The U.N. Security Council passed a resolution today which calls for U.N. member states to inspect all ships entering or leaving North Korea if there is a reasonable suspicion that the cargo contains banned nuclear or missile technology. Now, this mission will fall on a little know body, the PSI (Proliferation Security Initiative). The PSI, an activity launched in 2003, meets all the criteria progressive people have been promoting for a new international approach to the exercise of power--yet they are curiously mum about the merits of putting the PSI to work.

The PSI works mainly by sharing intelligence among the participating states, who patrol the seas and interdict ships that are suspected of carrying WMD, their delivery systems, and related materials

The work of the PSI is illustrated by the following development. Although it involves a nation that is not an official participant in the PSI, the operation reflects the type of cooperation the Initiative relies on. In August 2003, US intelligence indicated that a North Korean ship, the Pegaebong, was bound from Thailand to North Korea with a cargo of phosphorus pentasulfide, a precursor for chemical weapons and possibly rocket fuel. Taiwanese authorities were informed of the shipment, they searched the ship when it docked in their Kaohsiung Harbor, and they confiscated the cargo.

The PSI is multilateral. Its members include more than ninety nations, including the United Kingdom, France and Russia. The mission of the PSI may seem legitimate on the face of it, especially if the ban on the dissemination of nuclear contraband were applied to all nations. However, the means of enforcing the ban raise serious questions about its legitimacy in terms of transnational normativity, international law, and governing treaties.

For instance, one may argue that its searches violate the right to innocent passage in the territorial waters of the nations of the world. However, the UN Convention on the Law of the Sea, in Article 19, provides circumstances under which the passage of a ship is considered "prejudicial to the peace, good order or security of the coastal State." Perhaps the most relevant of these are where the ship engages in "any threat or use of force," "the launching, landing or taking on board of any military device," or "the loading or unloading of any commodity...contrary to the...laws and regulations of the coastal State."

To further square the PSI with international law, it draws heavily on bilateral agreements between the US and countries such as Liberia and Panama, known as flag of convenience states, whose ships carry large portions of the world's total tonnage. The agreements allow the US to inspect these ships based on very short notification of the government involved--or on the basis of a priori understanding. For instance, in February 2004, the United States and Liberia signed a mutual boarding agreement whereby each nation is authorized to inspect naval vessels registered under the other country's flag upon suspicion that the vessel is transporting weapons of mass destruction, delivery systems, or related items. By 2007, the US had formed similar agreements with Panama, Belize, Croatia, Mongolia, the Bahamas, Malta, Cyprus, and the Marshall Islands--other nations in which many of the world's ships are registered.

Furthermore, UN Resolution 1540, passed on April 28, 2004, declares that "all states shall (1) refrain from providing support to nonstates seeking WMD; (2) adopt laws prohibiting nonstate actors from acquiring WMD; and (3) take measures to prevent proliferation." It is widely considered to provide a sort of legal imprimatur to the PSI. A few question if this is the case, arguing that the UN considered including a specific reference to the PSI, and decided not to do so. However, the text stands on its own--any straight reading of it makes it seem as though it were tailor-made for the PSI, and surely there is no hint in this resolution of opposition to the Initiative. Indeed, the resolution has been cited as being "complementary" to the PSI.

I do not claim that the legitimacy of the PSI meets every standard of international law, or that no questions can be asked about its purpose or its modus operandi. However, it seems clear that considerable efforts were made to form and operate the PSI on a multilateral basis in ways that are compatible with international law, treaties and UN resolutions.

True, everyone would much prefer to solve all international conflicts with the mere use of soft power. And if North Korea can be stopped from proliferating by being granted food, fuel, development aid, prestige, and assurances against forced regime change by outsiders--this is surely a preferred course. However, if soft power fails, activating the PSI seems justified by all the criteria progressive people have promoted. They should feel free to say so.

For more discussion see Amitai Etzioni's article "Tomorrow's Institution Today: The Promise of the Proliferation Security Initiative" in the May/June 2009 Foreign Affairs, here. Etzioni is a professor of international affairs at The George Washington University and the author of Security First (Yale, 2007). He can be contacted at icps@gwu.edu. www.gwu.edu/~ccps/securityfirst.html