The proliferation security initiative and the evolution of the law on the use of force.

• Author: Shulman, Mark R.

1. 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.

1. 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)...