On May 9th, the United States seized a North Korean shipping vessel, the Wise Honest. Supporting this action, the FBI’s New York Field Office and the Attorney General’s office filed a civil forfeiture complaint against the ship, citing violations of international sanctions and international law. According to a press release by the US Department of Justice, from approximately November 2016 through April 2018, the Wise Honest was used by Korea Songi Shipping Company, an affiliate of Korea Songi General Trading Corporation (a.k.a. “Songi Trading Company”), to export coal from North Korea to foreign purchasers and to import machinery to North Korea in clear violation of US and UN sanctions regimes. North Korea responded to these claims on May 14th with a statement calling the seizure of Wise Honest a “flagrant act of robbery” that violated the informal agreement reached by President Trump and Kim Jong Un last year.
There are a number of complicating political, economic, and social factors in this case, but, for the purposes of clarity, this post will look exclusively at the legal aspects of the ship seizure. Specifically, it will try to establish whether the US has a legitimate legal basis to seize North Korean property or whether this is, in fact, a “flagrant act of robbery”.
The first potential complicating factor in determining the legality of US actions is the fact that the ship was interdicted by Indonesian authorities and then transferred to American Samoa by US authorities. Given the cooperation of the Indonesian government in handing the ship over, this is actually not a terribly complicating factor. The only sovereignty issue arises from the seizure of a North Korean vessel without Democratic People’s Republic of Korea (DPRK) permission, but this point is moot if there is a proven violation of international sanctions. This is so because 28 U.S. Code § 1355(b)(2) allows district courts within the United States the authority to bring an action or proceeding for forfeiture of vessels or cargo held in foreign countries if those vessels or cargo enter a “port of entry closed by the President in pursuance of law”. Because there is clear evidence that this ship helped to violate the international sanctions regime by exporting coal to foreign ports of entry “closed by the President”, this section of US code applies, giving the US government the authority to interdict Wise Honest, despite DPRK protestations.
Next, the tactics used by the US government are not unique to international sanctions enforcement and are commonly used in connection with unilateral sanctions regimes. In fact, the use of civil asset forfeiture complaints to enforce sanctions regimes has been common in US policy, though this situation represents the first time that a physical asset has been seized from the DPRK. However, despite the commonality of this approach in such cases, application of civil asset forfeiture complaints to sanctions violations remains extremely complex, given that US law on civil forfeiture specifies that complaints filed in the United States must be based on some underlying crime that violates specifically enumerated US laws. The question becomes: have US laws been violated?
To answer this question it must first be noted that the US has imposed unilateral sanctions which are often stricter than those imposed by the UN Security Council, making it very likely that DPRK actions violated US-specific laws and codes, in addition to those imposed by the international system. Three American banks were complicit in transmitting payments around the world for maintenance, equipment, and improvement of the Wise Honest, and thus assisted in the violation of sanctions. According to the Justice Department, such transfers constitute a specific provision of services by U.S. banks and longstanding U.S. law prohibits banks from providing such services to North Korean parties. The specific sections of US code that restrict services to North Korean parties can be found in the North Korean Sanctions and Policy Enhancement Act of 2016 and in the Countering America’s Adversaries Through Sanctions Act of 2017. Given that there is a direct connection between these US institutions, the Wise Honest, and the violation of sanctions, there is certainly standing both to seize the ship and to hold these financial institutions legally accountable, although they were “unwitting” actors.
In conclusion, despite the obviously political nature of the US government’s move to interdict the Wise Honest, it is important to note that there is a strong legal basis for the action. However, there is a looming danger that the overlap between legal and political realities could easily lead to the misuse of legal systems in pursuit of broader political aims. Specifically, there are already murmurings from within the US government that have indicated a desire to seize many other ships and assets, which could lead to increasingly dubious legal arguments being used to attack DPRK assets. In the coming months, as this story develops, it will be important for those interested in international legal issues to keep an eye on this situation to ensure that legal standards are upheld and that the legal system is not hijacked in the name of a political agenda.