The Proliferation Security Initiative: Security vs. Freedom of Navigation?

• Author: Wolff Heintschel von Heinegg
• Position: Professor of International Law, US Naval War College
• Pages: 55-76

IV

The Proliferation Security Initiative:

Security vs. Freedom of Navigation?

Wolff Heintschel von Heinegg*

Introduction: Object and Purpose of the Proliferation Security Initiative

The Proliferation Security Initiative (PSI) was announced by President Bush

in Krakow, Poland, on May 31, 2003. 'It is generally conceived of as aUS re-

action to the So San incident that occurred in December 2002 and that involved a

Cambodian-registered vessel en route to Yemen suspected of illicitly transporting

weapons of mass destruction (WMD) components that were ultimately destined

for Iraq.2As amatter of fact, the intercepting Spanish frigates, upon boarding and

searching, discovered SCUD missile parts on board the vessel. However, the So San

was released after it had become clear that the missiles, though coming from North

Korea, were destined for Yemen.

The announcement by President Bush triggered aseries of meetings of the

(originally eleven and now fifteen3)States participating in the initiative. During the

Brisbane meeting they seemed to be prepared to follow aproactive course of action

with the aim to effectively impede and stop shipments of WMD, delivery systems,

and related materials.4However, afar more cautious approach was chosen during

the Paris meeting in September 2003. There the participating States agreed upon

the so-called "Interdiction Principles" which, in general terms, provide the politi-

cal basis for unilateral or concerted activities aimed at the prevention of WMD

proliferation. 5It needs to be emphasized here that PSI is neither atreaty nor some

*Charles H. Stockton Professor of International Law, US Naval War College.

The Proliferation Security Initiative: Security vs. Freedom ofNavigation?

form of an international body, least of all an international organization. It is to be

seen as aconcerted effort by the participating States to supplement, not to substi-

tute, existing treaties and regimes dealing with the problem of WMD prolifera-

tion.6

PSI's ultimate goal is to effectively "interdict the transfer or transport of WMD,

their delivery systems, and related materials to and from states and non-state actors

of proliferation concern." The term "states and non-state actors of proliferation

concern" refers to

[T]hose countries or entities that the PSI participants involved establish should be

subject to interdiction activities because they are engaged in proliferation through: (1

)

efforts to develop or acquire chemical, biological, or nuclear weapons and associated

delivery systems; or (2) transfers (either selling, receiving, or facilitating) of WMD,

their delivery systems, or related materials.7

As regards "states of proliferation concern" it is more or less evident that this

term refers to Iran and North Korea and to other States striving to acquire WMD

and their delivery systems.8At first glance, the term "non-state actors of prolifera-

tion concern" seems to cover transnational terrorists and their organizational

structures. However, in view of the fact that transnational terrorism is subject to a

special international regime the correct understanding is that it relates to all pri-

vate persons, like the notorious Pakistani Dr. Khan,9and entities involved in

clandestine proliferation activities, regardless of aterrorist background. There-

fore, PSI is not to be mistaken for an exclusively counter-terrorism activity. While

the Initiative may trigger concerted actions of the participating States if there are

reasonable grounds to suspect that, e.g., WMD transported on board avessel are

ultimately destined to a terrorist group, its scope is certainly not limited to such

scenarios.

The means by which the participating States intend to reach the Initiative's goal

comprise: exchange of information; if necessary, modification of the respective do-

mestic law and of international law; and "specific action."

Of course, exchange of information is subject to the protection "of the confi-

dential character of classified information." Still, the principal readiness of the par-

ticipating States to rapidly exchange information should not be underestimated

because the information concerned is usually classified and not too easily shared

with other States even if they are close allies. Equally important, and far from being

amatter of course, is the willingness of the participating States to modify their do-

mestic law in order to enable them to fulfill their commitments under the Initia-

tive. If the modification of domestic rules does not suffice because rules and

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