I ain’t no lawyer, but I thought I’d try and provide an answer to a comment made the other day in response to this post.
I thought I would make a post out of my response, lest it be lost in the comments section.
Hass said:
Sorry but there is a great deal of debate over the legality of PSI – even in its present form. The PSI docs claim that it is consistent with international law however under Article 110 of the Law of the Sea Convention the interdiction of vessels is legally only permitted if they’re engaged in five possible activities, all of which are themselves illegal such as carrying contraband (drug trafficking on the high seas is prohibited by the 1988 Vienna Convention.) Otherwise interdiction requires the consent of the flag State in international waters.
The US has tried to fit the PSI into international law by dressing it up in the language of international law and later by claiming it constitutes “self-defense” but few are buying that. Even some in the US worry that it could just as easily be applied to the US.
Since the PSI is selectively applied to states which are designated (by whom?) of “proliferation concern” this raises even more doubts that the PSI constitutes a general norm or standard of international law. It is at best a multilateral agreement which is enforceable only among its participants but which is otherwise contrary to international law
First of all, arguing that there is a “debate” about the legality of interdictions isn’t the same thing as the argument made in the original comment. Leave the goalposts where they are, please.
[Hass originally said, “But hasn’t the Bush administration instituted the “Proliferation Security Initiative” outside of the UN Law of the Sea system to (illegally) interdict missiles and other “wmd-related” material from going to countries we don’t like on an ad hoc basis?”]
Second, I’d like to see how widespread any debate over the PSI’s legality really is. According to this State Dept. fact sheet, 60+ countries have voiced support for the PSI, which includes this statement of principles.
There has been a debate about the legality of on interdictions on the high seas. But that’s not really the focus of PSI. To the extent that the initiative deals with those sorts of interdictions, it works within existing legal authority by, for example, U.S. bilateral boarding agreements.
As my colleague Wade Boese has written:
Legal Authority: The initiative does not empower countries to do anything that they previously could not do. Most importantly, PSI does not grant governments any new legal authority to conduct interdictions in international waters or airspace. Such interdictions may take place, but they must be confined to what is currently permissible under international law. For example, a ship can be stopped in international waters if it is not flying a national flag or properly registered. It cannot be stopped simply because it is suspected of transporting WMD or related goods. PSI is primarily intended to encourage participating countries to take greater advantage of their own existing national laws to intercept threatening trade passing through their territories and where they have jurisdiction to act. In situations where the legal authority to act may be ambiguous, Bolton said participants might go to the UN Security Council for authorization.[3]
PSI participants are working to expand their legal authority to interdict shipments by signing bilateral boarding agreements with select countries to secure expedited processes or pre-approval for stopping and searching their ships at sea. The United States has concluded such agreements with Belize, Croatia, Cyprus, Liberia, the Marshall Islands, and Panama. Liberia and Panama possess the largest fleets of registered ocean-going vessels in the world.
To be fair, there is evidence that Bolton was pushing the boundaries on high-seas interdictions:
Still, Undersecretary of State for Arms Control and International Security John Bolton holds out the hope that the initiative will lead countries to act more aggressively within current law and, in effect, change it. In comments published Oct. 21 by The Wall Street Journal, Bolton said, “As state practice changes, customary international law changes.”
For more information, Jofi Joseph dropped a bunch of PSI knowledge here.