North Korea nuclear crisis

Dilemmas of intercepting North Korean ships highlighted by US rethink on freedom of navigation

Mark Valencia says recent negotiations in Vancouver over the interdiction of North Korean vessels show a difficult balance in stopping the trade of materials used in WMDs while respecting sovereign rights to legitimate use of waters

PUBLISHED : Friday, 26 January, 2018, 10:33am
UPDATED : Friday, 26 January, 2018, 7:31pm

A major gap in the enforcement of United Nations sanctions against North Korea is ship-to-ship transfer of banned goods at sea using vessels with obscure flags of convenience and ownership, making it difficult to determine responsibility – especially state responsibility. This is why the US wants to interdict suspect vessels at sea – using force if necessary. The US has repeatedly sought approval for at-sea interdiction through the UN Security Council, only to be rebuffed by threats of vetos by China and Russia

In late November, after the latest North Korean intercontinental ballistic missile test, US Secretary of State Rex Tillerson urged additional measures from the international community, “including the right to interdict maritime traffic transporting goods to and from North Korean”. A State Department spokesperson said “it appears that this will be a new level of maritime interdiction”. 

On January 16, the US and Canada co-hosted a meeting of 21 countries in Vancouver to discuss Korean peninsula issues and gaps in UN sanctions enforcement. Participants were mainly countries whose forces aided South Korea in the Korean war, plus JapanIndia and Sweden. In the run-up to the meeting, Brian Hook, the US State Department director of policy planning, said that “the US would seek to enhance maritime interdictions”.

But, right off the bat, it appeared Canada and the US had different expectations for the meeting. Canada seemed to want to emphasise diplomacy while the US seemed to want to focus on enforcing sanctions. Russia and China were not invited. Russian Foreign Minister Sergey Lavrov termed the Vancouver gathering “pernicious and detrimental”. China criticised it as well, calling it an example of “cold war thinking”.

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Also, in the run-up to the meeting, the State Department released a joint statement of 17 participants in the Proliferation Security Initiative. This George W. Bush-era initiative is an extra-UN “coalition of the willing” to prevent transfer of weapons of mass destruction, including via maritime interdiction. The US apparently convinced the group to verbally support sanctions enforcement against North Korea, imposed by UN Resolutions 2375 and 2397. The apparent connection was that oil imports and illicit revenue from other banned goods could be used to manufacture and transfer WMDs. Participants announced that “they believed naval interdiction is a legitimate and necessary step to properly enforce UN sanctions against North Korea”. This was probably an attempt to get some subsequent Vancouver conference participants on board on interdiction on the high seas. But in the Asia-Pacific, only Australia, Japan, South Korea and Singapore signed on.

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Even though the Security Council resolutions prohibit UN member states’ ships from transferring banned items to or from North Korean-flagged vessels at sea, they do not authorise the use of force. Moreover, the statement acknowledged that interdiction on the high seas could only be undertaken with the flag state’s consent and, failing that, requesting that the state direct the vessel to a port for inspection. 

Then, in a post-Vancouver press conference, Tillerson acknowledged that maritime interdiction “is subject to standard laws, international laws for maritime interdiction. We all understand what are the proper procedures to implement the sanctions and stay fully compliant with international laws, norms, and standards.” He also stated in his opening remarks, “We do not seek to interfere with legitimate maritime activities”. 

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This was a sharp break from pre-conference US statements and goals and probably reflects the concerns of other participants. This conclusion was reached even though China and Russia – the most likely opponents of interdiction – were not present.

The US has apparently recognised – for now – the legal limits of interdiction at sea. This is a victory for the age-old principle of freedom of navigation and the rule of law, and is as it should be.

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