WSJ, October 21, 2003:  Why U.S. Gave U.N. No Role in Plan To Halt Arms Ships
 

Why U.S. Gave U.N.No Role in Plan To Halt Arms Ships

MADRID -- By the time the Spanish frigate spotted the unflagged cargo ship in the Indian Ocean last December, the Americans had been tracking it for a month and the Spanish had been racing toward it for four days. But when Spanish Rear Admiral Juan Moreno Susanna ordered the freighter to slow for boarding, it ignored his demand, as well as two salvos of warning shots and a third salvo into its bow.

After a six-hour standoff, Spanish special forces rappelled from a helicopter onto the moving deck while snipers stood by. "The effort was worth it," Adm. Moreno says. Hidden in the ship's hold were 15 North Korean Scud missiles.

Two days later, the U.S. let the freighter sail on. There was no clear legal basis for holding the missiles and their purchaser was Yemen, an ally in the war on terrorism. Frustrated by the outcome, the Bush administration decided to launch a broader initiative to fight weapons proliferation.

But in a hallmark of the way President Bush conducts foreign affairs, it chose not to seek a new United Nations Security Council resolution banning the transport of dangerous weapons. Instead, the U.N.'s host and largest financial contributor created its own coalition of the willing, outside U.N. auspices. The 11 members have agreed to block arms shipments from countries or groups "of proliferation concern" in their territory, waters or air space, or aboard ships flying the members' flags on the high seas.

U.N.: SEARCHING FOR RELEVANCE   Fourth in a Series 1 • Learn more about the Proliferation Security Initiative2.   • Read about regional alliances3 that could fill the gap as the U.S. and U.N. continue to struggle for power.   • Read previous articles in the series4 and get background on the history of the U.N., the leadup to the war in Iraq, operations of the World Food Program and peacekeeping operations   • Join a discussion:5 In what role is the U.N. most successful?

As the U.N. struggles to redefine its place in global politics, the American initiative underscores a giant hurdle: a profound skepticism by the sole superpower. The U.S. under President Bush has often bypassed the world body, as it did in its decision to invade Iraq. With the occupation there proving far harder than expected, the U.S. did seek -- and win -- U.N. backing for its rebuilding efforts, in hopes of persuading more nations to contribute money or troops. But Washington's antiproliferation move is an end run around the U.N. on just the kind of mission the U.N.'s leaders think it is ideally suited to tackle.

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U.N. officials aren't eager to talk about the tensions and pick a public fight with the Bush administration. But there is a growing fear at the U.N. that unless the U.S. reengages, the organization could be relegated to the role of a social welfare agency: doing important work, but mainly in places the U.S. doesn't care much about. "If the 600-pound gorilla doesn't participate, it doesn't much matter what the other 190 members who love you do," says one U.N. official.

Former Secretary of State Madeleine Albright, who also served as U.S. envoy to the U.N., warns that with time, other countries could stop bringing important issues to the Security Council, thereby denying the U.S. a forum where its veto guarantees it enormous influence. Or the Council could become "totally anti-American...a venue where everybody says the U.S. is the problem in the world," she says.

For Washington, the Indian Ocean incident shows the potential of aggressive interdiction efforts -- but also how difficult it will be to act without the authority of a new U.N. mandate or international treaty. Although the U.S. was nearly certain of the freighter's cargo, American officials spent weeks searching for a legal justification to get on board. Even after they found one -- in the ship's murky identity -- they still had to let it proceed.

U.S. officials say the decision to work outside the U.N. on the Proliferation Security Initiative was a pragmatic one. "The idea that we could have a U.N. Security Council resolution or a nice international treaty is fine if you have unlimited time," says John Bolton, undersecretary of state for arms control and international security and an architect of the plan. "We don't, not with the threats out there. ... We didn't want to engage in an endless legal seminar."

There is also a strong ideological current. Mr. Bolton is among a group of libertarian and neo-conservative Republicans who have an antipathy toward the U.N. and great sway in the White House. Their critique of the U.N. isn't just that it's politicized and bureaucratic, though they do say that. They also argue that international law and organizations pose a direct threat to America's sovereignty and ability to defend itself.

In the past, Mr. Bolton has contended the U.S. wasn't legally obligated to pay its U.N. dues. Both international treaties and the U.N. charter are "simply 'political obligations,' " he wrote in a 1997 article for the American Enterprise Institute. He has also argued against the creation of a U.N.-backed International Criminal Court and argued that accords on human rights, the environment, labor, and public health were intentionally crafted to constrain American sovereignty.

CRACKING DOWN?   August 2002 -- U.S. imposes sanctions on North Korea after a 1999 missile sale to Yemen. Yemen wasn't sanctioned, as the U.S. said it had vowed to reform and was cooperating in the war on terrorism.   October -- Bush administration confronts North Korea with evidence of nuclear activity. North Korea admits it has a secret uranium-enrichment program, a violation of a 1994 agreement in which Pyongyang foreswore its nuclear ambitions in exchange for energy help.   Early November -- U.S. spy satellites detect 23 barrels of a Scud fuel oxidizer known as inhibited red fuming nitric acid and what appear to be 16 Scud missiles being prepared for shipping in North Korea.   Mid-November -- Three freighters depart North Korean port under U.S. surveillance. Officials quickly settle on one in particular as suspect. U.S. believes Yemen is the destination after intelligence reports a cash payment of $300,000 to a North Korean representative in Yemen, followed by a wire transfer of $6 million. US officials struggle to find legal justification to get on board.   Late November -- U.S. Navy reports the ship being observed bears the name "So San," apparently freshly painted, with another name visible underneath. But no ship called So San is listed on national registries, providing legal justification for boarding.   Dec. 5 -- U.S. requests Spanish Rear Admiral Moreno, commanding a task force patrolling the waters around the Horn of Africa, to board and examine the ship.   Dec. 9 -- Spanish navy frigate Navarra sites the So San near the Yemeni island of Socotra and orders it to slow for boarding. The So San's captain ignores the order as well as warning shots and shots directly into his bow. After a six-hour standoff, Spanish special forces rappel onto the deck of the moving ship and take control.   Dec. 10 -- U.S. explosives experts come aboard and discover 15 Scud missiles hidden under thousands of bags of cement.   Dec. 11 -- The U.S. receives permission from Cambodia's government to board the ship, after it is identified as the Pan Hope, which is registered in Cambodia. Adm. Moreno prepares to turn the ship over to the Americans. But after a series of angry phone calls between Yemen and Washington, the White House decides to let the ship and its cargo sail on to Yemen.   Source: WSJ research

"For every area of public policy, there is a globalist proposal, consistent with the overall objective of reducing individual nation-state autonomy, particularly that of the United States," Mr. Bolton wrote in the Chicago Journal of International Law just before he joined the Bush administration.

Combative Style

Mr. Bolton, who was an assistant secretary of State in the first Bush administration, is known for his combative, in-your-face style. He won powerful backers by fighting for the Bush-Cheney ticket as part of its legal team in the Florida recount. The fact that he now works in Colin Powell's State Department has only increased Mr. Bolton's influence -- representing the department in inter-agency meetings on arms-control issues and tamping down the department's natural pro-treaty, pro-U.N. instincts.

Mr. Bolton's suspicions of the U.N. are widely shared in the White House. Mr. Cheney, blistering the Security Council in a recent speech for not backing the war in Iraq, said: "To accept the view that action by America and our allies can be stopped by the objection of foreign governments that may not feel threatened is to confer undue power on them, while leaving the rest of us powerless to act in our own defense."

U.S. officials say Mr. Bush shares many of these views, if not the rhetorical fervor. Since he took office, the U.S. has rejected the Kyoto global warming agreement; pulled out of the Anti-Ballistic Missile treaty with Russia; taken the U.S. signature off the International Criminal Court treaty; scuttled a protocol to verify compliance with the biological-weapons ban; watered down an accord on small-arms trafficking and refused to submit the nuclear test-ban treaty for Senate ratification.

The Indian Ocean ship boarding, executed flawlessly and based on excellent intelligence, fed the U.S. appetite for a new initiative to go after proliferation, but not a new international mandate.

U.S. officials picked up the first hint of a missile shipment in early November. Spy satellites detected barrels of Scud-fuel oxidizer being loaded into shipping containers at a North Korean port and what looked like 16 Scuds being readied for shipment at two other sites. Over the next few weeks, the U.S. Navy monitored three likely cargo ships leaving North Korea, settling on one that took a zigzag course and lowered and raised its flag, as if trying to shake off any pursuer.

The U.S. also picked up early signs Yemen was its destination, including reports of a $300,000 cash payment made to a North Korean in Yemen and a $6 million wire transfer to the Pyongyang government. U.S. officials doubted Yemen would simply forgo the missiles if confronted, at least without strong pressure. And since Yemen was cooperating in the antiterrorism war, officials wanted to avoid a public battle. So they decided to try to seize the cargo before the ship reached port. The bet was that Yemen -- which had pledged to give up its past missile trade with North Korea -- would be unlikely to try to claim the shipment.

In a series of high-level discussions, U.S. officials searched for a justification to board the ship. Suspicion of transporting missiles or weapons of mass destruction isn't enough, under current international law. Warships can stop a foreign commercial vessel only if they have permission from the flag state, if the ship is "without nationality" or if it is suspected of piracy or carrying slaves.

One U.N. mandate held some promise. The 1990 embargo on Iraq called on member nations, "under the authority of the Security Council," to halt, board and inspect all ships suspected of illegal trade with Iraq. But a classified options paper prepared by the U.S. National Security Council staff warned against using this pretext. "The facts suggest this shipment likely is not bound for Iraq," it said. To use ships from the Iraq interdiction force, the paper warned, could lead to charges that the U.S. was abusing a Security Council resolution -- just when it was citing Iraq's flouting of the U.N. as a reason to topple Saddam Hussein.

'Big Favor'

In late November, U.S. officials found the opening they needed. Navy planes tracking the freighter found that its hull read So San, in letters apparently freshly painted. But no ship named So San was registered. That led to suspicions it was a ship "without nationality" -- and could be boarded. Adding to the suspicions, the ship kept raising and lowering its flag. "Obviously, someone told [the captain] to try to avoid detection," says Adm. Moreno. "But he did us a big favor."

The U.S. was juggling multiple crises: the continuing al Qaeda threat, North Korea's bluster about nukes and the Security Council's reluctance to back a war to disarm Iraq. With its hands full, it was eager to have a third country handle the boarding. Spain was willing to comply. It had ships in the Gulf of Aden, as part of a U.S.-led effort to track militants fleeing Afghanistan. On Dec. 5, Adm. Moreno got his orders from the U.S. Central Command: Intercept the cargo ship -- which was then 1,600 miles away -- and be ready for a "noncompliant boarding."

Early on Dec. 9, Adm. Moreno's ships sighted the quarry. For three hours, the admiral coaxed the So San to slow for boarding and a check of its documents and cargo. Ignored, the admiral fired warning shots. Finally, Spanish special forces dropped from a helicopter after snipers blasted away ship cables blocking their descent. "The [So San] captain told me later that he couldn't stop, that he was under orders," Adm. Moreno says. "He was really afraid for his children" back home. "He showed me pictures of them. He was a very brave man."

It was also clear that the captain, who identified himself as Cambodian, was under orders to conceal ties to North Korea. The deck was littered with glass and broken picture frames. In a hiding place under the captain's bunk, Adm. Moreno's marines found 40 photos of North Korean leader Kim Jong Il and his late father along with 21 North Korean passports.

Americans arrived a day later. Under thousands of bags of cement in the ship's hold they found crates containing 15 Scud missiles, 15 conventional warheads and many barrels of chemicals.

Yemen told the U.S. it had a right to the missiles, which it claimed to have ordered nearly a decade earlier during its civil war. After a series of tense phone calls among Yemen's President Ali Abdallah Salih, Vice President Cheney and Secretary of State Colin Powell, the U.S. agreed to let the ship sail on to Yemen and deliver its cargo. The Spaniards were furious. U.S. officials were embarrassed. Deputy Defense Secretary Paul Wolfowitz apologized to Spain's defense minister for "what could seem an absurd situation." Adm. Moreno, asked if he was disappointed, smiled and shrugged. "I did what I was ordered," he said. "The rest is something political."

The case taught U.S. officials that while interdiction could be a major tool for stopping proliferation, it required planning and organization. "With Spain, it all worked out well. But with another country, we could have been lost in discussions for days about the legality and other issues" while the ship sailed away, the State Department's Mr. Bolton says.

As combat in Iraq wound down last spring, U.S. officials listed nations that might join a plan to intercept weapons shipments. The first list didn't include France and Germany, but Spanish officials say they prodded the White House to include both of those Iraq-war critics.

Ultimately, the U.S. signed up both countries, as well as Britain, Japan and a half-dozen others. While agreeing to work together, the nations haven't signed any treaty. Prominent nonmembers so far include Russia and China, which have their own histories of proliferating. President Bush unveiled the plan at the end of May.

The plan calls on participating nations to block dangerous shipments in their port, territory or air space or on their vessels. In time, the group plans to reach out to other countries that have large shipping fleets and those whose ports and waters are often used by arms shippers. Mr. Bolton says the idea is "to raise the transaction costs" for proliferators by reducing the ships, ports and territory they can use.

Robert Einhorn, a former Clinton administration expert on proliferation, calls the initiative "a start" but not enough. He warns that "proliferators will get smart. They'll figure out which countries' ships not to use and which ports to avoid."

And left unanswered are two pivotal questions: Who are the countries or groups "of proliferation concern" specified in the initiative? And will the initiative be enough to stop proliferation without a new U.N. resolution or a treaty?

On the first point, the U.S. has been pushing its partners to name names, particularly North Korea and Iran. Ramon Gil-Casares, Spain's deputy foreign affairs minister, agrees about North Korea but says Spain has a different view of Iran. And he says it probably wouldn't honor a U.S. request to stop a ship heading there with a legal but potentially dangerous item such as a centrifuge for its nuclear program. In the U.S., Mr. Bolton says that kind of shipment "would definitely get our attention."

Mr. Bolton says countries already have "enormous legal authority" for boarding ships. But some members of the coalition figure that to really tighten the noose, they'll eventually have to get the U.N. to step in and declare proliferation a global crime, like slavery or piracy. Mr. Bolton is less enthusiastic: "Security Council resolutions may be appropriate later," he says.

Mr. Bolton says there's another way to change international law: by a committed group of states behaving a certain way. He cites the ban on transporting slaves, which developed after Britain began halting slave ships in the early 1800s. "As state practice changes, customary international law changes," he argues.

Others are dubious, among them Anne-Marie Slaughter, dean of Princeton University's Woodrow Wilson School and president of the American Society of International Law. "I suppose if you got a hundred countries to do it over the next few years," she says, "you could say a customary norm has been changed. But not 11." Mr. Bolton's reply: "We're living in fast-moving times."

Write to Carla Anne Robbins at carla.robbins@wsj.com⁶

Updated October 21, 2003 9:48 a.m.