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Valencia, Mark J --- "The Proliferation Security Initiative: Should Malaysia Join?" [2005] MarStudies 13; (2005) 142 Maritime Studies 14

• The Proliferation Security Initiative: Should Malaysia Join?

The Proliferation Security Initiative: Should Malaysia Join^[1]

Mark J. Valencia^[2]

Malaysia is being pressed by the United States to join the Proliferation Security Initiative (PSI), but joining the PSI has both advantages and disadvantages for Malaysia.

The purpose of the PSI, proposed and led by the Bush Administration, is to prevent weapons of mass destruction (WMD), related materials and their means of delivery from entering or leaving states of proliferation concern. Since Malaysia has territorial and Exclusive Economic Zone waters in the busy Malacca Strait and has been implicated as a source of WMD ‘related materials’ (centrifuges that were destined for Libya), its participation would be particularly desirable from the US viewpoint. Original PSI members included Australia, France, Germany, Italy, Japan, The Netherlands, Poland, Portugal, Spain, the United Kingdom and the United States. They were subsequently joined by Canada, Denmark, Norway and now Singapore. States of proliferation concern include North Korea, Iran, Sudan, Syria and Cuba.

On 3 and 4 September 2004, the eleven original coalition countries met in Paris and agreed to abide by a set of PSI interdiction principles. These ‘principles’ are not legally binding but are purported to be a step in the implementation of a UN Security Country Presidential Statement of January 1992 which holds that the proliferation of all WMD constitutes a threat to international peace and security and underscores the need for member states to prevent proliferation.

To summarise, the Interdiction Principles commit the PSI participants to:

• undertake effective measures to interdict the ‘reasonably suspected’ transfer or transport of WMD from or to ‘states or non-state actors of proliferation concern’ at the request of a member state that demonstrates ‘good cause’;

• streamline procedures for rapid exchange of relevant information and maximise coordination for interdiction efforts;

• review and strengthen national legal authorities and work to strengthen international law to support interdiction efforts; and

• take specific action to prevent WMD proliferation by intercepting ships and aircraft carrying suspect cargoes within or outside their national jurisdiction.

The strategic rationale for the PSI is multifaceted and targets both terrorist attacks by non-state actors and states ‘of proliferation concern’. The United States perceives that its defence must be preemptive to prevent terrorist attacks such as that on the USS Cole and the French tanker Limburg in Yemeni waters, and those purportedly planned by Al-Qaeda operatives against a US naval ship in the Strait of Malacca or in a Malaysian or Indonesian port. The United States also feels that the existing web of export controls designed to end the black market in WMD has failed, and therefore the PSI is needed as a deterrent to WMD traders, or at least to make the trade more difficult and less profitable.

While laudable in theory, there are many problems in practice. The definitions of key terms in the PSI Interdiction Principles are ambiguous, e.g. ‘means of delivery’, ‘related materials’, ‘good cause’ and ‘reasonably suspected’. The first two terms could include legitimate sales of weapons or dual use materials. The second two terms require considerable elaboration considering the failures in the ‘war on terrorism’ and regarding WMD in Iraq.

Perhaps more problematic is the question of the ‘targets for interdiction’. The definition of ‘state or non-state actors of proliferation concern’ is any country or entities that the PSI participants say are engaged in proliferation. Will this be applied fairly or only to certain countries designated by the United States as ‘of concern’? What if it is applied to friends of Malaysia like China, India or Pakistan?

The PSI also places several significant obligations on its participants. They must ‘dedicate appropriate resources and efforts to interdiction operations and capabilities’. They must take specific actions in support of interdiction efforts, including stopping and searching in their internal waters, territorial seas or contiguous zones vessels or aircraft that are reasonably suspected of transporting such cargoes. And they must do this at the request and ‘good cause’ shown by another state, most likely the United States. If the suspicion or cause proves unfounded, the interdicting state would presumably be liable for any cost or damage incurred by the target vessels or aircraft, including to its cargo. Given its other priorities, can Malaysia afford to fulfil these obligations?

Then there is the matter of the sharing and control of sensitive intelligence. There will have to be a careful trade off between providing sufficient intelligence to show ‘good cause’ and protecting intelligence methods and sources. But given past US intelligence failures, will these nations be willing to act on skimpy or ambiguous intelligence?

Moreover, there are several international legal issues. Navigation in the territorial waters of any coastal state is subject to the innocent passage regime, i.e. it is allowed as long as it is not prejudicial to the coastal state’s peace, good order or security. Although specific non-innocent acts are listed in the 1982 UNCLOS Article 19, transporting WMD components or missiles are not among them. And the 1982 UNCLOS Article 23 (at US insistence) explicitly gives ships carrying nuclear weapons the right to innocent passage. Thus the coastal state would probably have to demonstrate that the vessel is threatening its security due to the presence on board of WMD destined for persons intending to undertake terrorist activities in areas under its jurisdiction, or argue that, because the recipient of the WMD is unknown, it has to assume they are bound for an enemy. A question for Malaysia is ‘as a participant of PSI, would Malaysia be expected to invite others, e.g. United States or Singapore, to assist her in interdicting WMD or terrorists in her territorial waters?’

Second, it is not illegal for non-signatories to the Nuclear Non-Proliferation Treaty (NPT) or the Missile Control Technology Regime to ship nuclear materials or missiles to each other. Nor is it illegal to trade commercially in explosives and conventional arms. If a country uses its own properly flagged ships, shipments of arms, including nuclear materials, or missiles that could deliver nuclear weapons would be protected by international law just as US and others’ arms shipments are so protected. Would Malaysia be asked to violate what it perceives to be international law?

There is also a deeper-seated concern among developing countries that the PSI, if carried to extreme, could further undermine the concept of the sovereignty of nations. The sovereignty of a ship, particularly a government ship, is conceptually akin to that of an embassy in a foreign land. Indeed, the PSI may become part of the new Bush doctrine of pre-emptive defence, i.e. the right to strike anywhere, anytime, to prevent the spread of WMD to ‘dangerous’ countries or groups. The problem of course is that other countries may also embrace this doctrine for their own purposes, such as North Korea, Australia, India, Russia (vis-à-vis the Chechens) or Japan (vis-à-vis North Korea). But such action may not be commensurate with Article 2 of the UN Charter which ‘prohibits the threat or use of force against the territorial integrity or political independence of any state…’ Other possible repercussions of the PSI include the risk that some states will seek to acquire WMD sooner, that friends will become alienated and that international arms control agencies and agreements, as well as the United Nations itself, will be weakened. This would not be in Malaysia’s interest.

On the global level, the PSI raises numerous questions regarding its legality and effectiveness, as well as implications for international relations. Having one set of standards for US friendly nations and another for arbitrarily declared rogue states contradicts the concept of sovereign equality – the principle that all states are entitled to the same rights and protection in international law. This is a principle that Malaysia has long upheld and under former Prime Minister Mahathir, quite vociferously.

Thus, the PSI presents a particular dilemma for Malaysia. If it becomes an active participant, it would appear to both foreign and domestic audiences to be doing the bidding of the United States. Unless its actions are kept confidential, this could make the government the target of actions by foreign extremist groups and possibly undermine it in its ideological battle with fundamentalists and extreme nationalists. It also would place obligations on Malaysia to act at the request of another PSI member. If the United States and other PSI members such as Singapore declare a certain nation or group to be ‘of proliferation concern’, Malaysia may have to act against its vessels or aircraft. In addition to dealing with the resultant foreign policy issues that are sure to arise due to such action, by doing so Malaysia may become party to an undermining or re-interpretation of international law, sovereignty and sovereignty equality that could one day be used against it.

On the other hand, if Malaysia does not join, it risks the enmity and possible behind-the-scenes sanctions by the United States. It may also risk unilateral actions by the United States and other PSI members such as Singapore in the Strait – in its EEZ, and possibly even its territorial waters.

So far, Malaysia has chosen a middle ground in which it supports the PSI in principle and will facilitate its implementation, but it will not become a full-fledged member. In other words, it will address the issues on a case by case basis and reserve for itself the decision to undertake or allow interdiction by others based on an evaluation of the intelligence and ‘other considerations’. This way, it retains sovereignty over its territorial waters and puts off a decision for the time being. But in a world in which the major power has a policy of ‘you are either with us or against us’, the pressure to join the PSI will continue to mount.

^[1] This paper was first published in the MIMA Bulletin

^[2] Visiting Fellow, Maritime Institute of Malaysia