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The Proliferation Security Initiative: Can Interdiction Stop Proliferation?
Jofi Joseph
This month, the United States joins 13 other nations in celebrating the first anniversary of the launch of the Proliferation Security Initiative (PSI). PSI combines the aggressive use of existing national and international legal authorities with better intelligence sharing and multilateral coordination in an effort to interdict the transport of nuclear, chemical, and biological weapons, delivery mechanisms, and related components.
First elaborated upon in a speech by President George W. Bush in Krakow, Poland, on May 31, 2003, and followed only days later by an initial plenary session, PSI has quickly moved into an operational phase. Over the past year, the United States and its PSI partners can point to several successes, including the October 2003 interception of a shipment of components for uranium centrifuge tubes to Libya. Nonetheless, the initiative’s core member states may wish to consider a number of recommendations to render the initiative more effective in halting trade in weapons of mass destruction (WMD). PSI members also should recognize that a successful interdiction policy constitutes only one element of a comprehensive nonproliferation policy.
What is PSI?
At its essence, PSI is a multilateral intelligence-sharing project incorporating cooperative actions and coordinated training exercises to improve the odds of interdicting the transfer of weapons of mass destruction to and from “states and non-state actors of proliferation concern.”[1]
The use of interdictions to interrupt the WMD trade is not a new tool, but PSI seeks to utilize multilateral cooperation to improve the number and success of future interdictions. PSI is an informal grouping of a small group of core states (see chart); it maintains no organizational framework or treaty agreements and does not seek universality. These core states meet in regular plenary sessions, conduct joint training exercises, and have issued a Statement of Interdiction Principles outlining PSI’s general approach.
Following an aggressive outreach effort in 2003, PSI core members have proclaimed that more than 60 other nations support the initiative, although it is unclear what these declarations signify. PSI members have largely sought to work with existing domestic and international legal authorities in implementing interdictions but encourage the expansion of those powers through accepted channels. They have remained quiet on specific operations conducted under the PSI umbrella but have pointed to the October 2003 interception of a ship carrying uranium centrifuges to Libya as the initiative’s greatest success to date.[2]
Origins of PSI
How did PSI begin? The catalyst came in December 2002, when U.S. intelligence picked up the So San, an unflagged merchant ship that had departed a North Korean harbor and was steaming toward an unidentified destination in the Middle East. U.S. officials contacted the Spanish government to ask that its navy stop the ship in the Mediterranean Ocean and conduct an inspection to ensure no illicit cargo was on board. On December 9, following initial attempts by the So San to evade boarding, Spanish special forces rappelled onto the ship from helicopters and discovered 15 complete Scud B missiles, 15 warheads, and missile fuel oxidizer. Two days later, Yemen claimed ownership of the Scud missiles, declaring that it had purchased the missiles from North Korea for defensive purposes under a 1999 contract.[3]
According to U.S. government officials, the lack of international treaties governing the trade or possession of ballistic missiles4 prevented the United States from retaining the Scud missiles and warheads. Following telephone conversations between Vice President Dick Cheney and Yemeni President Ali Abdallah Saleh, in which Saleh reaffirmed a promise not to purchase additional missiles from North Korea, the So San was released and arrived in Yemen on December 14. (To be sure, skeptics contended that Yemen’s importance to the U.S. buildup of forces in preparation for the Iraq war, not international law, was the trump card in the U.S. decision to release the missiles.)
The Bush administration was chagrined over an embarrassing episode where its actions did not match its tough rhetoric on nonproliferation. The seizure and subsequent release of the So San preceded only by days the release of the administration’s National Strategy to Combat Weapons of Mass Destruction, in which the U.S. government promised an aggressive approach to halt WMD proliferation. As one senior official told The New York Times, Bush was “a very, very unhappy man” after the ship’s release.[5] Ironically, although the So San episode was critical to the formulation of PSI, the existence of PSI would have done nothing to change the final outcome. Because PSI is only designed to exploit existing legal authorities, not create new powers, were another So San episode to occur today, the United States would still be bound by international law to release the vessel. Still, the lesson of U.S. impotence in the face of clear proliferation behavior was not lost on the White House.
At the same time, another impetus came from increased U.S. intelligence that North Korea was seeking to accelerate its highly enriched uranium (HEU) program to supply fissile material for nuclear weapons. Such a program would enable the North Koreans to pursue an alternative to plutonium production, which had been frozen under the terms of a 1994 U.S.-North Korean agreement known as the Agreed Framework.
To construct a working HEU program, North Korea would need to purchase many individual components from foreign suppliers, requiring multiple shipments to North Korea via a variety of land, sea, and air routes. Understandably, therefore, active interdiction of these procurement shipments emerged as an attractive option to U.S. policymakers interested in blocking Pyongyang’s new program. The United States could not risk a formal blockade of North Korea because it would constitute a formal act of war and invite diplomatic condemnation from U.S. allies. So, PSI provided a potentially less risky, if indirect, alternative. U.S. officials have always declined to attribute North Korea as PSI’s pre-eminent target, but the Chairman’s Statement from the second PSI plenary meeting in July 2003 in Brisbane, Australia, highlighted “countries of proliferation concern and non-state actors with particular reference to North Korea and Iran.”[6]
Finally, PSI appeals to many of the administration’s instincts regarding arms control and nonproliferation policy. Administration officials have made clear their disdain for many international treaties and the proceedings of multilateral organizations. By contrast, PSI does not feature regular meetings, permanent staff, or formal procedures. It is largely a U.S. creation and its continued success will strongly depend upon active U.S. support. Should the United States decide in five years that PSI no longer serves its interests, it will likely wither away. In the eyes of many administration officials, that is exactly as matters should stand.
Philosophical Approach
PSI’s guiding precept can best be described, as one senior Department of Defense official recently asserted, along the lines of the “broken tail light” approach to stopping crime,[7] whereby police officers stop vehicles whose passengers are suspected of criminal activity on the basis of minor traffic infractions. Similarly, PSI, in part, uses an aggressive approach to the enforcement of national regulations and international law to try to stop any and all illicit shipments.[8] For example, in August 2003, Taiwanese authorities used a technical customs violation to board a North Korean freighter docked at port and seized 158 barrels of phosphorous pentasulfide, a potential precursor for chemical weapons production. Although it does not appear that this interdiction fell under the PSI aegis (Taiwan is not a core participant), its use of a minor legal violation as a rationale to inspect and seize an illicit shipment is illustrative of PSI’s broad approach.
The initiative’s core members are careful to emphasize that PSI is “an activity, not an organization.”[9] Accordingly, PSI members have not established an international organization or even an informal secretariat to help carry out its mandate. They have not adopted binding legal mandates or drafted a charter to define its scope and mandate. Instead, PSI’s core members have sufficed with the September 2003 “Statement of Interdiction Principles.”
PSI’s core members have chosen not to pursue an aggressive expansion of the initiative’s membership rolls. Earlier this year, three new states—Canada, Norway, and Singapore—joined the original group.[10] Other nations will be asked to participate in PSI activities on a case-by-case basis, depending on whether they can make a specific contribution to a particular interdiction effort. The decision to maintain a small number of core participants seems to reflect the U.S. desire to keep PSI flexible and free of the constraints on decision-making concomitant with a larger and more diverse group of members. Finally, members appear to agree that fewer plenary meetings will be required in the future now that the necessary legwork has been completed to make the initiative “operationally active.”[11]
PSI is better understood as a framework than a formal structure. On any given interdiction activity, only those PSI members who choose to involve themselves will do so.[12] PSI membership does not generate automatic commitments on the part of nations. For example, if the United States were to ask for France’s assistance in interdicting a suspected WMD shipment, France is free to decline that request. Thus, the structure of PSI is emblematic of the administration’s preference for “coalitions of the willing” in international activities.
One can liken PSI and its day-to-day execution to that of a deputized posse: the United States and a group of other like-minded states, using existing legal powers, have organized to hunt down illicit shipments of dangerous weapons. On any particular day, some members of that posse may choose not to ride out. Nor is the posse responsible for tracking all illicit shipments; rather it targets only those it views with particular concern as posing security threats. This flexibility in means and goals of enforcement carries some practical benefits, but it also raises various concerns.
Some of this flexibility is required. Only a handful of navies in the world maintain a presence outside their immediate regions, and only the United States maintains a global presence. So, if an operation were to take place in the South China Sea against a suspected North Korean freighter, it is unlikely France would participate because its warships do not regularly patrol the area. Other PSI members, such as Poland, are very limited in the number of naval and air assets they can draw upon. Finally, Japan, a PSI core member, faces domestic constitutional restrictions regarding its use of military assets outside its sovereign territory.
PSI core members have also remained vague in describing the types of shipments they are targeting, speaking only in general terms of nuclear, chemical, or biological weapons and delivery systems and related materials. They have not offered definitions for these terms, even declining to reference specifically the international conventions governing the possession of nuclear, chemical, and biological weapons and the spread of missile technology. Perhaps most vexing of all is the lack of delineation of “related materials.”
Are the PSI members referring to only those components that are unambiguously destined for a nuclear, chemical, or biological program; or do they encompass dual-use materials? If the latter, how do PSI members reconcile that approach with the fact that the nuclear Nonproliferation Treaty, the Chemical Weapons Convention, and the Biological Weapons Convention all expressly provide signatory states the right to possess and trade such dual-use materials?
Based upon the plenary statements and actions taken to date, PSI members clearly have no intention of fleshing out these definitions. Not doing so allows PSI members to maintain flexibility: the shipment of a dual-use component such as phosphorous pentasulfide, potentially applicable to a chemical weapons program but also carrying civilian uses, will be viewed differently depending upon its ultimate destination. It is likely unwise to ask PSI members to agree on a specific checklist of items they can and cannot interdict. Circumstances evolve, technologies change, and context always reigns supreme. This approach may be considered unfair, but it remains in compliance with international law. In fact, because PSI can only utilize existing legal authorities to conduct interdictions and because the transfer of nuclear, chemical, and biological weapons, missiles, and related components are not universally prohibited under international law, the particular objects of PSI-sanctioned interdiction operations matter less than the manner in which they are carried out. A Pakistani vessel carrying a uranium-based nuclear warhead to North Korea on the high seas cannot be interdicted, regardless of PSI’s existence. PSI members can, however, carry out a quick inspection against an Iranian-flagged vessel docked in a participating member’s port, even if the suspected equipment is harmless.
Other PSI critics have taken issue with its selective approach to the targets of enforcement, primarily going after “rogue states” such as North Korea and Iran. Is the initiative entitled to target only the states and nonstate actors on the “bad guy” list, as interpreted by PSI core members? Conversely, should it be an equal-opportunity enforcement operation, targeting questionable shipments by friendly states, even PSI members, diplomatic consequences be damned? In an interview last November, Undersecretary of State for Arms Control and International Security John Bolton responded to a question on whether PSI should also focus on Israel, India, and Pakistan:
“There are unquestionably states that are not within existing treaty regimes that possess weapons of mass destruction legitimately. We’re not trying to have a policy that attempts to cover each and every one of those circumstances. What we’re worried about are the rogue states and the terrorist groups that pose the most immediate threat.”[13]
Bolton’s statement would seem to rule out an aggressive interdiction effort to prevent the transfer of illicit goods to India or Israel, two nations not considered threatening to the United States and the other core PSI members, yet possessing weapons of mass destruction outside existing international treaty mandates. In recent years, however, several Indian companies have been charged with the export of sensitive dual-use technologies and items to states of proliferation concern, including Iraq, making Indian vessels and aircraft a potential target for PSI activities. Should New Delhi initiate illicit trade with an Iran or a Syria, PSI members cannot afford to ignore such actions. There is also the question of ongoing Pakistani and Indian efforts to procure more advanced ballistic missiles, on which to mount their nuclear weapons—should PSI target trading activities to halt this arms race?
Although an approach that targets some nations to the exclusion of others is inherently discriminatory, PSI should not be condemned for taking such a selective approach when its members have never sought universal application. Because it is a voluntary activity and is not governed by treaty mandates, so long as PSI’s member states operate within the bounds of existing domestic and international law, they are free to engage in selective enforcement in line with their preferences and resources. Moreover, no reasonable observer would dispute that shipments to and from North Korea and Iran should command the greatest attention of PSI members. The real question critics should ask is not whether other states should merit the same attention on grounds of nondiscrimination, but whether they pose the same level of threat to core members and thus deserve equivalent attention.
Which brings us to Pakistan. Bolton’s quoted comments may be excused on grounds of diplomatic sensitivities—he made his remarks at a time when the United States was quietly presenting to Islamabad the voluminous evidence of A.Q. Khan’s trading network—but they raise questions nonetheless. The Khan network’s trading activities represented just as much a threat to U.S. and international security as any activities of Iran and North Korea, if only on the grounds that the Khan network was the primary supplier of those two nations’ clandestine uranium-enrichment programs. Following Khan’s public confession and Pakistani President Gen. Pervez Musharraf’s pardon, Pakistan has pledged to turn a new leaf in its attitudes and actions toward illicit proliferation. Nonetheless, Pakistan’s track record offers little promise in this arena, and PSI members are well advised to keep a close eye on shipments to and from Pakistan. The PSI intercept of the Khan network shipment to Libya offers an encouraging precedent.
Legal Questions
The chief criticism levied so far against PSI is that it skirts international law. By establishing a framework for the forcible boarding, inspection, and potential seizure of suspected cargo in ships and aircraft, the initiative supposedly runs afoul of long-established international law on the inviolability of international waters and airspace and the right of ships to “innocent passage” within other nation’s territorial waters. Some critics assert the selective focus of PSI on “shipments to and from states and non-state actors of proliferation concern”[14] is inherently discriminatory and subjects certain states to an unfair scrutiny of its trade and commerce. Others worry that its focus on North Korea could be interpreted as a blockade and hence cited by Pyongyang as an act of war.
What all of these criticisms share is a certain paranoia based more on how PSI may evolve rather than a realistic interpretation of the present-day PSI. What is noteworthy about PSI to date is the careful diligence with which all of its plenary statements enunciate the commitment to act “consistent with national legal authorities and relevant international law and frameworks, including the UN Security Council.”[15] Critics have focused on Bolton’s early statements in which he claimed that PSI members endorsed the initiation of interdiction operations in international waters and in international airspace based in part on the general principle of self-defense. Officials of other PSI members did not endorse those comments, and Bolton has not subsequently repeated those remarks
| Proliferation Security Initiative Participants First announced May 31, 2003 by President George W. Bush, the voluntary Proliferation Security Initiative (PSI) currently numbers 14 core participants. These 14 states have pledged to improve their individual and collective capabilities to interdict shipments of weapons of mass destruction at sea, on land, and in the air to and from countries of proliferation concern. An asterisk denotes the 11 original PSI participants. • Australia* Boarding Agreements |
Certainly, PSI’s operating principles do raise a number of legal issues. One issue already discussed by core members at plenary sessions involves the question of liability for unlawful boardings or seizures. Do ships or their respective flag-states have the legal right to appropriate compensation for interdictions undertaken on the basis of faulty intelligence or incorrect application of legal authorities? Another issue involves the traditional right of ships to “innocent passage” in the territorial waters of coastal states. The right to innocent passage is considered customary law and is enumerated specifically under Article 19 of the Law of the Sea Convention.[16] Under “innocent passage,” ships may pass through territorial waters so long as their passage does not jeopardize “the peace, good order, or security of the coastal state.”[17] To date, PSI members appear to have focused on inspections of naval vessels when they are docked at national ports. Should innocent passage emerge as a legal obstacle to desired PSI operations, one potential remedy involves amending Article 19 to the Law of the Sea Convention, but such a move would be difficult so long as the United States does not ratify that treaty.[18]
Although PSI core members have agreed to work within existing legal authorities, they are actively seeking to expand those authorities to cast a wider net over illicit WMD shipments.[19] One promising venue lies in draft amendments to the International Maritime Organization’s Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA). The SUA Convention, which entered into force in 1992, addresses physical threats to ships and requires states-parties to take appropriate punitive measures against offenders. In October 2003, the United States introduced a series of proposals to amend the SUA Convention’s Article 3 to expand the series of offenses against naval vessels covered under the convention. In particular, such offenses would include a specific reference to the maritime transport of weapons of mass destruction for the purpose of terrorist attacks, as well as broader language encompassing the maritime transport of WMD or related components, including dual-use items. It is unlikely that the latter provisions will be approved, but even the former provisions alone could expand the right of PSI members to stop ships on the high seas.
The most direct means for expanding international law lies in a UN Security Council resolution. The administration has rejected that course for now, but it has achieved the passage of another resolution requiring states to strengthen domestic controls over WMD manufacture and possession and to prohibit the transfer of weapons of mass destruction and means of delivery to terrorist and other nonstate groups.[20] Its language could be construed to authorize the interdiction of suspected WMD transfers to nonstate groups on the high seas and in international airspace.
Another provision specifically calls on states to cooperate where necessary to “detect, deter, prevent and combat” the illicit trafficking and brokering of weapons of mass destruction and their means of delivery. The United States apparently sought to include a specific reference to interdiction in this provision but was stymied by Chinese opposition. Nevertheless, the passage of this resolution provides a significant boost to PSI’s underlying rationale: the international community should undertake greater scrutiny of shipments of weapons of mass destruction and related components.
The Verdict So Far
If one were to judge an international initiative solely on the speed of its adoption and implementation, PSI would be deemed an overwhelming success. Five plenary sessions have been held, resulting in the issuance of a Statement of Interdiction Principles. By June 2004, 10 interdiction training exercises will have been scheduled,[21] improving working relationships among the navies, coastal authorities, customs officials, and law enforcement officials of PSI core members and the odds of success for future interdiction efforts. The Bush administration has been publicly cagey about the number of operations mounted under the initiative, but anonymous officials recently told The New York Times that the number was roughly a dozen.[22]
Nevertheless, it is very difficult for outside experts to render a rigorous assessment. PSI members have been tight-lipped on the operational successes and/or failures to date, releasing few details on grounds of operational security.[23] Sometimes lost in the fanfare surrounding the initiative is the fact that it was hardly the first instance of the interdiction of suspicious international shipments. Both ships and airplanes have been intercepted and inspected and had their cargos seized on countless occasions, owing from suspicions of illegal activity to carrying no identifiable flag or other marker indicating proper ownership and registration. For example, in June 1999, Indian forces seized in its territorial waters a North Korean ship carrying Nodong missile components and destined for Pakistan during the midst of the Kargil conflict. Therefore, a fair question to ask, but difficult to answer, is to what extent PSI has made additional interdictions possible. Would interdictions like the intercept of the Libya-bound freighter last fall have occurred without the organizing framework of PSI?
Although government officials in PSI core states have discussed some of their successes to date, no accompanying information has been provided on failures. Have there been cases where a PSI participant identified a suspicious naval vessel but was unable to convince the state where the vessel was docked to undertake inspections? To what extent, if any, have interdictions taken place in the air?
It is also instructive to consider how PSI’s effectiveness will vary based upon the types of shipments it is targeting. The success of the initiative is dependent upon the collection of good intelligence; only with knowledge of particular shipments can PSI members coordinate activities to interdict these shipments. Yet, it remains easier to detect the shipments of large items or large numbers of goods (i.e., missile frames and uranium centrifuges) than cargo such as fissile material or biological agents. One can argue that PSI will be more effective at halting the trade of the materials and equipment necessary to construct weapons of mass destruction than the actual weapons themselves. For example, should North Korea decide to begin exporting some of the weapons-grade plutonium it has reprocessed over the past year, it will be very difficult for PSI states to target such shipments, absent extraordinary intelligence information.
PSI can be evaluated more conclusively after five or 10 years, when outside scholars and experts can survey the broad currents of WMD proliferation and better determine whether transfers of components and materials between states or between states and terrorist groups have declined. The release of documents from military and law enforcement archives can shed light on what role its operations will have played in restraining international trade in WMD components and materials. For now, the picture remains incomplete.
Key Recommendations
The lack of a determinative judgment on PSI does not rule out suggestions for possible improvement. Three recommendations are in order.
1) Transform PSI from an ad hoc effort into a more structured mechanism.
Led by the United States, PSI core members have proclaimed the flexibility of the initiative as one of its greatest strengths. Yet, this approach carries some inherent weaknesses. PSI members have already indicated their plans to hold fewer plenary meetings in the coming year because the initiative has achieved an “operational” status. Although frequent organizational meetings can be cumbersome and time-consuming, they also keep members accountable and prevent members from drifting from original objectives. This is especially helpful when one of the members changes governments, as it cannot be certain that future governments will view the importance of PSI with the same urgency as their predecessors.
The existence of a permanent staff can provide some institutional memory. PSI does not require a large international organization like the Organization for the Prohibition of Chemical Weapons to support its activities. A more reasonable model lies with the Missile Technology Control Regime (MTCR), which consists of 33 nations committed to limiting the spread of missiles and unmanned aerial vehicles possessing WMD delivery capability. The French Ministry of Foreign Affairs carries out “point-of-contact” functions, including the distribution of working papers to all members and the hosting of monthly experts meetings. Every year, a different MTCR partner hosts the annual plenary session. This combination of a small, “informal” secretariat and regular meetings offers an appropriate model for PSI.
As the leading force behind the initiative, the United States also needs to institutionalize PSI activities better within its national security bureaucracy. Today, no specific formal organizational or budgetary authority exists to support PSI activities. No funding was requested in the president’s fiscal year 2005 budget request this February, as the Pentagon maintains that existing U.S. capabilities can support PSI activities.[24] The overwhelming majority of intellectual energy and organizational impetus for PSI appears to stem from one Department of State employee: Bolton. So, what happens to PSI when Bolton leaves his position?
Without budgetary funding or an organizational home, future administrations may be tempted to sacrifice PSI. Next year’s budget request should include a specific line item (with new funding) for its support and sustenance. An appropriate vehicle for this new funding is the Nonproliferation, Anti-terrorism, Demining and Related Programs (NADR) account, which already provides budgetary authority for the State Department to fund other nonproliferation initiatives. Assigning the PSI portfolio to specific deputy assistant secretaries of state and defense, each supported by at least one action officer with full-time duties for the initiative’s stewardship, is another important bureaucratic step. Otherwise, the international community may raise doubts over the genuine commitment of the United States to the initiative’s long-term future.
2) Use the recent U.S.-Liberia and U.S.-Panama boarding agreements as the model for similar agreements with other “flag of convenience” states, and seek to involve other PSI members by making such agreements multilateral.
In February, the United States and Liberia signed a mutual boarding agreement whereby each nation is authorized to inspect naval vessels registered under the other country’s flag upon suspicion that the vessel is transporting weapons of mass destruction, delivery systems, or related items. The United States and Panama signed a similar agreement in May. These agreements matter because Liberia and Panama are the leading “flag of convenience” states in the world. More than half of the world’s shipping, measured on the basis of gross tonnage, now is registered in six states: Liberia, Panama, the Bahamas, Malta, Cyprus, and the Marshall Islands.[25] Liberia and Panama alone are responsible for nearly one-third.[26] Those states, collectively known as flag of convenience (FOC) states, feature bare-bones registration procedures, inexpensive fees, and nonexistent oversight for ships listed under their flags. Accordingly, many ships involved in illicit trade, including narcotics, counterfeiting, and weapons shipments, register with FOC states to evade intrusive questioning and seizure of assets.
In these two key, mutual boarding agreements, the United States is granted power to search any ships flagged under the Liberian or Panamanian flags if it has grounds for suspicion that their cargo includes weapons of mass destruction or related components. To be sure, Liberia or Panama still retain the right to reject any U.S. inspections, but if they fail to take advantage of this prerogative within two hours of an American request, U.S. officials are free to act.
The agreements with Liberia and Panama open a significant slice of international shipping traffic to U.S. inspections. The administration reportedly now is seeking to conclude similar bilateral agreements with the other primary FOC states, but such agreements should not remain at the bilateral level. Instead, they should incorporate all of the core PSI members in a multilateral framework. Indeed, PSI members discussed this very step last fall but stepped back from a final agreement to avoid a lowest-common-denominator approach, a legitimate concern when so many states are involved. Nevertheless, the two recent agreements now provide a specific model, and the pacts themselves include a provision allowing for the accession of third-party states. Imagine a world where the 14 core PSI members and the six FOC states have established a multilateral boarding agreement whereby any state can board another state’s flagged vessels on grounds of suspicion of WMD-related cargo. The overwhelming majority of the world’s shipping traffic would become subject to interdictions and inspections at any time on account of well-founded WMD suspicions.
3) Broaden PSI’s writ by reaching out to Russia and China and seeking an eventual UN Security Council resolution to permit the interception of WMD shipments in international waters/airspace.
Although PSI encompasses an array of members across the world, two key states stand out for their absence from PSI: Russia and China. Both Moscow and Beijing have expressed concerns that PSI is an attempt to substitute interdictions for established multilateral treaties and is tailored to isolate specific states, including North Korea. Genuine Russian and Chinese participation would significantly strengthen PSI. Both nations are geographically proximate to some of the world’s most proliferation-sensitive regions, including the Middle East and Northeast Asia. As two of the five permanent members of the Security Council, Russia and China will have powerful influence over any actions taken by that body. Their continued absence will deny PSI a truly global imprimatur and reinforce suspicions that it is yet another club for Western powers only, Japan’s participation notwithstanding.
So, what should the United States do to convince Russia and China to come onboard? The administration cannot be faulted for its efforts at persuasion. Bolton has made repeated visits to Moscow in particular to convince the Russian government to sign on, but to no avail. Some press reports at the time of this article’s publication indicate that Russia may have decided finally to join PSI—a most welcome development. Nevertheless, if Russia continues to join China in resisting PSI membership, it may be that the wrong messenger is delivering the pitch. If PSI is a truly multilateral effort, it is time for other countries, especially the European states, to take on the heavy diplomatic lifting to achieve Russian and Chinese participation.
PSI members should also reconsider their initial decision to forgo a push for a Security Council resolution granting an international mandate for the interdiction of suspected WMD shipments in international waters or in international airspace. Make no mistake: as the contentious debate prior to passage of the U.S.-proposed resolution on criminalizing WMD possession and transfers demonstrated, any PSI resolution will be a difficult struggle. Many member states will wonder what criteria will form the basis for forcible interdictions and how the resolution will be enforced to prevent overreaching. Other states will raise questions on disarmament obligations by the great powers and why that is not being addressed.
Even if this effort takes several years, however, an enacted resolution will be worthwhile. It will address the foremost gap in international law today, the ability of states to transfer nuclear, chemical, and biological weapons, missiles, and key components with no legal restraint if they do not adhere to the governing international conventions. Whereas Resolution 1540 addresses WMD shipments and related components, including delivery means, to terrorist groups, it does not encompass such transfers between states. Administration officials have argued that existing legal authorities, both domestic and international, provide adequate grounds for PSI and that the proper focus is on implementation of the initiative without waiting for cumbersome international maneuvers.
Yet, pursuit of one objective does not mean sacrificing the other. The United States and the other PSI members should continue to sharpen intelligence sharing and coordinate interdiction exercises. At the same time, they can pursue a comprehensive Security Council resolution in the diplomatic arena to lay the foundation for the expansion of PSI’s legal authorities. In other words, PSI members should be able to walk and chew gum at the same time.
Conclusion
PSI is a long-overdue effort to enhance multilateral cooperation in interdiction efforts to disrupt illicit trade of nuclear, chemical, and biological weapons and missiles and other delivery mechanisms and their related components better. The United States and the other core members are to be congratulated for recognizing the role of illicit trade involving nation-states and black market entities and taking an appropriate response to shut it down. Nevertheless, PSI should always be viewed as only one component of a broader nonproliferation “toolbox.” The other necessary elements include diplomacy; treaty regimes; inspections; export controls; threat reduction efforts; economic sanctions; and, as a last resort, the use of military force.
What PSI cannot be viewed as is a substitute for these other elements of a nonproliferation policy. No interdiction effort can be 100 percent effective. Intelligence will not always be accurate, ships may only dock in ports of states that do not subscribe to the initiative, and the indigenous capability to produce WMD components without foreign assistance is rapidly spreading. The PSI, although useful and necessary, is not a silver bullet against WMD proliferation. Any desire to view it accordingly will only undermine the cause of nonproliferation.
ENDNOTES
1. “Proliferation Security Initiative: Statement of Interdiction Principles,” September 4, 2003. Paris, France.
2. A strong debate has emerged over the true reasons for Libya’s decision to disarm itself of its WMD programs. Whether Libya had shown a desire to disarm going back to the mid-1990s, as some Clinton administration officials argue, or whether the Iraq war was a principal forcing event, as Bush administration officials contend, Libya had entered into talks with the United States and the United Kingdom by mid-2003 on WMD dismantlement. Yet, Libya still was not willing to describe its programs in full detail and invite U.S. and British inspectors into the country. That attitude changed following the October 2003 intercept operation, which highlighted the scale and extent of Libya’s covert nuclear program. Tripoli promptly opened its nuclear facilities and chemical weapons stockpiles for inspection, leading to the December 2003 announcement that Libya had disavowed these programs.
3. Upon discovering an earlier shipment of North Korean missiles to Yemen under this 1999 contract, the U.S. government imposed sanctions against the responsible North Korean entity, but chose to waive similar sanctions on the Yemeni government.
4. The Missile Technology Control Regime comprises a series of political commitments and, in any case, does not include Yemen or North Korea.
5. David E. Sanger and Thom Shanker, “Reluctant U.S. Gives Assent For Missiles to Go to Yemen,” The New York Times, December 12, 2002, p. A1.
6. “Proliferation Security Initiative: Chairman’s Statement at the Second Meeting,” Foreign Ministry of Australia, July 9-10, 2003, Brisbane, Australia.
7. Mark Rosen, “Global Security: The Proliferation Security Initiative,” Intellibridge, September 21, 2003.
8. A similar principle supports the implementation of the Democratic People’s Republic of Korea Illicit Activities Initiative, which sometimes is incorrectly confused with PSI. The former is a separate effort, coordinated by the United States and Japan, to crack down on North Korea’s revenue gains from illegal trade in narcotics, counterfeiting, and money laundering.
9. “Proliferation Security Initiative: Chairman’s Statement at the Fifth Meeting,” Palacia Foz, March 4-5, 2004, Lisbon, Portugal. The group’s core members have declared as their mission “to establish a more coordinated and effective basis through which to impede and stop shipments of WMD [weapons of mass destruction], delivery systems, and related materials flowing to and from states and non-state actors of proliferation concern, consistent with national legal authorities and relevant international law and frameworks, including the UN Security Council.”
10. Coming so soon on the heels of the Iraq war, the participation of France and Germany surprised some observers. Their decision to join PSI at the outset, perhaps like the decisions of some of the other original members, may have been guided more by the desire to influence and limit the reach of PSI as defined by the United States.
11. “Proliferation Security Initiative: Chairman’s Statement at the Fifth Meeting.”
12. As the Chairman’s Conclusions following the fourth plenary meeting in October 2003 stated, “The meeting noted that participation would vary with the activity taking place, and the contribution participants could provide. Some countries had particular experience, assets or expertise relevant to all PSI activities; other countries or organizations could be expected to contribute according to their particular capabilities.”
13. Wade Boese, “The Proliferation Security Initiative: An Interview with John Bolton,” Arms Control Today, December 2003, p. 37.
14. “Proliferation Security Initiative: Statement of Interdiction Principles,” September 4, 2003. Paris, France.
15. Ibid.
16. Benjamin Friedman, “The Proliferation Security Initiative: The Legal Challenge,” The Bipartisan Security Group, September 4, 2003, p. 3. The United States has not ratified the Law of the Sea Convention, but every other core member of the PSI has done so and is thus bound by Article 19.
17. UN Convention on the Law of the Sea, Article 19.
18. The status of PSI has emerged as one issue in the ongoing debate over U.S. ratification of the Law of the Sea Convention. Some critics have argued that the convention would outlaw PSI or significantly constrain its execution by referencing Article 110, which provides that suspicions of terrorism or proliferation are not grounds for boarding vessels on the high seas. That is a moot point. Customary international law today already does not permit such boardings for these reasons, and PSI members do not claim such a right.
19. The third “Interdiction Principle” adopted by PSI members in September 2003 states that PSI participants will “[r]eview and work to strengthen their relevant national legal authorities where necessary to accomplish these objectives, and work to strengthen when necessary relevant international law and frameworks in appropriate ways to support these commitments.”
20. U.N. Security Council Resolution 1540, passed in April 2004, “Calls upon all States to refrain from providing any form of support to non-state actors that attempt to develop, acquire, manufacture, possess, transport, transfer, or use nuclear, chemical or biological weapons and their means of delivery, in particular for terrorist purposes.” See Wade Boese, “Security Council Unanimously Adopts Resolution on Denying Terrorists WMD,” Arms Control Today, May 2004, p. 34.
21. Reports indicate that one scheduled exercise may have been postponed or canceled.
22. Judith Miller, “Panama Joins Accord to Stem Ships’ Transport of Illicit Arms,” The New York Times, May 11, 2004.
23. Wade Boese, “U.S., Allies Seek Right to Board Ships in WMD Search,” Arms Control Today, January/February 2004, p. 37.
24. David McGlinchey, “Anti-Proliferation Effort Will Receive No Separate Funding, Personnel,” Government Executive, March 15, 2004.
25. Rosen, Intellibridge.
26. Miller, The New York Times.
Jofi Joseph is a homeland security and defense consultant based in Alexandria, VA. He recently left the Senate Foreign Relations Committee, where he spent three years as a Democratic Professional Staff Member handling arms control and nonproliferation issues. The views expressed in this article are those of the author alone.