March 15, 2019

The US is frustrated by North Korea’s continuing violation of UN sanctions by using rogue vessels to import and export banned cargo, sometimes transferring the cargo at sea. So it wants to interdict suspect vessels on the high seas using force if necessary. The problem is that doing so without the consent of the flag state would violate the international law of the sea.

 

John Bolton, the US National Security Advisor is taking the lead on this. He is well suited for the task. He seems to have little regard for international law, especially when it does not serve his interpretation of US interests. He apparently believes that US sovereignty and freedom of action are wrongly constrained by international law, multilateral organizations-especially the UN-and global treaties. To Bolton these are political impediments to be ignored or re-interpreted as expedience dictates. Instead he prefers the use of force - unilaterally if necessary - or “coalitions of the willing”, acting independently of the UN, regardless of the long term consequences for the existing ‘international order’. 

 

Indeed, Bolton has a long history of disregard for international law and the existing international ‘order’. He supported the invasion of Iraq-which many think was a blatant violation of international law and an unmitigated disaster for the U.S., Iraq and the region. He seems to favor abandoning the “one-China policy”, strengthening US-Taiwan relations and supporting the independence -leaning faction in Taiwan. His whole hearted support of Israel and antagonism toward Iran- if translated into action- are likely to upset the fragile political ‘order’ in the Middle East.

 

Regarding North Korea, he advocated a pre-emptive strike despite all the repercussions for the geopolitical and international order that might entail--above and beyond the human costs.

 

More recently, according to Jeong Se-Hyun, South Korea’s former Unification Minister, Bolton may have played a major role in the failure of the US-North Korea Hanoi summit by advocating ‘moving the goalposts.’ U.S. apparently surprised North Korea by demanding that it agree to a ‘pathway’ to denuclearization that included the dismantling of all its weapons of mass destruction programs -nuclear, chemical and biological - and specifically a hidden highly enriched uranium processing plant- before any sanctions could be lifted. Jeong said “Bolton’s specialty is to abruptly move the goal posts”.

 

This provides background and context to his latest attempt to change or violate international law. He is trying to organize a “coalition of the willing” to interdict- with the use of force if necessary- vessels on the high seas suspected of carrying UN banned cargo to or from North Korea. Such use of force without the consent of the flag state or UN Security Council (UNSC) approval would violate a centuries old bed rock principle of international law and custom-the freedom of navigation-which the U.S. has long insisted upon and claimed to defend. As such it would undermine international order -the very system the US helped build, promotes and claims to protect against alleged violators like China.

 

This idea was already being floated before Bolton assumed his present post. Then National Security Advisor General Mc Master and then Defense Secretary James Mattis reportedly had a shouting match over the idea. McMaster insisted that Mattis order the interdiction of suspicious North Korean ships on the high seas to determine whether they were engaged in violating sanctions. But Mattis refused because he was concerned that a conflict at sea in the current political environment could quickly escalate. Indeed, North Korea and others could legitimately consider such forceful interdiction an ‘act of war’. Such interdiction would be a clear use of force in violation of the UN Charter. But apparently, that such interdiction without UN authorization would violate international law was not a consideration.

 

The problem for the US and others is that despite broad and tough sanctions, banned items can still be “smuggled” in and out of North Korea using at sea transfers. Moreover those observed doing so may deny it. For example, the Maldives government denied a Japanese Foreign Ministry claim that a Maldivian-flagged ship transferred goods to a North Korean-flagged tanker in the East China Sea. It seems that it is necessary to physically catch violators in the act to prove culpability and generate deterrence.

 

Now Bolton is reviving the idea with relish. He says, “We [are] looking at ways to stop the ship to ship transfers that the North Koreans are using to evade the sanctions” .

 

US Senator Cory Gardner, the chairman of the East Asia subcommittee of the Senate Foreign Relations Committee is apparently supportive. In relation to the maximum pressure campaign, he said “We must do better, especially with clear evidence of pervasive sanctions violations with regard to illicit ship-to-ship transfer of sanctioned goods”.

 

Bolton has considerable experience trying to change the relevant international law. When he was Under Secretary of State for Arms Control and International Security he tried to get around existing international law governing interdiction at sea. His plan was to change the understanding of that aspect of the principle of freedom of navigation through changing state practice. To do so, he created and built the Proliferation Security Initiative (PSI) The PSI was to be an interdiction ‘activity’ intended to prevent the spread of weapons of mass destruction (WMD), their delivery systems and related materials from entering or leaving ‘states of proliferation concern.’ It was purposely designed to operate outside the UN system and instead relies heavily on a “coalition of the willing.”

 

The PSI was legally and politically controversial from the start. It has been criticized for lacking transparency, stretching if not violating principles of international law, weakening the UN system, being politically divisive, and diluting other non-proliferation efforts. Some consider it a dangerous precedent that could undermine the very foundation of the UN.

 

Bolton tried to convince allies and friends -and other potential supporters- that interdiction under the PSI would be legal. But Australia -one of the initial members of a “coalition of the willing” recognized that there was probably a need to change international law to facilitate these types of interdictions on the high seas and expressed reservations. The U. K. was taken aback by Bolton’s interpretations and intentions and insisted that any action taken under the PSI must be consistent with international law.

 

China and Russia have consistently opposed the use of force for such interdictions. Yes, some of the vessels involved in the suspicious activity are flagged or owned by Russian and Chinese entities. But their fundamental concern is that the erosion of the principle of freedom of navigation could one day be used against them or their friends and allies. And one day this worm might turn against the U.S. and its allies and partners as well.

Bolton and the U.S. should stay within existing international law and not be penny wise and pound foolish by upending the existing international law and order.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China

Link: https://www.eurasiareview.com/15032019-us-wants-to-change-the-law-of-the-sea-analysis/ 

   

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