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The U.S.-Led Proliferation SecurityInitiative and UNCLOS: Legality,Implementation, and an AssessmentYann-Huei Song aa Institute of European and American Studies Academia SinicaTaipei , TaiwanPublished online: 31 Jan 2007.

To cite this article: Yann-Huei Song (2007) The U.S.-Led Proliferation Security Initiative and UNCLOS:Legality, Implementation, and an Assessment, Ocean Development & International Law, 38:1-2,101-145, DOI: 10.1080/00908320601071421

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Ocean Development & International Law, 38:101–145, 2007Copyright © Taylor & Francis Group, LLCISSN: 0090-8320 print / 1521-0642 onlineDOI: 10.1080/00908320601071421

The U.S.-Led Proliferation Security Initiativeand UNCLOS: Legality, Implementation,

and an Assessment

YANN-HUEI SONG

Institute of European and American StudiesAcademia Sinica Taipei, Taiwan

This article examines the relationship between the U.S.-led Proliferation Security Ini-tiative (PSI) and the 1982 United Nations Convention on the Law of the Sea (UNCLOS).It attempts to answer the questions of whether the PSI is legal or illegal under UNC-LOS and whether U.S. accession to UNCLOS would enhance or create difficulties forthe implementation of the PSI. The author concludes that U.S. accession to the Con-vention would not affect adversely the implementation and effectiveness of the PSI. Onthe contrary, accession to UNCLOS could help increase U.S. credibility and leader-ship in dealing with the threat to international peace and security posed by weapons ofmass destruction proliferation. It also suggests that all the relevant information needsto be gathered and examined carefully in order to answer the question of whether a PSIinterdiction action is legal under UNCLOS or not.

Keywords Proliferation Security Initiative (PSI), 1982 United Nations Convention onthe Law of the Sea (UNCLOS), United States, weapons of mass destruction (WMD)

Introduction

The Proliferation Security Initiative (PSI), which was announced by President George W.Bush in Krakow, Poland, on May 31, 2003, is a U.S.-led multilateral effort that aims tointerdict shipments of weapons of mass destruction (WMD), their delivery systems, andrelated materials flowing to and from states and nonstate actors of proliferation concern.1

Ten nations initially were part of the Initiative in 20032 and seven others subsequentlyfollowed in 2004 and 2005 (see Table 1).3 The United States noted in June 2006 that morethan 70 countries had indicated their support for PSI.4 While President Bush and officialsfrom his administration claim that the Initiative is yielding results and has a track record ofsuccess,5 there are critics who question this assessment.

One of these critics, Sharon Squassoni, remarked that “[t]he Bush Administration oftenstates that more than 60 nations support the initiative, but it is unclear what ‘support’ means”and that “[s]ince its inception, there has been little by which to measure PSI’s success.”6

Joseph Cirincione and Joshua Williams argued that the PSI is useful in stopping shipments

Received 10 January 2006; accepted 28 April 2006.This article was originally presented at the International Workshop on the United States and

the United Nations Convention on the Law of the Sea, held at Institute of European and AmericanStudies, Academia Sinica, Teipei, Taiwan on December 2, 2005. It was further updated.

Address correspondence to Yann-huei Song, Research Fellow, Institute of European andAmerican Studies, Academia Sinica, Nankang 115, Taipei, Taiwan. E-mail yhsong@sinica.edu.tw

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Table 1

Countries Participating in the Proliferation Security Initiative

North America Europe Asia Pacific

Canada Denmark Australia∗

United States∗ France∗ Japan∗

Germany∗ SingaporeItaly∗ New ZealandThe Netherlands∗

NorwayPoland∗

Portugal∗

RussiaSpain∗

TurkeyUnited Kingdom∗

∗Core membersSource: Sharon Squassoni, “Proliferation Security Initiative (PSI),”

CRS Report for Congress, June 7, 2005, at 2; “Deep Sabre Rattling,”The New Zealand Herald, Aug. 20, 2005.

of large, observable objects, such as a boatload of centrifuges, but does little to catch smallbut deadly transfers, like a suitcase of plutonium.7 They also pointed out that the Initiativeis restricted by its limited geographic reach and legal scope, and that, while PSI enjoys thesupport of more than 60 countries, this apparent multilateral success is not as far-reachingas it sounds because these countries have simply issued general statements of support forthe Initiative.8 Another commentator has doubted the accuracy of the Bush administration’sassessment of the Initiative’s success, saying that it is difficult to know the real qualitativevalue of the 11 PSI interdictions9 in terms of added security due to a lack of evidence.10 InAugust 2005, Wade Boese, research director at the Arms Control Association, in a letter tothe Washington Times stated that:

PSI is a useful initiative, but the Bush administration should stop propagatingthis misleading claim of its success. Rather than exaggerating PSI’s accomplish-ments and embellishing its own nonproliferation credentials, the administrationshould let the record speak for itself.11

The relationship between the PSI and the United Nations Convention on the Law ofthe Sea (UNCLOS)12 has also been a controversial issue in the U.S. domestic debate aboutwhether the United States should become a party to the Convention (See infra notes 15–19and 143–153.). UNCLOS, which is considered “[a] Constitution for the Oceans,”13 wasopened for signature on December 10, 1982, and entered into force on November 16, 1994.Designed to regulate the use and utilization of 70% of the earth’s surface, UNCLOS hasbeen praised as the most comprehensive political and legislative work ever undertaken bythe United Nations. Numerous new concepts related to the use of the oceans were developedin the Convention such as transit passage, archipelagic waters, the exclusive economic zone(EEZ), and the International Sea-Bed Authority. UNCLOS is also seen as a codification ofthe existing customary international laws of the sea. As of November 2, 2006, 152 states andentities are parties to the Convention.14 However, the United States is the only permanent

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The Proliferation Security Initiative and UNCLOS 103

member of the UN Security Council, the only member of NATO, and the only PSI corepartner that is not a party to UNCLOS.

Some commentators and maritime security experts in the United States have assertedthat activities envisioned as being part of the PSI would be inconsistent with UNCLOS,and that U.S. accession to UNCLOS therefore would prevent or inhibit the United Statesfrom implementing PSI.15 There are also Republicans in the U.S. Senate, such as SenatorJames Inhofe (R-OK) and Senator John Ensign (R-NV), who opposed U.S. accession toUNCLOS on the basis that it could hinder the U.S.-led PSI.16 However, officials fromthe U.S. Navy, the Department of Defense, and the Department of State, who testifiedat the six hearings on UNCLOS held during the 108th Congress, clarified: that PSI isconsistent with UNCLOS; that U.S. accession to the Convention would not present anydifficulties for implementation of the Initiative; and that the United States becoming aparty to UNCLOS would strengthen the interdiction efforts under the PSI.17 In January2005, during the Senate nomination hearing for Condoleezza Rice as U.S. secretary ofstate, Senator Richard G. Lugar (R-IN) raised a number of law of the sea questions, whichincluded the relationship between the PSI and UNCLOS. Rice pointed out that the Initiativerequires participating parties to act consistently with national legal authorities and “relevantinternational law and frameworks,” which includes the law as it is reflected in UNCLOS.18

John Bolton, during his April 2005 nomination hearing to become U.S. representative tothe United Nations, repeated the Bush administration’s position saying that U.S. accessionto UNCLOS would not have any negative impact whatsoever on the implementation of theInitiative.19

Based on these observations and accounts, several important questions arise with re-spect to the PSI and the relationship between the Initiative and UNCLOS. First, is the PSIlegal or illegal under the UNCLOS? Second, would U.S. accession to UNCLOS enhanceor create difficulties for the implementation of the PSI? And, finally, how should one assesswhether the PSI has been a success? The purpose of this article is to address these questions.

The Background on President Bush’s Announcement of the PSI

The September 11, 2001 attacks and subsequent anthrax attacks in the United States pro-foundly changed the Bush administration’s strategic thinking on national security. Thischange was reflected in The National Security Strategy of the United States of Americareleased by the White House in September 2002.20 Several months before its release, thechanges in U.S. strategic thinking on national security were noted in a speech by PresidentBush at West Point’s graduation ceremony:

The gravest danger to freedom lies at the perilous crossroads of radicalism andtechnology. When the spread of chemical and biological and nuclear weapons,along with ballistic missile technology—when that occurs, even weak statesand small groups could attain a catastrophic power to strike great nations. Ourenemies have declared this very intention, and have been caught seeking theseterrible weapons. They want the capability to blackmail us, or to harm us, or toharm our friends—and we will oppose them with all our power.21

There are three main strategies contained in the U.S. approach to countering WMDproliferation, namely: (1) proactive counterproliferation efforts to deter and defend againstthe threat before it is unleashed; (2) strengthened nonproliferation efforts to prevent roguestates and terrorists from acquiring the materials, technologies, and expertise necessary for

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WMD; and (3) effective consequence management to respond to the effects of WMD use,whether by terrorists or hostile states.22 More importantly, the United States “will enhancediplomacy, arms control, multilateral export controls, and threat reduction assistance thatimpede states and terrorists seeking WMD, and when necessary, interdict enabling tech-nologies and materials.”23 The United States will also continue to build coalitions to stoprogue states and their terrorist clients before they are able to threaten or use WMD againstthe United States, its allies, or its friends.24 In December 2002, the Bush administrationissued its National Strategy to Combat Weapons of Mass Destruction,25 which expands onthe tripartite strategy in the September 2002 National Security Strategy. The 2002 NationalStrategy to Combat WMD, among other things, highlights effective interdiction as a criticalpart of the strategy, stating

We must enhance the capabilities of our military, intelligence, technical, andlaw enforcement communities to prevent the movement of WMD materials,technology, and expertise to hostile states and terrorist organizations.26

Interdiction, however, raises questions related to the international law of the sea and otherrelevant international agreements.

Coinciding with the significant shift in U.S. WMD-related policy, there were two othermajor policy motives for the Bush administration decision to announce the PSI in May2003. First, there was the serious concern over the increasing proliferation of WMD andthe determination to take further actions to stop the flow of WMD, in particular, from NorthKorea.27 Second, there was the frustration that arose in December 2002 when Spain, alertedby the U.S. intelligence service, seized a shipment of 15 Scud missiles headed from NorthKorea to Yemen, but later permitted the shipment to continue because of the lack of authorityunder international law to detain the vessel carrying the missiles.28 President Bush statedin Krakow, Poland, on May 31, 2003 that:

[w]hen weapons of mass destruction or their components are in transit, we musthave the means and authority to seize them. So today I announce a new effort tofight proliferation called the Proliferation Security Initiative. The United Statesand a number of our close allies, including Poland, have begun working on newagreements to search planes and ships carrying suspect cargo and to seize illegalweapons or missile technologies. Over time, we will extend this partnership asbroadly as possible to keep the world’s most destructive weapons away fromour shores and out of the hands of our common enemies.29

The PSI and Its Development

What Is the PSI?

The PSI is an effort to reach an agreement among nations to allow searches of shipsand aircraft transferring or transporting suspected WMD-related cargo.30 According tothe Fact Sheet released by the U.S. Department of State’s Bureau of Nonproliferation inMay 2005, the PSI is “a global effort that aims to stop trafficking of weapons of massdestruction (WMD), their delivery systems, and related materials to and from states andnon-state actors of proliferation concern worldwide.”31 The Initiative is “part of a coop-erative international counterproliferation effort intended to apply intelligence, diplomatic,law enforcement, military and other tools at [the participating states’] disposal to prevent

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The Proliferation Security Initiative and UNCLOS 105

transfers of WMD-related items to states and non-state actors of proliferation concern.”32

It is described as a step forward in the implementation of the UN Security Council Pres-idential Statement of January 199233 and UN Security Council Resolution 1540 adoptedin April 2004,34 which state that the proliferation of WMD constitutes a threat to interna-tional peace and security. The Initiative is also “a set of activities based on participatingcountries’ common commitment to the PSI Statement of Interdiction Principles” that wasagreed to in September 2003 at the PSI’s third meeting held in Paris.35 Officials from theBush administration have often stated that “PSI is an activity, not an organization,” and thisactivity is said to be unique, flexible, and therefore a fundamental reason for the Initiative’ssuccess.36

The government of Canada saw the PSI as “a global endeavour with an inclusive na-ture and it relies on the widest possible co-operation between states from different partsof the world” to prevent the proliferation of WMD, their delivery systems, and relatedmaterials in order to enhance international security.37 Canada also noted that the Initia-tive “is not a formal institution, nor is it a treaty organization,” but is “a statement ofpurpose.”38 The government of Japan portrayed the PSI as “an effort to consider collectivemeasures among the participating countries” to prevent the proliferation of WMD, missile,and their related materials which pose a threat to the peace and stability of the interna-tional community.39 The government of Singapore perceived the PSI as “a multinationalinitiative” which aims to combat the spread of WMD, mainly through the interdiction ofthe flow of WMD-related materials on land, at sea, or in the air.40 Russia, which joinedthe PSI on May 31, 2004, considered the PSI to be “a potentially useful mechanism in thestruggle against the threat of WMD proliferation, and more specifically, against its newdimension—the possibility of terrorists acquiring WMD.” It also saw the Initiative as “acomponent part of the global strategy for strengthening the international WMD nonpro-liferation regimes and export controls.” However, Russia regarded the PSI as an addition,not a counterposition, to the existing mechanisms already present in the nonproliferationeffort.41

All states, in particular, flag, coastal, or transshipment states, and those likely to havesuspect overflights, are welcome to participate in the PSI.42 After endorsing the PSI and thePSI Statement of Interdiction Principles, states are invited to participate in the PSI meetingsand interdiction operational exercises. States are urged to take a number of concrete stepsto establish the basis for their participation in the PSI, which include:

� Formally committing to and publicly endorsing the PSI and the Statement of Inter-diction Principles, and indicating willingness to take all steps available to supportPSI efforts.

� Undertaking a review and providing information on current national legal authoritiesto undertake interdictions at sea, in the air, or on land, and indicating willingness tostrengthen authorities, where appropriate.

� Identifying specific national “assets” that might contribute to PSI efforts (e.g., infor-mation sharing, military, and/or law enforcement assets).

� Providing points of contact for PSI assistance requests and other operational activ-ities, and establishing appropriate internal government processes to coordinate PSIresponse efforts.

� Being willing to actively participate in PSI interdiction training exercises and actualoperations as opportunities arise.

� Being willing to conclude relevant agreements (e.g., boarding arrangements) or oth-erwise to establish a concrete basis for cooperation with PSI efforts.43

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The PSI’s Goals

The main goal of the PSI is to “create a more dynamic, creative, and proactive approachto preventing proliferation to or from nation states and non-state actors of proliferationconcern.”44 While U.S. officials have stated that PSI efforts are not aimed at any onecountry, but instead at halting the worldwide trafficking of WMD, their delivery systems,and related materials, North Korea, Iran, and Syria have been singled out as “states ofproliferation concern.”45 In February 2004, President Bush indicated that the United Stateswould work with other PSI participating countries to expand the Initiative’s mission to targetnot only shipments and transfers of WMD, but also the entities and networks involved inWMD proliferation activities.46

The Legal Structure of the PSI

The PSI builds on existing treaties, agreements, and export control regimes within the inter-national community to prevent WMD proliferation. The Initiative does not create any newlegal authority for states to conduct interdictions in international waters or airspace. Actionstaken in support of the PSI are to be consistent with national legal authorities and relevantinternational law and frameworks, including the UN Security Council Resolutions.47 TheU.S. officials believe there is ample authority to support necessary interdiction actions atsea, in the air, and on land,48 and that customary international law gives the countriesinterdiction authority.49

Countries participating in the PSI can expand their legal authority to interdict shipmentsof WMD-related items by signing boarding agreements with selected flag, coastal, andtransshipment states, as well as those states likely to conduct suspect overflights. At present,the United States has signed bilateral shipboarding agreements with six countries, whichtogether account for more than 60% of the global commercial shipping fleet dead weighttonnage.50 These Countries are: Liberia (February 11, 2004);51 Panama (May 12, 2004);52

the Marshall Islands (August 13, 2004);53 Croatia (June 1, 2005);54 Cyprus (July 25, 2005);55

and Belize (August 4, 2005).56 These agreements aim to prevent the maritime transfer ofproliferation-related shipments by establishing points of contact and procedures in orderto expedite requests to board and search suspect vessels in international waters. If a U.S.-flagged vessel, or a vessel flying the flag of a country that has signed a shipboardingagreement with the United States, is suspected of carrying proliferation-related cargo, eitherthe United States or the other party to the agreement can request the other to confirm thenationality of the ship in question and, if needed, authorize the boarding, search, and possibledetention of the vessel and its cargo. The shipboarding agreements do not apply to vesselsof third states. In October 2004, Bolton pointed out that the United States is currentlynegotiating with 20 additional countries respecting shipboarding agreements.57 However,no progress report of this effort is made public.

PSI Meetings and Operational Interdiction Exercises

PSI Meetings. Since the announcement of PSI in May 2003, five PSI policy-level meetingshave been held. The purpose of these meetings has been to engage, discuss, and to come toagreement on goals, methods, technologies, and practices to stop the flow of WMD, theirdelivery systems, and related materials. (See Table 2.) The most important outcome of thePSI policy-level meetings has been the Statement of Interdiction Principles agreed on bythe 11 PSI core members in September 2003 in Paris.58 Another important development isthe decision made by Russia on May 31, 2004, to join the Initiative.59 Russia is a permanent

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The Proliferation Security Initiative and UNCLOS 107

Table 2

Policy-Level and Anniversary Proliferation Security Initiative (PSI) Meetings (2003–6)

June 12, 2003 Madrid, SpainJuly 9–10, 2003 Brisbane, AustraliaSept. 3–4, 2003 Paris, FranceOct. 8–10, 2003 London, EnglandMar. 4–5, 2004 Lisbon, PortugalMay 31–June 1, 2004 Krakow, Poland (first anniversary PSI meeting)May 31, 2005 Washington, DC, USA (A special event to mark the second

anniversary PSI)June 23, 2006 Warsaw, Poland (The-High Level Political Meeting of the

Cracow PSI, the third anniversary)

Source: U.S. Department of State, available at www.state.gov/t/np/c12210,htm.

member of the UN Security Council, and, like China, had been concerned about the legalityof the interdiction actions taken under the PSI. On May 31, 2005, a special event was held inWashington, DC, to mark the second anniversary of the PSI, during which President Bushurged all responsible states to join the global effort to stop the transshipment of WMD-relatedmaterials by endorsing the PSI Statement of Interdiction Principles and by committing towork to end the security threat posed by the proliferation of WMDs.60 Secretary Rice alsowelcomed the joining of the PSI by Argentina, Iraq, and Georgia during her remarks on thesecond anniversary of the Initiative.61 On June 23, 2006, the High-Level Political Meetingof the Cracow Proliferation Security Initiative took place in Warsaw, Poland, in which it wasnoted that much has been accomplished since the Initiative was launched. It was recognizedthat: (1) the PSI and the Statement on Interdiction Principles have provided an effectiveplatform for impeding and stopping the trafficking in WMD and their means of delivery,(2) the network of PSI participating states is constantly expanding across the globe, (3)PSI participating states have improved their national capacities to interdict shipments ofproliferation concern, and (4) the PSI is achieving results.62

In addition to the PSI policy-level meetings, as of July 2006, 15 PSI operational expertsmeetings have been held to improve the PSI participating countries’ interdiction capabilities.(See Table 3.) At the PSI operational experts meetings, military, law enforcement, intel-ligence, legal, and diplomatic experts have worked to develop new operational concepts,organize interdiction exercise programs, share information about national legal authori-ties, and pursue cooperation with key industry sectors. They also have worked to facilitateparticipant involvement in operational activities.63

The PSI Interdiction Training Exercises. Since May 2003, 23 multinational PSI interdictionexercises, designed to improve national capabilities and participants’ ability to operate inconcert, have been held. These exercises are hosted by PSI participating countries andconsist of air, maritime, and ground exercises carried out by participants’ military andlaw enforcement forces. During the exercises, the participants also conduct sophisticatedinterdiction simulations to develop new and creative methods for stopping proliferationshipments. Among the PSI interdiction training exercises listed in Table 4, eight weredevoted to maritime interdiction, three to ground interdiction, three to air interception,three to combined maritime and ground interdiction, and one to air/ground interdiction.Clearly, at this stage of development, the PSI is focusing primarily on interdictions at sea.

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Table 3

Proliferation Security Initiative Operational Experts Meetings (2003–6)

July 9–10, 2003 Brisbane, AustraliaJuly 30, 2003 London, United KingdomSept. 3–4, 2003 Paris, FranceOct. 8–10, 2003 London, United KingdomDec. 16–17, 2003 Washington, DC, USAApr. 16–17, 2004 Ottawa, CanadaAug. 3–4, 2004 Shipping Container Security Workshop, Copenhagen,

DenmarkAug. 5–6, 2004 Operational experts meeting, Oslo, NorwayNov. 30–Dec. 2, 2004 Operational experts meeting, Sydney, AustraliaMar. 21–22, 2005 Operational experts meeting, Omaha, Nebraska, USAJuly 6–7, 2005 Operational experts meeting, Copenhagen, DenmarkSept. 2005 U.S.-hosted Air Cargo Workshop, Los Angeles, California,

USANov. 2005 European regional operational experts meeting, Hamburg,

GermanyApr. 11–12, 2006 U.S.-hosted operational experts meeting, Miami, FloridaJuly 2006 Singapore-hosted operational experts meeting

Source: U.S. Department of State, available at www.state.gov/t/np/c12684.htm.

Table 4

Proliferation Security Initiative (PSI) Interdiction Training Exercises (2003–6)

DateHost country and name of

the exerciseType of

interdiction

Sept. 10–13, 2003 Exercise Pacific Protector: Australia-ledmaritime exercise conducted in the Coral Sea

Sea

Oct. 8–10, 2003 Air CPX: United Kingdom-led air interceptioncommand post (tabletop) exercise conductedin London

Air

Oct. 13–17, 2003 Exercise Sanso ’03: Spain-led maritime exerciseconducted in the western Mediterranean

Sea

Nov. 25–27, 2003 Exercise Basilic ’03: France-led maritimeexercise conducted in the WesternMediterranean

Sea

Jan. 11–17, 2004 Exercise Sea Saber: United States-led maritimeexercise conducted in the Arabian Sea

Sea

Feb. 19, 2004 Exercise Air Brake ’03: Italian-led airinterception exercise conducted over Italy(Trapani)

Air

Mar. 31–April 1, 2004 Exercise Hawkeye: Germany-led customsexercise conducted in Germany (FrankfurtAirport)

Ground

Apr. 19–22, 2004 Exercise Clever Sentinel: Italy-led maritimeexercise conducted in the Mediterranean

Sea

(Continued)

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Table 4

Proliferation Security Initiative (PSI) Interdiction Training Exercises (2003–6) (Continued)

DateHost country and name of

the exerciseType of

interdiction

Apr. 19–21, 2004 Exercise Safe Borders: Poland-led groundinterdiction exercise conducted in PolandWarsaw (vicinity)

Ground

June 23–24, 2004 Exercise APSE ’04: France-led simulated airinterception exercise

Air

Sept. 27–Oct. 1, 2004 PSI Gaming Exercise: U.S.-hosted exercise atNaval War College, Newport, Rhode Island

Sea(assumed)

Oct. 25–27, 2004 Exercise Team Samurai ’04: Japan-led maritimeinterdiction exercise

Sea

Nov. 8–18, 2004 Exercise Chokepoint ’04: U.S.-led maritimeinterdiction exercise

Sea

Apr. 8–15, 2005 Exercise Ninfa ’05: Portugal-ledmaritime/ground interdiction exercise

Sea/ground

June 1–2, 2005 Exercise Bohemian Guard ’05: CzechRepublic-and Poland-led regional groundinterdiction exercise

Ground

June 7–8, 2005 Exercise Blue Action ’05: Spain-led air/groundinterdiction exercise

Air/ground

Aug. 2005 Singapore-hosted maritime-ground interdictionexercise, Deep Sabre ’05

Sea/ground

Oct. 2005 Norway-hosted air interdiction gaming exercise AirNov. 2005 UK-hosted maritime-ground interdiction

exercise, Exploring ThemisSea/ground

Apr. 4–5, 2006 Netherlands-hosted exercise Top Portmaritime/CPX interdiction exercise

Sea

Apr. 4–6, 2006 Australia-hosted Pacific Protector ’06 air/CPXinterdiction exercise

Air

May 24–26, 2006 Turkey-hosted Anatolian Sun combined air,land, and sea CPX and LIVEX interdictionexercises

Combinedair, land,and sea

June 21–22, 2006 French-hosted Hade ’06 air interdiction exercise AirSept. 2006 (upcoming) Poland-led PSI exercise Amber Sunrise N/AOct. 2006 (upcoming) U.S.-hosted PSI exercise Leading Edge N/A

Source: U.S. Department of State, available at www.stte.gov/t/np/c12684.htm, with revision madeby the author.

The PSI’s Principles of Interdiction

As already noted, at the third PSI meeting, held in Paris on September 3–4, 2003, theparticipants announced the Statement of Interdiction Principles for the Proliferation SecurityInitiative.64

The Statement of Interdiction Principles outlines the joint commitment of the Initiative’spartners and invites other like-minded countries to likewise commit:

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� to “[u]ndertake effective measures, whether alone or in concert with other states, forinterdicting the transfer or transport of WMD, their delivery systems, and relatedmaterials to and from states and non-state actors of proliferation concern;”

� to “[a]dopt streamline procedures for rapid exchange of relevant information con-cerning suspected proliferation activity;”

� to “[r]eview and work to strengthen their relevant national legal authorities . . . andwork to strengthen . . . relevant international law and frameworks” to support theirPSI commitments; and

� to “[t]ake specific actions in support of interdiction efforts regarding cargoes ofWMD, their delivery systems, or related materials, to the extent their national legalauthorities permit and consistent with their obligations under international law andframeworks.”65

In particular, the PSI participating countries are called on to take appropriate actions to:

� stop and/or search in their internal waters, territorial seas, or contiguous zones (whendeclared) vessels that are reasonably suspected of carrying such cargoes to or fromstates or nonstate actors of proliferation concern and to seize such cargoes that areidentified; and

� to enforce conditions on vessels entering or leaving their ports, internal waters orterritorial seas that are reasonably suspected of carrying such cargoes, such as re-quiring that such vessels be subject to boarding, search, and seizure of such cargoesprior to entry.66

Are the PSI Principles of Interdiction Consistent with UNCLOS?

Some Countries’ Concerns about the Legality of the PSI Under International Law

North Korea. North Korea has been singled out as the world’s foremost proliferator ofballistic missiles and related technology and is seen as the main PSI target. In October2004, John R. Bolton, then-U.S. under secretary for arms control and international security,stated that:

[w]ithout a doubt, North Korea remains the world’s foremost proliferator ofballistic missiles and related technology to rogue states and hostile regimes,and they have even gone so far as to threaten to transfer nuclear materials orweapons. The hard currency North Korea earns from these illicit sales goesdirectly into funding Kim Jong Il’s nuclear weapons program. Moreover, itdestabilizes regions around the world, as countries must learn to cope with thethreats posed by longer-range missiles—missiles specifically designed to carrychemical, biological, or even nuclear warheads.67

North Korean radio broadcast a commentary in response to announcement of the PSI onJune 19, 2003, stating that “[t]he U.S. imperialists and their following forces should clearlybear in mind that if they provoke us, they will not be able to escape a resolute and mercilessretaliation.”68 North Korea viewed the U.S.-led PSI as a strategy of blockading, “withintention of isolating and crushing” North Korea, which “is a grave violation of sovereigntyand a violent infringement of international law for one specific country to blabber aboutunreasonable pretexts and impose containment and pressure against other countries and toinspect and restrict other countries’ vessels and planes operating in accordance to proceduresset by international law.”69

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North Korea has repeatedly stated that any interdiction of its vessels or planes would beregarded as an act of war and that it would act accordingly.70 On August 21, 2003, a NorthKorean Land and Maritime Transport Ministry spokesman condemned Taiwan for seizingcargo shipments from the North Korean freighter Be Gae Hung, one day after the vesseldocked at the southern port of Kaohsiung.71 The spokesman said that Taiwan’s actions were“a criminal act in wanton violation of international law . . . and an intolerable infringementupon the sovereignty of the DPRK.”72 In addition, the spokesman accused the United Statesof “plugging its satellites into the collective ‘blockade operation’ against the DPRK.”73 InJune 2005, a commentary appeared in Nodong Sinmun, in which the United States wasaccused of attempting to further intensify sanctions and blockades on North Korea, and tocarry out a preemptive strike against North Korea through PSI interdictions.74 In February2006, in response to South Korea’s decision to participate in the planned U.S.-hosted PSIjoint training activities, North Korea accused the South Korean government of committing“another anti-national criminal act which cannot be accepted.”75 In addition, North Koreapointed out that the PSI exercise was not a simple interdiction training simulating searchand confiscation, but a preemptive attack operation with a very provocative character.

China. Originally, China opposed the PSI. In particular, Beijing opposed the U.S. proposalto intercept ships suspected of carrying WMD-related materials on the high seas. Beijingmade it clear that China preferred a diplomatic approach to bringing North Korea back intothe Treaty on the Non-Proliferation of Nuclear Weapons (the Nuclear Non-ProliferationTreaty [NPT]).76 It believed that any preemptive actions taken under the PSI would createa situation in which conflicts at sea might occur, even possibly leading to war. However,based on recent Chinese statements, it seems that China’s position on the PSI is moving fromopposition to lukewarm support. On December 3, 2003, China issued a nonproliferation“white paper,” which stated that “[a] developing China needs both an international and aperipheral environment of long-term peace and stability. The proliferation of [weapons of]mass destruction and their means of delivery benefits neither world peace and stability norChina’s own security.”77 A Chinese Foreign Ministry spokesman said that China would takethe proliferation risk into full consideration when exporting sensitive items and technologies.U.S. Secretary of State Colin Powell disclosed in November 2003 that China had cooperatedwith the United States to stop certain chemicals from leaving China for North Korea.78

While it seems that China is moving toward supporting the idea of the PSI, it remainsreluctant to join the PSI group. Beijing has doubts about the legitimacy, effectivenes, andimpact of PSI methods. In mid-February 2004, Bolton, then-U.S. undersecretary of statefor arms control, said in Beijing after his talks with Chinese officials that “[w]e have hadvery good discussions on PSI. We are both opposed to the proliferation of weapons of massdestruction.” In addition, he said, “[w]e stand ready to enhance co-operation in such areas asinformation exchange. China made it clear it understands the concern of PSI participatingstates.”79 On February 17, 2004, a Chinese Foreign Ministry spokeswoman stated that, whileChina agreed with the principles of PSI, it was concerned about the legality and potentialconsequences of some of its actions, particularly regarding interceptions.80 More recently,Zhang Yan, director of the Chinese Foreign Ministry’s Arms Control and DisarmamentDepartment, at a press conference on September 1, 2005, stated that “[o]n the whole Chinaunderstands the concerns of relevant countries regarding proliferation activities and sharesthe non-proliferation objective of PSI.” However, he said, “the main reason that China andmany other states have shown concern and have refused to join the Proliferation SecurityInitiative is that the initiative does not rule out non-proliferation actions in evasion ofinternational law.”81

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Russian Federation. Russia has had questions about the PSI’s compliance with internationallegal norms.82 At the end of January 2004, the United States sent then Under Secretary ofState Bolton to Moscow to persuade the Russian government to join the Initiative, but effortsfailed.83 However, Moscow’s response to the Initiative has changed. In early April 2004,Russian Deputy Foreign Minister Sergei Kislyak told Itar-Tass that Russia’s approach tocurtaining the proliferation of WMD was getting closer to the United States’ position as laidout in President Bush’s PSI.84 On May 31, 2004, the Russian Ministry of Foreign Affairsissued a statement announcing that Russia had joined the PSI.85 However, Russia’s concernsabout the legality of the PSI under the international law have not been removed as a result ofits joining the Initiative. In fact, Russia made it clear that its contribution to implementing thePSI was conditional on “the compatibility of the actions with the rules of international law,for their conformance to national legislation and for the commonality of nonproliferationinterests with the partners.”86 In July 2005, Russia and China issued a joint statement on newthe world order in the 21st century, in which, among other things, it was stated that “the issueof proliferation of WMDs should be resolved through political, diplomatic and internationalcooperation within the framework of international law.”87 In July 2006, President Bushand Russian President Vladmir Putin announced a new international initiative to preventnuclear terrorism and stop the spread of nuclear and radioactive materials. The GlobalInitiative to Combat Nuclear Terrorism builds on the PSI, the 2005 Convention for theSuppression of Acts of Nuclear Terrorism,88 and a number of other bilateral and multilateralefforts.89

India. India has been asked to cooperate in controlling the proliferation of the WMD andthe means to deliver them. Given Pakistan’s nuclear proliferation, it would be in India’sinterest to join the PSI. In addition, with the Indian navy sitting astride the Indian Oceansea-lanes of communication, India’s joining the Initiative would have military and politicalsignificance in that it would broaden the base of the nonproliferation coalition. WhileIndia has maintained a studied silence since the launching of the PSI in May 2003, it isbelieved that India has been examining the legal implications of the Initiative and making anassessment within the larger context of India’s nonproliferation policy and its long-standingcommitment to preventing the spread of WMD. As stated by an official from India’s Ministryof External Affairs, “[t]here are legal issues, as well as political and diplomatic issuesinvolved” and it is unlikely that “any decision will be taken on this [India’s participation inthe PSI] in a hurry.”90 During his visit to New Delhi in March 2004, U.S. Secretary of StatePowell invited India to join the PSI.91

In early April 2004, senior Indian officials met with U.S. officials in Washington toexplore the possibility of Indian participation in the PSI and of joining the Nuclear SuppliersGroup.92 However, one security analyst has raised the concern that India’s participation in theU.S.-led PSI could bring the country into conflict with a number of Asian states that opposethe Initiative, including China, Iran, Indonesia, and Malaysia. In addition, the analyst pointedout that the interdiction of third-country ships on the high seas is not legal under UNCLOS.93

In June 2005, India and the United States signed a 10-year defense framework agreementto enhance their defense relationship94 and in July of that year issued a Joint Statementresolving to establish a “global partnership” through increased cooperation on economicissues, on energy and the environment, on democracy and development, on nonproliferationand security, and on high-technology and space.95 However, India’s participation in thePSI was not mentioned specifically in the two documents. In September 2005, beforea hearing held by the House Committee on International Relations, Robert G. Joseph,under secretary of state for arms control and international security, stated that through

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ongoing nonproliferation dialogue the United States and India have discussed, among otherthings, steps that would lead to India’s endorsement of the PSI Statement of InterdictionPrinciples.96 Joseph also pointed out that India has publicly agreed to refrain from thetransfer of WMD-related technologies to states that do not have them and to support effortsto limit their spread and that Indian officials have indicated that India intends to assist theinternational efforts to prevent WMD proliferation.97 The Bush administration has turnedup the pressure on India to joint the PSI. On July 26, 2006, the House of Representativesoverwhelmingly approved “the United States and India Nuclear Cooperation Promotion Actof 2006,” in which securing India’s full participation in the PSI and its formal commitmentto the Statement of Interdiction Principles are included as part of the policies of the UnitedStates with respect to South Asia.98 The U.S. Senate is of the same view regarding India’sparticipation in the PSI.99

The U.S. Position on the Relationship Between the PSI and UNCLOS

As already noted, the position of the United States is that the PSI is consistent with UNCLOSand is legal under international law. Secretary of State Rice stated that “PSI requires partic-ipating counties to act consistent with national legal authorities and ‘relevant internationallaw and frameworks,’ which includes the law reflected in the Law of the Sea Convention.”100

Bolton, during his April 2005 nomination hearing to be U.S. representative to the UnitedNations, stated that “any actions taken pursuant to PSI would be done in accordance withexisting national and international authority,” that all of the other PSI participating countriesare parties to UNCLOS, and the United States therefore, would not ask these countries todo anything that would violate their obligations under the Convention.101

The United States maintains that the PSI Statement of Interdiction Principles areconsistent with the UN Security Resolution 1540, operative paragraph 10 which “callsupon all States, in accordance with their national legal authorities and legislation andconsistent with international law, to take cooperative action to prevent illicit traffick-ing in nuclear, chemical or biological weapons, their means of delivery, and relatedmaterials.”102

The Question of Legality Under UNCLOS

While the United States has asserted that the PSI is legitimate under existing internationallaw, some commentators have doubts about the legality of the Initiative. Benjamin Friedman,for instance, argued that without a “UN Security Council resolution, or clear evidence thatshipments are bound for terrorists, the legality of stopping shipments in territorial watersor on the high seas will be questionable.”103 Devon Chaffee pointed out that:

[t]here is nothing in the LOS that explicitly prohibits transit of WMD or givesstates rights to interdict such transit. On the contrary, a number of states, includ-ing the United States, have actively opposed the development of such prohibitivenorms or interpretation of international law that would prohibit the transit ofWMD by the seas or air, and cite the rights and privileges established in theLOS to affirm their unhindered military use of the oceans.104

Other commentators who have examined, in full or in part, the issue concerning the legalityof PSI under international law have provided no clear answer to the question of whether thePSI is in accordance with UNCLOS or not.105

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Without fully examining all of the relevant factors involved in an individual PSI mar-itime interdiction, it is not easy to give a yes-or-no answer to the question of whether or notthe PSI Statement of Interdiction Principles is legal under UNCLOS. Three major factorsshould be considered in determining if a PSI interception is permissible under internationallaw: first, the nature of cargo transferred or transported by the intercepted vessel; second,the location where the interception action takes place; and third, the nationality of the inter-cepted vessel. These three factors are all related to the rights enjoyed and obligations borneby the intercepted and intercepting countries under international customary and treaty law;in particular, the law of the sea as set out in the UNCLOS.

As of November 2, 2006, 152 states or entities are parties to UNCLOS,106 and this in-cludes all of the PSI participating countries, except the United States. While the list of the 70plus countries that have expressed support for the PSI is not made public, it seems safe to saythat most of them, if not all, are also parties to UNCLOS. Among the “states of proliferationconcern,” North Korea, Iran, Libya, and Syria are not party to UNCLOS. As a result, a PSIinterdiction may involve difficult legal questions, given that the country playing a leadingrole in implementing PSI to stop the flow of WMD-related goods and technologies as wellas the countries considered the world’s key WMD proliferators, and therefore the targets forPSI interdiction actions, are legally speaking not bound by UNCLOS. Nevertheless, whilethe United States is not party to the 1982 UNCLOS, it is party to the 1958 Geneva Conven-tion on the Territorial Sea and the Contiguous Zone107 and the 1958 Geneva Convention onthe High Seas.108 In addition, the PSI participating countries and the “states of proliferationconcern” are bound by the relevant customary international law that governs the rights andobligations of states in matters dealing with the use of the oceans. It is widely accepted thatthe principal provisions of UNCLOS, such as those governing the regime of passage andthe freedom of navigation, are considered to be part of customary international law.109

In order to answer the question of whether a PSI interdiction would be legal underUNCLOS, it is necessary to examine the provisions contained in the Convention relatingto: the nature of the cargo carried on board, the location where a PSI intervention actiontakes place, and the nationality of the intercepted vessel.

The Nature of Cargoes on Board an Interdicted Vessel. The cargoes of interest are “WMD,their delivery systems, and related materials.” The term “weapons of mass destruction” ismost widely understood as being nuclear, biological, and chemical weapons and also radio-logical or conventional weapons. David P. Fidler suggested that international legal analysisfollows the narrower definition of WMD (nuclear, biological, and chemical weapons),even though neither treaty law nor customary international law contains an authoritativedefinition.110 The definition of WMD used by the United States is “any weapon or devicethat is intended, or has the capability, to cause death or serious bodily injury to a significantnumber of people through the release, dissemination, or impact of—(A) toxic or poisonouschemicals or their precursors; (B) a disease organism; or (C) radiation or radioactivity.”111

The U.S. definition might create difficulties for interpretation of WMD-related cargoes.As a result of UN Security Council Resolution 1540, the terms “WMD’s delivery

systems” and “WMD-related materials” are more clear. “Means of delivery” is definedto “include missile, rockets and other unmanned systems capable of delivering nuclear,chemical, or biological weapons, that are specially designed for such use.”112 The term“related materials” is defined as “materials, equipment and technology covered by relevantmultilateral treaties and arrangements, or included on national control lists, which couldbe used for the design, development, production or use of nuclear, chemical and biologicalweapons and their means of delivery.”113 Security Council Resolution 1540 was adopted

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under Chapter VII of the Charter and is legally binding on all members of the UnitedNations,114 and, among other things, “calls upon all States, in accordance with their nationallegal authorities and legislation and consistent with international law, to take cooperativeaction to prevent illicit trafficking in nuclear, chemical or biological weapons, their meansof delivery, and related materials.”115

In order to legally intercept WMD-related cargoes, the PSI participating countries mustpresent reasonable evidence showing that the WMD-related cargoes are being transferredor transported to and from “states and non-state actors of proliferation concern” and will beused for nonpeaceful purposes. Given the fact that most WMD programs rely on dual usetechnologies and materials that have legitimate civilian or military applications unrelatedto WMD, it is difficult to check the true intention of exporters or importers of these WMD-related cargoes. For example, chemicals used to make nerve agents are also used to makeplastics and to process foodstuffs; thus, trade in those technologies cannot be banned.

There is nothing in UNCLOS that explicitly prohibits the possession or transportationof “WMD, their delivery systems, and related materials” by a foreign-flagged vessel thatis exercising its right of innocent passage, transit passage, sea lane passage, or freedom ofnavigation in a coastal state’s territorial seas, archipelagic waters, contiguous zones, straitsused for international navigation, EEZs, or on the high seas. Under Article 23, a foreign-flagged ship carrying “nuclear or other inherently dangerous or noxious substances” isentitled the right of innocent passage, provided that it carries the documents and observesspecial precautionary measures established by international agreements. It appears thatinterdicting a foreign-flagged vessel in territorial waters, or by a PSI participating countrythat is bordering straits used for international navigation such as Singapore, based solelyon the cargo being carried could be in violation of UNCLOS.

Beyond the national waters of a coastal state, no legal authority can be found underUNCLOS to justify interdiction action on the ground that a foreign-flagged vessel is carry-ing or transporting “WMD, their delivery systems, and related materials,” except perhapsArticles 88, 300, and 301. Article 88 provides that “[t]he high seas shall be reserved forpeaceful purposes” and under Article 301,

[i]n exercising their rights and performing their duties under this Convention,States Parties shall refrain from any threat or use of force against the territorialintegrity or political independence of any State, or in any other manner incon-sistent with the principles of international law embodied in the Charter of theUnited Nations.

Article 300 provides that “[s]tates Parties shall fulfill in good faith the obligations assumedunder this Convention and shall exercise the rights, jurisdiction and freedoms recognizedin this Convention in a manner which would not constitute an abuse of right.”

In addition, while other international treaties, such as the 1993 Chemical WeaponsConvention (CWC),116 the 1968 NPT,117 and 1972 Convention on the Prohibition of the De-velopment, Production and Stockpiling of Bacteriological (Biological) and Toxin Weaponsand on Their Destruction (BTWC),118 provide states parties with the right to transfer dualuse WMD-related goods, the right is conditioned such that the material must be used forpeaceful purposes. Accordingly, it could be legal for a country to interdict a foreign-flaggedvessel in international waters if there is reasonable evidence that the cargo on board theintercepted vessel is to be used for nonpeaceful purposes. However, it should be noted thatthe “states of proliferation concern” (i.e., North Korea and Iran) are not party to UNLCOSand therefore are not bound by Articles 88, 300, and 301.

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The Location Where an Interdiction Takes Place. Interdictions can be undertaken in differ-ent maritime zones, including internal waters, territorial sea, archipelagic waters, contiguouszone, straits used for international navigations, EEZs, and the high seas. Rights, jurisdic-tion, and duties of coastal states, archipelagic states, states bordering straits, flag states, portstates, and other states in these differing ocean zones are balanced within UNCLOS.

Under paragraph 4(d) of the Statement of Interdiction Principles, all states concernedwith the threat of WMD proliferation to international peace and security are called on to takespecific actions in support of interdiction efforts regarding cargoes of WMD, their deliverysystems, or related materials to the extent that their national legal authorities permit and thatare consistent with their obligations under international law and frameworks. In particular,as already noted, they are asked:

[t]o take appropriate actions to (1) stop and/or search in their internal waters,territorial seas, or contiguous zones (when declared) vessels that are reasonablysuspected of carrying such cargoes to or from states or non-state actors ofproliferation concern and to seize such cargoes that are identified; and (2) toenforce conditions on vessels entering or leaving their ports, internal waters orterritorial seas that are reasonably suspected of carrying such cargoes, such asrequiring that such vessels be subject to boarding, search, and seizure of suchcargoes prior to entry.119

Internal waters, ports, and archipelagic waters. Under Article 8 of the UNCLOS,except for waters enclosed by the archipelagic baselines drawn in accordance with Article47, waters on the landward side of the baseline of the territorial sea form part of theinternal waters of a coastal state. Just like land territory, a coastal state enjoys full territorialsovereignty over its internal waters. It is, therefore, generally admitted that a coastal state isfree to deal with its internal waters. Accordingly, it would be internationally legal for a PSIparticipating country (or any other state) to stop, board, and search a foreign-flagged vesselin its internal waters if the vessel is suspected of carrying or transporting WMD-relatedcargoes. Thus, a PSI participating country can take actions to board a foreign-flaggedvessel in its port, search the cargo on board, and even seize the WMD-related cargo inaccordance with its domestic laws. In archipelagic waters, an archipelagic state can alsoboard and search a foreign-flagged vessel that is suspected of carrying or transporting WMDsince, under Article 49 of UNCLOS, the sovereignty of an archipelagic state extends to itsarchipelagic waters.

Territorial sea and straits used for international navigations. The territorial sea issubject to the sovereignty of the adjacent coastal state. The only right which foreign-flagged vessels enjoy in this maritime zone is the right of innocent passage. Article 17 ofUNCLOS provides that “[s]ubject to this Convention, ships of all States, whether coastal orland-locked, enjoy the right of innocent passage through the territorial sea.” However, if aforeign-flagged vessel is carrying or transporting “WMD, their delivery systems, and relatedmaterials” and it can be reasonably answered that this cargo will be used for nonpeacefulpurposes. In this case, under Articles 17, 19, and 301, the vessel’s right of innocent passageis lost and the vessel is subject to the coastal state’s jurisdiction.

Article 19, paragraph 2, provides that if a foreign-flagged vessel engages in an activitythat is related to “any threat or use of force against the sovereignty, territorial integrity orpolitical independence of the coastal state, or in any manner in violation of the principles ofinternational law embodies in the Charter of the United Nations,” its passage in the territorialsea will be considered prejudicial to the peace, good order, or security of the coastal state.

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Under Article 301, the exercise of the right of innocent passage by a foreign-flagged vesselin a coastal state’s territorial sea is conditioned on the peaceful uses therein. Accordingly, itwould be legal for PSI participating countries (or any other state) to undertake interdictionaction against foreign-flagged vessels in their territorial seas for carrying or transporting“WMD, their delivery systems, and related materials.” This is further supported by a liberalinterpretation of the right of a coastal state to protect its security, provided in Article 25,whereby a coastal state has the right to temporarily suspend the innocent passage of foreign-flagged vessels if such suspension is essential for the protection of its security.

Under Article 21, paragraph 1(h) and paragraph 2, a coastal state may adopt laws andregulations, in conformity with the provisions of UNCLOS and other rules of internationallaw, relating to the innocent passage through the territorial sea, regarding the preservationof its environment and the prevention, reduction, and control of pollution thereof, providedthat such laws and regulations do not “apply to design, construction, manning or equipmentof foreign ships unless they are giving effect to generally accepted international rules orstandards,” and such laws and regulations must also be duly publicized. It therefore appearsthat a coastal state can stop a foreign-flagged vessel in its territorial sea which carries ortransports “WMD, their delivery systems, and related materials” in accordance with Article21 of UNCLOS in order to check if the vessel is carrying documents or observing specialprecautionary measures established for the vessel by relevant international treaties.

It is also legal for a state that borders an international strait, such as Singapore, to takeinterdiction actions against a foreign-flagged vessel that is exercising either the right ofinnocent passage or transit passage in the international strait. UNCLOS provides a right oftransit passage under Article 38 and a right of innocent passage under Article 45 for foreign-flagged vessels that are sailing through straits used for international navigation. While theright of transit passage should not be impeded and the right of innocent passage shouldnot be suspended by states bordering the strait, in accordance with Article 34, paragraph 1,the regime of passage through straits used for international navigation should not in otherrespects affect the legal status of the waters forming such straits or the exercise, by thestates bordering the straits, of their sovereignty or jurisdiction over such waters, and theirair space, seabed, or subsoil. Accordingly, it is legal for a state bordering a strait used forinternational navigation to take action against foreign-flagged vessels that are suspected ofcarrying or transporting “WMD, their delivery systems, and related materials” to and from“states of proliferation concern” while the vessel is utilizing the international strait.

Contiguous zone, exclusive economic zone, and high seas. The jurisdiction of a coastalstate diminishes substantially in its contiguous zone, EEZ, and on the high seas. In termsof navigation, these maritime zones are treated as international waters. Under Article 33of UNCLOS, a coastal state may declare a zone contiguous to its territorial sea for thepurpose of preventing the infringement of its customs, fiscal, immigration, or sanitary lawsand regulations within its territory or territorial sea, and also for the purpose of punishingthe infringement of the above national laws and regulations committed within its territoryor territorial sea. This zone may not extend beyond 24 nautical miles from the baselinesfrom which the breadth of its territorial sea is measured. Unless a coastal state has enactedlaws making the possession or transportation of the WMD-related cargo an infringementof its customs laws, and a foreign-flagged vessel that is heading toward its coast or leavingfrom its coast and heading toward international waters, intends to discharge its cargo, itwould be illegal for this coastal state to undertake an interdiction against a foreign-flaggedvessel in its contiguous zone. In other words, foreign-flagged vessels merely sailing througha coastal state’s contiguous zone may not be intercepted on the basis of national customslaws.

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In a coastal state’s 200 nautical mile EEZ, foreign-flagged vessels enjoy the freedom ofnavigation. A coastal state has sovereign rights over the natural resources and jurisdictionover the activities related to artificial islands, marine scientific research, the protection andpreservation of the marine environment, and other rights provided in UNCLOS within itsEEZs.120 However, a coastal state must exercise sovereign rights in its EEZ with “dueregard to the rights and duties of other States”121 and should act in a manner compatiblewith the provisions of UNCLOS—one of which is the freedom of navigation protected byArticle 87. Unless foreign-flagged vessels violate the adopted laws or regulations for theprevention, reduction, and control of pollution from vessels in a state’s EEZ, it appears thata coastal state’s boarding and inspection of foreign-flagged vessels in its EEZ cannot bejustified under Part XII of UNCLOS. In other words, maritime interdiction actions wouldnot be justified in the absence of a “substantial discharge,” resulting in a serious threat tothe marine environment in a coastal state’s EEZ.122 Accordingly, a coastal state has no rightto interdict foreign-flagged vessels that are suspected of carrying or transporting “WMD,their delivery systems, and related materials” in its EEZ.

However, a foreign-flagged vessel’s right to freedom of navigation in the EEZ mightbe lost if trafficking “WMD, their delivery systems, and related materials” is seen as anonpeaceful act. As noted above, under Article 88, the high seas, including the EEZ interms of navigation, are to be reserved for peaceful purposes. Article 301 also requiresstates, in exercising their rights under UNCLOS, to “refrain from any threat or use offorce against the territorial integrity or political independence of any State, or in any othermanner inconsistent with the principles of international law embodies in the Charter of theUnited Nations.” Moreover, Article 300 of UNCLOS provides that: “States Parties shallfulfill in good faith the obligations assumed under this Convention and shall exercise therights, jurisdiction and freedoms recognized in this Convention in a manner which wouldnot constitute an abuse of right.” UN Security Council Resolution 1540 affirms that WMDproliferation constitutes a threat to international peace and security and calls on all states tocooperate to address this threat.123 Together with Articles 88, 300, and 301, this Resolutioncan be cited as a defense of any PSI interdiction actions taken in the EEZ.

Under UNCLOS, all parts of the sea that are not included in a coastal state’s EEZ,territorial sea, internal waters, or in an archipelagic state’s archipelagic waters are consideredhigh seas. All states enjoy freedom of the high seas, including the freedom of navigation.124

Therefore, it is internationally illegal for a country to take interdiction actions againstforeign-flagged vessels on the high seas for the purpose of stopping the flow of WMDand related cargo. However, such an interdiction action taken on the high seas would bejustified if the flag state of vessel waives its exclusive jurisdiction. For instance, as a resultof the bilateral shipboarding agreements between the United States and Panama, Liberia,the Marshall Islands, Cyprus, Croatia, and Belize,125 interdiction actions taken against thevessels from these countries on the high seas would be permitted under the UNCLOS. Itis also likely that some countries would give their consent to allow vessels of the UnitedStates or other PSI participating countries to board and search vessels flying their flags onthe high seas.

The Nationality of Interdicted Vessels. It is clear that an interdiction is legal under UNC-LOS if the vessel that is being interdicted flies the flag of the interdicting country or flies theflag of a state that consents to the interdiction. It would also be legal for a PSI participatingcountry to stop a vessel flying no flags or more than one flag in its national waters or inter-national waters to check if the intercepted vessel is carrying or transporting WMD-relatedcargoes.126

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Paragraph 4(b) of the PSI Statement of Interdiction Principles states that:

[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 internalwaters 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 ornon-state actors of proliferation concerns, and to seize such cargoes that areidentified. [Emphasis added.]

In accordance with paragraph 4(c), all states are asked to consider providing consent to theboarding and searching of its flag vessels by other states.

It is unlikely that states of proliferation concern would consent to having vessels flyingtheir flags be interdicted, even if they are members of the relevant nonproliferation treaty. Itwould be illegal under UNCLOS for a country to take action against foreign-flagged vesselsin international waters for the purpose of stopping WMD proliferation in the absence of aright given by treaty, for example, the shipboarding agreement between the United Statesand Panama,127 or without obtaining consent from the flag state of the vessel.

Maritime Interdiction Incidents: Legality Under UNCLOS

Six interdiction incidents, which occurred either before or after the PSI was launched, areexamined below looking at the question of whether the maritime interdiction was legalunder UNCLOS. (See Table 5.)

The Yinhe (July 1993). In July 1993, because of suspicions that the Chinese flagged cargo-liner Yinhe was carrying chemical weapon precursors, thiodiglycol and thionyl chloridebound for Iran, the United States took the extraordinary step of ordering the vessel, whichwas on the high seas, to follow its warships while military aircraft took aerial photos. Afterthe Yinhe arrived at Damman in Saudi Arabia, an inspection of the cargo was conducted byofficials from Saudi Arabia, in the presence of Chinese representatives. Technical expertswere also dispatched by the U.S. government to take part in the inspection process. Theresults of the inspection showed that the Yinhe was not carrying WMD-related materials.China accused the United States of obstructing the vessel’s normal shipping operationand of seriously infringing on China’s sovereignty and right to freedom of navigation ininternational waters.128

As the location of interdiction (in this case, ordering the vessel to port) occurred onthe high seas, and the interdiction was taken without the permission of China, the U.S.action would be illegal under UNCLOS. At the time of the interdiction both China and theUnited States were not parties to UNCLOS, thus customary international law, in particularthe freedom of navigation on the high seas and the exclusive jurisdiction of a state overvessels that are flying its flag and sailing on the high seas, should be applied to the incident,but the result is the same: The U.S. action violated the international law of the sea.

The Ku Wol San (June 1999). In June 1999, the North Korean ship Ku Wol San, suspectedof transporting spare parts to be used for the manufacture of missiles and atomic reactors inPakistan, was detained and searched by Indian authorities at the port of Kandla in Gujarat,India. During the search, Indian law enforcement personnel were assaulted, which resultedin the arrest of all 44 crew members.129 Indian investigators examined 177 tonnes of cargo.

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Table 5

Actual Maritime Interdiction Cases

Date July 1993 June 1999 Dec. 2002 June 2003 Aug. 2003 Oct. 2003

Name ofinterceptedvessel

YinHe Ku Wol San So San Baltic Sky Be GaeHung

BC China

Nationality ofinterceptedvessel

China N. Korea Cambodia ComorosIsland

N. Korea Germany

Owner ofinterceptedvessel orcargo

China Pakistan N. Korea(vessel),Yemen(cargo)

Ukraine(vessel),Sudan(cargo)

N. Korea Libya

Interceptedcargo

Chemicals Missilecomponents

Scudmissiles

Explosives,detonators

Chemicals Centrifuge

Location ofinterception

Yellow Sea(high seas)

Port(Kwandla,India)

Arabian Sea(high seas)

Territorialwaters (theMediter-ranean)

Port (Kao-hsiung,Taiwan)

Port(Taranto,Italy)

Interceptingauthority

U.S. India U.S. &Spain

Greece Taiwan Italy, U.S.,& UK

Legality underUNCLOS

Illegal Legal Legal Legal Legal Legal

Source: Compiled by author.Abbreviation: UNCLOS, 1982 United Nations Convention on the Law of the Sea.

As a result of the search, it was found that the vessel was carrying components, testingequipment, and blueprints for the manufacture of Scud-type short-range ballistic missiles,which could be used to assemble short-range ballistic missiles such as the Hatf-I, Hatf-II,and Hatf-III missiles used by Pakistan, some of which could also have been used to makeShaheen medium-range missiles.130 Following a “sovereign guarantee” by the North Koreangovernment, Ku Wol San was released by the Indian authorities and allowed to sail back toNorth Korea.131

The interdiction action taken by the Indian authorities in its port would be consideredlegal under the UNCLOS because the nature of the intercepted cargo was WMD-relatedwhich the vessel had failed to state in its manifest, and the search and seizure was conductedat an Indian port even though the vessel was flying the flag of North Korea, and the inves-tigation and seizure of the transported goods was conducted without the consent of the flagstate.

The So San (December 2002). In September 2002 the Son San, crewed by North Koreannationals and carrying goods owned by North Korea, was intercepted in the Arabian Gulfby a combined Spanish and U.S. naval force on suspicion of the vessel carrying missilesfor North Korea. During the search, 15 Scud missiles in broken condition and around85 drums of an undetermined chemical were found. The vessel was later released andallowed to proceed to its destination in Yemen with its cargo because of the lack of au-thority under international law to detain the vessel or seize the WMD-related cargo onboard.132

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It is generally accepted that this maritime interdiction undertaken on the high seas waslegal because the intercepted vessel was flying no flag or was displaying different flagsduring the course of the action. The Son San was eventually determined to be registered inCambodia.

The BBC China (October 2003). In September 2003, U.S. and British intelligence discov-ered that the BBC China, a freighter owned by a German firm and flying a German flag,was carrying centrifuge parts destined for Libya. Germany and Italy were notified by theU.S. and British authorities about the suspected vessel and its cargo. In early October 2003,German authorities contacted the shipowner of the BBC China after it cleared the SuezCanal. The shipowner ordered the captain to divert the vessel to Taranto, a port in southernItaly. The ship was escorted into port and searched. After unloading five containers, theBBC China was allowed to proceed to Libya. Centrifuge components were found, whichwere not noted in the ship’s manifest, and confiscated.133

This incident has been cited by the United States as a successful example of interdictionunder the PSI, but it has also been criticized as being “a false claim of success for theProliferation Security Initiative.”134 The interdiction undertaken by the Italian authority inits port was legal under UNCLOS. Moreover, permission from the flag state of the BBCChina was obtained before the action was taken.

The Be Gae Hung (August 2003). On August 7, 2003, Taiwan’s Kaohsiung port authoritiesforced the North Korean freighter Be Gae Hung to unload a batch of a controlled chemicalbefore allowing it to leave port bound for North Korea. Kaohsiung Customs Bureau officialswere asked to inspect the Be Gae Hung after being informed by U.S. intelligence author-ities that the freighter might be carrying dangerous chemicals (phosphorus pentasulfide)which could be used for rocket fuel.135 After the freighter’s captain refused the request, theTaiwanese port authorities ordered the detention of the vessel and conducted a search. Dur-ing the search, 158 barrels of phosphorus pentasulfide were discovered, which had beenlisted on the ship’s manifest as “commodities in transit.” The Taiwanese authorities claimedthat the seizure of the chemicals was legitimate, noting that the chemical is listed as astrategic high-tech commodity (SHTC) subject to control under national law. North Koreais listed as a state subject to SHTC controls. The consignee of the chemicals should haveapplied to Taiwan’s Bureau of Foreign Trade in advance for transit permission throughTaiwan, but had failed to do so. On August 21, 2003, the North Korean Land and MaritimeTransport Ministry spokesman condemned Taiwan for seizing the cargo shipments, statingthat Taiwan’s actions were “a criminal act in wanton violation of international law . . . andan intolerable infringement upon the sovereignty of the DPRK.”136

While Taiwan is not a PSI participant, it has stated that it supports the PSI.137 Given thefact that the intercepted cargoes are considered WMD-related materials, that the locationof interdiction took place in Taiwan’s port where it exercises territorial jurisdiction, and thefailure to identify the nature of the transported cargo in the vessel’s manifest, the interdictionaction taken by the Taiwanese authorities would be legal under UNCLOS. It must be notedthat both Taiwan and North Korea are not contracting parties to UNCLOS.

The Baltic Sky (June 2003). On June 22, 2003, the Baltic Sky, a ship flying a Comoros flag,was intercepted by the Greek coast guard in its territorial sea in the Ionic Sea for illegalpossession and transportation of 680 tonnes of explosive materials and 18,000 detonators.138

The captain and crew were put in remand by a Greek court pending a full investigation.Subsequently, they were charged with illegally transporting explosives and with failing to

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notify authorities of carrying dangerous cargo. Both the Tunisian supplier and the Sudaneseowner of the cargo claimed that the cargo was legal and was intended for industrial purposes.It also was confirmed that it was highly unlikely the cargo was intended for a terroristpurpose as both the nitrate-based explosives and detonators seized were of a type usedalmost exclusively for fishing or construction work.139 In December 2003, it was reportedthat the Azerbaijani crew was freed as the accusations leveled against them were not proven.However, information is not available about the detained Ukrainian crew members.140

While it was claimed that the nature of the intercepted cargo carried by Baltic Skyhad nothing to do with WMD-related materials, the interception action taken by the Greekauthority against the Baltic Sky is legal because the vessel was intercepted in the territorialwaters of Greece for a security reason,141 the vessel was found not to be registered inComoros, and the vessel did not carry valid documentation.142

Conclusion. The six interception cases demonstrate that, after vessel interdiction, furtheractions may be taken which include the release or confiscation of the vessel, or the return,detention, or confiscation of the cargo. These actions can be taken in accordance withthe rights and obligations of the interdicting state under the relevant international treatiesor control regimes by which it is bound, as well as by the legal authority conferred on theinterdicting country by national and international laws. The legality of an interdiction actionmust be examined on a case-by-case basis, taking into account all of the factors involved inthe interdiction action, including the nature of the intercepted cargo, the location where theinterdiction takes place, the nationality of the intercepted and intercepting ships, the nationallaws and regulations applied, as well as the relevant international law and frameworks,including the resolutions adopted by the UN Security Council.

Would U.S. Accession to UNCLOS Strengthen or Hinder the Implementationof the PSI?

The potential impact of U.S. accession to UNCLOS on the implementation of the PSI wasone of the concerns raised by some opponents of the Convention. They argued that theability of the United States to pursue the goals of the PSI would be hindered by accession toUNCLOS. Reportedly, Republican Senators James Inhofe (OK) and John Ensign (NV) heldthis view.143 Paul Weyrich, chairman and CEO of the Free Congress Foundation, opposedU.S. accession to the UNCLOS because, among other things, President’s Bush’s PSI wouldnot be recognized and thus would be prohibited by the Convention.144 He pointed out thatit is especially troubling as there are concerns in the U.S. homeland security communitythat al-Qaeda could easily smuggle a WMD into the United States in a cargo ship. PeterLeitner, a senior strategic trade advisor in the Office of the Secretary of Defense, asserted thatUNCLOS would deny the United States the right to intercept terrorist vessels or proliferators.In a prepared statement before the Senate Committee on Environment and Public Worksin March 2004, Leitner stated that “[t]his U.S.-led, multinational program of high-seasinterdiction and vessel boarding is barred by the Law of the Sea Treaty yet it is our overridingnational security interest to execute.” He also pointed out that:

[r]atification of the Treaty would effectively gut our ability to intercept thevessels of terrorists or hostile foreign governments even if they were transportingnuclear weapons. We must ensure that we not binding the government of theUnited States to a legal regime that makes us more vulnerable and trades the livesof our innocent citizens for the sake of participating in yet another unnecessaryTreaty.145

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In March 2004, Frank J. Gaffney, president of the Center for Security Policy, statedbefore the Senate Committee on Environment and Public Works that:

[i]nsofar as the text is concerned, it is a simple fact that the treaty explicitlypermits boarding of another vessel on the high seas in only a handful of limitedcircumstances (piracy, slavery, unlicensed broadcasting, no flag). Proliferationis not among them. In fact, China recently opposed a United Nations SecurityCouncil resolution that even mentioned counter-proliferation and shipping inthe same document.

Currently, states party to the Law of the Sea Treaty [LOST] can only boarda suspect vessel for counter-proliferation or counter-terrorism purposes if theycan do so under the pretext of conducting a boarding for one of the permittedpurposes. For example, had the North Korean vessel that delivered Scud missilesto Yemen been flying its flag and declared on its manifest the true nature of itscargo, the Spanish Navy would have been unable to stop it without violatingthe Convention.

Since the United States is not a party to LOST, it is not subject to suchlimitations and the prospect that they might be enforced by the Treaty’s Tribunal.We should not want to deny ourselves the option to interdict a vessel suspectedof dangerous activities not covered by LOST simply because our partners inPSI find themselves unable to do so.

It is moreover entirely possible that PSI has not yet been challenged underLOST because its adversaries hope to first draw the United States into theTreaty.146

The Bush administration claims not only that accession to UNCLOS will not diminish theability of the United States to take necessary action to prevent the transport of WMD andWMD-related materials at sea, but it will strengthen the implementation of the PSI. WilliamH. Taft IV, legal adviser, U.S. Department of State, during an April 8, 2004, hearing onUNCLOS before the Senate Armed Services Committee stated that the Treaty would notaffect U.S. efforts under the PSI to interdict vessels suspected of engaging in the WMDproliferation, mainly because:

[t]he Convention recognizes numerous legal bases for taking enforcement actionagainst vessels and aircraft suspected of engaging in proliferation of weaponsof mass destruction, for example, exclusive port and coastal State jurisdiction ininternal waters and national air space; coastal State jurisdiction in the territorialsea and contiguous zone; exclusive flag State jurisdiction over vessels on thehigh seas (which the flag State may, either by general agreement in advance orapproval in response to a specific request, waive in favor of other States); anduniversal jurisdiction over stateless vessels. Further, nothing in the Conventionimpairs the inherent right of individual or collective self-defense.147

Rear Admiral William L. Schachte, U.S. Navy (retired), stated the argument that U.S.accession to UNCLOS would hinder the ability of the United States to effectively interdictWMD-related cargo at sea fails to recognize one of the basic tenets of the PSI Statementof Interdiction Principles; that is, that PSI activities must be undertaken consistently withnational legal authorities and international law and frameworks, including the navigation-related provisions of UNCLOS. He was of the opinion that “international law, including the

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LOS Convention, would not prohibit the United States or any other nations from boarding avessel carrying a WMD that posed an imminent threat to our national security just becausewe didn’t have flag State or master consent.”148 The U.S. Navy believes that U.S. accessionto UNCLOS would greatly strengthen the PSI by reinforcing and codifying freedom ofnavigation in international waters on which the navy depends for operational mobility.149

During her 2005 nomination hearing for secretary of state, Rice, took the same positionstating that the navigation provisions of UNCLOS derive from the 1958 Geneva Conventionson the law of the sea which reflect customary international law accepted by the United States.Accordingly, UNCLOS would not affect applicable maritime law or policy regarding theinterdiction of WMDs.150 Rice added that, like the 1958 Geneva conventions on the law ofthe sea, UNCLOS recognizes numerous legal bases for taking enforcement action againstvessels and aircraft suspected of engaging in WMD proliferation. In March 2003, SenatorLugar wrote a letter to all senators, stating that “nothing in the Law of the Sea Conventionwill inhibit the United States from pursuing PSI; indeed, acceding to the Convention willenhance our ability to pursue PSI.”151Again, in March 2004, Senator Lugar wrote anotherletter to all senators, reiterating his view on the relationship between UNCLOS and the PSI:

Some misinformed commentators have erroneously asserted that the Conven-tion’s rules would prohibit the sort of at-sea interdiction operations that arecentral to President Bush’s Proliferation Security Initiative (PSI), which is de-signed to prevent the proliferation of weapons of mass destruction and missiletechnology. Nothing could be further from the truth . . . In fact, the Conventionstrengthens PSI.152

In addition, Professor John Norton Moore considered the charge that “the UNCLOS isharmful to the PSI” as a misperception about the Convention.153 He pointed out that it waswrong to assume that the United States was free from any constraints in relation to oceanlaws if it does not accede to UNCLOS. He stated that, in fact, the United States was boundby the 1958 Geneva Conventions on the law of the sea which are more restrictive thanUNCLOS on issues relating to the PSI.

Which view is correct? It is shaky, if not totally ill-founded, for UNCLOS opponentsto suggest that the implementation of the PSI will be affected negatively by U.S. accessionto UNCLOS. No persuasive arguments exist to the contrary.

Gaffney provided some reasons explaining why U.S. accession to UNCLOS wouldhinder its ability to pursue PSI’s goals.154 However, he failed to mention the possibilitythat the United States could stop and board a vessel on the high seas which was flying theflag of a country like Panama, Liberia, the Marshall Islands, Croatia, Cyprus, or Belize,all of which have signed bilateral shipboarding agreements with the United States.155 Inaddition, it is also likely that the United States would obtain the consent from a flag stateto interdict a vessel on the high seas, if reasonable evidence is provided or it is supportedby reliable intelligence that the vessel concerned is indeed carrying or transporting WMD-related cargo. Moreover, while UN Security Council Resolution 1540 does not explicitlyauthorize the interdiction of a foreign-flagged vessel on the high seas which is suspected ofcarrying or transporting WMD-related cargo, it can still be argued that action taken under thePSI would not be inconsistent with the call for cooperation to confront the threat posed byWMD proliferation set out in the Resolution. Furthermore, Gaffney argued that the abilityof the United States to undertake PSI interdiction action would be affected by Article 88of UNCLOS, which declares that the high seas are reserved for peaceful purposes, andby Article 301, which obligates states parties to refrain from “the threat or use of force

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against the territorial integrity or political independence of any State.”156 However, thesetwo provisions can also be cited by the United States as grounds for interdicting foreign-flagged vessels on the high seas if it is reasonably suspected or sufficiently proven thatthese vessels are carrying or transporting WMD-related cargoes that are to be used by the“states of proliferation concern” for nonpeaceful purposes or have the potential to affectinternational peace and security. The foreign-flagged vessels’ right to enjoy the freedom ofnavigation on the high seas in accordance with Article 87 of UNCLOS and the exclusivejurisdiction of the flag state over these vessels on the high seas under Article 92 are to besubject to certain limitations.

Gaffney may be correct where a vessel flying the flag of North Korea and havingdeclared in the ship’s manifest that it is transporting Scud missiles to Yemen could not beintercepted without a breach of the UNCLOS.157 However, interdiction on the high seas isnot the only option for stopping the transport of WMD-related goods or technologies froma state of proliferation concern. As the 1993 Yinhe incident demonstrates, the U.S. Navycould follow a suspect vessel and request cooperation from the port state to conduct aninvestigation once the vessel enters its port. Under UN Security Council Resolution 1540,a port state is obligated to take cooperative action to prevent illicit trafficking in WMD andWMD-related materials.58

Gaffney also argued that, if the United States remains nonparty to UNCLOS, it wouldnot be subject to the limitations under the Convention.159 However, as pointed out by Moore,it is wrong to assume that the United States is free from any constraints in relation to itsocean actions if it does not accede to UNCLOS since the United States is bound by the1958 Geneva Conventions on the law of the sea which are more restrictive than UNCLOSon issues relating to the PSI.160

In sum, the better view is that of the Bush administration regarding the potential impactof U.S. accession to UNCLOS on the implementation of the PSI. The views held by someof the opponents to UNCLOS are arbitrary and shaky, and lack persuasive reasoning. It isincorrect to argue that the PSI is barred by UNCLOS. After all there are 18 states fullyparticipating in PSI and more than 70 countries that have expressed their support for theInitiative, and most of these countries are party to UNCLOS. Moreover, while UNCLOS isconsidered the most important legal instrument in dealing with the rights and obligations ofstates in the oceans, there are other international treaties, regimes, and frameworks that canbe relied on if interdiction actions against suspect vessels that carry or transport “WMD, theirdelivery systems and related materials” to and from “states and non-states of proliferationconcern” are necessary.

Assessing the PSI

While the PSI frequently has been presented by the Bush administration as an effectivemeasure to stop the flow of “WMD, their delivery systems, and related materials,” it also hasbeen criticized by some maritime security experts for its lack of transparency in accountingfor the claimed successes. In addition, it has been suggested that further evidence is requiredto support the Bush administration’s claim that the PSI has increased the risk and costsrelated to WMD trafficking.

The Bush Administration’s Assessment

In response to a question about the PSI’s successes, Bolton, then-under secretary for armscontrol and international security, replied that the most important success was the October

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2003 interdiction action against the German-owned ship, the BBC China, which was trans-porting a shipment of uranium centrifuge equipment to Libya.161 Bolton indicated that thisPSI action was seen as a major contributing factor in the decision by the Libyan governmentto give up its WMD program entirely. Bolton noted that, because many PSI activities rely onsensitive intelligence information, the detailed information about PSI interdiction actionscould not be made public.162 In October 2004, Bolton stated that:

I have been asked many times to define “success” for PSI. There is an as-sumption that effectiveness is equal to the number of shipments stopped orproliferators put out of business. This is certainly one measure, but a difficultone to publicize due to the extremely sensitive nature of the information lead-ing to PSI operations. Another barometer of success is the extent to which PSIworks to deter proliferators. The deals not signed or completed, shipments notsent, insurance not extended, shipping routes no longer utilized—all the resultof PSI but, like the number of operations, not easily quantifiable, particularlyin public.163

In addition to the PSI interdiction actions, Bolton pointed out that the PSI had been successfulbecause of the cooperative foundation built by the PSI participating countries and by themore than 60 countries that have publicly expressed their support for the PSI. Moreover, thePSI had been successful because of the international consensus that WMD proliferation is athreat to global peace and security, and because the PSI partners recognize that proliferationthreatens their own national security. Finally, he said, the PSI is also succeeding because itis based on practical actions that make maximum use of each the PSI participating country’sstrengths to counter WMD proliferation. The PSI partnerships have been forged, the contactshave been established, the operational readiness has been enhanced, all of which is helpingto create a lasting basis for cooperative action against WMD proliferation. Through theimplementation of the PSI, the United States and the other participating countries candisrupt WMD proliferators’ operations, raise the costs of trading WMD-related materials,and create a norm that aims to stop WMD proliferation.164

On the second anniversary of the PSI in May 2005, President Bush stated that the PSIparticipating countries are “building a record of success by stopping the transshipment ofWMD-related materials, prosecuting proliferation networks, and shutting down front com-panies trafficking in WMD materials.”165 President Bush cited the adoption in 2004 of UNSecurity Council Resolution 1540 as demonstrating that the goals of the PSI were endorsedby important international organizations.166 Secretary of State Rice pointed out that thecooperative efforts taken under the PSI have made it more difficult and costly for prolifer-ators to trade WMD-related materials.167 She noted that the results of building a commoncapacity of the PSI participating countries in order to act with speed and effectiveness tostop WMD trafficking on land, at sea, and in the air have been impressive. In addition, shecited the 2003 interdiction of the ship BBC China as demonstrating the importance of thecooperative framework provided by the PSI. Moreover, Rice said there have been 11 suc-cessful PSI interdictions undertaken from September 2004 to May 2005. One of these PSIinterdictions involved stopping a shipment of materials and equipment bound for ballisticmissile programs in Iran and other countries. Other actions involved preventing Iran fromacquiring goods to be used for WMD-related programs.168

In June 2005, Stephen G. Rademaker, assistant secretary of state for arms control, listedthree main successes for the PSI: (1) quietly countering WMD proliferation, (2) building the

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PSI participating countries’ operational capacity for cooperative action, and (3) broadeninginternational participation in PSI activities.169 Also in June 2005, the White House issueda statement on its progress in achieving the president’s nonproliferation goals, in whichthe expansion of the PSI to include more nations, the development of new approachesfor interdicting WMD and WMD-related materials, and the adoption of the UN SecurityCouncil Resolution 1540 were included.170 It was reported in the statement that morethan 100 countries sent delegates to commemorate the second anniversary of the PSI. Thestatement also emphasized that UN Security Council Resolution 1540 requires all states tocriminalize WMD proliferation by nonstate actors, enact strict export controls, and securesensitive materials within their borders.171 On June 23, 2006, U.S. Under Secretary ofState for Arms Control and International Security Robert Joseph, while attending the thirdanniversary of the PSI in Warsaw, Poland, gave a positive assessment of the progress of theInitiative stating that PSI participants are broadening and deepening their engagement inthe Initiative and contributing to combating the proliferation of WMDs.172

The Assessment of the House Subcommittee on International Terrorism

and Nonproliferation

In June 2005, the U.S. House of Representatives, Subcommittee on International Terrorismand Nonproliferation held a hearing with the goal of assessing the PSI. In his openingstatement, the subcommittee’s chair, Representative Ed Royce (R-CA), cited the interdictionof the BBC China as the “PSI’s most high-profile operation,”173 which he stated contributedto Libya’s decision to renounce its WMD program and helped speed the unraveling of theA. Q. Khan nuclear proliferation network. Representative Royce stated that the PSI, ingeneral, had received good grades from security analysts, foreign countries, and the UNSecretary-General. Nevertheless, he pointed out that the PSI grade is incomplete because“we obviously have no idea what proliferation PSI is missing.”174 In addition, he raisedconcerns about the PSI’s staying power as governments could change in the United Statesand abroad, and also about the Initiative’s funding base within the U.S. State Departmentbudget, given the fact that the PSI has little institutional structure and no official membership,headquarters, or permanent staff.175 Representative Brad Sherman (D-CA) said that the PSIneeds to include South Korea and receive the backing of China.176

The Assessment by Commentators

The above “official” view on the success of the PSI is not shared by all U.S. commentators.Some have offered frameworks to assess whether the PSI has been a success, while othershave simply criticized the Bush administration for making false claims of success.

Jofi Joseph has pointed out that it is very difficult for outside experts to render a rigorousassessment of the PSI’s successes because few details have been released.177 He suggestedthat it is important to determine the extent to which the PSI has made additional interdictionspossible. Accordingly, Joseph suggested that:

PSI can be evaluated more conclusively after five or 10 years, when outsidescholars and experts can survey the broad currents of WMD proliferation andbetter determine whether transfers of components and materials between statesor between states and terrorist groups have declined. The release of documentsfrom military and law enforcement archives can shed light on what role its

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operations will have played in restraining international trade in WMD compo-nents and materials. For now, the picture remains incomplete.178

In a letter published by the Washington Times in August 2005, Wade Bose, researchdirector of the Arms Control Association, wrote that while the PSI is a useful initiative, theBush administration should stop making false claims of its success.179 He cited the remarksmade by John Wolf, former assistant secretary of state for nonproliferation, that the BBCChina interdiction was not a PSI operation180 and, therefore, the Bush administration shouldnot attribute that interdiction to the PSI. Bose suggested that, rather than exaggerating thePSI’s accomplishments and embellishing its nonproliferation credentials, President Bushshould let the record speak for itself.

Mohamed El Baradei, director general of the International Atomic Energy Agency, hasasserted that, if you really want to deal adequately with WMD proliferation, you need tostart at the root causes and not just at the later stages when countries are already engagedin WMD commerce.181 In other words, it is important to ask why countries try to obtainWMD or WMD-related materials. In his view, the PSI should be integrated as part ofthe export control regime which should be incorporated as part of a global internationalnonproliferation regime.

Fabrice Pothier has suggested that further evidence is required to support the Bushadministration’s claim that the PSI is an innovative way to increase the risks and costsrelated to WMD proliferation, given that international enforcement strategies have failedto cut the availability or increase the cost of drug trafficking despite massive resourcesinvested in interdiction measures.182 In addition, he noted that it is not clear how newantiproliferation instruments, such as the Container Security Initiative (CSI) and the UNSecurity Council Resolution 1540, interact with the PSI. Moreover, the lack of a plan todefine and codify within the PSI a threshold of probable cause or a burden of proof forsuspicions of WMD trafficking is an area of concern. Pothier commented that the failureof the Bush administration (and the other states cooperating in the PSI) to draw a linebetween legitimate prevention and unlawful interdiction under the PSI is an important flawin the Initiative. He indicated that the intention, if it exists, to expand the application of thedoctrine of self-defense, as outlined by Article 51 of the UN Charter, through the PSI couldset a dangerous precedent.183 Pothier cited the warning remarks made by former CanadianForeign Minister Lloyd Axworthy: “Any time you set a precedent for unilateral intervention,you’re giving a license to everyone else to do the same.”184 Pothier held a skeptical viewwith respect to the usefulness of the PSI, suggesting that the effectiveness of the PSI in thelong term remains an open question.

Squassoni has also raised doubts about the Bush administration’s claims that the PSIhas a record of success.185 She pointed out that since its inception, there has been little bywhich to the measure the PSI’s success. While high-ranking U.S. officials have claimed thatthe PSI was responsible for 11 successful WMD interdictions, it still is not clear how thisachievement compares with efforts conducted prior to the PSI. “Even if PSI has resulted inmore interdictions than before,” she asked, “can this be attributed to the success of PSI oran upsurge in proliferation activity?”186

Cirincione and Williams suggested that, while the PSI is useful for stopping large,observable WMD-related shipments, such as a boatload of centrifuges, it does little to catchsmall but deadly transfers, like a suitcase of plutonium.187 In addition, the PSI is restrictedby its limited geographic reach and legal scope. They asserted that the PSI is not and shouldnot be considered as a silver bullet to prevent WMD proliferation. They argued that the PSI

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should be implemented together with more traditional nonproliferation efforts such as theNPT.188

In his assessment of the performance of the PSI, Thomas D. Lehrman suggested thatthe effectiveness of the Initiative be focused on three factors: (1) the incapability of thePSI core members to fully enforce a comprehensive and global interdiction framework,(2) the potential conflicts between international/maritime legal principles and the PSI,and (3) the growing volume and capacity of global ship and aircraft movements on andover the high seas.189 In order to enhance the effectiveness and legitimacy of the PSI,he argued that the United States and the international community should build on thePSI to create a decentralized network for interdicting WMD. In addition, more effortsneed to be taken: to conclude bilateral PSI shipboarding agreements, to reconcile thePSI and the work of the United Nations (such as, Security Council Resolution 1540 orother resolutions adopted in the future), and to amend the existing international agree-ments (in particular, UNCLOS) so that interdiction of a foreign-flagged vessel suspectedof carrying or transporting WMD-related cargo at sea can be accepted as another excep-tion to the general principle of exclusive national jurisdiction over vessels on the highseas.190

Maritime policy analyst, Mark J. Valencia, gave a very negative assessment of thedevelopment and progress of the PSI by arguing that the Initiative has reached a plateau,suffered from serious shortcomings, lacked sufficient public accountability, stretched if notbroke the existing international law, undermined the UN system, adversely impacted ontrade, been politically divisive, and has had limited effectiveness.191

The Author’s Assessment

A broader perspective must be used to evaluate the effectiveness or success of the PSI.The PSI is not and should not be considered as the only policy measure adopted bythe United States and other states directed at inhibiting WMD proliferation. Other U.S.initiatives include: UN Security Council Resolution 1540,192 nonproliferation assistanceprograms,193 the G-8 Global Partnership Against the Spread of Weapons and Materialsof Mass Destruction,194 shutting down the A. Q. Kahn proliferation network, eliminatingLibya’s WMD program, and export control and related border security assistance.195 Stillother efforts that could be undertaken include seeking: a new UN Security Council reso-lution on WMD, amendments to UNCLOS, adoption of the newly amended Conventionfor the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA)Convention.196 All of these actions are designed to expand the legal authority to board andsearch foreign-flagged vessels suspected of carrying WMD-related cargoes on the high seas.

The PSI can be seen as an innovative and flexible effort to deter WMD proliferation.The Initiative exists outside of the international nonproliferation regime. Key officials inthe Bush administration, noting that the Seventh Review Conference of the Nuclear Non-Proliferation Treaty, held in May 2005, failed to reach consensus on how to stop WMDproliferation, believe that the PSI is a new tool to help prevent the entire nonproliferationregime from collapsing.197 The PSI, however, is not an organization, but a policy mea-sure to deal with the issue of proliferation. While it has the potential to help create normsto help stop the flow of “WMD, their delivery systems, and related materials,” the PSIis not an international legal instrument that binds participating countries. While differentmethods can be used to measure the PSI’s success, the PSI will be assessed from the fol-lowing perspectives: (1) building domestic support within the United States, (2) increasing

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PSI activities, (3) broadening international support, (4) the conclusion of the bilateral ship-boarding agreements, (5) PSI interdictions, and (6) creating rules of customary internationallaw.

Building Domestic Support. The PSI has been successful in attaining support in the UnitedStates, in particular, from the U.S. Congress, to take actions to counter the threat posedby the WMD proliferation. Bills have been introduced either in the Senate or House ofRepresentatives asking the president to expand and strengthen the PSI and to engage theUnited States in the development of a Security Council resolution to authorize the PSI. Billsalso were introduced to authorize money to be used in support of the joint training exercisesconducted under the Initiative.

In May 2005, for example, a concurrent House and Senate resolution recognized andcommended the president and the governments of the other PSI participating countries fortheir “historic efforts and successes of the Proliferation Security Initiative in reducing thethreat posed by illicit weapons of mass destruction, their means of delivery, and relatedmaterials.”198 The resolution called on all responsible nations to endorse the PSI Statementof Interdiction Principles and to cooperate actively to interdict and disrupt illicit trade in“WMD, their delivery systems, and related materials.” It also recognized the importance ofthe PSI as a tool for coordinating diplomatic, law enforcement, customs, intelligence, andmilitary capabilities against the trafficking of WMD and their related materials.199 It is nowalso the position of the U.S. Congress that the full participation of India in the PSI and thatcountry’s formal commitment to the Statement of Interdiction Principles be included in theU.S. policy with respect to South Asia.200

As part of the U.S. effort to prevent trafficking in WMD-related materials, PresidentBush signed Executive Order 13382, which authorizes U.S. law enforcement personnel tofreeze assets and block the transaction of entities and persons engaged in WMD proliferationactivities and their supporters.201 It also denies persons designated under the Order accessto U.S. markets and financial systems and prohibits U.S. citizens, wherever they are located,from engaging with such entities. Eight entities202—three from Iran, four from North Korea,and one from Syria—are designated in the Order, and the secretaries of state and treasuryhave the authority to designate additional proliferation-related entities and those that providesupport to these entities.203 This Executive Order provides the United States with a newtool to stop the flow of WMD-related materials by cutting off financial and other resourcesthat support WMD proliferation networks. In June 2005, President Bush authorized thecreation of a National Security Service within the Federal Bureau of Investigation (FBI)to consolidate the Department of Justice’s intelligence and national security elements, aswell as the establishment of a National Counter Proliferation Center to coordinate U.S.intelligence activities concerning WMD proliferation.204

Increasing PSI Activities. The PSI should also be considered successful in terms of thenumber and frequency of the activities taken under the Initiative. In the two and a half yearssince the launch of the PSI in May 2003, 5 PSI policy-level meetings, 15 PSI operationalexperts meetings, and 23 PSI interdiction training exercises had been held. These meetingsand exercises have improved the participating countries’ understanding and ability to takeaction unilaterally or collectively to stop WMD trafficking in the air, on land, or at sea.Because of the involvement of military, law enforcement, intelligence, legal and diplomaticexperts from participating countries in the PSI meetings and training exercises, it is likelythat coordination has improved among the authorities concerned should a situation occur thatrequires a speedy and effective PSI action. More importantly, the communication channels

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established by the PSI are very useful for intelligence collection and sharing, which are thekey to the PSI.

Broadening International Support. In terms of international support, the PSI has also beensuccessful. Eighteen countries have joined the United States as full participants in the PSI.In addition, according to the United States, more than 70 countries have indicated theirsupport for the PSI. Four of the five permanent members of the UN Security Councilare now full participating countries of the PSI. In addition, at least four of the Council’s10 elected members (Japan, Denmark, Greece, and the Philippines) either participate orsupport the PSI. While only half of the 26 NATO member countries participate fully in thePSI, these 13 countries are considered key members of NATO; namely, Canada, Denmark,France, Germany, Italy, the Netherlands, Norway, Poland, Portugal, Spain, Turkey, theUnited Kingdom, and the United States. Nine of the 25 current members of the EuropeanUnion (EU) are PSI participating countries,205 but it is believed that other Member Statesof the EU support the PSI. All the G-8 members are PSI participating countries (Canada,France, Germany, Italy, Japan, Russia, the United Kingdom, and the United States). TheEU, represented by the president of the European Council and the president of the EuropeanCommission, also participate in the G-8 summits. While not all NATO and EU MemberStates have expressed their support for the PSI, it is the collective position of the twoorganizations to support the Initiative.206

Before the launch of the PSI, the president of the United States and other G-8 leadersagreed to a new global partnership to stop the spread of WMD, WMD-related materials, andtechnology in June 2002 at the G-8 Kananaskis Summit.207 In June 2004, the leaders of the G-8 issued an Action Plan on Global Nonproliferation, which reiterated the strong commitmentand support for the PSI and its Statement of Interdiction Principles, welcomed the increasinglevel of support worldwide for the PSI, and promised to take further cooperative action tostop WMD proliferation in accordance with national legal authorities and consistent withinternational law.208 Again, at the 2005 G-8 Summit, the G-8 members agreed to take action,among other things, to help achieve full implementation of UN Security Council Resolution1540; to provide assistance where necessary and feasible to support the PSI; and to promotedeeper and broader cooperation against proliferation networks, particularly proliferationfinancing.209

The United Nations has also given its support to the PSI. As stated in the 2004 “Reportof the United Nations Secretary-General’s High Level Panel on Threats, Challenges, andChanges”:

Recent experience of the activities of the A.Q. Khan network has demonstratedthe need for and the value of measures taken to interdict the illicit and clan-destine trade in components for nuclear programmes. This problem is currentlybeing addressed on a voluntary basis by the Proliferation Security Initiative. Webelieve that all States should be encouraged to join this voluntary initiative.210

In March 2005, the UN secretary-general, acknowledging that existing nonproliferationagreements and export control regimes are necessary, but not sufficient in eliminating po-tentially hazardous WMD-related materials, stated: “I applaud the efforts of the ProliferationSecurity Initiative to fill a gap in our defense.”211

The Shipboarding Agreements. The signing of the bilateral shipboarding agreements be-tween the United States and Liberia, Panama, the Marshall Islands, Croatia, Cyprus, and

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Belize,212 for the purpose of legalizing possible interdictions against foreign-flagged ves-sels carrying or transporting “WMD, their delivery systems, and related materials” on thehigh seas is seen as another indicator of success for the PSI. In less than 3 years, the UnitedStates, by signing the bilateral ship boarding agreements, has successfully obtained possiblejurisdiction over 60% of the global commercial shipping fleet for the purpose of preventingthe proliferation of WMD-related materials and technology.213 If more countries agree tosimilar shipboarding agreements, the effectiveness and legitimacy of the PSI will be fur-ther enhanced. As noted above, the United States is talking to an additional 20 countriesregarding such agreements.214

PSI Interdictions. The Bush administration stated in May 2005 that, during the periodbetween September 2004 and May 2005, the United States and the other PSI participatingcountries quietly cooperated on 11 successful PSI interdiction actions.215 The followingquestions need to be answered about these interdictions: (1) What is the nature and amountof WMD-related materials that were intercepted? (2) Which “states or non-state actions ofproliferation” were the targets of the action? (3) Where did the 11 interdiction actions takeplace? (4) When were these interdiction actions taken? (5) How many PSI partners wereinvolved in the action and who are they? (6) What was the legal basis for the action taken?(7) What rules of international law or national laws and regulations were used in supportof the action? (8) What were the reactions of the intercepted countries? (9) How were theintercepted WMD-related materials disposed?

The Bush administration cited intelligence concerns as the main reason for not provid-ing detailed accounts of the PSI interdictions. The lack of information does, to some extent,discredit the interdictions as being a measure of the effectiveness and success of the PSI.One commentator, for instance, wrote that “I’m surprised that these [11] successes were notwell publicized, considering the depth of this administration’s commitment to aggressivelyinterdicting MD programs, so were these really successes or just smoke or mirrors?”216

Jeffrey Lewis has attempted to compile a list of the 11 successful PSI efforts.217 How-ever, only nine PSI interdictions could be identified. (See Table 6.) It is unknown if these arethe successful PSI interdictions claimed by the Bush administration. If so, then a questionmark exists regarding the U.S. statements that the implementation of the PSI shows a recordof success. None of the PSI interdiction actions were taken at sea, but instead were takenat ports or in the territory of the intercepting countries. In these actions, Germany and theUnited States are the only PSI core members, while South Africa, Belgium, Taiwan, andDubai are not PSI participating countries, although it is very likely that these countriessupport the Initiative. The legal base for these interdiction actions was principally domesticexport control laws. Moreover, since the actions were taken within the territory of the inter-cepting country, the international law of the sea, including issues like exclusive jurisdictionof the flag state and the right of innocent passage, does not arise. Further information needsto be provided to support claims that the PSI is successful in stopping the spread of “WMD,their delivery systems, and related materials,” in particular, at sea.

The lack of information on PSI interdictions also makes it difficult to assess whether thePSI has been successful in enhancing intelligence collection, intelligence sharing, and coor-dination of interdiction operational procedures among the initiative’s participating countries.As demonstrated in the assessment of Iraq’s WMD program, poor intelligence estimatesby the United States and the United Kingdom has undermined faith in the two countries’intelligence reliability. The credibility of future PSI intelligence assessments would also bequestioned if further evidence is not provided to support the progress made in improvingintelligence collection and intelligence sharing among the PSI participating countries.

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Creating Rules of Customary International Law. One of the PSI’s goals is to create newcustomary international law with respect to interdiction at sea for the purpose of stoppingtransfers and transactions of WMD programs. Judging from the existing practice of the PSIparticipating countries, the PSI Statement of Interdiction Principles, and other relevant PSIactivities, it can be concluded that no new customary international law has been developedso far that provides legal authority for PSI participating countries (or other states) to takeinterdiction action against foreign-flagged vessels suspected of carrying or transporting“WMD, their delivery systems, and related materials” on the high seas. The PSI representsa political commitment to stop WMD-related shipments whenever possible and to improvenational capabilities to conduct interdiction. The lack of a general practice of states inundertaking interdictions to stop WMD shipments at sea makes it difficult to support theargument that the PSI is helping create a new legal norm to stop WMD proliferation.Accordingly, if indeed the development of a new rule of customary international law is oneof the PSI goals, the PSI has not been successful, at least as yet.

Conclusion

This article has looked at the relationship between the PSI and UNCLOS, focusing onissues relating to the implementation, legality, and assessment of the Initiative. The PSI,adopted as a measure to counter the threat posed by the flow of “WMD, their deliverysystems, and related materials” from and to “states and non-state actions of proliferationconcern,” can be considered successful. In less than 3 years, the Initiative has, accordingto the United States, received support from more than 70 countries, including the 18 PSIcore participating countries, which include key members of the UN Security Council, theG-8, NATO, and the EU. While UN Security Council Resolution 1540 failed to explicitlyauthorize interdiction of WMD shipments in the international waters, it did affirm thatWMD proliferation constitutes a threat to international peace and security and called onstates to take cooperative measures to address the threat.218 The adoption of the Resolutionis consistent with the spirit and is in support of the goals of the PSI.

There is room to improve the effectiveness of the PSI. Moreover, more evidence needsto be provided in support of the claim that the Initiative has been successful, such aspublicizing the names of those 70 plus countries that support the PSI and releasing moreinformation on the supposedly successful PSI interdictions. An increase in the number ofcountries that sign bilateral shipboarding agreements with the United States (or with otherstates) will enhance the effectiveness and legality of interdictions.

This article concludes that U.S. accession to UNCLOS would not adversely affect theimplementation and effectiveness of the PSI. On the contrary, U.S. accession to UNCLOScould help increase the U.S. credibility and leadership in dealing with the threat to inter-national peace and security posed by WMD proliferation. On August 31, 2005, AdmiralJames Watkins (retired) and Leon Panetta, chairs of the U.S. Commission on Ocean Pol-icy and Pew Oceans Commission respectively, along with over 70 other national leadersand top ocean law and policy experts, sent a letter to Senate Majority Leader William H.Frist, calling on the Senate to move expeditiously to consider and approve U.S. accessionto UNCLOS.219 The signatories to the letter agreed with President Bush that accession tothe UNCLOS supports vital U.S. national security, economic, and international leadershipinterests. They also stated that accession to the Convention will strengthen the U.S. abilityto defend its important maritime rights, in particular, freedom of navigation and overflight,which are essential to U.S. military mobility, and will enhance U.S. national and homeland

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security efforts. This call is consistent with this article’s argument that accession to theUNCLOS will not hurt U.S. security interests in pursuing the goals of the PSI, but insteadwill enhance them.

Finally, with regard to the question concerning the legality of the PSI under UNCLOS,it is difficult to provide a clear-cut answer since the information relating to specific PSIinterdictions needs to be gathered and assessed. In a real-world circumstance, informationconcerning the location of an interdiction; the nature of the cargo carried and the purposeof its use; the nationality of the interdicted and interdicting vessels; the reliability of theintelligence; the existence of applicable national laws and regulations and bilateral or mul-tilateral international treaties, regimes, or frameworks that deal with the issue of WMDnonproliferation or counter-proliferation; the application of rules of customary interna-tional law, such as the doctrine of self-defense; or the authorization from the UN SecurityCouncil, to name a few, needs to be gathered and examined carefully in order to answer thequestion of whether an interdiction action taken under the PSI is legal under UNCLOS ornot.

Notes

1. See U.S. Department of State, Bureau of Nonproliferation, “Proliferation Secu-rity Initiative Frequently Asked Questions (FAQ), Fact Sheet,” May 26, 2005, available atwww.state/gov/t/np/rls/fs/46839.htm; and see also U.S. Department of State, Bureau of Nonpro-liferation, “Fact Sheet, The Proliferation Security Initiative (PSI),” May 26, 2005, available atwww.state/gov/t/np/ris/fs/46858.htm.

2. They were Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal,Spain, and the United Kingdom. See Sharon Squassoni, “Proliferation Security Initiative (PSI),” CRSReport for Congress, RS21881, June 7, 2005.

3. Canada, Denmark, New Zealand, Norway, Russia, Singapore, and Turkey. Ibid.4. See White House, “President’s Statement on Proliferation Security Initiative,” June 23,

2006, available at www.whitehouse.gov/news/releases/2006/06/20060623.html.5. Ibid.; Secretary of State Condoleezza Rice, “Remarks on Second Anniversary of the Prolif-

eration Security Initiative,” May 31, 2005, available at www.state.gov/secretary/rm/2005/46951.htm;Stephen G. Rademaker, Assistant Secretary for Arms Control, “The Proliferation Security Ini-tiative (PSI): A Record of Success,” Testimony before the House International Relations Com-mittee, Subcommittee on International Terrorism and Nonproliferation, June 9, 2005, available atwww.state/gov/t/ac/rls/rm/47715.htm, and “Conference in Warsaw Addresses Efforts to Stop Spreadof WMDs,” The Canadian Press, June 23, 2006 (LexisNexis News on-line search, page number notavailable).

6. Squassoni, supra note 2, at 2–3.7. Joseph Cirincione and Joshua Williams, “Putting PSI into Perspective,” Carnegie Endow-

ment for International Peace, Proliferation Analysis, available at www.carnegieendowment.org/npp/publications/index.cfm?fa=view&id=16827.

8. Ibid.9. Secretary Rice pointed to 11 examples of successful efforts conducted by the United States

and the 10 PSI partners. See Rice, supra note 5.10. Alexander Pojedinec, “Proliferation Security Initiative: Two Years and Counting,” Center

for Defense Information, July 28, 2005, available at www.cdi.org/. See also Hans Blix’s KeynoteSpeech at the 2006 Arms Control Association, Federal News Service, Jan. 26, 2006 (LexisNexisNews on-line search, page number not available).

11. Wade Boese, “False Claims of PSI Success,” The Washington Times, Aug. 17, 2005, atA16.

12. For the text, see 1833 U.N .T .S. 397.

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13. Remarks by Tommy T. b. Koh, president of the Third United Nations Conference onthe Law of the Sea, on Dec. 6 and 11, 1982, at the final session of the Conference at MontegoBay, Jamaica, available on the Web site of Oceans and Law of the Sea: Division for Ocean Affairsand Law of the Sea, United Nations, at www.un.org/Depts/los/Convention agreements/conventionoverview convention.htm.

14. See the Web site of the Division for Ocean Affairs and Law of the Sea, supra note 13.15. See, for example, Peter Leitner, “Statement,” in United Nations Convention on the Law

of the Sea, Hearing Before the Committee on Environment and Public Works, United States Senate,108th Cong., 2d sess., Mar. 23, 2004, at 93–94; and Frank Gaffney, “Statement,” in United NationsConvention on the Law of the Sea, Hearing Before the Committee on International Relations, House ofRepresentatives, 108th Cong., 2d sess., May 12, 2004, available at commdocs.house.gov/committees/intlrel/hfa93660.000/hfa93660 0.htm. See below infra notes 145–146.

16. See Wade Boese, “Law of the Sea Convention Marooned in Senate,” Arms Control Today,May 2004, available at www.armscontrol.org/act/2004 05/PSI.asp.

17. Hearings on UNCLOS were held by: the Senate Foreign Relations Committee (Oct. 14and 21, 2003), the Senate Committee on Environment and Public Works (Mar. 23, 2004), the SenateArmed Services Committee (Apr. 8, 2004), the House Committee on International Relations (May12, 2004), and the Senate Select Committee on Intelligence (June 8, 2004).

18. For “Questions from Senator Richard G. Lugar, Nomination hearing for Dr. CondoleezzaRice, January 18 and 19, 2005, in relation to the Law of the Sea and the Bush Administration’sratification efforts,” see “Background for the GAO Study of UNCLOS,” Attachment 4, available onthe Web site of Center for Leadership in Global Diplomacy at www.clgd.org/.

19. The Nomination of John R. Bolton to be U.S. Representative to the United Nations withrank of Ambassador and U.S. Representative to the United Nations Security Council and U.S. Repre-sentative to Sessions on the United Nations General Assembly during the Tenure of Service as U.S.Representative to the United Nations, Senate, 109th Cong., 1st sess., Exec. Rept. 109–01, May 18,2005.

20. White House, The National Security Strategy of the United States of America(Washington, DC: U.S. Government Printing Office, September 2002), available at www.whitehouse.gov/nsc/nss.pdf.

21. “President Bush Delivers Graduation Speech at West Point, June 1, 2002,” available atwww.whitehouse.gov/news/releases/2002/06/print/20020601-3.html.

22. The National Security Strategy, supra note 20, at 14.23. Ibid.24. Ibid.25. White House, National Strategy to Combat Weapons of Mass Destruction (Washington,

DC: U.S. Government Printing Office, Dec. 2002), available at www.whitehouse.gov/news/releases/2002/12/WMDStrategy.pdf.

26. Ibid., at 2.27. See Larry A. Niksch, “North Korea’s Nuclear Weapons Program,” CRS Issue Brief for

Congress, updated Aug. 31, 2005; Daryl G. Kimball, “Getting Serious about North Korea,” ArmsControl Today, Dec. 2005; Paul Kerr, “North Korea Nuclear Talks Stall,” Arms Control Today, Dec.2005; and Frederic L. Kirgis, “North Korea’s Missile Firings,” ASIL Insight, vol. 10, no. 18, July 24,2006.

28. For a detailed account of the So San incident, see Daniel H. Joyner, “The ProliferationSecurity Initiative: Nonproliferation, Counterproliferation and International Law,” 30 Yale Journal ofInternational Law 507 (2005), at 507–508. See text accompanying infra note 132.

29. “Remarks of the President to the People of Poland, Wawel Royal Castle, Krakow, Poland,May 31, 2003,” available at www.whitehouse.gov/news/releases/2003/ 05/20030531-3.html.

30. See White House Press Release, “Iran’s Nuclear Program Concerns Bush Administration,June 18, 2003,” cited in Jennifer K. Elsea, “Weapons of Mass Destruction Counterproliferation: LegalIssues for Ships and Aircraft,” CRS Report for Congress, Oct. 1, 2003, at 2.

31. “Fact Sheet: The Proliferation Security Initiative (PSI),” May 26, 2005, supra note 1.

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32. Ibid.33. “Statement of the President of the UN Security Council,” 3046th meeting, U.N. Doc.

S/23500 (1992), available at projects.sipri.se/cbw/docs/cbw-unsc23500. html.34. U.N. Security Council Resolution 1540, adopted Apr. 28, 2004, available at daccess-

dds.un.org/doc/UNDOC/GEN/N04/328/43/PDF/N0432843.pdf?OpenElement.35. “Fact Sheet, The Proliferation Security Initiative (PSI),” May 26, 2005, supra note 1.36. For instance, see Rademaker, supra note 5 and John R. Bolton, Under Secretary of State

for Arms Control and International Security, “The Bush Administration’s Nonproliferation Policy:Successes and Future Challenge,” Testimony before the House International Relations Committee,Mar. 30, 2004, available at wwwc.house.gov/ international relations/108/bolt033004.htm.

37. Canada, Department of Foreign Affairs, “Backgrounder: The Proliferation Security Initia-tive,” June 15, 2004, available at www.forces.gc.ca/site/Newsroom/view news e.asp? id=1329.

38. Ibid.39. See Ministry of Foreign Affairs of Japan, “The Proliferation Security Initiative (PSI) Mar-

itime Interdiction Exercise ‘Team Samurai 04,’ (Overview and Evaluation),” Oct. 28, 2004, availableat mofa.go.jp/policy/un/disarmament/arms/psi/overview0410.html.

40. Singapore, Ministry of Defense, “Singapore’s Participation in the Proliferation SecurityInitiative (PSI),” Jan. 11, 2004, available at www.mindef.gov.sg/display.asp?number=1980.

41. Ministry of Foreign Affairs of the Russian Federation, Information and Press Department,press release, “On Russia’s Participation in Proliferation Security Initiative (PSI),” no. 1224-31-05-2004, unofficial translation from Russian, June 1, 2004, available at www.ln.mid.ru/bl.nsf/0/2e1470910be746b6c3256ea600359aef?OpenDocument.

42. “Proliferation Security Initiative Frequently Asked Questions (FAQ), Fact Sheet,” May 26,2005, supra note 1.

43. “Fact Sheet, The Proliferation Security Initiative (PSI),” May 26, 2005, supra note 1.44. Ibid.45. See John R. Bolton, under secretary for arms control and international security, “Stopping

the Spread of Weapons of Mass Destruction in the Asian-Pacific Region: The Role of the ProliferationSecurity Initiative,” speech delivered at the Tokyo American Center, Tokyo, Japan, Oct. 27, 2004,available at www.state.gov/t/us/rm/37480.htm.

46. “President Announces New Measures to Counter the Threat of WMD, Remarks by Pres-ident Bush on Weapons of Mass Destruction Proliferation,” Fort Lesley J. McNair, National De-fense University, Feb. 11, 2004, available at www.whitehouse.gov/news/releases/2004/02/20040211-4.html.

47. Statement of Interdiction Principles, supra note 35.48. “President Announces New Measures,” supra note 46.49. Wade Boese and Miles Pomper, “The New Proliferation Security Initiative—An inter-

view with John Bolton,” Arms Control Today, Nov. 4, 2003, available at www.armscontrol.org/aca/midmonth/November/Bolton.asp.

50. U.S. Department of State, “The United States and Belize Proliferation Security InitiativeShip Boarding Agreement,” Aug., 4, 2005, available at www.state.gov/r/pa/prs/ps/2005/50787.htm.

51. Agreement Between the Government of the United States of America and the Governmentof the Republic of Liberia Concerning Cooperation to Suppress the Proliferation of Weapons ofMass Destruction, Their Delivery Systems, and Related Materials by Sea, signed Feb. 11, 2004,provisionally applied from February 11, 2004, and entered into force December 9, 2004. The text ofthe Agreement is available at www.state.gov/t/np/trty/32403.htm.

52. Amendment to the Supplementary Arrangement Between the Government of the UnitedStates of America and the Government of the Republic of Panama to the Arrangement Between theGovernment of the United States and the Government of Panama for Support and Assistance fromthe United States Coast Guard for the National Maritime Service of the Ministry of Governmentand Justice, signed May 12, 2004, provisionally applied from May 12, 2004, and entered into forceDecember 1, 2004. The text of the February 2002 U.S.-Panama Supplementary Arrangement on U.S.Coast Guard Assistance is available at www.state.gov/t/np/trty/32858.htm.

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53. Agreement Between the Government of the United States of America and the Governmentof the Republic of the Marshall Islands Concerning Cooperation to Suppress the Proliferation ofWeapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea, signed August13, 2004, provisionally applied from Aug. 13, 2004, and entered into force Novmber 24, 2004. Thetext of the Agreement is available at www.state.gov/t/np/trty/35237.htm.

54. Agreement Between the Government of the United States of America and the Governmentof the Republic of Croatia Concerning Cooperation to Suppress the Proliferation of Weapons of MassDestruction, Their Delivery Systems, and Related Materials by Sea, signed June 1, 2005 and will enterinto force on the date of receipt of the last written notification through diplomatic channel by whichthe Parties inform each other that the necessary internal procedures of each Party for its entry intoforce have been completed. The text of the Agreement is available at www.state.gov/t/np/trty/47086.htm.

55. Agreement Between the Government of the United States of America and the Governmentof the Republic of Cyprus Concerning Cooperation to Suppress the Proliferation of Weapons ofMass Destruction, Their Delivery Systems, and Related Materials by Sea, signed July 25, 2005 andwill enter into force upon an exchange of notes indicating that the internal procedures of each partynecessary for its entry into force have been completed. The text of the Agreement is available atwww.state.gov/t/np/trty/50274.thm.

56. Agreement Between the Government of the United States of America and the Govern-ment of Belize Concerning Cooperation to Suppress the Proliferation of Weapons of Mass De-struction, Their Delivery Systems, and Related Materials by Sea, signed August 4, 2005 and willenter into force upon an exchange of notes indicating that the internal procedures of each partynecessary for its entry into force have been completed. The text of the Agreement is available atwww.state.gov/t/np/trty/50809.htm.

57. Bolton, supra note 45.58. Statement of Interdiction Principles, supra note 35.59. “On Russia’s Participation in Proliferation Security Initiative (PSI),” supra note 41.60. See White House, “President’s Statement on the Proliferation Security Initiative,” May 31,

2005, available at http://www.whitehouse.gov/news/releases/2005/05/20050531-1.html.61. See U.S. Department of State, “Remarks on the Second Anniversary of the Proliferation

Security Initiative,” May 31, 2005, available at: http://www.state.gov/secretary/rm/2005/46951.htm.62. See the Chairman’s Statement of the Meeting, available at www.psi.msz.gov.pl.63. “Fact Sheet, The Proliferation Security Initiative (PSI),” May 26, 2005, supra note 1.64. Statement of Interdiction Principles, supra note 35.65. Ibid., para. 1–4.66. Ibid., para. 4(d).67. Bolton, supra note 45.68. “North Korea Radio Commentary Decries US for ‘Blockade’ Manoeuvres,” BBC Moni-

toring International Reports, June 19, 2003.69. Ibid.70. See Robert T. Grey Jr., “North Korea Up in Arms; UN Resolutions Could Help Matters,”

The Washington Times, Aug. 14, 2003, at A19.71. See text accompanying infra notes 135–136.72. “N Korea Condemns Taiwan’s Cargo Seizure as US-Led ‘Criminal Act,”’ Agence France

Presse, Aug. 21, 2003; and “North Korea Criticized Taiwan, US over Search of Ship, seizure ofCargo,” BBC Monitoring International Reports, Aug. 21, 2003.

73. Ibid.74. “North Korea Denies US Claim over ‘Import of Chemical, Nuclear Substances,”’ BBC

Monitoring International Reports, June 13, 2005.75. “North Korean TV Denounces South over Participation in US Joint Training,” BBC Mon-

itoring Asia Pacific—Political, Feb. 19, 2006 (LexisNexis News on-line search, page number notavailable).

76. Treaty on the Non-Proliferation of Nuclear Weapons, 21 U.S.T . 483 (1970).

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77. See Michael Richardson, “Between a Rogue and a Hyperpower,” South China MorningPost, Dec. 12, 2003, at. 17.

78. Ibid.79. See Mark Huband and James Kynge, “US Calls on China to Help curb Spread of Nuclear

Arms,” Financial Times (London), Feb. 17, 2004, at. 10.80. “Beijing Silent on Alleged Chinese Nuclear Weapons Designs Found in Libya,” Agence

France Presse, Feb. 17, 2004 (LexisNexis News on-line search, page number not available).81. See “China-Military,” China Business News On-line, Sept. 2, 2005; “China Won’t Sign

on to PSI,” UPI, Sept. 2, 2005; and “Proliferation Security Initiative May Violate Intl Law—China,”News Bulletin, Sept. 1, 2005.

82. See Vladimir Radyuhin, “Pakistan Must Plug N-Leaks,” The Hindu, Jan. 31, 2004. (Lex-isNexis News on-line search, page number not available).

83. “US Fails to Get Russia on Board in Fight Against Spread of WMD,” Agence FrancePresse, Jan. 30, 2004 (LexisNexis News on-line search, page number not available).

84. See “Converting Threat into Cooperation,” The Moscow Times, Apr. 9, 2004; MariaPshenichnikova, “Russia, US Continue Contact on Bush-Proposed PSI,” TASS, Apr. 10, 2004; and“Top Russian diplomat urges tighter controls over WMD-related materials,” BBC Monitoring For-mer Soviet Union—Political, April 10, 2004 (Text of report by ITAR-TASS news agency, Moscow, inRussian, April 10, 2004).

85. “On Russia’s Participation in Proliferation Security Initiative (PSI),” supra note 41.86. Ibid.87. The Sino-Russian Statement on New World Order is available at www.chinanews.

cn/news/2004/2005-07-02/7048.shtml. Also, see “China, Russia, and the Shanghai Agenda,” TheHindu, July 4, 2005.

88. The Convention is not in force. For the text and summary of International Convention forthe Suppression of Acts of Nuclear Terrorism (New York, April 13, 2005), visit United Nations TreatyCollection: Convention on Terrorism, available at: http://untrety.un.org/English/Terrorism.asp

89. For details see “The Global Initiative to Combat Nuclear Terrorism,” Fact Sheet,Office of the Press Secretary, The White House, July 15, 2006, available at www.state.gov/t/isn/rls/fs/69062.htm.

90. “Indo-US Proliferation Talks Soon,” The Times of India, Mar. 30, 2004.91. “Indo-US Proliferation Talks Soon,” The Times of India, Mar. 30, 2004.92. Daily Press Summary for April 14, 2004, Global News Wire, Apr. 13, 2004.93. Achin Vanaik, an independent security analyst and political science professor at Delhi

University, cited in Praful Bidwai, “Asia: Dropping Non-Alignment, India and U.S. Tighten MilitaryTie,” Inter Press Services, July 4, 2005.

94. “New Framework for the U.S.-India Defense Relationship,” June 28, 2005, available atwww.indianembassy.org/press release/2005/June/31.htm.

95. “Joint Statement Between President George W. Bush and Prime Minister ManmohanSingh,” July 18, 2005, available at www.state.gov/p/sa/rls/pr/2005/49763.htm.

96. Robert G. Joseph, Under Secretary of State for Arms Control and International Security,Sept. 5, 2005, “Statement,” House Committee on International Relations, Hearing on the U.S. and In-dia: An Emerging Entente? available at wwwc.house.gov/international relations/109/ Jos090805.pdf.

97. Ibid.98. HR 5682, United States and India Nuclear Cooperation Promotion Act of 2006 (Reported

in the House), available at www.thomas.gov.99. See S3709, An original bill to exempt from certain requirements of the Atomic Energy

Act of 1954 United States exports of nuclear materials, equipment, and technology to India, and toimplement the United States Additional Protocol, Title I: the United States-India Peaceful AtomicEnergy Cooperation, SEC. 103. DECLARATION OF POLICY CONCERNING UNITED STATES-INDIA PEACEFUL ATOMIC ENERGY COOPERATION, available at www.thomas.gov.

100. Questions from Senator Lugar, supra note 18.101. Bolton, supra note 19.

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102. “Proliferation Security Initiative Frequently Asked Questions (FAQ), Fact Sheet,” supranote 1. Respecting U.N. Security Council Resolution 1540, see supra note 34.

103. Benjamin Friedman, “The Proliferation Security Initiative: The Legal Challenge,” A PolicyBrief written for the Bipartisan Security Group, Sept. 4, 2003, at 8.

104. Devon Chaffee, “Freedom or Force on the High Seas? Arms Interdiction and InternationalLaw,” Waging Peace, Web site of the Nuclear Age Peace Foundation, Aug. 15, 2003, available atwww.wagingpeace.org/articles/03.08/0815chaffee freedom-or-force.htm. The article also appears inScience for Democratic Action, vol. 12, no. 3, June 2004, at 1–10.

105. See Daniel Joyner, “The Proliferation Security Initiative: Nonproliferation, Counterprolif-eration & International Law,” Yale Journal of International Law, vol. 30, 2005, at 507; Michael Byers,“Policing the High Seas: The Proliferation Security Initiative,”American Journal of International Law,vol. 98, 2004, at 526–545; Andreas Persbo and Ian Davis, “Sailing Into Uncharter Waters? The Pro-liferation Security Initiative and the Law of the Sea,” Basic Research Report, the British AmericanSecurity Information Council, June 2004, available at www.basicint.org/pubs/Research/04PSI.htm;Christer Ahlstrom, “The Proliferation Security Initiative: International Law Aspects of the Statementof Interdiction Principles,” in Non-Proliferation, Arms Control, Disarmament, 2004, Chap. 18, at741–767; Jack I. Garvey, “The International Institutional Imperative for Countering the Spread ofWeapons of Mass Destruction: Assessing the Proliferation Security Initiative,” Journal of Conflict& Security Law (2005), vol. 10, at 125–147; Erin E. Harbaugh, “The Proliferation Security Initia-tive: Counterproliferation at the Crossroads,” Strategic Insights, vol. III, no. 7 (July 2004); Soo-haYang, “Legal Basis for State Interception of Shipments on High Seas: Legality of the Naval Inter-diction under the ‘Proliferation Security Initiative,”’ Oct. 1. 2003, Brooklyn Law School, availableat www.peacekorea.org/main/board/view.php?id=essay&no=27; Michael A. Becker, “The ShiftingPublic Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea,” HarvardInternational Law Journal, vol. 46, 2005, at 131–230; Mark J. Valencia, “Why Interdiction CouldFail?” Far Eastern Economic Review, Aug. 28, 2003, at 23; Mark J. Valencia, “Pressing for SeaChange: Washington Seeks Rights to Interdict Suspect Foreign Ships,” The Washington Times, Aug.25, 2003, at A15; and Samuel E. Logan, “The Proliferation Security Initiative: Navigating the LegalChallenge,” Journal of Transnational Law and Policy, vol. 14, 2005, at 253–274.

106. See the Web site of the Division for Ocean Affairs and the Law of the Sea, supra note 13.107. 516 U.N .T .S. 205.108. 450 U.N .T .S. 11.109. See Michael A. Becker, “The Shifting Public Order of the Oceans: Freedom of Navigation

and the Interdiction of Ships at Sea,” Harvard International Law Journal, vol. 46, 2005, at 131;Ian Patrick Barry, “The Right of Visit, Search and Seizure of Foreign Flagged Vessels on the HighSeas Pursuant to Customary International Law: A Defense of the Proliferation Security Initiative,”and Hugo Caminos and Michael R. Molitor, “Perspectives on the New Law of the Sea: ProgressiveDevelopment of International Law and the Package Deal,” American Journal of International Law,vol. 79, 1985, at 871.

110. David P. Fidler, “Weapons of Mass Destruction and International Law,” ASIL Insights, Feb.2003, available at www.asil.org/insights/insight97.htm.

111. U.S. Code, Title 50 “War and National Defense,” Chap. 40 “Defense against weapons ofmass destruction,” Sect 2302 “Definition,” 50 USCS §2302 (2005).

112. U.N. Security Council Resolution 1540, supra note 34.113. Ibid.114. Article 25 of the U.N. Charter provides that “The Members of the United Nations agree to

accept and carry out the decisions of the Security Council in accordance with the present Charter.”115. U.N. Security Council Resolution 1540, supra note 34, para. 10. Under operative para.

4, a Committee of the Security Council, known as the 1540 Committee, was established with a 2-year mandate that ended in April 2006. Member States of the United Nations were asked to presentnational reports no later than 6 months from the adoption of the Resolution (i.e, April 28, 2004) tothe Committee on the steps they have taken or intend to take to implement the Resolution. On April

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17, 2006, the UN Security Council adopted Resolution 1673, which extends the mandate of the 1540Committee for a further 2 years until April 27, 2008.

116. Opened for signature in January 1993, entered into force on April 29, 1997. The text isavailable at www.opcw.org/html/db/cwc/eng/cwc frameset.html. As of October 16, 2005, there were174 states parties, including the United States.

117. Treaty on the Nonproliferation of Nuclear Weapons, supra note 72. As of September 2005,there were 189 states parties to this Treaty.

118. Opened for signature on April 10, 1972, entered into force March 26, 1975. The text isavailable at disarmament.un.org:8080/TreatyStatus.nsf. As of September 2005, there were 152 stateparties to the Convention.

119. Statement of Interdiction Principles, supra note 35, para. 4(d).120. UNCLOS, supra note 12, art. 56.121. Ibid., art. 56, para. 2.122. Ibid., Art. 220, para. 5, 6.123. U.N. Security Council Resolution 1540, supra note 34.124. UNCLOS, supra note 12, art. 86, 87.125. See supra notes 51–56.126. UNCLOS, supra note 12, art. 110, para. 1.127. U.S.-Panama Agreement, supra note 52.128. “Foreign Ministry Statement on Yinhe Affairs; Public Apology from USA Demanded,”

BBC Summary of World Broadcasts, Sept. 6, 1993. For detailed discussion on the incident, seeZhao Lihai, “On Legal Responsibility for the Yinhe Incident,” Central Political Management CadreAcademy Review, 1994, at 36, 40–43 (in Chinese); Li Yin, “The Yinhe Incident and International Law:On State’s Sovereignty, Freedom of Navigation, and State Responsibility,” Politics and Law Journal,no. 3, 1994, at 61–64 (in Chinese); and Lin Fong, “The Yinhe Incident and International Law,”LawReview, no. 3, 1994, at 80–81 (in Chinese).

129. “All Crew Members of Suspect North Korean Ship Arrested,” BBC Summary of WorldBroadcasts, July 10, 1999; “N.Korean Ship Taking Missile Parts to Pakistan: India,” Japan Eco-nomic Newswire, July 10, 1999; and “Indian Seizes Suspect Missile Ship,”Courier Mail (Queensland,Australia), July 5, 1999.

130. See “International: Tensions Rise over North Korea Cargo,” Lloyd’s List, Sept. 6, 1999.131. “Business News: Sea Views: ABS Hails Classification Societies Action,” Gulf News, Feb.

28, 2000.132. See Andrew Ward, “Ship Sparks Escalation in US-North Korea Dispute,” Financial Times,

Dec. 12, 2002, at. 5.; Peter Speigel, James Harding, and Mark Huband, “US Releases Cargo ShipFound with 15 Scuds,” Financial Times, Dec. 12, 2002, at. 1; Barbara Slavin, “U.S. Lets YemenReceive Missiles,” USA Today, Dec. 12, 2002; and Brian Knowlton, “North Korean Ship Seized withScuds,” International Herald Tribune, Dec. 12, 2002, at. 1, 4.

133. See “Security—Box Seizure that Put Rogue State Libya on the Right Track,” Lloyd’s List,Jan. 15, 2004; “Nuke Components Headed to Libya Seized,” The Mercury (Australia), Jan. 2, 2004;“Ship Incident May Have Swayed Libya: Centrifuges Intercepted in September,” The WashingtonPost, Jan. 1, 2004; and Barry Schweid, “U.S. Nabbed Libya Nuke Parts,” CBS News Online, Jan. 1,2994, available at www.cbenews.com/stories/2004/01/14/world/main593139.shtml.

134. “False Claims of PSI Success,” The Washington Times, Aug. 17, 2005, at A16.135. See “US Praises Taiwan for Seizure of Chemicals Aboard North Korean Freighter,”

BBC Monitoring International Report, Aug. 13, 2003; James Brooke, “World Briefing Asia: Tai-wan: Suspect Chemical taken from North Korean Freighter,” The New York Times, Aug. 12, 2003,at. A6; and “Taiwan Seizes Chemical Cargo from N Korean Ship,”Channel NewsAsia, Aug. 13,2003.

136. See “N Korea Condemns Taiwan’s Cargo Seizure as US-Led ‘criminal Act,”’ AgenceFrance Presse, Aug. 21, 2003; and “North Korea Criticized Taiwan, US over Search of Ship, Seizureof Cargo,” BBC Monitoring International Reports, Aug. 21, 2003.

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137. “Taiwan Part of Global Anti-Terrorism Actions—Minister,” BBC Monitoring AsiaPacific—Political, Nov. 18, 2004 (LexisNexis online search, page number not available).

138. See “Explosive but Not Terrorists,” Intelligence Online, July 4, 2003; and “This ShipCarried the Bombs,” Turkish Daily News, Dec. 2003 Page: 1.

139. “’Black Ship’ Down,” Al-Ahram Weekly Online, July 10–16, 2003, no. 646, available atweekly.ahram.org.eg/2003/646/in3.htm.

140. “Greece Sets Free Jailed Azeri Sailors,” BBC Monitoring International Reports, Dec. 26,2003.

141. Greek Merchant Marine Minister George Anomeritis told reporters that “[t]he team dis-covered 680 tonnes of explosives and 18,000 detonators on board the ship, making it a floating‘nuclear bomb”’ and that “[n]o one would call legal a cargo that is going around the Mediter-ranean for a month.” Vasilis Kapralos, an explosives specialist, also said that “[i]f one detonatorhad gone off, . . . it would have caused the whole load to explode, resulting in a 2.5 kilometreshock wave and the disappearance of a small city from the map.” “ ‘Black ship’ down,” supra note139.

142. “Comoros Authorities Say ‘Baltic Sky’ Not on Ship Registry,” Athens News Agency, June25, 2003.

143. See Boese, supra note 16.144. See Dour Wrenn, “ ‘L.O.S.T’ Treaty Appropriately Named,” Magic City Morning Star,

Jan. 27, 2005, available at magic-city-news.com/printer 2894.shtml.145. Leitner, supra note 15.146. See Frank J. Gaffney Jr. “Responses to Additional Questions from Senator Murkowski,” in

United Nations Convention on the Law of the Sea, Hearing before the Committee on Environment andPublic Works, United States Senate, 108th Congr., 2nd sess., Mar. 23, 2004, at 82. See also Gaffney,supra note 15.

147. William H. Taft, Legal Adviser, U.S. Department of State, “Written Statement,” before theSenate Armed Services Committee on April 8, 2004, concerning Accession to the 1982 Law of theSea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the SeaConvention (Senate Treaty Doc. 1103-39l Senate Executive Rep. 108–10), at 6.

148. Rear Admiral William L. Schachte, U.S. Navy (retired), “Statement,” before the SenateArmed Services Committee Regarding the Law of the Sea Convention, April 8, 2004.

149. Statement of John F. Turner, Assistant Secretary, Bureau of Oceans and InternationalEnvironmental and Scientific Affairs, U.S. Department of State accompanied by William H. Taft IV,Chief Legal Counsel, U.S. Department of State, in United Nations Convention on the Law of theSea, Hearing before the Committee on Environment and Public Works, United States Senate, 108thCongr., 2d sess., Mar. 23, 2004, at 14.

150. Questions from Senator Lugar, supra note 18.151. Senator Lugar’s Letters to Senate Colleagues about U.S. Leadership and the Law of

the Sea, Letter #6, Enhancing the Proliferation Security Initiative, Mar. 30, 2003, available at lu-gar.senate.gov/sfrc/colleague.html.

152. Senator Lugar’s Letters to Senate Colleagues about U.S. Leadership and the Law of theSea, Letter #1, National Security Benefits, Mar. 8, 2004, available at lugar.senate.gov/sfrc/colleague.html.

153. See “Senate Advice and Consent to the Law of the Sea Convention: United States SecurityInterests,” prepared testimony of John Norton Moore before the Senate Committee on Armed Services,Apr. 8, 2004.

154. Gaffney, supra note 146, and Gaffney, supra note 15.155. See supra notes 51–56.156. Gaffney, supra note 15.157. Ibid.158. U.N. Security Council Resolution 1540, supra note 34, para. 8.159. Gaffney, supra note 15.160. Moore, supra note 153.

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161. John R. Bolton, under secretary for arms control and international security, “PressConference on the Proliferation Security Initiative,” Krakow, Poland, May 31, 2004, available atwww.state.gov/t/us/rm/33556.htm.

162. Ibid.163. Bolton, supra note 45.164. Ibid.165. White House, “President’s Statement on the Proliferation Security Initiative,” May 31,

2005, available at www.whitehouse.gov/news/release/2005/05/20050531-1.html.166. Ibid.167. Rice, supra note 5.168. Ibid.169. Rademaker, supra note 5.170. White House, “Statement on Progress in Achieving the President’s Nonproliferation Pro-

posals,” June 17, 2005, available at www.whitehouse.gov/news/releases/2005/print/20050617-6.html.171. Ibid. See U.N. Security Council Resolution 1540, supra note 34.172. See “Broadening and Deepening Our Proliferation Security Initiative Cooperation,” re-

marks prepared by Robert G. Joseph, under secretary for arms control and international security,Warsaw, Poland, June 23, 2006, available at www.state.gov/t/us/rm/68269.htm.

173. Ed Royce, “Statement on Proliferation Security Initiative: Hearing Examines MultilateralProgram to Stem Proliferation of WMD,” News Release, International Terrorism and NonproliferationSubcommittee, June 9, 2005.

174. Ibid.175. Ibid.176. See Stefan Nicola, “WMD Trafficking Hard to Stop Without China,” SINO Daily, June 9,

2005, available at www.sinodaily.com/news/nuclear-blackmarket-05y.html.177. Jofi Joseph, “The Proliferation Security Initiative: Can Interdiction Stop Prolifera-

tion?”Arms Control Today, June 2004, available at www.armscontrol.org/act/2004 06/Joseph.asp.178. Ibid.179. Boese, supra note 11.180. “The Bush Administration’s Nonproliferation Policy: An Interview with Assistant Secre-

tary of State for Nonproliferation John S. Wolf,” May 13, 2004, Arms Control Today, available atwww.armscontrol.org/interviews/Wolf.asp?print.

181. See “Weapons of Mass Destruction and the Proliferation Dilemma: Interview with Dr.Mohamed El Baradei, Director General of the International Atomic Energy Agency,” Dec. 2, 2003,Fletcher Forum World Affairs, vol. 28, winter 2004, at 39–40.

182. Fabrice Pothier, “The Proliferation Security Initiative: Towards a New Anti-ProliferationConsensus?” Basic Notes, Occasional Papers on International Security Policy, Nov. 18, 2004, availableat www.basicint.org/pubs/Notes/BN041118.htm.

183. Ibid.184. Geoffrey York, “Canada Part of Ship-Intercept Plan,” Toronto Globe and Mail, Feb. 16,

2004, cited in Ibid.185. Squassoni, supra note 2.186. Ibid., at 3.187. Cirincione and Williams, supra note 7.188. Ibid.189. Thomas D. Lehrman, “Rethinking Interdiction: The Future of Proliferation Security Ini-

tiative,” The Nonproliferation Review, vol. 11, no. 2, 2004, at 1–45.190. Ibid.191. See Mark J. Valencia, “The Proliferation Security Initiative: Making Waves in Asia”, IISS,

Adelphi Paper 376; and Mark J. Valencia, “The Proliferation Security Initiative and Asia,” paperpresented at the 2006 Law of the Sea Institute Conference: Oceans in the Nuclear Age: Legacies andRisks: A Conference to Examine the Legacies and Future Implications of the Nuclear Age for theOceans, Boalt Hall School of Law, University of California, Berkeley, Feb. 10–11, 2006.

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192. President Bush proposed the resolution in September 2003 and it was adopted on April28, 2004. U.N. Security Council Resolution 1540, supra note 34.

193. To address the WMD threat in the former Soviet Union, the United States has investedheavily in the Nunn-Lugar Cooperative Threat Reduction Program and other related, critically im-portant cooperative efforts. Since adopted in late 1991, these programs have provided U.S. technicalexpertise and over U.S.$9 billion for cooperative projects to safeguard and destroy WMD and relatedmaterials, technology, and infrastructure and to prevent the proliferation of WMD expertise.

194. This partnership, proposed by President Bush, was launched by G-8 leaders at the June2002 Kananaskis Summit. Its goal is to prevent terrorists, or states that support them, from acquiring ordeveloping WMD. See “Fact Sheet: G-8 Summit—-Preventing the Proliferation of Weapons of MassDestruction,” available at www.whitehouse.gov/news/releases/2002/06/20020627-7.html. “The G8Global Partnership Against the Spread of Weapons and Materials of Mass Destruction,” is availableat www.g7.utoronto.ca/ summit/2002kananaskis/arms.html.

195. Bureaus of Nonproliferation and Public Affairs, U.S. Department of State, “U.S. InitiativesTo Prevent Proliferation,” May 27, 2005, available at www.state/gov/t/np/rls/other/46896.htm.

196. See 2005 SUA Amendments, supra note 88.197. See, for example, Statement by Assistant Secretary Stephen Rademaker, Assistant Secretary

of State for Arms Control at the 2005 NPT Review Conference, United Nations General Assembly,May 2, 2005, available at www.usembassy.it/file2005 05/alia/a5050306.htm; and Closing Statementby Ambassador Jackie W. Sanders, Special Representative of the President for the Non-Proliferationof Nuclear Weapons to the 2005 Review Conference of the Treaty on the Non-Proliferation of NuclearWeapons, May 27, 2005, available at usinfo.state.gov/xarchives/. See also Harald Muller, “The 2005NPT Review Conference: Reasons and Consequence of Failure and Options for Repair”, No. 31, TheWeapons of Mass Destruction Commission, available at www.wmdcommission.org/files/No31.pdf.

198. “A concurrent resolution recognizing and commending the President and the governmentsof other countries that have participated in the Proliferation Security Initiative for the historic effortsand successes of the Proliferation Security Initiative in reducing the threat posed by illicit traffickingin weapons of mass destruction, their means of delivery, and related materials, on the occasion of thesecond anniversary of the establishment of the Proliferation Security Initiative,” S. Con. Res. 40, May26, 2005, sponsored by Senator Richard G. Lugar available at thomas.loc.gov.

199. Ibid.200. See supra notes 98–99.201. White House, Executive Order: Blocking Property of Weapons of Mass Destruction Pro-

liferation and Their Supporters, June 29, 2005, available at www.whitehouse.gov/news/releases/2005/06/print/20050629.html. See: Robert Joseph, under secretary for arms control and internationalsecurity, “Remarks to the Institute of Defense and Strategic Studies,” Aug. 15, 2005, available in TheFederal News Services, August 18, 2005.

202. The term “entity” is defined in the Executive Order, supra note 201, as “a partnership,association, trust, joint venture, corporation, group, subgroup, or other organization.” The eight entitiesincluded in the Annex to the Order are: Korea Mining Development Trading Corporation, TanchonCommercial Bank, Korea Ryonbong General Corporation, Aerospace Industries Organization, ShahidHemmat Industrial Group, Shahid Bakeri Industrial Group, Atomic Energy Organization of Iran, andScientific Studies and Research Center.

203. See Joseph, supra note 201.204. “Bush Approves Recommendation on Intelligence Changes,” available at us-

info.state.gov/is/ Archive/2005/Jun/30-636385.html.205. Denmark, France, Germany, Italy, the Netherlands, Poland, Portugal, Spain, and the United

Kingdom.206. See Preventing Proliferation of Weapons of Mass Destruction of Mass Destruction: The

WU Contribution, Report with Evidence, House of Lords, European Union Committee, published onApr. 5, 2005, para. 59.

207. See supra note 194.

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208. “G8 Issues Action Plan on Global Nonproliferation,” International Information Programs,U.S. Department of State, available at usinfo.state.gov/ei/Archive/2004/Jun/09-240826.html.

209. White House, “Accomplishments at the G8 Summit,” July 8, 2005, available atwww.whitehouse.gov/g8/.

210. A More Secure World: Our Shared Responsibility, Report of the Secretary-General’sHigh-level Panel on Threats, Challenges and Change (2004) at para. 132, available at www.un.org/secureworld/.

211. “Secretary-General Offers Global Strategy for Fighting Terrorism,” address to the MadridSummit on Democracy, Terrorism and Security, Mar. 11, 2005, available at www.unis.unvienna.org/unis/ pressrels/2005/sgsm9757.html?print.

212. See supra notes 51–56.213. The 60% figure is cited in “The United States and Belize Proliferation Security Initiative

Ship Boarding Agreement,” supra note 50.214. Bolton, supra note 45.215. Rice, supra note 5.216. “PSI Successes?” Armchair Generalist, June 2, 2005, available at armchairgeneral-

ist.typepad.com/my weblog/2005/06/psi successes.html.217. Jeffrey Lewis, “PSI: The Record To Date,” June 6, 2005, available on the Arms Control

Wonk’s Web site at www.armscontrolwonk.com/index.php?id=629.218. U.N. Security Council Resolution 1540, supra note 34.219. See “US Must Join the Law of the Sea: Letter Urges Senate to Take Action,” Center for

Leadership in Global Diplomacy, available at www/clgd.org/.

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