Body
The recent confrontation with a North Korean vessel suspected of transporting missile components to Burma has once again raised the issue of what the US can and can’t do on the high seas, both legally and politically. First, here is the little we know about the case drawn from a variety of news sources, including primarily the New York Times coverage of the story.
The US had suspicions about the ship based on past behavior, and dispatched a destroyer—the McCampbell—to shadow it; it caught up with the ship in international waters south of Shanghai. Although the ship—the M/V Light--was North Korean, it was flagged in Belize. Belize is a member of the Proliferation Security Initiative and granted permission to board the ship, The North Korean captain refused.
By chance, a delegation of ASEAN officials was in Washington at the time events were unfolding off the Chinese coast. Gary Samore, the president’s top nuclear adviser, raised the issue with the group, claiming that United Nations Security Council Resolution 1874 permitted interdiction if “reasonable grounds” existed to suspect that illicit weapons were being exported.
Was Samore right? As always, it’s complicated. When President George W. Bush launched the Proliferation Security Initiative (PSI) in 2003, its legal foundation was tenuous. The initial eleven members sought cooperation to interdict transport of WMD, but at the same time promised to do so in conformity with existing international law.
Unfortunately for the initiative, prevailing international law did not in any way support the ultimate ambitions of the PSI; to the contrary, the United Nations Convention on the Law of the Sea (“Law of the Sea”) contains a number of articles designed to preserve freedom of the high seas:
- Article 87 provides that the high seas are open to all states;
- Article 89 prohibits any state from asserting sovereignty over any part of the high seas;
- Article 90 outlines the right to sail ships on the high seas, and prohibits the exercise of control over the vessels of other States on the high seas.
- The Law of the Sea does not prohibit transit of WMD, nor does it give States the right to interdict such transit.
- Articles 17-19 even enshrine a right of innocent passage through territorial waters. Long a component of customary law, innocent passage is subject to the reservation that the passage “is not prejudicial to the peace, good order or security of the coastal State.”
However, from the beginning a central purpose of the PSI was to widen the legal authority to ultimately interdict trade on the high seas in WMD-related materials; John Bolton was uncharacteristically cautious about what could be done, but nonetheless strongly hinted at this objective in an interview with Arms Control Today. International lawyers generally viewed the general right to self-defense enshrined in Article 51 of the UN Charter as too thin a reed to ground such a right (in part because the right could only be invoked in the case of attack, and even then only until the UN had acted collectively).
Britain and the US tried to push the international law forward effort through UNSC Resolution 1540 in 2004 (the State Department interpretation of the resolution is useful). But the politics of 1540 were revealing: under a veto threat from China, the United States was forced to drop a provision that would have authorized interdiction of vessels suspected of transporting WMD-related materials.
The opportunity to create some new customary international law, or even to ground the right of interdiction more firmly, came with the passage of UNSC 1874 in 2009. Chinese pique at the DPRK nuclear test allowed some pretty important departures from Beijing’s normal prickliness about sovereignty. The resolution “calls upon” but does not require member states to inspect all cargo on their territory, including at seaports and airports, if it is believed to contain prohibited items. But the resolution also authorized members to inspect vessels on the high seas or to escort them to port if there are reasonable grounds to believe that they are carrying prohibited cargo. It also precludes the provision of bunkering services to any ship suspected of prohibited trade, placing an additional constraint on any suspect ship.
An important loophole is that such interdiction must have the consent of the country under which the vessel is flagged; acting under Chapter VII, Article 41 of the UN Charter (as opposed to Article 42, on which more below), UNSCR 1874 does not authorize the use of force. But the M/V Light was in fact flagged in Belize, which gave its permission for a boarding. And even if the flag state does not consent, “the flag state shall direct the vessel to proceed to an appropriate and convenient port for the required inspection.” The prospect that the M/V Light would ultimately bump up against such constraints from other ASEAN countries was probably key to Pyongyang’s decision to turn the ship around. In a State Department press briefing on June 13, spokesman Mark Toner specifically mentioned cooperation with states in the region, and even direct communication with both North Korea and Burma on the issue.
It is highly unlikely that the US would lead an effort to get a general prohibition on the transport of WMD-related materials: the US itself would be in violation. But it now has 1874 to work with, which appears to give the PSI an international legal foundation. More important are the constraints North Korea now faces in reaching any of its trading partners. As more countries participate in the PSI and 1874-related actions, North Korea’s proliferation activities will be hemmed in by the unwillingness of countries to allow innocent passage. You have a problem with that? We don’t.
And what if these actions are ineffective and North Korea proceeds with more nuclear testing and WMD proliferation? The US could press the case by going back to the UNSC to get another sanctions resolution, this time under Chapter VII, article 42. Such a resolution would authorize forcible interdiction and blunt maneuvers such as the refusal by the M/V Light’s captain to allow inspection. Such a measure would almost certainly face Chinese and Russian veto. But it may nonetheless be worth taking up as a signal of intent on the part of the PSI coalition if North Korea continues down its current path.
