The Proliferation Security Initiative in the Maritime Domain

• Author: Stuart Kaye
• Position: Dean, Faculty of Law, University of Wollongong, Australia
• Pages: 141-164

VI

The Proliferation Security Initiative in the

Maritime Domain

Stuart Kaye*

Introduction

The Proliferation Security Initiative (PSI) is one of anumber of measures

taken by the international community in response to the heightened con-

cern over terrorism since the attacks on the United States on September 11, 2001.

The PSI is essentially part of apreventative strategy to deny weapons of mass de-

struction (WMD) to terrorist organizations by ensuring such weapons cannot be

moved freely across the world's oceans. This article will seek to consider the impli-

cations for the law of the sea, particularly the operation of the 1982 United Nations

Convention on the Law of the Sea, 1generated by the PSI, and the possible implica-

tions of its vigorous pursuit.

Content of the PSI

The PSI was announced in Krakow, Poland on May 13, 2003 by President George

W. Bush.2It initially was acooperative venture between eleven States, 3but has

gradually widened its support base to include anumber of additional States, in-

cluding Russia.4In addition to this direct support, the PSI received tacit approval

from States attending an international conference directed at international

Dean, Faculty of Law, University of Wollongong, Australia.

The Proliferation Security Initiative in the Maritime Domain

security arrangements. This was demonstrated at the first anniversary meeting in

Krakow on May 31and June 1, 2004, which was attended by over sixty States. 5

The thrust ofthe PSI is to prevent the proliferation ofWMD by sea, land and air,

although within the scope of this article, only the maritime aspect of the Initiative

will be considered. The PSI is not atreaty, but rather astatement of intention on

the part of participating States, and, of itself, it does not create formally binding in-

ternational law obligations. Participating States have agreed to abide by aset of in-

terdiction principles, set out in aformal Statement. The interdiction principles

indicate States will undertake effective measures to combat the proliferation of

WMD, delivery systems or related materials;6cooperate on information exchange

and coordination of activities to combat such proliferation;7and review domestic

and, if necessary, international law to strengthen these efforts. 8

In terms ofspecific circumstances when interdiction will take place, the PSI pro-

vides anumber of instances, and these are worth extracting:

Take specific actions in support of interdiction efforts regarding cargoes of

WMD, their delivery systems, or related materials, to the extent their

national legal authorities permit and consistent with their obligations under

international law and frameworks, to include:

a. Not to transport or assist in the transport of any such cargoes to or from

States or non-State actors of proliferation concern, and not to allow any

persons subject to their jurisdiction to do so.

b. At their own initiative, or at the request of and good cause shown by

another State, to take action to board and search any vessel flying their flag in

their internal waters 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 or non-State actors of proliferation concerns, and to seize

such cargoes that are identified.

c. To seriously consider providing consent under the appropriate

circumstances to the boarding and searching of its own flag vessels by other

States and to the seizure of such WMD-related cargoes in such vessels that

may be identified by such States.

d. To take appropriate actions to (1) stop and/or search in their internal

waters, territorial seas, or contiguous zones (when declared) vessels that are

reasonably suspected of carrying such cargoes to or from States or non-State

actors of proliferation concern and to seize such cargoes that are identified;

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