Interdict WMD Smugglers
at Sea
Page 2 of 2
This story set the stage for the most controversial proposal in the
President’s presentation, the Proliferation Security Initiative (PSI).
Based on an international coalition that includes Australia, France,
Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, Singapore,
Norway, Canada, and the United Kingdom, the PSI would facilitate the
sharing of intelligence information, the tracking of suspect international
cargo, and the conducting of joint military exercises to interdict the
shipments. “We’re prepared to search planes and ships, to seize weapons
and missiles and equipment that raise proliferation concerns, just as
we did in stopping the dangerous cargo on the BBC China before it reached
Libya,” said President Bush.
While the PSI effort also would seek to shut down labs and factories
ashore and to freeze the financial assets of WMD arms dealers, the use
of naval power to interdict shipments in the open sea has stirred the
most controversy. In the Statement of Interdiction Principles, adopted
at a coalition meeting on 3-4 September in Paris, the main points relevant
for naval action are:
1. Undertake effective measures, either alone or
in concert with other states, for interdicting the transfer or transport
of WMD, their delivery systems, and related materials to and from states
and non-state actors of proliferation concern. . . .
4. 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 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; and (2) to enforce conditions
on vessels entering or leaving their ports, internal waters or territorial
seas that are reasonably suspected of carrying such cargoes, such as
requiring that such vessels be subject to boarding, search, and seizure
of such cargoes prior to entry.
For PSI members to act within their own jurisdictions is not controversial.
It is the essence of sovereignty. So would be agreeing to the boarding
and searching of its own flag vessels by other PSI states and to the
seizure of any WMD-related cargoes so found. The problem comes from
the declared intent of PSI members to stop, search, and seize ships
and cargoes belonging to non-PSI “state or non-state actors” who have
not given prior permission in “areas beyond the territorial seas of
any other state,” which means in international waters.
In the case of the BBC China, when the German government was notified
about the suspicious cargo, it contacted the ship’s German owner, who
agreed to divert her to an Italian port, where the search was made.
Such cooperation may not always be possible. There are plenty of ways
proliferation can occur that do not involve the direct participation
of the territory or assets of PSI member states.
In terms of ownership, of the 20 largest merchant
fleets in the world, only 7 belong to members of the PSI (Japan, Norway,
Germany, Singapore, England, Italy, and the United States).[2]
These PSI nations control just 41.5% of the world’s merchant ships (11,893
of 28,685 ships). By flag, the situation is even worse, with only the
United States, Japan, Norway, Singapore, and Italy among the PSI states
in the top 20 fleets, with 3,261 ships (including those flying the Marshall
Islands flag of convenience in the U.S. total).
On the same day as President Bush’s speech, the United States and Liberia
signed an agreement providing bilateral authority for the boarding of
Liberian-flagged vessels on the high seas suspected of carrying illicit
WMD-related cargo. Liberia has the world’s second largest flag of convenience
ship registry, with 1,448 vessels. The United States had played a major
role in support of a U.N.-brokered cease-fire in the Liberian civil
war in August 2003. This and subsequent events gave Washington a negotiating
opportunity that might be difficult to repeat elsewhere. Also of note,
the Liberian registry is managed by a Reston, Virginia, firm.
On 12 May 2004, the United States and Panama signed a ship boarding
agreement under which Panama could grant authority to U.S. officials
to board, search, and detain a vessel and its cargo sailing under a
Panamanian flag regardless of national ownership. Panama is the most
popular flag of convenience. Yet, even with its addition to the PSI
coalition, only about half of the total commercial shipping of the world,
measured in dead weight tonnage, is subject to rapid action consent
procedures.
What the PSI coalition does have is overwhelming superiority in naval
forces and global reach. Smuggling rings and states of proliferation
concern do not possess blue-water fleets capable of protecting their
commerce. If the United States and other PSI members are serious about
stopping the movement of WMD components and delivery systems by sea,
they must be willing to interdict ships belonging to nonmember and noncooperative
states.
Testifying before the Senate Foreign Relations Committee on 21 October
2003, Admiral Michael G. Mullen, then-Vice Chief of Naval Operations,
endorsed the U.N. Convention on the Law of the Sea Convention (UNCLOS)
because it codifies the “customary, established navigational rights”
the Navy needs when “sustaining our overseas presence, responding to
complex emergencies, prosecuting the global war on terrorism, and conducting
operations far from our shores.” Among the specific missions he cited
that require maximum naval mobility is the PSI.
Yet, critics of the PSI argue from the same principles. The right of
free passage enjoyed by the U.S. Navy also applies to ships of other
nations and flags. Article 23 of UNCLOS even allows “ships carrying
nuclear or other inherently dangerous or noxious substances” the right
of innocent passage through territorial seas as long as they “carry
documents and observe special precautionary measures established for
such ships by international agreements.” Their right to operate on the
high seas is uncontested.
UNCLOS was adopted on 30 April 1982. President Ronald Reagan refused
to sign it because he felt it constrained U.S. use of the high seas.
President Bill Clinton did sign it in 1994, but the Senate never considered
ratification. Almost all countries abide by it, however, even those
that are not parties. Its definitions of a 12-mile territorial sea and
a 200-mile exclusive economic zone (EEZ) have become standard. In addition
to the right of innocent passage in the territorial sea and EEZ, ships
and aircraft of all countries are allowed “transit passage” through
straits used for international navigation. And all states enjoy the
traditional rights of passage and overflight in international waters
(the “high seas”).
Section VII of UNCLOS deals with the high seas, including the suppression
of criminal activity. However, it does not discuss arms smuggling as
a prohibited activity like piracy and slave trading. The section accords
warships and government-owned ships on noncommercial voyages immunity
from the jurisdiction of any state other than their flag state. Article
89 declares, “No State may validly purport to subject any part of the
high seas to its sovereignty,” which means no extraterritorial enforcement
of its laws. Article 91 establishes that “ships have the nationality
of the State whose flag they are entitled to fly.” And while there is
a slap at the use of flags of convenience, there is no mechanism for
ending the practice.
Article 111 does permit “hot pursuit” if it is commenced when the foreign
ship is within the internal waters, the archipelagic waters, the territorial
sea, or the contiguous zone of the pursuing state. It may be continued
into the high seas only if the pursuit has not been interrupted; and
the pursuit ends when the ship enters the waters of its own state or
a third-party state.
There are other possible precedents
that could be used for new conventions allowing the interdiction of
WMD shipments. The 1988 U.N. Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances built on the general requirement in
UNCLOS that nations cooperate in the suppression of illicit drug trafficking
on the seas by allowing the interception of a ship suspected of illicit
trafficking by a state other than the flag state. Similar rights of
interception are provided for in the 2000 Protocol against the Smuggling
of Migrants by Land, Sea, and Air.[3] Still, opponents
of the PSI argue that “most states believe at the moment that only a
UN resolution can authorize interception and search on the high seas,
outside nations’ territorial waters, which would otherwise be piracy.
Given the wide dismay with many recent U.S. international initiatives,
which have been viewed as unilateral and perhaps unwise, the PSI is
unlikely to gain such legal backing in the foreseeable future.”[4]
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The United States has proposed,
with the support of Russia, a new U.N. resolution banning the proliferation
of WMD and including a right to interdict ships at sea. China, however,
has announced it will veto any such resolution that includes naval interdiction.[5]
China has the world’s third-largest merchant fleet and a long record
as a proliferator of nuclear weapons technology and missile systems.[6]
Other proliferators of even more direct concern also operate their
own ships. On 10 December 2002, Spanish forces acting in concert with
the United States seized the North Korean cargo ship So San in the Indian
Ocean. Hidden under sacks of cement were 15 Scud missiles and their
conventional warheads. A day later, U.S. officials decided to let the
ship and her cargo sail on to Yemen. While it had been legal to stop
and search the So San because she was not flying a flag, her cargo was
not deemed illegal under UNCLOS, nor could North
Korea be assailed for violating the Missile Technology Control Regime,
because it did not sign it. Even if the warheads had been nuclear, they
would not have been illegal as Pyongyang has withdrawn from the Nonproliferation
Treaty. But can the United States allow a dangerous rogue regime like
North Korea the freedom to ship armaments to unstable areas and use
that money to prop up its dictatorship and menace its neighbors? The
PSI was drafted after this incident to provide guidance for future actions.
Examining the Royal Navy’s violations of neutrality
and freedom of the seas during the Napoleonic Wars, Alfred Thayer Mahan
defended British policy, writing, “the exigencies of the struggle induced
the British cabinet to formulate and enforce against neutrals a restriction
of trade which it confessed to be without sanction in law.” London had
its own interpretation: “From an admitted premise, that the open sea
is common to all nations, she deduced a common jurisdiction” is how
Mahan phrased it.[7]
In November 2003, John R. Bolton, Under Secretary of State for Arms
Control and International Security, said of the legitimacy of the PSI,
Bolton’s main concern was the exigencies of the
struggle against the spread of WMD. He argued, “We need the option of
interdicting shipments to ensure this technology does not fall into
the wrong hands.”[8]
Perhaps a closer comparison from the history of the British Royal Navy
comes from the period of peace following the Napoleonic Wars. Britain
abolished the slave trade within its empire in 1807. Beginning in 1815,
the Royal Navy undertook antislavery patrols off the West African coast,
seizing hundreds of vessels. Between 1818 and 1820, Britain signed treaties
with a number of European countries giving British warships the right
to search and seize vessels suspected of engaging in the slave trade;
however, these agreements were insufficient to stem the main traffic
in slaves. In 1839, after a long and unsuccessful efforts to sign a
treaty with Portugal, Britain unilaterally authorized its navy to board
and seize suspected slavers that were flying the Portuguese flag. The
slaves were to be released in the nearest British port. The disposition
of the ships was to be decided by British admiralty courts—and the crews
were to be returned to their own countries for trial.
Today, few would criticize London’s actions. Indeed, suppression of
the slave trade, including interdiction, is part of UNCLOS. But at the
time, there was no international moral consensus supporting British
policy. Nor did slavery present a security threat to the British Empire,
as WMD presents to the United States today. But the Royal Navy ruled
the waves and took the lead in policing the high seas. The United States,
as the world’s preeminent sea power, should not be afraid to exercise
the same kind of leadership when the issue is one of grave importance.
