North Korea Interdiction Option Limited

Wade Boese

Reacting to North Korea’s first nuclear test, the UN Security Council Oct. 14 insisted that all countries prevent Pyongyang from trafficking in unconventional arms, major conventional weapons, and luxury goods. But the council did not give world capitals expanded or new powers to fulfill this mission, so how effectively it will be carried out is unclear.

Approved unanimously, Security Council Resolution 1718 establishes a sanctions regime calling for “inspection of cargo to and from” North Korea, but it leaves it up to governments to determine how to exploit their existing authorities and capabilities under current international law. Inspections, the council noted, are to occur “in accordance with [each country’s] national authorities and legislation, and consistent with international law.”

Secretary of State Condoleezza Rice repeatedly sought to put this aspect of the resolution in perspective during an Oct. 17-22 visit to China, Japan, Russia, and South Korea. “We’re not talking about the Cuban missile crisis here with a blockade or quarantine,” she said in an Oct. 20 interview with KBS News of South Korea. Similarly, Rice told reporters at the outset of her trip, “We’re not looking [at] inspecting every ship.”

At many of her appearances, Rice pointed out that the resolution obliges every government to deny North Korean exports or imports of proscribed items, but she also said specific steps would vary. Possible measures, she stated, could include increased intelligence sharing, denying planes overflight rights, detaining vessels in ports, searching cargo trucks at borders, or conducting radiation detection sweeps of cargo.

Rice further stressed that the measures had to be lawful. “I would not make the argument that [the resolution] somehow radically changes the international legal foundation,” she stated Oct. 17.

Rice’s consistent refrain on the restricted nature of the resolution coincided with statements by U.S. officials and media reports linking or comparing the instrument to the U.S.-led Proliferation Security Initiative (PSI). Launched in May 2003 to intercept suspicious cargo in transit, the initiative has enlisted about 80 countries. Yet, it also has detractors and skeptics, such as China, India, Indonesia, and South Korea, that have questioned its legality and purpose.

To be sure, the initiative’s participants regularly say it is grounded in international law. Indeed, Rice described PSI in the KBS News interview as a “voluntary association of countries that use authorities that they already have within their national authorities and international law.”

International law limits inspection and interdiction options outside a government’s jurisdiction, such as planes flying in international airspace or ships sailing on the high seas. For instance, vessels in international waters can be stopped and searched only if they lack a proper flag or are suspected of piracy, slavery, or illegal broadcasting. A government has more leeway if a suspicious ship is passing through that country’s territorial seas, which extend 12 nautical miles from the coastline, or its contiguous zone, which reaches out to 24 nautical miles.

Another option for boarding ships in international waters is to get the consent of the government whose flag the ship is flying. Some countries permit their flags, known as flags of convenience, to be flown by foreign ships for a fee. Such ships account for a substantial portion of the global oceangoing fleet.

As part of PSI, the United States has concluded bilateral boarding agreements with Belize, Croatia, Cyprus, Liberia, the Marshall Islands, and Panama. These agreements set out expedited procedures for the United States to request the right to stop and search a ship. A request is treated as approved if no reply is received within two hours.

After concluding the latest such agreement with Belize in August 2005, the Department of State claimed that the combination of its boarding agreements plus the commitments of PSI partners made “more than 60 percent of the global commercial shipping fleet dead weight tonnage…subject to rapid action consent procedures for boarding, search, and seizure.” Washington is seeking to negotiate additional agreements.

Still, North Korea can skirt the reach of PSI by scrupulously conducting its trade via vehicles and territories of countries outside the initiative. These are the gaps that U.S. officials hope Resolution 1718 will fill.

The effectiveness of the resolution, however, hinges on states’ attitudes about employing their national authorities to clamp down on North Korea. China and South Korea, Pyongyang’s two largest trading partners, have sent mixed signals on how aggressively they will act.

Secretary of Defense Donald Rumsfeld acknowledged Oct. 11 the difficulties in getting a sanctions regime to work. He noted that it requires countries to share a “relatively common threat assessment” and a willingness to “forgo commercial opportunities in exchange for security interests.” A week later, Rumsfeld described stopping proliferation as “one of the hardest things” to do, contending success requires “a lot of countries cooperating with a high degree of cohesion.”

Although cautious, Rice expressed optimism that countries, including China, were coalescing against North Korea. “I don’t expect that overnight you’re going to have a 180-degree turn in the China-North Korea relationship,” she said Oct. 21. “But,” Rice added, “that [ China] would in fact subject the North Koreans to international sanctions and brand their behavior a threat to international peace and security, I do think that’s a pretty significant turn.”

Robert Gallucci, who was the chief U.S. negotiator of the 1994 Agreed Framework to freeze North Korea’s graphite-moderated nuclear reactor, contends sanctions will fail. “Sanctions, always limited by what China would permit, will not force North Korean compliance and amount to a policy of containment or acceptance of a growing North Korean nuclear-weapons program,” Gallucci wrote in the Oct. 23 issue of TIME.

All countries are called on to report within 30 days to a Security Council committee on the steps they have taken to implement the resolution. That panel is supposed to report to the Security Council at least every 90 days on its assessment of and recommendations to strengthen the sanctions.