In 2002, the US National Security Agency tracked the Cambodian vessel So San on its voyage from North Korea to the Middle East. At America's request, the ship was boarded by the Spanish Navy and searched in the Arabian Sea; 15 Scud missiles and 85 drums of chemicals, which Yemeni officials later declared to be missile fuel, were found buried under a mountain of sandbags. Yemeni President Ali Abdullah Saleh claimed the cache as his property. This was a problematic development for then-President George W. Bush, because Yemen had promised both to stop buying weapons from North Korea and to help the United States in its struggle against Al Qaeda. Bush was likely frustrated, but he had to have been aware of loopholes that made the interdiction questionable in terms of international law. In the end, he had no choice but to allow the weapons to complete their voyage.
Spanish officials -- who had ordered their forces to risk their lives by firing at and boarding a hostile ship -- were embarrassed. In an official statement to the press regarding the incident, White House Press Secretary Ari Fleischer explained, "We have looked at this matter thoroughly, and there is no provision under international law prohibiting Yemen from accepting delivery of missiles from North Korea." The release of the So San illustrated the lack of clear, formal rules for the interdiction of ships and seizure of fissile materials or other weapons of mass destruction (WMD) at sea. President Bush subsequently put forward the Proliferation Security Initiative, an informal agreement between participant countries -- currently 99 -- to stymie the transfer and proliferation of WMD and related materials.
The Proliferation Security Initiative has clearly met with some success. American officials reported it played a role in 30 interdictions in its first few years, although public information about these seizures is scant. But the informal nature of the initiative clearly raises serious challenges to nonproliferation efforts. Participants are sometimes reluctant to share intelligence. The UN Convention on the Law of the Sea protects a ship from interdiction unless there is permission from the country in which it is registered or "flagged." And under international law, interdiction can take place only under certain circumstances: if there is suspicion of drug trafficking, if the presence of the ship off a state's coast is deemed to be a national security risk, or if or a crime committed from the ship has consequences in a nearby state.
The lack of binding international law in regard to interdiction and seizure of weapons of mass destruction is an egregious oversight -- but one that could be easily remedied. Currently, Article 27 of the Law of the Sea defines illegal trafficking in territorial waters so it relates only to the transport of drugs or psychotropic substances. Amending this article to include weapons of mass destruction and associated materials would greatly strengthen the nuclear nonproliferation regime.
While it is unclear if powerful member states such as China would be willing to amend the Law of the Sea to allow for interdiction and seizure of weapons of mass destruction, Beijing has displayed a desire to play a constructive role in maritime security. It has already cooperated with the UN Security Council on WMD shipments from North Korea. Despite the close alliance maintained between the two countries, China has repeatedly voted in concert with the rest of UN Security Council regarding sanctions against North Korea in response to its continued nuclear program.
The informal nature of the Proliferation Security Initiative could facilitate a quick agreement between many nations with relatively few institutional hurdles. The initiative essentially encourages participating members to allow for interdiction when WMD transport is suspected; its power is derived from laws already in place. If the Law of the Sea were to be amended to make the transport of weapons of mass destruction illegal, the Proliferation Security Initiative would gain a substantial tool for the seizure of nuclear materials.
Despite being a participating member of the Law of the Sea and generally being sympathetic to US interests regarding nuclear security, China refuses to join the Proliferation Security Initiative; Beijing's primary justification is that the initiative's interdiction practices -- which are largely classified -- do not respect international law. Specifically, Article 23 of the Law of the Sea reads, "Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances shall, when exercising the right of innocent passage through the territorial sea, carry documents and observe special precautionary measures established for such ships by international agreements."
The Proliferation Security Initiative stands in direct opposition to this established international law.
Other major players in the nuclear game -- including India, Pakistan, Malaysia, Indonesia, and South Africa -- also do not participate in the Proliferation Security Initiative. There are technical and legal issues in question: Indonesia, for example, cites ambiguity over interdictions in exclusive economic zones protected by the Law of the Sea, and the RAND Corporation suggests India would not want to compromise its position as a possible supplier of nuclear components should Saudi Arabia or Iran acquire nuclear weapons. Most of these states cite the United States' failure to join the Law of the Sea as a reason for their skepticism toward the Proliferation Security Initiative. Pakistan has simply remained silent on the issue.
Just as China is wary of joining the Proliferation Security Initiative, so too is the United States hesitant to adopt the Law of the Sea, even though it already honors most provisions of the treaty. Of gravest concern for American policy makers focused on national security is the belief that adopting the Law of the Sea would grant the United Nations power to seize technology that could be shared with enemies of the United States. From an economic standpoint, the United States already enjoys a right to extract and use resources from international waters; under the Law of the Sea, US businesses might be required to buy licenses and pay taxes for those resources. Also, the treaty created the International Seabed Authority, which acts as a mediator for disputes that arise at sea. American leaders have clearly indicated that they view such an authority as an infringement on US sovereignty. When push comes to shove, the final argument against US adoption of the Law of the Sea has been that its costs would outweigh its benefits.
Resistance to ratification is led mostly by Republican Senator James M. Inhofe of Oklahoma and other congressional conservatives. Beyond them, there is wide support in Washington for the Law of the Sea. The Bush administration favored it, and high-ranking officials of the Obama administration have weighed in on the side of adoption. Even former Republican presidential candidate and Senator John McCain has warned that "this paralysis leaves the United States on the sidelines while others carve up an ocean."
American assent to the Law of the Sea could be a powerful bargaining chip to be traded for a strengthening of the Proliferation Security Initiative. If the United States were to promise ratification and Article 27 of the Law of the Sea were to be amended to allow for the seizure of WMD-related materials, the Proliferation Security Initiative would gain the legitimacy and capability it currently lacks, and the critical states withholding participation in the initiative would have a hard time justifying their lack of support. The Law of the Sea and the Proliferation Security Initiative are now at odds. Making them support one another -- in a way that serves the interests of parties to both -- would create a safer world.