The Magazine

To Board or Not to Board?

That is a question to be decided in Washington, not by the U.N. Security Council.

Jul 13, 2009, Vol. 14, No. 40 • By JEREMY RABKIN and MARIO LOYOLA
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The administration chose "authorize" as a weaker version of "recommend" or "call upon" without meaning to imply that the United States needed any resolution under international law. Yet only 12 years later, some of our own allies claimed that we needed Security Council authorization in order to enforce the original Gulf war resolutions. If the council had just "recommended" or even "called upon" states to help liberate Kuwait, the resolution would have served its political purpose without any adverse implications under international law. But the precedent was set, and so were the terms of many future debates about our diplomacy.

What if we had evidence that a North Korean ship might be carrying nuclear materials to Iran? It is difficult to believe that Obama would wait on council authorization in a situation that clearly demanded immediate action. The Obama administration contains its share of hawks and has given clear signs that all options remain on the table for the defense of our vital interests. But if he's smart President Obama will also leave plenty of room between the rights he claims and the decisions he eventually takes.

It may not be prudent to board North Korean vessels right now, but it is dangerous to give the impression that we don't have the right to do so. It's dangerous because it erects an unreasonable standard of "lawful" conduct which we may well have to violate another day and because it encourages states like North Korea to think that they can do as they please on the high seas.

North Korea has already inflicted enormous damage on the nonproliferation regime; the cancer of nuclear proliferation among rogue regimes has already begun to metastasize because of North Korea's nuclear breakout after 1994. Coming from a criminal regime, which has declared itself to be once again at war with the United States, the illegal weapons or nuclear materials aboard any of those vessels could constitute a proliferation risk of such gravity as to make a forcible inspection of the contents both necessary and proportional.

When the intrinsic legality of an action taken in self-defense is manifest, its legitimacy cannot depend on political endorsement from the Security Council. Those who suggest otherwise are advocating not for international law, but for world government. The job of the U.S. mission to the United Nations is to vindicate the sovereign rights of the United States, not transfer them to an undemocratic and unaccountable international organization. The Security Council needs to get out of the business of authorizing us to do things that we already have the right to do.

Jeremy Rabkin is a professor of law at George Mason University and the author of Law Without Nations? Mario Loyola,
a fellow at the Foundation for the Defense of Democracies, is a former adviser in the U.S. Senate and at the Pentagon.