SPEAKING FREELY Resolution on Korea: Now comes the hard part
By Mark J Valencia
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As the United States and some of its allies prepare to use warships and
aircraft to enforce United Nations Security Council Resolution 1718 against
North Korea, they would do well to take a
hard look at the politics of the situation, particularly regarding sea
interdictions.
China, Japan, South Korea and Russia are unlikely to be directly involved in
such interdictions, albeit for different reasons. And all but Japan would not
welcome such interdictions by outsiders, especially in waters under their
jurisdiction. Thus it is not clear who can or will do what to enforce the
resolution at or over the sea.
The resolution drafted by the US and Japan prohibits the transfer to and from
North Korea of nuclear, chemical or biological weapons, their means of delivery
(ballistic missiles) and related materials. This language is very similar to
that used in the principles guiding the US-originated and -led Proliferation
Security Initiative (PSI). This "coalition of the willing" is designed to
prevent proliferation of weapons of mass destruction through air and sea
interdiction if necessary.
Clearly the US wanted to conflate the PSI with Resolution 1718 and thereby
legitimize it. The resolution does require all UN member states to prevent the
transfer of such material to North Korea using their flag vessels or aircraft,
a boost for the PSI. But for compliance with these requirements, it only "calls
upon" states, that is, merely requests them, to take cooperative action to
prevent illicit trafficking in such materials.
It does not require them to do so. Moreover it clearly states that measures
must be taken under UN Charter Chapter VII Article 41, which specifically does
not authorize the use of armed force. But such use of armed force would
probably be necessary if a country operating under the PSI tried to interdict
and board a vessel that refused to stop. In this situation such use of force
could be interpreted as an act of war. Even US Secretary of Defense Donald
Rumsfeld has conceded that the PSI "has holes in it", including the lack of a
legal basis for interdiction of vessels and aircraft and confiscation of their
cargo on the high seas.
After passage of the resolution, US Secretary of State Condoleezza Rice rushed
to Northeast Asia to try to coordinate an agreement on action to be taken,
including interdiction. But she was compelled to acknowledge that each country
had its own views and approaches to implementing the resolution. She also
soft-sold and even back-pedaled on interdiction of ships and aircraft.
She hinted that most searches would take place in ports and assured nervous
Northeast Asians that any US-led interdictions would be undertaken carefully
and selectively based on sound intelligence. However, given the recent history
of US intelligence failures, that may not have been particularly reassuring.
And given that most North Korean freighters use the high seas and that China
may not be particularly strict in its implementation of the provisions in its
ports, the resolution is not very robust. Indeed, Rumsfeld has acknowledged
that preventing North Korea from selling its nuclear technology - the United
States' next "red line" - is "practically impossible", particularly without the
ardent cooperation of China and Russia.
South Korea, a US ally, is being pressured by the United States to join the PSI
and help interdict North Korean ships. Not only did it decline entreaties by
Rice and Rumsfeld, but it apparently discouraged even a visit by PSI architect
and US Ambassador to the UN John Bolton. South Korea maintains that the PSI and
Resolution 1718 are separate issues.
South Korea is concerned that if a Northern cargo ship escorted by Northern
naval vessels is confronted by Southern naval vessels, a clash is almost
certain. And South Korea is also concerned that if it interdicted a Northern
vessel - or if it allowed the United States to do so in its waters - North
Korea might attack Seoul. North Korea has indicated it would consider such an
interdiction a violation of the Armistice ending the Korean War and do just
that. South Korea does not want to call the North's bluff in this situation
since it is the most vulnerable to attack.
China was the main obstacle to the US desire for a more robust resolution. At
China's and Russia's insistence, the authority to use military force was
dropped from the draft resolution as was the "requirement" to check all cargo
bound to or from North Korea. And although China voted for the resolution, it
immediately ruled out its participation in interdiction of vessels or aircraft
on or over the high seas, saying that such is not "required".
In addition to refusing to agree to the use of force, China also insisted on
insertion of the word "cooperative" regarding any enforcement action to be
taken, including the inspection of cargo moving to and from North Korea. This
was in part because it opposes foreign interdiction of ships or aircraft in or
over its waters. Russia's position is similar. Neither wants to legitimate US
policing of Northeast Asian waters.
Japan's new Prime Minister Shinzo Abe and leading hawks in his administration
support such interdictions. However, there are many inconvenient legal
obstacles to Japan's direct involvement in them. Its recently passed Ship
Inspection Operations Law allows such interdictions outside its territorial
waters only if the government determines that the situation constitutes an
emergency affecting the peace and security of Japan.
Otherwise, it cannot use force, including even the firing of live warning
shots. Defense Agency Director General Kyuma Fumeo has said it would be
difficult to define the North Korean nuclear test as such an emergency. It
could perhaps extend logistical support, such as fuel and port services - under
the law governing Self-Defense Forces operations to assist the United States -
but only to US military forces during emergencies in areas surrounding Japan.
And even if it did so, were a US vessel attacked, Japan could not provide
assistance - even if its vessels and aircraft were present - because it would
be exercising the prohibited "right to collective self-defense". Thus it is
understandable that Foreign Minister Taro Aso has said, "Japan is not thinking
of expanding sanctions to cargo inspection."
The initial effort to restrict North Korean trade in weapons of mass
destruction and related materials will likely be focused on ports. Rice urged
Northeast Asian countries to create a strict system of radiation monitoring and
inspections in their ports and airports and at borders on suspicious ships,
aircraft, railcars and trucks, and to share intelligence on which ones to
check.
The search and seizure (for safety violations) of a North Korean vessel in Hong
Kong - an action backed up by a US guided-missile frigate - is probably the
first of many such incidents to come. No banned items were uncovered, however,
perhaps indicating faulty intelligence, and possibly serving as a caveat for
future interdictions.
Regarding at- or over-sea interdictions of North Korean vessels or aircraft,
there are several possibilities. The first, already operative, is to station
warships and surveillance aircraft in the Yellow Sea and the Sea of Japan.
These assets could serve as a warning of the possible use of force by the
United States and others - whether or not it is authorized by Resolution 1718
or really intended. In other words, it could be an elaborate bluff that North
Korea would be reluctant to call, particularly if it can transfer such
materials through Chinese ports.
A second possibility is that the United States or Australia as a stalking horse
will actually interdict an aircraft or vessel if it can be demonstrated beyond
reasonable doubt that it is carrying prohibited materials. However, such an
interdiction would not be welcomed by China, South Korea and Russia. And third,
if there is hard evidence of ongoing trade in such items by sea or air, the
United States could go back to the Security Council to seek approval for the
use of force under Chapter VII Article 42.
But unless and until that is granted, such interdictions, without the
permission of the flag state, on or over the high seas could be considered an
act of war.
Some thought North Korea was bluffing when it said it would test ballistic
missiles. Some thought it was bluffing when it said it had a nuclear weapon.
And some thought it was also bluffing when it said it would test it. Now North
Korea has threatened war if its vessels or aircraft are interdicted. Given this
history of miscalculation on both sides, the United States and its friends in
the region need to consider carefully whether they want to contribute to
causing a second Korean War.
Dr Mark J Valencia is a maritime-policy analyst based in Hawaii and the
author of The Proliferation Security Initiative: Making Waves in Asia published
in October 2005 by the International Institute of Strategic Studies (London).
(Copyright 2006 Mark J Valencia.)
Speaking Freely is an Asia Times Online feature that allows guest writers to have
their say.
Please click hereif you are interested in contributing.
