In its seemingly blind ambition to punish North Korea for defying it, the U.S. went so far as to try to change a fundamental principle of international law. It presented a draft resolution to members of the UN Security Council (UNSC) that sought to authorize the use of military force to interdict, board and inspect vessels on the high seas suspected of carrying UN-prohibited items to and from North Korea. Approval of such a provision would have essentially legalized what would otherwise be considered an act of war. Indeed, it would have set a dangerous precedent by eroding a centuries-old principle of international law — in this case freedom of navigation — a “right” that has long been insisted upon by the maritime power and especially the U.S. But this is not the first time the U.S. has tried to do this — nor is it likely to be the last.
On September 11 — 8 days after North Korea’s sixth nuclear test — the UN Security Council (UNSC) did unanimously approve a U.S.-revised resolution that imposes new sanctions on North Korea. The resolution tightened the economic noose around North Korea’s neck. 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 Pyongyang. It also banned North Korea’s exports of textiles, froze hiring of overseas laborers, prohibited for-profit joint ventures with other countries, and sanctioned some specific North Korean government entities. But this came after intense negotiations on its wording and was considerably less than what the U.S. wanted — which included a ban on all oil and oil product imports and coal export and sanctions on particular people such as Kim Jong-un himself. But it does add substantially to the already long list of banned imports and exports to and from North Korea.
However, the loophole is that banned items can still be “smuggled” in and out of the country. As U.S. UN Ambassador Nikki Haley said “we all know these steps only work if all nations implement them completely and aggressively.” That is why the interdiction proposal was so important to the U.S. Nevertheless that provision was ardently opposed by China and Russia. The approved resolution does request all UN members to inspect ships going in and out of North Korean ports. But that was already an existing and ineffective provision because it does not authorize the use of force to do so and requires the inspections to be executed only with the consent of the flag state.
The initial U.S. draft resolution was cleverly worded in an apparent attempt to get China and Russia to sign on to “non-consensual interdiction.” It stated that “authorization for interdiction and inspection does not apply with respect to inspection of vessels entitled to sovereign immunity” — that is warships and those on non-commercial government service. This was an attempt to quell fears that an interdiction of such a vessel could spark an armed clash. Also [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 was probably intended to ameliorate concerns that the precedent might be used against other “rogue” nations. But it did not mitigate those concerns, perhaps because the U.S. always seems to find an exception to the”rules” when it wants to and the opportunity presents itself.
The draft resolution also would have authorized a UNSC committee or the UNSC itself to ”designate vessels for non-consensual inspections” that could be carried out by any UN member. This may have been a sop to those who fear the U.S. would be unilaterally making the decisions as to which vessels to interdict. However, it was clear that the U.S. as a permanent member of the UNSC would have a major role in such designations — based on its superior, but sometimes suspect “intelligence.” It would also have had a major role in the interdictions themselves — by default — because few other nations would have been willing to unilaterally confront North Korea with military force.
The U.S. has tried this interdiction gambit before such as 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 U.S. pushed for resolution 1874 that endorsed “inspections” of suspect vessels entering or leaving North Korea. The approved resolution “called upon” but did not require all states to consent to inspection of their flag vessels on the high seas if there are “reasonable grounds” to believe they are carrying 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 request the flag state to “direct the vessel to proceed to an appropriate and convenient port for the required inspection.”
It turned out that China and Russia had threatened to veto a binding use of force resolution because they did not want to encourage U.S. military operations in their waters. They also were concerned that 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 U.S. These concerns are apparently still valid.
Interdiction was also the initial focus of U.S. President George W. Bush’s Proliferation Security Initiative (PSI) led by John Bolton, then-undersecretary of state for arms control and international security. Bush announced the PSI 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 to be 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. 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 U.S. could and should undertake interdictions based on actionable intelligence – what he called “reasonable cause.” But the fact that the U.S. has not ratified the UNCLOS, which prohibits such unilateral interdictions, raised suspicions that the U.S. 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 U.S. intention and insisted that any action taken under the PSI would need to be consistent with existing international law. Moreover the secrecy surrounding PSI interdictions has raised suspicions that it is employing politically motivated double-standards and extra-legal methods. And given past U.S. intelligence failures, some countries were and are reluctant to act just on US-say-so.
The problem for the U.S. in pushing for interdiction is a lack of trust. In some critical countries’ eyes the U.S. 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 U.S. would have to yield real control of the decision to interdict, the definition of “reasonable grounds” to do so, and the actual interdictions themselves. But it is doubtful that the U.S. will be willing to give up such control — even in the face of such a dire threat as presented by North Korea.
A longer version of this piece first appeared in the IPP Review.
Mark J. Valencia is Adjunct Senior Scholar at the National Institute for South China Sea Studies, Haikou, China.