POLICY BRIEF August 2009 A Tighter Net: EMMA BELCHER Research Fellow International Security Strengthening the Program/Project on Managing the Atom Proliferation Security Belfer Center for Science and International Affairs Initiative Tel: + 1 (617) 710 2793 [email protected] W h a t i s t h e p r o b l e m ? United Nations Security Council Resolution 1874 of June 2009 puts extra sanctions on North Korea and encourages lawful interdictions. This adds credibility to the 95-member Proliferation Security Initiative (PSI), a US-initiated arrangement to promote interception of transfers of cargoes related to weapons of mass destruction (WMD). South Korea’s recent decision to join PSI is another positive step. But the PSI net has serious gaps. It relies on participants and their laws, yet some key states remain outside, including China, India, Pakistan, South Africa, Egypt, Indonesia and Malaysia. They question its legitimacy and transparency. And within PSI, information-sharing is limited. W h a t s h o u l d b e d o n e ? Participants should redouble efforts to recruit missing states by persuading them of the PSI’s legitimacy and providing incentives. These could include legal and operational capacity-building, plus a mechanism to share information about interdictions. Australia should take a lead in bringing more Asian countries on board, beginning with Indonesia and Malaysia. LOWY INSTITUTE FOR Australia should also renew efforts to urge the US to ratify the UN INTERNATIONAL POLICY Convention on the Law of the Sea (UNCLOS), which would reinforce 31 Bligh Street the legitimacy of US-led maritime operations. PSI states could Sydney NSW 2000 strengthen the legality of interdictions by pushing the limits of Article Tel: +61 2 8238 9000 27 of UNCLOS. Fax: +612 8238 9005 www.lowyinstitute.org qÜÉ=içïó=fåëíáíìíÉ=Ñçê=fåíÉêå~íáçå~ä=mçäáÅó=áë=~å=áåÇÉéÉåÇÉåí=áåíÉêå~íáçå~ä=éçäáÅó=íÜáåâ=í~åâ= Ä~ëÉÇ=áå=póÇåÉóI=^ìëíê~äá~K==fíë=ã~åÇ~íÉ=ê~åÖÉë=~Åêçëë=~ää=íÜÉ=ÇáãÉåëáçåë=çÑ=áåíÉêå~íáçå~ä=éçäáÅó= ÇÉÄ~íÉ=áå=^ìëíê~äá~=Ô=ÉÅçåçãáÅI=éçäáíáÅ~ä=~åÇ=ëíê~íÉÖáÅ=Ô=~åÇ=áí=áë=åçí=äáãáíÉÇ=íç=~=é~êíáÅìä~ê= ÖÉçÖê~éÜáÅ=êÉÖáçåK==fíë=íïç=ÅçêÉ=í~ëâë=~êÉ=íçW= = • éêçÇìÅÉ=ÇáëíáåÅíáîÉ=êÉëÉ~êÅÜ=~åÇ=ÑêÉëÜ=éçäáÅó=çéíáçåë=Ñçê=^ìëíê~äá~Ûë=áåíÉêå~íáçå~ä=éçäáÅó=~åÇ= íç=ÅçåíêáÄìíÉ=íç=íÜÉ=ïáÇÉê=áåíÉêå~íáçå~ä=ÇÉÄ~íÉK=== = • éêçãçíÉ= ÇáëÅìëëáçå= çÑ= ^ìëíê~äá~Ûë= êçäÉ= áå= íÜÉ= ïçêäÇ=Äó= éêçîáÇáåÖ= = ~å= ~ÅÅÉëëáÄäÉ= ~åÇ= ÜáÖÜ= èì~äáíó= Ñçêìã= Ñçê= ÇáëÅìëëáçå= çÑ= ^ìëíê~äá~å= áåíÉêå~íáçå~ä= êÉä~íáçåë= íÜêçìÖÜ= ÇÉÄ~íÉëI= ëÉãáå~êëI=äÉÅíìêÉëI=Çá~äçÖìÉë=~åÇ=ÅçåÑÉêÉåÅÉëK= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = içïó= fåëíáíìíÉ= mçäáÅó= _êáÉÑë= ~êÉ= ÇÉëáÖåÉÇ= íç= ~ÇÇêÉëë= ~= é~êíáÅìä~êI= ÅìêêÉåí= éçäáÅó= áëëìÉ= ~åÇ= íç= ëìÖÖÉëí=ëçäìíáçåëK=qÜÉó=~êÉ=ÇÉäáÄÉê~íÉäó=éêÉëÅêáéíáîÉI=ëéÉÅáÑáÅ~ääó=~ÇÇêÉëëáåÖ=íïç=èìÉëíáçåëW=tÜ~í= áë=íÜÉ=éêçÄäÉã\=tÜ~í=ëÜçìäÇ=ÄÉ=ÇçåÉ\= = qÜÉ= îáÉïë= ÉñéêÉëëÉÇ= áå= íÜáë= é~éÉê= ~êÉ= ÉåíáêÉäó= íÜÉ= ~ìíÜçêÛë= çïå= ~åÇ= åçí= íÜçëÉ= çÑ= íÜÉ= içïó= fåëíáíìíÉ=Ñçê=fåíÉêå~íáçå~ä=mçäáÅóK= Policy Brief A Tighter Net: Strengthening the Proliferation Security Initiative Introduction action to prevent WMD proliferation to non- state actors), and through regional efforts, The proliferation of weapons of mass notably the Six-Party Talks in relation to North destruction (WMD) remains a pressing Korea.2 The most recent measure to deal with international security problem, despite decades the DPRK, UNSC Resolution 1874 of 12 June of efforts to control and eventually destroy 2009, has broadened sanctions and called on them through treaties. Old challenges remain states to interdict vessels in support of them. and new ones abound, particularly in the nuclear realm, which will be the focus of this This makes it timely to consider prospects for Lowy Institute Policy Brief. The test of a second the Proliferation Security Initiative (PSI), one of nuclear device in May 2009 by the Democratic the few practical means available to the People’s Republic of Korea (DPRK), and its international community to prevent WMD regime’s sustained intransigence in the face of proliferation. It aims to encourage and assist UN Security Council resolutions, has again the interdiction of parts and materials for thrust this issue to the fore, as has Iran’s WMD programs – nuclear, chemical and continued pursuit of uranium enrichment and biological – and their means of delivery (eg. prevention of International Atomic Energy missile systems) while not impeding legitimate Agency (IAEA) access to certain sites. trade. Although it has enjoyed some success,3 and a healthy expansion in participation, it New actors have entered the mix: terrorists continues to encounter many challenges – who cannot be deterred from using WMD notably the complexity of the materials trade, should they acquire them, and illicit traders the absence of some critical participants and who gain financially from proliferation. WMD limited legal grounds for taking action. It can components are becoming more easily procured and should be strengthened. and dangerous technical knowledge more easily attained. Moreover, nuclear-armed states remain attached to their arsenals as national Background security tools, notwithstanding current talks by the United States and Russia to reduce their The PSI emerged in 2003 in response to major deployed forces, and recent indications by the international developments that exposed gaps UK of its willingness to consider a mutual in the non-proliferation regime. In August reduction.1 Amid these challenges, the 2002, details had begun to emerge about Iran’s cornerstone of the nuclear weapons regime, the undeclared nuclear facility at Natanz. Around Treaty on the Non-Proliferation of Nuclear the same time, North Korea’s clandestine Weapons (NPT), is under strain ahead of a program came to light, with the US suspecting Review Conference in May 2010. a Pakistani link.4 Furthermore, there were concerns that Iraq was reconstituting its States have taken a range of approaches to nuclear program, given that International remedy the situation, including through United Atomic Energy Agency (IAEA) inspectors had Nations Security Council resolutions (notably been denied access to the country since 1998. Resolution 1540, which obliges states to take Both states were party to the NPT. Page 3 Policy Brief A Tighter Net: Strengthening the Proliferation Security Initiative In November 2002, at the request of the US, Structure Spanish authorities interdicted the So San, a Cambodian ship en route to Yemen from The PSI is a political agreement among states, North Korea. 5 They discovered SCUD missiles, which promise to take action alone or together hidden under thousands of bags of cement. to interdict transfers or transport of illicit Ultimately, under instruction from the US, the WMD-related materials over land, in the air, or Spanish allowed the ship to proceed. While at sea to and from states and non-state actors there was disagreement as to whether there of proliferation concern.1 0 However, officials were legal grounds to seize the cargo, John say that most PSI activities to date have focused Bolton has claimed that the US ultimately on shipping, given that it is easier – but by no allowed the shipment to continue because of means easy – to interdict, legally and the value the US placed on Yemen as a partner practically. Further, in addition to the fact that against terrorism.6 most of the world’s international trade takes place via sea, it is more likely that large items, This embarrassing turn of events was a catalyst such as delivery systems, will need to be for deliberation by Bush administration transported by ship. This Policy Brief focuses officials about how future cases could better be on interdiction at sea. handled. Once it became clear that they would need international support to maximise chances States pledge to consider interdicting vessels at of successful interdictions, US officials the request of another participant, or to allow approached the United Kingdom and that participant to interdict their shipping. To Australia.7 They then approached other support these activities, they undertake to likeminded states to develop a framework for adopt streamlined procedures for information operation. President Bush announced the PSI in exchange, and to strengthen domestic and Poland on 31 May 2003, along with its initial international legal frameworks. 11 participants: the US, Australia, France, Germany, Italy, Japan, the Netherlands, The PSI is not a treaty and is not legally Poland, Portugal, Spain, and the UK. These binding. It does not create any new legal states then met over several months to authority for its members to conduct determine how the PSI would work. The group interdictions. Rather, it aims to facilitate published its Statement of Interdiction interdiction activity through existing domestic Principles after its third meeting in France,8 and and international legal frameworks, by sharing encouraged other states to participate. The PSI intelligence, and military and law enforcement has grown to 95 participants in just six years – assets. This is fostered practically through the Republic of Korea became its most recent gaming exercises to enhance cooperation and adherent in May 2009.9 prepare for likely scenarios.1 2 An Operational Experts Group (OEG) meets periodically to discuss operational and legal issues.1 3 While the US maintains legally-binding shipboarding agreements with certain open registry states, which provide for expedited boarding under Page 4 Policy Brief A Tighter Net: Strengthening the Proliferation Security Initiative specific conditions, this complements PSI The PSI’s informal nature also allows activities and is not an official part of the PSI.1 4 participants to plan the timing and location of an interdiction according to assets available, The PSI has no secretariat or formal decision- and so that any convicted proliferator would be making mechanism. A decision to undertake an subject to the harshest jurisdictional penalties.