- The Washington Times - Sunday, August 24, 2003

The seizure June 24 of the cargo ship Baltic Sky by Greek commandos in Greek territorial waters and the seizure July 1 by Spanish forces of a ship carrying South Korean Daewoo arms to Senegal are manifestations of the U.S.-led Proliferation Security Initiative.

The initiative was proposed by President Bush on May 3 in Poland. Specifically, the Bush administration is pressing a group of like-minded countries to agree to selective interdiction of ships bound to or from “rogue nations” carrying materials or technology used to manufacture or deliver weapons of mass destruction. Foremost on the U.S. agenda is North Korea’s trade in such weapons. Iran, Syria and Libya round out the list of countries of concern.

Midlevel officials from the United States, Japan, Britain, Italy, Australia, France, Germany, Poland, Portugal, the Netherlands and Spain met in Madrid in mid-June to discuss the proposal. They met again in Brisbane, Australia, on July 9 and 10.

The contents of the proposal are fluid at this point. There appears to be a divergence of views within the group, with one faction led by the United States and Australia pushing to set up “some other structure outside the formal system.” Indeed, John Bolton — undersecretary of state for arms control and international security, and leader of the U.S. delegation — said: “We are prepared to undertake interdictions right now, and, if that opportunity arises, if we had actionable intelligence and it was appropriate, we could do it now.”

He further asserted that the countries concerned had reached an agreement authorizing that the United States act on the high seas and in international airspace. However, Britain was taken aback by this interpretation, saying that “all 11 participants agreed that any action that might be taken would have to be consistent with international law.”

Although there was one report that the interdiction of ships on the high seas has been dropped from the proposal, others in the would-be coalition feel that the United States is moving too quickly and too aggressively. There are concerns that the proposal could evolve into a multinational force roaming the seas and skies in search of transporters of illegal or undesirable weapons.

Joint military exercises could begin as early as September or October in the Pacific, the Mediterranean and the North Atlantic. The exercises will involve air, sea and land forces, with an emphasis on naval interdiction. Meanwhile, an intelligence-sharing network is being constructed.

It is important to ensure clarity and agreement on the scope of the program before implementing it. International law allows interdiction and boarding of suspect vessels on the high seas only with the permission of the country under whose flag the ship is sailing; if the vessel is stateless, or if the ship is a pirate vessel, transporting slaves or illegal drugs, or being used for unauthorized broadcasting.

Other than in these circumstances, there would be three basic international-legal problems with interdictions on the high seas.

First, it is not illegal for nations who are not signatories to the nuclear Non-Proliferation Treaty or the Missile Control Technology Regime to ship nuclear materials or missiles to one another on their own flagged vessels. And it is not illegal to trade commercially in explosives or arms.

Second, according to the 1982 U.N. Convention on the Law of the Sea, warships and government ships used for only noncommercial purposes have immunity from the jurisdiction of any other state on the high seas. This could include warships or government vessels transporting weapons to other states on a noncommercial basis.

Third, and far more important, such interdictions, agreed or otherwise, could undermine the carefully nurtured balance enshrined in the U.N. convention. This treaty was a grand bargain between developing states and the maritime powers, and is seen by most countries as a package deal.

A major bone of contention during the nearly two decades of acrimonious negotiations was the desire of developing coastal states to limit the “freedom” of navigation of the maritime powers. However, maritime powers led by the United States insisted on broad freedom of navigation out of concern that their naval and air access and mobility could be severely restricted by the global Exclusive Economic Zone “enclosure” movement. The contending groups finally agreed to establish three major zones.

• A 12-nautical-mile territorial sea where coastal states retain sovereignty over most activities and where only innocent passage is allowed — that is, passage that is not “prejudicial to the peace, good order or security of the coastal state.”

• A 200-nautical-mile Exclusive Economic Zone where coastal states retain sovereign rights over resources and related activities, but maritime powers retain most of their high-seas navigational freedoms.

• The high seas, where navigational freedoms remain unencumbered.

The treaty came into force in November 1994 upon its 60th ratification. The U.S. Congress has yet to ratify it but is expected to consider it next year.

Nevertheless, the United States has long argued that the navigational freedoms codified by the convention are customary international law. Aside from deviating from the traditional U.S. defense of freedom of navigation, exceptions to such rules, agreed or not, can, over time, create law and practice.

If the United States can arrange for such exceptions, so could other countries. What is more troubling to some nations is that the United States may proceed with interdictions in other countries’ waters without their concurrence or even their knowledge.

U.S. Defense Secretary Donald H. Rumsfeld has said that “the United States would mount a maritime interdiction effort anywhere the benefits outweighed the costs.”

The December forced boarding, inspection and seizure of the North Korean cargo vessel So San on the high seas by the Spanish warship Navarra at the behest of the United States was perhaps the first major shot in this U.S. maritime initiative.

The U.S. Navy took over the detention of the vessel from the Spanish. The vessel was technically stateless, although the U.S. knew it had come from a North Korean port. Such vessels are subject to boarding and inspection — but not seizure. Although the United States released the vessel, the damage to international law and the convention had been done.

In the Baltic Sky case, the vessel was carrying 750 tons of industrial-grade explosives and detonators from Tunisia to Sudan. NATO said that the ship was operating in an abnormal and suspect manner. But Tunisia as well as the cargo buyer in Khartoum said the purchase and transport of the explosives were part of a purely commercial transaction.

Of course Greece might have considered that transporting such a dangerous cargo through its territorial waters was prejudicial to its security. But that is up to the courts, or perhaps the International Tribunal for the Law of the Sea to decide. And in the North Korean arms case, Pyongyang protested that the cargo was a legitimate commercial transaction.

What are the options?

The United States could try to get the U.N. Security Council to pass a resolution “authorizing states to board and inspect any vessel or vehicle if there is reason to believe they are carrying weapons of mass destruction.” But after opposition in the council regarding the U.S.-led invasion of Iraq, this is unlikely. That China and Russia are not part of this initiative and sit on the council presents formidable obstacles.

The United States could try to get NATO’s endorsement and cooperation. According to the U.N. Charter, regional organizations, such as NATO, are permitted to take measures to secure their regions, which for NATO would be a large part of the Western world.

Since weapons of mass destruction could pose a global threat, NATO could have broad authority to interdict weapons heading to rogue nations. But the administration could face considerable challenges in winning NATO’s support because all its members must agree to the plan for it to receive alliance approval.

The United States could try to beef up the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation.

The United States and other maritime powers have proposed amending the convention to add offenses, including transporting weapons of mass destruction or substances useful therein, and to facilitate boarding suspect ships on the high seas. But they have been opposed by some parties to the convention.

The United States and its coalition also could invoke Article 51 of the U.N. charter, arguing that after September 11, 2001, weapons of mass destruction in the hands of avowed enemies constitute a clear and present threat to the nations’ security. However, the United States and its coalition would have to demonstrate that the interdicted cargo presented an imminent threat of attack, a rather difficult task.

Finally, the United States could continue its efforts to build a coalition of nations willing to cooperate in this effort. U.S. counterproliferation goals might be best served by expanding efforts through enhanced cooperation in surveillance, intelligence gathering and exchange.

Without amending either national laws or freedom of navigation under the convention, this would entail relying upon those states willing to cooperate, and waiting until suspect vessels or aircraft enter their territorial waters or airspace before seizing or forcing them down. An adjunct would be to focus on strengthening screening in ports to prevent such shipments from reaching the high seas.

The problem with any of these options is that some countries in the region are concerned about provoking North Korea and might not participate in the initiative. North Korea has repeatedly said it would view an embargo or interdictions as an act of war. Even Japan, which attended the two meetings, seems to be hedging its bets on participation.

Indeed, Japan has said the initiative does not specifically target North Korea. The use of Japanese warships on the high seas for such interdictions could raise sensitive issues for Tokyo domestically as well as among its neighbors, which suffered at Japan’s hands during World War II. Although Japan’s navy, the Maritime Self Defense Force, may not participate, its coast guard may do so.

And China, Russia and most notably South Korea might not participate. If they do not, any embargo or interdiction net will have fatal holes and thus be largely symbolic at best. Nevertheless, it is possible that the threat of interdiction would curtail some shipments of the bulky factory equipment necessary for manufacturing weapons of mass destruction but not small amounts of plutonium, the core ingredient in some nuclear weapons.

Combinations of planes, trains or ships carrying weapons material from or to North Korea could link it to cooperative states, for example, Pakistan or Iran, by passing through Chinese or Russian territory or airspace.

Moreover, the objective is not only to stop trade in weapons of mass destruction, but also to limit international income to North Korea, whose income is derived in good part from weapons sales, particularly missiles. Allowing legitimate commercial transport would undermine the objective of the policy. But interdicting legal shipments could undermine international law.

If carried to its extreme, the Proliferation Security Initiative also could further undermine the concept of the sovereignty of nations. Australian Foreign Minister Alexander Downer said recently that Australia no longer considers the sovereignty of other nations as absolute in international law, as it is more important to end humanitarian suffering or security crises. The United States demonstrated this in Kosovo.

The U.S. maritime initiative runs the risk of introducing a “might makes right” regime for the law of the sea. As a result, this initiative and resistance to it might stimulate a sorely needed, frank discussion of U.S. intentions and their implications for the law of the sea, the concept of sovereignty and world order in the 21st century.

• Mark J. Valencia is a senior fellow at the East-West Center in Honolulu. He has a doctorate in oceanography, and his research interests include maritime policy, maritime conflict resolution and international relations in Asia.

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