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Weapons of Mass Destruction Counterproliferation: Legal Issues for Ships and Aircraft

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President Bush outlined a specific plan to counter WMD proliferation in his National Strategy to Combat Weapons of Mass Destruction of December, 2002. The Administration's plan combines efforts aimed at counterproliferation, nonproliferation, and WMD consequence management. The intent, it says, is to eliminate or "roll back" WMD in the possession of certain States and terrorist groups, including potentially the use of force and aggressive methods of interdiction of WMD-related goods, technologies, and expertise. The use of interdiction as a counterproliferation measure appears to be part of a strategy that foresees the U.S. taking "anticipatory action to defend ourselves" against terrorists and rogue States, "even if uncertainty remains as to the time and place of the enemy's attack," and "to detect and destroy an adversary's WMD assets before these weapons are used." A recent refinement of the WMD strategy is the Proliferation Security Initiative (PSI), which would involve cooperation among friendly nations to interdict transfers of restricted weapons and related technologies "at sea, in the air, and on land." However, the Administration has recognized that cooperation may not always be forthcoming, and has intimated that it will act unilaterally, if necessary.

Aspects of this national security strategy raise questions related to the international law of jurisdiction, the law of the sea (which also references airspace), and international civil aviation agreements. The right of States to conduct self defense and law enforcement activities abroad has the potential to collide with the rights of other States to maintain their sovereign integrity and conduct free navigation and commerce. These rights are not absolute. This report provides an overview of the international law of the sea and other agreements as they relate to the permissible range of methods for interdicting WMD-related contraband. After a short summary of the current legal regime for international arms control related to WMD, the report outlines the basic concepts of jurisdiction in international law. Next, the report describes concepts central to the law of the sea, including the division of the world's waters and airspace into "international" and "national" territory, and a description of the rights, duties and limitations that apply depending on where the conduct takes place. The report then turns to the international legal framework limiting the conduct of nations as it applies during times of war and peace, and during what has been called "quasi war."