PSI 실행상의 법적 한계와 한국의 대응책

A Study on Legal Limits for PSI Performance and Countermeasures of Korea

The international efforts to prevent the proliferation of WMD(weapons of mass destruction) are widely carried out through the international peace-keeping organizations like the UN Security Council, the international treaties like the Nuclear Nonproliferation Treaty, the export control regimes like the Wassenaar Arrangement and the bilateral and multilateral diplomatic efforts under the leadership of the United States of America. Nevertheless, it cannot be expected that the existing international legal regime to play the role for effective interdiction against international proliferation of WMD. The PSI(proliferation security initiative) is a response to the growing challenge posed by the proliferation of WMD, their delivery systems, and related materials worldwide. The PSI builds on efforts by the international community to prevent proliferation of such items, including existing treaties and regimes. The PSI seeks to involve in some capacity all states that have a stake in nonproliferation and the ability and willingness to take steps to stop the flow of such items at sea, in the air, or on land. And the legal status of the PSI can be explained as the theory of anticipatory self-defense which is based on the Article 51 of the United Nations Charter. But the international legal foundation for performance of PSI is not established. That is to say, there is a gap between the necessities of international security and the current limits of international law. To put it concretely, for the purpose of performance of PSI on the high sea the seizure of foreign ship loading WMD is a breach of the freedom of the high sea which is established by the traditional international law. The passage of foreign ships loading WMD through the territorial sea cannot be intercepted by the enforcement of temporary suspension right of the coastal state against the innocent passage of the ship under the UNLOS Convention. And the positive control for the ship loading WMD within the port area does not coincide with the ultimate principle of the port state control regime. Accordingly, to achieve the goal of PSI, the contents of PSI which are inharmonious with existing international legal regime must be supplemented, and simultaneously national laws concerned with PSI must be consolidated. The present state of Korea is not a membership of PSI, but it is required to prepare to play a cooperating state of PSI because Korea has the most interests in the international proliferation of WMD by North Korea.