Proliferation Security Initiative

The Proliferation Security Initiative (PSI, 확산방지구상/擴散防止構想) is a global effort that aims to stop trafficking of weapons of mass destruction (WMD, 대량살상무기/大量殺傷武器), their delivery systems, and related materials to and from states and non-state actors of proliferation concern.

Launched by U.S. President George W. Bush in May 2003 at a meeting in Kraków, Poland, the PSI has now grown to include the endorsement of 102 nations around the world, including Russia, Canada, the United Kingdom, Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Singapore, New Zealand, Republic of Korea and Norway.

Key words
PSI, WMD, UN Security Coucil resolution, IMO, SUA Convention

Legal basis
The legal basis of the PSI operation cannot be guaranteed by the existing international legal regime. For the PSI operation on the high seas, intervention in the freedom of navigation of the foreign ships carrying WMD will be contrary to the freedom of the high seas principle which is established by existing international law. Furthermore, it cannot be justified by the universal jurisdiction regime like as controlling the piracy or illicitly trafficking in narcotic and psychotropic drugs.

The WMD carrying ships navigation through the territorial sea cannot be intercepted by enforcement of coastal state's right of suspension of innocent passage. And the active control on the WMD carrying ships within the port by the port state also cannot be harmonized with the basic doctrine of the port state control system.

As the results of making efforts to secure lawfullness by United Nations and the United States, to overcome the legal limitation concerning counter-proliferation of WMD, the normative force of the PSI system was strengthened more and more by adoption of the UN Security Council resolutions concerned, revision of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention, 항해안전에 대한 불법행위방지 협약) by the Internation Maritime Oorganization (IMO, 국제해사기구), and conclusion of bilateral agreements for the purpose of effective PSI operations between the United States and 10 states.

As a result, it is necessary for Republic of Korea to improve the domestic legal system to back up the PSI operations against North Korea in and around the sea area of Korea Peninsular.

Domestic legislation wanted
The international community has been doubtful that North Korea intends to export WMD to rogue countries. Such suspicion was confirmed by the SeoSan-Ho case (see below), which served as a motive to launch the U.S.-led PSI. Since the PSI program, one of the non-proliferation of WMD efforts, aims to interdict international proliferation of WMD via the sea and air, there is the potential to contravene the traditional law of sea, such as "the right of innocent passage" and "the freedom of high seas", in the course of executing PSI interception measures.

South Korea joined the PSI program and declared for exerting all possible efforts to prevent the proliferation of WMD in May, 2009. As South Korea is a neighbor to North Korea, which is the greatest threat of global security, there is a fair chance that South Korea could encounter the challenge of PSI interception against North Korea. To enforce the PSI lawfully, it's very essential to understand the international law regime concerning PSI and to implement domestic legislation accordingly. But South Korea has not legislated the fundamental law for the PSI, and the contents of domestic law for the PSI operation are dotted in various laws and regulations.

A legal basis for PSI is the UN Security Council resolutions. When it comes to the interception of the transportation of WMD in the sea, more accurate approach is needed in conformity with the law of sea. In particular, since South Korea has been under the Korean Peninsular armistice agreement with North Korea, it's necessary to consider the armistice agreement and arrangements between the South and the North in the implementation of the PSI interception against North Korea.

According to the domestic law of South Korea, the Korea Coast Guard and the Korea Customs Service are in charge of implementing PSI interception and search operation respectively. The transportation of WMD will be treated as criminal conduct under Acts concerning the Non-proliferation of WMD in South Korea. Granted that there is limited flexibility in criminal procedure, another administrative procedure, such as 'Sofertiger Zwang' shall be instituted in the PSI interception and search operation.

In foreign legislation case for the PSI, there are a few model laws, which stipulate criminal procedure and administrative procedure for the PSI interception and search operation at the same time. From this point of view, this research overviews the international regime and domestic legislation for the implementation of non-proliferation and PSI, and suggests future theory of legislation for PSI implementation.

Critical Capabilities and Practices
Endorsing states are developing a formal set of tools called Critical Capabilities and Practices (CCP) for use by all PSI partners to aid in their ability to interdict WMD. An ongoing effort, the CCP are organized into four elements:

Element 1. Prohibiting Proliferation-Related Conduct – Having in place appropriate legal authorities to prohibit and prevent proliferation activity within and across one’s border

Element 2. Inspection and Identification – The ability to effectively inspect air, land, and sea cargos and to identify proliferation-related materials

Element 3. Seizure and Disposition – The ability to undertake appropriate actions to seize and dispose of interdiction-related materials

Element 4. Rapid Decision Making – The development of decision-making practices that facilitate timely government responses to interdiction scenarios

Examples of these capacity building tools include:
 * Model Legislation
 * Commodity identification guides and associated training
 * Legal analyses of UN Security Council resolutions
 * Expert briefings on inspection methodologies
 * Best practices associated with information sharing and decision-making procedures

Interdictions relating to North Korea
The PSI has no central body or secretariat and is not a coordinator of real-world interdictions. It is a political commitment, a flexible arrangement of international cooperation and is consistent with domestic and international legal authorities. Endorsing states seek a robust capacity to conduct interdictions that usually involve only two or three governments.
 * On December 9, 2002 the SPS Navarra intercepted and boarded the freighter SeoSan-Ho, several hundred miles southeast of Yemen at the request of the U.S. government as part of Operation Enduring Freedom. The SeoSan, sailing without a flag, attempted evasive action, so the Navarra after firing four warning shots into the water at the bow of the ship and rifle fire on the ship's hull, getting no answer, fired on a cable crossing the SeoSan from bow to stern to remove obstacles and proceeded to approach it from a helicopter. The ship from North Korea was carrying a cargo of 15 Scud missiles, 15 conventional warheads with 250 kg of high explosive, 23 fuel tanks of nitric acid and 85 drums of chemicals. Yemen subsequently reported that the cargo belonged to them and protested against interception, ordering the materials returned. Although this incident occurred prior to the establishment of the PSI, it is cited as being a major reason for the PSI's establishment.
 * In June 2009, the North Korean vessel Kang Nam believed to be headed to Myanmar turned around after being tracked by the US Navy. In the same timeframe, two Japanese and one Korean man were arrested for trying to import WMD technology to Myanmar. After this incident, North Korea claimed that it would engage in military action in retaliation for any searching of its ships.
 * On September 22, 2009, South Korea seized North Korean containers transiting the port of Busan which contained protective clothing used to protect against chemical weapons.
 * In December 2009, Thailand stopped a North Korean shipment of mixed conventional arms and missile technology, based on information from US intelligence, which had been tracking the shipment since it departed Pyongyang. The ultimate planned destination of the materials was not determined, but it was thought to be heading towards Iran (to eventually arm Hezbollah or Hamas) or potentially Pakistan. Months later, in February 2010 South Africa ordered the return of a shipment of North Korean military equipment to the port of Durban, ostensibly declared as heading to the Congo Republic.