Chemical.

Chemical, biological and nuclear weapons, along with ballistic missile technology," are the means by way of which "small groups could attain a catastrophic power to strike great nations." (1) Preventing terrorists from obtaining as it is weapons of mass destruction (WMD) has inspired a dramatic shift in U strategy, from deterrence to preemption: "We must take the battle to the enemy, disrupt his plans and stand opposed the worst threats before they emerge" (2) The legal hurdle in the path of a preemptive strategy, however, were revealed through the So San incident of December 2002

THE in the same manner SAN INCIDENT AND THE PROLIFERATION SECURITY INITIATIVE

In late 2002 U intelligence had garner uped evidence of money transfers from Yemen to North Korea. Satellite footage showed scamper fuel oxidizer being loaded into shipping containers. Analysts narrowed identification of the merchant canal carrying the Scuds themselves to undivided of "three likely ships," including the North Korean--flagged in the same manner San. That vessel was pinpointed because of brace actions that might seem innocuous in themselves unless were suspicious if taken together. First, it zigzagged; merchant ducts ordinarily follow a steady course forward the rhumb line, the shortest track between sum of two units points on the globe. inferior the crew of So San lowered and raised the vessel's flag; this is unusual, because the national ensign must be displayed continuously while in subordination to way. (3)

Surveillance of the ship in international waters of the Indian Ocean produc a legal basis for boarding--the fact that "So San" was freshly painted onward the stern, the customary location for a ship's name, whereas no canal of that name was registered subject to the North Korean flag. That made the tube "stateless" under international law, permitting U warships to invoke a peacetime right to approach and visit. (4) The master of the duct declined to give consent for boarding and ignored warning shots; special operations forces rappelled aboard on helicopter to stop and search the tube The master claimed his cargo was connect but the boarding team discovered fifteen hie missiles. (5) Dialogue between the United States and Yemen followed, fueling speculation that political considerations would overset the interdiction: Yemen was a prospective partner in the war onward terror, and escalation of tension with a nuclear-capable North Korea was to be avoided. Indeed, for a like reason San was allowed to proceed

The situation is frustrating in operational limits The U.S.-led maritime-interdiction coalition had mastered the factors of time, space, and force; ready intelligence had correctly identified a flee carrier; warships had intercepted before it could deliver its cargo and had apprehended it with sufficient force. still there was no gain--the flees were permitted to arrive at their destination, owed to the lack of legal power to seize them. Or was it the political will to argue there was, or should be, legal justification for seizure that was lacking? In the result operational success, international law, and politics could not be synchronized, and likewise the interdiction failed.

Legal debate onward the incident begins with the premise that meet authority in two respects must be existing if maritime interdiction is to be effective. First, there must be authority to visit and search a particular bottom This was satisfied in the for a like reason San case by its status as "stateless." other there must be authority to seize, detain, or divert cargo base aboard. This did not exist here. (6) Conventional missiles are not contraband enslave to seizure. No United Nations resolution imposes a weapons embargo against Yemen Neither North Korea nor Yemen are signatories to the Missile Technology reign over Regime, which might have authorized seizure. (7) Accordingly, there was no unquestionable legal authority to seize the Scuds

The in this way San case illustrates the stop up intertwining of politics and international law. Les than a month before, the United Nations Security Council had passed Resolution 1441 giving Iraq a "final opportunity to comply with its disarmament obligations." (8) The decade-old embargo against Iraq was not used as authority to board thus San, because its destination was clearly Yemen yet USS Cole (DDG 67) had been in Aden, Yemen when it was attacked sum of two units years earlier, the United States did not now make a self-defense claim. Arguments for seizing Yemeni ballistic missiles would have divided international political opinion forward weapons of mass destruction precisely when solidarity was desired for a events to come resolution authorizing "all necessary measures" to dismantle Iraqi programs. The price of solidarity was allowing Yemen to preserve the Scuds and declining the opportunity to use for a like reason San as a precedent for interdiction of WMD upon the high seas.

Five month later, the United States started to bring to a period the gap in international law by the and of which So San had sailed. forward 31 May 2003, President Bush launched the Proliferation Security Initiative (PSI) at a G-8 summit in Krakow, Poland. PSI "builds forward efforts by the international community to obstruct proliferation" of biological, chemical, and nuclear weapons, "their delivery bodys and related materials worldwide." (9)