Third line of action : Concrete action against proliferation
Inspection training. Photo credit : Lt. Corey Barker/US Navy
The non-proliferation regime is essential and it should be bolstered, but a lot relies on the will of States to implement it, to sanction its violations and to curb proliferation.
France considers that it is particularly important to step up concrete efforts to prevent and curb proliferation. This means better controlling experts, controlling access to the most sensitive training, curbing proliferation-related trafficking, criminalizing proliferation-related activities and suppressing their financing
Nationally, France has developed strict export controlsMoreover, on 14 March 2011, it adopted an Act modernizing its legal counter-proliferation arsenal and strengthening its coherence, visibility and dissuasiveness, including by clarifying offences and toughening sentences. An interministerial directive was also adopted in mid-2009 that strengthened the government’s action in this area, improving interministerial coordination and involving all relevant administrations and departments.
Internationally, France participates actively in efforts to fight proliferation more effectively. France also plays a role in several informal initiatives developed outside established forums, where they can contribute effectively to the general effort to counter the proliferation of weapons of mass destruction : the Proliferation Security Initiative (PSI), aimed at interdiction of cargoes related to programmes to acquire weapons of mass destruction ; the Global Initiative to Combat Nuclear Terrorism ; the G8 Global Partnership against the Spread of Weapons and Materials of Mass Destruction (G8GP) ; promotion of the implementation of Security Council resolution 1540, which calls on all States to toughen their national measures in this area ; ongoing Financial Action Task Force (FATF) work on the suppression of proliferation financing. Actions in this area need to be respectful of the legitimate right of States to benefit from the technologies needed for their development.
The European Union is likewise stepping up its concrete action in this area, with the adoption, at the instigation of the French Presidency of the European Union in the second half of 2008, of the “New lines for action by the European Union in combating the proliferation of weapons of mass destruction and their delivery systems” 1 which serves as a work agenda for these topics.
Proliferation Security Initiative (PSI)
What is the aim of the Proliferation Security Initiative (PSI) ?
The Proliferation Security Initiative or PSI was announced by the United States in May 2003 and joined by 11 States during a plenary meeting in Paris the same year. Its purpose is to enhance intercommunal cooperation between volunteer countries, so as to interdiction transports of proliferating materials and thus address the threats to global security from the proliferation of weapons of mass destruction and their means of delivery. This may include nuclear, chemical and biological weapons, their ballistic delivery systems, or, above all, equipment and materials contributing to their manufacture or employment.
This initiative facilitates exchange of experience, developing concrete activities in which States participate on a voluntary basis. For example, exercises are organized regularly in order to prepare the Initiative partners for the eventuality of an international interdiction operation. The PSI can also allow better cooperation between its participants in order to build their legal and material capacities to interdict proliferating cargoes.
In 2004, the United Nations Security Council (UNSC) qualified the proliferation of weapons of mass destruction and their means of delivery as a threat to international peace and security (Resolution 1540 2). In particular, it called “upon all States, in accordance with their national legal authorities and legislation and consistent with international law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials.”
BBC China. Photo credit : DOE, Y-12
How many countries participate in the PSI ?
104 countries currently support the initiative on a voluntary basis and have adhered to its objectives, the “Paris Principles”, which were adopted in Paris in 2003. Amongst them, the 21 most involved countries form the Operational Experts Group (OEG), which is the PSI’s international coordination forum.
Since its creation, the PSI’s approach has been to open up to as many countries as possible : all countries wishing to cooperate to carry out concrete actions against proliferating flows are welcome to join.
How is the PSI organized ?
The PSI is an international initiative characterized by its flexibility (lack of a permanent structure) and its pragmatism (meetings between experts and professionals). About once every year, the PSI’s 21 main participating countries meet at the Operational Experts Group (OEG). Focused on matters linked to effective interdiction of suspect cargo (via sea, air or land routes), the meetings of the OEG have also tackled other subjects, such as the development of air and sea law, the strengthening of port and airport organization, the criminalization and penalization of proliferation and outreach to countries regarding the risks linked to proliferation.
What is France’s role in the PSI ?
France has participated in the PSI since the beginning. It hosted the third plenary meeting of the Initiative on 3-4 September 2003, during which the participating States endorsed the Statement of Interdiction Principles (“Paris Principles”) which lay down the aims of the Initiative and the commitments of the States to achieve them. In September 2008, it also hosted another meeting of the Operational Experts Group, which saw significant progress, particularly in intensifying exchanges between partners on concrete cases. Particular emphasis was also put on awareness-raising with other countries and operators in the transport field.
Moreover, France has planned the organization of several multinational maritime interdiction exercises, including Basilic 2003 in the Mediterranean and GUISTIR 2008 in the Gulf of Aden, as well as air exercises such as ASPE 2004 and HADES 2006 in France. It participates regularly in exercises organized by its partners, such as Leading Edge and Eastern Endeavor.
However, France has considered from the outset of its participation in the PSI that, even if certain interdictions may require the employment of military resources, the Initiative should remain civilian and not military.
How is the PSI placed regarding current international treaties and non-proliferation regimes ?
The PSI is a tool which enriches and complements existing instruments aimed at combating the proliferation of WMDs. It does not seek to replace them, but rather to ensure that they are implemented effectively on the ground.
It thus supplements national and international efforts to combat proliferation of weapons of mass destruction, including the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), the work of the Organisation for the Prohibition of Chemical Weapons (OPCW) and of the International Atomic Energy Agency (IAEA), and the various multilateral export control regimes (NSG, MTCR, Australia, Zangger and Wassenaar). It does not replace any of these non-proliferation mechanisms, relying on them and providing an operational international cooperation scheme when certain States or non-State or terrorist groups attempt to circumvent these treaties.
It also supplements international conventions to criminalize the transport by air or sea of weapons of mass destruction, like the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (known as the SUA Convention) or the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation.
Does the PSI conflict with the international law of the sea ?
The interdictions carried out within the framework of the PSI are still organized in such as way as to strictly follow the obligations on the Partners States as regards the law of the sea - mainly drawn from the United Nations Convention on the Law of the Sea (UNCLOS). The inspections carried out on the high seas must thus be authorized by the flag State. In the event of an inspection in the territorial waters of a State or during a stopover in a port, the authorities of the State in question have jurisdiction to proceed with an inspection and potential seizure of the cargo, based on prevailing international law and their internal law.
What has the PSI achieved since its launch in 2003 ?
The PSI has allowed the different participating States to harmonize their procedures and share information relating to concrete cases of proliferation in a field where international cooperation and interagency coordination are vital. Training and the validation of these courses of action have been possible thanks to the organization of several real land, sea and air operations, some of which received media coverage. These exercises are essential tools to deepen common interdiction procedures. They have made it possible to improve interoperability between participating States in addition to information exchanges.
From an operational point of view, the PSI has allowed participants to conduct numerous conclusive operations, i.e. operations which have effectively interrupted trafficking of proliferating and illicit materials, goods and equipment. With discretion and effectiveness in mind, these operations were not given any publicity. Several of them, however, were the subject of notification to the United Nations Security Council, where trafficking constituted a major violation of sanctions decided by the Council (Iran and North Korea in particular).
Combating proliferation financing
Financing is one of the essential aspects of any proliferation undertaking. Proliferation programmes involve the acquisition of rare materials and goods with high technological added value, through obscure acquisition networks because of the illicit nature of such programmes. That makes such programmes very expensive, although the phenomenon is still difficult to accurately apprehend.
As early as 2004, UN Security Council resolution 1540, adopted unanimously and under Chapter VII, prohibited countries from providing or allowing provision of financing for proliferation activities.
FATF action since 2008
At the same time, international discussion began as to how to develop the necessary tools to identify and prevent proliferation-related financing operations, drawing on the mechanisms used in counter-terrorism. That work took place within the Financial Action Task Force (FATF), whose mandate was extended by the Ministers in April 2008 in order to cover proliferation financing. The aim was to lead States to create, in their internal law, the criminalization of the financing of proliferation and the legal means to freeze the assets of the persons involved.
Following the initial debates, in February 2011 the FATF focused on creating financial sanctions targeted at the persons and entities in violation of the Security Council Resolutions made on the basis of Chapter VII and aimed at CBRN proliferation. The outcome was an amendment of the "International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation - FATF Recommendations" 3 to include Recommendation 7 (October 2012) in which the States committed to :
- Implement targeted financial sanctions against persons and entities in violation of the UNSC Resolutions adopted on the basis of Chapter VII ;
- Prevent these persons from raising, transferring and using funds linked to that activity ;
- Exchange relevant information for strengthening national measures.
The implementation of this Recommendation 7 was supported by the adoption by the FATF of :
- A Methodology for assessing financial transactions (February 2013) which sets out the measures for the implementation of Recommendation 7. Furthermore, it sets out as a main political objective the sanctions against the persons and entities involved in the financing of activities in violation of the relevant Security Council Resolutions.
- A "Guidance on the Implementation of Financial Provisions of United Nations Security Council Resolutions to Counter the Proliferation of Weapons of Mass Destruction" (June 2013). This document sets out the measures which the States should adopt in order to implement the financial provisions of the relevant resolutions.
France’s action against proliferation financing
France actively supported the inclusion of proliferation in the FATF agenda in 2008. Subsequently, it was involved in drawing up an FATF report setting out recommendations for the adoption of measures as regards the fight against proliferation financing. This report, which was finalized in September 2009, was adopted during the 2010 FATF plenary meeting.
It was on this basis that the FATF gradually drew up the recommendations and guidances set out above. France was closely involved in drawing up and adopting these recommendations, constantly supporting an ambitious approach aiming to encourage States to create, in their internal law, the criminalization of proliferation financing and the legal means to freeze the assets of the persons involved.
While this approach has not yet reached its conclusion, France has undertaken to strengthen its internal legal and operational arsenal to better combat proliferation financing. An act to specifically criminalize proliferation financing was adopted on 14 March 2011. This act no. 2011-266 supplemented the provisions of the Defence Code suppressing the biological, and chemical (articles L.2341-1 and L.2342-3) and nuclear (articles L.1333-9 to L1333-13) proliferation activities. It created a separate offence of proliferation financing, making France the only State in the world with such legislation.
The articles in the Defence Code thus suppress the fact of "obtaining financing by supplying, bringing together or managing any funds, values or goods or by providing advice for that purpose" in order to assist the commission of an offence linked to nuclear, biological and chemical proliferation as well as the means of delivery of NBC weapons. The violation of these provisions is punishable by heavy prison sentences (up to 30 years) and fines (up to 7.5 million euros) which can be applied when the presumed offender intended to support proliferation through his financial actions, or if he failed to act to prevent funds under his control from being used for such purposes. Complicity in proliferation financing is punishable by the same sentences and the 2011 law also suppresses the incitement, encouragement or provocation to commit such an offence.
France has likewise promoted increased consideration of proliferation financing by the European Union, within the framework of the "New lines for action in combating the proliferation of weapons of mass destruction" 4 adopted on the occasion of the French Presidency of the European Union. This document thus calls for increased awareness from financial institutions, greater cooperation between governments and these financial institutions, support for the implementation of financial sanctions (in particular those from United Nations resolutions) and support for the work within the FATF.