Peace Archive - Michael Byers

As former White House spokesman 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.

All these developments are positive: The proliferation
of weapons technology is a significant problem and the high seas are the closest thing to the Wild West that exists today...

That admission clearly rankled key members of the Bush administration,
including the President himself, who was described as "a very, very unhappy man." The situation was all the more galling because it was an absence of international law, rather than pre-existing rules, that was impinging on U.S. interests.

John Bolton, undersecretary of state for arms control and international
security, was charged with fixing the legal problem. The result is the
Proliferation Security Initiative (PSI), an effort to secure agreement among
key countries that the high-seas interdiction of vessels and aircraft
believed to be transporting missiles, weapons of mass destruction and
associated equipment can and should be allowed.

Launched by President George W. Bush three months ago at a G8 meeting in Evian, France, PSI now includes 11 countries: Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, the United Kingdom and the United States. Two rounds of talks already have taken place in Madrid and Brisbane; a third round is scheduled to begin in Paris tomorrow.

The rapid progress with PSI indicates that tensions are easing between the
United States, France and Germany. And it will no doubt strengthen other
countries' resolve to apply existing domestic and international law to
control the spread of missiles and weapons of mass destruction -- by
inspecting suspect vessels that come into their ports, for instance, or by
agreeing to searches of their own vessels.

Joint naval exercises in Australia's Coral Sea later this month will mark
the beginning of enhanced intelligence sharing and military co-operation
among PSI countries. All these developments are positive: The proliferation of weapons technology is a significant problem and the high seas are the closest thing to the Wild West that exists today.

Yet the Bush administration probably has an ulterior motive for PSI. As part
of the National Security Strategy released last September, it seeks to
extend the right of self-defence -- which is currently limited to responses
to actual armed attacks and truly imminent threats -- to include preventive action.

A major step toward this larger goal would be securing agreement from key countries on the unilateral interdiction of weapons components that pose no immediate threat. Other PSI states -- led by the United Kingdom, acting on the advice of its Foreign Office lawyers -- have so far refused to endorse that aspect of the initiative. Whether this resistance will be sustained when the negotiations rise to the ministerial level remains to be seen: On previous occasions, Prime Minister Tony Blair has shown little compunction in overruling his own legal advisers when asked to do so by the United States.

We The lawyers and diplomats know that existing multilateral mechanisms are capable of providing the authority necessary to engage in high-seas
interdictions.

For the past 18 months, the 73 parties to the International
Maritime Organization's Convention on the Suppression of Unlawful Acts
against the Safety of Maritime Navigation have been reviewing the scope of that treaty.

With U.S. leadership, it could readily be amended to permit the interdiction
of undeclared weapons shipments. Any country that refused to accept the amended treaty could, if its shipments posed a threat to international peace and security, be made the subject of a United Nations Security Council resolution that provides the necessary stop-and search powers to other states.

The Bush administration has demonstrated no interest in the alternative avenues. Although Mr. Bolton proclaims the intent to expand PSI as "broadly as possible," a number of key states remain on the outside - including Canada, notwithstanding its obvious geographic relevance, its interoperable navy and Prime Minister Jean Chrétien's presence at the meeting where the initiative was launched.

Canada and Russia are the only G8 members not invited to participate, and Canada is the only member of the old G7 to be left out, even though Canada is one of the few countries with recent experience in high-seas interdictions -- and in seeking legal changes to allow such interdictions --
thanks to its energetic efforts in the mid-1990s to save the fish stocks of
the North Atlantic.

Some might see Canada's exclusion as punishment for its having failed to
support the Iraq war. But if this were so, why have France and Germany been included?

Others might see this as an example of the Department of Foreign Affairs having dropped the ball, but the Canadian government has always been very active on law-of-the-sea and arms-control matters: It even hosts and maintains the Web site of the Missile Technology Control Regime.

The most plausible explanation is that the Bush administration has simply
concluded that any representation from Canada would be redundant.

Under the Pentagon's new Northern Command, and with the U.S.-Canada joint planning group now operational at NORAD headquarters in Colorado, not only is Canada's support assured, it is assumed that Washington can speak on its behalf.

Michael Byers is professor of law and director of Canadian studies at Duke University; Matthew Droz is a second-year law student at Duke.

© 2003 Bell Globemedia Interactive Inc. All Rights Reserved.

The contest for ages has been to rescue liberty from the grasp of executive power.
Daniel Webster (1782-1852)
.............................................


	As former White House spokesman 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. All these developments are positive: The proliferation of weapons technology is a significant problem and the high seas are the closest thing to the Wild West that exists today... That admission clearly rankled key members of the Bush administration, including the President himself, who was described as "a very, very unhappy man." The situation was all the more galling because it was an absence of international law, rather than pre-existing rules, that was impinging on U.S. interests. John Bolton, undersecretary of state for arms control and international security, was charged with fixing the legal problem. The result is the Proliferation Security Initiative (PSI), an effort to secure agreement among key countries that the high-seas interdiction of vessels and aircraft believed to be transporting missiles, weapons of mass destruction and associated equipment can and should be allowed. Launched by President George W. Bush three months ago at a G8 meeting in Evian, France, PSI now includes 11 countries: Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, the United Kingdom and the United States. Two rounds of talks already have taken place in Madrid and Brisbane; a third round is scheduled to begin in Paris tomorrow. The rapid progress with PSI indicates that tensions are easing between the United States, France and Germany. And it will no doubt strengthen other countries' resolve to apply existing domestic and international law to control the spread of missiles and weapons of mass destruction -- by inspecting suspect vessels that come into their ports, for instance, or by agreeing to searches of their own vessels. Joint naval exercises in Australia's Coral Sea later this month will mark the beginning of enhanced intelligence sharing and military co-operation among PSI countries. All these developments are positive: The proliferation of weapons technology is a significant problem and the high seas are the closest thing to the Wild West that exists today. Yet the Bush administration probably has an ulterior motive for PSI. As part of the National Security Strategy released last September, it seeks to extend the right of self-defence -- which is currently limited to responses to actual armed attacks and truly imminent threats -- to include preventive action. A major step toward this larger goal would be securing agreement from key countries on the unilateral interdiction of weapons components that pose no immediate threat. Other PSI states -- led by the United Kingdom, acting on the advice of its Foreign Office lawyers -- have so far refused to endorse that aspect of the initiative. Whether this resistance will be sustained when the negotiations rise to the ministerial level remains to be seen: On previous occasions, Prime Minister Tony Blair has shown little compunction in overruling his own legal advisers when asked to do so by the United States. We The lawyers and diplomats know that existing multilateral mechanisms are capable of providing the authority necessary to engage in high-seas interdictions. For the past 18 months, the 73 parties to the International Maritime Organization's Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation have been reviewing the scope of that treaty. With U.S. leadership, it could readily be amended to permit the interdiction of undeclared weapons shipments. Any country that refused to accept the amended treaty could, if its shipments posed a threat to international peace and security, be made the subject of a United Nations Security Council resolution that provides the necessary stop-and search powers to other states. The Bush administration has demonstrated no interest in the alternative avenues. Although Mr. Bolton proclaims the intent to expand PSI as "broadly as possible," a number of key states remain on the outside - including Canada, notwithstanding its obvious geographic relevance, its interoperable navy and Prime Minister Jean Chrétien's presence at the meeting where the initiative was launched. Canada and Russia are the only G8 members not invited to participate, and Canada is the only member of the old G7 to be left out, even though Canada is one of the few countries with recent experience in high-seas interdictions -- and in seeking legal changes to allow such interdictions -- thanks to its energetic efforts in the mid-1990s to save the fish stocks of the North Atlantic. Some might see Canada's exclusion as punishment for its having failed to support the Iraq war. But if this were so, why have France and Germany been included? Others might see this as an example of the Department of Foreign Affairs having dropped the ball, but the Canadian government has always been very active on law-of-the-sea and arms-control matters: It even hosts and maintains the Web site of the Missile Technology Control Regime. The most plausible explanation is that the Bush administration has simply concluded that any representation from Canada would be redundant. Under the Pentagon's new Northern Command, and with the U.S.-Canada joint planning group now operational at NORAD headquarters in Colorado, not only is Canada's support assured, it is assumed that Washington can speak on its behalf. Michael Byers is professor of law and director of Canadian studies at Duke University; Matthew Droz is a second-year law student at Duke. © 2003 Bell Globemedia Interactive Inc. All Rights Reserved. The contest for ages has been to rescue liberty from the grasp of executive power. Daniel Webster (1782-1852) ............................................. << back
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