Saturday, October 16, 2004

More on the Proliferation Security Initiative

In May 2003, during a speech in Poland, President Bush announced a new program: the Proliferation Security Initiative (1  2). Tech  Central Station has a summary on the PSI and related issues here.  The TCS article is entitled Mr. Multilateral.  TCS informs us that the PSI has no funding, then goes on to tell us that we should be proud of Mr. Bush for starting it.  Although the article is not a particularly good source of information about the PSI, it is a good example of spin doctoring. 

Called the Proliferation Security Initiative, this results-oriented alliance is now just over a year old. The work of the much maligned Under Secretary of State for Arms Proliferation and International Security John Bolton, PSI is already a great success in bringing nations that disagreed bitterly over the Iraq war together under one flag to deal with larger weapons proliferation issues, especially those relating to the Korean Peninsula.
Referring to it as a "results-oriented program," seems odd, since they can cite only one actual result.  The interdiction (CNN) of uranium-centrifuge parts between an unnamed Persian Gulf port and Libya (in October 2003) is the only result so far.  Furthermore, they do not show that the interdiction really was a result of PSI.  They go on to say that the interdiction was what led to Libya's decision to abandon its nuclear arms program (in December 2003).  They neglect to mention the fact that the Clinton administration imposed sanctions  on Libya in 1996, and that diplomatic negotiations with Libya had been going on for years prior to December 2003.  Libya began its efforts to get sanctions lifted in 1999, when it turned over the two suspects in the Lockerbie bombing case. The decision by Libya to give up its nuclear program was reported  to have followed "nearly a year of secret talks between Libya, the United States and Britain."  Thus, it is difficult to attribute the decision to the success of the PSI. 

<rant-tangent>As an aside, the TCS article points to the involvement of many nations in the PSI, claiming that this is proof that the media and the Democrats are wrong in trying to portray Mr. Bush as a unilateralist.  Actually, Mr. Bush himself is to blame for that label.  He boasts about his willingness to act without international support.  TCS goes on to say:

PSI's role in the disarmament of Libya has been poorly explained by the Bush administration and therefore poorly understood by the American public, with the media playing an assisting role in fostering ignorance.Wawel Royal Castle
OK, I can agree with that.  The media do play a role in fostering ignorance.  Bush himself has to take some blame, though, since he announced the program while at the Wawel Royal Castle, in Krakow, Poland.  'Let me see, where can I make an announcement that will really grab the attention of the American People?  Hmmm...I know!  That castle in Poland!' 

Not only that, but the PSI may not really be a sterling example of multilateralism.  In the CNN article linked above, it is mentioned that the IAEA planned to go into Libya after the December announcement.  But they did not want help from the US or UK:

The interception of centrifuge parts bound for Libya was first reported in Wednesday's Wall Street Journal. The White House and State Department then confirmed the report with few details and no explanation why confirmation took nearly three months.

The director of the International Atomic Energy Agency, Mohamed ElBaradei, told The Associated Press Tuesday he did not want American or British help on the ground in Libya.

"As far as I'm concerned, we have the mandate, and we intend to do it alone," ElBaradei said.


Back to the main issue, the PSI.  Is the PSI something that the President can cite in a debate, as an example of his competence?  The CNN article mentions that (in December 2003) the PSI was planning six exercises in maritime interdiction, to begin in "early 2004."  According to the US Dept. of Defense, the first such exercise did not take place until September 27, 2004. 

Why was the PSI formed?  According to this article  on the Arms Control Association  website, the inception actually was the result of "an embarrassing episode."

How did PSI begin? The catalyst came in December 2002, when U.S. intelligence picked up the So San, an unflagged merchant ship that had departed a North Korean harbor and was steaming toward an unidentified destination in the Middle East. U.S. officials contacted the Spanish government to ask that its navy stop the ship in the Mediterranean Ocean and conduct an inspection to ensure no illicit cargo was on board. On December 9, following initial attempts by the So San to evade boarding, Spanish special forces rappelled onto the ship from helicopters and discovered 15 complete Scud B missiles, 15 warheads, and missile fuel oxidizer. Two days later, Yemen claimed ownership of the Scud missiles, declaring that it had purchased the missiles from North Korea for defensive purposes under a 1999 contract. [...]

The Bush administration was chagrined over an embarrassing episode where its actions did not match its tough rhetoric on nonproliferation. The seizure and subsequent release of the So San preceded only by days the release of the administration’s National Strategy to Combat Weapons of Mass Destruction, in which the U.S. government promised an aggressive approach to halt WMD proliferation. As one senior official told The New York Times, Bush was “a very, very unhappy man” after the ship’s release. Ironically, although the So San episode was critical to the formulation of PSI, the existence of PSI would have done nothing to change the final outcome. Because PSI is only designed to exploit existing legal authorities, not create new powers, were another So San episode to occur today, the United States would still be bound by international law to release the vessel. Still, the lesson of U.S. impotence in the face of clear proliferation behavior was not lost on the White House. [...]

So, there is an "embarrassing episode," Mr. Bush becomes "very, very unhappy," and, in response, proceeds to form an initiative that "would have done nothing to change the outcome."  The same article states:

According to U.S. government officials, the lack of international treaties governing the trade or possession of ballistic missiles prevented the United States from retaining the Scud missiles and warheads.
Let's be sure we have this straight.  The State Department decides that the problem is due to a lack of pertinent international treaties, so we respond by creating an organization that has no legal authority and no operating budget, and which will not solve the problem, and we do nothing to initiate a pertinent international treaty.

As far as I can tell, the USA participates in two agreements pertaining to ballistic missile proliferation: the Missile Technology Control Regime, and the International Code of Conduct Against Ballistic Missile Proliferation.  According to the US State Dept. website fact sheets:

The ICOC is aimed at bolstering efforts to curb ballistic missile proliferation worldwide and to further delegitimize such proliferation. The ICOC consists of a set of general principles, modest commitments, and limited confidence-building measures. It is intended to supplement, not supplant, the Missile Technology Control Regime (MTCR), and is administered collectively by all of the Subscribing States. There is not a formal Secretariat or implementing organization, and thus we do not foresee any financial burden for most Subscribing States.
The MTCR is not a treaty, but a voluntary arrangement among member countries sharing a common interest in controlling missile proliferation. The Regime’s mandate was expanded in January 2003 to include preventing terrorists from acquiring missiles and missile technology.
"We do not foresee any financial burden"  Thank god for that!  Mr. Multilateral is really on the ball there!  The ICOC had 99 countries on board when it was brought into effect.  Since then, Burundi, Eritrea, Fiji, Guinea-Bissau, Guyana, Liechtenstein, Malawi, Mozambique, Panama, Tonga, Turkmenistan, and Vanuatu have been brought into the fold.  Thanks to Mr. Multilateral, we now have nothing to fear from Vanuatu.  However, Iran and North Korea are holdouts, as are Yemen, Saudi Arabia, and Mexico.  Texas is not on the list, either. 

Legal scholars will be wondering about the role of the Reagan-era  The Law of the Seas Convention.  Apparently, the USA has not signed that particular document.  No matter, the Law of the Seas explicitly allows  ships to transport weapons, even nuclear weapons.  Indeed, there still is doubt  about the legal backing of the PSI:

The Bush Administration defends PSI and the right of participating nations to interdict shipments moving WMD as “A step in the implementation of the UN Security Council Presidential Statement of January 1992, which states that the proliferation of all WMD constitutes a threat to international peace and security, and underlines the need for member states of the United Nations to prevent proliferation.” Following the PSI meeting in Madrid, Mr. Bolton claimed, “We have the authority ‘to begin interdictions on the high seas and in international airspace.’”

However, the legal justification put forward by the Bush Administration for PSI is, at best, uncertain. While PSI is designed to halt trafficking of WMD by air, land, and sea, at least for now the initiative is focused primarily on shipments by sea. The Law of the Seas Convention codified the long observed right of innocent passage for ships through territorial waters and the freedom of ships on the high seas. Although the United States is not a signatory to the Convention, it is considered bound by customary international law to Convention regulations. Stated simply, the Convention allows ships to “pass through territorial waters so long as their intentions are innocent.” Article 23 of the Convention even grants ships carrying WMD the right of innocent passage and explicitly includes shipments of nuclear weapons.

Of course, since Mr. Multilateral doesn't give a hoot about international law, the lack of legal authority is no big deal right now.  The thing is, we someday may have a President who does believe in the rule of law, and if so, we could be in trouble.  The Libya shipment was intercepted only because it was on a German ship, and Germany cooperated.  Much contraband is shipped on vessels registered under flags of convenience.  We have agreements with Panama and Liberia that allow up to implement the PSI, but the Bahamas, Malta, Cyprus, and the Marshall Islands all allow ships to register in their countries with minimal oversight, and we do not have such agreements with them.  (As mentioned in the Arms Control Association article, linked previously.)

The PSI has been criticized by others, including the Center for Defense Information:

Naval interdiction operations in general and the PSI in particular face a number of challenges to effective implementation.  These include legal authorization, the political problems involved in constructing and maintaining a 'coalition of the willing,' logistical constraints, as well as rules of engagement difficulties. While international law can always become a subject of debate, 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.
Another CDI article, available only in a PDF file, states:

Russia's participation will only occur, according to the Russian Foreign Ministry, as long as PSI activities do not violate national or international law. Russian officials have similarly expressed concerns that the PSI's land, sea, and air-based WMD interdiction activities could endanger international commerce, and give unwarranted powers to the U.S. Navy to act as a global police force.

Russia's reservations are symptomatic of a much larger set of apprehensions and uncertainties that have rightfully stirred doubts that the PSI will indeed contribute to nonproliferation goals without undermining international peace and cooperation. Fundamental legal, operational, and budgetary questions remain unanswered regarding the PSI, damaging its prospects for international support and effectiveness. PSI states remain secretive about the methods being employed and the number of actual interdictions being carried out. Under such conditions, it has been difficult to evaluate the success of the endeavor.

The PSI will not help curtail the spread of WMD or related technologies and delivery systems if it is made the centerpiece of international strategy to counteract proliferation. As an informal  non-organization  acting upon partial intelligence with limited national resources, and with no independent budget or coordinating mechanism, the PSI s capabilities are significantly constrained. U.S. Undersecretary of State John Bolton envisioned in Krakow on May 31 that the PSI would evolve to the point where it  will have shut down the ability of persons, companies, or other entities to engage in this deadly trade. Such high expectations are unrealistic, and could undercut potential attention to other essential nonproliferation measures.

Dan Smith, a retired US Army colonel, wrote an article for the nonpartisan think tank, Foreign Policy in Focus, that is highly critical of PSI.  He agrees that there are significant legal and practical challenges to its implementation:

At best, under current law, PSI interceptions will be restricted to suspicious ships and planes in a PSI-member or "cooperating" country's territorial waters and national airspace. (Note also that officials of a "host" country have inherent jurisdiction already to board and inspect ships that dock at its ports to enforce its laws.) This suggests that it will have minimal impact on its main target, North Korea, whose "shortest distance" (air and surface) to sympathetic countries is through China. For this reason, and in light of the importance of revenues from its missile sales, North Korea will be careful not to antagonize China too much. [...]

The U.S. may also try to suborn Article 51 of the UN Charter, which gives states facing an imminent military threat the right to use force in self-defense until the Security Council can take action. But as with the general "Bush Doctrine" of preventive war, this use of Article 51 would be a gross misrepresentation of its intent.

For its part, North Korea has declared that any interdiction of its vessels would be considered an act of war. From the North's perspective, this is logical as the interdicting vessel will inevitably be a warship. [...]

For a nation that has always insisted that freedom of the seas is a fundamental part of international law, the PSI runs close to subverting this principle. In fact, the PSI itself may well be seen as constituting an unlawful solution--and thus a very basic and serious challenge to--the multiple challenges of "proliferation."

Earlier, I cited the TCS article that referred to John Boulton, the Bush administration’s top arms control official, as being "much-maligned."  In an interview (report, full text) about the PSI, we see why:

On the wall of the reception room outside John Bolton’s State Department office hangs a Wall Street Journal profile entitled “Disarming America’s Treaties.” The accompanying illustration shows Bolton, the undersecretary of state for arms control and international security, cutting a handful of treaties in half with a pair of scissors.

Bolton, who prefers blunt talk to diplomatic niceties, is clearly proud of his reputation—and of his record. Since he assumed his post as the Bush administration’s top arms control official in May 2001, the United States has withdrawn from the Anti-Ballistic Missile Treaty, torpedoed a proposed addition to the Biological Weapons Convention, and disavowed the Comprehensive Test Ban Treaty. [...]

 Bolton described the responses as overwhelmingly positive and discounted reports of Chinese and Russian reservations about the initiative. He said Moscow reported it had “no objection” to intercepting WMD shipments, while Beijing claimed to “support the concept behind the initiative.”

Yet, a Chinese Foreign Ministry spokesperson offered a less enthusiastic view Sept. 4. “Quite some countries have doubts over the legality and effectiveness of the PSI,” Kong Quan said.

We also learn that Mr. Bush talked about getting international law to support the PSI, but has not done anything about it -- and, apparently -- does not intent to. 

ACT: How does PSI fit in or square with President Bush's proposal to get a UN resolution on outlawing WMD trafficking in general that he spoke of earlier this year?

Bolton: Well what he said in the speech in September was that he wanted to strengthen national laws criminalizing WMD-related behavior, and to bring the national export control regimes up to international standards, and we're in discussions now with other Security Council members about what that resolution would look like, but we don't contemplate at this point, nor do the other PSI members, seeking Security Council authorization.

Mr. Bolton does not even have the support of the congressional Bipartisan Security Group.  According to a paper written by Benjamin Friedman, sponsored by the BSG:

Last November, John Bolton, the Undersecretary of State for Arms Control and International Security, gave a speech entitled "'Legitimacy' In International Affairs: The American Perspective in Theory and Operation." The speech addresses the legitimacy of three aspects of U.S. foreign policy - the authority for the war in Iraq, a new U.S.-led nonproliferation effort called the Proliferation Security Initiative, and opposition to the International Criminal Court. Some points Bolton makes on these subjects are wrong, and this piece corrects those points. More fundamentally, however, Bolton's speech attacks the very idea of international norms. This paper is then also a brief defense of multilateralism.
Mr. Friedman happens to agree with Mr. Kerry's view, that the current Administration's record on securing nuclear material is poor.  That is another subject, though.  Here  is a reference for those who are interested. 

In writing this, I ran the usual search engines, and used blog-specific search sites to see what bloggers had to say on the subject.  There wasn't much by the bloggers, except for passing references to the debate.  On the NGO sites and news organizations, I did not find anyone who voices vigorous support for the PSI, with the Tech Central Station article as the sole exception. 

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