PP41
Analítico de Periódico
BYERS, Michael
Policing the high seas : the Proliferation Security Initiative / Michael Byers
American Journal of International Law, Washington DC, v.98 n.3 (July 2004), p. 526-545
DIREITO INTERNACIONAL PÚBLICO, DIREITO DO MAR, DIREITO AÉREO, TRÁFICO DE ARMAS, SEGURANÇA INTERNACIONAL
The analysis that follows focuses on the maritime aspects of PSI, measuring the initiative against existing international law and considering its potential as an impetus for legal change. It explains that much of PSI involves nothing more than the consistent and rigorous application of existing rights under national and international law. Concurrently, the initiative promotes the development of new legal authorities by way of bilateral and multilateral treaties. Finally, and less obviously, PSI may lead to new rights under customary international law. Several analogous historical developments are examined with a view to predicting whether and where the initiative will result in new international law. This inquiry suggests that the treatymaking aspects of PSI will succeed, but not with respect to all states, and that there is not much prospect for a new rule of customary international law specific to the high seas interdiction of missiles and WMD. As a result, the problem of nonconsenting states such as North Korea will remain, leaving those wishing to take high seas action against vessels flying such flags with three options: securing a United Nations Security Council resolution that authorizes interdiction; claiming that the vessels pose a threat that falls within the scope of an existing, or evolving, customary international law right of preemptive self-defense; or simply violating international law. At the moment, all three options remain available to the United States. The analysis closes with a brief assessment of the broader value of PSI in a world struggling to cope with multiple concerns, including the combined threat of WMD and global terrorism on the one hand, and the vicissitudes of U.S. power on the other. It concludes that the initiative, while less than ideal, represents an appropriate and practical response to a very real problem.