Not that we should care, but it’s still “illegal” to search North Korean ships on the high seas (Updated: Missiles to Burma?).

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.

11 comments

  1. Peter Guilliam says:

    There is one other aspect to the searching of North Korean ships on the high seas that may be a catching point…North Korea has claimed that any seizure, blockade or interference with its ships would be “an act of war”, but a careful reading of the 1953 Armistice Agreement may indicate they have a point (Article 15):

    http://www.nautilus.org/DPRKBriefingBook/agreements/CanKor_VTK_1953_07_27_korean_armistice_agreement.pdf

    Is it possible that if they authorize search and seizures of DPRK ships on the high seas, the UN Security Council may be violating the Armistice agreement?

  2. I don’t see anything in the Armistice Agreement that is directly on point. It assures freedom of navigation in the Han Estuary and prohibits any blockade of North Korea, but I would respond that U.N.-sanctioned searching of ships for certain prohibited cargoes, allowing all others to pass, is not a blockade.

    Furthermore, North Korea has been in continuous violation of the Armistice since the signing ceremony. It is still holding South Korean POW’s, has sent ships into South Korean waters, kidnapped South Korean civilians, and engaged in hostile acts within and across the DMZ. If you read the entire agreement carefully, you’ll see that several aspects of the agreement effectively died years ago. The neutral nations observers are one example I’d cite.

  3. Spelunker says:

    What if somebody (I’m not suggesting a certain country in North America would do this) hired some Somali pirates to board the North Korean ship? With a little training (again I’m not suggesting a Certain Intelligence Agency or anybody would do that either) maybe the Somali pirates could do the dirty work and then North Korea would declare an act of war against Somalia (where it’s Taepodong missiles could never reach in a hundred years). Just a thought, that’s all.

  4. Spelunker, Reality is way ahead of you, although last time, the story didn’t end quite the way you suggest.

    I’m not opposed to switching sides at moments of convenience, but we’d also have to get the ROK Navy “aboard,” so to speak, with the plan.

  5. Spelunker says:

    Thank you; I was not aware of that story. Looks like the US Navy was asked to board the ship and yet the small team of medics, security personnel and an interpreter still didn’t check the cargo. I wonder if the US Navy interpreter was for the Somali pirates or the Korean ship’s crew members, since a Navy spokeswoman said later that the American destroyer had not been shadowing the North Korean ship.

    Back to the old drawing board…

  6. a listener says:

    New pic of Kim Jung un with classmates in switzerland via chosun ilbo

    http://english.chosun.com/site/data/html_dir/2009/06/18/2009061800411.html

  7. John Sawyer says:

    Simplification of everything above, from the guy who makes things complex:

    You can’t board a ship flying a true flag on the high seas except for the reasons listed above, or unless the UN authorises such action. You can ask it to stop and allow an inspection, but if it’s a government-owned boat, that country’s government must give permission. You can’t call out, “US Navy! We have reason to believe you’re carrying (nukes, VX, sarin, porn for Kim Jong-ll)! Heave to, and prepare to be boarded!” Not on the high seas… only if they strayed into our or another country’s territorial waters.

    Now, if they refuse, which they likely will, you -can- escort, using reasonable measures, the boat to a country’s port (probably a 3rd country, like Japan in this case) for the inspection (you can’t blow a hole in it amidships and tell the captain to accept the towline and bailing pumps you’re gonna send, or else sink). You’ll get the act of war bit from the DPRK, but it’s permissible to -intercept- ships suspected of carrying war or other contraband, as defined by, and in violation of, international law.

    What happens when it gets to a port is something else. One must hope that said country would inspect the ship properly and remove and quarantine any illicit goods. Once that boat is in port, it’s subject to the laws of that nation, not of the high seas…

    John, Charlotte, NC 22.6.09 American for a united, FREE Korea! Down with Kim…

  8. cesium_133 says:

    So sad that Jong-Un is being turned from decent kid into monster-to-be. Better never to have known his name, but it will go down in infamy…

  9. Eagle1 says:

    I’m confused.

    The DPRK has unilaterally renounced the Armistice, which I believe restarts the Korean war. So why are we worried about boarding an enemy ship?

    Please enlighten me.

    Thanks.

  10. It’s a valid point that adds to my argument that none of the legal arguments really ought to influence our conduct that much. Unfortunately, some would excuse the North Koreans from every law, obligation, promise, or basic standard of humanity while rigorously enforcing all of them against America. If that’s the way we’re going to interpret international law, then international law is nothing more than an obstruction to the essential security needs of the United States.

  11. Dana says:

    So, it sounds like it would be difficult to inforce the sanctions legally? I think we should board the ship, I don’t care about the armistice at this point, it seems usless and probably was a mistake to sign.

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