Today President Obama is scheduled to preside over a United Nations Security Council meeting on nuclear nonproliferation. He should use the occasion to address a critical weakness in the effort to halt the spread of nuclear weapons: the international community’s inability to stop and inspect a ship suspected of carrying nuclear materials without first getting permission from the country whose flag the ship is flying.
Despite a host of United Nations nonproliferation initiatives like this year’s Resolution 1874, which calls on countries to allow such inspections, international law still prohibits interfering with another nation’s ship in international waters without permission. Additionally, the resolution does not authorize the use of force if a country refuses to let its ship be inspected. Thus, if a North Korean ship is transporting nuclear weapons to Myanmar, little can be done to stop it in international waters without North Korea’s permission.
This principle of “flag-state jurisdiction” has generally been accepted since the 17th century, when Hugo Grotius wrote “The Freedom of the Seas”, arguing for Holland’s right to use trade routes monopolized by the Spanish and Portuguese. It’s codified in the United Nations Convention on the Law of the Sea. And it has meant that a number of ships suspected of carrying nuclear materials have not been stopped.
Flag-state jurisdiction should now be amended to allow exceptions to combat nuclear proliferation and terrorism. A precedent for this already exists: in the Law of the Sea, the principle does not apply to ships involved in piracy or the slave trade, which can be detained. The freedom of the seas has to be balanced against modern security needs.
Today, the Security Council should discuss how to go about changing the law. But potential proliferators may not agree to a treaty allowing their ships to be boarded. Fortunately, there is another means of changing maritime law: state action.
While there is no precise analogy in domestic law, a new maritime law can come into being simply through general international consensus. For example, in 1945 President Harry Truman declared that the United States would have exclusive use of its continental shelf. Other states accepted this and made similar declarations, and this principle became an accepted part of maritime law.
A comparable approach should be taken if proliferators block United Nations efforts to amend flag-state jurisdiction. When the threat is great enough, the United States or one of its allies should notify the Security Council and board a ship that it has reason to believe is transporting nuclear materials to dangerous recipients, without the permission of the flag-state.
The danger, to be taken very seriously, is that the offended country will respond aggressively. To minimize this risk, the first interdiction must be one whose moral logic is so strongly compelling to the international community that there is near universal support. Additionally, a system of liability should be established. If a ship is wrongly stopped, the owner should be compensated justly for the trouble.
While there can be no guarantee of how the flag-state will respond, if the ship is chosen wisely and there is a promise of compensation, both the offense taken by the flag-state and its motivation to respond with violence will be reduced. If the ship resists, force may be necessary to ensure nuclear weapons don’t fall into the wrong hands.
There are already exceptions to flag-state jurisdiction. The United Nations meeting today should spur thinking about how nations can work together to devise a similar exception to prevent nuclear proliferation and terrorism. Wise diplomacy must allow for this before it’s too late.
Thomas Lehrman, the director of the State Department’s Office of Weapons of Mass Destruction Terrorism from 2005 to 2007 and Justin Muzinich, an adviser to a nonprofit group focused on nonproliferation.