The announcement of the sea-based exercises, scheduled to take place in September near Australia, is the latest development in the evolution of Washington's Proliferation Security Initiative (PSI). Unveiled as major military operations in Iraq were winding down, the PSI is a multilateral strategy to interdict shipments of WMD materiel and contraband that originate from, or are destined for, nations of 'proliferation concern'. Still in its infancy, the PSI has already been subjected to two opposing lines of criticism. Some see it as a leaky sieve, unlikely to trap any sensitive items; others fear that it will be a pervasive dragnet, tantamount to a naval blockade that in the case of North Korea risks inciting war.
Harmonisation and reinforcement
The PSI was strongly foreshadowed in the Bush administration's December 2002 National Strategy to Combat Weapons of Mass Destruction, where 'Interdiction' is listed first among various 'counter-proliferation' strategies which, in turn, were given prominence over more traditional nonproliferation efforts.
However, the PSI was not formally announced until 31 May 2003. After only two meetings (the first in Madrid on 12 June and the second in Brisbane on 9–10 July), the initiative's contours are hazy, with information-sharing and operational modalities still uncertain.
Membership of the PSI currently comprises eleven nations: Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, the United Kingdom and the United States. The apparent goal is pre-emptive interdiction, including detaining and searching ships and aircraft as soon as they enter PSI members' territorial waters or national airspace; denying suspicious aircraft overflight rights; grounding planes when they stop to refuel in member countries or in states willing to cooperate on a case-by-case basis; and boarding and searching ships registered in a PSI member nation or operating under a 'flag of convenience' of another state prepared to authorise an interdiction in a particular instance.
US officials emphasise that the initiative is merely an attempt to harmonise and coordinate export control enforcements that have been a staple of international cooperation for many years. It is a bottom-up strategy, designed to complement and enhance existing export control regulations and inspection processes, rather than a quantum leap in international policing, as it has often been portrayed.
As such, the PSI is expected to maintain its relative informality. For now, according to US officials, the group is focusing on the 'creative' use of existing national laws to achieve its objectives, rather than trying to re-write international law (which forbids interdictions on the high seas or in international airspace, save in certain exceptional cases). Nor are the PSI member states seeking formal UN approval for an expansion of current interdiction authority. At the Madrid meeting, the group assessed existing national authorities and export control regimes under which the new initiative could operate, and at the Brisbane meeting the members pledged to share intelligence on arms trafficking and initiate a series of air and sea training exercises in the Mediterranean, the Indian Ocean and the Pacific, to begin in September.
There are no plans for the member states to establish a formal authorisation process prior to initiating interdictions. Nor is there a plan to codify a threshold of 'probable cause' or a 'burden of proof' for suspicions of WMD trafficking. The initiative will reserve significant discretion to member countries, requiring only that they act on good cause and, it can be assumed, present a convincing case on the need for interdiction to those countries whose ad hoc cooperation is required in particular instances.
Current reach…
The fact that the PSI will be largely limited to the territorial waters and airspace of member states has led some to charge that it will have little impact in halting the spread of WMD. Indeed, a glance at an atlas shows that, with its current membership, the PSI will be a patchwork affair. For example, the air routes of greatest importance – between North Korea and Iran and between North Korea and Pakistan – travel through Chinese airspace, and China is not a participant in the PSI. Similarly, most sea routes between the countries of proliferation concern bypass PSI member states, which would generally lack the legal authority, for example, to seize a North Korean ship on the high seas if it were properly flagged. Nor are land routes from Western Europe to Iran adequately covered.
Thus, as currently configured, the PSI may have difficulty preventing a reoccurrence of incidents such as that of December 2002, when a Spanish frigate briefly seized a North Korean vessel on the high seas that was found to be carrying 15 Scud missiles for delivery to Yemen. Because the vessel was properly flagged, and because North Korea was violating no international law in sending the missiles to Yemen, there was no mandate for the interdiction, and the Spanish were obliged to release the vessel and its cargo.
…may be expanded
But the reach of PSI can potentially go far beyond the airspace and exclusive economic maritime zones of the PSI parties. It extends to vessels registered in all of these states and to those of any other country that might be prepared, on an ad hoc basis, to cooperate with the PSI and authorise the searching of a vessel flying its flag. Western nations, moreover, are slowly extending their export controls to cover the activities of citizens and domestic corporations overseas, providing additional bases for seeking the cooperation of non-PSI states to interdict suspect shipments by such expatriate entities. In addition, given China's growing efforts to restrain North Korea's nuclear ambitions, it is not implausible that Beijing might take steps in support of the PSI, without actually joining the group, such as inspecting cargoes passing through Chinese air- and seaports en route to or from North Korea, to ensure the absence of WMD contraband.
Moreover, the United States specifically has claimed authority to stop ships on the high seas in certain cases, such as when they carry no flag and are thus de facto pirate ships; when they carry a flag of convenience of a PSI member country or of a willing case-specific participant; or in certain cases when the ship and its cargo create the basis for the United States to invoke the right of self-defense under Article 51 of the UN Charter. The letter of the law supports this last characterisation, although the case for self-defense is hardest to make, because it requires a clear demonstration that the threat to the state claiming a right of self-defense is imminent. Invocation of the right would therefore probably be limited to cases involving products indisputably used for WMD or missiles that are en route to specific destinations in states hostile to the country invoking the right of self-defense. Also limiting the use of this approach is the fact that seizures justified by the doctrine of self-defense risk being construed as acts of war by the target country.
It is possible that the PSI's reach could also be extended through potentially controversial 'pretext' searches. The UN Convention on the Law of the Sea allows interdiction on the high seas when ships are suspected of narcotics trafficking, and global anti-terrorism laws allow ships to be boarded to look for terrorists. Thus a PSI member state believing a vessel held WMD related cargo might board the vessel claiming that it was looking for narcotics or terrorists. If, in the course of the ensuing search, the boarding party found WMD-relevant items, the PSI state could then attempt to find a legal basis for seizing the cargo, after the fact, by working with the state where the vessel was registered, with the exporting state and so forth.
Pushing these exceptions too far, however, could exacerbate growing concerns that the initiative, originally conceived as linking and reinforcing national laws, is, in fact, a US circumvention of formal international treaties and legal restraints in order to bring pressure on 'axis of evil' states. Japan and South Korea have expressed concern that the initiative is being directed only at North Korea. As North Korea's neighbours, these countries are particularly nervous that Pyongyang will make good on its threats to treat interdictions as acts of war and respond accordingly. Australia has also shown some concern in this regard.
Interdiction underway
As these structural and diplomatic issues are being worked out, interdiction efforts are already underway in various forms. In April 2003, just prior to President George W. Bush's formal announcement of the PSI in Poland, French authorities, acting on a German government tip-off, ordered a French ship to unload suspicious cargo in an Egyptian port. Originating from a German company in Hamburg, the cargo included 22 metric tonnes of aluminum tubes, thought to be key components of high-speed centrifuges used to manufacture highly-enriched uranium for nuclear weapons. The German government had denied an export license for the shipment, which was purportedly directed to a Chinese aeronautics company, because it believed the company was a North Korean front. French and German authorities also recently collaborated in an effort to intercept sodium cyanide, believed to be bound for North Korea's chemical weapons programme.
Furthermore, in April, Australian authorities discovered 50 kilogrammes of heroin on a North Korean ship and have charged members of the crew with aiding and abetting the import of an illegal product. In early June, over 1,000 Japanese police officers, customs officials and shipping regulators submitted a ferry line suspected of trafficking hard currency to North Korea to aggressive safety inspections and customs examinations, resulting in immediate suspension of the service. Most recently, responding to a US request, Taiwanese officials seized 158 barrels of dual-use chemicals from a North Korean vessel docked in a Taiwanese port.
Shortly after the July PSI meeting in Brisbane, more than 100 officials representing over 20 countries, including Australia, Fiji, Jordan, Latvia, Malaysia, Singapore, Turkey, the United Arab Emirates and the United States, convened in Sydney for a three-day conference on trans-shipment and border controls. Designed as a complement to the PSI, the conference focused on tightening export controls and domestic laws to crack down on trafficking in WMD. In particular, it emphasised the importance of tougher container-inspection regimes, more rigorous port inspections, suspending trading licenses, stricter civil and criminal penalties, and the seizure of proliferators' financial resources. US speakers at the session stressed that when ships are docked at port, the host country possesses considerable legal latitude over searches and seizures.
Political signals
In September, the PSI will hold its third meeting, in Paris, and will initiate its first set of training exercises. Following these, the US and its partners will launch a campaign to gain new members among coastal states in Asia and the Middle East, as well as in nations whose flags are commonly used as flags of convenience because of their lenient safety and environmental regulations.
With so much work ahead, it will be some time before the PSI achieves its promise as a potent adjunct to international export controls. In the meantime, however, the initiative may already be achieving another, unannounced objective by conveying a powerful political message to Pyongyang and to Tehran, a second state thought by the US to be making rapid progress towards nuclear arms. Coming on the heels of the US-led wars to remove the Taliban and Saddam Hussein, the PSI projects the image of an additional American-led coalition preparing to use instruments of military power to prevent the spread of WMD. This not only underscores the seriousness of US resolve but also provides a surrogate for the more direct application of military force against North Korea and Iran, which many see as impractical or at least highly unattractive. Whether Pyongyang will be unsettled during the upcoming nuclear talks by the announcement of the impending PSI joint exercises remains to be seen. But at a minimum, the PSI, with its echoes of the US 'quarantine' of Cuba in 1962, has upped the ante for North Korea's leaders.
