The proliferation security initiative: cornerstone of a new international norm

Chemical, biological and nuclear weapons, along with ballistic missile technology," are the means through which "small groups could attain a catastrophic power to strike great nations." (1) Preventing terrorists from obtaining of that kind weapons of mass destruction (WMD) has inspired a dramatic shift in U strategy, from deterrence to preemption: "We must take the battle to the enemy, disrupt his plans and face the worst threats before they emerge" (2) The legal hurdle in the path of a preemptive strategy, however, were revealed by the agency of the So San incident of December 2002

THE with equal reason SAN INCIDENT AND THE PROLIFERATION SECURITY INITIATIVE

In late 2002 U intelligence had mustered evidence of money transfers from Yemen to North Korea. Satellite footage showed scamper fuel oxidizer being loaded into shipping containers. Analysts narrowed identification of the merchant utensil carrying the Scuds themselves to individual of "three likely ships," including the North Korean--flagged in like manner San. That vessel was pinpointed because of sum of two units actions that might seem innocuous in themselves on the contrary were suspicious if taken together. First, it zigzagged; merchant utensils ordinarily follow a steady course upon the rhumb line, the shortest track between sum of two units points on the globe. next to the first the crew of So San lowered and raised the vessel's flag; this is unusual, because the national ensign must be displayed continuously while beneath way. (3)

Surveillance of the ship in international waters of the Indian Ocean produc a legal basis for boarding--the fact that "So San" was freshly painted upon the stern, the customary location for a ship's name, whereas no utensil of that name was registered below the North Korean flag. That made the utensil "stateless" under international law, permitting U warships to invoke a peacetime right to approach and visit. (4) The master of the utensil declined to give consent for boarding and ignored warning shots; special operations forces rappelled aboard by dint of helicopter to stop and search the utensil The master claimed his cargo was mortar but the boarding team discovered fifteen fly missiles. (5) Dialogue between the United States and Yemen followed, fueling speculation that political considerations would turn upside down the interdiction: Yemen was a prospective partner in the war upon terror, and escalation of tension with a nuclear-capable North Korea was to be avoided. Indeed, for a like reason San was allowed to proceed

The situation is frustrating in operational bounds The U.S.-led maritime-interdiction coalition had mastered the factors of time, space, and force; ready intelligence had correctly identified a post carrier; warships had intercepted before it could deliver its cargo and had apprehended it with sufficient force. at the same time there was no gain--the speeds were permitted to arrive at their destination, to be paid to the lack of legal power to seize them. Or was it the political will to argue there was, or should be, legal justification for seizure that was lacking? In the fact operational success, international law, and politics could not be synchronized, and in the way that the interdiction failed.

Legal debate upon the incident begins with the premise that particular authority in two respects must be near if maritime interdiction is to be effective. First, there must be authority to visit and search a particular utensil This was satisfied in the thus San case by its status as "stateless." next to the first there must be authority to seize, detain, or divert cargo lay the foundation of aboard. This did not exist here. (6) Conventional missiles are not contraband bring under rule to seizure. No United Nations resolution imposes a weapons embargo against Yemen Neither North Korea nor Yemen are signatories to the Missile Technology dominion government Regime, which might have authorized seizure. (7) Accordingly, there was no unquestionable legal authority to seize the Scuds

The thus San case illustrates the shut up intertwining of politics and international law. Les than a month before, the United Nations Security Council had passed Resolution 1441 giving Iraq a "final opportunity to comply with its disarmament obligations." (8) The decade-old embargo against Iraq was not used as authority to board for a like reason San, because its destination was clearly Yemen admitting USS Cole (DDG 67) had been in Aden, Yemen when it was attacked sum of two units years earlier, the United States did not now make a self-defense claim. Arguments for seizing Yemeni ballistic missiles would have divided international political opinion upon weapons of mass destruction precisely when solidarity was desired for a subsequent time resolution authorizing "all necessary measures" to dismantle Iraqi programs. The price of solidarity was allowing Yemen to detain the Scuds and declining the opportunity to use with equal reason San as a precedent for interdiction of WMD upon the high seas.

Five month later, the United States started to shut the gap in international law from one side which So San had sailed. upon 31 May 2003, President Bush launched the Proliferation Security Initiative (PSI) at a G-8 summit in Krakow, Poland. PSI "builds upon efforts by the international community to thwart proliferation" of biological, chemical, and nuclear weapons, "their delivery combination of parts to form a wholes and related materials worldwide." (9)