The first bill introduced by the new Democratic leadership of the House of Representatives during their “100 Hours” crusade was H.R.1, Implementing the 9/11 Commission Recommendations Act of 2007. Contained in this massive bill are Sections 1221 and 1222 dealing with the Proliferation Security Initiative (PSI). The PSI is one of the most successful diplomatic and security measures devised by the Bush Administration against the spread of weapons of mass destruction (WMD) and their delivery systems. The PSI is an international coalition that was composed initially of Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, Singapore, Norway, Canada and the United Kingdom. It now numbers over 70 member states. Its purpose is to facilitate the sharing of intelligence information, the tracking of suspect international cargo and the conducting of joint military exercises to interdict illicit shipments. It is not just non-proliferation; it is counter-proliferation.
It is this last point that is the key to the PSI's effectiveness, but which has also made it contentious in some circles. For PSI members to act within their own jurisdiction against foreign shipments is not controversial. It is the essence of sovereignty. So would be agreeing to allow the boarding and searching of its own flag vessels by other PSI states and to the seizure of any WMD-related cargoes so found. The problem comes from the declared intent of PSI members to stop, search and seize ships and cargoes belonging to non-PSI "state or non-state actors" who have not given prior permission in "areas beyond the territorial seas of any other state" which means in international waters and in violation of the principle of "freedom of the seas."
In a speech at the National Defense University on February 11, 2004, President George W. Bush stated "We're prepared to search planes and ships, to seize weapons and missiles and equipment that raise proliferation concerns." The NDU speech had been proceeded by international meetings in Krakow, Madrid, Brisbane, Paris and London during 2003. A Statement of Interdiction Principles was adopted at the Paris meeting. Not only does the United States deploy the world's most powerful navy on a global scale, the PSI includes most of the world's other major naval powers. Interdiction is a major function of sea power. As Admiral Michael G. Mullen, Chief of Naval Operations, has put it, "We talk about a ‘thousand ship Navy.' That's not just our ships. It's an international fleet of like-minded nations participating in security operations around the world."
To its credit, H.R. 1 endorses the interdiction mission. Section 1222 prohibits the transfer by the United States "of any excess defense article, that is a vessel or an aircraft, to a country that has not agreed that it will support and assist efforts by the United States to interdict items of proliferation concern." Whereas, the U.S. is to provide assistance to foreign governments to "enhance such capability by criminalizing proliferation, enacting strict export controls, and securing sensitive materials within its borders, and to enhance the ability of the recipient country to cooperate in operations conducted with other participating countries."
There is, however, a wrinkle in H.R. 1's approach to the PSI. Section 1221 contains a "sense of the Congress" provision that calls on President to work "with the United Nations Security Council to develop a resolution to authorize the PSI under international law." Though this is not binding in itself, a latter provision mandates that "Not later than 180 days after the date of the enactment of this Act, the President shall transmit to the Committee on Armed Services and the Committee on Foreign Affairs of the House of Representatives and the Committee on Armed Services and the Committee on Foreign Relations of the Senate a report on the implementation of this section." This has raised fears that the Democrats want to subordinate American security policies and coalition diplomacy to United Nations supervision. During the debate, Republican Minority Leader John Boehner argued, "the Democrat proposal will undermine the effectiveness of the PSI by forcing the United States to seek the permission of foreign governments before attempting to interdict illicit WMD material."
On the left there has been a steady complaint since 9/11 that only the UN can grant legitimacy to national actions. Democratic Senator Carl Levin, now chairman on the Senate Armed Services Committee, has been the most direct about this new meaning. During the October 2002 Senate floor debate over approving the use of force in Iraq, Levin argued against the resolution on the grounds, "The White House compromise still specifically authorizes at this time the use of force on a unilateral, ‘go it alone' basis, that is - without U.N. Security Council authorization." Under this definition, the U.S. can have dozens of coalition partners, but it will still be acting "alone" if it has not gotten permission from the UN Security Council. This has become the liberal definition of unilateral.
Yet, the UN is not an autonomous organization. The Security Council is merely a meeting place of major powers and a changing array of minor states. It cannot be expected to reach a consensus on issues of great importance at any level beyond airy, general statements. The fatal flaw in the concept of collective security is that there is no global collective political consciousness or sense of community.
This was quite apparent during the effort the Bush administration has already made to win UN approval for the PSI. The State Department has always felt that the PSI "coalition of the willing" would be enhanced if there was specific UN authorization for such interceptions. Article 23 of the UN Law of the Sea Convention allows "ships carrying nuclear or other inherently dangerous or noxious substances" the right of "innocent passage" through territorial seas as long as they "carry documents and observe special precautionary measures established for such ships by international agreements." And their right to operate freely on the high seas is uncontested. The U.S. has wisely refused to ratify the LOSC, but many of the other PSI members have.
John Bolton was the principle architect of the PSI when he was serving as Under Secretary of State for Arms Control and International Security, and it fell to him as UN Ambassador to draft a resolution to authorize this new doctrine. Bolton has now left the UN because his recess appointment expired and a coalition of liberal Senators and "one world" activists blocked the confirmation of his regular presidential appointment. Bolton's view that the purpose of American diplomacy at the UN is to enlist the institution in support of U.S. objectives is anathema to those who think of the UN as a body of world governance superior to its member nation-states.
When the U.S. first tried to bring such a resolution, China demonstrated that the UN is still governed by the clash of national interests. Beijing vowed to veto it. China is one of the world's major proliferators of WMD materials and delivery systems. As the U.S.-China Economic and Security Review Commission stated in its 2006 report to Congress, “Chinese companies and government organizations continue to proliferate weapons, weapons components, and weapons technology. Some of these transfers violate China’s international nonproliferation agreements, harm regional security in East Asia and the Middle East, and are a measure of China’s failure to meet the threshold test of international responsibility in the area of nonproliferation.” Beijing also has the world's third largest merchant fleet with over 2,000 ships, and will not allow any of them to be inspected for contraband.
UN Security Council Resolution 1540 was finally adopted unanimously on April, 28, 2004, but in a greatly modified version from the original American text due to Chinese efforts. Instead of endorsing PSI, it avoided giving any explicit support to it. Resolution 1540 does call on all states to take cooperative action to prevent trafficking in WMD. However, whenever it mentions "international cooperation" it is quick to hem such actions in by stating that any such cooperation must be "in accordance with their national legal authorities and legislation and consistent with international law." The operative sections refers only to "Non-State actors" and "illicit trafficking" in WMD, thus providing no foundation for taking action against national governments or their state entities. Cooperation was not to be allowed to grow into a coalition that can act unilaterally, but must be kept under UN authority.
This is the same diplomatic tactic Beijing used in watering down the December 23 Security Council resolution imposing sanctions of Iran for its nuclear program, and continues to use to stalemate the Six Power Talks on North Korea. Any further attempt to require that U.S. policy be first authorized by a vote of the UN Security Council will meet the same fate. Do the Democrats really want to give that kind of leverage to the Beijing regime?
President Bush met this argument very effectively in his 2004 State of the Union address when he said "America will never seek a permission slip to defend the security of our country."
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