According to the Washington Times, the US is trying to organize a “coalition of the willing” to interdict — with the use of force if necessary — vessels on the high seas suspected of carrying UN banned cargo to or from North Korea. Such use of force without the consent of the flag state or UN Security Council (UNSC) approval would violate a centuries-old bedrock principle of international law and custom — the freedom of navigation — which the US has long insisted upon and claimed to defend. This would be “crossing the Rubicon” of international order — the very system the US helped build and promotes and protects.
The US has been trying to “sell” this gambit to its allies and friends like Japan, South Korea, and Australia. Indeed, the US and Japan are reportedly arranging a meeting of potential members of such a “coalition” to discuss how to kinetically close the loophole in the current sanctions. Of particular concern is lack of UN approval to use force to interdict vessels suspected of violating the sanctions, especially those vessels detected making surreptitious transfers of oil and coal at sea.
Frustrated because neither China nor Russia will support a UNSC resolution to use force to interdict such vessels, the US has now declared its own sanctions which it may also try to get or have enforced — without UNSC approval if necessary. They target 27 shipping companies and 28 specific vessels bearing the flags of China (including Hong Kong and Taiwan), the Marshall Islands, Tanzania, Panama, and the Comoros. Significantly, they do not include any Russian companies or ships despite evidence that some have been involved in such banned trade.
In addition, the US is reportedly considering deploying its Coast Guard to undertake the interdictions. It considers Coast Guard vessels and personnel technically non-military and thus thinks — perhaps mistakenly — that they would be more benign and acceptable in the region for this mission than US Navy vessels and personnel.
US experts are scrambling to come up with legal arguments to support such interdictions. They are trying to exploit a relevant UNSC resolution that they say “opened the door” to interdiction. But that resolution, as with all previous relevant resolutions, was issued under Chapter VII, Article 41 of the UN Charter which clearly does not authorize the use of force. This legal subterfuge is eerily reminiscent of the George W. Bush administration memo rationalizing the use of torture — a shameful tactic that was later discredited and withdrawn. The US Navy is also developing “rules of engagement” to try to avoid kinetic conflict at sea. So it would seem that interdiction is going to happen — with or without UNSC approval.
The Washington Times article quotes Michael Pillsbury, a Trump administration advisor, saying that there is a provision in the UN Charter that could be used to set up a council of the five permanent UNSC members, a military council, that could enforce the at-sea interdiction program. He asserts that “even if the Russians try to block this, the United States can call for the establishment of the military council anyway. There is no need for a Security Council vote on this. It would be set up on the side.”
The US could offer to inform China or Russia of suspicious vessels in waters under their jurisdiction and agree that they should make the decision to interdict and implement it in their waters.
Pillsbury is apparently referring to UN Charter Chapter VII, Article 47 which provides for the establishment of a “Military Staff Committee to advise and assist the Security Council on all questions relating to its military requirements for the maintenance of international peace and security.” Article 47 (1) provides that “The Military Staff Committee shall be responsible under the Security Council for the direction of any armed forces placed at the disposal of the Security Council.” But the approval of the UNSC is still required to set up the “Committee” and for the use of such force. Moreover, according to Article 47 (2), the “Committee’ shall consist of the Chiefs of Staff of the permanent members of the Security Council.” Perhaps what Pillsbury is trying to argue is that a veto by a permanent member of the UNSC would not apply in this case and the use of force would be decided by a majority vote. If so, this would go against the very raison d’etre of the Security Council and the five permanent members’ veto power.
The US has tried several times before to get Russia and China’s support for a UNSC resolution authorizing interdiction with the use of force — without success. On September 11, 2017 — one week after North Korea’s sixth nuclear test — the UNSC unanimously approved a US resolution that imposed new sanctions on North Korea. For the first time, the UNSC targeted oil — capping North Korea’s crude and refined oil imports and banning the sale of natural gas or its derivatives to it. It also banned its exports of textiles. However, banned items can still be “smuggled” in and out of the country using sea transfers. That is why authorization of interdiction is so important to the US. Indicating how critical interdiction may be was the recent Maldives government denial of a Japanese Foreign Ministry claim that a Maldivian-flagged ship transferred goods to a North Korean-flagged tanker in the East China Sea. It seems that it is necessary to physically catch violators in the act to prove culpability and generate deterrence.
China and Russia oppose the use of force for such interdictions for similar reasons as well as for some reasons particular to their individual relationship with the US. Some of the vessels involved in the suspicious activity are flagged or owned by Russian and Chinese entities. Indeed, China has requested a delay in the US effort to get the UNSC to approve sanctions against specific companies and vessels. It wants to determine its effect. It would certainly be embarrassing to have their vessels interdicted as violators of the very sanctions they agreed to uphold. Moreover, they do not want to facilitate US military operations in waters under their jurisdiction. They also are concerned that forceful interdiction would generate a violent response from North Korea which has already declared the new US sanctions — if enforced — as “an act of war.” Furthermore, they fear that the US would unduly influence interpretation of “reasonable grounds” to interdict. They have also concluded that interdiction would not be fully effective and that realistic negotiations are the best way to resolve this problem. But their fundamental concern is that this latest legal twist could one day be used against them or their friends and allies.
Russian Deputy Foreign Minister Sergey Ryabkov says this gambit “runs counter to the understanding that was earlier reached in collective formats, including within the Proliferation Security Initiative.” “We cannot repeat the situation … when after the countries agree on something in the UNSC and make corresponding decisions, the US bolsters unilateral section pressure immediately after that or after some period of time.” An anonymous Chinese official agreed saying that such steps should only be taken under UN auspices.
The US should stay within existing international law. The US could offer to inform China or Russia of suspicious vessels in waters under their jurisdiction and agree that they should make the decision to interdict and implement it in their waters. This is the reasonable approach. However, the US frustration is palpable and understandable. Perhaps the best it can do is continue to try to persuade China and Russia to step up their own efforts to uphold the sanctions in land and at sea under their jurisdiction. Without their support, the loopholes are likely to persist.