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”:http://www.armscontrolwonk.com/1194/rumsfeld-reports-on-iaea.
I thought I would make a post out of my response, lest it be lost in the comments section.
Sorry but there is a great deal of debate over the legality of PSI â€“ 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 theyâ€™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 â€œself-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 â€œproliferation 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, â€œBut hasnâ€™t the Bush administration instituted the â€œProliferation Security Initiative” outside of the UN Law of the Sea system to (illegally) interdict missiles and other â€œwmd-related” material from going to countries we donâ€™t like on an ad hoc basis?”]
Second, I’d like to see how widespread any debate over the PSIâ€™s legality really is. According to “this State Dept. fact sheet”:http://www.state.gov/t/isn/rls/fs/46839.htm, 60+ countries have voiced support for the PSI, which includes “this statement of principles.”:http://www.state.gov/t/np/rls/fs/23764.htm
There _has_ been a debate about the legality of on interdictions on the high seas. But thatâ€™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”:http://www.armscontrol.org/factsheets/PSI.asp:
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.
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”:http://www.armscontrol.org/act/2003_11/PSI.asp 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, â€œAs state practice changes, customary international law changes.”
For more information, Jofi Joseph dropped a bunch of PSI knowledge “here”:http://www.armscontrol.org/act/2004_06/Joseph.asp.
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 â€œa certain paranoia” but it also essentially admits that the â€œmembership” 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 â€“ 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 â€œWMD related material” which is selectively enforced. You donâ€™t have to be â€œparanoid” to see that â€“ and in fact the article tries to justify the double-standard by claiming that â€œreasonabâ€™e observers” should accept such a double standard when it comes to Iran, or disregard it when it comes to India or Israel.
As my article mentioned, the PSI employs a variation of the â€œbroken 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.
Interesting that you should bring up a police-traffic analogy:
â€œAs 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 isnâ€™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 â€œpre-emptive self-defense” which, as with the PSI, essentially means extending (aka breaking) international law to â€œlegalizes” the naked exercise of power by some states against other states, much as it has tried to justify attacking Iraq, and now claims a â€œright” to nuke Iran:
â€œIn most circumstances, foreign-flag vessels suspected of transporting missiles and WMD on the high seas will not constitute a threat that is â€˜instant, overwhelming, leaving no choice of means, and no moment of deliberation.â€™ 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 WMDâ€¦
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 â€˜a general right of self-defence if there was a serious belief that the North Korean vessels were carrying material for use in WMDs.â€™ 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:
â€˜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.â€™ ”
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:
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. Transnatâ€™l L. & Polâ€™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. Intâ€™l L. 507 (2005).
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.
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….
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? Iâ€™m sure you are somewhere trying to make a point about proliferationâ€¦
NORTHEAST ASIA PEACE AND SECURITY NETWORK
***** 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.
II. Essay by Mark J. Valencia
III. Nautilus invites your responses
Mark J. Valencia, a Maritime Policy Analyst in
Kaneohe, Hawaii and Nautilus Institute Senior
Associate, writes, â€œMost of the PSIâ€™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
â€˜of proliferation concernâ€™. Reflecting the Bush
Administrationâ€™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 â€˜coalition of the
willingâ€™. 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
â€œsupport” means and how robust it is. The
â€˜concrete stepsâ€™ 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 â€˜indicate willingnessâ€™, â€˜as appropriateâ€™,
â€˜might contributeâ€™, and â€˜be willing to considerâ€™.
It is nigh impossible to obtain an â€˜officialâ€™
list of PSI â€œsupporting” countries. Apparently
this is because some â€œsupporting” 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
â€œflexibility” of co-operation, many, if not most
of these 80 so-called â€œsupporters” would not
automatically participate in interdictions of
vessels or aircraft at the behest of the United
States. Thus in a pinch, â€˜supportâ€™ 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 â€“ a major focus of proliferation
concern â€“ is weak. Despite considerable US
pressure to fully and publicly participate, key
countries like China, India, Pakistan, Indonesia
and Malaysia remain outside the â€˜coalition of the
willingâ€™. And the co-operation of others that
have nominally joinedâ€”-like Japan, South Korea
and Russiaâ€”-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 â€œfill 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 â€˜the sole source of
legitimacy on the use of forceâ€™. To cite Ananâ€™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
â€˜related materialsâ€™ to and from North Koreaâ€”-and now Iran.
Most of the PSIâ€™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 â€œof proliferation concern”
and â€œgood 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 lawâ€”-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: firstname.lastname@example.org. Responses will
be considered for redistribution to the network
only if they include the authorâ€™s name, affiliation, and explicit consent.
napsnet mailing list
Caitlyn â€“ indeed countries can enter into bilateral agreements to search each othersâ€™ vessels â€“ 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 nationsâ€™ vessels.
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?
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 â€œfriendly 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 â€œsuch 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 â€œfriendly 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 â€œcompilation of information on the status of Statesâ€™ implementation of all aspects of resolution 1540.”
ABCD â€“ 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:
â€œPakistan has given the Reagan
Administration â€˜â€™absolute assurancesâ€™â€™ that it is
neither developing nor planning to develop nuclear
weapons, Under Secretary of State James L. Buckley
â€˜â€™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,â€™â€™ 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.
â€˜â€™One has to make a distinction between the nuclear
option and nuclear weapon,â€™â€™ he told the Senate panel.
Mr. Buckleyâ€™s testimony was in the context of the
United Statesâ€™ 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
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, â€˜â€™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 â€˜â€™in total absolute
disagreementâ€™â€™ with a speech yesterday by President
Saddam Hussein of Iraq, who called on â€˜â€™all
peace-loving nations of the world â€˜â€™ to help Arabs
acquire nuclear weapons to balance Israelâ€™s reputed
â€˜â€™We do not accept any proposal or proposition that
there is any justification for any nation to acquire
this technology,â€™â€™ 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
Indiaâ€™s reactor at Tarapur and that termination of the
arrangement was â€˜â€™one item on the agenda.â€™â€™
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 reactorâ€¦Senator Glenn and others expressed skepticism about
Pakistanâ€™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 Pakistanâ€™s plans for a 130-megawatt
nuclear plant could not account for what he called a
clandestine search for nuclear equipment around the
worldâ€¦ 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. “
.S. CITES PAKISTANI PLEDGE NOT TO MAKE ATOM ARMS
By JUDITH MILLER, New York Times 25 June 1981
ABCD â€“ did I forget to mention Egypt too?
â€œU.N. Nuclear Watchdog Chides Egypt
15 February 2005
The New York Times
Late Edition â€“ Final
VIENNA, Feb. 14 (Reuters)â€”The United Nationsâ€™ 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 weaponâ€¦”
Wade Boese also rights this is his recent article â€œInterdiction Initiative Results Obscure”:
India , however, is rankled by Washingtonâ€™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 countryâ€™s leadership is weighing â€œpartial and ad hoc adherence to the PSI on a case by case basis.”