UNSCR 1718 IMPLEMENTATION: JAPAN CAUTIOUS,

S E C R E T TOKYO 001051

SIPDIS

SIPDIS

PACFLT PLS PASS TO ONI

E.O. 12958: DECL: 03/07/2017
TAGS: PREL MARR UNSC AS JA
SUBJECT: UNSCR 1718 IMPLEMENTATION: JAPAN CAUTIOUS,
AUSTRALIA KEEN

REF: A. OSD/SCHLEIEN JANUARY 18 LETTER TO JAPAN MOFA/NISHI

B. AUSTRALIA DFAT/PERKS

Classified By: Ambassador J. Thomas Schieffer, reasons 1.4 (b, d).


1. (C) SUMMARY: U.S., Japanese and Australian delegates to
the Trilateral Working Group (WG) on Implementation of UN
Security Council Resolution 1718 met in Tokyo January 24 to
continue discussions on 1718 implementation including
resolving outstanding legal and policy concerns over
sanctions enforcement against vessels suspected of violating
UNSCR 1718 and developing options for concrete trilateral
action. A cautious Japanese delegation initially raised a
number of concerns focused on international legal authorities
to engage in U.S. proposed sanctions enforcement activities
but seemed agreeable after discussions on all proposed
activities that did not rely upon master consent or bunkering
in the territorial sea for international legal authority to
board and inspect a suspect vessel. The Japanese delegation
expressed concerns, however, whether their national
legislation authorized all proposed activities. The
Australian delegation expressed less concern and thought they
could find acceptable language justifying all activities as
proposed by the United States if limited to the context of
UNSCR 1718 enforcement sanctions. On options for trilateral
action, Japanese officials raised concerns that a
"capabilities demonstration" (exercise) could upset regional
neighbors. Japan was also cautious about "scrutiny areas"
but was relieved at the modest scale of operations
envisioned, with MOD officials even suggesting Japanese P-3
aircraft support would be "doable" (naval vessels might also
join, but in a role constrained by domestic law). Australian
officials called for "demonstrable action" in concert with
outreach. Australia also committed to host the next
Trilateral WG in late March, which was subsequently scheduled
for March 30, 2007. END SUMMARY.


2. (C) U.S., Japanese and Australian representatives to the
Trilateral Working Group (WG) on Implementation of UN
Security Council Resolution 1718 met in Tokyo January 24 to
resolve outstanding legal and policy concerns over sanctions
enforcement against vessels suspected of violating UNSCR 1718
and to develop options for concrete trilateral action. See
para 20 for details on participants.


3. (C) The Japanese delegation, headed by Tomiko Ichikawa,
Director of MOFA's Non-Proliferation, Science and Nuclear
Energy Division, opened the Trilateral Working Group (WG) by
stating that, although the Six Party Talks process is
ongoing, "now is not the time for the international community
to relax implementation of 1718." Any actions recommended by
the group to policy-makers, however, needed to remain within
the scope of international law. Australian delegation head
Murray Perks, from their Ministry of Defence, struck a
slightly different tone, stressing the importance of concrete
action to demonstrate the three countries' commitment to
implementing 1718 sanctions. The U.S. emphasized the need to
agree on options for action for review by senior
decision-makers in all three countries.

LEGAL ISSUES: JAPAN CAUTIOUS, AUSTRALIA PRAGMATIC
-------------- --------------


4. (C) All parties agreed that the U.S.-drafted matrix
provided a helpful description of the legally permissible
range of activities against vessels suspected of violating
UNSCR 1718. Discussion on the details of the matrix,
however, revealed a divergence between a cautious Japan and
an Australia willing to take a "pragmatic" approach to avoid
discussions on legal issues becoming an obstacle to
trilateral action on sanctions enforcement.


5. (C) Japanese head of delegation Ichikawa stated that all
activities must conform to international law as required by
paragraph 8(f) of UNSCR 1718, and Japan disagreed with the
U.S. interpretation of international law on two points.
First, Japan's position was that boarding and inspection of a
vessel on the high seas requires flag state consent and not
simply master's consent. Second, Japan does not believe that
"bunkering" (i.e., stopping to take on fuel) terminates a
foreign vessel's right of 'innocent passage'. Ichikawa also
stated that Japanese domestic law might not permit a Japanese

role in certain activities listed in the matrix. Japan was
interested in learning more about the U.S. Ship Boarding
Agreements. According to Ichikawa, Japan did believe that if
a ship is carrying items prohibited by UNSCR 1718, then that
ship is not entitled to the right of innocent passage as that
ship is acting prejudicial to the peace and good order of the
coastal state. Finally, Ichikawa noted that from Japan's
perspective there is no difference between a DPRK-flagged
vessel and a non-DPRK-flagged vessel as broken out in the
matrix.


6. (C) Australia was "not black-and-white" on legal issues
and was in "broad agreement" on the contents of the matrix,
according to Attorney General representative Greg Manning.
Australia differed slightly from the U.S. on the same two
issues as the Japanese: a ship's master was not always seen
as having the authority to consent to boarding; and
"bunkering" was not always seen as terminating a foreign
vessel's right of 'innocent passage.' Australia -- or any
country -- could avoid the issue raised by "bunkering" in its
territorial waters, however, by adjusting its domestic
regulations to prohibit fuel or resupply services from being
provided to ships that fail to consent to an inspection,
suggested Manning. Neither issue, he emphasized, would pose
an obstacle to Australia taking part in a demonstration of
sanctions implementation, said Manning. Australia would
handle potential boarding or inspection scenarios in a
"pragmatic, case-by-case" manner, "subject to political
decision", he noted. In the case of a boarding, Australia
would not object to a boarding if the Master allows it and if
flag state consent is gained after the fact.


7. (C) OSD Associate Deputy General Counsel Gary Sharp
explained that while UNSCR 1718, on its face, provided no new
legal authority beyond existing national and international
law, it did provide an "additional factual context" to apply
those laws, revealing "hooks" that provide additional legal
authority. For example, actions might be warranted from the
standpoint of "self-defense," he said. In addition, the
right of a warship to "approach and visit" commercial vessels
(to identify a ship's flag and confirm nationality) was
recognized in Article 110 of the UN Convention on the Law of
the Sea.


8. (C) In the U.S. view, a ship's master generally has the
authority to invite an inspecting warship to board and
inspect his papers, said Sharp, but a master lacks the
authority to grant a boarding party law enforcement authority
(e.g., to search and seize cargo). The U.S. has 19 bilateral
agreements with other countries recognizing the international
right of "master's consent," he noted.


9. (C) On next steps, U.S. delegation head Steve Schleien,
OSD Director for Transnational Threats Policy, offered to
produce a simplified version of the matrix, as well as adjust
the text to reflect slight differences in the three
countries' views on "bunkering" and "master's consent."

DPRK SHIPPING PATTERNS
--------------


10. (S) In follow-up to a request for information on North
Korea maritime shipping patterns at the previous 1718
Trilateral Working Group in December 2006, Alexandra Chandler
of the U.S. Office of Naval Intelligence (ONI) presented a
briefing on the international shipping routes most heavily
trafficked by ships carrying North Korean cargo. The
briefing made the following points:

-- Ships carrying North Korean cargo tend to travel on the
same international shipping lanes as the majority of other
cargo vessels;

-- 91% of North Korea's international maritime trade volume
is carried on non-North Korean flagged vessels (e.g., 42% of
ships calling on North Korean ports are Panamanian flagged);

-- Fifty percent of North Korean-flagged cargo vessels travel
between North Korean and Chinese ports on the Yellow Sea;

-- North Korean-controlled vessels are generally decrepit,
small in size, and frequently require "bunkering" fuel

services;

-- Maritime trade makes up only about 20% of North Korea's
overall foreign trade.


11. (S) Chandler identified three areas of the highest
concentration over time of ships carrying North Korean cargo:
(1) in the South China Sea, NE of the Strait of Malacca; (2)
in the South China Sea, SW of the Taiwan Straits; and (3) in
the East China Sea, NE of the Taiwan Straits. The selection
of these sites did not take into account political concerns,
noted the briefer, but was based solely on ONI's assessment
of the volume of shipping traffic.

RADIATION DETECTION COOPERATION
--------------


12. (C) Also in follow-up to the previous Trilateral Working
Group in Washington, Department of Energy Assistant Deputy
Administrator David Huizenga gave a briefing on the prospects
for trilateral cooperation in radiation detection as a part
of 1718 sanctions enforcement. Huizenga's briefing focused
on the following points:

-- the most reliable and accurate radiation devices were
hand-held or carried in backpacks;

-- to be effective in detecting radiation in the cargo of a
suspect vessel, the detection devices would need to be used
by someone on board that vessel;

-- the U.S. was prepared to make that equipment available to
Australia and Japan if desired;

-- helicopter-borne 'stand-off' gamma detectors existed, but,
at present were effective only for functions such as
geological mapping. Additional research and development was
needed to refine the technology; this could be a fruitful
area for trilateral collaboration.

-- an experts group under the 1718 Trilateral Working Group
should be created to explore radiation detection cooperation
further.


13. (C) Australian representatives agreed on the proposal to
form an experts group and the suggestion for cooperative
research and development on "stand-off" radiation detection
technology. Japan delegation head Ichikawa agreed "in
principle" to create an experts group, with the caveat that
agreement should first be reached on an overall menu of
trilateral action items.

OPTIONS FOR TRILATERAL ACTION
--------------


14. (S) U.S. delegation head Schleien outlined the
U.S.-drafted "Options Paper" (ref A) and its five proposals
for concrete, trilateral action to implement 1718 sanctions.
The paper had been produced in follow-up to Trilateral
Working Group agreement in December 2006 to generate a list
of possible 1718 enforcement actions for the consideration of
respective senior leadership, he noted. The five options
proposed are:

-- create an enhanced inspection architecture using outreach
to encourage states to make maximum use of existing national
and international authorities to implement UNSCR 1718
sanctions. This effort would be focused on states at key
"chokepoints" in DPRK trade, such as China, Russia, the ROK,
Central Asia, and states near the Strait of Malacca and Suez
Canal;

-- conduct a "capabilities demonstration" possibly involving
the inspection of suspect cargo and interdiction of
WMD-related items, as called for under UNSCR 1718. This
might involve an Australian ship escorting a suspect vessel
(role-played by a U.S. ship) into a Japanese port for
inspection. The capabilities demonstration would be separate
from and more modest in scale than a traditional PSI exercise;

-- implement periodic, limited-duration "scrutiny areas" on
the high seas in which selected vessels would be queried

about carrying DPRK-related cargo. Naval assets from the
trilateral parties would hail select vessels to ask if they
were carrying cargo to or from North Korea, and whether any
such cargo was on the UNSCR 1718 list of proscribed items.
This might involve U.S. and Australian ships supported by
Japanese P-3 surveillance aircraft, operating in a limited
area over a limited number of days;

-- conduct a clandestine surveillance program to track a
suspect vessel;

-- Approach and hail and/or overtly track suspect
DPRK-flagged or owned/operated vessels.


15. (S) The Australian delegation made the following points
in response:

-- the options paper was helpful in focusing trilateral
efforts on concrete, "demonstrable action";

-- SCRUTINY AREAS: This idea would be "politically
sensitive", depending on the proximity to coastal states and
the status of diplomatic efforts on the North Korea problem.
Australia did seek additional information in order to have a
clear understanding of how the U.S. envisioned the scrutiny
area would be constructed. Nonetheless, Australia saw
"scrutiny areas" as permissible under international law and
supported the concept's inclusion on a list of options for
policy-makers. It would be a particularly useful option if
the need arose to increase pressure on Pyongyang (e.g., if
the DPRK were to conduct another nuclear test or the Six
Party Talks collapse);

-- CAPABILITIES DEMONSTRATION: Australia "strongly supports"
this proposal. The key will be to identify a host country;

-- OUTREACH: Australia supported this proposal and offered to
produce a list of suggested actions -- including
presentations and technical demonstrations -- to "dramatize"
the importance of compliance with 1718 obligations.
Southeast Asian countries should be a prime focus of
outreach. Singapore had recently approached Australia
proposing to host a workshop on 1718 compliance; Canberra
would take the lead on pursuing this option further.
Outreach should complement, not substitute for "demonstrable
action" by the Trilateral Working Group states.


16. (S) The Japanese delegation provided the following
feedback on the U.S. Options Paper:

-- SCRUTINY AREAS: Japan agreed with Australia about the
sensitivity of scrutiny areas and was "still not certain" how
this concept was legally compatible with "normal operations
of ships on the high seas." After hearing the US scrutiny
areas proposal Japan was relieved at the modest scale of
operation envisaged but had concerns about the possibility it
could lead to non-consensual boarding, for example, on the
basis of "self-defense." Japan stated that it needed
additional information on how a scrutiny area would be
defined, operated, and what actions would be taken in that
area. Defense Ministry officials noted that, while domestic
law would make it difficult for Japanese naval vessels to
take part, it was "doable" for P-3s to provide overhead
surveillance to participating U.S. vessels, especially if the
aircraft were operating in their "normal" area of operations.
A dispatch of P-3s to somewhere distant would be more
problematic, as it might invite political controversy and
legal challenge. The MOD official also suggested surface
vessels might participate, but noted that domestic law
permitted Japanese vessels to conduct maritime inspections
only if a "regional contingency" had been recognized by the
Japanese government (NOTE: This is a political line Japan has
to date never crossed. END NOTE).

-- CAPABILITIES DEMONSTRATION: Japan was cautious about this
activity "back-firing" by prompting a negative reaction from
regional states. Unlike PSI, a UNSCR 1718-linked
demonstration would be "clearly targeted" at one country.

-- OUTREACH: Japan was very comfortable with trilateral
efforts in this area and favored a focus of the Working Group
on helping regional countries identify what they can

practically do to implement UNSCR 1718. Japan supported
Australia taking the lead on Southeast Asia outreach and
favored a "soft, bottom-up" approach to avoid other
governments getting the impression they are "being pressured"
to take action to implement sanctions.

Expanding WG membership
--------------


17. (C) All agreed that Singapore and New Zealand would be
natural members of an expanded Working Group but that no
decision would be made on expansion until after the working
group had agreed on concrete activities.

Next WG meeting
--------------


18. (S) Australia agreed to host the next Working Group
meeting in late March, consecutive with a PSI Operational
Experts Group meeting planned for Auckland, New Zealand.

French proposal for DPRK shipping "cartography" group
-------------- --------------


19. (C) Japanese delegation head Ichikawa shared a proposal
from the French government to establish a working group on
the "cartography" of DPRK shipping and host an initial
meeting in Paris in mid-February. (Note: This is the same
proposal that the French delegation tabled at the December
2006 Montreal PSI Operational Experts Group meeting. The OEG
had agreed to exchange information vice sending delegations
to meet in Paris.) She noted that French officials had
informed the Japanese Embassy in Paris that they had learned
about the activities of the 1718 Trilateral Working Group
from U.S. delegates at a "financial meeting" in Paris on
February 10. Ichikawa encouraged all Trilateral WG members
to maintain the confidentiality of the group's work. Japan
was not inclined to agree to the French proposal for a
meeting that soon, as it would lead to unnecessary
duplication of effort, but might consider a meeting on the
margins of the PSI gathering in Auckland. Perks indicated
Australia was open to the French proposal. U.S. delegation
head Schleien said he would discuss the proposal with French
Embassy officials upon return to Washington but reiterated
the U.S. position that, while we supported and agreed to
contribute to the concept, there was no support for a meeting
in Paris on this issue.

Participants
--------------


20. (C) The U.S. delegation was headed by Steven Schleien,
Director for Transnational Threats Policy, Office of the
Secretary of Defense (OSD),with the participation of 26

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representatives from OSD, State/ISN, Department of Energy,
Homeland Security (Customs),the Joint Staff, the U.S. Coast
Guard, DIA, the Office of Naval Intelligence, PACOM, U.S.
Forces Japan, and Embassy Tokyo. Japan's delegation was
headed by Tomiko Ichikawa, Director, Division of
Non-Proliferation, Science and Nuclear Energy, MOFA, and
included 42 officials from 12 government agencies. MOFA
Deputy Director-General Masanori Nishi acted as chairman of
the Trilateral Working Group proceedings. The Australian
delegation was headed by Murray Perks, Assistant Secretary
(DAS-equivalent),Security Policy and Programs, Department of
Defence, and included 16 representatives of six different
agencies.
SCHIEFFER