David G. Hodges

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One of the biggest threats that the world faces is the proliferation of weapons of mass destruction (“WMD”) and their use by rogue states and terrorist groups. As the September 11, 2001 terrorist attacks proved, within the span of a few hours, thousands of people can be killed and the direction of the world can be radically changed through the use of unconventional weapons and tactics. As terrible as the attacks were, however, the carnage and consequences of that day would have seemed like a mere pittance if certain kinds of WMD were used instead.

Ever since chemical weapons were used to devastating effect in World War I, nations began employing different tactics to control WMD, including legal, political, diplomatic, and military strategies. One of the *190 latest efforts is the Proliferation Security Initiative (“PSI”), a multilateral agreement with more than one hundred nations to facilitate interdictions of vessels suspected of carrying WMD (a weapon made of nuclear, chemical, or biological materials). Created by the Bush Administration and continued by President Barack Obama, the PSI is both a part of, and separate from, the existing anti-proliferation framework -a fact that makes it somewhat controversial, especially when its participants assert its most far-reaching powers on the high seas.

According to longstanding international maritime law, the seas do not belong to any nation and, absent a claim of universal jurisdiction or some other exception, it is illegal to board another ship. For many years, universal jurisdiction could only be exercised to thwart a limited number of offenses, none of which are closely related to WMD proliferation. In response to September 11, however, some states pushed to broaden international maritime law to allow states to board *191 vessels to stop WMD proliferation. The PSI is at the forefront of this expansionary effort.

This Article considers whether the PSI can be used to expand universal jurisdiction to stop WMD proliferation and, if so, whether such an expansion is desirable. Part II provides background information on the PSI and past conventions, treaties, and multilateral efforts to stem proliferation and delineate maritime jurisdiction. Part III analyzes the ways in which the PSI and its supporting texts affect universal jurisdiction. Part IV offers three recommendations. First, Part IV(A) recommends that universal jurisdiction should expand under the aegis of the United Nations. Second, Part IV(B) argues that if it cannot expand under the United Nations, then universal jurisdiction should expand by increasing the number of states that belong to the PSI. Third, Part IV(C) proposes that if it cannot expand under the United Nations or by increasing the amount of PSI members, then universal jurisdiction should expand through unilateral interdictions. Lastly, Part V of this Article advocates that universal jurisdiction on the high seas should be expanded to include WMD interdiction.

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