Mon, Jun 08, 2009 page9

• Messy business in the blockade of a renegade

  • By James Holmes
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  There’s a grain of truth to North Korea’s hyperventilating over South Korea’s accession to the Proliferation Security Initiative (PSI), which Seoul announced last week in response to the North’s nuclear and missile tests. When the initiative was founded in 2003, the official Korean Central News Agency branded “the US loudmouthed PSI” a “foolish trick to justify the inspection, control and blockade against the independent sovereign countries including the DPRK [Democratic People’s Republic of Korea].”

  Pyongyang threatened “immediate, strong military measures” should Seoul actually stop and search any North Korean ships under the initiative. “Blockade” is the decisive term in this exchange of diplomatic fire. International law considers blockading an enemy’s shores an act of war, warranting an armed response. Legally speaking, vessels that fly a country’s flag form part of that country’s sovereign territory.

  Boarding a North Korean ship, that is, equates to landing on North Korean soil without Pyongyang’s permission. Ships are generally exempt from boarding on the high seas, a domain outside the jurisdiction of any government. Now, South Korea or another participating PSI state — Japan and Russia also belong to the initiative — could board a North Korean ship without Pyongyang’s consent.

  In practical terms, then, it’s fair to describe PSI action as a partial blockade, since it involves violating sovereign territory to halt transfers of certain items deemed contraband.

  The PSI is a compact committing 90-plus, mostly seafaring countries to halt shipments of substances and technology used to construct nuclear, biological, or chemical arms or ballistic missiles. PSI “participants” — the initiative is “an activity, not an organization,” and thus has no formal membership procedures or administrative apparatus — typically try to intercept proscribed cargoes in transit from sellers to buyers.

  Under the initiative’s “Statement of Interdiction Principles,” its founding document, participating states detect and interdict suspect shipments at sea, ashore, or aloft. Maritime interdiction is the most visible, since it involves high-profile assets like warships and naval aircraft. Japan hosted “Team Samurai ’04,” a well publicized maritime interdiction exercise, in the early days of the PSI.

  North Korea is not wrong to see the PSI as an endeavor targeted at it. Indeed, the 2002 interception of a North Korean freighter carrying Scud missiles to Yemen precipitated the PSI’s founding. So again, there’s a kernel of truth amid Pyongyang’s rhetorical excesses. But if PSI operations constitute a partial blockade, does the initiative have the legal authority to interdict cargoes traveling under the North Korean flag?

  Yes. The initiative was on flimsy legal ground at its inception. Or, more precisely, it was on flimsy ground with regard to interceptions in international waters or airspace, domains outside the jurisdiction of any government. But the PSI participants have made impressive headway since 2003, orchestrating a series of legal measures that bestow legitimacy on interdiction operations — especially operations aimed at North Korea.

  Most strikingly, UN Security Council Resolution 1718 imposed a variety of sanctions. Enacted after Pyongyang’s 2006 nuclear test, the resolution specifically empowered UN member states to stop and inspect cargoes bound to or from North Korea. The UN Charter grants the Security Council wide latitude to define and counteract threats to international peace and security. Resolution 1718 represents the gold standard for enforcement authority.

  South Korea and fellow PSI participants are on firm legal footing in their tussle with the North.

  PSI nations ultimately want to amass more general authority to prosecute counter-proliferation efforts, beyond the standoff with Pyongyang. Certain exceptions to freedom of navigation gained legitimacy over the centuries before being codified in written treaties. For example, ships engaged in piracy or slave trading are subject to boarding on the high seas. By banding together to stop weapons-related cargoes, PSI nations are trying to add proliferation to this list of universal offenses.

  Will they succeed? Gyrations over what constitutes permissible infringement on free navigation are nothing new.

  US president Abraham Lincoln tied himself in legal knots by imposing a blockade on the breakaway Confederacy while simultaneously labeling the Confederates an insurgency, a nonstate actor with no standing under international law. In the Cuban Missile Crisis, the Falklands War and the Iraq wars, states cordoning off their opponents went out of their way to avoid declaring formal blockades. Instead they billed their actions as maritime “exclusion zones,” “quarantines” and the like.

  The PSI’s struggle for broad acceptance, then, is only the latest in a series of protracted legal wrangles.

  Now, as in bygone eras, making and enforcing maritime law is a messy business.

  James Holmes is an associate professor of strategy at the US Naval War College and a faculty associate at the University of Georgia’s School of Public and International Affairs. The views voiced here are his alone.
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