The PSI was formally launched by former U.S. President George W. Bush, in Krakow, Poland, on May 31, 2003. After four months, the Proliferation Security Initiative ( “PSI”) partner countries issued the Statement of Interdiction Principles (“SOP”), the PSI’ s founding document, aiming at establishing a multilateral cooperative framework for the interdiction of proliferation-related traffic of weapons of mass destruction, their deliveryPage 50systems, and related materials1 at sea, on land, and in the air, flowing to and from states and non-state actors of proliferation concern. Since its inception, support for the PSI has grown from 11 states initially to more than 90 states, including all G8 and E.U. member states.2 Unfortunately, some key states, including China, have yet to support the PSI.
What were the reasons China did not endorse the PSI? Should China maintain its current posture or change it in the near future? This Article addresses the legal and policy aspects of these issues in four parts. The first part briefly introduces the PSI. The second part focuses on the legal and policy considerations in China’ s decision not to participate in the PSI. The third part addresses how President Obama has treated the U.S. government’ s position on the PSI. The final section details the reasons why China should reappraise its position vis- -vis the PSI.
From the beginning, China did not join the PSI. The common argument made by the Chinese Ministry of Foreign Affairs Spokesperson and other high ranking officials is that China did not join the PSI due to concerns of its overreach. The Chinese government worried about possible armed interceptions and, as such, did not join the PSI.3
Some PSI interdictions do not have sufficient legal bases, especially operations taking place on the high seas. According to the international law of the sea, all ships or aircrafts of all states have freedom of navigation and flight both on and over the high seas. Except flag state vessels, the law does not generally subject a ship to the jurisdiction of any other state.
The SOP does not specify the legal bases for the interdiction of a shipment suspected of proliferation, other than just mentioning actions taken consistent with national legal authorities and relevant international law and frameworks, including the UN Security Council.4 Former U.S. high ranking officials and commentators usually described thePage 51stateless ships as engaging in piracy, and that the Security Council Resolution 1540 proves the legal grounds for interdiction on the high seas.5
Persuant to Article 110 of the 1982 United Nations Convention on the Law of the Sea ( “UNCLOS”), if a foreign ship suspected of carrying WMD is stateless or engaged in piracy, U.S. warships have the right to board and search it. However, boarding a ship in accordance with Article 110 is not synonymous with interdiction as found in the PSI. The term interdiction includes not only the boarding of ships, but also allows for seizure of the ship and its contents.6 Article 110 does not expressly grant the intercepting countries with the right to seize the suspect ship or its cargoes after boarding, even if the suspicions are proven true. Boarding and seizure are generally conducted under two different procedures. Permission to board will seldom automatically include permission to seize.7 The 2005 Protocol to the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (hereinafter, 2005 SUA Protocol), the first multilateral treaty addressing the boarding of ships suspected of proliferation, did not mention the seizure of ships. The PSI ship boarding agreements, recently signed by the U.S. and so-called flag of convenience countries, stipulate that seizure of the ship or its cargo requires consent of the state of the vessel for which seizure is requested. The same is true for the Security Council Resolution 1874 in 2009: inspection of suspect vessels, flowing to and from North Korea on the high seas, requires the consent of the flag state, while seizure of them has been authorized by the Security Council.8
Whether boarding results in the seizure of ships depends on the effects of combining the relevant articles in UNCLOS. In comparing Article 110 with Articles 105 and 109, which permit the detention of a pirate ship or unauthorized broadcasting ship or its cargoes, boarding the nation less ship suspected of proliferation does not lead to detention of it This was confirmed in a statement by the U.S. in the So San incident9 that “[w]hile there is authority to stop and search . . . there is no clear authority to seize the shipment of Scud missiles from North Korea to Yemen.” 10 Although boarding a piratePage 52ship leads to seize it, such a ship suspected of proliferation is not within the definition of piracy. Because a condition of piracy is the commission of violence for private ends, however, this is not the case with WMD.11
Furthermore, all of the multilateral nonproliferation treaties, including the 1968 Treaty on Treaty on the Non-Proliferation of Nuclear Weapons(“NPT”), the 1972 Biological Weapons Convention(“BWC”), and the 1992 Chemical Weapons Convention(“CWC”), do not authorize the contracting countries to board a ship suspected of violating the treaties. The treaties also recognize the right by countries of peaceful use of nuclear, biological and chemical materials and their lawful transportation.12 The U.S. admitted as much in the So San incident when it stated that “[t]here is no provision under international law prohibiting Yemen from accepting delivery of missiles from North Korea.” 13 Approximately 95 percent of the materials related to WMD are dual-use goods.14 The SOP neither defines what cargo is prohibited or the procedure to be following when board ships. The SOP also does not address available reparation for the unreasonable boarding, especially defining what is a permissible use of force and the procedures to be followed, which is required in recent international treaties involving shipboarding, such as the 2005 SUA Protocol, the Shipboarding Agreements and the 1995 United Nations Fish Stocks Agreement. The Security Council Resolutions on nonproliferation, designed for specific member states, specifically includes the clause “[a]cting under Article 41 of Chapter VII of the Charter of the United Nations,”so as to prevent the use of force when other member states board and search a suspect ship.15 It seems that the U.S. preferred to interdict the suspect ship at sea by military means. The aggressive interdictions will weaken the international prohibition on the use of force in the UN Charter, and will undermine the inalienable rights of related countries enjoyed in international law, which will likely increase tensions among countries. For example, North Korea announced any interdiction of its ships was tantamount to a declaration of war.16
Similarly, countries generally cannot interdict trafficking on the high seas in self- defense, in that shipment itself cannot be equal to the armed attack triggering thePage 53exercise of the right of self-defense, in particular shipment of WMD materials. The armed attack in Article 51 of the UN Charter is usually understood as including an attack which has already occurred or is imminent, but does not include potential attack. The 2002 U.S. National Security Strategy proclaimed preemptive strikes against potential or probable threats, but preemption is not equivalent to self-defense in international law.17 In practice, the legality of the interception of a weapons shipment in self-defense has always been challenged. During the period from 1956 to 1962 when Algeria was fighting against France’ s colonial domination, France’ s interception of ships suspected for shipping weapons to Algeria on the high seas suffered strong protests from the flag states whose ships were boarded and searched.18
Resolution 1540 provides that all states shall take actions, individually or jointly, to prohibit and prevent the illegal transportation of WMD to non-state actors, but it does not use the term interdiction or mention the PSI. Indeed, the U.S. dropped a provision explicitly authorizing the interdiction of WMD at sea in exchange for China’ s vote. A British statement issued at the time was intended to reassure those who resisted an explicit authorization of interdictions on the high seas:
What this resolution does not do is authorize enforcement action against states or against non-state actors in the territory of another country. The resolution makes clear that it will be the Council that monitors its implementation. Any enforcement action would require a new Council decision.19
The Shipboarding Agreements do refer to Resolution 1540. However, they should not be regarded as the measures of implementing the Resolution.
Many states have voiced their concerns about the validity of the interdiction. During the Meetings of States Parties to UNCLOS, some delegations reiterated their view that the PSI should be in conformity with the legal regimes of the various maritime areas in UNCLOS.20 The core PSI participants also admitted that no sufficient legal bases couldPage 54be found for the interdiction on the high seas. Former Defense Secretary Donald H. Rumsfeld conceded that the PSI “has holes in it,”including the absence of an internationally accepted legal basis for confiscating some materials on the high seas.