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Fact Sheet Bureau of Nonproliferation Washington, DC May 24, 2004 Proliferation Security Initiative Frequently Asked Questions (FAQ)
Question: What is PSI? A: The spread of weapons of mass destruction, their delivery systems, and related materials represents a fundamental threat to global stability, security, and peace. In December 2002, the United States released its "National Strategy to Combat Weapons of Mass Destruction," which called for a comprehensive approach to counter the threat of these weapons getting in the hands of hostile states and terrorists. In this context, President Bush announced on May 31, 2003, the Proliferation Security Initiative (PSI), which is an effort to enhance and expand efforts to prevent the flow of WMD [weapons of mass destruction], their delivery systems, and related materials to and from states and non-state actors of proliferation concern. This initiative reflects the need for a more dynamic and active approach to the global proliferation problem. It reflects the reality that proliferators are actively and aggressively seeking WMD, using techniques that frequently thwart export controls and enforcement measures. PSI envisions partnerships of states working in concert, employing their national capabilities to develop a broad range of legal, diplomatic, economic, military, and other tools to interdict shipments of such items. Question: How were PSI core countries chosen? A: The initial eleven countries all have demonstrated strong support for nonproliferation; have been involved in efforts to prevent proliferation, including active interdiction efforts; and are located in geographically important locations in relation to proliferation pathways. In order to commence the initiative, meeting with this small and committed group has proven efficient and productive. Question: Will there be regular, organized meetings on PSI to raise issues of concern and refine details? A: The United States does not envision or support regular meetings of the PSI core countries. That said, it may be useful or necessary to have various PSI participating states meet periodically to exchange information or to refine details about the initiative. In addition, the United States expect regular meetings of expert working groups (operational, intelligence and political), including through regional meetings and activities. Question: What steps should be taken to express interest in the PSI? Would expression of interest mean an invitation to PSI meetings? A: Countries that support the PSI and the Statement of Interdiction Principles are encouraged to make that known officially to the United States and/or other PSI participants. Countries with the ability to make effective contributions that are interested in participating in PSI activities should also make that known. Rather than view PSI meetings as the key, the PSI core countries encourage other states to consider PSI as a series of activities, based on concrete and practical cooperation and coordination between and among states. Question: Who determined the PSI Statement of Principles? A: The Statement of Interdiction Principles (SOP) was agreed upon among the initial eleven PSI countries on September 4, 2003. The United States believes the SOP is a straightforward set of principles that other countries should be able to support. Responses from more than 50 countries worldwide that have studied the Principles indicate that they share this view. As a practical matter, it would not have been possible to develop the PSI to this point in a way that allowed it to come forward quickly, yet still directly involve all interested states. While the Principles have been agreed, the PSI is a dynamic initiative. If countries have ideas that are not reflected in the SOP that would contribute to a more robust, effective initiative, the United States wants to hear from them. In that way, the PSI is an initiative open to contributions from all states that want to support interdiction efforts. Question: Which nation leads and coordinates a PSI action? A: Each interdiction case will evolve differently. For example, a country might provide tip-off information, and seek help from another PSI participant in acting to investigate and, if warranted, stop a shipment. Those states that need to be involved will coordinate their activities only among those countries involved with a particular interdiction. Question: How does PSI relate to existing conventions and other nonproliferation treaties or regimes? A: The United States and other countries that work to prevent proliferation have a robust toolbox -- including such measures as nonproliferation treaties, multilateral export control regimes, national export controls and enforcement measures. The PSI will build on such existing tools to prevent The proliferation of WMD, their delivery systems, and related materials. It does not replace other nonproliferation mechanisms, but reinforces and complements them. Question: What is the relationship between PSI and formal nonproliferation structures (e.g., MTCR, OPCW, NPT)? A: The PSI is an activity, not an organization. PSI activities will be consistent with domestic and international legal frameworks, many of which in turn implement existing nonproliferation structures. For example, the PSI will complement existing nonproliferation export control regime efforts to identify and prevent the export of certain commodities to WMD and missile programs of proliferation concern. It seeks to complement and work within the limits of established domestic and international law, including nonproliferation treaties. Question: How does the PSI fit with the Container Security Initiative (CSI)? A: The PSI and the CSI are complementary, in that both seek to enhance our ability to prevent shipments of problematic cargo. However, the Container Security Initiative is directed at maritime cargoes that are being shipped to the United States; PSI seeks to address cargoes at sea, in the air, and on land being shipped to states or non-state actors of proliferation concern. CSI is focused on ensuring adequate capabilities exist at major ports to screen cargo containers and ensure they do not contain problematic items. PSI efforts would include action against shipments en route, not only when they might arrive in a port. Question: What does the United States want from other countries? A: The United States wants other countries to support PSI and more proactive and deliberate actions to impede and stop shipments of WMD, delivery systems, and related materials going to or from states or non-state actors of proliferation concern. The United States seeks other states' support for the Statement of Interdiction Principles and their thoughts on the contributions they will be able to make, and how they might contribute to further operationalizing the initiative. If states have the necessary legal authority to take the steps outlined in the SOP, the United States hopes that they will agree to support the PSI and cooperate in interdiction efforts. If states do not have all or any of the necessary legal authorities, we hope they will take steps to improve their national legal authority so that they can assist in interdiction efforts. If states have assets they can contribute to interdiction efforts, such as operational or informational, the United States hopes that they will be willing to use these assets in support of PSI efforts. Ultimately, the United States wants states to establish the practical basis to cooperate on interdiction efforts. It may well be that a state that indicates interest in the PSI is never asked to help on interdictions, simply because a case requiring that state's help does not arise. However, states should be ready for quick and effective action in the event that they can be helpful in preventing a shipment of proliferation concern. Question: What are the criteria for "joining" the PSI (i.e., can states outside nonproliferation regimes join)? A: The PSI is not an organization that has "members." It is an activity under which countries around the world will cooperate and coordinate more closely on efforts to prevent shipments of WMD, delivery systems and related materials. The United States welcomes the support of all states for PSI, particularly flag, coastal, or transshipment states, or those likely to have suspect flights in their airspace, that may have an especially important role to play in preventing such shipments. Question: What is the relationship between PSI and international organizations, such as the UN? A: The PSI was not envisioned as a formal organization with a budget and headquarters, but rather a collection of interdiction partnerships among interested states taking steps consistent with their respective national legal authorities and international law and frameworks. Question: Will there be a formal mechanism for coordination with the United Nations? A: PSI activities will be undertaken by states consistent with their national authorities and participants have not sought to create any new type of formal mechanism for regular coordination with the UN. That said, the Unites States believes that it will be useful to keep all relevant international bodies such as the UN informed of PSI developments. It is, of course, true that states may report to the UN or other international bodies appropriate information Question: What legal authorities exist for interdiction actions? A: PSI actions will be consistent with existing national legal authorities and international law and frameworks. There already exists a large body of authority for undertaking interdictions, such as those involving actions by coastal states in their territorial waters, or by flag states of vessels operating on the high seas under their flags. There is of course also authority under international law for states to take actions with respect to their land and airspace. States also have a range of authorities under their domestic laws that can be used to help achieve the goals of the PSI. In the case of the United States, for example, our export control laws contain "catch all controls" that could provide a basis under U.S. domestic law for the U.S. to detain and prevent shipments of WMD, delivery systems, and related materials from the United States if such shipments are destined for end-users or end-uses of proliferation concern. Indeed, PSI anticipates a large role for national export control and law enforcement agencies; the ability of states to prevent proliferation starts with their national legal authorities and their ability to enforce those authorities. Question: What changes are contemplated to existing law? A: The United States is working first to understand the range of international and collective national legal authorities currently available to states for interdiction actions. This will help us better assess what actions might be useful, and how they might be implemented, to support the objectives of the PSI. We are also working to identify actions that can be taken within the structure of existing laws, such as in connection with the boarding agreements that the United States is planning to pursue with flag states, which will strengthen the legal basis for acting to stop the flow of WMD-related items as cases arise. Certain countries, in responding to the U.S. approach on PSI, have already made clear that they will be seeking to make changes to their own national legal authorities to allow them to better support PSI efforts. The United States encourages such actions, and is ready to assist countries to enact stronger laws to support nonproliferation efforts. Question: Is there an intent to use UN Security Council resolutions on terrorism as an international legal basis for PSI actions? A: The Statement of Interdiction Principles states that activities will be undertaken consistent with national legal authorities and relevant international law frameworks. If an activity is authorized under a UNSC resolution, then it could be cited by a PSI participant as authority for its participation in an interdiction. Participation in PSI efforts is voluntary. If a state believes it does not have the legal authorities to act in a specific action, it can decline to participate. Question: Will PSI affect legitimate dual-use commerce? A: PSI is not aimed against legitimate commerce, dual-use or otherwise. It seeks to address efforts by states or non-state actors of proliferation concern to ship or receive WMD, delivery systems, or related materials. If the United States has adequate information that a shipment is destined for an end-use or end-user of such proliferation concern, we will work to stop that shipment. PSI does not envision stopping and inspecting every shipment that might involve items that could be used in a WMD- or missile-related proliferation program; rather the United States intends to take action based on solid information. Legitimate dual-use commerce will very rarely be affected by PSI. Question: What are the full ramifications under international law of air and sea interdictions in international waters and airspace? A: There are a variety of circumstances under which states may cooperate to prevent transfers, including, most notably, cases in which a flag state is cooperating in efforts to prevent use of its flag vessels for transfers, or enforcing its domestic law in its territory, territorial sea, or airspace. The PSI Statement of Principles is explicit that PSI activities will be undertaken consistent with national legal authorities and relevant international law and frameworks. Question: What are modalities and legal ramifications in cases of interdiction of vessels flying "flags of convenience?" A: PSI actions will be taken consistent with existing national legal authority and international law and frameworks. This includes relevant international legal principles relating to boarding of vessels on the high seas. In the case of interdiction of vessels flying flags of convenience, the consent of the flag state would ordinarily provide a clear basis for a boarding on the high seas under international law. Question: Can interdiction occur on the high seas? A: Yes. International law recognizes several bases under which PSI activities may be taken against vessels on the high seas. For example, consent of a flag state could provide a clear legal basis to allow the boarding of vessels being used to transport WMD, delivery systems, or related materials to states or non-state actors of proliferation concern. Question: What is the status of cargoes following seizure? How will determination on final disposition of seized cargoes be made? A: Disposition will depend on the precise circumstances of particular cases. Question: Does the initiative alter how participating countries implement international law? A: PSI actions will be taken consistent with existing international law and frameworks. The PSI statement of principles highlights this point. Question: How does PSI relate to other "interdiction" efforts, such as counternarcotics? A: To the extent that efforts in other areas – such as the prevention of trafficking in narcotics – have developed procedures that may be useful models for PSI efforts, the United States is considering how these can be adapted to support our efforts. Question: Are provisions being made to provide technical assistance to countries that currently lack capabilities to contribute fully to PSI efforts? A: There are no formal provisions within PSI being made to provide training and assistance to countries in order to improve their capabilities to support PSI actions. That said, the United States would consider such requests on a bilateral basis in the context of existing assistance and cooperation programs. Question: Will PSI entail new channels of communication or will existing channels suffice? A: To the extent that channels of communication exist to pass or receive information, the United States envisions that those channels will continue to be used. Where no effective channels for communication exist, they will need to be established. Question: What would be the step by step process of boarding and seizing vessels in international waters? Would flag states be consulted first? Would PSI participants offer blanket allowances for boardings? A: Paragraph 4(c) of the PSI statement of principles specifically contemplates boardings based on consent. Different states could arrange modalities for providing that consent (e.g., on a case-by-case basis, on a blanket basis, or on some other basis) as they best see fit. Question: Would non-PSI countries be subject to boardings and seizures? A: PSI is not focused on countries but on shipments to states and non-state actors of proliferation concern. Vessels of a state would be boarded only to the extent consistent with national legal authorities and international law, for example, upon gaining the consent of a state to board one of its flagged vessels on the high seas. Any case involving a vessel carrying WMD, delivery systems, or related materials to states or non-state actors of proliferation concern could be a potential candidate for our seeking such consent, regardless of whether or not the flag state is a PSI member. Question: Will there be mechanisms to verify the reliability of intelligence used for interdictions? How will information shared be verified for accuracy? A: As is currently the case, the United States only pursues interdiction efforts when we believe there is a solid case for doing so. This is a judgement that must be made by senior level leadership in each PSI participant's government. Question: How will information be transmitted among PSI participants? A: Each state that seeks to cooperate with PSI will be asked to identify an appropriate point of contact for sharing of information, in the event a specific interdiction effort requires their active efforts/support. However, sensitive information on specific interdiction cases will ordinarily be shared only with those states involved in the actual interdiction effort. There is no intent to make such intelligence information available to other PSI countries. Question: Is there a plan for multilateral intelligence sharing to facilitate PSI efforts? A: No. The United States does not envision multilateral sharing of specific intelligence. Question: What data sharing and data privacy protection will be put in place to coincide with national data privacy laws? A: The United States has not identified any such changes needed under our laws. Each state would, of course, be free to modify its own laws if it thought doing so was necessary. Question: How will PSI efforts be funded? A: Each country will be responsible for funding its own efforts in support of the PSI. That said, the United States wants to make sure that countries have the capacity to take effective action, and would not rule out the possibility of offering assistance to certain countries to help them develop more effective law enforcement or other such capabilities in support of PSI actions -- just as the U.S. and other countries are already doing. Question: What constitutes a "country of concern?" Would failure of a state to join a nonproliferation regime automatically qualify it as a state of concern? A: Paragraph one of the PSI Statement of Interdiction Principles contains a definition of "states or non-state actors of proliferation concern," which is: "States or non-state actors of proliferation concern’ generally refers to those countries or entities that the PSI participants involved establish should be subject to interdiction activities because they are engaged in proliferation through: (1) efforts to develop or acquire chemical, biological, or nuclear weapons and associated delivery systems; or (2) transfers (either selling, receiving, or facilitating) of WMD, their delivery systems, or related materials." The United States believes this definition goes as far as it is necessary to go in defining what constitutes a "state of proliferation concern" for PSI. The basis for considering a state "of proliferation concern" is not whether or not a state has joined the multilateral nonproliferation regimes. Question: Can a party to the NPT (Nuclear or Non-nuclear Weapons State) join in seizing nuclear materials without violating its NPT commitments? A: Yes, NPT parties can be a part of an effort to seize nuclear materials in appropriate circumstances. As part of a PSI action, other partners may be called upon to provide technical, security or legal assistance in particular cases. Such states would of course then need to abide by their obligations under the NPT with respect to disposing or safeguarding of such materials. Question: What is the definition of "good cause?" A: In cases involving suspected shipments of WMD-related items to states and non-state actors of proliferation concern, the SOP calls upon states to take action to board their flag vessels or deny transit rights to aircraft over their airspace at the request of other states and with "good cause shown." In responding to such a request, each state will need to decide for itself whether good cause has been shown; i.e., each state will need to decide for itself whether the information provided by the requesting state warrants acceding to the request. |
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