A defiant North Korean effort to build nuclear weapons unless their demands are met has sent the Bush administration scrambling for ways to halt the drive. The “Proliferation Security Initiative”—part of the solution that Washington has come up with—amounts essentially to trying to shut North Korea’s barn door to curb its trade in illicit weaponry, in collaboration with allies worldwide. While this multilateral approach is a commendable effort, the host of legal and practical issues that it raises are also formidable.
Speaking in Poland on May 31st, President Bush declared that “The United States and a number of our close allies…have begun working on new agreements to search planes and ships carrying suspect cargo and to seize illegal weapons or missile technologies.” At a conference last week in Madrid, the United States convened with ten other countries – including, most notably, France and Germany and Japan, though not South Korea or China – to discuss bilateral implementation agreements, focusing on inspecting suspect North Korean ships in the participants’ territorial waters. And on Tuesday, Secretary of State Colin Powell urged Asian leaders assembled in Phnom Penh to join the US and its allies in squeezing North Korea.
The Bush Administration initiative will reinforce international norms against the spread of weapons of mass destruction, and it demonstrates a desire to confront security challenges through multilateral forums—including, potentially, the United Nations. However, the Proliferation Security Initiative should not be mistaken for a complete policy towards a dangerous proliferator like North Korea. No plausible scheme short of a complete blockade will provide reassurance that a nuclear weapon’s worth of plutonium—potentially just the size of a grapefruit and weighing less than ten pounds—will not escape North Korea’s borders. Even if all departing North Korean ships, of which there are several thousand a year, were to be searched, the US and its allies would be hard-pressed to inspect all aircraft departing Pyongyang (six landed in Iran last year), let alone all foot-traffic crossing the Chinese border. The initiative might be more successful in its collateral impact on stopping other illicit North Korean commerce, like drug smuggling, helping to choke off the revenue streams underpinning Pyongyang’s nuclear program.
But the barriers to success are not only technical. While countries like Japan and Australia can certainly use existing national laws to examine vessels and cargo coming to their shores, stopping ships on the high seas or commercial aircraft not destined for friendly ports will likely require new international legal authority. The Bush Administration is acutely aware of this—last year, Spanish authorities, at US request, stopped a North Korean ship bearing missiles, only to set it free when the US and Spain recognized they had no legal basis for their action, as ballistic missile are not illegal. The fact that the recipient of the shipment—Yemen—was an ally in the US war on terror too was a complicating factor.
There would be a stronger, though not explicit case in existing international law for seizing chemical, biological, or nuclear weapons. While most states adhere to treaties banning these weapons, many do not; most notably, no existing law or treaty explicitly makes North Korea’s nuclear weapons illegal. But in the special case of North Korea, which has overtly threatened to export plutonium and has been openly antagonistic, the United States might be able to claim a right of self defense in boarding a ship and seizing weapons of mass destruction. This legal argument, though, is a stretch when it comes to boarding ships on the open oceans that cannot be shown in advance to be plausible threats. And given the state of technology—compounded by the current climate of distrust towards American intelligence—making the case that a given shipment is threatening will be exceedingly difficult.
All this indicates a need for new international norms that would enable effective American and allied action. Rather than trying to modify existing nonproliferation treaties—given the current global climate, opening up the Nuclear Non-Proliferation Treaty for renegotiation could plausibly lead to its collapse—the US could seek Security Council resolutions clarifying and building on existing international instruments. One approach would seek to link WMD illegitimacy to oppressive internal policies or to sponsorship of terrorism, arguing that states which abuse their sovereignty lose their right to protect it with nuclear weapons. Based on the first criterion, the US might gain the authority to stop North Korean weapons sales, while the second criterion would apply to Iran. While arriving at international agreement on such a formulation would take time—even defining terrorism and oppression would be extremely challenging—it would be a worthwhile effort.
Alternatively, the US could seek to have North Korea’s plutonium declared illegal on the grounds that it was acquired under false pretenses. Under the Nuclear Non-Proliferation Treaty (NPT), North Korea agreed to forgo nuclear weapons in exchange for receiving outside assistance in building civilian nuclear facilities. North Korea took the outside help—and then withdrew from the treaty, using those same civilian facilities to procure plutonium, which has no credible purpose for North Korea today except to build nuclear bombs. A Security Council resolution declaring illegal any weapons material made using facilities acquired under peaceful cover might be hard to get, but it could be extremely effective, not only in confronting North Korea, but in challenging Iran.
Either of these efforts would take great effort to achieve, and the US should carefully consider their utility, given the considerable technical barriers that would remain even if the legal ones were removed. In particular, these are no substitute for a broader North Korea policy, or a broader Iran policy, and the Bush administration should be wary about giving up on more comprehensive and diplomatic approaches too soon.
Still, since technological limitations imply that the proliferation security initiative will not substitute for a solution to either crisis, we need not be in a rush to implement these understandings. Instead, we should also focus on the utility of the dialogue involved in crafting any new Security Council initiative, even if it ultimately does not pass. The Proliferation Security Initiative’s greatest value may be in forcing the world to carefully confront what dangerous weapons it is willing to live with—and what it is not.