The Proliferation Security Initiative and International Law of the Sea: A Japanese Lawyer's Perspective

• Author: Hiroyuki Banzai
• Position: Associate Professor of International Law at Waseda University. LL.M.(Waseda)
• Pages: 7-28

Page 8

I Introduction

On April 5, 2009, U.S. President Barack Obama made an impressive statement at Prague describing a new path towards international peace and security in the 21^st century:¹

Just as we stood for freedom in the 20th century, we must stand together for the right of people everywhere to live free from fear in the 21st century. And as nuclear power - as a nuclear power, as the only nuclear power to have used a nuclear weapon, the United States has a moral responsibility to act. We cannot succeed in this endeavor alone, but we can lead it, we can start it....So today, I state clearly and with conviction America's commitment to seek the peace and security of a world without nuclear weapons. I'm not naive. This goal will not be reached quickly - perhaps not in my lifetime. It will take patience and persistence. But now we, too, must ignore the voices who tell us that the world cannot change. We have to insist, “Yes, we can.”

Then, he opined that it is necessary to strengthen the global regime of the non- proliferation of Weapons of Mass Destruction (“WMD”)² in order to accomplish the goal of peace and security for a world without nuclear weapons. The prevention of proliferation of WMD to Rogue States and terrorists is one of the most important challenges of the contemporary international community, and such efforts as the Proliferation Security Initiative (“PSI”) and the Global Initiative to Combat Nuclear Terrorism should be turned into “durable international institutions.”³

In the Obama administration the PSI is considered key in the strategy to combat terrorism, although its origin began during the George W. Bush presidency. President Obama welcomed the declaration of South Korea to participate in the PSI just after South Korea found out that the North Korea performed the second nuclear test.⁴ Another reason South Korea participate in the PSI was in the pursuit of the North Korean ship, Kangnam, as one of the measures to fulfill Security Council ResolutionPage 91874.⁵

At first, the PSI was unveiled by President Bush in Krakow, Poland, on May 31, 2003. Deemed “foremost among President Bush’s efforts to stop WMD proliferation,”the PSI appears to be a new channel for interdiction cooperation between states, apart from treaties and multilateral export control regimes. The main purpose of the PSI is to detect ships that transport large amounts of WMD on the high seas and sky, and in turn prevent the proliferation of WMD.⁶

However, many doubts have arisen as to the legality of the exercise of executive jurisdiction by maritime authorities, one example of which is., boarding on ships which are engaged in WMD transportation without the consent of their flag states. Although many states think of the PSI as a useful tool in stopping the proliferation of WMD, many are hesitant to accept all of the PSI execution because much of it remains in conflict with the traditional concepts of freedom of navigation and the principle of flag states.⁷ While the jurisdiction of states has traditionally been reserved to flag states in order to ensure the freedom of navigation, there is an increasing risk that the freedom will be abused to make the sea become a hotbed of terrorism.⁸ This article will analyze the problems of the PSI from the perspective of the law of the sea with reference to the opinions of several Japanese scholars.

II PSI and Traditional International Legal Order

A PSI as Counter-Proliferation

The PSI is a global effort that aims to stop trafficking of WMD to and from states and non-state actors. The PSI member States recognize the need for more robust tools to stop the proliferation of WMD around the world. They specifically identify interdiction as an area where greater focus will be placed. Today, more than 90 countries around thePage 10world support the PSI.⁹

The strategy of the PSI is expressed in the “Statement of Interdiction Principles for the Proliferation Security Initiative.”Its preambles states that the PSI is based on the UN Security Council Presidential Statement of January 1992 and statements of the G8 in Evian and the European Union, establishing that more coherent and concerted efforts are needed to prevent the proliferation of WMD.¹⁰ However, the Statement of Interdiction Principles itself and the other statements mentioned above are not legally binding. Therefore, the PSI relies on voluntary actions by states that shall be consistent with relevant international law, though the PSI is an innovative and proactive approach to preventing proliferation. Thus, PSI participants are trying to use existing national or international authorities to put an end to WMD-related trafficking and take steps to strengthen those authorities as necessary.11

International security policy concerning the military and weapon systems has been discussed with the concepts of disarmament, arms control and non-proliferation. For example, the regimes of international law such as the Treaty on the Non-Proliferation of Nuclear Weapons ( “NPT” ), and the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction ( “CWC”), were established to realize the concepts of disarmament, arms control and non-proliferation.

However, the PSI belongs to one of branches of counter-proliferation which in certain respects is beyond the scope of these international legal regimes. Counter- proliferation is a new concept because it includes forcible measures to reduce the effect of proliferation of WMD even in cases where preventive measures of non-proliferation fail. The term “counter-proliferation”was first used by U.S. Secretary of State in December 1993, symbolized by 8 Ds as in Table 1 below.¹²

Page 11

Table 1: Eight Stages (“8Ds” ) of Counter-Proliferation

[SEE CHART IN ATTACHED PDF]

Therefore, counter-proliferation ranges from diplomatic efforts for disarmament to the use of force as a final means. For example, the both of agreement between the United States and North Korea in 1994 and military attacks against Iraq can be viewed in context of counter-proliferation.

Among the 8 Ds in the table, the first four Ds from 1 to 4 are principally within the limits of non-proliferation. Under counter-proliferation, however, extra-territorial jurisdiction of enforcement and the use of force without express authorization of the U.N. Security Council Resolution may be permitted, and these measures have much a wider scope than non-proliferation measures, which are in no doubt illegal. There is also a possibility that the PSI should not be as one of branches of counter-proliferation. According to Professor Yoshida, the PSI may be located in the fourth stage of D (Denial).¹³ Therefore, in order for counter-proliferation and the PSI to be accepted in the international community, it is necessary for them to be incorporated into international law, with legal justification for the exercise of extra-territorial enforcement and the use of force without express authorization of the Security Council.¹⁴

B PSI and the Law of the Sea

1. The M/V So San Incident and its Impact on the PSI

The M/V So San Incident in 2002 was the direct impetus behind the PSI. In response to U.S. and British intelligence of a suspicious cargo vessel in the Indian Ocean en route from North Korea, Spanish naval forces patrolling the Arabian Sea intercepted the M/V So San on the high seas. It was approximately 600 miles from the Horn of Africa and thePage 12coast of Yemen. The suscipious cargo ship was flying no flag at the time of its approach and displayed no indication of its state of registry or home port. However, it did have a painted North Korean flag on its funnel and had Korean characters for So San. Suspicions on the vessel’ s nationality remained at that point in the Spanish naval’ s approach. Concluding that the failure to fly a flag or display a name constituted reasonable ground for suspecting that the ship was without nationality (Article 110 (1) d of UNCLOS), Spanish authorities chose to exercise the right of a warship to “visit”the vessel on the high seas. Spanish naval acted in the pursuant to the United Nations Convention on the Law of the Sea ( “UNCLOS” ) in boarding the suspicious vessel. Once aboard the So San, the Spanish boarding team discovered a cache of 15 Scud surface-to- surface missiles under sacks of cement, while the So San’ s cargo list shoed cement shipment only.

Nevertheless, it was ultimately concluded that no international agreements prohibited the sale or shipment of Scud missiles from North Korea to Yemen. Furthermore, there is no provision in UNCLOS or other sources of general international law that explicitly prohibits the transport of Scud missiles or WMD-related materials by sea. Accordingly, there was no authority for seizing the missiles in the present case, and the So San was released with its cargo and allowed to continue to sail to Yemen. The incident provided an opportunity for states concerned to know the restraints that the applicable rules of international law of the sea place on the maintenance of international peace and security.¹⁵

As the U.S. and the other countries recognized the gaps in international law with respect to prohibition against the transport of WMD, the So...