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WMD: U.S. Interdiction

Author: Sharon Otterman
June 26, 2003

Is the new U.S. interdiction policy to stop WMD trafficking legal?

Yes and no. It is legal for the United States and other willing nations to stop and search foreign ships suspected of carrying weapons of mass destruction (WMD) within their territorial waters, which extend 12 miles from their shorelines. But legally interdicting ships sailing in international or hostile waters will likely require some modifications to current international law, legal experts say.

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What is the new U.S. policy?

The Proliferation Security Initiative, announced by President Bush May 31 in Krakow, Poland, encourages countries to take an aggressive approach toward tracking and seizing WMD in transit at sea, in the air, and on land. The policy is specifically aimed at preventing "countries of proliferation concern"--such as North Korea and Iran--from importing and exporting WMD and missile-related materials.

Why is the United States pushing for interdiction now?

Since Sept. 11, keeping WMD out of the hands of terrorists and nations that might provide them to terrorists has been a core objective of U.S. foreign policy. Most pressing is the stalemate with North Korea, which has announced that it has a nuclear program and may already have nuclear weapons. Exporting missiles is an important source of revenue for North Korea, and the United States also fears Pyongyang could export WMD. Interdiction, says the Bush administration, would be one way to crack down on this trade.

Can interdiction stop WMD trafficking?

No interdiction campaign against a hostile nation is foolproof, most experts say. Monitoring all of a suspect nation's land, air, and sea borders is a formidable task. Chemical and biological weapons materials can be difficult to detect, and the relatively small amounts of fissile material needed for a basic nuclear weapon--a grapefruit-size ball of plutonium could be enough, says the Brookings Institution's Michael Levi--is easily concealed in a radiation-proof container. As a result, some experts say, relying too heavily on an interdiction policy could be dangerous.

How does the Bush administration respond to this concern?

Officials say that they consider the interdiction measures part of a wider strategy to stop proliferation that will include diplomacy, sanctions, and--when necessary--preemptive military action. "At a minimum, interdiction can lengthen the time that proliferators will need to acquire new weapons capabilities, increase the cost, and demonstrate our resolve to combat proliferation," said John Bolton, undersecretary of State for arms control and international security, in testimony before Congress June 4.

Do other nations support the U.S. interdiction policy?

The idea appeared to be favorably received at the Group of Eight (G-8) meeting held June 1-3 in Evian, France. As part of an effort to reduce the "dirty bomb" threat, the G-8 countries— the United States, Britain, Italy, Japan, France, Canada, Germany, and Russia— agreed to improve export controls and tighten security of radioactive materials, according to a White House press statement. Dirty bombs are conventional weapons that disperse radioactive material.

On June 12, mid-level officials from Poland, Portugal, the Netherlands, Australia, Spain, and all of the G-8 countries except Russia met in Madrid to further discuss the initiative. No reporters attended the meeting; Australian officials identified the participants, according to press reports.

What will it take for the policy to be effective?

The more countries that participate in the interdiction effort, the more successful it will be, proliferation experts say. If only "willing" nations participate, smugglers can move the weapons through nations that do not take part. A new United Nations Security Council resolution cracking down on proliferation would broaden both the legitimacy and the effectiveness of the plan, experts say.

When can nations legally search foreign ships?

All nations are allowed to authorize their law-enforcement officials to stop and search ships sailing inside their territorial waters, according to Ambassador Richard N. Gardner, an international law professor at Columbia University and a former ambassador to Spain and Italy. Nations can also stop suspect planes crossing their air space and any other vehicles transiting their territory.

When is it illegal to stop them?

Under international maritime law, it is generally illegal to stop and search foreign ships sailing in international waters. Nations can, however, board suspect ships with the permission of the country under whose flag the ship is sailing, or board stateless ships flying no flag, international lawyers say. It is illegal, in general, to enforce laws within the territory of another nation without that nation's permission.

Can countries legally ship nuclear materials?

Yes. Countries that have not signed the 1970 Nuclear Nonproliferation Treaty (NPT) can legally ship nuclear material under international law, experts say. This includes India, Pakistan, and Israel--and probably North Korea, whose recent withdrawal from the treaty has not yet been formally accepted by the International Atomic Energy Association (IAEA). In addition, all NPT signatories are permitted to develop nuclear power for peaceful purposes and can import and export nuclear materials if they allow monitoring by the IAEA.

Can other WMD-related materials be shipped legally?

Many chemical and biological weapons use "dual-use" components that are generally legal to import for peaceful purposes, experts say. (Dual-use materials have benign as well as dangerous applications.) To stop all potential WMD materials from entering Iraq after the 1991 Gulf War, the Security Council passed a resolution that barred the import of thousands of dual-use items.

Are there domestic laws covering WMD shipments?

Each country has its own set of laws that govern what it may import and export; some nation's laws are stricter than others. In addition, groups of nations have gotten together to attempt to strengthen laws to prevent WMD proliferation. These groups include the Nuclear Suppliers Group, the Missile Technology Control Regime, and the Australia Group.

Is the United States trying to modify international interdiction law?

The first stage of the Proliferation Security Initiative calls on "like-minded" countries to toughen their domestic laws related to WMD and enforce them more aggressively within their own territory. The United States has not yet announced if it will press for changes in international law to stop trafficking in international waters or if it will attempt to use existing law to justify its actions. Some experts say the best way to insure the legality of interdictions and limit objections to the policy would be to pass a Security Council resolution endorsing the U.S. initiative.

What are some criticisms of the interdiction policy?

Some nonproliferation experts say that the U.S. approach to fighting the spread of WMD is unbalanced. For example, the United States, among other countries, still hasn't approved a protocol to the 1975 Biological Weapons Convention to set up an inspections campaign to enforce the treaty. "A lot of us were very disappointed by that," says James Clay Moltz, Associate Director of the Monterey Institute of International Studies' Center for Nonproliferation Studies. "The idea is to now do something" to fight the spread of biological weapons, he says. The United States has also declined to ratify a protocol to the NPT to toughen nuclear weapons inspections. "Interdiction should be a last, or near to last, line of defense," says Jonathan B. Tucker, a senior fellow at the United States Institute of Peace (USIP) and on leave from the Monterey Institute.

Has there been a recent example of interdiction in international waters?

Yes. In December, U.S. intelligence discovered that a North Korean ship, the So San, was carrying a hidden cargo of Scud missiles to Yemen. But because the North Korean short-range missiles are not banned under international law, the Spanish authorities who intercepted the ship at the behest of the United States had to let it proceed. Bush administration officials have said they would like to tighten up the law in these sorts of cases.

Could interdiction be considered an act of war?

Yes, and for this reason it is a provocative policy, Tucker says. North Korea's official daily Rodong Sinmun has already charged that the interdiction initiative is part of a premeditated U.S. war plan. North Korea, the daily wrote, would take "an immediate physical retaliatory step against the United States once it judges that its sovereignty is infringed upon by Washington's blockade operation." Under international law, a blockade is considered an act of war, Gardner says.

Would an interdiction campaign against North Korea be like an embargo?

Proponents argue the action against North Korea would be a "selective interdiction" only of ships and aircraft suspected of carrying the questionable materials, not an embargo. But critics say that the policy will not be effective because it will upset the North Koreans without bringing real security to the United States. Brookings' Michael Levi says the Bush administration appears "to be trying to walk a fine line, seeking to avoid the concessions necessary for a diplomatic solution, the risks involved in a military attack, and the dangers of doing nothing. But it is chasing a dangerous fantasy."