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Article Excerpt
I. INTRODUCTION: THE PROLIFERATION SECURITY
INITIATIVE AND ITS OBJECTIVES A. A New Form of Multilateralism II. THE GRAVEST DANGER: WEAPONS OF MASS DESTRUCTION A. Political Support from International Institutions B. National Security III. How DOES THE PSI WORK? A. Intelligence Sharing and Operational Cooperation. B. Interdiction IV. WHO SUPPORTS THE PSI AND WHAT ARE THEY DOING.?. A. Supporters and Participants B. Early Successes? V. THE LAW OF INTERDICTION A. Freedom of the Seas B. Exceptions to Freedom of the Seas C. Interdiction as Self-Defense D. Boarding Agreements E. Strengthening the PSI's Legitimacy VI. UNITED NATIONS AND PROLIFERATION A. Security Council Efforts B. Does UNSCR 1540 Fully Legitimate Forceable Counter-proliferation ? VII. CONCLUSIONS AND RECOMMENDATIONS A. Put the Cat Back in the Bag B. Embrace International Law C. Broaden the Base D. Open up the Discussion E. A Final Word VIII. APPENDIX: INTERDICTION PRINCIPLES FOR THE PROLIFERATION SECURITY INITIATIVE
Thus far the chief purpose of our military establishment has been to win wars. From now on its chief purpose must be to avert them.
Bernard Brodie The Absolute Weapon: Atomic Power and World Order 1946
Sixty years ago, the strategic analyst Bernard Brodie took serious stock of the military threats and missions in a world with atomic bombs. Brodie recognized that this new class of weapons would cause intolerable destruction, and therefore that the United States could no longer afford to wait for an enemy to strike first. For much of the half century that followed, the United States and its allies relied on deterrence and when necessary limited conflicts to avert strikes such as the attack on Pearl Harbor that had brought the United States reluctantly into the Second World War. More recently, the nature of threats that the United States and its allies face has changed; now, enemies who cannot be deterred are seeking to possess weapons of mass destruction. While the prospect of non-state messianic actors obtaining these weapons dramatically expands the range of catastrophic threats, the means the military establishment has to avert wars has not grown accordingly.
Because the international security system is premised on exceedingly strong notions of national sovereignty, the United States may not seize a shipload of nuclear weapons moving from North Korea to Iran for ultimate use by terrorists. Russia may not force the landing of an airplane carrying anthrax from the Sudan to Chechnya until that craft enters Russian airspace. In other words, terrorists, revolutionaries, and rogue states are virtually free to ship weapons of mass destruction (WMD) as they wish. Without some significant changes to the system, the use of WMD against civilians seems all but inevitable.
This Article addresses one significant undertaking that seeks to change the system by enabling concerned states to interdict international trade in weapons of mass destruction. As such, the Proliferation Security Initiative (PSI or the Initiative) not only addresses one of the most urgent threats to peace and security that the world has ever witnessed, but it does so in an innovative way that has the potential to change the basic paradigm of peace and security by legitimizing the proportional and discriminating use of force to prevent a great harm.
This Article proceeds in seven Parts. Part I introduces the Initiative and discusses some of the legal, political and strategic issues it raises. A more detailed legal analysis follows in Part VI but only after some analysis of the political and strategic issues that drive the Initiative. Part II discusses the threats that the proliferation of weapons of mass destruction pose and the ways that the Initiative seeks to address them. Precisely because the PSI is "an activity not an organization" its structure and activities have not been articulated with much detail. The PSI's founding document is a Statement of Interdiction Principles reproduced in the appendix to this Article. Part III presents those few operational details that are publicly available. Likewise, the PSI's amorphous structure leaves considerable ambiguity about what it means to participate in the Initiative. Part IV addresses what is entailed in joining the PSI. Part of the Initiative's brilliance lies in its flexibility, but this design element makes it difficult to identify who is participating and at what level. It also leaves open questions about whom the Initiative targets. To date, the Initiative has focused on operations to interdict the flow of weapons at sea, a prospect that raises significant legal concerns because a theoretical interdiction might contravene the strong tradition of freedom of the seas. As noted above, Part V examines the legal framework in which the PSI operates: the existing and potential legal arguments that would or would not permit interdiction shipments of WMDs. Part VI picks up the thread by examining the efforts to deal with these legal issues through the essentially political actions of the United Nations Security Council. Finally Part VII draws some conclusions and makes a few concrete recommendations about how to build support and improve the fit between the PSI and its critical mission.
I. INTRODUCTION: THE PROLIFERATION SECURITY INITIATIVE AND ITS OBJECTIVES
The Proliferation Security Initiative is a multilateral initiative intended to prevent the proliferation of Weapons of Mass Destruction (WMD) and the materials used to construct them. (1) "The goal of the PSI is to create a more dynamic, creative, and proactive approach to preventing proliferation transfers to or from nation states and non-state actors of proliferation concern." (2) To accomplish this objective, the PSI establishes links to facilitate information sharing between countries. (3) The Initiative organizes multinational exercises to train for the interdiction of these weapons on the high seas or the airspace above them. The PSI's activities are intended mostly to enable its supporters to identify cross-border trafficking in WMD and to halt it. It explicitly contemplates boarding ships and, if necessary, using armed forces to seize weapons and the materials used to make them. (4) Its Statement of Interdiction Principles also includes undertakings by its participants to board and search vessels reasonably suspected of transporting WMD, including their delivery systems, and to refrain from transporting WMD themselves. (5) Its signatories also undertake to consider providing consent to boarding and searching vessels carrying their flags. (6) Subsequent bilateral agreements have been signed to allow the United States to board ships bearing flags of convenience under certain circumstances. (7)
Since its inception, the Initiative's efforts have focused on halting the flow of WMD across the world's oceans. In the future, its activities may extend to land-based interdictions. Most of the participants in PSI exercises like these are the naval and air forces of the United States and the various regional powers that would presumably undertake any interdiction in the future.
President George W. Bush announced the Initiative in Krakow, Poland, on May 31, 2003. (8) A few months later, eleven states signed a Statement of Interdiction Principles, a document ambitious in scope but providing very few details. (9) Since that time, the PSI has gained widespread support from U.N. Secretary General Kofi Annan and more than seventy states, including those traditionally known as the "Great Powers," including Great Britain, France, Russia, Germany, Italy, Japan, Turkey, and Spain. (10) Unfortunately, some states have not endorsed it. This Article examines some of the reasons the Initiative has not garnered universal support and proposes ways to achieve it.
The Initiative is both bold and timely. It constitutes one of the most important positive recent developments in the area of international peace and security to date and may also add up to the most exciting change in the area of public international law. In particular, it may fundamentally alter the transnational legal framework for the use of force by states. As it gains acceptance, force may become a more ordinary tool for ensuring compliance with the dictates of international security. By blurring the lines between war and peace, the PSI permits the use of force to advance security objectives without triggering the rubric of war. And yet, despite the Initiative's novelty and importance, it has attracted remarkably little scholarly or policy-relevant attention. (11) Moreover, because the Initiative lacks a central office, an international secretariat, an operational handbook, rules of engagement, and congressional authorization, it remains somewhat shrouded in mystery.
While this novel Initiative is highly innovative in its conceptualization, responding to one of the most urgent sets of problems society faces, the PSI raises several significant legal and policy issues in its implementation. The fact that it raises issues should not be surprising. Significant changes to international norms have always faced obstacles; that is the nature of complex systems. Historical examples abound. For instance, consensus was slow to form around such momentous issues as the outlawing of piracy, the slave trade, and eventually, genocide. More recently, the international community has been hesitant to outlaw aviation piracy or other acts of terrorism. And now the international community is halting and unsure about how to proceed in the face of nuclear proliferation. The PSI is acting as a catalyst for the development of a new norm that allows the use of force to interdict the flow of WMD.
A definitive conclusion about the legal status of the Initiative is elusive for several reasons related to its lack of a discernable structure. Different states have presented diverging views of the relevant law that governs the Initiative's activities. (12) Also, because the PSI seeks to address proliferation events as they arise, no one knows yet what actions its members will take and, therefore, what legal arguments will be required to support them. Finally, the PSI contains the seed of a new kind of law--a universal ban on the proliferation of WMD (13)--and this law has yet to be fully articulated, let alone tested.
As the lead participant, the United States' legal position is critical and has been evolving since 2003. Then Undersecretary of State John R. Bolton defended the PSI's legality at the time based on the right to collective self-defense. (14) This justification proved to be overreaching. Other PSI core members failed to endorse it, and Secretary Bolton subsequently dropped it. (15) More recently, the U.S. State Department has vaguely claimed PSI activities will be consistent with domestic and international legal frameworks, many of which in turn implement existing nonproliferation structures. (16) While this claim is generally accurate, it deserves detailed analysis and explanation to justify it in the face of contrary claims and also to spell out some of the opportunities that widespread endorsement of the PSI opens. Going further, this Article will also argue that in order to implement the PSI, its supporters are altering international law in ways that may increase the scope and relevance of regulation of the international security regime.
To meet a global threat, the PSI is ambitious in its geographic scope. Traffic in WMD may originate almost anywhere and, in light of the intention of some non-state actors to obtain them, (17) they may be bound for almost anywhere. Countries of origin could include North Korea, Iran, China, Syria, Pakistan, India, Israel, Vietnam, Sudan, Egypt, Yemen, Cuba, Russia, and almost any of the other former Soviet republics. From there, the weapons could be transshipped anywhere on earth before arriving at their ultimate destination or target. Therefore, the threat is global.
In the face of a global threat, who sets the strategy? The PSI declarations to date leave ambiguous its decision-making apparatus. Who will decide when and how to act? What role does the United States play? Is the decision-making process entirely ad hoc? The Statement of Interdiction Principles does not establish any detailed policies relating to the Initiative's purpose, decision-making apparatus, targets, or means. (18) The Statement of Principles does elaborate somewhat on the concept:
"States or non-state actors of proliferation concern" generally refers to those countries or entities that the PSI participants involved establish should be subject to interdiction activities because they are engaged in proliferation through: (1) efforts to develop or acquire chemical, biological, or nuclear weapons and associated delivery systems; or (2) transfers (either selling, receiving, or facilitating) of WMD, their delivery systems, or related materials. (19)
This formal statement begs more questions than it answers. Is there a list of states or non-state actors of concern? What is required in order to establish that they should be subject to interdiction activities? Are radioactive materials that could be used to create radiological devices (i.e. dirty bombs) subject to interdiction? Why are some states permitted to acquire WMD and transfer them? Which states?
Informal statements do provide additional insights into the Initiative's objectives. Its architect, John Bolton, has stated that the Initiative will not target states that possess WMD "legitimately." (20) This statement presupposes a legal conclusion about legitimacy that can only be vaguely drawn in the absence of established rules. Presumably it means that at least China, Russia, Great Britain, and France will not be subjected to the Initiative's interdiction efforts so long as they do not export these weapons to rogue states or non-state actors. (21) As long-time declared nuclear powers under the terms of the Treaty on the Non-proliferation of Nuclear Weapons (NPT) and each wielding a U.N. Security Council veto, they appear to be insulated from the reach of the PSI.
Other informal statements about the PSI's objectives are less vague but are self-contradicting. A British government expert states that the PSI does
not target any country or countries in particular. Rather, the goal is to prevent the development or acquisition of WMD by all non-state actors (such as terrorists) and states of concern, together with those who supply such programmes through trafficking in sensitive materials, equipment and technology--whether states, individuals, private companies or other entities. (22)
The fact that there are some "states of concern" appears to belie the claim that the PSI does not target any countries in particular. The ambiguity and tension inherent in that statement are indicative of the fluidity of the Initiative. It does not target any specific country while at the same time preventing proliferation to or from states of concern. It is this sort of ambiguity--and the apparent discretion it permits--that causes some commentators to question whether the PSI conforms to the rule of law. (23) Vague policy statements about states of concern, however, are not the same thing as acts of violence, and the PSI's legitimacy cannot be prejudged on the basis of these statements alone. Ultimately, the actions on the behalf of the PSI and the law that governs those actions will determine the Initiative's legitimacy. The outcomes will illuminate its wisdom.
Likewise, it remains unclear how the PSI's participants will act if faced with information indicating that a shipment of WMD originated in a state that is neither a party to the NPT, a longstanding nuclear power (Israel), nor a powerful state with considerable international leverage such as India or Pakistan. (24) Given Pakistan's recent history and its apparent inability or unwillingness to halt the export of WMD, claims that it will get a free pass seem premature. (25) But as proliferation expert David Albright notes, "This is the age-old problem with Pakistan and the U.S. Other priorities always trump the United States from coming down hard on Pakistan's nuclear proliferation. And it goes back 15 to 20 years." (26) Likewise, proliferation expert Gary Milhollin notes "it seems bizarre that we are letting the Pakistanis get away with nuclear smuggling because we think they'll help fight terrorism." (27) However, the best evidence publicly available suggests that India, Pakistan, and Israel will not be targeted--at least for now. (28)
The case of Pakistan illustrates the PSI's potential for changing the use of force paradigm to achieve international peace and security. Clearly, from a counter-proliferation perspective, the PSI should not grant Pakistan a free ride. Other important considerations arise, however, because of Pakistan's role as a critical ally in the struggle against terrorism. (29) One of the PSI's greatest strengths is the flexibility it offers. The traditional international security order viewed the world as governed by fully sovereign states with a small number of states whose sovereignty is temporarily impaired--either because they are "failed" states, client states, or those subject to U.N. sanctions. Traditionally international law does not offer much support to those seeking to discriminate between the rights of different states based on an interpretation of their so-called legitimacy. Instead it treats the legitimacy and sovereignty of all states with equal dignity except in those few instances in which states violate obligations that are either self-imposed by custom or treaty, or imposed upon them by the U.N. Security Council. In contrast, the PSI implies a less rigid concept of sovereign autonomy in which a state no longer has complete freedom to engage in reckless activities that endanger another's security. The PSI must prevent weak states from trafficking in WMD without further undermining their capacity to govern themselves. The United States can neither afford to ignore Pakistan's proliferation nor to destabilize or alienate its government.
Eventually the PSI must develop enough support that it can halt proliferation from all countries, including powerful ones or those that have special influence as allies in the global struggle against terrorism. Granting free passes to oneself or one's friends runs contrary to the basic principles of the rule of law. It sets the grantor and the grantee above the law. The rule of law is premised upon the notion that no one is above it, and for the PSI to support a transnational order based on this principle, it should do everything feasible to abide by the rule of law itself. On the other hand, it may take years for supporters of the PSI to establish the legal capacity to target important countries that proliferate. In the meantime, an excess of solicitousness for the most robust interpretations of the rule of law should not be permitted to cripple the entire effort. This Article proposes that the best course is to embrace the objectives of the PSI and strive to strengthen it as an important counter-proliferation tool.
A. A New Form of Multilateralism
The Initiative offers a new model for multilateral cooperation that avoids cumbersome treaty apparatus. The postwar system of international peace and security is framed in great part by such treaties. From the beginning, the presidential administration of George W. Bush has been notoriously unfriendly to traditional multilateral conventions. Prior to September 11, 2001, the Bush Administration abandoned negotiations on START II, (30) decided not to ratify the Comprehensive Test Ban Treaty, (31) and soon thereafter withdrew the United States from the Anti-Ballistic Missile Treaty. (32) It stalled efforts to improve the Biological Weapons Convention regime. (33) It failed to encourage ratification of the U.N. Convention on the Law of the Sea despite strong support in Congress, the Department of State, and the Department of Defense. (34) The Bush Administration took the unprecedented step of "un-signing" the 1998 Rome Charter of the International Criminal Court. The Administration's antipathy to...
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