The Proliferation Security Initiative and the Evolution of the Law on the Use of Force

Article excerpt

   I. INTRODUCTION: THE PROLIFERATION SECURITY
      INITIATIVE AND ITS OBJECTIVES
      A. A New Form of Multilateralism

  II. THE GRAVEST DANGER: WEAPONS OF MASS
      DESTRUCTION
      A. Political Support from International Institutions
      B. National Security

 III. How DOES THE PSI WORK?
      A. Intelligence Sharing and Operational Cooperation.
      B. Interdiction

  IV. WHO SUPPORTS THE PSI AND WHAT ARE THEY DOING.?.
      A. Supporters and Participants
      B. Early Successes?

   V. THE LAW OF INTERDICTION
      A. Freedom of the Seas
      B. Exceptions to Freedom of the Seas
      C. Interdiction as Self-Defense
      D. Boarding Agreements
      E. Strengthening the PSI's Legitimacy

  VI. UNITED NATIONS AND PROLIFERATION
      A. Security Council Efforts
      B. Does UNSCR 1540 Fully Legitimate Forceable
         Counter-proliferation ?

 VII. CONCLUSIONS AND RECOMMENDATIONS
      A. Put the Cat Back in the Bag
      B. Embrace International Law
      C. Broaden the Base
      D. Open up the Discussion
      E. A Final Word

VIII. APPENDIX: INTERDICTION PRINCIPLES FOR THE
PROLIFERATION SECURITY INITIATIVE

Thus far the chief purpose of our military establishment has been to win wars. From now on its chief purpose must be to avert them.

Bernard Brodie The Absolute Weapon: Atomic Power and World Order 1946

Sixty years ago, the strategic analyst Bernard Brodie took serious stock of the military threats and missions in a world with atomic bombs. Brodie recognized that this new class of weapons would cause intolerable destruction, and therefore that the United States could no longer afford to wait for an enemy to strike first. For much of the half century that followed, the United States and its allies relied on deterrence and when necessary limited conflicts to avert strikes such as the attack on Pearl Harbor that had brought the United States reluctantly into the Second World War. More recently, the nature of threats that the United States and its allies face has changed; now, enemies who cannot be deterred are seeking to possess weapons of mass destruction. While the prospect of non-state messianic actors obtaining these weapons dramatically expands the range of catastrophic threats, the means the military establishment has to avert wars has not grown accordingly.

Because the international security system is premised on exceedingly strong notions of national sovereignty, the United States may not seize a shipload of nuclear weapons moving from North Korea to Iran for ultimate use by terrorists. Russia may not force the landing of an airplane carrying anthrax from the Sudan to Chechnya until that craft enters Russian airspace. In other words, terrorists, revolutionaries, and rogue states are virtually free to ship weapons of mass destruction (WMD) as they wish. Without some significant changes to the system, the use of WMD against civilians seems all but inevitable.

This Article addresses one significant undertaking that seeks to change the system by enabling concerned states to interdict international trade in weapons of mass destruction. As such, the Proliferation Security Initiative (PSI or the Initiative) not only addresses one of the most urgent threats to peace and security that the world has ever witnessed, but it does so in an innovative way that has the potential to change the basic paradigm of peace and security by legitimizing the proportional and discriminating use of force to prevent a great harm.

This Article proceeds in seven Parts. Part I introduces the Initiative and discusses some of the legal, political and strategic issues it raises. A more detailed legal analysis follows in Part VI but only after some analysis of the political and strategic issues that drive the Initiative. Part II discusses the threats that the proliferation of weapons of mass destruction pose and the ways that the Initiative seeks to address them. …