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Ahoy, WMDs!

Last seen as its government crumbled in 2003, diminutive Liberia has now emerged as a key U.S. ally in the fight against weapons proliferation. In February 2004, the United States signed an agreement with the West African nation that would allow U.S. forces to board and search Liberian-flagged ships suspected of carrying illicit weapons of ...

Last seen as its government crumbled in 2003, diminutive Liberia has now emerged as a key U.S. ally in the fight against weapons proliferation. In February 2004, the United States signed an agreement with the West African nation that would allow U.S. forces to board and search Liberian-flagged ships suspected of carrying illicit weapons of mass destruction (WMD).

The agreement supports the year-old Proliferation Security Initiative (PSI), which the Bush administration launched with 10 other states in May 2003. The initiative aims to intercept shipments of WMD-related materials. Duke University law professor Michael Byers notes that PSI is just the kind of multilateralism the Bush team likes — ad hoc and free from cumbersome institutions.

But trust international lawyers to get in the way. When Spanish commandos forcibly boarded and searched a North Korean ship carrying Scud missiles in the Arabian Sea in December 2002, they ran straight into a legal wall. The commandos had solid authority to board the ship because it was not flying a national flag, but most legal experts believe they had no legal right to seize its cargo. After two days, the ship was allowed to proceed. According to Steven Haines, a law of the sea expert and former officer in the British Royal Navy, even if the cargo had been radioactive, it’s not clear that international law would authorize its confiscation. The high seas are sacred ground in international law. U.S. President George W. Bush was reportedly less than pleased by the legal lacuna.

Enter Liberia, the world’s second largest shipping registry. (Only Panama flags more ships.) Liberia’s consent to searches is a significant step. But the agreement provides only partial legal cover for PSI: States engaged in proliferation may use their own vessels or those of another flagging state. U.S. officials, such as John R. Bolton, the U.S. under secretary of state for arms control and international security, have hinted that interdictions could fit under the broad doctrine of preemptive self-defense — logic that makes some PSI states seasick. Prof. Byers discusses alternatives such as seeking U.N. Security Council authorization to seize illicit cargoes from certain states (North Korea tops most lists), or negotiating a new treaty allowing high seas searches. Others think the best solution is to make the lawyers walk the plank.

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