Friday, June 26, 2009

"An Offer He Can't Refuse"

Another round of sanctions and inspections won't work. It's time to talk to the North Koreans in the only language they understand.

As a North Korean cargo ship suspected of carrying weapons approaches Burma, trailed by the U.S. Navy Destroyer John McCain, the U.N. Security Council's June 12 resolution against North Korea's weapons trade faces its first test.

The resolution bans most arms transfers to and from North Korea, calls on states to conduct inspections of North Korean ships in their ports or on the high seas when there are "reasonable grounds" that banned cargo is on a ship, and allows states to seize and dispose of illicit weapons. These steps have been touted by U.S. diplomats as "innovative," "robust," and "unprecedented." But the resolution is in fact nothing more than a feeble attempt to force North Korea to comply with pre-existing nonproliferation agreements, reminiscent of the council's failed decade-long efforts to force Saddam Hussein to comply with Iraq's disarmament obligations. In Iraq, it was military force, not economic sanctions, that finally worked. It is naive to think that the situation in North Korea, a country that has lived under sanctions for the past 60 years and allowed large segments of its population to starve, will be any different.

What has gone largely unnoted about the resolution is that its provisions on boarding and inspecting ships and aircraft simply allow what states already have a right to do under international law. It is already well-established that a state has complete jurisdiction over foreign vessels that enter its ports, including the right to inspect cargo and the right to deny entry altogether.

Similarly, a provision that "calls upon Member States to inspect vessels, with the consent of the flag State on the high seas" adds nothing to the recognized legal regime applicable to boarding vessels at sea. In fact, the resolution may have the unintended consequence of hindering the boarding of vessels, because it requires that permission be obtained from the "flag State" - i.e. North Korea - rather than the ship captain.

More worrying is the lack of an adequate enforcement mechanism if North Korea fails to grant consent for the boarding. The resolution, which was adopted under Article 41 of the U.N. Charter and is therefore limited to "measures not involving the use of armed force," does not provide any solution.

North Korea, moreover, has likely learned a few lessons from its past mistakes. In December 2002, for example, a Spanish frigate stopped and boarded the North Korean merchant vessel So San approximately 600 miles off the Horn of Africa at the request of the United States. After the So San ignored the Navarra's hails and several warning shots, Spanish Special Forces seized the vessel, which had been tracked by U.S. intelligence agencies and was suspected of carrying weapons. Aboard the ship were 15 complete Scud missiles, 15 high-explosive warheads and 23 nitric acid rocket fuel containers bound for Yemen.

Along with the lack of response to hails, there was another factor that helped permit the Spanish to seize the ship: The So San wasn't flying a North Korean flag, which under international law counts as reasonable grounds to suspect that the vessel is stateless, and therefore that it can be lawfully boarded. In the future, however, we can expect North Korean merchant ships to prominently display their flags and respond to hails, making it more difficult to search them legally.

Even if we put the problem of enforcement aside, however, what diplomatic goals can the inspections resolution possibly accomplish? Pyongyang has no intention of returning to the negotiating table. On June 13, North Korea's Foreign Ministry condemned the passage of the resolution and stated that North Korea would not only "turn the remaining volume of newly enriched plutonium into weapons" but would also "launch efforts to enrich uranium." This is the first acknowledgement by the regime that it has been developing a uranium enrichment program. U.S. officials estimate that North Korea already possesses six to 12 nuclear devices and has accelerated its ballistic missile and nuclear testing.

Additionally, the vice chairman of the Joint Chiefs of Staff indicated in testimony before the Senate Armed Services Committee that "North Korea may be able to overcome technical difficulties and assemble a missile capable of hitting" the West Coast of the United States within three to five years. And, although analysts believe that North Korean scientists have not yet mastered the technology to place a nuclear weapon on a long-range ballistic missile, it is only a matter of time before they will.

If the international community is serious about maintaining the integrity of the Nuclear Nonproliferation Treaty - which is of course already in doubt since Israel, Pakistan, and India have been allowed to possess nuclear weapons -- the United Nations must act now to adopt a more relevant resolution affording North Korea one last opportunity to comply with its obligations. The resolution should establish a strict deadline for compliance and authorize the establishment of a complete blockade of North Korea if the deadline passes and North Korea is still thumbing its nose at the world. Getting tough on Kim Jong Il's regime will also send a strong message to Iran that it will face similar action if it fails to abandon its uranium enrichment activities.

We can take measures to force these regimes into compliance now, or we can wait until they are already nuclear capable -- when the stakes will be significantly higher.

Submitted by Raul Pedrozo, professor of international law at the Naval War College and the former staff judge advocate for the U.S. Navy's Pacific Fleet.

Pic - Great Satan's Guided Missile Destroyers