At the National Defense University on 11 February 2004, President George W. Bush outlined new measures aimed at countering the spread of weapons of mass destruction. He said, "These terrible weapons are becoming easier to acquire, build, hide, and transport. Armed with a single vial of a biological agent or a single nuclear weapon, small groups of fanatics, or failing states, could gain the power to threaten great nations, threaten the world peace."
The President's remarks were given special meaning by the recent exposure of the trading network of nuclear weapons technology run by Abdul Qadeer Khan, the "father" of Pakistan's atomic arms program. Using a factory in Malaysia, Khan and his associates manufactured key parts for centrifuges used to transform uranium hexafluoride into enriched uranium for nuclear bombs. The network also sold uranium hexafluoride. Other components were purchased through network operatives based in Europe, Africa, and the Middle East. Dubai served as the entrepôt, where shipments were gathered for transport by sea to clients through a front company.
U.S. and British intelligence worked for years to penetrate the Khan network. Finally, in September 2003, they identified a shipment of centrifuge parts manufactured at the Malaysia plant. They followed the shipment to Dubai, where it was transferred to the BBC China, a ship owned by the German firm BBC Chartering & Logistic GmbH & Co. but using the Antigua & Barbuda flag of convenience. After the ship passed through the Suez Canal and headed for Libya, German and Italian authorities intervened. The centrifuge parts were found in several containers listed on the ship's manifest as "used machine parts."1
President Bush credited seizure of this shipment with helping to convince Libyan dictator Moammar Ghadafi to end his nuclear and chemical weapons programs and not to pursue biological weapons. With the invasion and regime change in Iraq also before him, Ghadafi agreed to allow inspections by the International Atomic Energy Agency and the Organization for the Prohibition of Chemical Weapons.
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
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,
The question of what is permissible for seizure and what is not must be determined on a case-by-case basis. As a nation that has consistently upheld the importance of free trade around the world, we will not act capriciously. Where there are gaps or ambiguities in our authorities, we may consider seeking additional sources for such authority, as circumstances dictate. What we do not believe, however, is that only the Security Council can grant the authority we need, and that may be the real source of the criticism we face.
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.
1. A description of this ship can be found on the BBC Chartering and Logistic Web site, www.bbconline.de/everyship/schiffansicht.php3?art=crane&nr=86.
2. Data as of July 2003, Maritime Administration, U.S. Department of Transportation.
3. Oceans, The Source of Life: United Nations Convention on the Law of the Sea, 20th Anniversary 1882-2002 (United Nations, 2002) p. 8.
4. "The Proliferation Security Initiative: Naval Interception Bush-Style" Center for Defense Information, 25 August 2003.
5. "China Will Veto Ban on Spread of Illegal Arms, Envoy Says" Bloomberg News, 13 February 2004.
6. See "China's Record of Proliferation Activities," testimony of Paula A. DeSutter, Assistant Secretary of State for Verification and Compliance before the U.S.-China Commission, 24 July 2003, at www.uscc.gov/textonly/transcriptstx/tesut.htm, and Shirley A. Kan, "China Proliferation of Weapons of Mass Destruction and Missiles: Policy Issues," Congressional Research Service, 8 August 2003.
7. A. T. Mahan, Sea Power in its Relations to the War of 1812, vol. 1 (Haskell House, 1969, reprint of 1905 edition), p. 2-3.
8. John R. Bolton, "'Legitimacy' in International Affairs: The American Perspective in Theory and Operation," remarks to the Federalist Society, 13 November 2003, at www.state.gov/t/us/rm/26143.htm.