Hey, I’ve got an idea! Let’s board, search & sink their smuggling ships & show it on TV.

LAST WEEK, REUTERS REPORTED THAT THE WHITE HOUSE is considering a proposal to board and search North Korean merchant ships for contraband on the high seas. This is one of the few forceful options against Pyongyang I could get behind. Unlike “bloody nose” proposals (which sound like they’re an urban myth anyway) and preemptive strike proposals (which exist, at least on the op-ed pages) the boarding of North Korean smuggling ships at sea is unlikely to trigger a sudden use-it-or-lose-it decision cycle in Pyongyang that could turn Korea’s entire mid-section into a smoldering macrocosm of Jonestown.

Why do this?

For several reasons: To embarrass His Porcine Majesty and diminish him in the eyes of his closest advisors, hopefully helping to provoke to a coup. To cause a series of national humiliations that contribute to popular discontent, which diminishes him among his closest advisors and provokes a coup. To hasten his bankruptcy. Over time, the loss of his existing ships and the U.N. ban on him acquiring new ones (see UNSCR 2321, para. 30) would extirpate his long-haul merchant fleet and deny him some key, non-renewable sources of income. To help us to shape global opinion by exhibiting his contraband for the media, and by naming and shaming the governments and companies that facilitated the smuggling and proliferation. To acquire valuable intelligence to identify other smugglers, proliferators, and customers, and what they’re buying.

Above all else, to stop Pyongyang’s proliferation, and to show that we’re determined to stop it. Years ago, I published the evidence that North Korea is using its merchant fleet to ship materiel to Syria to assist Assad with his chemical weapons. I can’t emphasize enough that we’ve entered a new reality, in which actual North Korean WMD proliferation that kills actual innocent people has ceased to be a neocon fantasy and become an actual thing that’s really happening right now. Putting the materiel used to murder innocent people with weapons of mass destruction on public display would persuade many inattentive or unserious people that North Korea is a real crisis that we do need to deal with in some non-catastrophic way. It would help alter the public argument about North Korea’s dangerousness and its untrustworthiness with nuclear weapons, which plenty of “experts” who feed journalists their soundbites are still unserious about.

Finally, a naval interception campaign might appease those in the White House who demand more forceful options. Donald Trump would love it. He’d get the chance to do what he loves: orchestrate public theater in a way that makes him look tough. Of course, exhibiting machine tools and vacuum dryers might not be enough of a Superbowl halftime show to make the 11:00 news or CNN on a busy news day. To set the stage for even more perfect diplomatic theater, add pyrotechnics!

[The end of the drug smuggling ship Pong Su.]

It’s not like the “engagement” crowd that got us into this mess hasn’t staged some pyrotechnic theater of its own. No doubt, this proposal might cause the usual suspects to get the vapors and call for their smelling salts. No doubt, they’d argue that this would spoil the mood for talks they previously said we’d spoil the mood for by enforcing sanctions (and incidentally, as of this morning, His Porcine Majesty just met with a South Korean government delegation for the first time ever).

No use of force is risk-free, of course, but if this administration is desperate for military options, boarding North Korean ships on the high seas — like a mid-flight intercept of a North Korean missile — carries much lower risks than a direct attack on North Korean soil. On the high seas, our Coast Guard and our Navy would have many advantages over a North Korean merchant ship. There would be no nearby cities held hostage to Kim Jong-un’s immediate response. We could initially exclude the Yellow Sea from this campaign. That’s where the vast majority of North Korean shipping goes, but on short hauls to and from China. If North Korea continues to smuggle via containers that pass through Chinese ports, we have legal tools we can use against those ports.

Yes, it’s possible that China and Russia might decide to supply North Korea on their own ships. Of course, U.N. member states aren’t allowed to own, lease, or operate North Korean-flagged ships (UNSCR 2371, para. 7). To the extent a third country uses its own vessels to supply food and other things the people need, we should have no quarrel with this. To the extent we catch them violating sanctions, we can move to designate and isolate the shipping companies responsible — unilaterally, in concert with our allies, and at the U.N. We can work with South Korea, Japan, and other allies to orchestrate a multilateral ban of those ships from ports around the region. Presumably, third-country shippers with greater exposure to our trade and financial systems would be choosier about what they would be willing to smuggle.

Authority to Board & Search

So, you ask: would this be legal? Yes, I think so. Laying this out logically requires us to go through the relevant resolutions, not necessarily in chronological order. Some of this will get wonky. Let’s begin with the authority to board and search. Two resolutions provide that authority — U.N. Security Council Resolution (UNSCR) 2375 (paragraphs 7 through 12) and UNSCR 1874, from 2009 (paragraphs 12 through 14). Under these resolutions, U.N. member states have limited authority to interdict ships that are violating North Korea sanctions resolutions, either at sea or in port. If a state has “reasonable grounds” to believe that “the cargo of such vessels contains items the supply, sale, transfer or export of which is prohibited by” prior resolutions, the resolutions “call on” the flag state to either allow an inspection at sea, or direct the ship to a nearby port for inspection. Note that “calls on” is non-binding language, so the flag state can refuse to consent.

Why would any state consent? Two possibilities come to mind: (a) embarrassment and fear at being caught and (b) anger at being used. Examples of (a) include Tanzania and (more recently) Sierra Leone, which have (probably knowingly) reflagged North Korean ships in violation of UNSCR 2270, paragraph 19, which not only forbids re-flagging of ships “owned, operated, or crewed” by North Koreans, but also requires them to de-register those ships. If the public embarrassment at being caught and called out isn’t enough, the U.S. Treasury Department could designate their shipping registries, or the Coast Guard could ban ships flying their flags from U.S. waters. Both countries earn a significant amount of income from providing flags of convenience, so these are very real deterrents for them.

In another recent case, Japan caught a North Korean ship flying the Maldives flag. In response, the government of the Maldives angrily denied that it registered the ship. I don’t know where the truth lies here. Maybe the North Koreans just sewed a Maldives flag together; they’ve done worse. Maybe the Maldives shipping registry was careless. Maybe the Maldives government is lying. Either way, it can’t really stick to its story if it denies us permission to board and search. Even if it did, our recourse under UNSCR 2375, paragraph 8 is to report the vessel to the 1718 Committee, which is supposed to consider the ship for designation — and might just get around to that by next year. Meanwhile, the Maldives (or any similarly situated state, including China or Russia) would have to deal with the ongoing embarrassment of having that question before the Committee.

Authority to Seize

The resolutions require member states to seize two categories of property: contraband that North Korea isn’t allowed to own or control at all, and property that is owned or controlled by a party designated by the Security Council. (You could argue that property that is, itself, specifically designated is a third category, but the resolutions treat it like property of designated persons).

The first category, contraband, includes the items on U.N. lists of items, materials, equipment, goods, and technology related to nuclear, ballistic missile, chemical, and biological weapons programs; luxury goods; and other items North Korea isn’t allowed to export (coal, iron, iron ore, gold, titanium ore, vanadium ore, rare earth minerals, copper, nickel, silver, lead, lead ore, zinc, textiles, seafood).

The second category includes any property of designated persons or entities, and their front companies, agents, or pwags. This includes ships, which member states are also prohibited from transferring under paragraph 8(d) of UNSCR 1718. That provision requires members states to “immediately” freeze “the funds, other financial assets and economic resources” of entities that “are owned or controlled, directly or indirectly, by the persons or entities designated” by the U.N. for proliferation, and to “ensure that any funds, financial assets or economic resources are prevented from being made available … to or for the benefit of such persons or entities.” That asset freeze mandate was later expanded to include “financial or other assets or resources” of entities designated by the Security Council (UNSCR 1874, para. 18; UNSCR 2087, para. 5(a); UNSCR 2094, paras. 8 & 11; UNSCR 2371, para. 3).

Authority to Seize Ships

Does the asset freeze — and consequently, the seizure mandate — apply to ships? Yes, if the ships are designated, or owned or controlled by designated entities. The U.N. Panel of Experts has explicitly adopted the interpretation that this includes ships controlled by designated entities. It did so with regard to Ocean Maritime Management (OMM), the major North Korean shipping company behind the 2013 Panama arms seizure. The Security Council later designated OMM, making all of its assets, including vessels, subject to immediate seizure by any member state whose jurisdiction the ships enter. The Panel made the following recommendation (Recommendation 3(b)) in its 2015 report:

All 14 vessels listed in table 8 (or figure XXIV) that are owned and/or controlled by OMM or by entities acting on its behalf or at its direction in assisting the evasion of sanctions should be subject to the measures imposed by paragraph 8 (d) of resolution 1718 (2006) and paragraphs 8 and 11 of resolution 2094 (2013);

This was the legal basis for Mexico’s decision to seize an Ocean Maritime Management ship, the M/V Mu Du Bong, and sell it for scrap. This is not a small thing; OMM has, at least until recently, controlled a substantial share of North Korea’s long-haul merchant fleet. It bears emphasis that this authority only applies to contraband cargo, and to ships that are either designated individually or owned or controlled by a designated entity. It doesn’t apply to undesignated ships that are carrying, say, rice to North Korea.

Finally, what if a ship that formerly belonged to a designated shipper — say, Ocean Maritime Management — has since been transferred to another shipper? I’d argue that under any reasonable reading of the resolutions, that subsequent transfer is prohibited by the asset freeze provisions and should be considered null and void. The ship should still be treated as property of the designated person, and still subject to the seizure mandate. If a member state searches an undesignated ship and finds contraband, a reasonable reading of the resolutions is that the searching state should hold the ship until it, or its owner or controller, is designated in accordance with UNSCR 2375, paragraph 8.

The Mandate to “Dispose of”

The requirement to seize is also a requirement to “dispose of.” Member states must “seize and dispose … of items the supply, sale, transfer, or export of which is prohibited by [this or previous] resolutions.” This obligation dates back to 2009, under UNSCR 1874, paragraph 14, and was reaffirmed as recently as last year’s UNSCR 2375. The current “seize and dispose of” language was first adopted in 2016, in UNSCR 2321, paragraph 40. For some reason, two subsequent North Korea resolutions repeat the same authority verbatim (see UNSCR 2371, paragraph 22; and UNSCR 2375, para. 22).

“Dispose of” includes “destroy”

Finally, what can we do with the seized property? The question of what we can do with the contraband and the ship itself has vexed governments enough that some have hesitated to seize ships (see, e.g., Mexico’s problems getting rid of the M/V Mu Du Bong). The Security Council gave a very clear answer to this question in four successive resolutions: UNSCR 2087, paragraph 8 (not a Chapter VII resolution); UNSCR 2321, paragraph 40, UNSCR 2371, paragraph 22; and UNSCR 2375, paragraph 22. The latter three Chapter VII resolutions use identical language: “such as through destruction, rendering inoperable or unusable, storage, or transferring to a State other than the originating or destination States for disposal.” Any questions?

For maximum effect, we should make sure every scuttled ship sinks with the North Korean flag flying, whether it began its voyage with a North Korean flag or not. Yes, some crew members might resist. Our boarding parties should be trained to prevail over that resistance with a minimum of force. And needless to say, every North Korean crewman should be fed well, treated well, given first-class medical care, and repatriated safely to the Korea of his choice.