Executive Summary and Key Conclusions
BASIC RESEARCH REPORT 2004.2
June 2004
Sailing Into Uncharted Waters?
The Proliferation Security Initiative and the Law of the Sea
By Andreas Persbo and Ian Davis
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Executive Summary and Key Conclusions
Introduction: What is the Proliferation Security Initiative
(PSI)?
The Proliferation Security Initiative (PSI) is a US-led proposal
to establish a comprehensive enforcement mechanism which aims to
restrict trafficking of weapons of mass destruction (WMD) and related
materials in the air, on land and at sea. The initiative was originally
taken forward by 11 participants - Australia, Britain, France, Germany,
Italy, Japan, the Netherlands, Poland, Portugal, Spain and the United
States - and have since been joined by Canada, Denmark, Norway,
Singapore and Turkey, bringing the total number of participants
to 16 (although approximately 60 states in total have indicated
their support for it). Key states still outside the PSI include
China and Russia.
Ultimately, the success or failure of the PSI will be judged in
terms of its effectiveness on the ground: is it resulting in concrete
actions to stem the flow of WMD materials and delivery systems to
those states and non-state actors with ambitions to procure illicit
unconventional arsenals? Is it increasing the political and economic
costs of trafficking in WMD materials and delivery systems? Although
the initiative is still in its infancy, with most attention having
been focused on planning and organizational matters, the participants
have also undertaken a series of training exercises (at least ten
to date) and a number of interdiction operations. Such interdictions
are rarely announced or discussed in public, the exception being
the successful interdiction in October 2003 of centrifuge parts
bound for Libya.
About this report
This report reviews the PSI story to date and discusses possible
avenues of progress. The PSI has the potential to be part of an
effective multi-faceted approach to preventing proliferation and
non-compliance: an approach that is consistent with existing arms
control regimes and other cooperative international agreements.
We focus on its impact on maritime shipping, with particular emphasis
on the United Nations Convention on the Law of the Sea (UNCLOS).
Roundtable discussions will be organised to review the main findings.
The Interdiction Principles
The terror attacks of 11 September 2001 heralded a new threat based
on the nexus between terrorism and weapons of mass destruction,
and the possibility of access to such weapons through failed states
or 'rogue' regimes. The extent to which this new 'nexus orthodoxy'
captures the reality of the new international strategic environment
is open to question, although it clearly provides the strategic
context within which the PSI was born. President Bush formally announced
the PSI during a speech in Poland in May 2003. Frustrated efforts
to seize a shipment of missiles en route to the Yemen from North
Korea in December 2002 provided the final impetus for its launch.
Inter-governmental PSI plenary meetings
Five PSI plenary meetings have taken place so far: in Madrid, Spain
(June 2003); Brisbane, Australia (July 2003); Paris, France (September
2003); London, UK (October 2003); and Lisbon, Portugal (March 2004),
although the initiative now appears to have moved on from "set piece
meetings" to "operational expert meetings", such as the one that
took place in Washington, DC, United States, in December 2003.
'Membership' of the PSI
The PSI is an activity and not an organisation, consisting of an
ad hoc coalition of states. It is mainly a transatlantic venture,
with heavy representation from within the G-8, EU and NATO. Only
three non-western countries currently participate in the initiative:
Australia, Japan and Singapore. Prima facie, the PSI reflects
earlier Cold War divisions, although this may change if the Russian
Federation were to join the initiative.
The focal point of the PSI is a set of politically binding interdiction
principles, which the parties agreed at their third meeting in Paris
in September 2003. The principles outline core objectives and methods,
including:
- Targeting "states and non-state actors of proliferation concern"
- with no formal 'targets' or 'black lists', the initiative primarily
targets the same group of countries that have concerned Western
governments for over a decade.
- Targeting "Weapons of Mass Destruction" - a term used
interchangeably throughout the principles with "chemical, biological
and nuclear weapons".
- Effective measures for interdiction and adoption of streamlined
intelligence procedures - tracking the many thousands of ships
of all designations and sizes is a difficult task, but experience
suggests that the participants may face considerable difficulties
in streamlining and coordinating their intelligence procedures.
- Reviewing relevant national and international law - participants
are obliged to review and strengthen their relevant national legal
authorities and to work to strengthen international law and frameworks
to support the development of the initiative.
- Guidelines on "Specific Actions" - maritime interdictions
are expected to focus on key ports and sea-lanes that are crucial
to current trafficking networks.
The territorial application of the PSI is potentially far-reaching
and covers the following sea zones: internal waters; territorial
seas; contiguous zones; exclusive economic zones (EEZ); and international
waters (the high seas).
In the internal waters, territorial seas and contiguous zones,
participants can stop and search suspect vessels flying the flag
of any nation, but on the high seas, the participant is only authorised
to board and search vessels flying its own flag. Thus, the principles
commit participants to seriously consider mutual boarding arrangements.
The United States has signed two such agreements recently: with
Liberia (February 2004) and Panama (May 2004). A relatively small
number of such agreements could potentially cover a large proportion
of the world's shipping. Even so, participating states are almost
certainly going to need to explore ways of expanding the territorial
scope of the initiative. One of the big remaining legal uncertainties
is whether or not the initiative can be applied on the high seas.
The PSI and the Law of the Sea
All PSI participants except Denmark, Turkey and the United States
have signed and ratified UNCLOS, which allows each state criminal
and civil jurisdiction over ships flying its own national flag.
In most cases, therefore, interdiction would be legal only when
carried out by, or with the permission of, the target ship's own
flag state. Since many anticipated PSI operations on the high seas
are likely to be undertaken by states other than the flag state,
this may necessitate a change in international law.
Criminal jurisdiction over ships carrying WMD materials
The legal jurisdiction for interdiction of shipping suspected of
carrying WMD materials is different for each of the maritime zones,
and in general the situation becomes more complex and less certain
the further a ship is away from the coast. Participating states
have full jurisdiction to interdict suspect ships in their own internal
waters, and such seizures under civil lawsuits are not uncommon.
An illustration of such a seizure in relation to illicit weapons
trafficking is the 'Ku Wol San' incident in India in 1999 (discussed
in Box 1 in the full report).
In territorial waters the grounds for instigating criminal
proceedings are more limited, especially by the right of innocent
passage. But if national laws have been enacted to criminalise WMD
proliferation, then naval interdiction of foreign ships in the participating
state's own territorial waters is usually permissible. An example
of such an interdiction is the Baltic Sky incident in Greek territorial
waters in June 2003 (discussed in Box 2 in the full report).
In order to intercept a ship carrying WMD components in the contiguous
zone the state must have enacted laws making an unauthorised
cargo an infringement of its customs laws, and the cargo needs to
be heading towards the mainland or must have originated on the mainland
heading towards international waters.
The exclusive economic zone (EEZ) is designed to protect
the economic benefits that a country can gain from its adjoining
oceans. When it comes to interdiction of WMD and related materials,
the EEZ can be regarded as international waters. The rights
of a coastal state to stop and board vessels in these two maritime
zones are limited to specific circumstances prescribed by UNCLOS.
In these waters, a ship is normally under the "exclusive jurisdiction"
of the state whose flag it flies. Stateless merchant ships and those
not flying colours or showing proper identification can be boarded.
A recent example of an involved a Cambodian registered ship, the
Sosan, which was boarded by Spanish commandos (discussed in Box
3 on page ). However, it was not permissible to confiscate the cargo,
and there is a danger that the naval power of PSI states might be
used to harass 'legitimate' shipping. If so, this would challenge
two of the key tenets of the Law of the Sea: innocent passage
and freedom of navigation.
Is transporting nuclear materials 'innocent passage'?
The right of innocent passage has been questioned by several states
when it involves nuclear-powered ships or ships carrying nuclear
or other inherently dangerous or noxious substances. In fact, some
coastal states have argued that passage of hazardous radioactive
cargo is in fact prejudicial to the security of the coastal state,
thus rendering the passage non-innocent.
One reason why UNCLOS lacks clarity on this issue is that, at the
time it was drafted, the US and former Soviet Union wanted to safeguard
the movement of their own nuclear-armed submarines, nuclear powered
vessels and vessels carrying WMD and related materials primarily
through international straits and other chokepoints. While the PSI
aims to restrict that right for others, the nuclear weapon states-especially
those within the PSI, will undoubtedly try to simultaneously maintain
their existing rights to nuclear-free passage.
Limiting freedom of navigation
Bilateral or multilateral agreements can place limits on freedom
of navigation without jeopardising the legal regimes governing the
use of territorial waters. Securing such agreements between interdicting
states and flag states has a relatively long history, from Britain's
attempt to curb the international slave trade in the 19th century
to current US counter-narcotic interdictions in the Caribbean. The
successful interception of centrifuge equipment en route to Libya
in October 2003 is another recent ad hoc example of the interdicting
state seeking the permission of the shipper prior to the interdiction
(as discussed in Box 4 in the full report).
The case for the seizure of illicit materials, including "absolute
contraband", is weak in peacetime, and a more solid legal ground
to facilitate the seizure of WMD and related materials may need
to be established.
The Future of the PSI
There are various options for strengthening the initiative. The
most obvious is by increasing the 'membership' and securing the
participation of key flag states and states that control geographically
important areas, such as international straits. However, given that
many 'flags of convenience' are located in developing countries,
many of which rely on the registration of ships to boost foreign
currency earnings, convincing them to cooperate with the PSI will
not be easy and will probably require offers of economic or other
security incentives. Deepening links between members, especially
in relation to law enforcement and intelligence cooperation, is
also needed.
Working with the International Maritime Organisation (IMO)
in amending the Convention on the Suppression of Unlawful Acts against
the Safety of Maritime Navigation (SUA Convention)
The IMO agreed a new, comprehensive security regime for international
shipping in December 2002. The regime will enter into force in July
2004 and includes a number of mandatory security measures, including
several amendments to the 1974 Safety at Sea Convention (SOLAS)
which are expected to enhance maritime security. These measures
also have the potential for further development as a global tracking
and monitoring system to aid WMD interdictions on the high seas.
Given all these important developments in maritime security, the
IMO would seem to be the natural place to further develop the PSI.
One option would be to amend the 1988 Convention on the Suppression
of Unlawful Acts against the Safety of Maritime Navigation (SUA
Convention). The SUA Convention was introduced to ensure that appropriate
action is taken against persons committing unlawful acts against
ships. Ninety-five states have become parties, 37 of them since
11 September 2001. Proposed amendments to the SUA Convention have
been under consideration for several years and would significantly
broaden the range of offences to include acts of terrorism against
shipping. Three of the proposed amendments are directly related
to illicit WMD trafficking, and at least one PSI participating state
(the UK) has publicly acknowledged that is working in the IMO to
secure amendment to the SUA Convention to make it an "internationally
recognised offence to transport WMD, their delivery systems and
related materials on commercial vessels".
Gaining legitimacy through the UN Security Council
Any country that refused to accept an amended SUA Convention could,
if its shipments posed a threat to international peace and security,
be made the subject of a UNSC resolution that provides the necessary
stop-and-search powers to other states. The UNSC has already taken
the view that the proliferation of weapons of mass destruction constitutes
a threat to international peace and security - most recently in
adopting Resolution 1540 (2004). It may consider building on this
resolution in the future by agreeing measures, including the use
of armed force, to maintain that security by curbing or interdicting
the trade in WMD materials.
What needs to be introduced in order to give the PSI a legal framework
is a UNSC resolution expanding the criminal jurisdiction of states
beyond the territorial sea. This would allow WMD proliferation to
be combated in the same way as states now combat piracy or international
drugs trafficking. UNSC Resolution 1540 by no means achieves the
comprehensive approach that the US seeks, but is reflective of the
need for compromise. It is likely to be difficult to find common
ground with both China and Russia in formulating any follow-up enforcement
resolution of the type that would authorise PSI activities. It is
of utmost importance that any future resolution carefully balances
the rights of the flag states against the interests of the international
community to curb the trade in WMD and related materials.
PSI and the doctrine of 'necessity'
Another option is to review the principle of 'state of necessity'
and to admit that some PSI interdictions may be illegal. However,
the illegality would be excused by the grave threat that weapons
of mass destruction constitute. The doctrine of 'necessity' is an
international version of national criminal laws that excuse criminal
behaviour caused by distress. If the PSI participants were to acquire
solid intelligence proving that WMD materials were being shipped
on international waters, could they claim that an interception at
that time would be 'the only means' of safeguarding their interests
against a 'grave and imminent peril'? The case for interdiction
in the case of illicit nuclear materials seems strongest, since
a nuclear device in the hands of an international terrorist network
would indeed constitute a 'grave and imminent peril' to the security
of the PSI participants.
But post-Iraq, there would also be questions as to the validity
of the intelligence and the significance of the suspected materials
in advancing any NBC programme. Major uncertainties regarding the
lethality and quality of a proliferating state's NBC activities,
especially around key issues such as nuclear weapons design, quality
of biological or chemical agent development, and missile reliability,
suggest that it will be extremely difficult to make a case for interdiction
against a single shipment on grounds of imminent threat. In any
case, the doctrine of necessity is a 'last resort' option, only
valid when all other options have been exhausted. To systematically
lean on this doctrine to justify high seas interdiction would not
be in accordance with international law.
PSI and the doctrine of 'pre-emptive self defence'
A third way forward is to expand the concept of 'pre-emptive self
defence'. This would be a risky and highly contentious approach,
since there is widespread distrust of this agenda following the
way that the US-led coalition handled the run up to war in Iraq
and the current post-combat complications in achieving stability.
Not even the emerging concept of 'humanitarian intervention' is
completely accepted in international law, since it is seen as an
infringement of the right to territorial integrity and political
independence of the attacked state. The argument that tyrants hide
behind the protection of the UN Charter may be true in practice,
but it does not change the law. The essence of international law
since 1945 is that the use of force should be authorised as a last
resort, as a means for self-protection against an ongoing or imminent
attack. The key lesson from Iraq is that intelligence is not yet
reliable or adequate to support military operations against proliferating
powers or to make accurate assessments of the need to pre-empt.
To utilise force on the basis of sketchy intelligence or mere accusations
of wrongdoing or bad intent weakens the foundation of the law and
presents, in the long run, a grave threat to international stability.
PSI and the need for comprehensive nuclear disarmament
The linkage between movement on nuclear disarmament commitments
under the NPT and broadening support for the PSI needs to be explored.
It is unreasonable to expect other nations not to acquire a weapon
that the nuclear weapon states find essential for their own security.
On the contrary, emerging and worrying concepts of 'pre-emptive
wars' and 'first strikes' may prompt countries to acquire a nuclear
deterrence. The development of new US strategies and new technologies
to use low-yield nuclear weapons against hard and buried targets
will in effect blur the distinction between conventional and unconventional
weapons.
The non-proliferation aspects of the NPT has always been given
undue weight in the review process, while the nuclear weapon states
have dodged their responsibility to take forceful action to rid
this world of a true weapon of mass destruction. At the same time,
the international community has been successful in concluding legal
regimes outlawing chemical and biological weapons, which are cheaper
and easier to manufacture than nuclear arms.
The number of states suspected of being nuclear cheaters is a handful
at most. This may change, however. The PSI should not be seen as
a separate activity in a losing war against weapons proliferation,
but as a tool in the wider context of non-proliferation.
Conclusions and recommendations - building on a positive start
If implemented correctly, the PSI could be a credible enforcement
mechanism and a logical and solid expansion of the current non-proliferation
and disarmament regimes. If implemented incorrectly, it may prove
counterproductive by hampering free trade and the rights of all
humankind to use the resources of the ocean freely, and by reinforcing
discriminatory non-proliferation practices.
The problem of trade, technology transfer and proliferation in
WMD materials is real and should not be underestimated. Neither
should the problem be overestimated. An intrusive regime hampering
global trade needs to be proportional to the potential gains from
applying it. Other avenues for curbing WMD proliferation must also
be explored or expanded: remodelling and strengthening the enforcement
capabilities of the IAEA and the OPCW; greater international harmonization
and strengthening of criminal laws and export control regulations;
and accelerated implementation of the cooperative threat reduction
agenda. And the nuclear weapon states need to renounce their weapons
and work harder towards the goal of a nuclear free world.
There is currently no clear-cut basis to use force in order to
interdict ships transporting WMD and related materials on the high
seas. The participants need to use a variety of tools in order to
establish a favourable legal environment for the initiative, since
it is apparent that some major seafaring nations object to the initiative.
Twelve specific recommendations are made here for strengthening
the PSI and expanding the global norm of combating and preventing
WMD trafficking.
Recommendation 1: Continue to expand PSI 'membership' through
regional outreach activities
The London plenary meeting reiterated that further co-ordinated
outreach would be needed to broaden international understanding
of and co-operation with the initiative, and stated that further
regionally based meetings and activities would be valuable. Outreach
activities in Central and Eastern Europe and Asia are welcome developments
and ought to be replicated in other regions where PSI participation
is under-represented.
Recommendation 2: Focus on specific nuclear, biological or chemical
technologies
A more authoritative definition of targeted contraband is required
than the vague term WMD. Greater clarity on the 'nuclear, biological
and chemical' components and materials being targeted would make
the initiative more predictable, minimise wrongful application (especially
regarding dual-use technologies) and increase potential support.
Recommendation 3: Consider enlarging the scope to include other
illicit trafficking activities
Participants should consider incorporating other forms of illicit
activity under the PSI interdiction framework, such as slavery,
illegal immigration, small arms and drugs trafficking. It is worth
thinking about ways of expanding the PSI at this stage, rather then
later, when the initiative may already be formalised.
Recommendation 4: Seek a wider mandate for interdiction through
new multilateral negotiations and agreements
The PSI and other 'coalitions of the willing' are trying to combine
the flexibility of unilateral action with multilateral credibility.
But as currently configured the PSI may have difficulty in preventing
a recurrence of incidents like the temporary seizure of the Sosan
en route to Yemen, which the Spanish navy was obliged to release
because there was no mandate for the interdiction. Achieving a higher
degree of multilateral support will tend to enhance international
political goodwill and support for the PSI. One possibility is to
use the UNSC as a global legislature and negotiate a resolution
on WMD trafficking in general, another would be to conclude a multilateral
agreement relating to the use of the seas, preferably through the
IMO (see recommendation 5).
Recommendation 5: Work with the IMO in further developing the
PSI
The IMO ought to be at the heart of the PSI. It is encouraging
that the United Kingdom is working through the IMO to secure amendment
to the SUA Convention to make it an internationally recognised offence
to transport WMD, their delivery systems and related materials on
commercial vessels. However, the IMO also has the potential to work
on other aspects of the PSI agenda, such as enhancing tracing and
identification of suspect shipping.
Recommendation 6: Place the burden of proof on flag states,
shippers and masters to ensure WMD-free cargoes
The IMO would also be a suitable forum to negotiate rules that
place a legal responsibility on flag states, shippers and masters
to ensure that their cargo is clean of WMD. Rules of this kind could
be negotiated within the framework of the safety at seas convention
and could be supplemented with suitable and credible liability rules.
Recommendation 7: Undertake a feasibility study for the development
of an international maritime tracking system with global coverage
The many technological innovations suggest that a global tracking
and tracing system to monitor suspect shipping and provide data
to law enforcement agencies in all nations may become technically
feasible in the near future. The real hurdles are likely to be political.
But new civilian maritime security systems being pioneered by the
IMO provide a starting point for the development of an international
maritime tracking system with global coverage.
Recommendation 8: Promote technical cooperation and assistance
Assistance programmes to developing countries for training and
the improvement of their maritime and port security infrastructure
should be introduced as a carrot to attract new PSI participants,
possibly as part of the IMO's existing Integrated Technical Co-operation
Programme. This would not only advance goodwill for the PSI, but
also help to enhance effective implementation of, and compliance,
with international non-proliferation and maritime security norms.
Recommendation 9: Consider establishing a UN interdiction committee
Resolution 1540 (2004) establishes an ad-hoc committee to implement
its non-proliferation provisions, while resolution 1373 (2001) established
a Counter-Terrorism Committee. It would undeniably give the PSI
more legitimacy if the participants were to push for the establishment
of an 'interdiction committee' under a UNSC resolution. This might
even be a future role for the new committee established under resolution
1540.
Recommendation 10: Negotiate towards a common position on 'states
of concern'
More needs to be done to try and reach a consensus definition of
'states of concern'. Sensitive destination lists within export control
regimes may provide some way forward. An agreed target list of countries
would enhance the predictability of the initiative, although naming
and shaming target states may have unforeseen consequences and further
alienate and isolate countries of concern.
Recommendation 11: Increase the visibility of national contributions
to PSI activities and enhance parliamentary oversight
In order to ensure proper parliamentary oversight and to help evaluate
the effectiveness of the PSI, participating states should include
a line item for the PSI in their defence budgets, as well as a description
of PSI activities carried out in any annual reporting mechanisms.
Should participation in the initiative continue to grow, the 'members'
may find it necessary to set up a coordinating body.
Recommendation 12: Expand bilateral and multilateral boarding
agreements
One immediate way forward is to conclude bilateral or multilateral
boarding agreements with the major commercial flag states, including
the so-called flags of conveniences. This would facilitate lawful
boarding of vessels on the high seas and could be concluded expediently
with a minimum of negotiations. This appears to have been the case
with the two boarding agreements that the United States has recently
concluded with Liberia and Panama. For the flag state, a boarding
agreement should give political goodwill as well as economic benefits.
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