
countries with the opportunity to play a more active role in the
definition of a new international security consensus.
Other BASIC analyses on the PSI include:
An attempt to re-define the global anti-proliferation
consensus
From the 11 initial countries - Australia, France, Germany,
Italy, Japan, the Netherlands, Poland, Portugal, Spain, the United
Kingdom and the United States - the PSI became, in December 2003, a
16-country coalition with the addition of Singapore, Denmark,
Norway, Canada and Turkey. Recently, Russia overcame its initial
reservations and joined the initiative on the occasion of its first
anniversary.[1] Each of the 17
participating states has agreed to a politically binding 'Statement
of Interdiction Principles'. [2] 60
additional countries are reported by the US State Department to
have shown support for the initiative and its principles, but their
names have never been disclosed. In this time of soul-searching
between both sides of the Atlantic, it is interesting to note that
the PSI has certainly provided a pragmatic opportunity to mend the
Iraq war crisis, both between European countries and with the
United States.
With all the G-8 countries on board, the PSI is gaining
momentum. China seems to be next on Washington's list of
participants. Despite Beijing's strong criticisms towards the
initiative, Undersecretary John Bolton recently suggested that
China is more open to cooperation in weapons interdiction
activities than it will publicly acknowledge. [3]
The PSI is firmly grounded in the new terrorism-weapons
proliferation security orthodoxy that emerged in the United States
in the aftermath of the 11 September 2001 attacks. In its 2002
National Strategy to Combat Weapons of Mass Destruction, the US
Administration gave 'pre-emptive interdiction' pre-eminence over
more traditional non-proliferation efforts. As explained by the
leading promoter of the PSI himself, US Undersecretary of State for
Arms Control John Bolton, the initiative seeks to be 'more dynamic,
creative and robust' than, supposedly, traditional
anti-proliferation frameworks.[4]
This view, and in fact the very origin of the PSI, is not far from
the belief held by some in Washington that, when it comes to new
security threats, the United States does not need the collective
legitimacy of the United Nations. On the other hand, the agreed
principles suggest that the PSI is no more than a new enforcement
mechanism to supplement existing non-proliferation regimes
(Proliferation Security Initiative 2003: para 1). The reality,
described by some as à la carte or selective
multilateralism, lies somewhere in-between: on the one hand, it
provides a flexible answer to the US view on the lack of
effectiveness of the traditional arms control system, on the other,
it addresses European states' commitment to multilateral
approaches.[5] In this light, the PSI
can be described as bridging American and European views on
international security.
The PSI is 'an activity, not an organisation' or as 'an
intergovernmental initiative with no secretariat' in the words of
the last report of the House of Commons Foreign Affairs Committee.
Some would say that this is the blueprint of true
'counter-proliferation' action, which is up-to-the-minute,
practical and efficient. Others would say that this
characterization raises serious questions regarding the governance
of the PSI. For instance, how can the actions undertaken under the
umbrella of the PSI, particularly the actions directly affecting
the international law of the sea, be scrutinised by external
players such as intergovernmental organisations, national
parliaments and civil society? With the successful enlargement of
the initiative, it becomes increasingly imperative for European
countries and institutions to raise the issue of the governance of
the PSI.
The issue of jurisdictions
By relying on the 'inventive use of national laws', the PSI
applies the same principle of flexibility to law as it does to
intergovernmental cooperation. John Bolton insists that the PSI's
'interdiction efforts are grounded in existing domestic and
international authorities' (i.e. this does not necessarily mean
consistent with said authorities), and therefore do not require to
be spelled out in a new international framework or in a new UN
resolution.[6] If multiple legal
responses have been developed by the US Administration, the
question remains on the exceptions of freedom of navigation on the
high-seas. The lawfulness of interdiction strategies 'becomes more
complex and less certain the further a ship is away from the
coast'.[7] Under the UN Convention on
the Law of the Sea countries are not forbidden to carry
weapons of mass destruction and/or their related materials at sea
(although nuclear powered vessels or vessels carrying radioactive
materials have to carry proper documentation while exercising
innocent passage). Unless the state concerned permits the
interception of a ship on the high-seas or the grounding of an
aircraft in international airspace (i.e. in accordance with the
recent bilateral agreements between the United States and flag of
convenience states like Panama, Liberia and the Marshall Islands),
any interdiction would potentially amount to an act of
belligerence. But what if the flag state of the intercepted cargoes
is not bound by any specific arrangement?
In the case of the lack of clarity on the exceptions of
flag-state jurisdiction, the PSI conflicts with international law.
Thus far the US Administration has shown no eagerness to resolve
the potential conflict although different avenues exist, including
a new UN Security Council resolution extending jurisdiction of
states beyond territorial sea, which appears to be the most
comprehensive and feasible option available to date. Against the US
reluctance to engage on this option, European countries, especially
the two European permanent members of the Security Council,
together with Russia, could pull in this direction. Such action
will have the advantage of providing the PSI with a clear and full
international mandate without compromising on its flexibility.
The extension of the doctrine of pre-emptive self-defence
The lack of plan to define and codify within the PSI a threshold
of probable cause or a burden of proof for suspicions of weapons
trafficking is another area of concern. By stretching the
definition and application of traditional pre-emptive self-defence
as outlined by Article 51 of the UN Charter, the US Administration
could well set, through the PSI, a dangerous precedent. Indeed,
based on this principle, any states could cut off shipments where
it served their purposes and without having to comply with any
clear international obligations. Despite its emphasis on the
doctrine of pre-emptive self-defence, the Bush administration has
not attempted to define the line separating legitimate prevention
from unlawful intervention. And although the PSI purports to be
based on national and international authorities, this US ambiguity
illustrates an important flaw of the initiative. Former Canadian
Foreign Minister Lloyd Axworthy recently pointed out about the PSI;
'Any time you set a precedent for unilateral intervention, you're
giving a licence to everyone else to do the same'. [8]
As Michael Byers has remarked, the ambiguity with regards to the
status of pre-emptive action within the PSI could be part of a
broader strategic effort by the US Administration to secure a de
facto agreement on the Bush doctrine of self-defence from other
coalition states. [9] However, a more
assertive European group could turn this situation into an
opportunity to engage with the United States and the international
community on the development of a new framework that re-defines the
idea of 'just war' or 'just intervention'.
Prospects and questions for the future
As the 'most oversold yet promising proliferation instrument of
recent years', the real effectiveness of the PSI in the long term
remains an open question. One successful result has been reported
so far: the interdiction in October 2003 of centrifuge parts bound
for Libya. On the other hand, it is worth noting that the PSI has
not played any apparent role in the dismantlement of the Kahn
illegal network of weapons technology transfer.
Has the PSI not been primarily created by the US Administration
to show the world, particularly weapon proliferators and sceptics,
that Washington is acting effectively to curb weapons
proliferation? [10] Beyond tough
words and spectacular commando-like exercises, is the PSI capable,
with its current shortcomings, of representing a sustainable effort
to control weapons proliferation worldwide? Would not the PSI
benefit if more states were allowed to participate politically or
practically? Participants have stressed that the PSI is not a
closed club, and any state may participate, provided that they can
contribute practically to the initiative.However, this practicality
threshold effectively bars developing countries from the
initiative, since their armed forces, coast guards and law
enforcement agencies often are weak or in a state of flux.
The PSI is frequently presented by the US Administration as an
innovative way to increase the risk and costs related to weapons
trafficking. This assertion still requires further evidence, as
other international enforcement strategies (in the area of drugs
trafficking, for example) have failed to cut availability or
increase the costs of drugs despite massive resources invested in
interdiction measures. [11]
It also raises questions of how different new anti-proliferation
instruments (such as the Container Security Initiative and the UN
Security Council resolution 1540 (2004) on WMD in the hands of
non-state actors, and the PSI) interact with each other. Again,
European countries could take this issue forward and look at the
coherence of new anti-proliferation instruments for maritime
security in particular and global security in general.
During a private seminar on the PSI recently held in London,
participants suggested that Europe and other coalition countries
review the range of exceptions in maritime jurisdictions that the
international community, shipping companies included, is willing to
accept to fight weapons proliferation. This idea touches the
broader debate on the price the international community is ready to
pay to address the issue of weapons proliferation. European
governments have traditionally put emphasis on multilateral means.
For them, the PSI would be an opportunity to engage more actively
with the United States on how renewed multilateralism can provide
an effective and legitimate framework to address global security
issues such as weapons proliferation.
Clearly, the PSI is well-intentioned in its purpose. It proposes
to fill major gaps in the international arms-control regime, which
have become salient in the post 9-11 climate. With the PSI, the
problem lies in the way the participants intend to fill those gaps.
Unilateral action has its merits, but however imperfect, the UN
remains the most legitimate framework, since it is based on the
essential principle that legitimate goals can only be attained
through legitimate means.
Under the condition that the PSI is given a clearer
international mandate and brought closer to the UN framework (i.e.
this is what Democrat presidential candidate John Kerry was
committed to do if he had been elected), the initiative represents
an important opportunity to bring the use of force and
international legitimacy under a new collective security framework.
Europe, alongside the United States, and within the UN, should use
the PSI as an opportunity to show responsibility on weapons
proliferation and global security, and on the most legitimate ways
to meet these twin challenges.
*Fabrice Pothier is a consultant in international and
European affairs. He is heading in his personal capacity a dialogue
programme on proliferation and the international rule of law. In
his professional capacity, Fabrice is working on international
outreach programmes, especially on the issue of global illicit
drugs policy. (fabricepothier@yahoo.co.uk)
Endnotes
[1]
Russia Joins Proliferation Security Initiative, Interfax, 31
May 2004, Moscow.
[2] The
White House, Office of the Press Secretary (2003) Proliferation
Security Initiative: Statement of Interdiction Principles, Fact
Sheet, Washington, DC.
[3] Boese,
Wade (2004) Russia Joins Proliferation Security Initiative,
Arms Control Today, July/August 2004, Arms Control Association;
China's State Council (2003) White paper on Non
Proliferation, 2003, China.
[4] Bolton,
John (2003) Legitimacy in International Affairs: The American
Perspective in Theory and Operation, Remarks to the Federalist
Society, Washington, DC.
[5] Byers,
Michael (2004) Policing the High Seas: The Proliferation
Security Initiative, United States, p18; Persbo, Andreas and
Davis, Ian (2004) Sailing into Uncharted Waters? The
Proliferation Security Initiative and the Law of the Sea, BASIC
Research Report 2004.2, London, p10
[6] Bolton,
John (2003), Op.Cit.
[7] Persbo,
Andreas and Davis, Ian (2004), Op Cit., p3.
[8] York,
Geoffrey (2004) Canada part of ship-intercept plan, Globe
and Mail, 16 February 2004, Canada.
[9] Byers,
Michael (2004), Op.Cit., p20.
[10] This
has been claimed by John Bolton. See Bolton, John (2004) An
all-out war on proliferation, The Financial Times, 06 September
2004, United Kingdom.
[11] See,
for example, The House of Commons, Home Affairs Committee (2002)
The Government's Drug Policy: Is It Working?, Third Report
of Session 2001-2002 London, p268.
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