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Mark J. Valencia says the US failure to win UN Security Council authorisation for the use of force to interdict ships stems from a lack of trust in its intentions. The council’s other members are likely to oppose any such measure in the wake of Pyongyang’s latest missile tests
OpinionComment

Any US push for maritime interceptions to counter North Korea will go nowhere

Mark J. Valencia says the US failure to win UN Security Council authorisation for the use of force to interdict ships stems from a lack of trust in its intentions. The council’s other members are likely to oppose any such measure in the wake of Pyongyang’s latest missile tests

North Korea
Mark J. Valencia
Mark J. Valencia
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Most troubling to many countries, a UN Security Council resolution authorising the use of force to intercept shipping on the high seas would change a centuries-old fundamental principle of international law – freedom of naviga­tion. Illustration: Craig Stephens
On the heels of North Korea’s latest intercontinental ballistic missile test, the US is apparently considering pushing once again for a UN Security Council resolution authorising the use of force to intercept ships on the high seas that are suspected of violating United Nations sanctions against North Korea. It might even be thinking about going it alone or with a “coalition of the willing”.

But any such action without Security Council authorisation would have to overcome many legal and political concerns.

In a short, blunt statement, US Secretary of State Rex Tillerson condemned the test and called on all nations to “continue strong economic and diplomatic measures”. He then pointedly added that “in addition to implementing all existing UN sanctions, the international community must take additional measures to enhance maritime security, including the right to interdict maritime traffic transporting goods to and from [North Korea]”. State Department spokeswoman Heather Nauert said: “It appears that this will be a new level of maritime interdictions”, adding that “details are still being worked out”.

Such a radical approach has the support of prominent US commentators like Frank Jannuzi, president of the Mansfield Foundation. He argues that a “stop-and-frisk policy” towards North Korean ships might make sense and would be “far preferable to launching an unnecessary and extraordinarily dangerous war”. This rationale may appeal to many others.

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However, most troubling to many countries, a Security Council resolution authorising the use of force to interdict shipping on the high seas would change a centuries-old fundamental principle of international law – freedom of naviga­tion. Indeed, it would essentially legalise, in the case of North Korea, what would otherwise be an act of war. It would also set a dangerous precedent by eroding a right that ironically has long been insisted upon by the maritime powers, especially the US.

This is not the first time the US has tried to do this. Because of these previous attempts – which failed – we know some of the political obstacles that the US would have to overcome to get Security Council approval for a resolution authorising interdiction of shipping on the high seas with the use of force.

First of all, it would have to win the support of the full council.

On September 11 this year – one week after North Korea’s sixth nuclear test – the council unanimously approved a US-revised resolution that imposed new sanctions on North Korea. For the first time, the council targeted oil – capping North Korea’s crude and refined oil imports and banning the sale of natural gas or its derivatives. It also banned its exports of textiles; froze hiring of overseas labourers; prohibited for-profit joint ventures with other countries; and sanctioned some specific North Korean government entities.

North Korean coal piles up as sanctions take their toll

A sailor stands on his boat in the port in Rason, North Korea, on November 21. At the northeastern tip of North Korea, where the nuclear-armed country meets its neighbours China and Russia, UN sanctions are having an impact. Photo: AFP

This was a pretty robust resolution. However, banned items can still be “smuggled” in and out of the country. That is why authorisation of interdiction is so important to the US strategy.

How North Korea evades UN sanctions

But despite America’s efforts to include it, interdiction with the use of force was ardently opposed by council members China and Russia. In the end, the approved resolution requests all UN members to inspect ships going in and out of North Korean ports, but only with the consent of the flag state.
The US has tried this interdiction gambit before – such as in early drafts of council resolutions 1540 and 1718 – and has been repeatedly rebuffed.
In response to North Korea’s second nuclear test in May 2009, the US pushed for resolution 1874 that endorsed “inspections” of suspect vessels entering or leaving North Korea. The approved resolution “called upon” all states to consent to inspection of their flag vessels on the high seas if there were “reasonable grounds” to believe they were carrying prohibited cargo. But the council issued the resolution under Chapter VII, Article 41 of the UN Charter, which specifically does not authorise 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”.
US ambassador to the UN Nikki Haley speaks to Wu Haitao, the Chinese deputy ambassador to the UN, at the conclusion of an emergency meeting of the UN Security Council concerning North Korea's nuclear ambitions, on November 29. Photo: AFP

China and Russia opposed the use of force because they did not want to encourage and allow US military operations in waters under their jurisdiction. They were probably also concerned that the precedent might one day be used by the US against other “rogue” states. Moreover, they believed that forceful interdiction would draw a violent response from North Korea and that the interpretation of “reasonable grounds” to intercept would be heavily influenced by the US. More pragmatically, they believed that interdiction would not be fully effective and that realistic negotiations are the way to resolve this problem. They probably still have such concerns.

US president George W. Bush arrives on board the aircraft carrier USS Abrahan Lincoln on May 1, 2003. In that year, Bush launched the Proliferation Security Initiative, a plan to prevent the spread of weapons of mass destruction. Photo: AFP

Some say that such interdiction would be the Proliferation Security Initiative “on steroids”.

The initiative was launched in 2003 by then US president George W. Bush to prevent the spread of weapons of mass destruction. The focus was to be on interdiction, which was seen as a way to fill the gaps in the existing non-proliferation architecture. The original concept was for an ad hoc “coalition of the willing” to intercept vessels carrying weapons of mass destruction and related materials moving to and from North Korea. Such actions were to be outside the UN system and thus not constrained by a cumbersome decision-making process and second-guessing.

Initially, the US argued that participants could and should undertake interceptions based on actionable intelligence – what it called “reasonable cause”. But the fact that the US has not ratified the UN Convention on the Law of the Sea, which prohibits such unilateral interdictions, raised suspicions that the US wanted to operate outside international law. Moreover, the secrecy surrounding initial interdictions under the initiative has raised suspicions that the US is employing politically motivated double standards and extra-legal methods.

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The problem for the US in pushing for interdiction with the use of force is a lack of trust. In some 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 using force, the US would have to yield real control of the decision to intercept, the definition of “reasonable grounds” to do so, and the actual interdictions themselves. But it is doubtful that Washington would be willing to give up such control.

Given these considerations, the Security Council is unlikely to approve of interdictions as envisioned by the US. A frustrated America may go it alone; if it does, it would have to face legal and political implications reaching far beyond the issue at hand.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China

This article appeared in the South China Morning Post print edition as: Going nowhere
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