This research paper has been commissioned by the International Commission on Nuclear Non‐proliferation and Disarmament, but reflects the views of the author and should not be construed as necessarily reflecting the views of the Commission.
THE PROLIFERATION SECURITY INITIATIVE: Background, history and prospects for the future
By Philip E. Coyle, III, Senior Advisor, Center for Defense Information, and Victoria Samson, Senior Analyst, Center for Defense Information January 2009
Executive Summary The Proliferation Security Initiative (PSI), kicked off by the United States and ten other nations in May 2003, has since expanded its participant list to 94 countries. However, much of the active work is being done by a couple of dozen nations, and it still is perceived by many as a U.S. effort that is beholden to Washington’s interests. It can be multilateralized by expanding its membership (particularly several key nations), tying it to international organizations and international agreements like the Nuclear Non-Proliferation Treaty and unanimous United Nations Security Council resolutions, and improving the legal authority of the initiative. Finally, the United States needs to take a leadership role and demonstrate the Barack Obama administration’s support for the PSI by smoothing internal confusion about roles and responsibilities for the initiative. Taken together, these steps will augment the international community’s fight against the spread of weapons of mass destruction.
Introduction On December 10, 2002, in the Indian Ocean, Spanish naval inspectors (on Spanish warships) working closely with the United States stopped a North Korean freighter, the So San, headed to Yemen reportedly carrying 15 SCUD missiles and 15 conventional warheads. The next day U.S. officials let the ship and its cargo, which included 40,000 sacks of cement, continue to its destination.1 Reportedly, the Spanish crew members were surprised and upset at this turn of events because at the behest of the United States, they had taken considerable risk to themselves and their ship for nothing.
2 This incident became the motivation for the Proliferation Security Initiative (PSI) and, over six years later, also reveals the weaknesses of the initiative. The challenge for the PSI is that under the Law of the Sea Convention, vessels on the high seas can be stopped by other ships of their flag state, but not by another state unless there are extenuating circumstances, such as if the vessel is engaged in piracy, slave trade, interference broadcasting, or carries no flag or other demonstration of its registration. As it happened, the So San was carrying no flag, which gave the Spanish sailors an excuse to stop it, but without resorting to piracy, the Spanish were powerless to prevent the North Korean ship from proceeding on its way to Yemen. The Spanish also had no authority to seize the cargo onboard the So San. John R. Bolton, former U.S. Undersecretary of State for Arms Control and International Security and former U.S. Ambassador to the United Nations, is credited with the PSI.2 Like many, Bolton was no doubt frustrated by the outcome of the So San incident in which North Korean SCUD missiles were not prevented from reaching their intended destination. The circumstances of the incident that motivated the PSI would reveal the difficulty of the long and ongoing struggle to attempt to provide the necessary legal and international authority to support the intent of the initiative. For this reason, the PSI is sometimes referred to as the “broken tail light” initiative, as it may depend on technical violations to provide the authority on the high seas required to stop and board a suspected ship, much as a police officer may rely on a broken tail light for the authority to stop a motorist suspected of more serious transgressions. U.S. Leadership: Initial Steps A few months following the SO SAN incident, the PSI was formally announced by President George W. Bush on May 31, 2003 in Krakow, Poland, just prior to a G8 summit meeting.3 The PSI stems from the U.S. National Strategy to Combat Weapons of Mass Destruction issued in December 2002,4 and like many U.S. nonproliferation efforts, was motivated by 9/11. Following Bush’s announcement, in quick succession, a series of international meetings were convened with the goal of moving the program forward and enlisting a broader set of participating states. International PSI meetings have been held at the rate of roughly four meetings per year to the present. On June 12, 2003, in Madrid, Spain, during the first meeting held on the initiative, eleven nations agreed to a version of the PSI. Those eleven were France, Germany,
3 Italy, Japan, the Netherlands, Poland, Portugal, Spain, Australia, the United Kingdom, and the United States.5 The next month, on July 9–10, the second meeting was held in Brisbane, Australia, where the PSI participants focused on information sharing and operational coordination mechanisms. Statement of Interdiction Principles The Statement of Interdiction Principles was adopted by the founding 11 states on September 4, 2003, in Paris.6 The Statement of Interdiction Principles consisted of three basic pillars: undertaking effective measures to interdict the transfer or transport of weapons of mass destruction (WMD), the rapid exchange of information on suspected proliferation activity, strengthening national and international legal frameworks in support of the PSI, and taking specific actions in six different categories to prevent the transfer or transport of WMD, their delivery systems and related activities. See Appendix 1 for the complete Statement of Interdiction Principles. As of January 2009, 94 nations have become participants with the PSI.7 Structure of the PSI In addition to plenary sessions, the Operational Experts Group (OEG) convenes regularly. At these meetings, PSI participants discuss a variety of operational matters that may arise under the initiative, such as international communication procedures, coordination among various government entities, and legal obstacles. These meetings are held three to four times per year.8 PSI exercises are proposed at the OEG and may be scheduled to occur in a region and at about the same timeframe as a subsequent OEG meeting is planned. To develop the procedures and communications required for an effective PSI, a series of exercises have been conducted over the years. The first of these, Exercise Pacific Protector, September 10-13, 2003, was led by Australia and conducted in the Coral Sea.9 Subsequently, over the next two years, the United Kingdom, Spain, France, the United States, Italy, Germany, Poland, Japan, Portugal, the Czech Republic and Singapore led PSI training exercises. Of note, Exercise Deep Sabre, the first PSI exercise to be conducted in Southeast Asia, was conducted in the South China Sea in August 2005 and was launched from the Changi Naval Base in Singapore. Thirteen countries participated, including Singapore, Australia, Canada, France, Germany, Italy, Japan, Russia, the United Kingdom and the United States.10 To date, 36 PSI exercises have been conducted, and four more are planned in 2009.11 These exercises largely have been held by the primary participants in the PSI—
4 members of the OEG—and not the so-called rank and file of the other 70+ countries cooperating in the PSI.
Federal Responsibilities and PSI Programmatic Status in the United States While the United States took the initiative to establish the PSI, and has taken many steps since to strengthen the initiative internationally, the United States has been surprisingly slow at home to establish the PSI programmatically within the U.S. government bureaucracy. Initially, the PSI program was managed within the National Security Council, with the Department of State providing support. Gradually, the State Department and the Department of Defense have assumed certain operational responsibilities, but today the National Security Council still guides the program overall. The Department of State provides a web site, answers media questions, and facilitates and documents the results from international meetings. The Defense Department is active in the organization and conduct of international exercises. However, the PSI program has not been institutionalized in the federal bureaucracy. As codified in Public Law 110-53, the United States coordinator and head of the “Office of the United States Coordinator for the Prevention of Weapons of Mass Destruction, Proliferation and Terrorism,” coordinates U.S. WMD nonproliferation activities, including the PSI.12 While close to the president, the Executive Office of the President is not a secure home for a program of substance that hopes to have a future. Until a program is given a home in a significant federal agency, there will be confusion about who is in charge, how much it can spend and for what purposes, and its standing relative to other— perhaps rival—programs vying for priority. Of course, the connection to the National Security Council and proximity to the president gives the PSI a certain amount of clout, but even that can lead to poorly vetted decisions, as seen in the case of the Irancontra scandal. Today, the PSI still does not have a federal agency home, no identifiable federal funding, no strategic plan, and no one person who can be said to be in charge. Thus, following the inauguration of U.S. President Barack Obama, it is not clear to what extent the PSI will become part of the nonproliferation portfolio of the new administration. Within the United States alone, a wide range of U.S. federal agencies can be involved in an actual interdiction or in operational PSI exercises, including the Department of State, the Department of Defense, the U.S. Navy, the U.S. Coast Guard, the Department of Energy, the Department of Homeland Security, the Customs and Border Protection Agency, the Federal Bureau of Investigation, and various intelligence agencies. Obviously, coordination is required between all these agencies. Since the PSI program has not been institutionalized in a budgetary sense, the participating agencies have no line item budget for their activities, and must take them “out of hide.” Also, PSI activities must compete for resources with other related high
5 priority nonproliferation programs which are officially funded in annual appropriations.
Action by Congress The 9/11 Commission regarded the PSI as having potential to minimize or prevent the shipment of WMD. In its report released July 22, 2004, the 9/11 Commission called for the expansion of the PSI, saying that, “The PSI can be more effective if it uses intelligence and planning resources of the NATO alliance.” “Moreover,” the 9/11 Commission recommended, “PSI membership should be open to non-NATO countries. Russia and China should be encouraged to participate.”13 Following up on the recommendations of the 9/11 Commission, in Public Law 11053, dated August 3, 2007, the 110th Congress addressed a broad range of homeland security issues in a new law titled, “Implementing Recommendations of the 9/11 Commission Act of 2007.”14 In Sections 1821 and 1822 of that law, Congress addressed the PSI. It called on President Bush to issue a presidential directive to the relevant U.S. government agencies that would direct them to “establish clear PSI authorities, responsibilities and structures,” and to “include in the budget request for each such agency or department for each fiscal year, a request for funds necessary for United States PSI-related activities.”15 The budget, to be submitted not later than the first Monday in February of each year in which the president submits a budget request, is to be accompanied by a comprehensive joint report submitted by the secretary of defense and the secretary of state, including a three-year plan “that specifies the amount of funding and other resources to be provided by the United States for PSI-related activities” and “the purposes for which such funding and resources will be used.”16 However, President Bush did not submit a budget request for the PSI program when he released the annual budget request in February 2008, and also did not submit the required joint Defense Department/State Department report, nor a three-year plan. Additionally, the nonpartisan U.S. Government Accountability Office (GAO) noted in December 2008 that the law mentioned above “required the President to submit a PSI implementation report by February 2008 to relevant congressional committees. State and DOD are required to submit a comprehensive joint budget report to Congress for each fiscal year describing U.S. funding and other resources for PSI-related activities.”17 The GAO pointed out that the U.S. administration had not issued the directive for American agencies, spelling out the responsibilities it deemed necessary under the PSI. And it found that it took until July 2008 for the Bush administration to send a PSI implementation report to Congress: five months later than legally required by Congress. Thus, the PSI program remains an orphan without either an established budget or a federal agency to shepherd it through the annual interagency competition for funds.
6 The Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism In its report “World At Risk,” released December 2, 2008, the Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism also recommended expanding the Proliferation Security Initiative and—like the 9/11 Commission—also recommended closer ties with Russia in a PSI framework.18 Following up on the 9/11 Commission, this new commission was mandated by Congress in 2007 and established on May 16, 2008. In its executive summary, the commission recommended, “The next U.S. administration should work with the Russian government on initiatives to jointly reduce the danger of the use of nuclear and biological weapons, including by (1) extending some of the essential verification and monitoring provisions of the Strategic Arms Reduction Treaty that are scheduled to expire in 2009; (2) advancing cooperation programs such as the Global Initiative to Combat Nuclear Terrorism, United Nations Security Council Resolution 1540, and the Proliferation Security Initiative; (3) sustaining security upgrades at sensitive sites in Russia and elsewhere, while finding common ground on further reductions in stockpiles of excess highly enriched uranium; (4) jointly encouraging China, Pakistan, and India to announce a moratorium on the further production of nuclear fissile materials for nuclear weapons and to reduce existing nuclear military deployments and stockpiles; and (5) offering assistance to other nations, such as Pakistan and India, in achieving nuclear confidence-building measures similar to those that the United States and the USSR followed for most of the Cold War.”19 Container Security Initiative (CSI) Launched in 2002 by the U.S. Customs and Border Protection Agency, the Container Security Initiative is to pre-screen cargo intended for the United States before that cargo reaches U.S. ports and border crossings. Initially, the CSI focused on the top 20 ports that ship to the United States, such as Singapore, Hong Kong, Rotterdam or Bremerhaven. Today, over 50 foreign ports are participants in the CSI.20 The concept is to screen cargo overseas before it has left the host country so that the determination of the security of that cargo is not solely dependent on screening once that cargo arrives at U.S. ports and border crossings. Of course, it is screened again when it arrives in the United States, but by pre-screening overseas, many false starts and misunderstandings can be resolved before the cargo leaves its port of disembarkation. This also speeds the flow of commerce once the cargo reaches the United States. The CSI is complementary to the PSI. Both are focused on enhancing global maritime security by improving the ability to prevent or interdict shipments of WMD cargo. The CSI is focused on maritime cargo bound for the United States. PSI addresses cargo in transit, at sea, in the air, and on land worldwide. PSI efforts include action against shipments throughout the transportation life cycle, not only when they reach port.
7 The CSI is developing and has deployed at overseas ports cargo screening systems, including radiation detection systems and x-ray machines, and collects database information on the performance and history of shippers around the world. This could be fairly easily tied into PSI efforts. Accomplishments On the fifth anniversary of the PSI, President Bush stated, “The PSI has responded to this challenge and achieved a solid record of success. Beginning in 2003 with only 11 states, the PSI has grown to more than 90 nations from every region of the world committed to conduct interdictions and deter those engaged in this dangerous trade. As a result of the collaborative efforts and training it sponsors, PSI is an increasingly effective tool to carry out real-world WMD-related interdictions, from shutting down front companies, to disrupting financial networks, prosecuting proliferators, and stopping shipments of sensitive materials from reaching their intended destination.”21 The problem with the PSI is that its effects have been difficult to quantify. Much of the work is based on sensitive intelligence, so governments are reluctant to share specifics. For example, in an opinion piece in May 2008, Robert Joseph and Brendan Malley (former officials with the Bush administration) argued that “dozens of interdictions have taken place slowing nuclear and missile programs in Asia and the Middle East.”22 What those interdictions were is unclear, and they have not been corroborated by outside experts. At a June 2008 briefing on PSI, U.S. officials admitted that they are uncertain of all the PSI activities because of a reluctance to share information about ongoing operations.23 Also, because of the way PSI has been set up, there is no specific government entity that “owns” the initiative. This allows the opportunity for bureaucratic in-fighting and turf warfare over the program, since there are not any agencies whose sole purpose is to carry out PSI activities. This makes it hard to determine whether an activity is, say, an action by the U.S. State Department for its own purposes, for PSI efforts, or some combination thereof. One example of how allegations of PSI work can be open to interpretation is the interdiction of the BBC China in October 2003. This German-owned ship was carrying parts for Libya’s nuclear program; two months after the interdiction, Libya disclosed and renounced its secret programs. At the time and shortly thereafter, U.S. officials traced the interdiction and subsequent announcement directly to the PSI. In February 2004, Condoleezza Rice claimed that “PSI has already proven its worth by stopping a shipment of centrifuge parts bound for Libya last fall.”24 A year later, Rice backed away from that direct link, stating only that PSI was a “framework for action.”25 Richard Boucher, then spokesperson for the State Department, clarified further in June 2005 how the United States chalks up victories for PSI: that while it is “impossible to say whether an interdiction that took place involving a number of countries involved in PSI was a PSI interdiction,” the view is that PSI “exists to facilitate these kinds of operations and when these operations successfully occur involving the participating countries, we would regard that as a success for PSI.”26 Perhaps this opaqueness is necessary for PSI to continue unimpeded, but it does bear keeping in mind when government officials allege its effectiveness.
8 Perhaps a more honest assessment of PSI is that it has provided a new element for international collaboration on preventing the proliferation of dangerous materials. By doing this, and at least acknowledging the universality of the danger presented by the proliferation of these types of materials, it has (combined with other nonproliferation activities) broadened the base for more concrete steps. Legal Obstacles and the Law of the Sea. Roughly 80 percent of all cargo shipments worldwide are by sea, and so it follows that WMD shipments likely could be maritime events.27 As maritime events, such shipments would fall under the Law of the Sea Treaty. On the first anniversary of the PSI, Russia announced that its participation would be only so long as PSI activities do not violate national or international law. Principal in this regard is the 1982 United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Treaty, which the United States observes but has not yet ratified.28 This treaty guarantees freedom of navigation on the high seas, the rights of transit passage and innocent passage for vessels in international straits and territorial waters, and undisturbed free movement on the high seas. As noted in the introduction, foreign naval forces or coast guards may only stop and search a flagged ship on the high seas under specific narrowly defined circumstances. Thus, PSI participants would not have the authority to stop the vessel of another state that is not a PSI participant, and doing so could be seen as an act of war. Ironically, under Article 23 of the convention, vessels carrying nuclear weapons are explicitly given the right of innocent passage.29 Some analysts believe the legal obstacles facing the PSI will be very difficult to overcome and will interfere with obtaining the participation of important nations without which the PSI cannot truly be effective.30 Another maritime protocol that is being used for counterproliferation efforts is the Mutual Ship Boarding Pact.31 Modeled after similar agreements in counternarcotics, these pacts are designed to facilitate the acceptance by one party of boarding by another party when a vessel registered in either country is suspected of carrying an illicit shipment of weapons of mass destruction or related materials. Bilateral cooperation of this sort supports the PSI by operationalizing procedures for boarding and searching the vessel of a participating state in international waters. Under these agreements, if a vessel registered in the United States or the partner country is suspected of carrying proliferation-related cargo, either the United States or the partner country may request confirmation of nationality registration and authorize boarding and search. If found to be warranted, detention of the vessel and its cargo is possible under these pacts. To complement the PSI, nine nations have signed bilateral Mutual Ship Boarding pacts with the United States. They are: the Bahamas, Belize, Croatia, Cyprus, Liberia, Malta, The Marshall Islands, Mongolia and Panama.32
9 However, since the focus of the PSI is states or nonstate actors of proliferation concern, and those states or nonstate actors are not formally identified under the PSI, Mutual Ship Boarding Pacts between the United States and those states or nonstate actors of proliferation concern are both unrealistic and impracticable. Other Obstacles the PSI Must Overcome From the perspective of the Bush administration which began the PSI, the initiative has always been about “rogue nations.” While the PSI is not supposed to be targeted at any particular nation, statements by U.S. officials have left no doubt that the United States views North Korea and Iran as targets for the initiative.33 Also, during a PSI interdiction exercise which took place in the Persian Gulf in October 2006, a diplomat observing the naval maneuvers was reported to have stated “off the record” that Iran and North Korea were two main targets for the PSI.34 For this reason, North Korea and Iran have protested the PSI. To the extent that the two countries feel that the PSI is pressuring them in particular, the PSI can be unintentionally counterproductive. The United States is involved in negotiations aimed at getting North Korea to relinquish its nuclear weapons program, and aimed at stopping Iran’s enrichment of uranium for nuclear weapons purposes. Added pressure on these two countries from the PSI can confound these negotiations. In September 2005, expressing concern over the legality of the initiative, the People’s Republic of China announced that it would not participate in the PSI.35 China is worried about the possibility of the PSI’s interdiction principles preventing its ability to enjoy innocent passage. It however has proven its willingness to cooperate with international proliferation efforts. For example, three of China’s ports have been included in the CSI. A 2008 RAND Corporation study describes the PSI as “only a modest additional step that complements China’s other nonproliferation efforts.”36 Another concern that the Chinese have is that its access to sensitive intelligence or military technology being used in a PSI interdiction may be prevented by U.S. officials. Given China’s economic connections with Iran and North Korea—both countries identified as potential proliferators—every step must be taken to ensure that China comes on board. Neither Pakistan nor India is a participant. India apparently is reluctant to participate in a program that it fears may reduce its foreign policy independence. India in particular is hamstrung by a domestic policy debate that is very sensitive to appearances of being indebted to another country’s foreign policy interests. This held up India’s signature of the nuclear deal with the United States for several years. The deal’s signature into law in October 2008 indicates that India may be more amenable to cooperation now. Nevertheless, considering the vast quantities of cargo shipped in and out of China and India, the lack of participation in the PSI by China and India is surely a major obstacle for the initiative. It also must be noted that the Malabar Exercises conducted in September 2007 in the Bay of Bengal had India as a participant, along with official PSI participants Japan,
10 Australia, Singapore and the United States. India has participated in two PSI exercises overall, while Pakistan has been involved in three of them, so their concern about the initiative cannot be insurmountable. Pakistan has also cooperated with the Secure Freight Initiative (SFI). Finally, South Korea is not a participant in PSI, a major flaw given its close proximity to North Korea. South Korean legislators are debating joining the initiative, but still are holding back from doing so. Russia was at first reluctant to join the PSI because of concerns about the legality of the proposed interdictions and worries that it would be giving a blank check for U.S. naval interdictions globally. It joined the PSI on its first anniversary, but the extent of its participation is uncertain.37 Part of this may be the rapidly deteriorating relationship between Russia and the United States. Issues like U.S. plans to field a missile defense system in Eastern Europe and Russia’s consequent threat to place Iskander missiles in Kaliningrad have caused ripple effects. Russia’s less-thancomplete cooperation in the PSI as a result of this could prove to have dangerously weakened the initiative. The situation is not irreversible, and some of the initial groundwork to improve the matter has been laid by programs like Cooperative Threat Reduction and the 2005 Bratislava Initiative. However, there are many in Russia that view the PSI as less of an interdiction activity and more a politicization of U.S. foreign policy interests, which may not always match up with those of Russia. Logistically, too, there are many difficulties that must be worked through. Detecting small amounts of nuclear materials can be very challenging. It is easy to imagine the diplomatic uproar if a ship were stopped under the PSI for a false reading. Who is legally responsible if mistakes are made? How would liability be determined from damage or delays from boarding done under the PSI? Generally, these questions are to be resolved based on the liability laws of the interested parties, but what if one of the countries does not have established liability laws on its books? Finally, proper disposition of the goods seized under the PSI is unclear. With the nebulous haze surrounding the PSI, it is possible that a potential participant could decide against taking steps to stop a ship presumed to have a WMD load. The PSI primarily focuses on maritime interdiction. This leaves obvious alternatives to proliferators: air and overland transport. Intelligence-sharing across national lines is very often a minefield of distrust and misunderstandings. While the second interdiction principle of the PSI explicitly calls for the “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...and maximize coordination among participants in interdiction efforts,” this is easier to suggest than to actually accomplish.38 Initial efforts are being taken, but given that the PSI depends solely on the goodwill of individual countries for its success, this means that it can be easily wounded by a rift between participating countries. Finally, the dual nature of WMD materials make determining what exactly is considered to be worthy of interception very difficult. Other export control agreements have very long, very specific lists of items that they are monitoring (see,
11 for example, the Missile Technology Control Regime or the Waasenaar Arrangement). The lack of clarity of the PSI has made some leery about participating. U.S. Federal Interdiction Responsibilities U.S. government responsibilities to respond to an interdiction incident involving WMD are partitioned according to the type of incident and its location. In the event of a domestic incident, the Federal Bureau of Investigation (FBI) would direct and conduct the overall investigation. If a nuclear explosion resulted, the Department of Defense has responsibility for postdetonation debris collection and analysis. In 2000, the Defense Threat Reduction Agency of the Department of Defense established the Domestic Nuclear Event Attribution program (DNEA). This program calls on experts at the nuclear weapons laboratories of the Department of Energy. The Department of Energy has responsibility for pre-detonation activities, including the analysis of interdicted nuclear devices whether weaponized or improvised, as well as interdicted radioactive dispersal devices. The scientific and technical expertise needed for nuclear forensics resides primarily at the Department of Energy nuclear weapons laboratories, Lawrence Livermore National Laboratory and Los Alamos National Laboratory. Through the Nevada Operations Office, the Department of Energy manages Nuclear Emergency Support Teams (NEST) which include experts from these laboratories. Along with police and fire departments and public health personnel, these NEST teams would be among the first responders following a nuclear incident. The NEST teams carry sensitive instruments for on-scene analysis, and have prompt access to well-equipped laboratories for extended radiochemical analysis. In addition, the Department of Homeland Security (DHS) operates the Domestic Nuclear Detection Office, established in April 2005, and the National Technical Nuclear Forensics Center (NTNFC), established in 2006. DHS is responsible for interdicted fissile or radioactive materials not assembled into a working device. DHS also turns to experts at the DOE nuclear weapons laboratories for scientific and technical expertise. The Department of State is the lead agency for international incidents, and manages the Global Initiative to Combat Nuclear Terrorism, and the International Technical Working Group on Nuclear Smuggling (ITWG). Finally, the intelligence community, including the CIA, would have the responsibility to contribute intelligence information to better understand the origins and pathways involved in a nuclear incident. To avoid bureaucratic delay and confusion, these various agency roles need to be well understood, and exercised regularly. The Congressionally-mandated “TOPOFF” (Top Officials) exercises have been valuable in this regard. TOPOFF exercises are “national-level, multi-agency, multi-jurisdictional, ‘real- time’, limited-notice WMD
12 response exercises, designed to better prepare senior government officials to effectively respond to an actual terrorist attack involving WMD. In addition, TOPOFF involves law enforcement, emergency management first responders, and other nongovernmental officials.”39 A particularly sensitive area is the role of various agencies in making public statements about an event. In this era of 24/7 news reporting, the pressure from the media for something new will be intense following a nuclear event, and government agencies need to coordinate both what is known and not known, and their public statements about this knowledge. The role of an experts panel, and its chain of command, should also be determined and exercised. Other policy questions involve the extent to which nuclear forensic evidence is to be shared with important foreign collaborators whose cooperation may be vital in determining what has happened and ultimate attribution. Some information may be classified, and the authority to classify and declassify this information should be understood and examined in the context of mock exercises. Classification guides prepared for ordinary everyday use may not be appropriate in an emergency situation, and specialized classification guidance may be needed. The Obama Administration and Nonproliferation In addition to any steps the Obama administration may take to stem the flow of WMD materials and technology, there is a window of opportunity here. The new administration has already renounced the unilateralism that raised so many hackles by the Bush administration. It is possible that in his first few months in office, Obama will have sufficient goodwill by merely not being Bush that the United States could prove to be a leader again in nonproliferation efforts. Granted, this is a short timeframe, but one that should not be overlooked by the new administration. Along those lines, the Obama administration has indicated that it would be more amenable to enhancing nuclear nonproliferation activities. The Obama White House website, echoing statements Obama made during his campaign, says that Obama and Biden “will set a goal of a world without nuclear weapons, and pursue it. Obama and Biden will always maintain a strong deterrent as long as nuclear weapons exist. But they will take several steps down the long road toward eliminating nuclear weapons.”40 One of the steps listed for accomplishing this goal is strengthening the Nuclear Non-Proliferation Treaty (NPT). This shift towards multilateral arms control agreements—as opposed to the Bush administration’s stolid insistence on unilateral freedom of action and eschewing of legal documents in favor of bilateral arrangements—bodes well for formalizing and expanding initiatives like the PSI. The new White House website also warns, “The gravest danger to the American people is the threat of a terrorist attack with a nuclear weapon and the spread of nuclear weapons to dangerous regimes.”41 The inference is that the Obama administration will strive to eradicate this threat and be willing to consider options for cooperation that earlier administrations may have ignored. Naming John Holdren—a noted expert on nuclear proliferation—as the White House science advisor also indicates that this new White House may be more amenable to prioritizing this issue.
13 Overall, the new U.S. leadership must realize that no foreign policy occurs in a vacuum, and steps taken to, say, shore up U.S. missile defenses in Europe will have consequences outside of the missile defense debate. Besides the PSI and CSI, since 9/11, the U.S. government has established other nonproliferation and counterproliferation programs. Notable among them are the 75-nation multilateral Global Initiative to Combat Nuclear Terrorism (GICNT), the DOE Global Initiative for Proliferation Prevention (GIPP), the State Department’s Global Threat Reduction (GTR) program, the DOE/NNSA Global Threat Reduction Initiative (GTRI), the Initiatives for Proliferation Protection, the Secure Border Initiative and the SFI. The U.S. government also has nonproliferation responsibilities under the MTCR, the NPT, and United Nations Security Council Resolution 1540 (UNSCR-1540). The Obama administration could find it worthwhile to review and reconcile these various programs, and to examine the web of overlapping commitments these programs entail, and the roles and responsibilities of the U.S. government agencies involved. Multilateralizing the PSI There are many ways in which PSI could be multilateralized and strengthened. The first is to expand the PSI’s participant list and get Russia as involved as both the 9/11 Commission and the Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism have recommended. Participants should be brought into the PSI, but what would really help would be broadening active participation by states who have agreed to collaborate with the initiative. This could be done by increasing the countries involved in the OEG activities and meetings. Perhaps it would help to have countries other than the United States issue the invitations so as to move the PSI away from the misconception that it is a U.S.-centric program.42 The OEG has roughly twenty regular participants, a limit that is largely based on how many countries are willing to bear the costs of more active involvement. There are other ways to bring non-OEG members into the fold of the OEG meetings. One would be to increase document-sharing amongst new PSI members so to get them up-to-date on what has been happening within the initiative. Another would be to try different formats for the meetings. For example, the United States is planning on hosting a meeting this May in Miami where it will bring in seven PSI-endorsing countries from the Western Hemisphere. Promoting regional capabilities at these meetings could also strengthen them too. Besides hosting meetings of the OEG, it is possible for smaller PSI participants to also become more involved in and contribute to the initiative. Learning how to share information across bureaucracies and getting it to the appropriate decision-makers can enhance the PSI tremendously: a large naval presence is not necessary.
14 The international community should work with China to address their concerns regarding the legality of the PSI, and their concerns that the United States will misuse or abuse the initiative. For the PSI to make sense overall, all nuclear weapons states must participate, including India and Pakistan. It may be challenging to get Pakistan and India to sign on to PSI as long as the other has not, so efforts should be taken to bring them on near-simultaneously. Revitalizing the NPT The NPT has been ratified by 188 nations, and has provided an umbrella for nonproliferation efforts worldwide and a system of nuclear safeguards to monitor compliance. The NPT seeks to limit the spread of nuclear weapons, notably under Article III through the work of the IAEA.43 However, the NPT defines a nuclear-weapon state as any country that manufactured and exploded a nuclear weapon prior to January 1, 1967. This definition limits the number of “official” nuclear-weapon states to five: the United States, Russia, China, France and the United Kingdom. As such, four nations with recognized nuclear weapons capability are not party to the NPT: India, Israel, Pakistan and North Korea. The NPT needs to be brought up to date, broadened and revitalized to enhance its effectiveness through the United Nations, and to include all nuclear weapons states in a continuing effort to limit the spread of nuclear weapons. Gaps and inconsistencies between the NPT and the PSI provide an excuse for nations not to participate in the PSI. Furthermore, the NPT review conference scheduled for next year is a golden opportunity to try to bring in more participants who support the goals of the PSI. It would also be a great chance to disentangle the program from being a largely U.S. initiative to one that is more multilateral in its scope and activity. If this were done, care must be taken to ensure that the PSI does not become entangled into some of the politics surrounding the NPT. Increase the Role of UNSCR 1540 Adopted on April 28, 2004, United Nations Security Council resolution 1540 calls for all nations to “refrain from providing any form of support to nonstate actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear chemical or biological weapons and their means of delivery, in particular for terrorist purposes …,” and to “adopt effective laws which prohibit” such terrorist actions.44 The elements of UNSCR 1540 provide a clear authorization for international cooperation and action. However, UNSCR 1540 was negotiated primarily between the five original nuclear weapons states, and smaller nations have felt that UNSCR 1540 does not adequately take into consideration their needs and issues. Also, UNSCR 1540 is tarred with the same brush as the PSI in that it is seen as unduly focused on Iran and North Korea, even though terrorists may operate in many other parts of the world. Thus UNSCR
15 1540, like the PSI, lacks a degree of global buy-in and support, despite its noble purposes. There is a real connection between UNSCR 1540 and PSI, with the latter providing a means to meet U.N. obligations that should not be overlooked. Invigorating UNSCR 1540 (and other related resolutions) and making them as specific as possible could provide the legal basis that some countries fear is lacking in the PSI. Also, some countries that might be concerned about cooperating with an amorphous entity like the PSI might be more likely to work with an established institution like a United Nations Security Council Resolution. It also would change perceptions that the PSI is a U.S. initiative associated with President Bush, to a new initiative—not so U.S.-centric—under the United Nations. UNSCR 1540 was a solid start that can be built upon for future efforts. UNSCR 1673 required all states to give the Security Council a “compilation of information on the status of States’ implementation of all aspects of resolution 1540” by April 27, 2008 (as of September 2008, 37 states still had not submitted the required information).45 Additionally, UNSCR 1718 that calls for “inspection of cargo to and from” North Korea could be used to justify further solidification of PSI efforts.46 UNSCR 1810, passed on April 25, 2008, extended the mandate of USCR 1540 through April 201147. It also required the 1540 Committee to “consider a comprehensive review of the status of implementation of resolution 1540 (2004) and to report to the Council on its consideration on the matter by no later than 31 January 2009,” asked the 1540 Committee to submit a Program of Work annually by the end of each January, and requested states to step up their efforts to follow the nonproliferation actions required from UNSCR 1540.48 Also, the International Maritime Organization (IMO) is an excellent place to look for multilateralization of the capabilities and powers sought for the PSI. It is indirectly linked to the PSI. For example, its 2005 Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) would criminalize the transport of WMD-related goods to non-NPT signatories and provide boarding regulations for ships that wish to receive permission to board other countries’ ships. It is currently waiting to enter into force.49 The United States supports it but the protocol is still winding its way through Congress. Another way to highlight the focus on nonproliferation efforts is to strive to stop the spread of WMD at the source. Namely, the international community should make the United States’ Cooperative Threat Reduction program one that reaches out to other states that could without knowing it provide raw materials to either state or nonstate actors determined to illegally obtain them. The Global Initiative to Combat Nuclear Terrorism could be built upon to demonstrate to potential hold-out states that there is an international consensus on the necessity for international ventures that strive to prevent proliferation. The Global Initiative focuses on nuclear materials, while the PSI has a broader scope of WMD materiel in general. But they both attempt to create rules of the road for interdicting suspicious cargos. And the Global Initiative is not as strongly associated with the United States as the PSI. The PSI or states as a part of it could work to develop ways in which to interrupt the financial transactions which allow proliferation to occur. The High Level Political
16 Meeting held in Poland in June 2006 called for efforts by PSI participants to use their own national laws to “identify, track and freeze the assets and transactions of WMD proliferators and their supporters.”50 An obvious demonstration of the need for this is Pakistan’s handling of the discovery of the AQ Khan network. Other Recommendations for the Future 1. Institutionalize the PSI in the U.S. federal bureaucracy; develop a strategic plan, an annual budget, and a dedicated team of U.S. government officials whose job it is to run the program. 2. Abandon the focus on the “Axis of Evil” and nonstate actors. While there are possible groups who may try to ship WMD systems or components, such systems or components can end up in the vessels of otherwise unknowing and innocent states. What is important to have agreements with all states to work together to prevent such shipments no matter where or how they might originate. Also, not all the global threats are nicely packaged in one or two states of concern, but by honing its focus largely on them, the United States may very well overlook other threats. 3. Explore new legal frameworks in international law that would facilitate nonproliferation goals. 4. Work to clarify and sort out the dazzling number of nonproliferation initiatives currently ongoing in the U.S. government. All motivated by 9/11, the current hodgepodge has become unmanageable. Congress cannot keep up with all of the initiatives, and neither can the White House. 5. Work to align the variety of nuclear nonproliferation initiatives within both the U.S. framework and within the United Nations, and gain leverage from Global Zero and other new initiatives towards global nuclear disarmament. 6. Ensure that all nuclear powers have best practices in place to secure their arsenals. It is important that the world cooperates to make serious, measureable progress on combating this threat. As Bob Graham, chairman of the Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism, testified to Congress in December 2008, “[U]nless urgent preventive action is taken, a terrorist attack involving a weapon of mass destruction nuclear, biological, chemical, or radiological is more likely than not to occur somewhere in the world in the next five years.”51 We cannot afford to dither on this issue.
17 APPENDIX 1 The Proliferation Security Initiative: Statement of Interdiction Principles (adopted in Paris, Sept. 4, 2003) The Proliferation Security Initiative (PSI) is a response to the growing challenge posed by the proliferation of weapons of mass destruction (WMD), their delivery systems, and related materials worldwide. The PSI builds on efforts by the international community to prevent proliferation of such items, including existing treaties and regimes. It is consistent with and a step in the implementation of the U.N. Security Council Presidential Statement of January 1992, which states that the proliferation of all WMD constitutes a threat to international peace and security, and underlines the need for member states of the U.N. to prevent proliferation. The PSI is also consistent with recent statements of the G8 and the European Union, establishing that more coherent and concerted efforts are needed to prevent the proliferation of WMD, their delivery systems, and related materials. PSI participants are deeply concerned about this threat and of the danger that these items could fall into the hands of terrorists, and are committed to working together to stop the flow of these items to and from states and nonstate actors of proliferation concern. The PSI seeks to involve in some capacity all states that have a stake in nonproliferation and the ability and willingness to take steps to stop the flow of such items at sea, in the air, or on land. The PSI also seeks cooperation from any state whose vessels, flags, ports, territorial waters, airspace, or land might be used for proliferation purposes by states and nonstate actors of proliferation concern. The increasingly aggressive efforts by proliferators to stand outside or to circumvent existing nonproliferation norms, and to profit from such trade, requires new and stronger actions by the international community. We look forward to working with all concerned states on measures they are able and willing to take in support of the PSI, as outlined in the following set of "Interdiction Principles." 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 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 U.N. Security Council. 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
18 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. 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 WMD-related cargoes in such vessels that may be identified by such states. d. To take appropriate actions to (1) stop and/or search in their internal waters, territorial seas, or contiguous zones (when declared) vessels that are reasonably suspected of carrying such cargoes to or from states or 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. 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.
19 Endnotes
1
The Proliferation Security Initiative: The Legal Challenge, A Bipartisan Security Group Policy Brief, September 2003, http://www.gsinstitute.org/gsi/pubs/09_03_psi_brief.pdf Samantha Power, “Boltonism,” The New Yorker, March 21, 2005, http://www.newyorker.com/archive/2005/03/21/050321ta_talk_power “The Krakow Initiative (Proliferation Security Initiative),” Security Policy Department of the Ministry of Foreign Affairs of the Republic of Poland, 2005, accessed on January 27, 2009, http://www.psi.msz.gov.pl/index.php?document=18
2
3
4
“Statement on the National Strategy To Combat Weapons of Mass Destruction,” December 11, 2002, http://fdsys.gpo.gov/fdsys/pkg/WCPD-2002-12-16/pdf/WCPD-2002-12-16Pg2150.pdf
5
“Proliferation Security Initiative: Chairman's Statement at the First Meeting,” Foreign Ministry of Spain, First Meeting of the PSI, June 12, 2003, http://www.state.gov/t/isn/rls/other/25382.htm “Proliferation Security Initiative: Statement of Interdiction Principles,” The White House, Office of the Press Secretary, September 4, 2003 “Proliferation Security Initiative Participants,” Bureau of International Security and Nonproliferation, Washington, D.C., January 22, 2009, http://www.state.gov/t/isn/c27732.htm
6
7
8
Government Accountability Office, U.S. Agencies Have Taken Some Steps, but More Effort Is Needed to Strengthen and Expand the Proliferation Security Initiative, GAO-09-43, November 10, 2008, http://www.gao.gov/new.items/d0943.pdf “Pacific Protector,” GlobalSecurity.org, page last modified April 27, 2005, http://www.globalsecurity.org/military/ops/pacific-protector.htm
9
10
“Exercise Deep Sabre Successfully Conducted,” Singapore Ministry of Defense, August 18, 2005, last updated on April 16, 2006, http://www.mindef.gov.sg/imindef/news_and_events/nr/2005/aug/18aug05_nr.html Government Accountability Office, ibid.
11
12
Public Law 110–53—August 3, 2007, “Implementing Recommendations of the 9/11 Commission Act of 2007,” U.S. Congress, http://intelligence.senate.gov/laws/pl11053.pdf t The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission, July 22, 2004, http://www.gpoaccess.gov/911/pdf/fullreport.pdf Public Law 110–53—August 3, 2007, ibid. Ibid. Ibid. Government Accountability Office, ibid.
13
14
15
16
17
18
World at Risk: The Report of the Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism, December 2, 2008, http://www.preventwmd.org/ Ibid. “ Container Security Initiative,” U.S. Customs and Border Protection, March 27, 2008, http://www.cbp.gov/xp/cgov/newsroom/fact_sheets/trade_security/csi.xml
19 20
20
“Statement by Bush on Anniversary of Proliferation Security Initiative,” The U.S. White House, May 28, 2008, http://www.america.gov/st/texttransenglish/2008/May/20080528143618eaifas0.8662989.html Robert Joseph and Brendan Malley, “Proliferation Pact Milestone,” Washington Times, May 28, 2008 Wade Boese, “Interdiction Initiative Successes Assessed,” Arms Control Today, July/August 2008, http://www.armscontrol.org/act/2008_07-08/Interdiction
24 Wade Boese, “Key U.S. Interdiction Initiative Claim Misrepresented,” Arms Control Today, July/August 2005, http://www.armscontrol.org/act/2005_07-08/Interdiction_Misrepresented 25 23 22
21
Ibid. Ibid. Mansoor Ijaz, “The Maritime Threat from Al Qaeda,” Financial Times, October 19, 2003
26
27
“The U.N. Convention on the Law of the Sea,” Fact Sheet UNA-USA, June 2007, http://www.unausa.org/site/pp.asp?c=fvKRI8MPJpF&b=328817
29
28
The Proliferation Security Initiative: The Legal Challenge, ibid. See for example, The Proliferation Security Initiative: The Legal Challenge, ibid.
30
“Ship Boarding Agreements,” U.S. Department of State, accessed on January 27, 2009, http://www.state.gov/t/isn/c27733.htm
32
31
Ibid.
For example, in a November 2003 interview, Undersecretary of State for Arms Control and International Security John Bolton responded to a question on whether PSI should also focus on Israel, India and Pakistan: “There are unquestionably states that are not within existing treaty regimes that possess weapons of mass destruction legitimately. We’re not trying to have a policy that attempts to cover each and every one of those circumstances. What we’re worried about are the rogue states and the terrorist groups that pose the most immediate threat.” From Wade Boese, “The Proliferation Security Initiative: An Interview with John Bolton,” Arms Control Today, December 2003, p. 37. Hassan M. Fattah, "Big naval maneuvers in the Gulf anger Iran," International Herald Tribune, November 6, 2006. Proliferation Security Initiative (PSI), James Martin Center for Nonproliferation Studies, Monterey Institute, last updated April 15, 2008, http://cns.miis.edu/inventory/pdfs/psi.pdf Charles Wolf, Jr., Brian G. Chow, and Gregory S. Jones, Enhancement by Enlargement: The Proliferation Security Initiative, Prepared for the Office of the Secretary of Defense, RAND Corporation, 2008, http://www.rand.org/pubs/monographs/2008/RAND_MG806.pdf Andrew Prosser, “The Proliferation Security Initiative in Perspective,” Center for Defense Information, June 16, 2004; Mark Valencia, "The Proliferation Security Initiative: A Glass Half-Full,” Arms Control Today, June 2007, http://www.armscontrol.org/act/2007_06/Valencia “Proliferation Security Initiative: Statement of Interdiction Principles,” September 4, 2003, http://www.proliferationsecurity.info/principles.html “TOPOFF (Top Officials),” Fact Sheet, U.S. Department of State, 2002, http://www.state.gov/s/ct/rls/fs/2002/12129.htm
39 38 37 36 35 34
33
21
40
“The Agenda: Foreign Policy,” Fact Sheet, U.S. White House, accessed on January 27, 2009, http://www.whitehouse.gov/agenda/foreign_policy/ Ibid. For a longer discussion of this, see the 2008 RAND study, ibid.
41
42
43
The Treaty on the Non-Proliferation of Nuclear Weapons (NPT), 2005 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), May 2-27, 2005, http://www.un.org/events/npt2005/npttreaty.html “Security Council Decides All States Shall Act to Prevent Proliferation of Mass Destruction Weapons: Resolution 1540 (2004), Adopted Unanimously, Focuses Attention on Non-State Actors,” United Nations Press Release SC/8076, April 4, 2004, http://www.un.org/News/Press/docs/2004/sc8076.doc.htm “Security Council Extends for 2 Years Mandate of Committee Monitoring Implementation of Resolution 1540 (2004) on Mass Destruction Weapons; Resolution 1673 (2006) Adopted Unanimously; Intensified Effort Called for to Keep Non-State Actors from Acquiring Such Weapons,” United Nations Press Release SC/8708, April 28, 2006, http://www.unis.unvienna.org/unis/pressrels/2006/sc8708.html; GAO, ibid.
44
45
United Nations Security Council Resolution 1718 (2006), October 14, 2006, http://daccessdds.un.org/doc/UNDOC/GEN/N06/572/07/PDF/N0657207.pdf?OpenElement United Nations Security Council Resolution 1810 (2008), April 25, 2008, http://www.nti.org/db/1540/pdfs/UNSCR_1810.pdf
48 47
46
Ibid.
49
“2005 Protocols,” Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988, International Maritime Organization, accessed on January 26, 2009, http://www.imo.org/Conventions/mainframe.asp?topic_id=259&doc_id=686#review Richard Bond, “The Proliferation Security Initiative: Three Years On,” BASIC Notes: Occasional Papers on International Security, British American Security Information Council, August 2, 2006, http://www.basicint.org/pubs/Notes/BN060802.htm “Statement of Bob Graham, Chairman, Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism,” Senate Committee Homeland Security and Government Affairs, December 11, 2008
50
51