Proliferation Security Initiative

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The Issue

The Proliferation Security Initiative (PSI) is an international effort aimed at interdicting "the transfer or transport of WMD, their delivery systems, and related materials to and from states and non-state actors of proliferation concern."[1] The program involves joint exercises and activities to interdict vessels suspected of carrying WMD or their components on the high seas. To accomplish this, many states have begun to adjust their legal frameworks to permit action, sign ship-boarding agreements and conduct joint exercises. As of August 2006, PSI has conducted 23 "joint interdiction exercises."[2] Originally envisioned as part of the 2002 US National Strategy to Combat WMD Proliferation, PSI received its final push toward realization when the international community was unable to interdict a shipment of North Korean SCUD missiles to Yemen.[3]

PSI was first announced by President Bush on May 31, 2003, and initially consisted of eleven participating states: Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, the United Kingdom, and the United States. The original eleven states plus nine others (as of September 2006) are part of the Operational Experts Group (OEG).[4] The OEG is supplemented by a large number of states which claim to endorse PSI's Statement of Interdiction Principles [See Annex A]; at present participation includes 82 states.[5]

Participating states have been careful to note that PSI is an activity rather than an organization.[6] Because of this amorphous structure, most activities carried out under the guise of PSI have been ad hoc in nature. However, the actions that have been taken have advanced PSI's goal of creating "a web of counterproliferation partnerships."[7] A High Level Political Meeting of participating states in June 2006 expanded the focus of PSI to include financial transactions meant to facilitate WMD proliferation.[8] Several exercises have been held to help train states in carrying out interdiction operations, including ANATOLIAN SUN, a three day air/land/sea exercise in Turkey held in May 2006 that included representatives from 50 countries.[9]

The US has been particularly active in expanding the initiative. Ship boarding agreements have been signed with Belize, Croatia, Cyprus, Liberia, the Marshall Islands, Panama, and Malta which grant the US permission to board and inspect any ships registered to those countries if they are suspected of transporting WMD-related cargo.[10] These countries (except for Croatia) are said to have "flags of convenience," which means they allow foreign-owned ships to fly their flags, making the foreign ships subject to their laws.[11]

While the US claims to have made, with the help of its PSI partners, approximately 25 interdictions in 2006, the best known case of proliferation interdiction was, in fact, not a PSI exercise. In October 2003, the German-owned ship BBC China, bound for Libya carrying Malaysian-made centrifuge components for use in enriching uranium, was diverted to Italy where its cargo was seized in a joint UK-Germany-Italy operation. It was an exposure of part of the A.Q. Khan network.[12]

PSI commits to ensure its activities work within existing international law and frameworks. It serves to implement some of the objectives of United Nations Security Council Resolution 1540, which calls on all states to set up a legal and regulatory framework to criminalize WMD possession (if the states lack such a framework) and to work to prevent the smuggling of weapons of mass destruction and precursor materials.[13] The Statement on Interdiction Principles calls for states to refine their national legal frameworks to allow for the interdiction of WMD material in their territories. PSI is also compatible with the goals and recent statements of the G8 Global Partnership Against the Spread of Weapons and Materials of Mass Destruction. Finally, at the most basic level, the original PSI participants agreed in the preface to the Statement on Interdiction Principles "that the PSI is consistent with and a step in the implementation of the UN Security Council Presidential statement of January 31, 1992, which states that the proliferation of all WMD constitutes a threat to international peace and security, and underlines the need to prevent proliferation."[14]

Despite its ostensible successes, PSI continues to encounter several legal challenges. The PSI countries are concerned about the circumstances in which they might legally be justified in interdicting a WMD or missile shipment and are interested in clarifying the relevant legal bases for action. Indeed, their first order of business was to assess their own authorities and export control regimes in the context of intercepting suspect cargoes within their own territorial waters, land and air space.

Under the United Nations Convention on the Law of the Sea,on the high seas (generally twelve nautical miles or more off shore), ships under a nation's flag are subject to the jurisdiction of only their flag state and generally may not be boarded by ships not under the flag of that state (thus the need for Ship Boarding Agreements). [15] In territorial waters or straits, ships have the right of "innocent passage" or "transit passage;" and carrying WMD or missiles as cargo currently does not, in and of itself, render a ship or plane beyond the protections of the doctrines of innocent or transit passage. Conversely, Article 88 of the Convention on the Law of the Sea reserves the high seas "for peaceful purposes." This raises the question of whether a shipment of WMD or missiles might legitimately be deemed not peaceful and thus subject to being seized.

A promising attempt to legalize PSI-like interdiction efforts is the 2005 amendment to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention). Article 4 of the amendment criminalizes the transportation of WMD, WMD material, and any dual-use technology intended to create WMD.[16] The amendment also creates a "comprehensive set of procedures and protections designed to facilitate the boarding of a vessel" that eliminate "the need to create time-consuming ad hoc boarding arrangements when facing the immediacy of ongoing criminal activity."[17] While 144 states have ratified the original SUA convention, only two countries have ratified the amendment. Full ratification and entry into force will likely take years.[18]

In addition to the legal questions facing the PSI in its efforts to intercept WMD and missile shipments, there is also an array of practical considerations that could impair its success. Any efforts to prevent shipments of concealed bomb-grade nuclear materials would find enormous technical challenges in detecting grapefruit- or softball-sized quantities shielded and buried in the hulls of freighters or in intercepting materials on board a jet liner. Politically, too, there has only been a limited discussion of PSI successes and virtually no information on any failures. Without this type of data, it is difficult to assess the initiative's effectiveness or progress.

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Obstacles

  • Small-size quantities of weapons-grade nuclear materials, shielded and hidden in the hull of an ocean-going freighter, would be extremely difficult to detect.
  • Until the SUA Convention amendments are ratified, WMD shipments do not, in and of themselves, subject a ship to interdiction. Other forms of WMD transshipment may also fall into legal loopholes. Unfortunately, the 2005 Protocol has been signed by only eighteen states.
  • A UN Security Council resolution or resolutions could provide new grounds for intercepting from countries of concern exports or imports of WMD, the machinery for producing WMD, or missile exports, but obtaining such resolutions may be difficult.
  • The current legal frameworks do not permit interdiction or boarding of "ships owned or operated by a State and used only on government non-commercial service" or military vessels.[19]

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Q & A

Q: What is PSI's objective?
A: According to the White House, PSI's objective is to interdict shipments of WMD, their delivery systems, and related materials to and from states and non-state actors of proliferation concern."[20]

 

Q: Which states are members of PSI's Operational Experts Group?
A: As of September 2006, the twenty members of the OEG were Argentina, Australia, Canada, Denmark, France, Germany, Greece, Italy, Japan, the Netherlands, New Zealand, Norway, Poland, Portugal, Russia, Singapore, Spain, Turkey, United Kingdom and the United States.

Q: Is PSI an organ of the UN?
A: The PSI is neither a part of nor connected to the UN, although its attempts at counterproliferation are consistent with certain edicts of the UN Security Council.

Q: Is PSI aimed at stopping trade in drugs, counterfeit money, and other illicit items?
A: No. Although Australia and Japan have taken actions against the illegal North Korean drug trade, the PSI is aimed solely at WMD and related items.[21]

Q: How will the PSI determine that a state or other entity is "of proliferation concern" and what effect will that determination have under international law?
A: The PSI has not specified how it will make that determination nor has it specified whether or how it would have any significance under international law. Presumably, any such determinations will simply serve to focus the efforts of the PSI members, and they will then take any actions based on principles of international law independent of that determination.

Q: Will more nations be joining the PSI?
A: As of 1 May 2007, 82 nations have pledged support for the PSI.[22] President Bush has called for "all responsible states to join this global effort to end the WMD proliferation trade."[23]

Q: Which countries allow flags of convenience?
A: Antigua and Barbuda, Bahamas, Barbados, Belize, Bermuda (UK), Bolivia, Burma, Cambodia, Cayman Islands, Comoros, Cyprus, Equatorial Guinea, French International Ship Register (FIS), German International Ship Register (GIS), Georgia, Gibraltar (UK), Honduras, Jamaica, Lebanon, Liberia, Malta, Marshall Islands (USA), Mauritius, Mongolia, Netherlands Antilles, North Korea, Panama, Sao Tome and Príncipe, St. Vincent, Sri Lanka, Tonga, and Vanuatu are all designated as flag of convenience states by the International Transportation Workers' Federation.[24]

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Quick Facts

  • Over 80 countries have pledged support for the Proliferation Security Initiative.
  • The US has Ship Boarding Agreements with seven countries, the most recent of which was signed with Malta in March 2007. Two of these countries, Panama and Liberia, combine for over 20 percent of world merchant shipping flags.[25]

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Recent Legislation

  • The Implementing the 9/11 Commission Recommendations Act of 2007 (H.R.1, not yet enacted) calls for increased cooperation with non-NATO members and improved interagency and international cooperation and coordination. The Act also includes a Sense of Congress provision that says the President should seek an explicit UN Security Council Resolution authorizing PSI activities.
  • The Cooperative Proliferation Detection, Interdiction Assistance, and Conventional Threat Reduction Act of 2006 (S. 2566), the provisions of which were passed in the Department of State Authorities Act of 2006 (Public Law 109-472), authorized the President to conclude bilateral agreements that would facilitate proliferation interdiction and to provide friendly countries with interdiction assistance.
  • The Cooperative Proliferation Detection, Interdiction Assistance, and Conventional Threat Reduction Act of 2005 (S. 1949, not enacted) contained the same provisions as S. 2566, but also established an Office of Proliferation Detection and Interdiction Assistance Coordination in the Department of State and mandated that at least one quarter of military assistance to friendly nations be in the form of proliferation interdiction assistance.
  • The Omnibus Nonproliferation and Anti-Nuclear Terrorism Act of 2005 (H.R. 665, not enacted) called for the expansion of PSI and the authorization of $50 million for interdiction exercises. The 9-11 Commission Combating Proliferation Implementation Act (H.R. 422) contained similar legislation.

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Applicable Treaties, Legislation, and Other International Agreements

 
  • The 2005 Protocols to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) (14 October 2005)
    These protocols seek to expand the scope of offenses for which boarding of a ship is justified to include actions related to biological, chemical, and nuclear weapons. Transportation of those materials or precursor technologies is added to the list; however, the Protocols stipulate that with regard to nuclear material, as long as the material is transport by, from, or to a State Party to the Treaty on the Non Proliferation of Nuclear Weapons.
  • United Nations Security Council Resolution 1540 (28 April 2004)
    UNSCR 1540 mandated that all states have in place a legislative framework to criminalize and punish non-state actor involvement in WMD proliferation. The Resolution also called on states to develop capacities (such as export controls, border controls, and material licensing systems) to prevent WMD proliferation on their territories. 
  • The National Security Strategy of the United States of America 2002 (September 2002)
    The strategy calls for a more proactive response to proliferation, with a desire to prevent rogue states and terrorists from acquiring nuclear technologies. Included in this strategy is the strategic impetus for the Proliferation Security Initiative, allowing for the United States to "interdict enabling technologies and materials."
  • The G8 Global Partnership Against the Spread of Weapons of Mass Destruction (June 2002)
    The G8 Global Partnership was established at the 2002 G8 Summit in Kananaskis, Canada as a way to internationalize nonproliferation efforts. [See Issue Brief - G8 Global Partnership]
  • Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) (1 March 1992)
    The main purpose of the convention is to provide a legal framework of appropriate actions which may be taken against persons committing unlawful acts against ships. According to the text, these actions include the seizure of ships by force; acts of violence against persons on board ships; and the placing of devices on board a ship which are likely to destroy or damage it. This Convention was later modified [see 2005 Protocols] to include transportation or use of WMD or precursor technologies as illegal acts warranting action.
  • UN Security Council Presidential Statement S/23500 (31 January 1992)
    This statement, representing the consensus view of the Security Council, was a response to the sweeping changes in the international system at the time. One of the major threats which it foresaw was the proliferation of WMD. Consequently, the members of the Council committed themselves to take action to prevent the spread of proliferation precursor technologies.
  • United Nations Convention on the Law of the Sea (10 December 1982)
    This treaty defines the scope of international rights, protections, and responsibilities for states operating on the high seas. Included in the provisions are legal justifications for boarding the vessel of another state (e.g., slavery, drug trafficking, piracy, and unauthorized broadcast). Further, the treaty stipulates that the right to interdict on the high seas does not extend to warships and government vessels (or non-commercial ships operating on behalf of a government).

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Talking Points

  • There is a strong desire by the international community to keep weapons of mass destruction out of the hands of terrorists and rogue states.
  • The Proliferation Security Initiative, which is an international activity involving more than 80 states, seeks to provide a means to act and coordinate responses to suspected proliferation activity on the high seas.
  • The United States sought to spread the burden as well as gain legitimacy for the program by including as many states as possible in PSI.
  • Unfortunately, there is limited data on the successes or failures of the program so there is only anecdotal evidence upon which to judge what actual impact, if any, the activity has had.

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Recommendations

 

  • A National Security Council designee should spearhead an interagency process to reassess the global role of cooperative nonproliferation (CNP) efforts in today's context, including those that have arisen in the past few years, such as PSI.This assessment should strive to eliminate duplication, consolidate where necessary, and fill any gaps within the existing efforts. [See Book Recommendation #1]
  • Following a survey and reassessment of its own activities (see Recommendation #1), the US government should work collaboratively with other contributors to the Global Partnership Against the Spread of Weapons and Materials of Mass Destruction in order to identify common objectives and leveraging opportunities that maximize nonproliferation program sustainability. [See Book Recommendation #3]
  • PSI Members should continue to find ways to conduct PSI activities under the rubric of United Nations Security Council Resolution 1540. Coupling the Security Council-mandated standard with a comprehensive international toolkit of resources (such as PSI) would achieve an integrated framework for managing supply-side proliferation risks. [See Book Recommendation #4]
  • The United States Congress should establish a bi-cameral congressional task force to receive regular briefings from an array of government and non-governmental experts on the activities and objectives of PSI. [See Book Recommendation #7]

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Annex A

Statement of Interdiction Principles

The Proliferation Security Initiative (PSI) is a response to the growing challenge posed by the proliferation of weapons of mass destruction (WMD), their delivery systems, and related materials worldwide. The PSI builds on efforts by the international community to prevent proliferation of such items, including existing treaties and regimes. It is consistent with and a step in the implementation of the UN Security Council Presidential Statement of January 1992, which states that the proliferation of all WMD constitutes a threat to international peace and security, and underlines the need for member states of the UN to prevent proliferation. The PSI is also consistent with recent statements of the G8 and the European Union, establishing that more coherent and concerted efforts are needed to prevent the proliferation of WMD, their delivery systems, and related materials. PSI participants are deeply concerned about this threat and of the danger that these items could fall into the hands of terrorists, and are committed to working together to stop the flow of these items to and from states and non-state actors of proliferation concern. The PSI seeks to involve in some capacity all states that have a stake in nonproliferation and the ability and willingness to take steps to stop the flow of such items at sea, in the air, or on land. The PSI also seeks cooperation from any state whose vessels, flags, ports, territorial waters, airspace, or land might be used for proliferation purposes by states and non-state actors of proliferation concern. The increasingly aggressive efforts by proliferators to stand outside or to circumvent existing nonproliferation norms, and to profit from such trade, requires new and stronger actions by the international community. We look forward to working with all concerned states on measures they are able and willing to take in support of the PSI, as outlined in the following set of "Interdiction Principles."

PSI participants are committed to the following interdiction principles 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, consistent with national legal authorities and relevant international law and frameworks, including the UN Security Council. They call on all states concerned with this threat to international peace and security to join in similarly committing to:

1. Undertake effective measures, either alone or in concert with other states, for interdicting the transfer or transport of WMD, their delivery systems, and related materials to and from states and non-state actors of proliferation concern. "States or non-state actors of proliferation concern" generally refers to those countries or entities that the PSI participants involved establish should be subject to interdiction activities because they are engaged in proliferation through:

(a) efforts to develop or acquire chemical, biological, or nuclear weapons and associated delivery systems; or

(b) transfers (either selling, receiving, or facilitating) of WMD, their delivery systems, or related materials.

2. Adopt streamlined procedures for rapid exchange of relevant information concerning suspected proliferation activity, protecting the confidential character of classified information provided by other states as part of this initiative, dedicate appropriate resources and efforts to interdiction operations and capabilities, and maximize coordination among participants in interdiction efforts.

3. Review and work to strengthen their relevant national legal authorities where necessary to accomplish these objectives, and work to strengthen when necessary relevant international law and frameworks in appropriate ways to support these commitments.

4. Take specific actions in support of interdiction efforts regarding cargoes of WMD, their delivery systems, or related materials, to the extent their national legal authorities permit and consistent with their obligations under international law and frameworks, to include:

(a) Not to transport or assist in the transport of any such cargoes to or from states or non-state actors of proliferation concern, and not to allow any persons subject to their jurisdiction to do so.

(b) At their own initiative, or at the request and good cause shown by another state, to take action to board and search any vessel flying their flag in their internal waters or territorial seas, or areas beyond the territorial seas of any other state, that is reasonably suspected of transporting such cargoes to or from states or non-state actors of proliferation concern, and to seize such cargoes that are identified.

(c) To seriously consider providing consent under the appropriate circumstances to the boarding and searching of its own flag vessels by other states, and to the seizure of such WMD-related cargoes in such vessels that may be identified by such states.

(d) To take appropriate actions to (1) stop and/or search in their internal waters, territorial seas, or contiguous zones (when declared) vessels that are reasonably suspected of carrying such cargoes to or from states or non-state actors of proliferation concern and to seize such cargoes that are identified; and (2) to enforce conditions on vessels entering or leaving their ports, internal waters or territorial seas that are reasonably suspected of carrying such cargoes, such as requiring that such vessels be subject to boarding, search, and seizure of such cargoes prior to entry.

(e) At their own initiative or upon the request and good cause shown by another state, to (a) require aircraft that are reasonably suspected of carrying such cargoes to or from states or non-state actors of proliferation concern and that are transiting their airspace to land for inspection and seize any such cargoes that are identified; and/or (b) deny aircraft reasonably suspected of carrying such cargoes transit rights through their airspace in advance of such flights.

(f) If their ports, airfields, or other facilities are used as transshipment points for shipment of such cargoes to or from states or non-state actors of proliferation concern, to inspect vessels, aircraft, or other modes of transport reasonably suspected of carrying such cargoes, and to seize such cargoes that are identified.

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Endnotes

[1] The White House, "Fact Sheet: Proliferation Security Initiative: Statement of Interdiction Principles," September 4, 2003, accessed at: http://www.whitehouse.gov/news/releases/2003/09/20030904-11.html.

[2] Sharon Squassoni, "CRS Report for Congress: Proliferation Security Initiative (PSI)," CRS, 14 September 2006. http://fpc.state.gov/documents/organization/74917.pdf

[3] Michael Byers, "Policing the High Seas: The Proliferation Security Initiative," American Journal of International Law vol. 98 (July 2004): pp. 526-45

[4] Ministry of Foreign Affairs of the Republic of Poland, "Cracow Proliferation Security Initiative," accessed at: http://www.psi.msz.gov.pl/files/doc/PSIgeneralInfowww1.pdf?PHPSESSID=d2a6a2094374561b2f8ebd7807082b63.

[5] Ibid.

[6] Government of Canada, "Introduction," Proliferation Security Initiative, http://www.proliferationsecurity.info/introduction.html.

[7] British American Security Information Council, "Proliferation Security Initiative (PSI): Combating Illicit WMD Trafficking," accessed at: http://www.basicint.org/nuclear/counterproliferation/psi.htm.

[8] Richard Bond, "The Proliferation Security Initiative: Three Years On," BASIC Notes 2 August 2006, accessed at: http://www.basicint.org/pubs/Notes/BN060802.pdf.

[10] US Department of State, "Ship Boarding Agreements," Proliferation Security Initiative, accessed at: http://www.state.gov/t/np/c12386.htm.

[11] "Flags of Convenience," CBC News, March 17, 2006, accessed at: http://www.cbc.ca/news/background/martin_paul/flagsofconvenience.html.

[12] "Nuclear Black Markets: Pakistan, A.Q. Khan and the Rise of Proliferation Networks," The International Institute for Strategic Studies, 2007, p.76..

[13] United Nations Security Council, "Resolution 1540 (2004)," April 28, 2004, accessed at: http://www.un.org/docs/sc/unsc_resolutions04.html.

[14] US Department of State, "PSI: Statement of Interdiction Principles," op. cit., note 1.

[15] United Nations, United Nations Convention on the Law of the Sea, (December 10, 1982), accessed at: http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf. The United States has not yet ratified the treaty. However, much of it is viewed as codifying customary international law on the subject.

[16] International Maritime Organization, Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, (November 1, 2005), available from the IMO Library.

[17] US Department of State, "International Conference Amends Maritime Treaties on Unlawful Acts," October 27,2005, accessed at: http://usinfo.state.gov/is/Archive/2005/Oct/28-980286.html.

[18] The 2 ratifying countries are the Cook Islands and St. Kitts & Nevis.

[19] United Nations, United Nations Convention on the Law of the Sea, op. cit. note 17. Articles 95 & 96.

[20] The White House, "Fact Sheet: PSI," op. cit., note 1.

[21] In April 2003, Australian intelligence forces seized a ship (the Pong Su) owned by North Korea in Australian territorial waters, captured $50 million worth of heroin aboard the ship, and arrested 30 crew members, including a member of North Korea's Workers Party. "N Korea accused over drugs haul," BBC News, May 2, 2003, accessed at: http://news.bbc.co.uk/1/hi/world/asia-pacific/2994849.stm. In March 2003, Japanese Defense Forces boarded a North Korean fishing boat inside Japan's waters and seized hundreds of pounds of methamphetamines. Charles R. Smith, "North Korean Heroin," NewsMax.com, May 7, 2003, accessed at: http://www.newsmax.com/archives/articles/2003/5/7/30830.shtml.

[22] "Proliferation Security Initiative Participants," Bureau of International Security and Nonproliferation, US Dept. of State, Washington, DC. Accessed at: http://www.state.gov/t/isn/c19310.htm.

[23] The White House, "President's Statement on the Proliferation Security Initiative," June 23, 2006, accessed at: http://www.whitehouse.gov/news/releases/2006/06/20060623.html.

[24] International Transportation Workers' Federation, "Flags of Convenience Campaign," accessed at: http://www.itfglobal.org/flags-convenience/index.cfm.

[25] British American Security Council, "PSI . . .," op. cit., note 7.

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Last Updated on May 31, 2007