THE PROLIFERATION SECURITY INITIATIVE

AS A NEW PARADIGM FOR PEACE AND SECURITY

Mark R. Shulman

April 2006

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The views expressed in this report are those of the author and do not 

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Department of Defense, or the U.S. Government. This report is cleared for public 

release; distribution is unlimited.

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The author thanks Janine Kovacs and Galit Waysglas for their superb 

research assistance. Professors Clark Lombardi, Bernard Oxman, and José Alvarez 

generously have offered insights to strengthen the monograph’s argument. All 

mistakes remain those of the author. Comments pertaining to this report are 

invited and should be forwarded to Dr. Shulman at Shulman@aya.yale.edu.

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iii

FOREWORD

In this monograph, Dr. Mark R. Shulman offers a novel thesis 

to explain the value of an important new security initiative with 

considerable implications for the future use of force in operations 

other than war. While this initiative is still in its formative stages, 

it may eventually change the use of force paradigm in which 

military leaders and political decisionmakers operate. And despite 

its promise, no one has yet attempted a comprehensive analysis of 

it. Dr. Shulman’s monograph draws on publicly available sources 

from governmental publications and press releases, the international 

news media, and think tank strategic analyses, as well the relevant 

historical materials. Based on this wide review of the literature, Dr. 

Shulman argues that the Proliferation Security Initiative is changing 

long-held international norms about the conditions for the use of 

force to ensure strategic objectives. 

To date, the Initiative has drawn mostly on the resources of 

the Navy, Coast Guard, and the State Department; it offers several 

important lessons for soldiers as well. Most importantly, Dr. 

Shulman argues that the Proliferation Security Initiative will help to 

break down some of the obstacles that currently prevent the United 

States and its allies from using targeted military missions to achieve 

critical security objectives without triggering a state of war. Readers 

familiar with the history of the past 50 years will recall that the 

general tendency in the law of war has been to expand the protections 

afforded to those not in uniform. Nuremberg clarified the ban on 

aggression. The 1949 Geneva Conventions codify the principles of 

proportionality and discrimination to protect noncombatants. The 

Additional Protocols of 1977 protect fighters in internal wars even 

if they are not in uniform. The laudable purpose of these laws is 

to reduce the sphere of warfare as narrowly as possible, to make 

it more humane by limiting the scope and scale of its targets. At 

the same time, however, the laws of war have had the unintended 

consequence of making it more difficult for law-abiding nations to 

use highly focused instruments of force. Assassinations have been 

effectively outlawed, leading to less discriminating coups and the 
iv

covert fulmination of revolutions. Embargoes have been abandoned, 

leading to virtually indiscriminate sanction regimes. The cumulative 

impact is difficult to calculate but may well add up to more suffering 

by the innocent and more distrust of the good. 

The law of war allows the use of awesome violence under narrow 

circumstances. The law of peace permits very few and narrowly 

circumscribed uses of force. In a world with globalized threats, 

myriad menaces, and ever wider dissemination of weapons of mass 

destruction, the stark distinctions between these legal regimes is 

fraying. The Proliferation Security Initiative may offer a way to cover 

the gap. As it does, each of the military services will need to develop 

new doctrine and new capabilities. While the Initiative is focusing 

right now on maritime operations, interdictions on land may not be 

not far behind. So I encourage you to read this monograph with an 

eye toward the future.

DOUGLAS C. LOVELACE, JR.

Director

Strategic Studies Institute 
v

BIOGRAPHICAL SKETCH OF THE AUTHOR

MARK R. SHULMAN is Assistant Dean for Graduate Programs and 

International Affiliations and an Adjunct Professor of Law at Pace 

Law School. Previously, he has taught at Yale University, Columbia 

University’s schools of Law and International and Public Affairs, and 

at the U.S. Air War College. In addition, he has conducted studies 

on behalf of the National Defense University, the U.S. Army War 

College, and the U.S. Naval War College. He has held appointments 

and published widely in the fields of history, international affairs, 

and law. Dr. Shulman has edited The Laws of War: Constraints on 

Warfare in the Western World with the eminent military historian Sir 

Michael Howard and George Andreopoulos, and edited another 

volume on General Telford Taylor and the prosecution of war 

crimes. He studied history at Yale College, where he received his 

BA, and Oxford University, where he earned a master’s degree in the 

history of the British Empire. Dr. Shulman completed his Ph.D. at the 

University of California at Berkeley, where he wrote Navalism and the 

Emergence of American Sea Power, 1882-1893. He also graduated from 

the Columbia University School of Law where he was editor-in-chief 

of the Columbia Journal of Transnational Law. 

vii

SUMMARY

Weapons of mass destruction (WMD) have menaced mankind 

for six decades. Since the end of the Cold War, the threat has changed 

dramatically with the development of new weapons, with the rise 

of transnational criminal and terrorist organizations, and with a 

diminishing capacity of some states to control the weapons they 

have. In the hands of an Al Qaeda, such a weapon threatens to kill 

tens of thousands and destroy tens of billions of dollars worth of 

property. It could bring global trade to a standstill and trigger panic, 

economic depression, and widespread suffering the likes of which 

have not been seen for many years. 

Containing the threat of WMD requires action on several fronts. 

States that legitimately possess nuclear, biological, or chemical 

weapons must work to ensure that they will not be used and that 

they eventually will be decommissioned. States that illegitimately 

possess them must abandon them. States that do not possess them 

must refrain from obtaining them. Nonstate actors must never 

possess them. One key to achieving these objectives is to halt the 

flow of WMD across borders. 

The U.S.-led Proliferation Security Initiative is a bold and timely 

multilateral initiative to prevent the proliferation of WMD and the 

materials used to construct them. To accomplish this objective, the 

Initiative facilitates information-sharing in order to better identify 

and locate shipments of WMD. It also contemplates the interdiction 

of shipments of weapons and materials—by force if necessary. Since 

announced in 2003, the Initiative’s efforts have focused on halting the 

flow of WMD across the world’s oceans. In the future, its activities 

may extend to land-based interdictions. 

While a product of a presidential administration infamous for 

its unilateralism, the Initiative has received widespread support. 

United Nations (UN) Secretary General Kofi Annan has explicitly 

endorsed it. At least 60 states are participating in it at one level or 

another, including Great Britain, but also France, Russia, Germany, 

Italy, Japan, and Spain. Unfortunately, support is not universal.

The Initiative constitutes one of the most important recent 

developments in the area of international peace and security, and 
viii

may also add up to the most exciting changes in the area of public 

international law. It has the potential to alter fundamentally the 

transnational legal framework for the use of force by states. Force 

may become a more ordinary tool that sits on a spectrum of means 

by which political objectives can be achieved. By blurring the lines 

between war and peace, the Initiative eventually may permit states 

to use highly targeted and entirely proportionate force for limited 

purposes to further security objectives without triggering war and 

all the horrors that it entails. 

Implementation of this Initiative raises serious legal challenges 

by questioning the basic principles of the international system: the 

sovereignty of states in general and freedom of the seas in particular. 

The Initiative eventually may overcome these challenges by increasing 

the transparency of its decisionmaking apparatus and criteria, by 

continuing to expand its base of support through diplomacy and 

dialogue, and working within the rule of law to create a new base 

norm that prohibits the proliferation of WMD. This monograph 

describes the Initiative, its legal status, and its prospects for becoming 

a significant tool in the quest to prevent mass destruction.
THE PROLIFERATION SECURITY INITIATIVE

AS A NEW PARADIGM FOR PEACE AND SECURITY

Thus far the chief purpose of our military establishment has been to win 

wars. From now on its chief purpose must be to avert them.

Bernard Brodie

The Absolute Weapon: Atomic Power and World Order, 1946

Sixty years ago, strategic analyst Bernard Brodie took serious 

stock of the military threats and missions in a world with atomic 

bombs. He recognized that this new class of weapons would cause 

intolerable destruction, and therefore the United States could 

no longer afford to wait for the enemy to strike first. In the halfcentury that followed, mutual assured destruction served to avert a 

catastrophic strike. More recently, the threat has changed as enemies 

who cannot be deterred have sought to possess weapons of mass 

destruction (WMD). While the range of catastrophic threats has 

expanded dramatically, the means the military establishment has to 

avert wars has not grown accordingly. 

Because the international security system is premised on 

exceedingly strong notions of national sovereignty, the United States 

may not seize a shipload of nuclear weapons moving from North 

Korea to Iran for ultimate use by terrorists. Russia may not force the 

landing of an airplane carrying anthrax from the Sudan to Chechnya 

until that craft enters Russian airspace. In other words, terrorists, 

revolutionaries, and rogue states are virtually free to ship WMD as 

they wish. Without some significant changes to the system, the use 

of WMD against civilians seems virtually inevitable. 

This monograph addresses one significant undertaking that 

seeks to change the system by enabling concerned states to interdict 

international trade in WMD. As such, the Proliferation Security 

Initiative (the “PSI” or “Initiative”) not only addresses one of the 

most urgent threats to peace and security that the world has ever 

witnessed, but it does so in an innovative way that has the potential 

to change the basic paradigm of peace and security by legitimizing 

the proportional and discriminating use of force to prevent a great 

harm. 
This monograph proceeds in eight sections. Section I introduces 

the Initiative and discusses some of the legal, political and strategic 

issues it raises. Section II discusses the threats that the proliferation 

of WMD pose and the ways that the Initiative seeks to address them. 

Section III presents those few operational details publicly available. 

Section IV takes up the complicated questions raised by the PSI. 

Part of the Initiative’s brilliance lies in its flexibility, but this design 

element makes it difficult to identify who is participating and at 

what level. It also leaves open questions about whom the Initiative 

targets. To date, the Initiative has focused on operations to interdict 

the flow of weapons at sea, a prospect that raises significant legal 

concerns because a theoretical interdiction might contravene the 

strong tradition of freedom of the seas. Section V examines existing 

and potential legal arguments that would allow interdictions. 

Section VI picks up the thread by examining the efforts to overcome 

any legal obstacles through the essentially political actions of the 

United Nations Security Council (UNSC). Section VII then looks at 

the implications for the Department of Defense (DoD), and for the 

Army in particular. While the PSI’s efforts to date have focused on 

maritime operations, it may eventually involve land-based forces as 

the counterproliferation norm matures. Finally, Section VIII draws 

some conclusions and makes a few concrete recommendations about 

how to build support and improve the fit between the PSI and its 

critical mission. 

I. INTRODUCTION: THE PROLIFERATION 

SECURITY INITIATIVE AND ITS OBJECTIVES

The Proliferation Security Initiative is a multilateral initiative 

intended to prevent the proliferation of WMD and the materials used 

to construct them. “The goal of the PSI is to create a more dynamic, 

creative, and proactive approach to preventing proliferation transfers 

to or from nation states and nonstate actors of proliferation concern.”1

To accomplish this objective, the PSI establishes links to facilitate 

information sharing between countries. The Initiative organizes 

multinational exercises to train for the interdiction of these weapons 

on the high seas or the airspace above them. The PSI’s activities are 

intended mostly to enable its supporters to identify cross-border 
trafficking in WMD and to halt it. It explicitly contemplates boarding 

ships and, if necessary, using armed force to seize weapons and the 

materials used to make them. Its Statement of Principles also includes 

undertakings by its participants to board and search vessels reasonably 

suspected of transporting WMD (including their delivery systems) 

and to refrain from transporting WMD themselves. Its signers also 

undertake to consider providing consent to boarding and searching 

vessels carrying their flags. Subsequent bilateral agreements have 

been signed to allow the United States to board ships bearing flags 

of convenience under certain circumstances. 

Since its inception, the Initiative’s efforts have focused on halting 

the flow of WMD across the world’s oceans. In the future, its activities 

may extend to land-based interdictions. Most of the participants in 

these exercises are the naval and air forces of the United States and 

the various regional powers that would presumably undertake any 

interdiction in the future. 

President George W. Bush announced the Initiative in Krakow, 

Poland, on May 31, 2003. A few months later, 11 states signed 

a Statement of Principles, an ambitious document (see appendix) 

that provides very few details. Since that time, the PSI has gained 

widespread support from United Nations (UN) Secretary General 

Kofi Annan and 60 states including those traditionally known as 

the “Great Powers”: Great Britain, France, Russia, Germany, Italy, 

Japan, and Spain. Unfortunately, some states have not endorsed it. 

This monograph examines some of the reasons that the Initiative has 

not garnered universal support and proposes ways to achieve it.

The Initiative is both bold and timely. It constitutes one of the 

most important recent developments in the area of international 

peace and security and may also add up to the most exciting change 

in the area of public international law, since it may fundamentally 

alter the transnational legal framework for the use of force by states. 

As it gains acceptance, force may become a more ordinary tool for 

ensuring compliance with the dictates of international security. By 

blurring the lines between war and peace, the PSI permits the use 

of force to further security objectives without triggering war and 

all that state implies. And yet, despite the Initiative’s novelty and 

importance, it has attracted remarkably little scholarly or policy-
relevant attention.2

 Moreover, because the Initiative lacks a central 

office, an international secretariat, an operational handbook and 

rules of engagement, or even congressional authorization, it remains 

shrouded in mystery. 

While the Initiative constitutes a highly innovative concept for 

responding to one of the most urgent sets of problems that society 

faces, its implementation also raises several significant legal and 

policy issues. That it raises issues should not be surprising. Significant 

changes to international norms have always faced obstacles; that is 

the nature of complex systems. Historical examples abound. For 

instance, consensus was slow to form around such momentous 

issues as the outlawing of piracy, the slave trade, and eventually 

genocide. More recently, the international community has been 

hesitant to outlaw aviation piracy or other acts of terrorism. And 

now the international community is halting and unsure about how 

to proceed in the face of nuclear proliferation. The PSI is acting as a 

catalyst for the development of a new norm that allows the use of 

force to interdict the flow of WMD.

A definitive conclusion about the legal status of the Initiative is 

elusive for several reasons related to its lack of a discernable structure. 

Different states have presented diverging views of the relevant law 

that governs the Initiative’s activities. Also, because the PSI seeks to 

address proliferation events as they arise, no one knows yet what 

actions its members will take and, therefore, what legal arguments 

will be required to support them. Finally, the PSI contains the seed 

of a new kind of law, a universal ban on the proliferation of WMD, 

and this law has yet to be fully articulated, let alone tested. 

As the lead participant, the U.S. legal position is critical and 

has been evolving since 2003. Then Undersecretary of State John R. 

Bolton defended the PSI’s legality at the time as based on the right to 

collective self-defense. This justification proved to be overreaching. 

Other PSI core members failed to endorse it, and Secretary Bolton 

subsequently dropped it.3 More recently, the State Department 

vaguely has claimed that the “PSI activities will be consistent with 

domestic and international legal frameworks, many of which, in 

turn, implement existing nonproliferation structures.”4 This claim 

deserves detailed analysis and explanation in order to justify it in the 
face of contrary claims and also to spell out some of the opportunities 

opened by widespread endorsement of the PSI. Going further, this 

monograph also will argue that in order to implement the PSI, its 

supporters are altering international law in ways that may increase 

its very scope and relevance.

To meet a global threat, the PSI is ambitious in its geographic 

scope. WMD may originate almost anywhere and, in light of the 

intention of some nonstate actors to obtain them,5 they may be bound 

for almost anywhere. Countries of origin could include North Korea, 

Iran, China, Syria, Pakistan, India, Israel, Vietnam, Sudan, Egypt, 

Yemen, Cuba, and almost any of the former Soviet republics. From 

there, the weapons could be transshipped anywhere on earth before 

arriving at their ultimate destination or target. Therefore, the threat 

is global.

In the face of a global threat, who sets strategy? The PSI declarations to date leave ambiguous its decisionmaking apparatus. Who 

will decide when and how to act? What role does the United States 

play? Is the decisionmaking process entirely ad hoc? The PSI Statement 

of Principles does not establish any detailed policies relating to the 

Initiative’s purpose, decisionmaking apparatus, targets, or means. 

The Statement does elaborate somewhat on the concept: 

“States or nonstate actors of proliferation concern” generally refers to 

those 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.

This formal statement begs more questions than it answers. Is there a 

list of states or nonstate actors of concern? What is required in order 

to establish that they should be subject to interdiction activities? 

Are radioactive materials that could be used to create radiological 

devices (dirty bombs) subject to interdiction? Why are some states 

permitted to acquire WMD or transfer them? Which states? 

Informal statements do provide additional insights into the 

Initiative’s objectives. Its architect, John Bolton, has stated that the 

Initiative will not target states that possess WMD “legitimately.” 
This statement presupposes a legal conclusion that is at best vague. 

Presumably it means that at least China, Russia, Great Britain, and 

France will not be subjected to the Initiative’s interdiction efforts so 

long as they do not export these weapons to rogue states or nonstate 

actors.6 As long-time declared nuclear powers under the terms of 

the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and 

each wielding a UNSC veto, they appear to be insulated from the 

reach of the PSI. 

Other informal statements about the PSI’s objectives are less 

vague but are self-contradicting. A British government expert states 

that the PSI does,

not target any country or countries in particular . . . Rather the goal is to 

prevent the development or acquisition of WMD by all nonstate actors 

(such as terrorists) and states of concern, together with those who supply 

such programmes through trafficking in sensitive materials, equipment 

and technology—whether states, individuals, private companies, or 

other entities.7

That there are some “states of concern” appears to belie the claim that 

the PSI does not target any countries in particular. The ambiguity 

and tension inherent in this statement are indicative of the fluidity 

of the Initiative. It does not target any specific country, while at the 

same time preventing proliferation to or from “states of concern.” It is 

this sort of ambiguity—and the apparent discretion it permits—that 

causes some commentators to question whether the PSI conforms to 

the rule of law. Vague policy statements about “states of concern,” 

however, are not the same thing as acts of violence, and the PSI’s 

legitimacy cannot be prejudged on the basis of these statements 

alone. Ultimately, the actions taken on behalf of the PSI and the law 

that governs those actions will determine the Initiative’s legitimacy. 

The results will illuminate its wisdom.

Likewise, it remains unclear how the PSI’s participants would act 

if faced with information indicating that a shipment originated in a 

state that is neither a party to the NPT, nor a long-standing nuclear 

power (Israel), nor a powerful state with considerable international 

leverage such as India or Pakistan.8 Given Pakistan’s recent history 

and its apparent inability or unwillingness to halt the export of 

WMD, claims that it will get a free pass seem premature.9 But as 
veteran weapons inspector David Kaye notes, “This is the age-old 

problem with Pakistan and the U.S. Other priorities always trump 

the United States from coming down hard on Pakistan’s nuclear 

proliferation. And it goes back 15 to 20 years.” Likewise proliferation 

expert Gary Milhollin notes that “it seems bizarre that we are letting 

the Pakistanis get away with nuclear smuggling because we think 

they’ll help fight terrorism.”10 The best evidence publicly available 

suggests that India, Pakistan, and Israel will not be targeted—at least 

for now.11

The case of Pakistan illustrates the PSI’s potential for changing 

the use of force paradigm to achieve international peace and security. 

Clearly, from a counterproliferation perspective, the PSI should not 

grant Pakistan a free ride. Other important considerations arise, 

however, because of Pakistan’s role as a critical ally in the struggle 

against terrorism. One of the PSI’s greatest strengths is the flexibility 

it offers. The traditional international security order viewed the world 

as governed by fully sovereign states with a small number of states 

whose sovereignty is impaired temporarily (either because they are 

“failed” states, or client states, or those subject to UN sanctions). 

Traditionally, international law does not offer much support to those 

seeking to discriminate between the rights of different states based on 

an interpretation of their so-called “legitimacy.” Instead, it treats the 

legitimacy and sovereignty of all states with equal dignity except in 

those few instances in which states violate obligations that are either 

self-imposed by custom or treaty, or imposed upon them by the UN 

Security Council. In contrast, the PSI implies a less rigid concept of 

sovereign autonomy in which a state no longer has complete freedom 

to engage in reckless activities that endanger another’s security. 

The PSI must prevent weak states from trafficking in WMD, while 

not further undermining their capacity to govern themselves. The 

United States can neither afford to ignore Pakistan’s proliferation 

nor to destabilize (or alienate) its government. 

Eventually the PSI must develop enough support that it can halt 

proliferation from all countries, including those that are powerful 

or that have special influence as allies in the global struggle against 

terrorism. Granting free passes to oneself or one’s friends runs 

contrary to the basic principles of the rule of law. It sets the grantor 
and the grantee above the law. The rule of law is premised upon 

the notion that no one is above it. And for the PSI to support a 

transnational order based on this principle, it should do everything 

feasible to abide by the rule of law itself. On the other hand, it may 

take years for supporters of the PSI to establish the legal capacity 

to target important countries that proliferate; in the meantime 

solicitousness for the most robust interpretations of the rule of 

law should not be permitted to cripple the entire effort. Soldiers, 

diplomats, policymakers, and their lawyers should embrace the PSI 

and strive to strengthen it as an important counterproliferation tool.

A New Form of Multilateralism.

The Initiative offers a new model for multilateral cooperation 

that avoids cumbersome treaty apparatus. From the beginning, the 

George W. Bush administration has been notoriously unfriendly to 

traditional multilateral conventions. Diplomats and lawyers have 

been accustomed to drafting and interpreting such treaties for 

decades. The postwar system of international peace and security is 

framed in great part by such treaties. Prior to September 11, 2001 

(9/11), the Bush administration withdrew the United States from 

the Anti-Ballistic Missile Treaty, abandoned negotiations on START 

II, and decided not to ratify the Comprehensive Test Ban Treaty. It 

has stalled efforts to improve the Biological Weapons Convention 

regime.12 It has failed to encourage ratification of the UN Convention 

on the Law of the Sea despite strong support in Congress and its 

own Departments of State and Defense. The administration took 

the unprecedented step of “unsigning” the 1998 Rome Charter of 

the International Criminal Court. The administration’s antipathy to 

exposing Americans to charges in international tribunals is so strong 

that it expended considerable diplomatic capital to ensure blanket 

exemptions for Americans before the new International Criminal 

Court, despite the charter’s provisions and political considerations 

making any such prosecution exceptionally unlikely.13

At the same time, the administration’s efforts to build multinational coalitions have been widely derided as fig leaves for unilateral 

action. These complaints, whatever their merit, do not mean that the 

administration has been ignoring the roles that other states can play 
in maintaining peace and security. The PSI represents a prominent 

example of the administration’s thinking about how to build 

transnational support to protect American interests. It envisions a 

new kind of multilateral security agreement—one with considerable 

advantages over the heavily negotiated and thus cumbersome 

treaties to which lawyers and diplomats have grown accustomed. 

While it is beyond the scope of this monograph to explore them all, 

other U.S.-led transnational security initiatives since 9/11 should at 

least be noted to give the reader an idea of their range and scope. In 

addition to the PSI,14 they include the Container Security Initiative,15

the Customs-Trade Partnerships against Terrorism,16 the Regional 

Maritime Security Initiative,17 and the Global Threat Reduction 

Initiative.18 Also, the PSI has a nonproliferation analogue in the 

Global Partnership against the Spread of Weapons and Materials of 

Mass Destruction.19 Each is an activity, not an organization. Not one 

of the initiatives is established by a multilateral treaty that has been 

signed and ratified by each participant. And yet, cumulatively, these 

initiatives may be building a new system that responds effectively 

and legitimately to the security demands of the 21st century. 

II. THE GRAVEST DANGER: 

WEAPONS OF MASS DESTRUCTION

Since the advent of the Nuclear Age, everything has changed save our 

modes of thinking, and we thus drift toward unparalleled catastrophe.

Albert Einstein20

Terrorists wielding WMD present the greatest threat to our 

civilization.21 If used by a terrorist group, chemical, biological, or 

nuclear weapons could cause the deaths of thousands or even millions 

of innocent people. During a debate with Senator John F. Kerry during 

the 2004 presidential campaign, President Bush said, “I agree with 

my opponent that the biggest threat facing this country is weapons 

of mass destruction in the hands of a terrorist network.”22 The more 

widely such weapons are distributed, the more likely their use. These 

weapons, or the means to build them, are increasingly accessible to 

states and nonstate actors alike. The threat of widespread disease or 
10

death posed by naturally (or unintentionally) occurring agents such 

as zoonotic diseases23 or gigantic meteors24 may eventually prove 

more deadly, but the likelihood of these threats seems impossible to 

establish. The eventual use of WMD against civilians seems likely. 

Harvard’s Graham Allison grimly forecasts, “on the current path, a 

nuclear terrorist attack on America in the decade ahead is more likely 

than not.”25 The PSI is one new tool in the effort to prevent such an 

attack or attacks. One of its strengths is that it does not pretend to 

be a silver bullet; rather it is part of a growing network of networks, 

each adding layers of security. A silver bullet might miss its target 

but a network of defenses would reduce the threat with every layer.

Political Support from International Institutions.

International support for the PSI is widespread but ambivalent. 

As noted above, the U.S. Government claims that at least 60 nations 

are participating in the Initiative, but a comprehensive statement 

listing those states and the actual level of participation has not 

been released. Individual states that participate in the Initiative are 

discussed. First, however, this monograph discusses the support of 

the most politically significant international entities: the UN and the 

European Union (EU). Later in section VI, it will examine the legal 

arguments to support counterproliferation and the PSI. 

The UN has endorsed the PSI concept but stopped short of 

requiring its member states to pass legislation to enact it when it 

passed Security Council Resolution 1540 (UNSCR 1540) in April 2004. 

UN Secretary General Annan has endorsed the PSI as integral to the 

nonproliferation regime: “President Bush’s Proliferation Security 

Initiative is another important step. These measures must be fully 

enforced.”26 The Secretary General’s report, In Larger Freedom, noted 

that while the NPT “remains the foundation of the non-proliferation 

regime, we should welcome recent efforts to supplement it.” 

Specifically, the report continues, these, 

include UN Security Council Resolution 1540 designed to prevent 

nonstate actors from gaining access to nuclear, chemical, and biological 

weapons, technology and materials, and their means of delivery; and the 

voluntary Proliferation Security Initiative, under which more and more 

States are cooperating to prevent illicit trafficking in nuclear, biological and 

chemical weapons.27
11

Likewise the UN Report of the High-Level Panel on Threats, Challenges, 

and Change notes that recent, 

experience of the activities of the A.Q. Khan Network has demonstrated 

the need for and the value of measures taken to interdict the illicit and 

clandestine trade in components for nuclear programmes.28 This problem 

is currently being addressed on a voluntary basis by the Proliferation 

Security Initiative. We believe that all States should join this voluntary 

initiative.29

These statements contribute to the legitimacy of the PSI, politically 

and morally. Their jurisprudential significance, however, is 

ambiguous and evolving. At this point, the UN’s contributions to 

promoting the PSI, therefore, have been essentially limited to the 

Secretary General’s voicing of support. And as long as China remains 

opposed, the UN’s vast authority under Chapter VII of the Charter 

will remain dormant with respect to the PSI. 

After the UN, the EU is probably the next most significant source 

of the PSI’s political legitimacy. The EU’s position has evolved quickly 

over the past couple of years with each new statement increasingly 

supportive. The EU Strategy against Proliferation of Weapons of Mass 

Destruction promulgated by the European Council in December 

2003 did not mention the Initiative explicitly in its position against 

proliferation. An otherwise comprehensive document, it endorsed 

treaties and encouraged expansion of the EU’s role in enhancing 

verification regimes, assistance programs, export controls, and other 

initiatives intended to improve the security of WMD materials, 

equipment, and expertise. It also included an ambiguous reference 

to considering “measures aimed at controlling the transit and 

transshipment of sensitive materials [and supporting] international 

initiatives aimed at the identification, control, and interception of 

illegal shipments.”30

On the first anniversary of the Krakow announcement, the EU 

and its member states went further and committed “themselves to 

contribute to the PSI and . . . take the necessary steps in support 

of interdiction efforts.”31 Somewhat cautiously, this commitment 

required the EU and its member states to “take the necessary steps in 

support of interdiction to the extent their national and Community 
12

legal authorities permit and consistent with their obligations under 

international law.”32 This statement illuminates several important 

distinctions between the U.S. and EU approaches. These distinctions 

are notable because they illuminate the different approaches of the 

United States and the EU to security and terrorism issues generally. It 

is also notable because the EU overcame these differences in defining 

the ultimate shape of the still inchoate PSI. 

First, the legal carve-outs in the EU endorsements are so 

prominent as to raise questions about the EU’s willingness to commit 

at all. In contrast, only a few days earlier, a Japan-EU Declaration on 

Disarmament and Non-proliferation included no such carve-outs.33 The 

addition of the carve outs in the EU’s PSI statement seems like a 

blunt effort to push the United States to assume a more respectful 

attitude toward the significance of the rule of international law and 

the constraints it presents on the use of force. This difference implies 

that the EU is willing to abandon the PSI if it engages in military 

activities that are inconsistent with international law. 

Second, the EU’s endorsement emphasizes the intelligence and 

law enforcement aspects of the PSI—not its military measures.34

Similarly, at a recent PSI exercise hosted by Japan, the Japanese 

government insisted that the U.S. Coast Guard play a more prominent 

role than that of the Navy in an apparent effort to emphasize the 

law enforcement aspects. Many members of the EU view the Bush 

administration’s “War on Terror” as a grave mischaracterization of 

the enemy and how best to neutralize it. Instead, they view the threat 

posed by Al Qaeda and other nonstate actors as a matter for law 

enforcement. So, while they have agreed to work with the United 

States to halt trafficking in WMD, they believe that nonmilitary 

agencies such as the Coast Guard should conduct its activities, with 

the military playing supporting roles as necessary. 

Third (and related), the EU’s statement is captioned “NonProliferation” not “Counterproliferation.” The distinction between 

nonproliferation and counterproliferation may be significant. The 

Initiative’s author, John Bolton, has correctly characterized the PSI as 

a “counterproliferation” strategy, but in the end “nonproliferation” 

may prove more politically viable (if less accurate).35 The EU’s 

characterization of the PSI as “Non-Proliferation” raises the concern 
13

that it may reflect an impulse to dilute the Initiative’s essentially 

military mission. Such an impulse should be resisted because the 

greater strength of the PSI lies in its implicit willingness to use force, 

if necessary, to prevent proliferation.

Another innovation of the PSI’s counterproliferation regime is its 

focus on the weapons and materiel and not on the states. The PSI 

targets the weapons—not the parties interested in acquiring them. The 

source or intended recipients are legally and effectively significant 

but only insofar as certain intended recipients are privileged to 

receive WMD. When the maritime powers sought to end piracy in 

the 18th and 19th centuries, they did not destroy harbor cities such as 

New Orleans, Cartagena, and Port-au-Prince that welcomed pirates. 

Instead, they hanged pirates. When Great Britain sought to end the 

trans-Atlantic slave trade in the 19th century, it did not embargo the 

United States, Brazil, or Cuba. Instead it captured slaving ships and 

returned their human cargo to Africa. In this way, the PSI is less like 

an embargo or a war and more like a movement for the suppression 

of a vice. Consequently, it will help formulate a base norm that could 

rise eventually to the level of universal norms much as the bans on 

piracy and slave trade did. The PSI does not appear to target states 

as an embargo or war would. Embargoes and wars ultimately must 

come to an end, while universal norms endure. To construct a strong 

norm against proliferation, one should look not only to states for 

support.

Likewise, by targeting the WMD, not countries, the PSI creates a 

sanctions regime that has considerable advantages over embargoes 

and other counterproliferation strategies. Because it specifically 

targets the WMD (and materials used to construct them, as well 

as the systems used to deliver them), it offers the prospect of an 

“exceptionally smart sanction.” Traditional sanctions generally have 

become disfavored as tools of coercion. They overreach, preventing 

any goods from moving into a country or region, even necessities 

such as food, infant formula, or medicine. This lack of discrimination 

harms and alienates innocent people who have little or no ability 

to affect their government’s behavior. So-called “smart sanctions” 

have similar shortcomings. They feed corruption and fail to alter 

the policy or behavior in question. An interdiction of WMD at sea 
14

would not constrain the flow of food, clean water, or medicine. 

Consequently it does not lead to any collateral damage. Likewise, 

a specific interdiction does not threaten the health and safety of 

sailors on untargeted ships (i.e., those that are engaged in legitimate 

activities) unlike other maritime blockades. It also avoids the perils 

of “smart sanctions” because no new trading system is required; it 

creates no incentives or mechanisms for corruption. Although there 

is always the risk of mistakes, abuses, and the outbreak of war or 

other escalations of conflict, the PSI does appear to offer an almost 

perfectly discriminating sanction.

Another significant advantage of the PSI over more traditional 

nonproliferation regimes is that it was brought into being swiftly 

and can adapt rapidly to changing circumstances. Revising treaties 

to bring them into alignment with changed circumstances is at best 

a lengthy process. On the other hand, the ability to adapt quickly 

means that the level of enthusiasm or support for the Initiative may 

also change quickly; participants can drop out at virtually any time 

and for any reason. Participants are bound neither by custom nor 

by treaty—at least until a strong norm develops. Indeed, it will be 

interesting to see whether some mechanism evolves for ensuring 

that signatories remain in the PSI and adhere to its principles, even 

when doing so would be awkward, inconvenient, or perilous for a 

member or a nonmember participant. States may wish to find ways 

to bind themselves in order to insulate their governments from 

political pressures to defect. No doubt the Bush administration 

has been frustrated by the withdrawal of Spanish troops from 

Iraq following the railway bombings of March 11, 2004. Hence the 

principal shortcoming of coalitions of the willing: the enemy can 

alter a coalition member’s willingness to persist. The same can be 

said for many of the legacy nonproliferation regimes. Export control 

regimes, for instance, are entirely voluntary in an international 

system in which state sovereignty is nearly sacrosanct; effective 

enforcement of security norms remains exceptionally difficult—

in multilateral regimes as in coalitions of the willing. One way to 

reduce the freedom to defect would be for the strong states to sign 

agreements with longer termination periods or with obstacles such 

as binding arbitration. In the end, however, state sovereignty will 

always trump any such efforts.
15

National Security.

History will judge harshly those who saw this coming danger but failed 

to act.

National Security Strategy, 2002

The integrity of the PSI, therefore, depends on the extent to which 

it promotes national interests. The U.S. commitment to the PSI is 

reflected in the 2002 National Security Strategy of the United States of 

America. 

The gravest danger our Nation faces lies at the crossroads of radicalism 

and technology. Our enemies have openly declared that they are seeking 

weapons of mass destruction, and evidence indicates that they are doing 

so with determination. The United States will not allow these efforts to 

succeed . . . . In the new world we have entered, the only path to peace 

and security is the path of action.36

Likewise, the 2002 National Strategy to Combat Weapons of Mass 

Destruction—a document thin on details or on explanations about 

how such a strategy can be implemented—is a statement about 

U.S. interests that lends credibility to the PSI. “Weapons of mass 

destruction—nuclear, biological, and chemical—in the possession 

of hostile states and terrorists represent one of the great security 

challenges facing the United States. . . . We will not permit the world’s 

most dangerous regimes and terrorists to threaten us with the world’s 

most destructive weapons.” While the strategy does promise to 

extend new international arrangements to support nonproliferation, 

it does not explicitly contemplate new arrangements to support 

counterproliferation except to note that “WMD represent a threat 

not just to the United States, but also to our friends and allies and 

the broader international community. For this reason, it is vital that 

we work closely with like-minded countries on all elements of our 

comprehensive proliferation strategy.”37 The national strategy’s 

Manichean use of the term “like-minded,” however, undermines its 

credibility as an expression of U.S. interests. Peoples’ minds change 

often. States do not possess minds. The United States would be better 

served by a document and a strategy premised on cooperation with 
16

those sharing our interests in peace and security. It would be hard to 

agree that Pakistan, Iran, and North Korea are like-minded, but the 

United States should endeavor to bring these states into the Initiative 

regardless of their mindset. 

Arguably, all states share an interest in keeping WMD out of the 

hands of those who would use them. While the ultimate objective of 

the PSI is to halt the flow of WMD and those materials used to create 

them, merely making proliferation more difficult and expensive can 

reasonably be expected to reduce the threats these weapons pose. 

The PSI offers to do this by reducing the number of parties who 

have access to them and by reducing the number and lethality of 

such weapons as do get shipped. In light of the potential harm these 

weapons pose, the PSI need not be perfect or perfectly successful to 

be exceptionally valuable. Once a weapon is used, every effort to 

reduce the number and severity of subsequent attacks will seem even 

more urgent than preventing the first such attack appears today.

III. HOW DOES THE PSI WORK?

The PSI promises to add three significant tools to the 

counterproliferation kit: (1) increased sharing of intelligence, (2) 

increased operational cooperation among participating states, and 

(3) more robust interdiction principles.

Intelligence Sharing and Operational Cooperation.

First, the intelligence-sharing component has drawn widespread 

praise as a step in the right direction. Who is against breaking down 

the intelligence stovepipes to increase operational effectiveness? 

However, there exists precious little information on which to base a 

discussion about what, how, by whom, and with whom intelligence 

is shared. Instead, we are left with questions, some of which raise 

legal issues. Congress has not authorized the PSI or any funds 

for its activities. Should legislation be amended to enable the U.S. 

Government to share intelligence with those who do not have 

appropriate clearances or with states that we do not generally share 

with? Does any of this shared information violate domestic privacy 
17

laws (either in the United States, the EU or elsewhere)? Are suspected 

traffickers in WMD due any special process? For instance, what 

constitutes the reasonable suspicion standard for boarding a vessel? 

Presumably this suspicion can be based on secret information that 

the boarding party is unwilling to disclose, but where is this standard 

expressed? And as for the information shared, are there limitations 

on what can be shared or with whom? Must they be states? Can the 

United States share misinformation to test the integrity of those with 

whom it shares the information? Second, the Initiative’s operational 

elements are not widely understood because they have not been 

reported. 

Interdiction.

Third, the Initiative’s most tangible and contentious contribution 

is its agenda to interdict WMD shipments when necessary to prevent 

proliferation. To date, most of the focus has been on this ambitious 

tool. The need to develop such a mechanism drives the PSI. And 

while exercises and indeed the few PSI operations have focused on 

interdiction at sea, these operations eventually may mean that armies 

enter sovereign and neutral countries to seize a shipment of WMD. 

The PSI’s institutional basis lies not in a charter or a treaty but in the 

Interdiction Principles agreed to by 11 countries in September 2003.38

These principles call on signatories to interdict nuclear, biological, 

and chemical weapons and the delivery systems or materials used 

for making them—as they move from or to “states or nonstate actors 

of proliferation concern.”39

Determining what falls into the category of “materials used for 

making them” presents myriad complications because most such 

materials are either dual-use or because various countries may have 

vested interests in trading them. This is the sort of determination 

that will ensure that the PSI never becomes a clear-cut enterprise. 

Nor is there any reason to believe it could or should be simple or 

“easy.” Indeed, if this type of determination were simple, then there 

would be no need for either the International Atomic Energy Agency 

or the World Trade Organization. Likewise, this kind of complexity 

explains in part why slaves are still traded and piracy is still being 

committed in the 21st century. 
18

In an age of distributed systems (e.g., networks of desktop 

and laptop computers doing more work in this world than 

supercomputers) and in which the once-near complete dominance of 

the nation-state is giving way to a variety of entities with overlapping 

jurisdictions at multiple levels (i.e., inter- and transnational and 

regional organizations, states, sub-states, multinational enterprises, 

nongovernment organizations (NGOs), and an increased role for the 

individual), it seems logical that some important security functions 

should become more flexible and rely on distributed decisionmaking 

functions rather than state actors and the UN. And even though 

there remains only one superpower, its own vulnerability to 

asymmetric attacks and the limits of its power fall far short of 

omnipotence and omnicompetence. In several important ways, the 

UN Security Council, as envisioned by its 1945 Charter, was a model 

of mid-20th century structures with its highly-centralized, statedominated decisionmaking apparatus. The PSI seems like a much 

more appropriate decisionmaking apparatus for the 21st Century. 

Its authority is diffused and opportunistic. The means at its disposal 

are more diverse, and the dichotomy between the law of war and the 

law of peace is blurred.

IV. WHO IS THE PSI AND WHAT ARE THEY DOING?

As noted above, the PSI’s flexible design and lack of a formal 

organization make it difficult to evaluate the support it receives. 

In some instances, its supporters may also be states of proliferation 

concern for instance, if Chechen separatists were to seek to purchase 

a nuclear weapon. This section discusses the fluid nature of support 

for the PSI and what it is doing so far. 

Supporters and Participants.

Over 60 countries—constituting a majority of the world’s maritime fleet and the vast preponderance of its naval might—are 

participating in the PSI at some level. There appear to be several 

categories of participants in the PSI. Each participant is a state. Core 

members are signatories to the Statement of Principles, and each 

has a navy or other maritime defense force that could contribute 
19

militarily to the Initiative. Other states participate at various levels. 

Five small states that register significant shipping fleets have agreed 

to participate at still another level by signing boarding agreements 

with the United States. Other than the Statement of Principles, there is 

no charter. The PSI is neither an organization nor is it governed by a 

treaty. 

The participants include Australia, Canada, France, Germany, 

Italy, Japan, the Netherlands, Norway, Poland, Portugal, Russia, 

Singapore, Spain, and the United Kingdom, as well as the United 

States.40 Dozens of other countries are participating in one way or 

another. And while a coalition of the willing may not be a particularly 

meaningful phrase when it comes to manning or supporting combat 

operations in Iraq, there may well come a day when the participation 

of Bulgaria or Bosnia-Herzegovina in the PSI does make a significant 

difference. 

Russia joined the PSI in May 2004—a signal moment in the 

Initiative’s history in terms of increasing its legitimacy and 

effectiveness. Russia currently has some 8,000 nuclear warheads 

and the materials to assemble an estimated 80,000 more. Russia’s 

arsenal is far and away the largest potential source of loose nukes. 

Many of these weapons and materials are secured by nothing more 

than a padlock and an unarmed guard. Russia’s participation in 

any counterproliferation effort is critical. Russia’s signing on also 

facilitated passage of UN Security Council Resolution 1540.

According to the Economist, China has “said a few kind words” 

about the PSI.41 China, however, is the only member of the UN’s 

Permanent Five members that has not signed on. Unlike Russia, 

China does not appear to be at significant risk as a source of loose 

nukes. While it has a significant nuclear arsenal, these weapons 

appear to be relatively well-secured. For China, then, there are really 

two significant issues. First is the role China can play in bolstering 

or denying legality and legitimacy to the PSI. The second arises from 

China’s role as the principal patron of North Korea. There are also 

issues related to China’s role as a significant player in the Western 

Pacific—a vast region of real proliferation concern.

India and Pakistan have both been declared nuclear powers 

since their respective 1998 tests of nuclear weapons. Neither had 
20

signed the NPT, so no legal obligations were violated. While India 

has not yet joined the PSI, it appears to be laying the groundwork 

for doing so by constructing a series of sensors designed to detect 

the passage of nuclear materials near its vast coastline.42 Given the 

historical tensions with its neighbor Pakistan and the recent history 

of the notorious A.Q. Khan network in exporting WMD, it seems 

only a matter of time before India joins the PSI. Inexplicably, India 

may not have been invited to join the Initiative yet.43 Possibly Indian 

concerns that Pakistan will be given a free pass by the PSI may be 

causing it to withhold its participation until it is assured that Pakistan 

will be included in any list of states of concern.44 At the same time, 

India has expressed some misgivings shared with Pakistan about 

the legitimacy of UN Security Council Resolution 1540’s imposition 

of obligations on countries that do not have a vote in the Security 

Council.45 Perhaps President Bush’s recent decision to allow India to 

export peaceful nuclear materials will encourage India to sign on.46

Pakistan presents a more complex story in great part because 

of its inability to control its own nuclear materials. When news 

broke that A.Q. Kahn, Pakistan’s leading nuclear scientist, was at 

the center of a transnational trading network and that he had made 

numerous trips to Pyongyang, the government of Pervez Musharraf 

averred that it was unaware of and had no control over the deals 

being struck. This lack of control is troubling—more than the kind 

of control Pyongyang exerts over its own subjects’ ability to export 

WMD.

The PSI activities consist of meetings, exercises, efforts toward 

planning or sharing information, and any interdictions that 

eventuate. PSI exercises are the most visible display of the Initiative’s 

work—short of the actual interdictions. At least nine meetings also 

have been held.47 According to the State Department, “dozens of 

countries have participated in or observed at least one of the PSI 

interdiction exercises.”48 As of spring 2004, the PSI participants had 

completed four maritime (in the Pacific, the Mediterranean, and the 

Arabian Sea), and one air interception exercise (over Italy), as well 

as one tabletop air interception exercise.49 In August 2005, a fifth 

maritime exercise dubbed Deep Sabre was held in the neighborhood 

of Singapore.50
21

Early Successes.

Beyond these exercises, the PSI supporters claim that two actual 

interdictions have already contributed significantly to the promotion 

of peace and security. John Bolton claimed that the “interception, in 

cooperation with the United Kingdom, Germany, and Italy, of the 

BBC China, a vessel loaded with nuclear-related components, helped 

convince Libya that the days of undisturbed accumulation of WMD 

were over, and helped to unravel A.Q. Kahn’s network.”51 While Mr. 

Bolton’s claim may gloss over a number of details that would tell a 

more nuanced story, the fact is that Libya is moving with great speed 

to conform to international norms and Dr. Kahn is out of business. 

Any contribution made by the PSI to these significant steps should 

be highly encouraging. In light of such successes, one might wonder 

why the PSI was not launched years ago. The answer to such a 

question may be revealed in a discussion of the political and legal 

obstacles it faces.

V. LAW AND THE SEAS

The supporters of PSI must contend with the fact that a ship 

flying the flag of one state on the high seas is generally immune from 

interference by forces of another state. This basic principle underlies 

much of international law and poses significant issues for those 

seeking to justify a nonpermissive interdiction on the high seas. 

Freedom of the Seas. 

The first principle of maritime law remains that ships flying 

the flag of one country are immune to the jurisdiction of another.52

This base norm of international law is subject to several important 

exceptions developed through custom and treaty over the centuries. 

However, should anyone find this rule quaint or antiquated, he 

should recall that, throughout history, boarding another country’s 

ships without legal justification has been deemed an act of war and 

responded to in kind. The 1731 boarding of English Captain Robert 

Jenkins’ ship, the Rebecca, sparked general war in Europe. Likewise, 
22

the British embargo of Napoleonic Europe earned it unintentional 

enemies: the United States entered into a side war in 1812, principally 

to defend freedom of the seas. A leading scholar of the subject notes 

that if “the world wars of 1793-1815 established one legal principle 

beyond challenge, it was that neither belligerents nor neutrals could 

dictate maritime law. Future law, like past law, would be shaped 

by belligerents and neutrals balancing contradictory interests on 

the seas against the political and strategic implications of possible 

choices.”53

Exceptions to Freedom of the Seas. 

Sensitive to the importance of freedom of the seas, President 

John F. Kennedy meticulously crafted the “quarantine” of Cuba in 

October 1962 and had the Organization of American States authorize 

it in order to minimize the risk that the Soviet Union would view 

the seizure of ships as an act of war. The same concern remains very 

much alive today. Shortly after the announcement of the PSI, North 

Korea denounced it as a “brigandish naval blockade” much like 

“terrorism in the sea and a gross violation of international law.” The 

official daily, Rondong Sinmun, protested, “nobody can vouch that 

this blockade operation will not lead to such a serious development 

as an all-out war.”54 Notably, North Korea does not have a significant 

naval force that could somehow retaliate in kind, were a PSI member 

to interdict one of its otherwise lawful shipments. This inability to 

respond proportionately could actually backfire and trigger general 

war on the Korean Peninsula. If the United States wishes to gain 

legitimacy for the PSI as a multilateral initiative, it must strive for 

“both wider international participation and institutional safeguards 

to restrain its own power.”55 Until then, states such as North Korea 

will be able to denounce the PSI as an arbitrary tool for powerful 

states to wield unilaterally against weaker states. 

While unilateral action can destabilize international relations 

radically, such a risk is sometimes necessary in the effort to develop 

an important humanitarian norm. The United States and its original 

PSI supporters have taken an appropriate first step and can now 

guide the Initiative’s enlargement. In the early 19th century, 
23

hegemonic Britain was the first state to take a strong position against 

the trans-Atlantic slave trade. Over the years that followed, Britain 

was able to transform this moral preference into a universal norm. 

The impulse to end proliferation, however, faces two obstacles that 

the opposition to the slave trade never had to address. First, (as 

noted above) today’s robust system of international law strongly 

favors noninterference in other states’ affairs and freedom of the 

seas. Second (also noted above), it seeks to implement change in the 

long-standing and comprehensive global political system in which 

each state has equal status. Britain’s unilateral policy to halt the 

slave trade was developed at a time when the legal, political, and 

military systems governing international relations were inchoate. 

For the PSI to gain effectiveness today, its actions must be grounded 

in international law and must minimize political instability. 

The significance of interdiction of WMD depends on where the 

acts take place. For interdictions at sea, this depends in turn on the 

ship’s location and the flag it flies. The location presents the first 

threshold issue. There are three categories of waters in which a 

vessel might be found. First, a country’s “territorial sea” includes its 

ports and harbors and extends 12 miles out from the coast. Within its 

territorial seas, a state’s authority is at its zenith. Second, a maritime 

state’s “contiguous zone” extends out across the next 12 miles of 

ocean. Within this zone, states may police waters to enforce customs, 

immigration, and sanitation laws.56 Third, on the high seas, no one 

has authority over vessels flying the flag of another state except as 

discussed below. 

In the territorial sea area of a state (up to approximately 12 

miles from the coastline) foreign ships in so-called innocent passage 

generally are presumed exempt from boarding or seizures.57 A 

government may search and seize a vessel found within its own 

territorial waters, subject only to 1) a reasonable claim that such 

vessel’s transit is “prejudicial to the peace, good order, or security 

of the coastal state”, and to 2) any domestic law constraints (such as 

criminal procedure, due process, unlawful searches, and takings).58

If either of these conditions is met, then the coastal state may 

board a ship or permit another state to do so. With permission or 

even preauthorization from the government of the state in whose 

territorial waters the ship is sailing, another power may search and 
24

even seize that vessel. For example, Kuwait and the United Arab 

Emirates could give the policing powers permission to board the 

ships of smugglers, pirates, and other miscreants sailing within 12 

miles of their coastlines in the Persian Gulf. While suspicious vessels 

would learn quickly of this possibility, their course adjustments to 

avoid these waters might give the United States additional insights 

about which ships to track. While this information may not lead 

to an immediate boarding, it might prove useful at a later date. It 

would also raise additional obstacles and thus the costs of trafficking 

in WMD. 

The first of these conditions—a claim that the ship poses a threat 

to safety or security—can be overcome readily if the state credibly 

claims that a vessel is carrying WMD. Article 19 of the 1982 UN 

Convention on the Law of the Sea (UNCLOS) defines innocent 

passage: 

(1) Passage is innocent so long as it is not prejudicial to the peace, good 

order, or security of the coastal State. Such passage shall take place in 

conformity with this Convention and with other rules of international law. 

(2) Passage of a foreign ship shall be considered to be prejudicial to the 

peace, good order, or security of the coastal State if, in the territorial sea, 

it engages in any of the following activities: (a) any threat or use of force 

against the sovereignty, territorial integrity or political independence of 

the coastal State, or in any other manner in violation of the principles of 

international law embodied in the 1945 Charter of the United Nations.59

Article 21 continues to permit:

The coastal State [to] adopt laws and regulations, in conformity with 

the provisions of this Convention and other rules of international law, 

relating to innocent passage through the territorial sea, in respect of all 

or any of the following: (a) the safety of navigation and the regulation 

of maritime traffic; . . . (d) the conservation of the living resources of 

the sea; . . . (f) the preservation of the environment of the coastal State 

and the prevention, reduction, and control of pollution thereof; . . . [or] 

(h) the prevention of infringement of the customs, fiscal, immigration, or 

sanitary laws and regulations of the coastal State.60

While none seem to be precisely on point in the abstract, in the 

actuality, a state should have no difficulty shoehorning the threat of 

WMD into one of these justifications. 
25

In the contiguous zones (extending generally 12 miles out from 

the territorial seas), a state may “exercise control necessary to (a) 

prevent infringement of its customs, fiscal, immigration, or sanitary 

laws and regulations within its territory or territorial sea; or (b) 

punish infringement of the above laws and regulations committed 

within its territory or territorial sea.”61 Once again, lawyers will 

likely find justifications for boarding a ship carrying WMD in the 

contiguous zone of their state. 

On the other hand, stopping, boarding, and or seizing a ship on 

the high seas that is suspected of carrying WMD presents a variety 

of thorny issues. As the UNCLOS62 explicitly notes, “The high seas 

are open to all States, whether coastal or land-locked. Freedom of 

the high seas is exercised under the conditions laid down by this 

Convention and by other rules of international law. It comprises, 

inter alia, both for coastal and land-locked States: (a) freedom of 

navigation.”63 There are notable exceptions to the general rule of 

freedom of navigation. First of all, the captain or the owner of a ship 

can waive it. There may be instances when that permission could be 

secured, as, for instance, when the boarding party notifies the owner 

or captain that the ship is suspected of carrying contraband. The 

owner or captain may not have already known or may decide not to 

face the consequences of incurring the boarding party’s displeasure. 

Likewise, permission to interdict could be secured from appropriate 

authorities of the government that has registered the ship. Interdiction 

is also permissible where reasonable grounds exist to suspect64 a ship 

of statelessness, engaging in slave trade,65 shipping narcotic drugs or 

psychotropic substances,66 committing unauthorized broadcasting,67

or piracy.68 The legal test for seizure is higher.

Indeed, it was an event such as this that triggered the formation 

of the PSI. Acting on a tip from U.S. intelligence, Spanish special 

forces boarded a North Korean vessel, the So San, on the high seas in 

2002. They were justified in doing so because the So San was flying 

different flags and otherwise masking its state. However, once the 

Spanish determined that the So San was carrying Scud missiles to 

Yemen and that there was no legal justification for keeping these 

missiles from Yemen’s government, the Spaniards were obliged to 

let the So San continue its voyage and deliver the Scuds.
26

The characterization of certain actors as pirates and terrorist acts 

as piracy presents a couple of intriguing possibilities for punishing 

or possibly preventing future acts of terrorism. Ruth Wedgwood 

labeled Al-Qaeda a pirate organization and the attacks of 9/11 

piracy, concluding that members of Osama Bin Laden’s network 

were enemies of civilization.69 While some scholars ridiculed 

Professor Wedgwood’s thesis, it retains considerable heuristic value 

and may provide a roadmap for building support from all states for 

the policing of those who engage in terrorist acts. At the level of a 

plain language interpretation, it is, however, incorrect—in light of 

the UNCLOS’s narrow and explicit definition of piracy. Likewise, 

her definition is not particularly useful when seeking to interdict 

WMD at sea because either a vessel has the protection of a state or it 

has not. If it has, then it cannot be labeled a pirate.

If a vessel has no state protection, then international law offers no 

protection (other than the dictates of universal human rights). One 

way to make use of piracy laws (along with universal jurisdiction) 

lies in getting every state to renounce any organization that uses or 

threatens to use violence against civilian noncombatants. The same 

sort of step was taken in the Paris Declaration of 1856 when the major 

maritime powers forever renounced privateering and effectively 

made piracy a universal crime.70 The challenge of building universal 

consensus has prevented the UN Security Council from defining 

terrorism and probably will prevent the building of consensus for 

labeling WMD trafficking as piracy. On the other hand, the Security 

Council already has the authority to permit interdictions of WMD 

on the high seas if it has the will. The Security Council could simply 

pass a resolution authorizing all necessary means to staunch the flow 

of WMD—an option it failed to exercise when it passed Resolution 

1540. 

Interdiction as Self-Defense. 

Short of an explicit Security Council Resolution, there are other 

legal arguments to support interdictions. The 1945 UN Charter 

acknowledges that “Nothing in the present charter shall impair the 

inherent right of individual or collective self-defense if an armed attack 

occurs against a member of the United Nations.”71 The malleability 
27

of this doctrine remains contested. The doctrine of preventive war 

remains part of the U.S. National Security Strategy, but, as a matter 

of fact, it appears to have been exhausted when WMD were not 

found in Iraq and broad support for the U.S.-led war in Iraq failed to 

materialize. The prospect of a preventive war may reemerge at some 

late date, but it appears to have no more legitimacy than it would 

have had prior to 9/11. A preventive seizure merely seems much 

more defensible than would a preventive war.

The use of force under the PSI may or may not fall under the 

classical definition of anticipatory self-defense, depending on 

the circumstances and facts. 72 As a basis for the use of force, this 

traditionally has been judged by the rule of the Caroline. The use of 

force in anticipation of an attack is constrained by proportionality 

and by a requirement that the threat “leaves no choice of means 

and no moment for deliberation.”73 Surely, anticipatory self-defense 

would justify U.S. destruction of a North Korean naval vessel 

carrying nuclear tipped missiles toward San Francisco, even absent a 

declaration of war. Short of that clear-cut case, however, anticipatory 

self-defense may not legitimate an interdiction on the high seas. 

Boarding Agreements. 

Many merchant ships fly flags of convenience to avoid taxes, laws 

about the work conditions of their sailors, and/or environmental 

regulations. Some small states register these ships for small sums 

that add up to a significant revenue stream. Even though they 

were selected because of the implied promise that they will not 

inconvenience ship owners, these states retain the legal authority to 

board ships carrying their flags. Moreover, they are able to delegate 

all of their authority if they wish. To date, five leading flag states 

have signed boarding agreements, including Liberia74 and Panama.75

As a consequence, a large portion of the global merchant fleet is 

flagged by states that either support the PSI or have signed boarding 

agreements. More than half the world’s shipping fleet by weight is 

liable to boarding with minimal obstacles.76 Interdiction of WMD 

aboard these vessels no longer presents serious legal obstacles. 

One should pause to note the tremendous feat of diplomacy that 

has given the PSI members legal authority to board any of thousands 
28

of ships. If finding WMD is like searching for needles in a haystack, 

it is worthwhile noting that the PSI members may now x-ray large 

portions of that haystack. The timid might demur at the level of 

persuasion that may have been applied in order to obtain signatures 

on these boarding agreements. But no one has claimed that Liberia 

and Panama signed under duress. Such a claim might have the effect 

of nullifying the agreements.77

This situation also raises the interesting issue as to whether one 

state can simply purchase some of another state’s rights. International 

law does not specifically disallow the purchase from a state of the 

right to board a vessel bearing its flag. So what is to stop South Korea 

from offering to purchase this right from North Korea in exchange 

for a steady supply of food and energy? For those trying to figure out 

how the 50-year stalemate in Korea might end in a whimper rather 

than in a bang, this could present an intriguing possibility. Likewise, 

what is to keep the United States from making boarding permission 

a condition of continued participation in regional security or even 

free trade areas?

VI. STRENGTHENING THE PSI’S LEGITIMACY

A political scientist may question why the PSI should seek legal 

authority in the first place. After all, laws are not death pacts, and the 

consequences of WMD falling into the hands of a terrorist organization 

could not be higher. Moreover, even leading international rule of 

law jurists recognize that “a violation of the law is not necessarily 

always deplorable and may even be a good thing.”78 The response, of 

course, is that, by bringing the law along with policy, one continues 

to support a system of laws—one which generally benefits those 

seeking to maintain peace and security. 

More formal and traditional initiatives to permit interdictions 

are also being pursued. Along with the United States, the Londonbased International Maritime Organization has proposed amending 

the International Convention for the Suppression of Unlawful Acts 

against the Safety of Maritime Navigation to criminalize the illegal 

proliferation of WMD at sea.79 This laudable effort may succeed but 

only to the extent of permitting boarding or interdiction upon flag 
29

state consent. What proliferating state will voluntarily give up this 

right? Each of these PSI agreements is shrinking the sphere of freedom 

in which proliferation can occur. At the present rate of progress, that 

space eventually may become so small that world opinion considers 

counterproliferation to be a base norm. This shift would make it much 

easier for the United States or “like minded” countries to seek a 

specific resolution of the Security Council to target the ships of one 

rogue state. Making a similar argument, the Bush administration 

has cited the Security Council Presidential Statement of 1992 as 

authority for such interdictions.80 The Security Council itself did 

likewise when passing Resolution 1540. But the legal authority of the 

Presidential Statement is debatable and highlights the fact that much 

work remains to establish the authority to interdict WMD at sea.

On the other hand, if the PSI does signal a move away from 

centralized decisionmaking on issues related to international 

peace and security, then it appears more worthwhile to pursue 

regional arrangements rather than a global solution. Article 52 

of the 1945 Charter preserves the right of regional organizations 

or “arrangements” to deal with the maintenance of international 

peace and security as appropriate for regional action such as that 

performed by the North Atlantic Treaty Organization (NATO). So a 

regional security organization, acting with the specific authorization 

of each state in the region, might declare a Nuclear Free Zone (NFZ) 

and request that the Security Council help enforce it. The Security 

Council could, in turn, pass a resolution pursuant to its authority 

under Chapter VII of the 1945 Charter to authorize the use of “all 

necessary means” to enforce the regional ban on WMD. Or states in a 

given region could act without explicit resolution, supported by the 

claim that they retain the right to do so, much as NATO did in 1999 to 

prevent genocide in Kosovo. Lately, some states have been working 

to establish an NFZ throughout the entire Southern Hemisphere. 

The United States, Great Britain, and France consistently have 

blocked such efforts in order to ensure that their own nuclear forces 

remain unencumbered.81 What would happen if the Security Council 

were able to establish such an NFZ in which it could license certain 

states to carry nuclear weapons (or even other WMD) under certain 

circumstances? Even in states that ban individual ownership of 
30

guns, law enforcement officers are permitted to carry. Such a system 

would allow the nuclear states to have their proverbial cake (WMD) 

and eat it too (refuse WMD to others).

The United States is already pursuing a different and yet equally 

innovative regional policy. Pacific Command’s Regional Maritime 

Security Initiative (RMSI) is building a “coalition of the willing” to 

“counter transnational threats, including terrorism, maritime piracy, 

illegal traffic (in narcotics, weapons, humans, and illicit cargo) and 

other criminal activities in the Asia-Pacific region.”82 The overall 

goal is “to develop a partnership of willing nations who work 

together to identify, monitor, and intercept transnational maritime 

threats under international and domestic law.”83 By increasing the 

range of states and organizations participating in this initiative 

and by expanding the scope of activities it undertakes, the United 

States appears to be creating the structure upon which the PSI can 

be implemented. Given the vast portion of the world within U.S. 

Pacific Command’s (USPACOM) purview—stretching from the 

littorals of the Indian Ocean through the South Pacific and as far 

north as the Bering Sea—the ambition is breathtaking. It is one 

thing for Washington to issue a directive with global scope. It is 

entirely another to develop operational capacity to implement it 

in dozens of countries and over 100 million square miles of earth 

and sea.84 USPACOM is undertaking cooperative efforts with 

regional partners to increase situational awareness and informationsharing; to develop responsive decisionmaking architecture within 

the region; to enhance maritime interception capacity; and to 

increase agency, ministerial, and international cooperation.85 Little 

information is publicly available with which to evaluate the RMSI’s 

progress in these laudable efforts. It seems noteworthy that a military 

commander (i.e., not a professional diplomat) is taking the lead on 

this important multilateral diplomatic initiative.86 While the RMSI’s 

official strategy paper mentions the PSI only as one of a number 

of “cooperative security activities” it “complements,” the RMSI 

appears to be the principal mechanism through which the United 

States is institutionalizing the PSI agenda.87 At the same time, it offers 

an innovative next step. One of its stated objectives is to “develop 

seamless partnerships between governments and the private sector 
31

to balance maritime safety and security with free trade.”88 As such, it 

echoes other U.S. initiatives such as the Container Security Initiative 

and the Customs-Trade Partnership Against Terrorism in their 

efforts to bridge the divides between the government and the private 

sector.89

It will be fascinating to watch how USPACOM handles a publicprivate partnership. It will also be interesting to see how various 

agencies of the U.S. Government coordinate these initiatives, given 

their overlapping interest in maritime security. Likewise, it will be 

interesting to see if the PSI serves as a model for the formation of 

peace and security policy and international law in an era increasingly 

characterized by weak global organizations and renewed challenges 

to international law.

VI. Unitd 

The Initiative’s supporters are pursuing a variety of means to 

build legitimacy and political support. In addition to the boarding 

agreements, international conventions, and regional arrangements 

discussed above, they have been working to build support in the UN 

Security Council.

Security Council Efforts. 

On April 28, 2004, the UN Security Council unanimously passed 

one of the most sweeping resolutions in its history.90 Basing its 

authority on Chapter VII of the 1945 Charter, UN Security Council 

Resolution 1540 decided that all states shall (1) refrain from providing 

support to nonstates seeking WMD; (2) adopt laws prohibiting 

nonstate actors from acquiring WMD; and, (3) take measures 

to prevent proliferation. Only UN Security Council Resolution 

1373—passed in the immediate wake of 9/11—comes anywhere 

close to UN Security Council Resolution 1540 in its ambition.91 For 

not only does it take a position on behalf of the Security Council, it 

requires all states to pass domestic legislation to support its policy 

determinations. Prior to these resolutions, most experts would 

have agreed with the conclusion that there is “no legislature, in the 

technical sense of the term, in the UN system . . . That is to say, there 
32

exists no corporate organ formally empowered to enact laws directly 

binding on international legal subjects.”92 Ironically, President Bush 

and John Bolton, two determined critics of the UN, have radically 

expanded its capacity to act as a world government.93

Resolution 1540 originated in a proposal made by President Bush 

to the General Assembly in September 2003. He explained the new 

PSI briefly and requested that the Security Council “adopt a new 

anti-proliferation resolution . . . [that would] call on all members of 

the U.N. to criminalize the proliferation of weapons—WMD, to enact 

strict export controls consistent with international standards, and to 

secure any and all sensitive materials within their own borders.”94 In 

doing so, Bush explicitly tied Resolution 1540 to the PSI. There are 

no established rules of interpretation for Security Council 

resolutions.95 That said, it does seem significant that the resulting 

resolution actually goes further than merely to “call on all members.” 

Instead it “decides that all States, in accordance with their national 

procedures, shall adopt and enforce appropriate and effective laws 

which prohibit any nonstate actor to manufacture, acquire, possess, 

develop, transport, transfer, or use nuclear, chemical, or biological 

weapons and their means of delivery, in particular for terrorist 

purposes.”96 In light of the importance of the issues addressed, 

the level of public scrutiny involved, and the legal novelty of UN 

Security Council Resolution 1540, it seems fair to conclude that the 

Security Council was endorsing the PSI. Does this comprehensive 

endorsement extend to a delegation of Chapter VII authority to the 

PSI’s decision makers? Would it allow the United States and other 

directly interested states to use force to interdict passage of a nuclear 

weapon (or a Scud missile) on its way to Yemen or Somalia? 

Does UN Security Council Resolution 1540 Fully Legitimate 

Aggressive Counterproliferation? 

Apparently not. Or not yet. A British statement issued at the time 

was intended to reassure those who resisted an explicit authorization 

of interdictions on the high seas. “What this resolution does not do 

is authorize enforcement action against states or against nonstate 

actors in the territory of another country. The resolution makes 
33

clear that it will be the Council that monitors its implementation. 

Any enforcement action would require a new Council decision.”97

Indeed, the United States dropped a provision explicitly authorizing 

the interdiction of WMD at sea in exchange for China’s vote.98 The 

United States was only able to salvage a provision in paragraph 

10 that “calls upon all States, in accordance with their national 

authorities and legislation and consistent with international law, 

to take cooperative action to prevent illicit trafficking in nuclear, 

chemical, or biological weapons, their means of delivery, and related 

materials.”99 Resolution 1540 falls short of authorizing interdictions. 

The State Department’s Andrew Semmel fairly characterized it: “The 

PSI and 1540 are complementary. Paragraph 10 of the resolution 

reflects this symbiosis.”100

What further authorization would be required to authorize 

interdictions? While a new resolution pursuant to Chapter VII would 

undoubtedly suffice, perhaps a less sweeping measure would also 

work. Article 27#2 of the 1945 Charter allows the Security Council to 

decide “procedural matters” by a mere majority. At some point, the 

Security Council may decide that the implementation of Resolution 

1540 by applying the PSI to specific situations (e.g., North Korean 

exports) is a mere procedural matter.

Resolution 1540 raises several other significant issues. Most 

notably, it requires states to prohibit proliferation to nonstate actors—

in effect legislating for members. The 1945 Charter, however, does 

not grant the Security Council authority to legislate. As a nuclear 

power and a nonpermanent member of the Security Council, Pakistan 

raised this issue.101 Nor does the 1945 Charter provide the UN with 

the democratic apparatus generally required for legislatures to make 

legitimate law—at least in many states. Some arms control advocates 

worry that Security Council legislation is inherently undemocratic, 

that 1540 may undermine the multilateral treaties already binding 

states to limit proliferation, and that 1540 undervalues the significant 

obligation of states to reduce and eventually eliminate their own 

nuclear arsenals.102 It seems unfair, however, to categorize Resolution 

1540 as undermining existing multilateral treaties merely by binding 

certain states to limit proliferation.
34

VII. What Can One 

For Americans today, the burden of implementing the PSI falls 

mainly to the Navy. Nonetheless, the PSI has significant implications 

for the DoD in general and for the Army in particular. For while 

the PSI is currently directed at maritime operations, it eventually 

may be extended to land-based activity in regions where central 

governments are incapable or unwilling to limit the proliferation of 

WMD. Secretary of State Condoleezza Rice’s most recent statement 

appears to indicate that the PSI is now being directed toward landbased operations as well.103

The PSI and Resolution 1540 may signal a “paradigm shift” in 

the use of force. For centuries, states exercised a monopoly on the 

legitimate exercise of force. States could exercise it as part of a police 

power domestically or in a war context (either abroad or during 

internal conflicts). Since 1945, states also have had the ability to 

delegate this war power to the UN. The distinction between police 

work and warfare remained generally clear. Now Resolution 1540 

and the PSI appear to be eroding that distinction by authorizing 

the use of armed force on the high seas and possibly even within 

the territory of nonconsenting states in order to staunch the flow 

of WMD. For this to work, methods must be developed to ensure 

that the use of force will be proportional and discriminating with 

no collateral damage. In the past, proportionality and discrimination 

were important constraints on warfare, but constraints weighed 

against military necessity.104 At least for now, it appears that the 

principle of military necessity may not factor into some operations. 

If the Initiative does trigger a serious change in the use of force 

paradigm, then the Army will need the capabilities to implement 

it. A portion of the legitimacy that the PSI is developing appears 

to stem from the great specificity of its operations. To extend use 

of force to land operations will probably demand an exceptional 

level of accuracy in its ability to discriminate between targets and 

nontargets. This suggests new roles for special forces. While some 

of these functions have presumably been undertaken by nonmilitary 

intelligence agencies (i.e., the Central Intelligence Agency or other 

states’ foreign intelligence agencies), they may migrate to the more 
35

regular armed forces in order to ensure compliance with the law and 

responsible oversight. Consequently, military lawyers will need to 

write new rules of engagement. Special forces will need to arm and 

train for counterproliferation operations. 

Likewise, Army officers in regional commands should help 

drive and implement the PSI in countries of concern. Such work 

will require diplomatic skills, technological assistance, and capacitybuilding. Some of these operations will take place uninvited, i.e., in 

hostile countries. Some of them will take place in countries where the 

government is not hostile but cannot control the territory where the 

proliferation is occurring; soldiers will need to liaise carefully with 

their in-country partners to ensure that relations do not deteriorate. 

Counterproliferation efforts should and will expand dramatically 

in regions around the world and may soon draw on low-intensity use 

of force in states where the central governments are ineffective in their 

own efforts to control WMD. The problems of nuclear proliferation, 

and especially loose nukes, remain intractable and demand a policy 

that is coordinated—at least within the U.S. Government. One of the 

shortcomings of the PSI is that, in the effort to keep it flexible, there 

does not appear to be a lead agency. If there were a lead U.S. agency, 

it would likely be the Navy. If it were the Navy, then there could 

be effective liaison with the Army that should be given the lead on 

tackling the issue of land-based loose nukes. As it is, the National 

Security Council must attempt coordination—hardly a situation 

that is likely to lead to the kind of long-term synergies that these 

issues merit. A May 2002 U.S. General Accounting Office (GAO) 

Report surveyed the known incidents of smuggling of materials 

usable for nuclear weapons since 1992 and examined 20 in some 

detail. In virtually every incident, police or customs seized the 

materials on land. This may merely reflect the difficulty of detecting 

or seizing such materials at sea, or it may reflect a reality that the 

more important problem is the transit of materials on land. The GAO 

Report concludes that U.S. efforts are “not effectively coordinated 

. . . with the result that some countries’ border crossings are more 

vulnerable to smuggling than others.”105 Perhaps the Army could 

take the lead on counterproliferation efforts based on its experience 

with Nunn-Lugar operations.
36

VIII. CONCLUSIONS AND RECOMMENDATIONS

The PSI’s participants are building legal and political support for 

highly-focused use of force operations to counter the proliferation of 

WMD. Eventually these efforts may mature into the formation of clear 

and substantive law permitting highly-focused military operations 

anywhere in the world in order to halt the flow or prevent the use 

of WMD. Analogous movements in previous centuries took decades 

to ripen into the universal bans on piracy and the international slave 

trade. Over the past half-century, a similar norm has been developing 

to prevent genocide. The struggles to end piracy, the slave trade, and 

genocide have required decades. The threat of WMD is so great and 

so imminent that we do not have decades for the norm to mature. 

This recognition leads to several tentative conclusions. 

Put the Cat Back in the Bag.

Certainly international peace and security would be well-served 

were North Korea to abandon its nuclear weapons program. Should 

that objective not be achieved, any agreement with North Korea 

that acknowledges its right to retain its nuclear weapons program 

should include a requirement that North Korea consent to having 

its outbound vessels boarded and any WMD seized. After all, 

counterproliferation makes sense only where the cat has not already 

been let out of the bag. In the case of North Korea, the cat is out of the 

bag, so the concern now is to bag the cat on the Korean Peninsula. 

In the alternative, a specific UN Security Council Resolution could 

endorse interdictions or to embargo North Korea. Perhaps China 

could be convinced to abstain from a veto if the current negotiations 

fail. 

Embrace International Law.

Counterproliferation will be best served by harnessing international conventions, not marginalizing them. The UNCLOS should 

be supported in part because it offers a legal framework for further 

legitimating the PSI. Unlike 145 other nations and all but two 
37

members of NATO, the United States is not a party to the UNCLOS. 

When the treaty opened for signature in 1982, President Ronald 

Reagan’s Special Envoy on the Law of the Sea Treaty, Donald 

Rumsfeld, worked to dissuade other countries from signing based 

on the claim that it would protect U.S. interests insufficiently. As 

Secretary of Defense in 2003, Rumsfeld reversed this position, 

deeming the treaty’s protection of navigation rights as “critical to 

the United States Armed Forces.”106 Two years later, however, the 

administration has not moved to ratify the treaty, despite claims 

that “it provides the only legitimate international framework for the 

“Initiative.”107 In this instance, it appears that the administration’s 

antipathy to multilateral conventions is undermining its capacity to 

develop a robust coalition of the willing. The United States should 

ratify the UNCLOS. 

Broaden the Base.

The PSI has made great progress in terms of effectiveness and 

gaining international legitimacy. Widening the coalition beyond 

states would only enhance its effectiveness and may also accelerate 

the formation of norms so essential for its eventual acceptance as 

entirely legitimate. If the PSI is to succeed, it means rethinking certain 

elemental components of the international legal regime. It means 

authorizing actions that previously would have been undertaken 

only under the rubric of war or deniable covert action. It means 

continuing to build a robust coalition of willing states that have 

few or no strong obligations to each other and one based on limited 

common interests or purposes. Some of the Initiative’s participants 

(such as the small countries that offer flags of convenience) may even 

have been coerced into joining.

Open up the Discussion.

Exposing the PSI to a wider range of input should increase 

international confidence in it and enhance its effectiveness. Building 

it into a formal agreement with North Korea would give it additional 

legitimacy and help limit the proliferation of WMD. Revealing the 

levels of support for the PSI around the world would help establish 
38

the norm necessary for the creation of universal law. Dedicating 

resources to help poor or weak states conform to the requirements 

of Resolution 1540 would give additional legitimacy to the Security 

Council’s ambitious legislative effort and presumably give the PSI 

supporters more congenial legal frameworks. Likewise, opening up 

the Initiative to participation by NGOs would also accelerate the 

norm-setting process and increase the PSI’s capabilities. 

To ensure responsiveness, efficiency, effectiveness, and fairness—and to capture the most synergies—the PSI’s leaders should 

convene some sort of congress to discuss it, to bring up new and 

useful ideas, and to work through the concerns of participants. 

Moreover, participation in the PSI and in this congress ought not to 

be limited to states’ governments. Many international organizations 

(such as the UN’s general secretariat, the Tribunal of the Law of the 

Sea, and the International Criminal Court), regional organizations, 

humanitarian organizations, and other elements of civil society are 

effectively stakeholders whose opinions should be consulted. The 

marketplace of ideas may well yield ways to improve the PSI. In the 

end, the governments may ignore their advice, but inviting intelligent 

and well-intentioned people with different expertise and interests to 

share their views may bring significant and useful insights. 

At the same time, the supporters of the PSI could work to help 

individual states reform their laws in order to conform better to the 

requirements of Resolution 1540. As noted above, this resolution, 

decides also that all States, in accordance with their national procedures, 

shall adopt and enforce appropriate effective laws which prohibit any 

nonstate actor to manufacture, acquire, possess, develop, transport, 

transfer or use nuclear, chemical, or biological weapons and their means 

of delivery, in particular for terrorist purposes, as well as attempts 

to engage in any of the foregoing activities, participate in them as an 

accomplice, assist or finance them.

The Security Council has established a 1540 committee to monitor 

compliance. But many states lack the legal or institutional capacity 

to conform in a timely fashion. The PSI’s effectiveness would be 

enhanced greatly if it were expanded to provide the means for these 

states to adopt appropriate legislation. This role easily could fit under 

the Initiative’s mission of information sharing. 
39

The PSI has great potential. To date, however, some of its potential 

has been masked by a hesitation to be exposed to the marketplace of 

ideas. Little information is available publicly about the Initiative’s 

intelligence sharing or efforts to increase the operational capacity. 

The Initiative’s governance remains obscured. No complete list of 

states participating publicly exists, let alone an official description 

of what constitutes support or participation. Exposing the PSI to 

public scrutiny could help generate additional new ideas and greater 

support. 

A Final Word.

The Initiative can play an important role in helping to staunch 

the dangerous proliferation of WMD and the means to create or 

deliver them. Whether through effective interdictions or by simply 

raising the cost above what some terrorists can afford to pay—it 

eventually may avoid untold destruction, suffering, and deaths. At 

the same time, the PSI can help reform the international security 

system by making it more flexible and responsive to the challenges 

of the twenty-first century. To maximize the chances to achieve these 

critical objectives, policymakers, soldiers, diplomats, and lawyers 

should embrace dialogue and international law, not shun it.

41

APPENDIX

INTERDICTION PRINCIPLES FOR THE

PROLIFERATION SECURITY INITIATIVE

Proliferation Security Initiation (PSI) participants are committed to 

the following interdiction principles to establish a more coordinated 

and effective basis through which to impede and stop shipments 

of weapons of mass destruction (WMD), delivery systems, and 

related materials flowing to and from states and nonstate actors of 

proliferation concern, consistent with national legal authorities and 

relevant international law and frameworks, including the UNSC. 

They call on all states concerned with this threat to international 

peace and security to join in similarly committing to: 

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 

nonstate actors of proliferation concern. “States or nonstate actors 

of proliferation concern” generally refers to those 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.

2. Adopt streamlined procedures for rapid exchange of relevant 

information concerning suspected proliferation activity, protecting 

the confidential character of classified information provided by 

other states as part of this initiative, dedicate appropriate resources 

and efforts to interdiction operations and capabilities, and maximize 

coordination among participants in interdiction efforts.

3. Review and work to strengthen their relevant national legal 

authorities, where necessary, to accomplish these objectives and 

work to strengthen, when necessary, relevant international law and 

frameworks in appropriate ways to support these commitments.
42

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 nonstate 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 nonstate actors of proliferation concern, 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 WMDrelated 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 nonstate 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.

e. At their own initiative or upon the request and good cause 

shown by another state, to (a) require aircraft that are 

reasonably suspected of carrying such cargoes to or from 

states or nonstate actors of proliferation concern and that 

are transiting their airspace to land for inspection and seize 

any such cargoes that are identified; and/or (b) deny aircraft 

reasonably suspected of carrying such cargoes transit rights 

through their airspace in advance of such flights.
43

f. If their ports, airfields, or other facilities are used as 

transshipment points for shipment of such cargoes to or from 

states or nonstate actors of proliferation concern, to inspect 

vessels, aircraft, or other modes of transport reasonably 

suspected of carrying such cargoes, and to seize such cargoes 

that are identified.108

45

ACRONYMS AND ABBREVIATIONS

CSI: Container Security Initiative, a U.S. initiative that 

stations inspectors in major ports around the world to 

ensure that WMD are not shiped to the United States

C-TPAT: Customs-Trade Partnership Against Terrorism, a 

public-private initiative to ensure the integrity and 

security of the supply chain

EU: European Union

NATO: North Atlantic Treaty Organization established under 

the North Atlantic Treaty of April 4, 1949

NFZ: Nuclear Free Zone(s)

NPT: The Treaty on the Non-Proliferation of Nuclear 

Weapons, done at Washington, London, and Moscow 

July 1, 1968; entered into force March 5, 1970

PSI: The Proliferation Security Initiative

RMSI: U.S. Pacific Command’s Regional Maritime Security 

Initiative

UN: United Nations

UNCLOS: United Nations Convention on the Law of the Sea, 

done at Montego Bay, Jamaica, 10 December 1982; 

entered into force, November 16, 1994

US PACOM: United States Pacific Command, a joint regional warfighting command that spans from the Indian Ocean 

through the Pacific Ocean

WMD: Weapons of Mass Destruction (generally biological, 

chemical, nuclear, and arguably radiological)

47

ENDNOTES

1. In September 2003, 11 “countries agreed to and published the Proliferation 

Security Initiative Statement of Interdiction Principles. These identify specific 

steps for effectively interdicting WMD shipments and preventing proliferation 

facilitators from engaging in this deadly trade. Participation is voluntary.” See 

Press Release, U.S. Department of State, Proliferation Security Initiative (May 

26, 2005, www.state.gov/t/np/rls/other/46858.htm, last visited August 23, 2005. An 

extensive bibliography of the Proliferation Security Initiative and UN Security 

Council Resolution 1540 is available at library.law.pace.edu/research/psi_bibliography.

pdf. 

2. PSI has been the subject of almost no in-depth reporting. The most attention 

the Initiative has received from the media is in respect to the nomination of its 

progenitor, Under Secretary of State for Arms Control and International Security 

Affairs John Bolton, to serve as U.S. Ambassador to the United Nations. In this 

respect, PSI has received scores of mentions in the national media but little 

analysis. 

3. See Jofi Joseph, “The Proliferation Security Initiative: Can Interdiction Stop 

Proliferation?” Arms Control Today, June 1, 2004, p. 7, available at www.armscontrol.

org/act/2004_06/Joseph.asp. On the other hand, the PSI’s defenders found authority 

in the UN Security Council Presidential Statement of January 1992 (stating that 

WMD proliferation is a threat to international peace and security and emphasizing 

the need for its prevention) and various political statements originating in the 

UN and elsewhere. See John Harrington, “Arms Control and National Security,” 

International Law, Vol. 38, 2004, pp. 391, 392.

4. Stephen G. Rademaker, Assistant Secretary of State for Arms Control, 

“Proliferation Security Initiative (PSI): A Record of Success,” Testimony before 

the House International Relations Committee, Subcommittee on International 

Terrorism and Nonproliferation, June 9, 2005, www.state.gov/t/ac/rls/rm/47715.htm

last visited August 18, 2005.

5. See Graham Allison, Nuclear Terrorism: The Ultimate Preventable Catastrophe, 

New York: Henry Holt and Company, Ch. 1, 2004, providing a distressing litany 

of nonstate actors seeking to acquire nuclear weapons. This list includes Al Qaeda, 

its various related organizations and copycats operating around the world; Jemaah 

Islamiyah, active in Southeast Asia; Chechen nationalists; Hezbollah, active in 

Lebanon and throughout the Middle East; Majlis-e-Amal and other pro-Taliban 

anti-U.S. organizations operating in and around Pakistan and Afghanistan; and 

“countless doomsday cults around the world,” similar to Aum Shinrikyo or the 

Branch Davidians. Others might add Andean drug cartels. In other words, the 

threat is global. 

6. The July 2003 PSI Meeting in Brisbane cited North Korea and Iran as two states 

of particular concern. See Press Release, U.S. Department of State, “Proliferation 

Security Initiative: Chairman’s Statement at the Second Meeting,” July 10, 2003,
48

www.state.gov/t/np/rls/other/25377.htm, last visited August 2, 2005; John R. Bolton, 

Under Secretary for Arms Control and International Security, Remarks to the First 

Anniversary Meeting of the Proliferation Security Initiative, May 31, 2004, www.

state.gov/t/us/rm/33046.htm, last visited August 2, 2005; see Prosser, infra note 80. 

For purposes of this article, WMD will include those materials targeted by the PSI 

as components of WMD. Eventually, the distinction may be enormous, but those 

distinctions will only arise with specific situations. It is also worth noting that 

the sources may not be state actors, and that even governments have elements 

that may be capable of proliferation without such acts being sanctioned by state 

policy. 

7. Letter from Matthew Hamlyn, Head, Parliamentary Relations and Devolution 

Department, Foreign and Commonwealth Office, to Committee Specialist, July 5, 

2004, www.publications.parliament.uk/pa/cm200304/cmselect/cmfaff/441/441we27.htm. 

8. Until North Korea’s unprecedented withdrawal in February 2005, India, 

Pakistan, and Israel were the only major states not party to the NPT. All state 

parties are required to permit inspectors to ensure that their nuclear materials are 

not diverted to illegal weapons programs. 

9. See Prosser, infra note 80, p. 6. Pakistan’s participation is important. 

If President Pervez Musharraf believes that signing up would be unpopular 

domestically, he could sign up clandestinely. There is no reason that the parties to 

the PSI must each sign a public declaration. In fact, private deals may make sense 

and would be entirely legitimate—at least under international law. 

10. Josh Meyer, “Illegal Nuclear Deals Alleged,” Los Angeles Times, March 26, 

2005, p. A1.

11. See Wade Boese, Research Director, Arms Control Association, Presentation 

to the Institute of Nuclear Materials Management Panel Discussion: Implications 

of UN Security Council Resolution 1540, March 15, 2005, www.armscontrol.org/

events/20050315_1540.asp, citing author’s recent interview with John Bolton.

12. See Chaffee, cited infra note 81.

13. See, Press Release, U.S. Department of State, Bureau of Political-Military 

Affairs, American Service-Member’s Protection Act, July 30, 2003, www.state.

gov/t/pm/rls/othr/misc/23425.htm. All this in addition to the protections embodied 

both in the U.S. veto at the Security Council and the Rome Charter’s provisions 

for complementarity, i.e., that it authorizes indictments only when the state does 

not have the capacity, etc. . . . [T]hat the International Criminal Court established 

under this Statute shall be complementary to national criminal jurisdictions.” Rome 

Statute of the International Criminal Court Preamble, adopted July 17, 1998, U.N. Doc. 

A/CONF.183/9, available at www.un.org/law/icc/statute/romefra.htm.

14. See Prosser, infra note 80, p. 2, citing to Wade Boese, The New Proliferation 

Security Initiative: An interview with John Bolton, Arms Control Association, 

November 4, 2003, available at www.armscontrol.org/aca/midmonth/November/

Bolton.asp, last visited August 5, 2005; and Press Release, U.S. Department of State, 
49

“Proliferation Security Initiative: Chairman’s Statement at the Second Meeting,” 

July 10, 2003, www.state.gov/t/np/rls/other/25377.htm, last visited August 5, 2005; 

and U.S. Department of State, “Proliferation Security Initiative: Statement of 

Interdiction Principles,” White House Fact Sheet, launched by the Group of Eight 

(G8) in June 2002.

15. See U.S. Customs and Border Protection, “Keeping Cargo Safe: Container 

Security Initiative,” www.customs.gov/xp/cgov/border_security/international_activities/

csi/, last visited August 23, 2005, follow “Downloadable CSI Fact Sheet” 

hyperlink.

16. See U.S. Customs and Border Control, “Partnership to Secure the Supply 

Chain: Customs-Trade Partnership Against Terrorism,” www.customs.gov/xp/cgov/

import/commercial_enforcement/ctpat/, last visited August 23, 2005.

17. See Commander, U.S. Pacific Command, “RMSI: The Idea, The Facts,” 

www.pacom.mil/rmsi/, last visited May 30, 2005. 

18. See IAEA Staff Report, “IAEA Welcomes US New Global Threat Reduction 

Initiative,” May 27, 2004, available at www.iaea.org/newscenter/news/2004/GTRI_

Initiative.html, last visited September 14, 2005. 

19. See Press Release, U.S. Department of State, “The G8 Global Partnership 

against the Spread of Weapons and Materials of Mass Destruction,” June 27, 2002, 

www.state.gov/e/eb/rls/othr/11514.htm, last visited August 23, 2005.

20. Einstein, quote in Allison, supra note 5, p. 1.

21. A note on terminology: any strategy to prevent WMD attacks has 

several components, traditionally labeled “deterrence,” “nonproliferation,” 

“counterproliferation,” and preemption.” Deterrence remains basically unchanged 

from its classic Cold War formulation in which a potential adversary is dissuaded 

from launching an attack for fear of a response that would more than negate the 

advantages gained by such an attack. The concept of preemption has evolved over 

the years and is, indeed, in flux, due mostly to U.S. arguments (mostly related to 

the distinctions between preemption and prevention) and actions in early 2003 

leading up to the Iraq War. Nonproliferation is a more complex set of efforts to 

limit the spread of technology, expertise, and weapons through such means as 

classifying weapons technology and otherwise limiting its export or accessibility, 

enhancing border technologies and training personnel at border crossings, 

sponsoring peaceful work of nuclear scientists, or building and maintaining 

international verification systems. Counterproliferation “focuses on more aggressive 

activities, such as covert action and military strikes.” See the prescient CSIS Report 

written by Frank J. Cilluffo, et al., Combating Chemical, Biological, Radiological and 

Nuclear Terrorism: A Comprehensive Strategy, 2001, pp. ix, xi.

22. Presidential Debate in Coral Gables, Florida, 40 Weekly Comp. Pres. Doc. 

2175, 2192, September 30, 2004; See also Allison, Nuclear Terrorism, supra note 5; 

Graham Allison, The Gravest Danger, The American Prospect, March 2005, p. 48.

23. Zoonotic diseases “originated in animals but have crossed the species 

barrier to infect people.” William B. Karesh and Robert A. Cook, “The Human-
50

Animal Link,” Foreign Affairs, July/August 2005, p. 40. For such threats generally, 

see also Laurie Garrett, “The Next Pandemic,” Foreign Affairs, July/August 2005, 

p. 3.

24. See Evan R. Seamone, “The Duty to ‘Expect the Unexpected’: Mitigating 

Extreme Natural Threats to the Global Commons Such as Asteroid and Comet 

Impacts with the Earth,” Columbia Journal of Transnational Law, Vol. 41, 2003, pp. 

735, 794, discussing the legal consequences of catastrophic events. 

25. Allison, supra note 5, p. 15.

26. Kofi A. Annan, “A Global Strategy for Fighting Terrorism,” The Hindu, 

March 12, 2005, www.hindu.com/2005/03/12/stories/2005031206711100.htm, last 

visited August 5, 2005.

27. See Report of the Secretary-General, “In Larger Freedom: Towards 

Development, Security, and Human Rights for All,” UN GAOR, 59th Sess., Agenda 

Items 45 and 55, U.N. Doc. A/59/2005, March 21, 2005, available at www.un.org/

largerfreedom/report-largerfreedom.pdf. Emphasis added to note the recognition of an 

emerging norm that may ripen into customary international law.

28. The father of the Pakistani or the “Islamic bomb,” Dr. Abdul Qadeer 

Khan, has confessed to selling nuclear weapons technology to Iran, Libya, and 

North Korea. Pakistan’s President Pervez Musharraf has confirmed that these 

transactions occurred but has denied knowing about them at the time. 

29. See Report of the Secretary-General’s High Level Panel, Threats, Challenges, 

and Change, U.N. GAOR, 59th Sess., Agenda Item 55, U.N. Doc. A/59/565, Dec. 2, 

2004, available at www.un.org/secureworld.

30. Council Common Position No. 2003/805/CFSP, EU Strategy against 

Proliferation of Weapons of Mass Destruction, The Council of the European Union, 

available at ue.eu.int/ueDocs/cmsUpload/st15708.en03.pdf.

31. The General Affairs and External Relations, Non-proliferation—Support of 

the Proliferation Security Initiative (PSI), May 17, 2004, europa.eu.int/comm/external_

relations/nuclear_safety/intro/gac.htm.

32. Ibid.

33. See Japan-E.U. Joint Declaration on Disarmament and Non-Proliferation, 

E.U.-Japan, June 22, 2004, europa.eu.int/comm/external_relations/japan/summit13_22_

06_4/disarm.htm, assigning cooperation in the context of PSI as a priority area.

34. See E.U.-U.S. Declaration on the Non-Proliferation of Weapons of 

Mass Destruction, Dromoland Castle, E.U.-U.S., June 26, 2004, europa.eu.int/

comm/external_relations/us/sum06_04/decl_wmd.pdf. “We fully subscribe to the 

Proliferation Security Initiative Statement of Interdiction Principles and support 

efforts to interdict WMD shipments and enhance cooperation against proliferation 

networks, including in intelligence and law enforcement.” 

35. See John Bolton, “An All-Out War on Proliferation,” Financial Times, 

September 7, 2004, www.state.gov/t/us/rm/36035.htm, last visited August 2, 2005.
51

36. Release, Bureau of Public Affairs, “The National Security Strategy 

of the United States of America,” September 2002, www.state.gov/documents/

organization/15538.pdf, last visited September 2, 2005.

37. Release, Office of the Press Secretary, “National Strategy to Combat 

Weapons of Mass Destruction,” December 2002, www.whitehouse.gov/news/

releases/2002/12/WMDStrategy.pdf, last visited September 2, 2005.

38. In September 2003, 11 countries—Australia, France, Germany, Italy, Japan, 

the Netherlands, Poland, Portugal, Spain, the United Kingdom, and the United 

States—agreed to and published the PSI Statement of Interdiction Principles. See

generally, supra note 1.

39. See ibid., App. I.

40. See generally, ibid.

41. “When the partying has to stop: Dealing with North Korea,” The Economist, 

www.economist.com/agenda/displayStory.cfm?story_id=3651863, last visited August 

3, 2005. Also see William Hawkins, “Hu’s Running the Show?” National Review 

online, September 12, 2005, claiming that China eviscerated UN Security Council 

Resolution 1540’s support for the PSI. 

42. See “Guarding against Shipments of WMDs,” Indian Express, January 31, 

2005. See also “India Soon to Join A U.S.-Led Security Group,” Indian Express, 

January 30, 2005, referring to PSI as more politically sensitive than another U.S.-

led initiative, the Container Security Initiative. 

43. “No Military Supplies to Nepal delivered: Ahamed,” Press Trust of India, 

March 10, 2005, “Junior Minister for External Affairs Rao Inderjit Singh said there 

has been no formal invitation to India to join the U.S.-led Proliferation Security 

Initiative.” 

44. Premvir Das cites this concern as well as a general concern that PSI may 

not be lawful. Premvir Das, “PSI from an Indian Perspective,” Issues & Insights, 

July 2004, vol. 04-05, available at www.csis.org/pacfor/issues/v04n05_ch3.cfm.

45. Siddharth Varadarajan, “India, Pak Join Forces Against U.S. Move,” The 

Times of India, April 24, 2004, available at 2003 WL 6574893. 

46. John R. Bolton, Under Secretary of Arms Control and International Security, 

“The Bush Administration’s Non-Proliferation Policy: Successes and Future 

Challenges,” Testimony Before the House International Relations Committee, 

March 30, 2004, www.state.gov/t/us/rm/31029.htm, last visited September 2, 2005.

47. Henry J. Cordes, “19 Nations Hold Talks in Omaha on WMD Spread,” 

Omaha World-Herald, March 27, 2005, p. B3. See also Prosser, infra note 80, p. 2.

48. Press release, U.S. Department of State, Bureaus of Nonproliferation and 

Public Affairs, “U.S. Initiatives to Prevent Proliferation,” May 27, 2005, www.state.

gov/t/np/rls/other/45456.htm, last visited August 3, 2005.

49. Mark T. Esper and Charles A. Allen, “The PSI: Taking Action against WMD 

Proliferation,” The Monitor, Vol. 10, No. 1, p. 4, Spring 2004, available at www.uga.
52

edu/cits/documents/pdf/monitor/monitor_sp_2004.pdf. The authors are, respectively, 

Deputy Assistant Secretary of Defense for Negotiations Policy and Deputy General 

Counsel for International Affairs in the U.S. Department of Defense. The Monitor is 

a publication of the Center for International Trade and Security of the University 

of Georgia. This issue was dedicated to a survey of the PSI. 

50. Press Release, U.S. Department of State, “Singapore Hosts Multinational 

Maritime Interdiction Exercise,” August 12, 2005, usinfo.state.gov/is/Archive/2005/

Aug/15-878756.html, last visited September 20, 2005.

51. Bolton, supra note 35. Secretary of State Condoleezza Rice has announced 

that the PSI was “responsible for 11 interdictions.” The issue of whether this 

operation should be attributed to the PSI remains in debate, the State Department 

is now backing off this claim. Wade Boese, letter to the editor, “False Claims of PSI 

Success,” Washington Times, August 17, 2005, p. A16. See also, Sharon Squassoni, 

CRS Report for Congress, Proliferation Security Initiative, June 7, 2005, p. 3. 

52. For a valuable history of this principle and the wider context, see John W. 

Coogan, The End of Neutrality: The United States, Britain, and Maritime Rights, 1899-

1915, ch. 1, New York: Cornell University Press, 1981.

53. Ibid, p. 20.

54. See Rebecca Weiner, Proliferation Security Initiative to Stem Flow of WMD 

Matériel, Center for Non-Proliferation Studies, July 16, 2003, available at cns.miis.

edu/pubs/week/030716.htm, citing to Samantha Maiden, The Advertiser, July 14, 2004; 

and Nicholas Kralev, “U.S. Seeks Asian Aid for Ship Searches,” The Washington 

Times, June 17, 2003. While I cannot read Korean, I would be very interested to know 

who translated the Korean characterizations, particularly the word “brigand.” 

Intriguingly, Selig S. Harrison recently has called into question whether North 

Korea is actually developing a program to enrich uranium to weapons grade—a 

question already settled in the court of public opinion. 

Much has been written about the North Korean nuclear danger, but one 

crucial issue has been ignored: just how much credible evidence is there 

to back up Washington’s uranium accusation? Although it is now widely 

recognized that the Bush administration misrepresented and distorted 

the intelligence data it used to justify the invasion of Iraq, most observers 

have accepted at face value the assessments that the administration has 

used to reverse the previously established U.S. policy toward North 

Korea.

Harrison, “Did North Korea Cheat,” Foreign Affairs, January/February 2005, p. 99, 

available at www.foreignaffairs.org/20050101faessay84109/selig-s-harrison/did-northkorea-cheat.html, arguing that the administration has exaggerated intelligence 

that may only prove lower levels of enrichment that are permitted under the 

Nonproliferation Treaty. If North Korea is not capable of exporting WMD, 
53

then PSI does not have much of a purpose. Unfortunately for Harrison’s thesis, 

however, North Korea’s government acknowledged its nuclear weapons program 

in February 2005—a claim which could be fraudulent and intended to secure for 

North Korea the deterrence that such a program would provide. On the other 

hand, most analysts accept the North Korean government’s word (and that of 

the U.S. Government) on this subject. Brookings scholar Michael O’Hanlon, for 

instance, takes Korean nuclear weapons as a given and expresses concern that “the 

economic pressures that help motivate North Korea’s arms sales, counterfeiting, 

and drug smuggling remain powerful.” Michael O’Hanlon, “The North Korean 

Nuclear Threat,” Chronicle of Higher Education, April 1, 2005, p. 12, available at 

https://www.brookings.edu/views/articles/ohanlon/20050401.htm.

Likewise, journalist Tom Friedman argues that 

North Korea’s nuclear program could be stopped tomorrow by the 

country that provides roughly half of North Korea’s energy and onethird of its food supplies—and that is China. All China has to say to Kim 

Jong Il is “You will shut down your nuclear weapons program and put 

all your reactors under international inspection or we will turn off your 

lights, cut off your heat, and put your whole country on a diet. Have 

we made ourselves clear?” One thing we know about China—it knows 

how to play hardball when it wants to, and if China played hardball that 

way with North Korea, the proliferation threat from Pyongyang would 

be over.

Thomas L. Friedman, “Brussels Sprouts,” New York Times, May 11, 2005, p. A19. 

In fact, Beijing tolerates the North Korean weapons program. This tolerance may 

be ascribed merely to solidarity among two of the few remaining Communist 

governments or as a more invidious form of collaboration designed to shore up 

influence in the region. 

55. Michael A. Becker, “The Shifting Public Order of the Oceans: Freedom of 

Navigation and the Interdiction of Ships at Sea,” Harvard Journal of International 

Law, Vol. 46, 2005, pp. 131, 221.

56. See Joel A. Doolin, “Operational Art for the Proliferation Security Initiative,” 

unpublished student paper, U.S. Naval War College, May 3, 2004, p. 4, www.fas.org/

man/eprint/doolin.pdf, last visited August 4, 2005. Also extending 188 miles beyond 

the 12-mile limits of the territorial seas can be found an exclusive economic zone. 

57. “Subject to this Convention, ships of all States, whether coastal or landlocked, enjoy the right of innocent passage through the territorial sea.” U.N. 

Convention on the Law of the Seas, pt. II, § 3, subsec. A, art. 17, 1833 U.N.T.S. 

December 10, 1982, p. 3, 436 (Hereinafter UNCLOS).

58. “Passage is innocent so long as it is not prejudicial to the peace, good order 

or security of the coastal state.” See Ibid., art. 19.
54

59. See ibid., art. 19.

60. See ibid., art. 22.

61. Ibid., art. 33.

62. Among the few nations not party to this convention is the United States, 

but it is bound by many of its provisions to the extent that they codify customary 

international law or that it is a party to other relevant treaties. 

63. See ibid., art. 87.

64. The reasonable ground to suspect standard for establishing a right to visit 

is found in ibid., art. 110. 

65. See ibid., art. 99.

66. See ibid., art. 108.

67. See ibid., art. 109.

68. See ibid., arts. 100-10. Piracy is defined clearly and narrowly and cannot 

easily be read to include acts that would put WMD in the hands of nonstate actors 

or other entities that should not have them.

69. See Ruth Wedgwood, “A Pirate is a Pirate,” Wall Street Journal, December 

16, 2002, p. A12. 

70. See Douglas R. Burgess, Jr., “The Dread Pirate Bin Laden: How Thinking of 

Terrorists as Pirates Can Help Win the War on Terror, Legal Affairs, July/August 

2005, available at www.legalaffairs.org/issues/July-August-2005/feature_burgess_

julaug05.msp. Burgess unfortunately seems to think that the problem is as simple 

as getting all states to agree that something called terrorism is akin to piracy and 

should be banned. He seems oblivious to the difficulty states have in defining 

terrorism, and that states support these acts because they believe the acts to be in 

their interest. In 1856, the United States actually refused to accept the Declaration 

of Paris formally because it was unready to forswear privateering. See Coogan, 

supra note 52 at 22. Customary international law quickly developed on this matter 

as the U.S. Government renounced privateers once and for all during the Civil War 

when the Confederate states used this tool of war to great effect. In its opposition to 

the Confederacy’s privateers, the U.S. Government gave up its claim to persistent 

and unambiguous objections to the new norm against privateers. Customary 

international law progressed apace unimpeded by American constraints. The 

evolution of technology helped in this process as ships of war became increasingly 

expensive and specialized. It no longer made sense for commercial ships to pick 

up a few cannons and join a war effort. The guns grew too large for retrofitting 

and were of little use without armor plating on the walls of a ship. For more on 

the technological transformations of this era, see Mark Russell Shulman, Navalism 

and the Emergence of American Sea Power, 1882-1893, Annapolis, MD: Naval Institute 

Press, 1995. Coincidently, Paris is also where the PSI Statement of Interdiction 

Principles was originally announced. 
55

71. U.N. Charter, art. 51.

72. See Michael Byers, “Policing the High Seas: The Proliferation Security 

Initiative,” American Journal of International Law, Vol. 98, 2004, p. 541.

73. For the context and correspondence surrounding this seminal case, see 

“The Avalon Project at Yale Law School,” www.yale.edu/lawweb/avalon/diplomacy/

britian/br-1842d.htm; then follow “Letter with enclosures-Webster to Ashburton.”

74. “Agreement between the Government of the United States of America and 

the Government of the Republic of Liberia Concerning Cooperation To Suppress 

the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and 

Related Materials by Sea,” U.S.-Liberia, February 11, 2004, www.state.gov/t/np/

trty/32403.htm, last visited August 4, 2005.

75. “Amendment to the Supplementary Arrangement Between the Government 

of the United States of America and the Government of the Republic of Panama 

to the Arrangement Between the Government of the United States of America and 

the Government of Panama for Support and Assistance from the United States 

Coast Guard for the National Maritime Service of the Ministry of Government and 

Justice,” U.S.-Panama, May 12, 2004, www.state.gov/t/np/trty/32858.htm, last visited 

August 4, 2005. As of July 25, 2005, five countries have signed ship-boarding 

agreements with the United States in conjunction with the PSI. Cyprus was the 

fifth country to sign a ship-boarding agreement; previous agreements have been 

concluded with Liberia, Panama, the Marshall Islands, and Croatia. 

76. Michael A. Becker, “The Shifting Public Order of the Oceans: Freedom of 

Navigation and the Interdiction of Ships at Sea,” Harvard International Law Journal, 

Vol. 48, 2005, p. 182. And see generally Doolin, supra note 56, p. 5.

77. Vienna Convention on the Law of Treaties, art. 52, adopted May 23, 1969, 

1155 UNTS 331, available at www.un.org/law/ilc/texts/treatfra.htm.

78. Thomas M. Franck, “Humanitarian and Other Interventions,” Columbia 

Journal of Transnational Law, Vol. 43, 2005, p. 325. 

79. See Esper and Allen, supra note 49, p. 5.

80. See Andrew Prosser and Herbert Scoville, Jr., “Peace Fellow, The 

Proliferation Security Initiative in Perspective,” June 16, 2004, Center for Defense 

Information, www.cdi.org/pdfs/psi.pdf, last visited August 5, 2005, citing to S/23500, 

January 31, 1992.

81. Indeed, these and other powers also have worked to preserve the right of 

unfettered transit of nuclear materials through the high seas and Exclusive Economic 

Zones of coastal states. See Devon Chaffee, “Freedom or Force on the High Seas?” 

Arms Interdiction and International Law, August 15, 2003, summary of a longer piece 

pending publication, available at www.wagingpeace.org/articles/2003/08/15_chafee_

freedom-of-force.htm, last visited August 5, 2005.

82. See RMSI, supra note 17. See also Toshi Yoshihara and James Holmes, 

“Islands Only Look Peaceful,” Atlanta Journal-Constitution, February 18, 2005, p. 

A19. 
56

83. Ibid.

84. See ibid; then follow “U.S. Pacific Command Strategy for Regional Maritime 

Security,” last visited August 5, 2005. Also see Yoshihara and Holmes, supra note 

82, p. 9. See also Naval Meteorology and Oceanography Command Homepage, 

“Oceans of the World,” pao.cnmoc.navy.mil/pao/Educate/OceanTalk2/indexoceans.

htm, last visited August 23, 2005.

85. See RMSI, supra note 17, p. 9.

86. The State Department is the lead agency on this initiative, although all the 

information I have been able to locate originates with USPACOM. 

87. See RMSI, supra note 84, p. 13.

88. Ibid., p. 7.

89. In January 2002, the Commissioner of Customs and Border Protection 

announced the creation of the Container Security Initiative (CSI). Through the CSI, 

“maritime containers that pose a risk for terrorism are identified and examined at 

foreign ports before they are shipped to the United States.” See Container Security 

Initiative, supra note 15.

90. The ultimate resolution was cosponsored by France, the Philippines, 

Romania, the Russian Federation, Spain, the United Kingdom, and the United 

States.

91. Passed on September 28, 2001, UNSCR 1373 required states to ensure that 

their banks do not facilitate the financing of terrorist operations, that they do 

not permit terrorists to travel, and that terrorists are unable to train within their 

territory. Resolution 1373 appears to be the first attempt of the Security Council 

to do anything resembling legislating, but this innovation has not been widely 

commented upon, probably because it was passed in the shadow of 9/11. 

92. Stefan Talmon, “Note and Comment: The Security Council As World 

Legislature,” American Journal of International Law, Vol. 99, 2005, p. 175, citing 

Prosecutor v. Tadic, No. IT-94-1-AR72, Appeal on Jurisdiction, Sec. 43, October 2, 

1995; 35 ILM 32, 1996. As Talmon notes, the new “legislation” differs from previous 

requirements that states enact legislation in that it does not refer to specific targets 

of such enactments by name. The obligations imposed are general and abstract. 

See ibid., p. 176. Instead of enacting sanctions against Libya or the applicability of 

the Fourth Geneva Convention to the Palestinian territories, 1373 and 1540 refer to 

“terrorist” organizations. 

93. Expanding the legal capacity, however, does not imply expanding 

the organizational capacity to ensure compliance with the “legislation.” Both 

Resolutions 1373 and 1540 require extensive reporting requirements of each state. 

And like unfunded mandates, they do not provide the support necessary for 

poor countries to report—let alone to comply with their terms. At least for 1540, 

PSI can provide material assistance in complying. But there remains a yawning 

gap in the ability of poor countries to report effectively on their efforts. Without 

adequate resources for reporting, there is little ability for the United States and 
57

other concerned powers to benchmark or otherwise improve compliance. As 

a consequence, there is a real need for some nongovernmental organization, 

philanthropy or pro bono practice to help the poor countries report on their efforts 

to enact and abide by Resolutions 1373 and 1540.

94. President George W. Bush, Address to the United Nations General 

Assembly, September 23, 2003, available at www.un.org/webcast/ga/58/statements/

usaeng030923.htm, last visited August 5, 2005.

95. The UN Charter is a treaty and, as such, should be interpreted in good faith, 

in accordance with ordinary means, and in light of its purpose. Vienna Convention 

on the Law of Treaties, art. 31(1) and 3)(b), adopted May 23, 1969, 1155 UNTS 

331, available at www.un.org/law/ilc/texts/treatfra.htm, last visited August 5, 2005. 

Presumably, resolutions passed under its authority should also be interpreted in 

light of their purpose. 

96. UNSCR 1540.

97. Adam Thomson, Deputy Permanent Representative of the United Kingdom 

Mission of Great Britain and Northern Ireland, Statement to the Security Council of 

the U.N., April 22, 2004, available at www.ukun.org/articles_show.asp?SarticleType=1

7&Article_ID=744, last visited August 5, 2005. Recall that this discussion followed 

the intense debate about Security Council Resolution 1441’s authorization of force 

to compel Saddam Hussein’s Iraq to abandon its WMD programs. Much of the Iraq 

debate turned on whether 1441 sufficed to authorize military action or a second 

resolution was required. 

98. See Sean D. Murphy, “Contemporary Practice of the United States Relating 

to International Law: Use of Force and Arms Control: UN Security Council 

Resolution on Nonproliferation of WMD,” American Journal of International 

Law, Vol. 98, 2004, p. 606, citing Colum Lynch, “Weapons Transfers Targeted,” 

Washington Post, April 29, 2004, p. A21.

99. UNSCR 1540, App. III, p. para. 10. 

100. Andrew Semmel, Principal Deputy Assistant Secretary of State for Nuclear 

Nonproliferation, “U.N. Security Council Resolution 1540: The U.S. Perspective,” 

Remarks at Conference on Global Nonproliferation and Counterterrorism: United 

Nations Security Council Resolution 1540, delivered at Chatham House, London, 

October 12, 2004, available at www.state.gov/t/np/rls/rm/37145.htm.

101. See Murphy, supra note 98, p. 607.

102. See Statement of John Burroughs, Executive Director, Lawyers’ Committee 

on Nuclear Policy, UN Correspondents’ Association, New York, March 31, 2004, 

available at www.reachingcriticalwill.org/political/SC/SC.html#john_statement, last 

visited August 5, 2005.

103. Condoleezza Rice and George Iacovou (foreign minister of Cyprus), 

“Safeguarding Nuclear Arsenals: Multinational Proliferation Security Initiative 

Proving Critical,” Washington Times, August 12, 2005, p. A19, employing an 

example of chemical weapons being transported by train through Poland to the 
58

landlocked Czech Republic. Also see Esper and Allen, supra 49, p. 5, authors note 

that the Department of Defense is conducting legal analysis of potential options 

for air and ground interdictions. 

104. See generally, Michael Howard, George Andreopoulos, and Mark R. 

Shulman, eds., The Laws of War: Constraints on Warfare in the Western World, New 

Haven, CT: Yale University Press, 1994. 

105. Nuclear Nonproliferation: U.S. Efforts to Help Other Countries Combat Nuclear 

Smuggling Need Strengthened Coordination and Planning, GAO-02-426, Washington, 

DC: U.S. General Accounting Office, May 2004, p. 11, available at www.gao.gov/

new.items/d02426.pdf, last visited August 5, 2005.

106. John A. Duff, “A Note on the United States and the Law of the Sea: 

Looking Back and Moving Forward,” Ocean Development and International Law, 

Vol. 35, 2004, pp. 195, 199, 201.

107. Lawrence J. Korb, “Bush Failing at Nuclear Security,” Boston Globe, January 

2, 2005, p. C11. The Senate Foreign Relations Committee voted 19-0 to recommend 

the United States enter the UNCLOS. See also Senator Richard G. Lugar, “Law of 

the Sea Treaty Balances U.S. and World Interests,” Shared Oceans, Shared Future: An 

Electronic Journal of the U.S. Department of State, Vol. 9, No.1, April 2004, usinfo.state.

gov/journals/itgic/0404/ijge/gj02.htm. 

108. Release, U.S. Department of State, Fact Sheet, “Proliferation Security 

Initiative: Statement of Interdiction Principles,” September 4, 2003, www.state.gov/

t/np/rls/fs/23764.htm, last visited August 22, 2005.