Can the PSI be Legitimate for the Nonproliferation Regime? A Critical Analysis

• Author: Eric Yong Joong Lee
• Position: Professor of International Law at Dongguk University, Seoul, Korea; President of YIJUN Institute of International Law. B.A.(U.Washington), M.P.A.(Seoul Nat’l Univ.), LL.M.(Leiden), Dr.iur.(Erasmus)
• Pages: 29-47

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I Introduction

The Proliferation Security Initiative (“PSI”) is a highly controversial issue in the post- Cold War era. As a newly established framework for nonproliferation of Weapons of Mass Destruction (“WMD”), the PSI has raised many challenging questions to the conventional principles of international law, including the legitimacy of interdiction onPage 30the high seas. This paper will try to answer these questions from a viewpoint of international law.

This paper is composed of three parts. Part II will be review the origin and evolution of the PSI. As a worldwide network designed to prevent the spread of WMD, the PSI was declared by U.S. President George W. Bush in 2003 just after the September 11 attack and the following So San incident. The PSI is a new world strategy, which began in the US under neoconservative wing of the Bush administration, and comports with the “national strategy combating terrorism.”The PSI was the framework for how the Bush administration intended to govern the post-Cold War world. Based on these understandings, a few basic questions regarding the functioning and operation of the PSI will be discussed. Part III will cover some of the underpinnings of the PSI, including the U.S. neoconservative strategy international terrorism and the world’ s arms industry. Part IV will analyze the legal issues relating to the PSI, including a close analysis of Article 51 of the UN Charter and review the examples of the preemptive use of force for self-defense, interdiction of foreign vessels on the high seas from the perspective of the law of the sea, and whether the PSI is a customary international norm.

II Formation

1. Genesis of the PSI

The September 11 attacks drastically changed the world. Nearly 3,000 people were killed and wounded in this horrible act of terrorism, which was presumably committed by Al Qaida. Following the attacks, the U.S. invaded Afghanistan in order to capture Osama bin Laden, the leader of the radical Islamist militant group who was believed to be behind the attacks and residing in Afghanistan. However, the invasion was not successful although the Taliban religious faction of Afghanistan was disposed of its ruling power. The “war against terrorism”was neither efficient nor effective in protecting global stability due to the fundamental difference between the current war against terrorism and those fought during the Cold War era, namely that the enemy has become more indiscernible and ubiquitous. Today, terrorists are not necessarily state- sponsored, but rather come from non-State actors ( “NSAs” ). The United States respond to this new reality accordingly. The Bush administration released the “national strategy combating terrorism” ¹ as a top national security priority in December 2002, which calledPage 31for enhanced interdiction capabilities.²

Another incident soon followed. The So San, a Cambodian-registered North Korean freight, was interdicted in the Indian Ocean about 960 kilometers from its destination in Yemen. The So San flew no flag and loaded fifteen Scud missiles underneath 40,000 sacks of cement.³ Although the So San was initially seized, it was later released because international law did not prohibit Yemen from accepting delivery of the missiles from North Korea.⁴ Pursuant to the United Nations Convention on the Law of the Sea ( “UNCLOS” ), vessels may be stopped only by their flag state.⁵ In the case of a non-flag vessel like the So San any country can stop and inspect the ship. However, the cargo aboard the ship is a different matter because transporting weapons at sea does not violate international law unless the transporting state has a treaty to refuse such weapons. Because Yemen and North Korea were neither party to the Missile Technology Control Regime,⁶ nor at war with Spain or the U.S., the vessel could not be detained or its cargo seized.⁷ This embarrassing incident spread a great concern to policymakers in the U.S. They were particularly worried that WMD could fall into the hands of rogue states or NSAs who are willing to use WMD to undermine global security.⁸ Therefore, U.S. policymakers finally decided to develop the PSI, a worldwide network for the interdiction of WMD.

2. Development of the PSI

A Structure of the PSI

The PSI aims to stop shipments of biological, chemical nuclear weapons as well as missiles and goods that could be used to deliver or produce such weapons to terroristsPage 32and countries suspected of trying to acquire WMD.⁹ The PSI was launched by U.S. President George Bush on May 31, 2003, in Krakow, Poland. In his speech, President Bush proposed a cooperative framework to coordinate national actions supporting interdiction as follows:¹⁰

The greatest threat to peace is the spread of nuclear, chemical and biological weapons. We must work together to stop proliferation. . . . When weapons of mass destruction or their components are in transit, we must have the means and authority to seize them. So today I announce a new effort to fight proliferation called the Proliferation Security Initiative. The U.S. and a number of our close allies, including Poland, have begun working on new agreements to search planes and ships carrying suspect cargo and to seize illegal weapons or missile technologies. Over time, we will extend this partnership as broadly as possible to keep the world's most destructive weapons away from our shores and out of the hands of our common enemies.

The PSI began as “a loose alliance of countries to non-proliferation of WMD via shipping routes on land, air and sea.” ¹¹ On September 4, 2003, these core member nations issued a non-binding “Statement of Interdiction Principles,”which called for the use of diplomatic information and military instruments of power.¹² The preamble of the Principles states that “the participants are committed to establish a more coordinated and effective basis through which to impede and stop shipments of WMD, delivery systems, and related materials flowing to and from states and non-state actors of proliferation concern.” ¹³ In addition, the PSI participants call on all states concerned with the threat to international peace and security to be committed to the following:¹⁴

1. Undertake effective measures for interdicting the transfer or transport of WMD;

2. Adopt streamlined procedures for rapid exchange of relevant information concerning suspected proliferation activity;

3. Review and work to strengthen their relevant national legal authorities where necessary to accomplish these objectives; and

4. Take specific actions in support of interdiction efforts regarding cargoes of WMD, their delivery systems, or related materials.

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B How the PSI Operates?

A main objective of the PSI is to prevent the spread of WMD among states and non-state actors of proliferation concern. States actors of concern include North Korea, Iran and Syria, while NSAs refer to various terrorist organizations around the world.15 Currently, 95 countries are participating in or supporting the PSI as a counter-proliferation mechanism. The PSI works in three parts. First, it increases intelligence sharing between participating states. Second, it promotes operational cooperation among participating states to prepare and plan to interdict vessels transporting WMD.¹⁶ Operational detail will only be available upon specific instances of interdictions.¹⁷ Third, it promulgates interdiction principles that permit participants to use force if necessary to halt the flow of WMD,¹⁸ which is “the most clearly articulated and contentious contribution”of the PSI.¹⁹

III Underpinnings. What Brought the United States to Set Up the Interdiction Network?

1. The Neoconservatives

The PSI has been designed by the U.S. neoconservatives²⁰ as a post-Cold War strategy21 The Cold War completely ended by the early 1990s. However, this triumph was not welcomed news for the neocons of the Bush administration because as the traditional Cold War system abruptly collapsed and ideological confrontation between the East and West was over, former allies of the United States were less willing to continue to accept U.S. political and military dominance. To make matters worse, the U.S. economy began to slow at the turn of the 21st century. From the neocon perspective, this was a big paradigm-shift that they had never experienced in the latter half of the 20th century.Page 34Therefore, the neocons urgently devise a new world strategy in order to maintain their position at the top of both domestic and international politics.

2. International Terrorism

The PSI was triggered by newly emerging acts of international terrorism. The September 11 attacks were a catalyst that exacerbated fear about the invisible terrorists and future attacks using WMD. As the panic from the September 11 attacks was fast dominating national psyche, the Neocons began designing a new network led by the U.S. military against international terrorism. The neocons maintained the following: that future terrorism would be more fatal and larger than people have experienced throughout history; that the terrorists are totally invisible and brutal; and that no one can easily prevent future attacks without a preemptive interdiction system because the terrorists...