The Turtle Bay Pivot: How the United Nations Security Council Is Reshaping Naval Pursuit of Nuclear Proliferators, Rogue States, and Pirates

• Publication year: 2018

The Turtle Bay Pivot: How the United Nations Security Council Is Reshaping Naval Pursuit of Nuclear Proliferators, Rogue States, and Pirates

Brian Wilson

THE TURTLE BAY PIVOT: HOW THE UNITED NATIONS SECURITY COUNCIL IS RESHAPING NAVAL PURSUIT OF NUCLEAR PROLIFERATORS, ROGUE STATES, AND PIRATES

Brian Wilson^*

Abstract

Multinational action at the United Nations to combat illicit activity represents the most consequential sanctions period involving the maritime environment since the Athenian Empire's Megarian Decree. From its inception, the Security Council has authorized measures that have led to naval approaches or boardings of more than 50,000 ships, the destruction of 3,500 vessels, and the maritime rescue of 40,000 people in the pursuit of transnational security threats. While the Security Council has addressed maritime challenges over the past seven decades, a diplomatic renaissance began in 2008 with decisions impacting naval engagements unfolding with unparalleled frequency: From 1946 to 2007, resolutions were adopted about once every 1.7 years, and since, are now approved every 2.5 months. The Turtle Bay pivot is emblematic of an increased emphasis in collaborative responses to contemporary transnational security threats, yet questions remain, such as whether the Security Council is diluting their unique authority and the vitality of law-of-the-sea principles including freedom of navigation, innocent passage, and the general concept of exclusive flag State jurisdiction. Varied interpretations of resolutions, ensuring compliance, and overcoming challenges inherent in conducting at sea boardings further complicate the coordinated pursuit of illicit activity. This Article surveys hundreds of Security Council decisions to identify six categories of resolutions that could involve the maritime environment, examines their influence and intersection with one another, discusses potential future focus areas, and concludes with recommendations to improve the utility of these mandates.

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Introduction.................................................................................................3

I. United National Security Council (U.N.S.C.)..............................9

A. Background, Overview, Legal Considerations, and the Law of the Sea .......................................................................................... 9
B. The Earlier Years: The U.N.S.C. and the Maritime Environment ............................................................................... 30

II. U.N.S.C. Resolutions with an Impact, or Potential Impact, in the Marititme Environment ..........................................................41

A. DPRK Model .............................................................................. 42
B. 1540 Model................................................................................. 54
C. Somali Piracy Model .................................................................. 59
D. Mediterranean Migrant-Smuggling and Trafficking-in-Persons Model.......................................................................................... 67
E. Embargo Model.......................................................................... 71
F. Gulf of Guinea Model................................................................. 80

III. Judicial Examination of Naval Enforcement Action Taken with a maritime nexus ...................................................................83

Conclusion...................................................................................................85

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Introduction

The United Nations Security Council, hereinafter referred to as the Security Council or U.N.S.C., has become the venue of choice for states seeking expanded authority to counter maritime security threats, recently adopting dozens of resolutions that are both broad in scope and legally transformative. Recent multilateral decisions in New York represent a lengthy journey from an Athens trade embargo in 432 B.C.,¹ yet the passage of almost 2,500 years highlights the enduring role of sanctions in the maritime environment to impose operational or economic consequence, diplomatically condemn activities, or publicly signal disfavor of illicit actions.² From evicting Iraq from Kuwait and repressing Somali piracy to seeking to shut down North Korea's illegal nuclear program, the Security Council has become increasingly influential in naval operations. The threats addressed highlight the urgency of multilateral cooperation in an operating space that is vast, vulnerable to exploitation, and economically critical.

Over the past decade, the Security Council has authorized the naval pursuit of rogue states, nuclear proliferators, pirates, and migrant smugglers with unparalleled frequency. From 1946 to 2007, the Security Council adopted approximately thirty-six resolutions with a direct or indirect impact in the maritime environment.³ In the following decade, from 2008 to 2017, the Security Council approved more than fifty such resolutions.⁴ What previously occurred about once every 1.7 years at Turtle Bay for six decades—the adoption of a resolution with a direct or indirect maritime impact—now is routine, transpiring every 2.5 months. The issue is not of interest solely to those in diplomacy or academia: operations by naval forces in venues across the globe are being

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planned, approved, and conducted under the aegis of Security Council direction.⁵

The expanded maritime focus that generally began in 2008 parallels a spike in Security Council decisions following the end of the Cold War,⁶ with more than ninety-three percent of all U.N.S.C. decisions occurring after 1990.⁷ The Turtle Bay⁸ pivot reflects both a transformed political environment and a contemporary diplomatic recognition that whereas the process of developing or amending a treaty is usually lengthy, the Security Council is exclusively positioned to act swiftly to address transnational security threats. The considerable authorities possessed by the U.N.S.C., the primary organ of the United Nations and discussed infra, are correctly characterized as giving it latitude "like no other body in history."⁹

Security Council resolutions have led to queries, boardings, and diversions, among other naval enforcement measures, of more than 50,000 ships in the past twenty-five years.¹⁰ Since the inception of the United Nations, measures taken

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under the authority of a U.N.S.C. resolution have led to the destruction of more than 3,500 vessels.¹¹ And separately, implementation of U.N.S.C. resolutions between 2015 and 2017 has led to the maritime rescue of approximately 40,000 people.¹²

U.N.S.C. authorization has also supported the naval pursuit of the Hansa India, illegally transporting "tons of bullet casings" from the Islamic Republic of Iran¹³ and the Francop, carrying "36 containers of arms and related materiel, including . . . 12,000 anti-tank and mortar shells, more than 20,000 fragmentation grenades, and more than half a million rounds of ammunition."¹⁴ Other noteworthy naval engagements conducted under the authority of a U.N.S.C. resolution include the North Korean-flagged freighter M/V Kang Nam 1,¹⁵ believed to be carrying missile components, and of the Belize-flagged M/V Light¹⁶ suspected of shipping missile components and technology from a North Korean port; the blockading and diversion of the Cyprus-flagged M/V Vento Di

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Ponente,¹⁷ suspected of carrying proscribed arms and related material into Libya; counterpiracy operations on the high seas, in the Somali territorial sea, and on land;¹⁸ the seizure of M/V Jin Teng, a Sierra Leone-flagged, North Korean-owned cargo ship;¹⁹ and the seizure by the French frigate F/S Provence in the northern Indian Ocean of a dhow illegally transporting to Somalia "several hundred machine guns, anti-tank weapons and AK[-]47 assault rifles[;]"²⁰ Moreover, naval forces from Australia, France, and the United States seized more than 8,000 AK-47 assault rifles between 2015 and 2018 in multiple interdictions of vessels carrying illicit weapons to Yemen.²¹

Naval measures conducted across the globe addressing a diverse array of threats underline the utility of U.N.S.C. resolutions and the complexity of maritime enforcement. There are limits, however, to Security Council decisions.²² Regarding high seas interdictions, there are well-established law-of-

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the-sea²³ principles crucial to global commerce, such as freedom of navigation and the general concept of exclusive flag State jurisdiction, that must be considered,²⁴ and departed from where necessary in the pursuit of threats to the peace. Fundamental law-of-the-sea principles are reflected in the Convention on the Law of the Sea (LOS Convention), the seminal document for maritime issues.²⁵ Development spanned nine years of negotiations on issues such as the breadth of the territorial sea, innocent passage, transit passage rights, dispute resolution, fisheries, and the 200-nautical mile exclusive economic zone, among other issues. This comprehensive instrument—adopted in 1982 and entered into force in 1994—includes 320 articles and nine Annexes.²⁶

Debate over almost every word between 1973 and 1982 resulted in a treaty that balanced the rights of coastal States with navigational freedoms. That said, contemporary threats such as the use of semi-submersible vessels to transport illicit cargo, Global Positioning Systems (GPS) interference, and Automatic Identification System (AIS) spoofing did not exist when the LOS Convention was drafted. Moreover, an effort to interpret more than 200 undefined terms in the LOS Convention is almost the same length as the treaty itself.²⁷ Regardless of limitations, the 1982 accord is recognized as the foundational source of law for high seas enforcement measures,²⁸ global mobility, and is the starting point for discussions in Turtle Bay regarding threats to the peace involving or impacting the...