Today, a reader and friend e-mailed me and asked whether it would be legal to board and search the Kangnam I on the high seas. Here, slightly paraphrased, is how I responded to that question.
As a strictly legal matter, we have no such right. And in the end, so what?
First, UNSCR 1874 does not authorize the use of force or the boarding of ships on the high seas, and does not invoke Chapter VII. It requires us to ask for (sit down for this one) permission from the North Koreans, or from any state where North Korean ships land (such as to refuel). What this means is that, as a practical matter, as long as the North Koreans don’t need to refuel in states whose customs officers will actually search them, they have impunity. They could use extended range ships, use tankers to refuel their smuggling ships at sea, or refuel/repair in friendly ports in Burma, Iran, or Syria with confidence that legally, there’s nothing we can do.
Under both treaty and customary law, states have a right to stop and search ships within their territorial seas. Drug interdictions are rarely done on the high seas except after hot pursuit. Most interdictions are done within a nation’s territorial sea after the ships are tracked to an entry point. The boarding of the Pong Su by the Australians was legal under Article 23 of the 1958 Convention on the High Seas, the “hot pursuit” exception, which requires that the ship be tracked continuously from a nation’s territorial waters to the point where it is boarded. Such searches are treated like searches within a nation’s own territorial waters.
On the high seas, merchant vessels are almost completely immune to searches by other nations’ ships. Neither the 1958 Convention on the High Seas nor the new U.N. Convention on the Law of the Sea (UNCLOS, which the United States has signed but not ratified) allows boarding on the high seas except in cases of suspected piracy, slavery, illegal broadcasting, or where the ship is flying a false flag. The piracy exception does not allow room for liberal interpretation — the conventions both say, inter alia, that piracy must be by a non-state actor. For that reason, the boarding of the So San by the Spanish Navy probably wasn’t in accordance with either convention. This — and the fact that SCUD missiles in the possession of the Yemenis aren’t much of a threat to us — may explain why we ultimately let the ship proceed to its destination in Aden.
(Other significant proliferation incidents with North Korean ships occurred in port. In 2003, Taiwanese customs searched the Be Gaehung in Kaoshing harbor and found precursor chemicals for rocket fuel. In 1999, Indian customs officers found a dismantled missile factory aboard the M/V Kuwolsan. In one case without an apparent North Korean connection, flag state consent was the key. A 2003 search of a German-owned ship by German and Italian authorities in the Suez canal uncovered a shipment of centrifuge parts labelled as used machine parts and bound for Libya. That incident led to Libya’s verified relinquishment of its nuclear program.)
The right of self-defense isn’t helpful. Article 51 of the UN charter permits the use of force for self defense only “if an armed attack occurs against” a member state. We’ve often interpreted that article in light of other articles to argue the existence of a right to “anticipatory” self defense, but it’s a strained interpretation from a lawyer’s perpective. The US position is that Article 51 does not repeal the pre-existing right of anticipatory self-defense that existed under a vaporous concept called “customary international law.”An honest interpretation of the law, then, is that North Korea could load a nuke into a ship, stop to refuel in Rangoon, and proceed to Bandar Abbas … and we wouldn’t have any legal right to do a thing about it except ask the North Koreans to pretty please take a peek. Having accepted the soundness of that interpretation, let’s also accept that in this age, the law is a suicide pact.
The PSI is an effort to codify more aggressive interpretations of international laws against proliferation and ultimately, to give them the force of international customary law. There’s also a nod to “collective self defense” under Article 42 of the UN Charter. This is also strained, because it, too, can only be invoked after an armed attack on a state. In the end, the PSI’s best argument for a legal basis is a non-binding 1992 UNSC presidential statement.
Having said all that, international law is exceedingly vague and impractical, and therefore almost universally ignored by people who have real responsibilities. In the end, if we really think there’s something dangerous on that ship, we’re not going to let it land in Bandar Abbas. The Obama Administration will order the Navy to board the ship, and we’re not going to care who complains about it after the fact.
Update: According to this report, the cargo is missiles, and the destination is North Korea’s fellow pariah-state Burma. The son and grandson of the namesake of the Navy destroyer trailing the Kangnam I was asked for his interpretation of the law on one of the talk shows today:
McCain said Sunday that the U.S. should board the Kang Nam even without North Korean permission if hard evidence shows it is carrying missiles or other cargo in violation of U.N. resolutions.
“I think we should board it. It’s going to contribute to the proliferation of weapons of mass destruction to rogue nations that pose a direct threat to the United States,” he said on CBS’ “Face the Nation.” [AP]
Obviously, the Burmese generals are willing to let bygones be bygones. Also not to be missed is Bertil Lintner’s report, complete with photographs, of a warren of subterranean panic rooms the North Koreans recently dug for Burma’s despised rulers. HT: Jodi.