Maritime Interdiction of North Korean Ships under UN Sanctions

Abstract

To be effective in shaping state conduct, the liberalism and idealism that informs public international law must contend with geopolitical realities and the role of power in the international system. David D. Caron was unafraid to address this dichotomy. His work bridged epistemic communities and offered concrete approaches to some of the most vexing international problems. Caron’s work on radioactive waste and nuclear weapons at sea, for example, manifests a profound understanding of the threats posed by the proliferation of nuclear weapons and illicit nuclear materials in the oceans, and how international law reduces these ghastly perils. By providing boundaries for state behavior and fashioning a stability of expectations, international law deepens military and environmental security, and thereby reduces geopolitical risks. Inspired by the contributions of Caron and Harry Scheiber in exploring international law as a tool for addressing the threat of nuclear weapons and material at sea, this Article demonstrates how the legal process is the best tool available, albeit an imperfect one, to counter North Korea’s maritime proliferation of nuclear weapons and technology. The nuclear weapons program of the People’s Democratic Republic of Korea (DPRK) emerged within a complex regional political reality. Protected by U.S. extended deterrence, the Republic of Korea (ROK) has prospered for nearly seventy years despite lying directly under the guns of North Korea, which is enabled by China and Russia to serve as a cudgel to oppose American presence in the region. The DPRK detonated its first nuclear device in 1993, challenging the U.S. nuclear security umbrella and opening the specter of nuclear proliferation. If the United States and ROK actively punish North Korea with military force, North Korea likely would lash out in all directions. If they relent and accept the DPRK into the nuclear club, the consequences could prove equally deadly. International law lies within this dilemma as the only credible option for containing the rogue state’s nuclear ambitions. The Charter of the United Nations (UN) and the United Nations Convention on the Law of the Sea (UNCLOS) operate in tandem for this purpose. The Charter may be considered a constitution for the world; UNCLOS has been called the constitution for the oceans. These seminal treaties work together in a powerful way to restrain North Korea’s nuclear program. Specifically, the UN Security Council has invoked its authority in Chapter VII of the Charter to address threats to the peace by harnessing the legal competence of flag state, port state, and coastal state authority reflected in UNCLOS to strangle North Korea’s access to oceanic trade, crippling its economy and undermining its ability to spread nuclear material and weapons. The struggle to develop and enforce international rules to stop North Korea’s nuclear program is a story still unfolding. But decades of progress in international law and state practice have combined with tighter sanctions by the Security Council to dramatically cripple North Korea’s ability to develop and share nuclear weapons and supporting material and technology. The consequences of failure are genuinely terrifying, as even a single nuclear detonation anywhere in the world would prove catastrophic to global economic and political stability.