Legal Dimensions of Implementing PSI

Prof. V.S. Mani
Director, Gujurat National University

The concept of PSI struck me even as it came through the news in September 2003. This is not the first time something like PSI was being used against countries like North Korea. BBC news online 5th September 2003 reported that in December 2002, Spain intercepted a North Korean ship carrying scud missiles and handed over the vessel to United States. We are now faced with the process of 'formalizing' PSI as an alliance system. It is, however, instructive to look at the context in which the new alliance system takes shape. A US handout says that the target entities of the PSI system are of two categories - countries like North Korea and 'non-state entities', i. e. some select 'terrorist' groups.

The United Nations has been grappling at least at the normative level with the problem of 'elimination' of international terrorism. By now there are some 12 international treaties and 7 regional conventions. Since 1992, the problem came to be increasingly focused and started repeatedly appearing on the agenda of the Security Council. Since then the great powers were given the opportunity to use the Security Council for conceptualizing and seeking to implement a sort of PSI, at least against the terrorist groups. The result, of course, was the resolution, Prof. Zuberi referred to in his presentation, Resolution 1540 of 2004 adopted on 28th April 2004. I have no difficulty in reading this resolution as terrorism-specific, as it is formulated as one of the Council responses to international terrorism. Normally resolutions of international bodies do not contain footnotes but this resolution has footnotes. There is a star footnote on the first page, which says "definitions for the purpose of this resolution only." These are definitions of three terms, namely, "means of delivery," "non-state actor" ("individual or entity not acting under the lawful authority of any State in conducting activities which come within the scope of this resolution"), and "related material." Prof Zuberi was pondering aloud over the meaning of "related material:" the definition is found in the resolution. Although not too specific, the definition is adequate for the purposes of understanding the rationale behind the resolution.

The context should also include the issue of disarmament. By the 1954, it was insisted by Jawaharlal Nehru at his UN General Assembly annual interventions that the issues of disarmament should be dealt with multilaterally not unilaterally, as not only the great powers, but all members of the international community had seminal interest in pursuing the goal of disarmament. But now things are being dealt with through 'collective unilateralism:' it begins with one individual State, usually a great power, then eventually in order to seek legitimacy it becomes collective unilateralism.

I would present three points on PSI from a legal perspective:

1. Unilateralism.
2. Use of force under the UN Charter.
3. Law of the Sea.

On unilateral actions there is a general rule, as formulated by the International Court of Justice in the Anglo-Norwegian Fisheries case in 1951. The Court ruled that while a State has considerable freedom of action, when a conduct of State has international implications, the legality of that conduct should be subject to determination by International Law. In other words, the burden is on the state concerned to justify its action in terms of legitimacy and acceptability under International Law. I would therefore look at unilateral acts of states from this perspective.

What we have here is what I would call as 'collective unilaterlism' to force selective disarmament. The trend began with the London Club in 1975, then MTCR in 1987, then Australia club in 1992, Wassenaar Club in 1995, and now The Hague Group of 2002. Particularly the last two have all brought about restrictions and embargoes in free international transfers of what these clubs deem to be dual use technologies. The problem with these clubs is that they are very loose clubs, they don't even have Articles of Association (let alone any treaty basis), except for certain generally agreed guidelines and these guidelines get broadened over and over again, at the instance of a great power. If these guidelines are implemented by national legislation by a 'participant' country, by even extending their import to transactions between and in non-participating countries, the result of that kind of implementation is felt to the detriment of these countries. We in India have been familiar with such arbitrary extraterritorial application of national laws by the US. In the 1992-93 cryogenic engine controversy Russia was arm-twisted to back out of the technology transfer obligations under the erstwhile Indo-Russian Cryogenic Engine Technology Agreement even as both India and Russia (at that time) were not parties to MTCR. Washington put the heat on Moscow and Moscow backed out of the agreement giving India five additional cryogenic engines in return for the abrogation/renegotiation of the agreement. So such 'collective unilateral' arrangements as MTCR would give lead to acts of dubious legality.

Prof. Zuberi highlighted discrimination in the realm of disarmament. Why is it that the P5 can legitimately acquire and hold nuclear weapons and others cannot. If others do it, it is illegal, in terms of the NPT. But when the P5 hold and vertically multiply nuclear weapons there is nothing wrong with it. The non-P5 should not also transfer nuclear weapons or their technology. Do we have any international peremptory norm prohibiting development or transfer of nuclear weapons or any other weapons only with respect to certain countries and not to others. Or is the privilege of the P5 to determine this? Peremptory norms can only be non-discriminatory - except on ground of equity. We cannot have a selective, discriminatory international framework of norms and institutional mechanism that would treat a small group of states privileged in view of their superior military power. Any international disarmament monitoring or enforcing mechanism, by its very definition, must have authority over all states without any discrimination. I would assess the validity and legitimacy of PSI from that angle. PSI tries to cater for the interests of a few countries, primarily some of the great powers. Could we seek answers to global issues of disarmament in this way? This is a question to ponder over.

The second aspect is use of force. The law relating to use of force is of course very clear although this is the very law which is being violated repeatedly. Article 2 (4) of the UN Charter clearly says: " All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any manner inconsistent with the purposes of the United Nations." There are two kinds of situations in which use of force is permissible: one, organizational action by the Security Council, and the other Article 51 right of self-defence. The Council now authorizes PSI. Does PSI fall within the right of self-defence? The answer would be No because you need an armed attack to invoke the right of self-defense. Security Council resolution 1540 is terrorism-specific. It is non-state actor specific. The PSI allows some states to act outside the UN Charter framework of control of force and yet insists legitimacy.

The third aspect is the Law of the Sea. There are two critical areas in this regard, one is the law relating to the territorial sea and the other, that of the high seas. The way in which the provisions on territorial waters came to be adopted in the 1982 UN Convention on the Law of the Sea, has had a long history. Earlier the complaint of the countries of blue water navies was that the coastal states could at a moment's notice declare any passage as non-innocent and that there were no objective criteria particularly in Article 16 of the Geneva Convention on the Territorial Sea of 1958 (which dealt with the passage through straits). The issue was quite extensively debated. In order to eliminate the chances of subjective application of the concept of innocent passage by the coastal states, the UN Convention of 1982 came up with objective criteria, yet protecting the coastal state rights to tackle any problems of security, and law and order. Let the coastal state handle these problems in its own way within the framework of 1982 Convention. Why PSI? Or would PSI give a handle to a foreign state to enter into a coastal state's territorial waters and apply PSI principles even without consulting the latter.

With the regime of the High Seas, the ruling principle has been freedom of the high seas. There was a time, not long ago, when the freedom of the high seas was interpreted by the United States, as implying a right for it not to affirm or deny that its ships carried nuclear weapons: this was about 10 or 15 years ago, and precisely for this reason United States was quite unwilling to be a party to protocols of many of the regional nuclear free zone treaties. PSI represents an about-turn. I don't declare whether my ships carry nuclear weapons or not but you better come clean on it. If you don't, I step on you on suspicion that you carry nuclear weapons. One finds this to a highly arbitrary use of the freedom of the high seas principle. An equally lofty principle of the High Seas is that each state must respect the rights of the others. Each shall exercise its rights with due regard to the rights of others.

For all these reasons PSI is of highly doubtful legality.

Compiled by Tejal Chandan