The Proliferation Security Initiative and the Evolution of the Law on the Use of Force

Abstract

This Article proceeds in seven Parts. Part I introduces the Initiative and discusses some of the legal, political and strategic issues it raises. A more detailed legal analysis follows in Part VI but only after some analysis of the political and strategic issues that drive the Initiative. Part II discusses the threats that the proliferation of weapons of mass destruction pose and the ways that the Initiative seeks to address them. Precisely because the PSI is activity not an organization its structure and activities have not been articulated with much detail. The PSI'S founding document is a Statement of Interdiction Principles reproduced in the appendix to this Article. Part III presents those few operational details that are publicly available. Likewise, the PSI'S amorphous structure leaves considerable ambiguity about what it means to participate in the Initiative. Part IV addresses what is entailed in joining 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. As noted above, Part V examines the legal framework in which the PSI operates: the existing and potential legal arguments that would or would not permit interdiction shipments of WMDs. Part VI picks up the thread by examining the efforts to deal with these legal issues through the essentially political actions of the United Nations Security Council. Finally Part VII 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.