Despite the support of over half of the Members of the United Nations, a number of countries have expressed opposition to the initiative, including India, China and Indonesia.[3]
History
The idea of the PSI is generally credited to John R. Bolton, former US Under-Secretary of State for Arms Control and International Security and former United States Ambassador to the United Nations, after 15 Scud missiles found on board an unflaggedNorth Korean freighter, the So Sen, heading towards Yemen had to be released when it turned out that international law did not allow them to be confiscated.[4] Given this apparent gap in international law, several months later US President Bush announced the initiative with his counterpart, Polish PresidentAleksander Kwaśniewski at Wawel Castle in Kraków on May 31, 2003.[5][6]
Initially, the PSI included 11 "core" states (Australia, France, Germany, Japan, the Netherlands, Portugal, Spain, the United Kingdom, the US and Poland). On September 4, 2003, in Paris, these countries detailed the principles governing the PSI in a document titled the "Statement of Interdiction Principles". The document defines the activities which are to be undertaken by the initiative, specifically "to establish a more coordinated and effective basis through which to impede and stop shipments of WMD, delivery systems, and related materials flowing to and from states and non-state actors of proliferation concern, consistent with national legal authorities and relevant international law and frameworks, including the UN Security Council circumstances in which such operations may be carried out (at sea, on land, or in the air) including, most importantly, the requirement that any action taken must be consistent with international law."[7] Since the initial core group of 2003, PSI has expanded to include an "Operational Experts Group" (OEG) of 21 nations[8] as well as 84 other endorsing states. Key states who have endorsed the initiative since its initial founding include major actors in international trade such as Singapore and the United Arab Emirates, as well as countries such as Turkey and the Republic of Korea, who are geographically close to states designated by United Nations Security Council resolutions as proliferation threats.
In April 2009, at a speech in Prague, Czech Republic, newly inaugurated President Barack Obama announced that he planned to transform the PSI into a "durable international institution",[11] indicating that US promotion of the initiative would remain non-partisan and cross over from the previous administration. Indeed, Obama had made the strengthening of the PSI one of his campaign promises in the Presidential election of 2008[12] and continued to promote the PSI through the 2010 White House Nuclear Security Strategy.
The 2013 PSI High Level Political Meeting facilitated the adoption of a set of four Joint Statements, advancing cooperation among PSI endorsing states toward:
- Ensuring a Robust Initiative
- Enhancing Critical Interdiction Capabilities and Practices
- Strengthening Authorities for Action
- Expanding Strategic Communications
Progress on implementation was reviewed at the PSI Mid-Level Political Meeting in January 2016, hosted in Washington, DC. Another PSI High Level Political Meeting will be hosted in France in 2018.
The PSI has evolved considerably since 2003, embracing a much wider array of proliferation security issues, such as customs enforcement, export controls, proliferation finance, and intangible transfers of technology. Given its broad and flexible mandate, the PSI now plays a vital role in advancing proliferation security norms and standards of practice.
Participation
PSI-endorsing states, as of 2013
The primary role of PSI participants is to abide by the Statement of Interdiction Principles, with the primary purpose of interdicting subject weapons and materials. Additionally, participants are recommended to enact legal statutes to facilitate effective interdiction and seizure of such items. Finally, participants are to take measures to ensure that their national facilities are not utilized to transfer illicit weapon cargoes.
The PSI also supports the maintenance of an informal network of transgovernmental linkages that sustain cooperation outside of the formal PSI framework.
Participation in PSI activities generally include OEG meetings, live exercises, command post exercises, tabletop exercises, seminars, workshops, and other WMD Interdiction
training.[13] Current members include:[14]
Endorsing states are developing a formal set of tools called Critical Capabilities and Practices (CCP) for use by all PSI partners to aid in their ability to interdict WMD. An ongoing effort, the CCP is organized into four elements:
Element 1. Prohibiting Proliferation-Related Conduct – Having in place appropriate legal authorities to prohibit and prevent proliferation activity within and across one’s border
Element 2. Inspection and Identification – The ability to effectively inspect air, land, and sea cargos and to identify proliferation-related materials
Element 3. Seizure and Disposition – The ability to undertake appropriate actions to seize and dispose of interdiction-related materials
Element 4. Rapid Decision Making – The development of decision-making practices that facilitate timely government responses to interdiction scenarios
Examples of these capacity building tools include:
• Model Legislation
• Commodity identification guides and associated training
• Legal analyses of UN Security Council Resolutions
• Expert briefings on inspection methodologies
• Best practices associated with information sharing and decision-making procedures
The CCP effort is advanced by the CCP Review Team, launched in 2015. The Review Team seeks to enhance the resources available to PSI endorsing countries through compiling a library of tools and resources and through assisting in the coordination of capacity building events and exercises. Review Team members include: Australia, Canada, France, Germany, Norway, Poland, Russia, and the United States.
Interdictions and events
The PSI has no central body or secretariat and is not a coordinator of real-world interdictions. It is a political commitment, a flexible arrangement of international cooperation and is consistent with domestic and international legal authorities. Endorsing states seek a robust capacity to conduct interdictions that usually involve only two or three governments.
On December 9, 2002 the SPS Navarra intercepted and boarded the freighter So San, several hundred miles southeast of Yemen at the request of the U.S. government as part of Operation Enduring Freedom. The So San, sailing without a flag, attempted evasive action, so the Navarra after firing four warning shots into the water at the bow of the ship and rifle fire on the ship's hull, getting no answer, fired on a cable crossing the So San from bow to stern to remove obstacles and proceeded to approach it from a helicopter. The ship from North Korea was carrying a cargo of 15 Scud missiles, 15 conventional warheads with 250 kg of high explosive, 23 fuel tanks of nitric acid and 85 drums of chemicals. Yemen subsequently reported that the cargo belonged to them and protested against interception, ordering the materials returned.[16] Although this incident occurred prior to the establishment of the PSI, it is cited as being a major reason for the PSI's establishment.
In September 2003, Germany obtained information that the BBC China, an Antigua and Barbuda-flagged vessel, was transporting nuclear-related materials to Libya as on behalf of the Abdul Qadeer Khan proliferation network. The German government dispatched intelligence experts to Italy, who conducted an inspection of the ship in the Mediterranean with the support of the US Navy. The inspection revealed that the ship's container number was fabricated and the German government confiscated the nuclear-related equipment (aluminum tubes that can be converted into centrifuges).[17] Although some sources cite this interdiction as an early success of the PSI, others dispute the initiative's relationship to this event.
In an embarrassing "failure" of the PSI, in April 2005 Germany authorized the export of a high-tech crane aboard the vessel Hual Africa that could be utilized in Iran's Shahab-4 missile program.[18]
In June 2009, the North Korean vessel Kang Nam believed to be headed to Myanmar turned around after being tracked by the US Navy. In the same timeframe, two Japanese and one Korean man were arrested for trying to import WMD technology to Myanmar. After this incident, North Korea claimed that it would engage in military action in retaliation for any searching of its ships.[19]
On September 22, 2009, South Korea seized North Korean containers transiting the port of Busan which contained protective clothing used to protect against chemical weapons.[20]
In December 2009, Thailand stopped a North Korean shipment of mixed conventional arms and missile technology, based on information from US intelligence, which had been tracking the shipment since it departed Pyongyang. The ultimate planned destination of the materials was not determined, but it was thought to be heading towards Iran (to eventually arm Hezbollah or Hamas) or potentially Pakistan.[21] Months later, in February 2010 South Africa ordered the return of a shipment of North Korean military equipment to the port of Durban, ostensibly declared as heading to the Republic of Congo.[22]
In June 2011, the New York Times reported on the turning around of the Belize-flagged North Korean Vessel MV Light, suspected of transporting missile technology to Myanmar. The USS McCampbell intercepted the ship and requested boarding, which was refused by the vessel operator despite the granting of authority from Belize, consistent with the US-Belize ship boarding agreement (see History above). The failure of the North Korean crew to comply with the orders of its flag arguably made it a "stateless" vessel under international maritime law, however the ship was allowed to return to North Korea. Although the materials were not "interdicted" or even inspected to verify a violation, the fact that the commodity never reached its planned target arguably made it a "success" for PSI.[23]
Exercises
PSI activities include the regular holding of activities known as "exercises," which aim to test the authorities and capabilities of endorsee nations to interdict WMD-related materials. Exercises can include "live action" events such as ship boardings or container searches, or be limited to "tabletop" activities where subject matter experts explore legal and operational interdiction questions related to a fictional scenario. Recent PSI exercises have included:
•PHOENIX EXPRESS 2012 (May), a US-led maritime exercise, with a PSI inject, held in the Mediterranean Sea
•PACIFIC SHIELD 2012 (July), a dedicated PSI exercise hosted by Japan, featuring an air scenario
•PANAMAX 2012 (Aug), a joint U.S./Panama maritime exercise with a PSI inject
•EASTERN ENDEAVOR 2012 (Sep), a dedicated PSI exercise hosted by South Korea, featuring a maritime scenario
•Eastern European PSI Workshop (Nov 2012), hosted by Moldova, featuring a ground-based scenario
•LEADING EDGE 2013 (Feb), a joint UAE/US dedicated PSI exercise featuring air, maritime and ground interdiction activities
•SAHARAN EXPRESS 2013 (Mar), a US-led maritime exercise with a PSI inject, held off the West Coast of Africa
Criticism
Legality
Critics of PSI, such as China, Iran and the Democratic People's Republic of Korea (DPRK), argue that the declared intent of PSI members to stop ships on the high seas is a violation of international law guaranteeing freedom of the seas. In particular, it's argued that Article 23 of the United Nations Convention on the Law of the Sea (UNCLOS) allows ships "carrying nuclear or other inherently dangerous or noxious substances" the right of innocent passage through territorial seas.[24] Opponents have asserted that the PSI gives states a license to carry out acts of "piracy" on the high seas.[25] It has also been argued the PSI's intent to "interdict nuclear materials and contraband" is a broad enough charter to include any naval operation anywhere and for any actual purpose. There are concerns that such actions could lead to war.[26] Indonesia's Foreign Minister Hassan Wirajuda argued that the PSI "initiative was not initiated through a multilateral process, but only a group of nations that have a common goal to conduct a certain initiatives." He also believed that PSI violates the UNCLOS. (Xinhua News Agency, March 17, 2006). Other critics have argued that PSI activities violate international laws regarding self-defense, Articles 19 and 88 of UNCLOS.[27] A large proportion of criticisms of the legality of PSI come from Indian news sources.[28][29][30] Criticism over the legality of PSI also focus around the fact that the initiative does not fall under any United Nations committee or body, and that doing so might legitimize it.[31]
Targets specific states
Many of academic and news articles about the initiative state that the PSI is focused specifically on states such as Iran and the DPRK.[32] North Korea has stated that it feels the PSI is an instrument for an aggressive war planned by the United States against the DPRK under the pretext of blockading ships and planes.[33] Indian publications discouraging participation in PSI have defined PSI as being specifically directed towards Iran and have stated that "India on no account should be a part of any anti-Iranian strategic initiative led by the United States."[34] Other potential suggested targets of PSI have included Syria, Myanmar, and Pakistan.
Despite these accusations and perceptions, all official PSI documentation and press releases state that PSI does not target any particular state, and that individual nations within the initiative are able to make self-determinations on what shipments are targeted. Several PSI-endorsee states have diplomatic and trade relationships with Iran, the DPRK, and other states suggested as likely targets.
Perception as a "US-led" initiative
The preponderance of news sources and academic analysis on the initiative often describe PSI as being a "US-led" initiative.[35][36][37][38] Like the issue of whether PSI targets specific states, participants in the initiative itself explicitly deny that it is an effort "led" by the United States and that PSI is truly defined by the nonproliferation activities of endorsing nations.
With President Obama's continued promotion of the initiative and commitment to expand and institutionalize it, many initial opponents of the initiative have reduced their negative comments and begun efforts to explore joining the initiative in order to be recognized as a player in global non-proliferation efforts.[41]
Lack of transparency
Some criticism of PSI has been pointed towards the "secretive" nature of the initiative. It has been argued that "the secretiveness surrounding PSI interdictions and the methods employed make it difficult to evaluate its effectiveness or its legitimacy,"[42] and that the lack of formality and structure in the initiative are causes for concern.[43]
In a June 2006 speech, then-Undersecretary of State Robert Joseph claimed that between April 2005 and April 2006 the United States had cooperated with other PSI participants on "roughly two dozen" occasions to prevent transfers of concern; and in May 2005 Ulrik Federspiel, Denmark’s ambassador to the United States, asserted that "the shipment of missiles has fallen significantly in the lifetime of PSI."[44] However, references such as these provide no actual information on or evidence of interdictions which have occurred, leaving critics to remain skeptical of such numbers or of any "metrics" that prove the effectiveness of the initiative.
While these criticisms persist, many PSI events, such as annual Operational Experts Group meetings, contain a very high degree of civil society participation. Think tanks and industry representatives, for instance, participated in the 2016 Operational Experts Group meeting and were permitted to Tweet throughout.
Responses to criticism
Much of the criticism about the PSI have been faced with counter-arguments, given the inaccurate or outdated nature of much of the information about the initiative. The most common negative portrayal of PSI represents it as an illegal, US-led effort to interdict third party vessels on the high seas. PSI proponents have countered that:
United Nations Security Council Resolution (UNSCR) 1540[45] places an international obligation on all Members of the UN to take action against the proliferation of WMD, and its language matches closely with the PSI Statement of Interdiction Principles.
UNSCRs 1874 (on the DPRK's WMD program) and 1929 (on Iran's WMD program) explicitly call on or require UN Members to take interdiction and inspection actions against WMD-related materials that are consistent with PSI's principles. Thus inspection of such vessels are international mandates rather than "piracy," as accused by DPRK and Iran.
Contrary to comments that the PSI works "outside" of international frameworks such as the United Nations, UN officials including Secretary GeneralKofi Annan have "applaud[ed] the efforts of the Proliferation Security Initiative to fill a gap in our defenses."[48]
In February 2004, the PSI was "expanded" beyond a military and intelligence effort to include greater cooperation with law enforcement entities.[49] PSI has largely evolved from a focus on interdiction of ships at sea to inspection in ports.[50]
The vast majority of PSI exercises (see exercises section above) include activities involving customs services, law enforcement officials, and focus on cargo traveling by air and land as well as sea - including cargo transiting within a country's territory. This directly contradicts the common perceptions of PSI as military, maritime or high seas-focused.
As noted within the PSI principles, PSI is an "activity, not an organization"[51] and grants no state any additional authorities to take action. All states are merely asked to take actions consistent with domestic and international law. Therefore, PSI as an initiative explicitly recommends only actions within international and domestic legal authorities.
A large portion of states which have been critical of PSI consider themselves part of the Non-Aligned Movement, which indicates that while nominally claiming objections to the initiative for "legal" reasons, actual hesitation towards endorsement might be more aligned with political considerations, such as not wanting to be seen as supporting United States or "Western" initiatives.
China's objections for supposed legal reasons also come into question, as it has been identified as a neighboring country which has supported transshipment of DPRK's WMD materials, and "turns a blind eye to North Korea’s proliferation whenever it can get away with it."[52][53]
^For an academic analysis of shipboarding in the PSI context, see Fabio Spadi (2006). "Bolstering the Proliferation Security Initiative at Sea: A Comparative Analysis of Ship-boarding as a Bilateral and Multilateral Implementing Mechanism". Nordic Journal of International Law. 75 (2): 249–278. doi:10.1163/157181006778666614.
