The Necessity to Assess Proliferation Security
Initiative’s Implication on International Trade Law
Lee, Jae-Min*
Proliferation Security Initiative (“PSI”) is an international cooperation network to address the problem of the spread of goods and technologies that can be utilized in the production of Weapons of Mass Destruction (“WMD”) by some risky states. As its title connotes, it is not a treaty but instead simply a “cooperation network,” under which participating states take necessary steps voluntarily to deter international transportation of WMD related materials and personnel within their respective maritime jurisdictions. As of today, 14 states are participating in the network.
Given the somewhat aggressive nature of the activity envisioned by the PSI, from its inception the legality of the PSI under international law has been continuously questioned. These discussions, however, have mainly focused on traditional issues of public international law, such as self-defense jurisprudence under the U.N. Charter and relevant customary international law, or international maritime law jurisprudence as codified in the 1982 U.N. Convention on the Law of the Sea. It is undisputable that the PSI indeed raises questions in these areas. As the PSI does not create a “fixed” binding legal regime and instead adopts only some cooperation “principles,” violation of these pieces of public international law, if there is any, could be raised and analyzed on a case-by-case basis where one could confirm the precise nature of a particular measure adopted and implemented by the participating states under the PSI. This is still the case, and lots of issues still remain to be resolved in the future.
At the same time, however, it is critical to realize that there may be implication from the PSI on international trade law as codified in the WTO Agreements. As it currently stands, a measure of the PSI is likely to focus on a particular country or a group of countries on an on-going basis. This could hamper the flow of international shipments to and from these targeted countries. This situation, in turn, could trigger claims of violation of WTO Agreements by the countries whose trade interests are negatively affected since many provisions of the WTO Agreements basically prohibit discriminatory treatment for products from a particular country. It is true that a discriminatory measure may nonetheless be justified under the “security exception” of the WTO Agreements. But that exception does not provide blanket immunity and there are minimum thresholds that need to be satisfied. Although the so-called security exception could be quite broadly interpreted under the current WTO regime, there are still thresholds, even if low, for the invocation of the exception to justify the violation of WTO Agreements.
Thus, it is incumbent on the international community to be aware of trade law implication of the PSI. As much as the purpose of the PSI is legitimate and necessary for the collective safety of the international community, it is also critical to identify all the possible legal pitfalls early on and contemplate on possible steps to minimize instances of any unnecessary legal battles in the future. That is particularly meaningful in the WTO context because, compared to other international dispute fora, it is relatively easy for a complaining state to go to the WTO to initiate a legal procedure. The fact that the WTO dispute settlement procedure has become the most frequently utilized forum under the current international law regime would substantiate this concern. Any such challenge could deal a devastating blow to the formation of international consensus based on the PSI to cope with the spread of WMD in the world community. This early analysis, therefore, could help avoid future friction and confusion.