PSI and Interdictions

I ain’t no lawyer, but I thought I’d try and provide an answer to a comment made the other day in response to “this post”:
I thought I would make a post out of my response, lest it be lost in the comments section.

Hass said:

Sorry but there is a great deal of debate over the legality of PSI – even in its present form. The PSI docs claim that it is consistent with international law however under Article 110 of the Law of the Sea Convention the interdiction of vessels is legally only permitted if they’re engaged in five possible activities, all of which are themselves illegal such as carrying contraband (drug trafficking on the high seas is prohibited by the 1988 Vienna Convention.) Otherwise interdiction requires the consent of the flag State in international waters.

The US has tried to fit the PSI into international law by dressing it up in the language of international law and later by claiming it constitutes “self-defense” but few are buying that. Even some in the US worry that it could just as easily be applied to the US.
Since the PSI is selectively applied to states which are designated (by whom?) of “proliferation concern” this raises even more doubts that the PSI constitutes a general norm or standard of international law. It is at best a multilateral agreement which is enforceable only among its participants but which is otherwise contrary to international law

First of all, arguing that there is a “debate” about the legality of interdictions isn’t the same thing as the argument made in the original comment. Leave the goalposts where they are, please.

[Hass originally said, “But hasn’t the Bush administration instituted the “Proliferation Security Initiative” outside of the UN Law of the Sea system to (illegally) interdict missiles and other “wmd-related” material from going to countries we don’t like on an ad hoc basis?”]

Second, I’d like to see how widespread any debate over the PSI’s legality really is. According to “this State Dept. fact sheet”:, 60+ countries have voiced support for the PSI, which includes “this statement of principles.”:

There _has_ been a debate about the legality of on interdictions on the high seas. But that’s not really the focus of PSI. To the extent that the initiative deals with those sorts of interdictions, it works within existing legal authority by, for example, U.S. bilateral boarding agreements.

As my colleague Wade Boese “has written”:

Legal Authority: The initiative does not empower countries to do anything that they previously could not do. Most importantly, PSI does not grant governments any new legal authority to conduct interdictions in international waters or airspace. Such interdictions may take place, but they must be confined to what is currently permissible under international law. For example, a ship can be stopped in international waters if it is not flying a national flag or properly registered. It cannot be stopped simply because it is suspected of transporting WMD or related goods. PSI is primarily intended to encourage participating countries to take greater advantage of their own existing national laws to intercept threatening trade passing through their territories and where they have jurisdiction to act. In situations where the legal authority to act may be ambiguous, Bolton said participants might go to the UN Security Council for authorization.[3]

PSI participants are working to expand their legal authority to interdict shipments by signing bilateral boarding agreements with select countries to secure expedited processes or pre-approval for stopping and searching their ships at sea. The United States has concluded such agreements with Belize, Croatia, Cyprus, Liberia, the Marshall Islands, and Panama. Liberia and Panama possess the largest fleets of registered ocean-going vessels in the world.

To be fair, “there is evidence”: that Bolton was pushing the boundaries on high-seas interdictions:

bq. Still, Undersecretary of State for Arms Control and International Security John Bolton holds out the hope that the initiative will lead countries to act more aggressively within current law and, in effect, change it. In comments published Oct. 21 by The Wall Street Journal, Bolton said, “As state practice changes, customary international law changes.”

For more information, Jofi Joseph dropped a bunch of PSI knowledge “here”:

13 thoughts on “PSI and Interdictions

  1. hass

    Wow I get a whole post debunking me! But not so fast. Its pretty clear that while the current practioners of PSI assert they are acting within the boundaries of international law, the long-term intent of the US is to press the envelope and expand PSI beyond existing LOS principles. The Arms Control article cited somewhat disingenuously claims this concern about the future course of PSI is merely “a certain paranoia” but it also essentially admits that the “membership” in PSI is is kept intentionally limited, that the structure of PSI is kept informal so as to side-step legal issues and restrictions, while at the same time measures are taken to make PSI into a new legal standard – and also since few countries maintain blue water navies with worldwide reach, the enforcement provisions will necessarily be discriminatory.
    The end result: a new international law where some countries get to veto the shipping of other countries based on primarily political considerations, using vague and self-serving definitions such as “WMD related material” which is selectively enforced. You don’t have to be “paranoid” to see that – and in fact the article tries to justify the double-standard by claiming that “reasonab’e observers” should accept such a double standard when it comes to Iran, or disregard it when it comes to India or Israel.

  2. Jofi Joseph

    As my article mentioned, the PSI employs a variation of the “broken tail light” approach used by many police departments. You are a police officer, and you know that the car you are tailing is being driven by a drug dealer. You cannot just pull him over, though, without concrete evidence. But then you notice that his rear light is not working, or he is not wearing a seat belt, or some other minor traffic violation. That allows you to pull him over, look into his car, and notice the drugs/weapons/or other illicit items in the car.

    PSI is strictly within the confines of the international law, but it does involve a selective application of existing authorities. The U.S. can stop an unflagged North Korean tanker because that is a violation of international law. It would likely not do so for an unflagged British tanker, even though it has the same authority.

    One can criticize PSI for this type of discriminatory application, but that is not a serious argument. PSI exploits existing legal authorities in a creative manner to crack down on proliferation. Where it does get tricky, I fully admit, is when it is used to only crack down on certain types of proliferation, e.g. depending upon who is doing the proliferating.

  3. hass

    Interesting that you should bring up a police-traffic analogy:

    “As a domestic law analogy, imagine a statute authorizing police forces to stop and search all automobiles traveling on public roads that are suspected of carrying children to soccer practice, and providing for the seizure of all athletic equipment found in the vehicle. The reverse logic in this hypothetical of sanctioning interdictions of substantively legal activities is readily apparent. The application to the PSI context is of course that while trafficking in WMD-related items and technologies is perhaps more sinister than the conduct described above, in many cases it is in fact no more illegal under relevant law and therefore as illustrative of corrupted logic in the establishment of interdiction principles. In the domestic context, such enforcement action upon activity not substantively illegal would likely be in breach of constitutional or other foundational protections against unreasonable searches and seizures and would constitute a failure to accord due process of law to the subject of the enforcement action. These rights of course do not exist in a general sense in international law, and certainly not in the particular context of the commercial transit of goods under the law of the sea. Still, the presence of such analogous protections under the domestic legal frameworks of most liberal democratic states (i.e., as general principles of law) might bolster arguments made by a target of PSI interdiction activities before an international tribunal about the illegitimate character of such activities under LOS Convention Article 110.”
    30 YJIL 507

    But the problem isn’t simply with the discriminatory enforcement, nor with the selective application, nor with the vague terms. The Bush administration is pushing PSI as part of a broader right to engage in “pre-emptive self-defense” which, as with the PSI, essentially means extending (aka breaking) international law to “legalizes” the naked exercise of power by some states against other states, much as it has tried to justify attacking Iraq, and now claims a “right” to nuke Iran:

    “In most circumstances, foreign-flag vessels suspected of transporting missiles and WMD on the high seas will not constitute a threat that is ‘instant, overwhelming, leaving no choice of means, and no moment of deliberation.’ However, the United States has recently sought, particularly through its September 2002 National Security Strategy, to extend the general right of preemptive self-defense to more distant and uncertain challenges. Although this effort is not specific to the law of the sea, it is framed in the context of the combined threat from global terrorism and WMD…
    John Bolton, the architect of PSI, asserted on several occasions during the early stages of the initiative that an extended right of preemptive self-defense was part and parcel of it. For example, during the PSI meeting in Brisbane in July 2003, he told The Australian that the United States had ‘a general right of self-defence if there was a serious belief that the North Korean vessels were carrying material for use in WMDs.’ Similarly, in a speech to the Federalist Society in November 2003, he said, with specific reference to high seas interdictions of vessels flagged by nonconsenting states:
    ‘Where there are gaps or ambiguities in our authorities, we may consider seeking additional sources for such authority, as circumstances dictate. What we do not believe, however, is that only the Security Council can grant the authority we need, and that may be the real source of the criticism we face.’ ”
    98 AMJIL 526

    In any case a very substantial debate does indeed exist on the legality of PSI. Here are some other matierial worth reading:

    107 (2005).
    Mark R Shulman, The Proliferation Security Initiative and the evolution of the law on the use of forceHouston Journal of International Law, Vol 28 p. 771, (Spring, 2006)
    Samuel E. Logan, The Proliferation Security Initiative: Navigating the Legal Challenges, 14 J. Transnat’l L. & Pol’y 253, 256-63 (2005)
    Ian Patrick Barry, The Right of Visit, Search and Seizure of Foreign Flagged Vessels on the High Seas Pursuant to Customary International Law: A Defense of the Proliferation Security Initiative, 33 Hofstra L. Rev. 299, 301 (2004)
    Daniel H. Joyner, The Proliferation Security Initiative: Nonproliferation, Counterproliferation, and International Law, 30 Yale J. Int’l L. 507 (2005).

  4. Caitlyn

    While the Law of the Sea Convention (UNCLOS) provides for a limited number of reasons for which a vessel may be stopped and boarded by vessels not of the flag state, the Convention also provides that states party to the Convention can negotiate agreements among themselves within the constraints of the convention. In line with this, the PSI provides a mechanism to allow states party to the PSI to stop vessels with the permission of the flag states that are also party to the PSI. As such, this is not a violation of international law as expressed in the UN Convention on the Law of the Sea or its predecessor, the Geneva Convention on the High Seas. The devil is in the details, of course, but the PSI was crafted specifically to respect UNCLOS.

  5. Muskrat

    I’m just waiting for “Cops: South China Sea! Next on Fox!”

    I expect to see some meth-addled North Korean “trawler” captain, caught in his t-shirt, mumbling “No, man, that’s not my high-precision rotor hub. I don’t know how that got there.”

    Bad boys, bad boys….

  6. abcd


    If you are so concerned with international law, why are you attempting to lump India and Israel (why not Pakistan?) in the same category as Iran? I’m sure you are somewhere trying to make a point about proliferation…



    ***** POLICY FORUM ONLINE *****

    -“The Proliferation Security Initiative in Perspective”
    by Mark J. Valencia

    May 25th, 2006

    Read the article

    Nautilus invites your contributions to this
    forum, including any responses to this report.
    I. Introduction
    II. Essay by Mark J. Valencia
    III. Nautilus invites your responses

    I. Introduction

    Mark J. Valencia, a Maritime Policy Analyst in
    Kaneohe, Hawaii and Nautilus Institute Senior
    Associate, writes, “Most of the PSI’s
    shortcomings stem from its ad-hoc, extra-UN, US
    driven nature. Bringing it into the UN system
    would rectify many of these shortcomings by
    loosening US control, enhancing its legitimacy,
    and engendering near universal support.”

    The views expressed in this article are those of
    the author and do not necessarily reflect the
    official policy or position of the Nautilus
    Institute. Readers should note that Nautilus
    seeks a diversity of views and opinions on
    contentious topics in order to identify common ground.

    II. Essay by Mark J. Valencia

    -“The Proliferation Security Initiative in Perspective”
    by Mark J. Valencia

    As the US ratchets up pressure against Iran and
    North Korea for their alleged nuclear
    proliferation activities, the Proliferation
    Security Initiative (PSI) may become a leading
    coercive tool in its arsenal. The PSI is an
    activity initiated by the Bush Administration to
    prevent weapons of mass destruction (WMD), their
    delivery systems and related materials from
    reaching or leaving states or sub-state actors
    ‘of proliferation concern’. Reflecting the Bush
    Administration’s disdain for the UN, it was
    conceived, originated and implemented outside the UN system.

    Indeed, US State Department officials and some
    analysts have proclaimed the PSI a successful
    example of an ad hoc extra-UN ‘coalition of the
    willing’. But their oft-repeated specific claims
    of success do not bear up well under close examination. Some examples:

    * The PSI has the support of nearly 80 countries.
    As Sharon Squassoni of the US Congressional
    Research Service points out, it is unclear what
    “support” means and how robust it is. The
    ‘concrete steps’ for contribution to the PSI
    listed on the US State Department web site are
    rather vague and conditional. First and foremost,
    participating states are encouraged to formally
    commit to and publicly endorse, if possible, the
    Statement of Interdiction Principles. Follow-up
    steps are also replete with conditional language
    such as ‘indicate willingness’, ‘as appropriate’,
    ‘might contribute’, and ‘be willing to consider’.

    It is nigh impossible to obtain an ‘official’
    list of PSI “supporting” countries. Apparently
    this is because some “supporting” states have not
    publicly endorsed the PSI Principles. Reasons
    given include not perceiving PSI as a top
    security priority and wanting to avoid possible
    reprisals for co-operating with the United
    States. This reluctance in itself indicates less
    than stalwart support in general as well as in
    time of specific need. Indeed given the
    “flexibility” of co-operation, many, if not most
    of these 80 so-called “supporters” would not
    automatically participate in interdictions of
    vessels or aircraft at the behest of the United
    States. Thus in a pinch, ‘support’ could easily evaporate.

    * The PSI has widespread geographic participation.
    While there is indeed a growing list of nations
    willing to associate themselves with different
    aspects of the PSI on a case by case basis,
    support in Asia – a major focus of proliferation
    concern – is weak. Despite considerable US
    pressure to fully and publicly participate, key
    countries like China, India, Pakistan, Indonesia
    and Malaysia remain outside the ‘coalition of the
    willing’. And the co-operation of others that
    have nominally joined—-like Japan, South Korea
    and Russia—-for various reasons is lukewarm at best.

    * The PSI has been successful.
    There is insufficient public information and no
    objective measure of PSI success or
    failure. Thus it is unclear how the much-touted
    12 PSI interdictions in three years compares to
    efforts prior to the Initiative, or if an
    increase in successful interdictions is due to an
    increase in proliferation activity. The 12
    interdictions could actually be considered a
    rather poor result compared to the Stanford
    Database estimate of an average 65.5 nuclear
    trafficking incidents per year. We do know that
    contrary to assertions by some US officials, the
    October 2003 interdiction of WMD-related
    materials bound for Libya was most likely not due
    to the PSI. Rather it was the result of an
    unrelated effort to get Libya to abandon its ambition to possess WMD.

    * UN Secretary General Kofi Anan supports the PSI.

    This is a half-truth. Anan sees the PSI as an
    effort to “fill a gap in our defenses” against
    nuclear proliferation. But he qualifies this
    position with the preference that PSI issues and
    actions be addressed and undertaken collectively
    through and by the United Nations. He has also
    consistently stated in this context that the
    Security Council must be ‘the sole source of
    legitimacy on the use of force’. To cite Anan’s
    position without its qualifications is misleading at best.

    * UNSC Resolution 1540 confirms UN support of the PSI.
    The resolution that passed was a much watered
    down version of the original submitted by the
    United States. For example, under a threat of
    veto by China, the United States dropped a
    provision specifically authorizing the
    interdiction of vessels suspected of transporting
    WMD. The resolution does not specifically
    mention the PSI and does little to strengthen its
    effectiveness because it focuses on non-state
    actors. Moreover most UN members have failed to
    meet the deadline to submit required reports on
    their efforts to comply with the resolution,
    i.e., strengthening their domestic laws
    criminalizing the spread of WMD as well as their export and border controls.

    Contrary to these misleading claims of success,
    the PSI has been criticized for insufficient
    public accountability, stretching if not breaking
    the limits of existing international law,
    undermining the UN system, impeding legal trade,
    being politically divisive, and having limited
    effectiveness. In reality it remains a
    US-initiated and driven ad-hoc activity conceived
    primarily to deter trade in WMD components and
    ‘related materials’ to and from North Korea—-and now Iran.

    Most of the PSI’s shortcomings stem from its
    ad-hoc, extra-UN, US driven nature. Bringing it
    into the UN system would rectify many of these
    shortcomings by loosening US control, enhancing
    its legitimacy, and engendering near universal
    support. Whether or not the PSI is formally
    brought into the UN system, its reach and
    effectiveness could be improved by eliminating
    double-standards, e.g., when it comes to India,
    Pakistan and Israel, and increasing
    transparency. Needed is a neutral organization
    to assess intelligence, co-ordinate and fund
    activities, and make decisions regarding specific
    or generic interdictions. Such an organization
    could provide more objective and legitimate
    definitions of states “of proliferation concern”
    and “good cause” (for interdiction). It would
    also help avoid erroneous judgments, resolve
    disagreements, provide consistency and a concrete
    structure and budget, and ensure compliance with
    international law—-or be a vehicle for any agreed changes therein.

    III. Nautilus Invites Your Responses

    The Northeast Asia Peace and Security Network
    invites your responses to this essay. Please send
    responses to: Responses will
    be considered for redistribution to the network
    only if they include the author’s name, affiliation, and explicit consent.

    napsnet mailing list

  8. hass

    Caitlyn – indeed countries can enter into bilateral agreements to search each others’ vessels – France and the US can search each other all they want. The problem occurs when they try to assert some sort of right and authority to search other nations’ vessels.

  9. Robot Economist

    Why hasn’t anyone pointed out that PSI was almost entirely John Bolton’s baby and it hasn’t really done much since he left Foggy Bottom for Turtle Bay?

    Besides a few joint exercises far away from their intended targets, I haven’t seen much PSI activity since it was “created” back in 2003. Given that PSI members don’t want to move beyond its voluntary, ad-hoc approach, it will probably just fade into the background in a few years. Heck, it wouldn’t be surprising if PSI’s only lasting impact are the boarding agreements the U.S. signed with the six main flags of convenience.

    Is it really worth arguing over the legality of a program that isn’t going anywhere?

  10. jill

    Lugar introduced a bill (The Cooperative Proliferation Detection, Interdiction Assistance, and Conventional Threat Reduction Act of 2006 )in the Senate this year, which is on the Senate calendar, that will authorize the president (why not empower him just a bit more?) to establish a program that will give funding to “friendly foreign countries” participating in PSI activities like seizing cargo. This bill would give the program that it establishes 25 % of all nonproliferation money from the current FY2007 appropriation bill. The cool thing about this bill for those that work at thinktanks is “such activities may be implemented through nongovernmental and international organizations.” So you get money to do PSI stuff. Theres a lot of other things happening, mostly the administration is trying to get the “friendly nations” to freeze assets. Funny that states are not bound by any international law, but friendly states will be rewarded and the ones that arent following UNSCR 1540 will soon be identified by the 1540 Committee. UNSCR 1540 established a committee (the 1540 Committee). UNSCR 1673 just extended its mandate for two years and asked it to formally report to the Security Council, no later than April 27, 2008, a “compilation of information on the status of States’ implementation of all aspects of resolution 1540.”

  11. hass

    ABCD – Speaking of Pakistan: as with Israel and now India, the US had decided show the usual double standard and to play dumb about their nuke programs. Here, have a laugh:

    “Pakistan has given the Reagan
    Administration ‘’absolute assurances’’ that it is
    neither developing nor planning to develop nuclear
    weapons, Under Secretary of State James L. Buckley
    said today.

    ‘’I was assured by the ministers and by the President
    himself that it was not the intention of the Pakistan
    Government to develop nuclear weapons,’’ he told a
    Senate Government Affairs subcommittee.

    Mr. Buckley added that Pakistan, which has not signed
    a 1968 treaty to curb the spread of nuclear weapons
    technology, had made no promise not to seek a
    weapons-making ability or nuclear explosions such as
    one by India in 1974.

    ‘’One has to make a distinction between the nuclear
    option and nuclear weapon,’’ he told the Senate panel.

    Mr. Buckley’s testimony was in the context of the
    United States’ policy on the nuclear spread, now under
    review. At the end of a visit Mr. Buckley made to
    Pakistan earlier this month, the two sides announced a
    $3 billion aid package, including the supply of
    advanced F-16 fighter planes. The announcement made no
    mention of any pledge by Pakistan not to develop
    nuclear weapons.

    Senator Charles H. Percy, Republican of Illinois, told
    Mr. Buckley that it was the sense of Congress that aid
    would have to be terminated if Pakistan detonated any
    kind of nuclear device. Mr. Buckley said he had not
    stated this explicitly in his talks with the
    Pakistanis, but he added, ‘’They are familiar with our

    Pakistan has grown in security significance for the
    United States since 1979 when Washington lost its
    influence in Iran during the Islamic revolution and
    the Soviet Union sent 85,000 troops into Afghanistan
    to help the Marxist Government there quell a

    In another area, Mr. Buckley told the Senate panel
    that the United States was ‘’in total absolute
    disagreement’’ with a speech yesterday by President
    Saddam Hussein of Iraq, who called on ‘’all
    peace-loving nations of the world ‘’ to help Arabs
    acquire nuclear weapons to balance Israel’s reputed
    nuclear ability.

    ‘’We do not accept any proposal or proposition that
    there is any justification for any nation to acquire
    this technology,’’ Mr. Buckley stated. Pact With India
    May Be Ended

    Mr. Buckley said the United States might soon end its
    18-year-old nuclear cooperation agreement with India.
    He said that officials of the two countries would meet
    to discuss the 1963 agreement to supply fuel for
    India’s reactor at Tarapur and that termination of the
    arrangement was ‘’one item on the agenda.’’

    A 1978 law requires the United States to cut off the
    shipment of nuclear fuel and technology to countries
    that do not support the 1968 nuclear weapons curb,
    which India has declined to do. The Carter
    Administration convinced the Senate by a two-vote
    margin last year to permit one more shipment of 38
    tons of enriched uranium for the Tarapur reactor…Senator Glenn and others expressed skepticism about
    Pakistan’s assurances when Mr. Buckley said he had
    been told that Pakistan needed commercial nuclear
    power and its nuclear fuel was not of sufficiently
    high quality to make weapons.

    Senator Glenn said Pakistan’s plans for a 130-megawatt
    nuclear plant could not account for what he called a
    clandestine search for nuclear equipment around the
    world… The Reagan Administration has asked Congress to change
    the law that bars military aid to countries that
    refuse to support the nuclear weapons curb or to
    accept international safeguards. The Senate Foreign
    Affairs Committee recently agreed to exempt Pakistan
    from the law, but its House counterpart has postponed
    action on the request. “

    By JUDITH MILLER, New York Times 25 June 1981

  12. hass

    ABCD – did I forget to mention Egypt too?

    “U.N. Nuclear Watchdog Chides Egypt
    15 February 2005
    The New York Times
    Late Edition – Final

    VIENNA, Feb. 14 (Reuters)—The United Nations’ nuclear
    monitoring agency chided Egypt in a confidential
    report on Monday for failing to declare nuclear sites
    and materials but said its inspections had so far
    found no evidence that Egypt was seeking nuclear

    The International Atomic Energy Agency said in the
    report that Egypt had not understood that it had to
    declare some nuclear sites and materials, including a
    plant for separating plutonium, which can be used in
    an atomic weapon…”

  13. Keith White

    Wade Boese also rights this is his recent article “Interdiction Initiative Results Obscure”:

    India , however, is rankled by Washington’s public linking of PSI with negotiations on a U.S.-Indian civil nuclear cooperation pact. China, as well as India and Indonesia, has expressed concerns about the legality of PSI, but U.S. officials have described Beijing as helpful on interdictions. Indonesian Minister of Defense Yuwono Sudarsono wrote June 13 in The Jakarta Post that the country’s leadership is weighing “partial and ad hoc adherence to the PSI on a case by case basis.”


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