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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For more than a week now, U.S. warships have been tailing a North Korean vessel suspected of carrying illegal weapons while it sails round in circles off the coast of China. The latest U.N. Security Council resolution on North Korea (RES. 1874) has proved to be nothing to laugh at, and may well have led Burma--the ship's supposed destination--to revoke its invitation for a North Korean port call. That, in turn, may soon compel Pyongyang to bring the vessel back to home port.

Resolution 1874 allows our navy to board North Korean ships, but only if North Korea agrees, which is not very likely. A ship, though, in effect consents to inspection when it requests permission to dock in a foreign port, and the resolution directs host countries to inspect any vessels suspected of carrying illegal North Korean weapons and to deny them fuel and water until the grounds for suspicion are dispelled. That is new, and it could well have created a serious problem for North Korea. After many days heading south, the vessel is now--very slowly--heading back north again, and may soon run out of fuel. So far, so good.

What's not so good is the ubiquity, in reports and official statements, of arguably the most unfortunate word in the lexicon of American diplomacy: "authorization." In order to secure support for the resolution, Susan Rice, the new U.S. ambassador to the United Nations, agreed that it would not "authorize the use of force" to interdict any suspect North Korean vessel. The implication is that without the Security Council's authorization, forcible interdiction would be illegal.

If you don't see how that can be a problem, just remember what happened in 2003 when we promised Tony Blair that we would seek a "second resolution authorizing force" against Iraq and then followed him straight into an ambush in the Security Council. It hardly mattered that according to the State Department, force was already authorized and a second resolution would only be icing on the cake. We agreed to seek authorization, failed to get it, and then invaded anyway. It was a diplomatic disaster, with strategic consequences that are still being felt.

The United States does have good reason to hesitate before interfering with foreign ships on the high seas. In the earliest years of the American nation, vindicating "freedom of the seas" was the highest priority of our foreign policy, considered even more pressing than the final definition of our borders. Now, as we are trying to make it as difficult as possible for North Korea to navigate freely in the "global commons," international compliance with the sanctions regime could fall apart if the United States is not the first to uphold the freedom of the seas.

But that does not mean we should give up the rights we actually have, especially not that of self-defense.

Consider the Cuban Missile Crisis. When it was discovered that the Soviets were setting up nuclear missiles in Cuba, President Kennedy ordered a "quarantine" of the island, requiring all ships sailing in waters around Cuba to submit to U.S. naval inspection or leave the area. Kennedy's threat to use force against Soviet warships violating the quarantine was probably the closest the world ever came to nuclear war.

But such a naval blockade had not been "authorized" by the Security Council. The American Journal of International Law published a commentary at the time ("on behalf of the board of editors") arguing that the quarantine was contrary to international law as it had not been "authorized" by the Security Council. Kennedy would have none of it. "We, of course, keep to ourselves and hold to ourselves," he said at a press conference, "under the United States Constitution, and under the laws of international law, the right to defend our security."

The U.N. Charter was adopted at the San Francisco Conference of 1945, in which the 50 victors of World War II took up a draft treaty devised mainly by the Russians, British, and Americans the year before. As proposed in that draft, the key prohibition on the use of force required states to "refrain in their international relations from the threat or use of force . . . in any manner inconsistent with the Purposes of the United Nations"--purposes which included "the prevention and removal of threats to the peace."