North Korea: the use of force at international law to contain weapons of mass destruction
(return of the law blog)

This is an extract from my dissertation proposal:

On 11 December 2003 the Spanish navy, acting on information supplied by the United States of America, stopped and boarded the North Korean flag vessel the So San to seize a cargo of 15 Scud missiles in transit to Yemen. The vessel and its cargo were later released, the US making a statement that there were no legal grounds to hold them. On 25 December 2003, the North Korean government denounced the incident as piracy.

Seemingly in response to this episode and concerns regarding the proliferation of weapons of mass destruction (“WMD”) a coalition of states formed the Proliferation Security Initiative (“PSI”). On 4 September 2003 the PSI released a “Statement of Interdiction Principles”.

This statement refers to the “UN Security Council Presidential statement of January 1992, which states that the proliferation of all WMD constitutes a threat to international peace and security” and outlines a number of domestic law methods by which member states could intercept, stop and search (“interdict”) vessels suspected of carrying WMD by land, sea or air which are either present within its territorial jurisdiction or are its flag vessels.

The preamble to these specified measures states:

( “PSI participants are committed to the following [enumerated] interdiction principles … to impede and stop shipments of WMD, delivery systems, and related materials flowing to and from states and non-state actors [i.e. terrorists] of proliferation concern, consistent with national legal authorities and relevant international law and frameworks, including the UN Security Council.”

The PSI consists, at present, of Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, the United Kingdom and the United States and has already held two joint military exercises and four formal meetings between 12 June and 10 October 2003.

…

So, this is where my thinking is up to:

In essence, the PSI is not controversial. It envisages co-operation between states and new domestic laws so that “suspicious” shipments can be stopped, searched and if need be seized, when they pass through a member-state’s territory. This gets around the argument that “interdicting” on the high seas is piracy.

However, I am interested in what will happen if the So Sun incident recurs (for example, you have a ship that’s rated as being of “grave concern” but will not pass through a friendly state’s territory). In this context, the questions I see arising out of the PSI are, broadly:

(1) Has the threat of WMD somehow changed the rules of international law relating to armed force? Is the proliferation of WMD now a causus belli (justification for war) or international crime, separate from the non-proliferation treaties from which North Korea has now withdrawn? (Must check on which states are signed up.)

(2) If the rules have not changed, are they adequate to face the military and terrorist threats of WMD? That is, are the rules on inter-state conflict drawn up in 1945 and predicated on “international force” only being deployed in the form of conventional armed forces appropriate or adapted to the modern situation?

(3) Is there state practice, or good theory, to support a modification or extension of the doctrines of self-defence and regional security arrangements (basically, organisations like NATO) under existing UN Charter law to cover these new threats to international peace and security?

(4) What, if anything, are the lessons for the theory of international law to be learned from recent intervention in Iraq, and the supposed doctrine of pre-emptive self-defence expounded by elements of the US government?

Many questions, at present, few answers.