The US appears to be using North Korea’s latest nuclear test to try to change a fundamental principle of international law. On the heels of North Korea’s 3 September test, the US is seeking UN Security Council (UNSC) authorization to use military force to interdict, board, and inspect vessels on the high seas that are suspected of carrying UN-prohibited items to and from North Korea. If contraband is found it would presumably be confiscated. This provision could apply to non-North Korean flagged vessels but in practice would apparently only apply to North Korean vessels because the previous UNSC Resolution 2270 prohibits all UN members from “chartering or leasing vessels to North Korea.”
A resolution including such authorization is unlikely to be included. But if it were included, it would essentially legalize what would normally be considered an act of war. Moreover, it would set a dangerous precedent eroding the centuries-old principle of freedom of navigation that has long been championed by the maritime powers — especially the US.
The draft resolution to be presented to the UNSC for a vote on Monday would ban the hiring of North Korean “guest” laborers as well as the import of oil and oil products into North Korea. It would also ban the key remaining North Korean exports of coal and textiles. These would be added to a long list of already banned imports and exports.
These measures are likely to be opposed by China and Russia because they do not think these measures will work and also fear that they could backfire by causing North Korea to lash out. They are also concerned that if they did work, the further economic strangling of North Korea would cause grave problems on their borders. They are particularly likely to oppose the authorization of high-seas interdictions of vessels suspected of carrying contraband.
The draft resolution is cleverly worded in an attempt to get China and Russia to sign on. “Authorization for interdiction and inspection does not apply with respect to inspection of vessels entitled to sovereign immunity,” that is, warships and those on government service. This is an attempt to quell fears that an interdiction of such a vessel could spark an armed clash. Also, the [interdiction] “authorization applies only with respect to the situation in the DPRK and shall not affect the rights, obligations or responsibilities of Member States under international law,” including the UN Convention on the Law of the Sea (UNCLOS) with respect to any other situation. This clause is probably intended to ameliorate concerns that the precedent might be used against other “rogue” nations. But it is not likely to mitigate those fears. The resolution also allows exemptions for humanitarian reasons, thus mollifying humanitarian assistance programs and workers.
The resolution would authorize a UNSC committee or the UNSC itself to “designate vessels for non-consensual inspections” that could be carried out by any UN member. This is a sop to those who fear the US would be unilaterally making the decisions as to which vessels to interdict. However, it is clear that the US would have a major role in such designations — based on its sometimes suspect “intelligence” — and the interdictions themselves because few other nations would be willing to unilaterally confront North Korea. For these reasons and others, the proposal is likely to be opposed by China and Russia. The US knows this but is apparently attempting to embarrass them for doing so.
The US has tried several versions of this gambit before — for example, in early drafts of UNSC Resolutions 1540 and 1718 — and has been repeatedly rebuffed. More recently, in response to North Korea’s second nuclear test in May 2009, the UNSC passed Resolution 1874 that endorsed “inspections” of suspect vessels entering or leaving North Korea. It “called upon” all states to consent to inspection of their flag vessels on the high seas if there were “reasonable grounds” to believe they carried prohibited cargo.
This appeared to be a rather robust resolution. But as was the case with the others, the UNSC issued the resolution under Chapter III, Article 41 of the UN Charter which specifically does not authorize the use of force. So, if the flag state does not consent to the inspection, all the nation that is executing the interdiction can do is to request the flag state to “direct the vessel to proceed to an appropriate and convenient port for the required inspection.” China and Russia had threatened to veto a binding use of force resolution because they did not want to encourage US military operations in their waters. They also were concerned that a forceful interdiction would generate a violent response from North Korea and that the interpretation of “reasonable grounds” to interdict would be heavily influenced by the US. These concerns are presumably still valid.
The problem for the US in pushing this resolution is a lack of trust. In some critical countries’ eyes, the US has a history, even a pattern of intelligence “failures,” double standards and duplicity dictated by its narrow national interests.
Interdiction was also the initial focus of President George W. Bush’s Proliferation Security Initiative (PSI) led by then-undersecretary of state for arms control and international security John Bolton. The PSI was announced by Bush on May 31, 2003 as an “activity” designed to prevent the spread of “weapons of mass destruction” (WMD), their delivery systems, and related materials from entering or leaving “states of proliferation concern.” The focus was on interdiction because it was thought that interdiction could fill the gaps in the existing non-proliferation architecture. The original concept was for an ad hoc “coalition of the willing” to interdict vessels carrying WMD and related materials moving from and to North Korea. Iran and Syria were later added to a US list of “rogue” nations regarding traffic in WMD. It was to be an “activity” outside the UN system that would not be institutionalized and thus not be constrained by cumbersome decision-making processes and second-guessing.
Initially, Bolton insisted that the US can and should undertake interdictions based on actionable intelligence — what he called “reasonable cause.” But the fact that the US has not ratified UNCLOS which prohibits such unilateral interdictions raised suspicions that the US wanted to operate outside international law. Indeed, Australia recognized that there might be a need for some change to international law to facilitate these types of interdictions on the high seas. The United Kingdom was surprised by the perceived US intention and insisted that any action taken under the PSI would need to be consistent with existing international law.
Some PSI interdictions caused international incidents. In July 2009, the US Navy destroyer John S. McCain shadowed a North Korean freighter — the Kang Nam l — bound for Myanmar which was suspected of carrying cargo banned by the relevant UNSC resolutions. But the ship abruptly turned about and returned to North Korea. Some speculated that the Kang Nam may have been false bait in a trap set by the DPRK to embarrass the US and undermine support for the PSI and the UNSC resolutions. Such high-stakes game-playing remains a possibility and a concern. During the incident, China warned that any interdictions or inspections should “have ample evidence and proper cause.” China’s concerns were based on the 1993 Yinhe debacle in which the Clinton administration alleged that the Chinese cargo ship was carrying precursors for chemical weapons to Iran. Over China’s protests, that ship was searched in Dammam, Saudi Arabia and no traces of precursors were found, much to the embarrassment of the US government.
There have been several other false alarms. Shortly after North Korea’s first nuclear test in 2006, the same Kang Nam was detained in Hong Kong under suspicion of violating UNSC Resolution 1713. But it was found to not be carrying any cargo. In August 2009, India detained and inspected the North Korean ship Mu San. The Indian government said that the vessel had entered its waters illegally and was carrying equipment and material to Burma to help it build a nuclear reactor. However, nothing illegal was found. In September 2009, four North Korean containers allegedly holding items related to chemical weapons bound for Syria were seized in the port of Busan from a Panamanian-registered freighter. But it was reported that “nothing particular was discovered.”
Undermining PSI effectiveness are legal lacunae that allow state and non-state actors that want to avoid PSI interdictions to legally transport WMD components on their own flagged vessels or aircraft or on those of non-participating nations. Moreover, government ships operating on non-commercial purposes have sovereign immunity under UNCLOS. Further, as long as the US remains outside of UNCLOS, many suspect the PSI is meant to operate outside of it as well. The secrecy surrounding PSI interdictions has raised suspicions that the US is employing politically motivated double-standards and extra-legal methods. Moreover, given past US intelligence failures, some countries are reluctant to act just on US say-so.
But a major practical concern of China and Russia is that interdictions are unlikely to be fully effective in shutting down North Korea’s trade in banned items. Indeed, it may transport banned items via airplanes or ships of other flags even though this is supposedly prohibited. Movement of some items by air may be more difficult to detect and prevent. Or the banned items could be sent on a roundabout land route from North Korea via China and Russia, using cargo planes at night. North Korea could also export weapons by building assembly factories in importing countries to circumvent an entry ban on its ships in ports. Or it could charter ships under the names of foreign companies or falsify the country of origin. And there is always the possibility of using the “diplomatic pouch” to smuggle critical materials like money and WMD components.
The problem for the US in pushing this resolution is a lack of trust. In some critical countries’ eyes, the US has a history, even a pattern of intelligence “failures,” double standards, and duplicity dictated by its narrow national interests. To have even a chance of China and Russia’s assent to interdictions on the high seas, the US would have to yield real control of the decision to interdict, the definition of the “reasonable grounds” to do so, and the actual interdictions themselves. But it is doubtful that the US will be willing to give up such control, even in the face of such a dire threat as presented by North Korea.