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The Use of Force in International Law - A Case-Based Approach edited by Ruys, Tom; Corten, Olivier; Hofer, Alexandra (17th May 2018)

Part 1 The Cold War Era (1945–89), 14 The USS Pueblo Incident—1968

Wolff Heintschel von Heinegg

From: The Use of Force in International Law: A Case-Based Approach

Edited By: Tom Ruys, Olivier Corten, Alexandra Hofer

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 14 December 2019

Subject(s):
Self-defence — Nationality of ships — Territorial sea — Armed forces — Ius ad bellum

(p. 158) 14  The USS Pueblo Incident—1968

The attack on, and the capture and ensuing seizure1 of, the USS Pueblo was a surprising incident that was considered by many to be but another example of ‘Cold War by proxy’, although sources that have recently become available seem to suggest that the measures taken by the Democratic People’s Republic of Korea (DPRK) were neither directed nor acknowledged by the former Soviet Union. This contribution is not intended to add yet another facet to political evaluations or speculations, but to offer, as far as this is feasible, an assessment of the factual background and a legal analysis on the basis of the international law applicable in 1968. Since the location of the USS Pueblo, at the time of her capture, is an important aspect that cannot be ignored, the law of the sea and the jus ad bellum will be equally addressed.

I.  Facts and Context

This section is a summary of the facts of the USS Pueblo incident that primarily relies on the findings of a US Navy Court of Inquiry, which produced its report in June 1969,2 and on further declassified documents.3

The USS Pueblo was a former Army auxiliary light cargo ship that was commissioned in May 1967, when it became the second ship in the Auxiliary General Environmental Research (AGER) programme.4 The AGER programme was established in 1965 ‘for the purpose of collecting signals intelligence (SIGINT) comprised of communications intelligence (COMINT) and electronic intelligence (ELINT), in addition to collecting collateral and hydrographic information’.5 AGER operations, which were conducted in coordination with the National Security Agency within the Pacific Command, were also to ‘determine Soviet reaction to a small unarmed naval surveillance ship deployed in Soviet naval operating areas, and to test the effectiveness of this type of ship acting alone’.6 The secondary mission of the USS Pueblo was ‘to search for and record any signals emanating from North Korea …, intercept … communications in the UHF range and to apply a (p. 159) general collection effort against North Korean Army (NKA), North Korean Navy (NKN), and North Korean Air Force (NKAF) communications. The purpose of the mission was to permit establishment of a data base and to determine the location of certain emitters intercepted’.7

After conversion the USS Pueblo proceeded via San Diego to Pearl Harbor, where she arrived on 14 November 1967. The ship’s commander, CDR Lloyd Bucher, and personnel were briefed that the first mission would be off the DPRK. On 18 November 1967, the USS Pueblo departed Pearl Harbor and on 1 December 1967 she arrived in Yokosuka, where she received two fifty calibre machine gun mounts. According to policy, those ‘guns were defensive and not to be used in a provocative manner’.8 Specialists were added to the personnel, in particular Korean linguists, whose ‘capabilities later proved to be minimal’.9 ‘Orders to PUEBLO specifically forbade her to approach closer than 13 miles to the North Korean coast.’10

On 11 January 1968, the USS Pueblo proceeded to her operating area off the northern coast of the DPRK. Because of severe icing conditions she headed south, and on 22 January 1968 she laid off Wonsan, where she was detected by two fishing trawlers that circled her when she was approximately 18 to 20 nautical miles (nm) from the nearest land.11 After she had moved out to sea to avoid drifting into the 12 nm territorial sea seemingly claimed by the DPRK, she returned to a point slightly to the northwest of her former position off the Wonsan area on 23 January 1968.

Shortly after 11:45 am on 23 January, the commanding officer was informed about the sighting of a ship approaching from the south, which was identified as a DPRK submarine chaser SC-35. At ‘general quarters with guns manned and trained on PUEBLO, PUEBLO was dead in the water with no flag or signal shapes flying, in a calm sea, and with no hydrographic operations in progress’.12 The SC-35 circled the USS Pueblo at close range and called upon it to reveal its nationality. The Pueblo’s commanding officer reacted by ordering the national ensign and the signal ‘Hydrographer’ hoisted. He considered the DPRK action to be ‘normal harassment’ and prepared the ship to manoeuvre. At 12:20 pm, three DPRK P-4 Class patrol (torpedo) boats approached the USS Pueblo and the SC-35 signalled: ‘Heave to or I will open fire on you.’

The exact position of the Pueblo at that point in time was, and continues to be, a contested issue between the United States and the DPRK. According to the DPRK Government, she allegedly was 7.1 nm offshore.13 It is important to note that the US Government had ‘no official information concerning the breadth of territorial sea claimed by North Korea, but [assumed] it claim[ed] twelve miles in line with claims of most other communist countries and in view of the position it took in the 1953 armistice talks’.14 At the time, the US Government recognized only claims to a territorial sea breadth of 3 nm. According to the Court of Inquiry’s findings, the order not to approach the DPRK coast closer than 13 nm ‘was carefully observed throughout the mission’, and the commander, on 23 January 1968, (p. 160) ‘verified his position, which was 15.8 miles from the nearest land’.15 According to the US Department of State, the USS Pueblo:

was seized slightly more than fifteen miles from the nearest land, Ung Do Island, which lies slightly seaward of a straight line across the mouth of Wonsan Bay. The geographic situation of Wonsan Bay is such as to warrant treating the bay as internal waters. The outer limits of the territorial waters would, therefore, be measured from a straight line across the mouth of Wonsan Bay or from Ung Do Island, to the extent measurement from the island increases the area within the territorial sea.16

After the warning by the SC-35 and the arrival on scene of the three patrol boats, the commanding officer considered scuttling the ship and ordered to prepare for emergency destruction of classified material. By 1:15 pm, two MIG aircraft were noted circling the USS Pueblo and the SC-35 signalled: ‘Follow in my wake, I have pilot on board.’ According to the Court of Inquiry, an:

armed boarding party had transferred from SC-35 to [patrol boat] PT-604 and PT 604 was backing down on PUEBLO’s starboard bow with fenders rigged. The Commanding Officer … ordered the signal, ‘Thank you for your consideration, I am departing the area’, and ordered one-third speed and right rudder to depart the area in as dignified a manner as possible. He had considered and rejected the idea of going into general quarters, and decided against manning the fifty calibre guns because he, … saw no point in senselessly sending people to death. As PUEBLO settled on course 080 degrees true, the torpedo boats began ‘… playing porpoise …’ across her bow, coming as close as ten yards, and SC-35 signalled again, ‘Heave to or I will fire’. After having way on about five minutes, PUEBLO increased speed to full (about 12.5. knots), and SC-35 closed at high speed, attempting to gain a position on PUEBLO’s port quarter.17

At 1:27 pm, the SC-35 fired with her 57 mm heavy machine gun from a range between 1,500 and 2,000 yards. The first shots, although intended as warning shots, hit the USS Pueblo’s radar mast and left the commander and two men on the bridge wounded. At this point in time the commander ordered the emergency destruction of classified material. The first period of firing by the SC-35 lasted about seven minutes, and light machine gun fire from the patrol boats commenced at the same time. At 1:34 pm, the commander ordered the ship to stop, and the firing by the DPRK vessels ceased. He ordered the signal ‘Protest’. The SC-35 then signalled ‘Follow me, I have pilot on board’, to which the commander responded by ordering the ship to follow the SC-35.

At about 2:00 pm, the commander again stopped the ship to inspect the progress of emergency destruction of classified material. The SC-35 opened fire, which resulted in hits above the main deck, killing one crew member and seriously wounding others. To stop the firing, the commander ordered the ship ahead. At about 2:20 pm, in response to orders from the SC-35, he ordered the ship to stop to allow the boarding party to board. The emergency destruction of classified material had not been completed and remained ineffective. The USS Pueblo took course to Wonsan and about two hours after sunset she was moored to a dock about 10 miles northwest of Wonsan. On 23 January 1969, at about 8:30 pm, the USS Pueblo docked at Wonsan.

The eighty-two officers and personnel of the USS Pueblo were removed from the ship and, according to the findings of the Court of Inquiry, mistreated.18 They were taken to (p. 161) Pyongyang, where the officers were subjected to intensive interrogation, physical maltreatment, threats of death, and intimidation. In order to prevent the killing of his crew, the commanding officer signed his first confession admitting intrusions into claimed DPRK territorial sea for espionage purposes.

On 23 December 1968, the officers, crew, and the body of the deceased crew member were transported to Panmunjom, where they were repatriated. Their return had been made possible because General Woodward of the US Army had signed a statement prepared by the DPRK Government, in which the US Government, inter alia, acknowledged ‘the validity of the confessions of the crew of the USS Pueblo’, that the ship ‘was seized … in the territorial waters of the [DPRK]’, and that it ‘shoulders full responsibility and solemnly apologizes for the grave acts of espionage committed by the U.S. ship against the [DPRK] after having intruded into the territorial waters of the [DPRK]’.19 The US Government emphasized that General Woodward had signed the document ‘to free the crew and only to free the crew’.20

The USS Pueblo was never returned. Since 2013 she has been moored in Pyongyang where she is used as a museum ship. Still, the USS Pueblo continues to be listed as a commissioned vessel of the US Navy currently held captive.21

II.  The Positions of the Main Protagonists and the Reactions of Third States and International Organizations

While there is no official document on the position of the DPRK, the statement demanded from the United States indicates that, according to the DPRK, the USS Pueblo had intruded into its territorial waters and that she had been legally seized because she had been engaged in ‘grave acts of espionage’.22 At first glance, the United States considered the DPRK conduct unlawful only because the capture of the vessel had occurred on the high seas. The positions of the protagonists and of other states as to why the conduct of either the DPRK or the United States was in violation of international law do, however, become clearer through the various statements made within the UN Security Council (UNSC).

On 25 January 1968, the Permanent Representative of the United States of America requested an urgent meeting of the UNSC ‘about a series of increasingly dangerous aggressive military actions by North Korean authorities’.23 The DPRK action against the USS Pueblo was characterized as ‘an act of wanton lawlessness against a naval vessel of the United States operating on the high seas’ that, together with armed raids across the demilitarized zone, had ‘created a situation of such gravity and danger as to require the urgent consideration of the Security Council’.24

(p. 162) During the following meeting of the Security Council,25 the members of the Security Council exchanged their positions on the legality of the seizure. The representative of the USSR presented the position of the DPRK.

The US representative stated that the seizure of the ‘virtually unarmed vessel’ had been ‘wantonly and lawlessly’ and a ‘warlike action’ in violation of ‘the United Nations Charter, solemn international agreements and time-honoured international law’.26 He stated that the seizure of the USS Pueblo, after she had been fired at, ‘was no mere incident, no case of mistaken identity, no case of mistaken location. It was nothing else than a deliberate, premeditated armed attack on a United States naval vessel on the high seas’.27

The latter statement was explicitly endorsed by the representative of the United Kingdom.28 The Canadian representative asserted that the capture and seizure of USS Pueblo, which had occurred in international waters, was a ‘clear violation of international law’.29

The representative of the USSR stated that ‘the seizure of a foreign vessel which has invaded the territorial waters of any State with hostile intent is the internal affair of that State’.30 The operation of the USS Pueblo had been but one of a series of ‘more than 800 cases of intrusion by military vessels’.31 He added that he had no doubts ‘as to the aims, or rather hostile aims, of [the] vessel in intruding into the territorial waters of the Republic in violation of that country’s territorial integrity and sovereignty’.32 The Soviet representative also referred to a statement by the DPRK Government of 27 January 1968 from which he concluded that the measures against the USS Pueblo had been ‘taken in self-defence which in no way violated international law’.33 Since this is the only piece of evidence of the official position of the DPRK, the statement merits being quoted in full:34

Equipped with various kinds of intelligence apparatus, the specially armed spy ship Pueblo, on the instructions of the United States Central Intelligence Agency, intruded deep into the territorial waters of our country and was carrying out reconnaissance into a number of such military or state secret matters as the location of military equipment, armed forces and industrial undertakings in the ports and coastal regions of the Democratic People’s Republic of Korea; but it was detained on 23 January of this year by vessels of the naval forces of the Korean People’s Army in the East Korea Gulf, in the territorial waters of our country, at latitude 390 17’ 4’’ North and longitude 1270 46’ 9’’ East.

The provocative acts of the American imperialists’ armed spy ship Pueblo constitute a further flagrant violation of the Korean Armistice Agreement, and an open aggression directed against the Democratic People’s Republic of Korea. It is an integral part of the wilful schemes of the United States imperialists to launch a new war in Korea, and a serious threat to the peace in the Far East and throughout the world.

The defence of the security and sovereignty of its homeland against the encroachments of the enemy is the sacred right of every independent State and its own internal affair, which no one may infringe.

The Hungarian representative agreed with the USSR view by characterizing USS Pueblo’s operation a ‘violation of the frontiers’ of another country and as ‘aggressive’.35

(p. 163) In conclusion, the opposing positions of the Council’s members can be summarized as follows. The DPRK and the states supporting it claimed that USS Pueblo had been in the North-Korean territorial sea and considered her activity as an act of aggression, which entitled the DPRK to respond by exercising its right of self-defence. The United States and the states supporting it emphasized that the USS Pueblo had been on the high seas and that her forceful capture was an armed attack against the United States.

III.  Questions of Legality

The US Navy Court of Inquiry concluded, inter alia, that the ‘assessment of risk for the mission was incorrect at every level of command’ and that the commander ‘was not fully or adequately prepared for the situation he faced’.36 Indeed, the capture of the USS Pueblo occurred during a phase of the Cold War in which tensions had increased. Only three days earlier, in the so-called ‘Blue House Raid’,37 DPRK soldiers had entered the Demilitarized Zone and killed twenty-six South Koreans. For a considerable period of time the capture was considered as having been exercised at least with the approval of the former Soviet Union because it seemed impossible for the DPRK to have interfered with a US warship without such approval or endorsement. According to documents recently made available, it is, however, highly probable that the DPRK acted independently and that the Soviet Union had been unaware of the DPRK’s plans.38 It is plausible that the seizure was a ‘cunning move’ that shifted attention from the ‘Blue House Raid’ and that the DPRK did not admit that the ship was in international waters at the time of the attack because it ‘could not have expected … support from Moscow’.39

While the political issues surrounding the Pueblo incident continue to be fascinating, this section will focus on the legal issues at stake. The incident will be analysed in light of, first, the law of the sea as it stood in 1968 and, second, the jus ad bellum.

1.  Law of the sea

In 1968 there was no treaty fixing the admissible breadth of the territorial sea. The 1958 Convention on the Territorial Sea and the Contiguous Zone40 is silent on the issue. In 1960, the Second United Nations Conference on the Law of the Sea failed to accomplish its main task of defining the breadth of the territorial sea. Coastal states’ claims in 1960 and in 1969 were far from uniform, it follows that state practice had not contributed to a rule of customary international law modifying the traditional 3 nm breadth.41 The mere fact that between 1960 and 1969 the number of claims to a 12 nm territorial sea increased from thirteen to forty-two is not sufficient evidence of a general state practice because during the same period claims to a 3 nm territorial sea increased from twenty-two to twenty-eight. (p. 164) Accordingly, it is safe to conclude that a 3 nm territorial sea, as recognized by the United States in 1968, was considered to be in accordance with customary international law, whereas claims to a 12 nm territorial sea or beyond were not (yet) generally recognized. Even if the growing number of claims to a 12 nm territorial sea were considered relevant or indicative of an emerging rule of customary international law, the DPRK claim would have required an official proclamation. In view of the foregoing the (alleged) claim by the DPRK to a 12 nm territorial sea had no basis under the then customary rules.

The US policy in 1968 has been characterized as ‘somewhat ambiguous as, according to official statements, it assumed that North Korea claimed a 12nm territorial sea when it requested the Pueblo to remain at least 13nm from the coast of North Korea’.42 However, the fact that the USS Pueblo had been ordered not to approach the DPRK coast closer than 13 nm was due to political and operational considerations with a view to avoiding confrontation with the DPRK (or Soviet and Chinese) forces. The 1 nm buffer was a prudent decision because it helped prevent an accidental entry into the territorial sea. Certainly, the order provides no evidence for the United States having acquiesced to the DPRK claim. After all, the US Government merely assumed that the DPRK would have a territorial sea claim similar to that of other communist countries.43

As seen, the location of the USS Pueblo at the time when she was summoned by the DPRK warship continues to be a matter of dispute. The evidence relied upon by the Court of Inquiry suggests that ‘it is highly improbable that the claimed territorial waters of North Korea were violated by PUEBLO prior to seizure and that there is no doubt that PUEBLO was in international waters when the incident began’.44 Even if she had been at a distance of 7.1 nm, as claimed by the DPRK, she would have been in international waters.

Had the DPRK claim to a 12 nm territorial sea been valid, the USS Pueblo would not have been barred from approaching the coast up to 7.1 nm from the baseline. The ICJ, in the Corfu Channel Case,45 did not provide a clear answer to the question whether warships are entitled to enter the territorial sea of another state for the purpose of exercising the right of innocent passage. According to Article 14(1) of the 1958 Convention on the Territorial Sea and the Contiguous Zone, the right of innocent passage applies to ‘ships of all States’. The Convention distinguishes between ‘merchant ships’, ‘government ships other than warships’, and ‘warships’. While, according to Article 22, the Convention’s provisions on innocent passage apply to ‘government ships operated for non-commercial purposes’, Article 23 does not explicitly recognize that right for ‘warships’. However, it follows from the wording of Article 23 that foreign warships are not excluded from exercising innocent passage. Otherwise, the coastal state’s rights recognized in that provision would not make sense. Although the 1958 Convention had been ratified by the United States but not by the DPRK, in this author’s view it is safe to hold that it was reflective of the then existing customary international law governing innocent passage and the coastal state’s rights. It is conceded that state practice (still) is not entirely uniform because some coastal states require either prior notice or prior authorization for the passage of foreign warships through (p. 165) their territorial sea.46 These claims have never been recognized but have been met with protests by other states.

Assuming the USS Pueblo had been within the territorial sea allegedly claimed by the DPRK, that is, at a distance of 7.1 nm off the coastline, she would have enjoyed the right of innocent passage. According to Article 14(2) of the 1958 Convention on the Territorial Sea, she would have been entitled to traverse ‘that sea without entering internal waters’. According to Article 14(3), she would have had the right of ‘stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress’. According to Article 14(4), passage may not be ‘prejudicial to the peace, good order or security of the coastal State’. Neither her status as a warship nor the presence of the two guns would have rendered her passage non-innocent. Nevertheless, seeing as the USS Pueblo was clearly engaged in intelligence gathering against, inter alia, the DPRK and since she had stopped at a location where she was best able to intercept signals, she would not have been in compliance with the right of innocent passage.

Had the USS Pueblo been encountered at a distance of 15.8 nm off the coast, she would have been in international waters, where she was entitled to freedom of navigation, to stop, to anchor, to conduct intelligence gathering by electronic or other means, and to engage in hydrographic surveys.

At first glance, an assessment of the legality of the measures taken by the DPRK against the USS Pueblo depends on her location. While, according to the position taken here, she was in international waters when intercepted by the DPRK warships—whether 7.1 or 15.8 nm off the coast—this section will analyse the law applicable in 1968 on the basis of the two competing claims. It may be recalled that the status of the USS Pueblo as a sovereign immune warship was uncontested between the United States and the DPRK.

Had the USS Pueblo been intercepted while within the DPRK territorial sea, she would have been engaged in activities not covered by the right of innocent passage. According to Article 16(1) of the 1958 Convention, the ‘coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent’. One might argue that the right of ‘preventing’ non-innocent passage must be distinguished from the right to ‘terminate’ such passage. In any event, under the law of the sea the coastal state’s rights vis-à-vis foreign warships in its territorial sea were limited to the measures provided for in Article 23 of the 1958 Convention.47 Although the Convention was not applicable to the DPRK, Article 23 reflects the opinion of the vast majority of states in 1968 because, in situations other than international armed conflict, warships enjoy sovereign immunity.48 Hence, any enforcement measure against a foreign warship required, and requires, an explicit legal basis. Neither the mere presence in a foreign territorial sea nor intelligence gathering activities result in a loss of sovereign immunity. Accordingly, the DPRK would have been entitled to request the USS Pueblo for compliance with what it considered innocent passage. Had that request been disregarded, the DPRK would have been entitled to require her to leave the territorial sea.

(p. 166) Hence, the law of the sea would not have provided the DPRK with a legal basis for a use of force, capture, and seizure of the vessel and detention of the crew.

Had the USS Pueblo been intercepted in high seas areas, no legal basis would a fortiori have been available to the DPRK under the law of the sea entitling it to take enforcement measures. According to Article 8 of the 1958 High Seas Convention49 and customary international law ‘warships on the high sea have complete immunity from the jurisdiction of any State other than the flag State’.50 Intelligence gathering in high seas areas is not prohibited.

Furthermore, no international armed conflict existed between the United States and the DPRK that would have entitled the latter to attack and capture and to consider her ‘booty of war’.51 The 1953 Armistice Agreement terminated the Korean War instead of merely suspending it52 (as provided for in Article 36 of the 1907 Hague Regulations53). Its wording and its object and purpose merely allow the conclusion that the parties clearly intended a cessation of all active hostilities and to refrain for good from an exercise of belligerent rights.

It may be added that the 1953 Armistice Agreement did not serve as a separate legal basis for the capture of the USS Pueblo. It provides, inter alia, that ‘naval forces shall respect the water contiguous to the Demilitarized Zone and to the land area of Korea under the military control of the opposing side, and shall not engage in blockade of any kind of Korea’.54 It may be that the territorial sea areas ‘were assumed to extend up to 12nm’.55 Still, it is difficult to see why the Armistice Agreement would have given ‘both sides the right to take any necessary action for the maintenance of security and order’.56 According to Article II(17) of the Armistice Agreement, the ‘Commanders of the opposing sides’ shall ensure compliance ‘by all elements of their commands’ and they ‘shall actively co-operate with one another and with the Military Armistice Commission and the Neutral nations supervisory Commission in requiring observance of both letter and the spirit of all of the provisions of this Armistice Agreement.’

2.  Jus ad bellum

Since the capture of the USS Pueblo could not be justified by either the law of the sea as it stood in 1968 or by the 1953 Armistice Agreement, the only legal basis available to the DPRK would have been the right of self-defence according to Article 51 of the UN Charter.

As seen, the DPRK and the states supporting it took the position that an intrusion by a foreign warship into the territorial sea for the purposes of conducting reconnaissance operations against the coastal state constitutes an act of aggression, that is, an armed attack, triggering the coastal state’s right of self-defence. According to the United States, the USS (p. 167) Pueblo had not entered the territorial sea of the DPRK and it did not pose a ‘threat of armed attack against North Korea. Its armament consisted solely of two machine guns, which were not used even in its own defense against North Korean boarders. The Pueblo may have created a problem for certain elements of the secrecy of North Korean military installations and activities, but such a problem of secrecy is something with which all nations, including the United States, live and gives rise to no legal right to seize or attack the warship’.57

The non-use of the machine guns is, however, of no relevance. What matters is whether the presence of a foreign warship within the territorial sea for the purposes of intelligence gathering can be considered an armed attack against the coastal state. Some scholars seem to recognize the right of the affected coastal state to react using force, including the capture and seizure of the warship in such context.58 In particular, Butler emphasizes that the DPRK was not bound by Article 23 of the 1958 Convention on the Territorial Sea and Contiguous Zone and that the only available remedy against the USS Pueblo was her seizure that ‘would not appear to be an excessive coastal state reaction, considering that the vessel might have been attacked without warning’.59 However, the right of self-defence was not available to the DPRK because non-innocent passage or intelligence gathering activities in the territorial sea hardly qualify as (imminent) armed attacks. Even if one were prepared to hold that the presence in the territorial sea of a foreign warship despite a request by the coastal state to leave constitutes an armed attack, self-defence measures would have been lawful only if the request had remained unheeded. It may be recalled that the USS Pueblo had clearly indicated her intent to leave the sea area.

Had the USS Pueblo been captured on the high seas, the DPRK would have been able to rely on the right of self-defence only if the intelligence gathering was a threat amounting to an imminent armed attack. Again, Butler seems to be sympathetic for a militarily weak coastal state’s right to respond to intelligence activities by a superior power by resorting to a (limited) use of force. He holds that:

to conclude the Pueblo posed no threat of armed attack against North Korea begs the question; the threat posed by the Pueblo was the acquisition of data that could render the coastal state defense establishment vulnerable. The problem of secrecy is something with which all states must live, but they live with it to an unequal degree. North Korea possessed no comparable capability to obtain equivalent data on the United States defense system. If there is no precedent or scholarly support for invoking self-defense in this kind of situation, neither is there a large body of experience with this kind of enormous technological gap which presently exists between naval Powers and smaller coastal Powers.60

According to the present author, these arguments are not convincing at all. First, the very fact that there are no precedents and no scholarly support is sufficient evidence that intelligence gathering in high seas areas is not prohibited and cannot be assimilated to an imminent armed attack. Second, the ‘enormous technology gap’ has never been considered sufficient to justify an unequal application of the jus ad bellum. Taken to its extreme, that argument would entirely absolve weaker states from the constraints of the jus ad (p. 168) bellum when confronted with technologically superior powers. Third, even if Butler’s arguments were considered to be of some relevance in 1969, they could certainly no longer be upheld today because states, while critical vis-à-vis foreign reconnaissance activities off their coasts, have not considered them sufficiently grave to constitute (imminent) armed attacks.

In conclusion, in the present author’s view, the DPRK could not rely on the right of self-defence and the capture and seizure of the USS Pueblo was not merely a violation of the vessel’s sovereign immunity but constituted a prohibited use of force against the United States of such a gravity that the flag state would have been entitled to respond by exercising its right of self-defence against the DPRK. In this context, it is important to note that the International Court of Justice has not excluded ‘the possibility that the mining of a single military vessel might be sufficient to bring into play the inherent right of self-defence’,61 if the attack can be attributed to a given state.

IV.  Conclusion: Precedential Value

The use of force against the USS Pueblo, the killing and wounding of her personnel, her capture and subsequent seizure, and the detention of the crew for more than eleven months were in violation of the international law applicable in 1968. Although it continues to be a contested issue, her location at the time of interception is without prejudice to these findings. In particular, the use of force by the DPRK could have been considered an armed attack triggering the United States’ right of self-defence. The US Government did not rely on self-defence but did everything, including issuing a humiliating statement as to its responsibility for allegedly unlawful espionage, to have the crew released. The status of the USS Pueblo has not been affected. Despite her seizure and conversion by the DPRK, it continues to be a US warship entitled to sovereign immunity. Accordingly, the DPRK continues to be under an obligation to return the vessel.

On the one hand, the USS Pueblo incident is a positive example of political prudence and self-restraint by a government that would have had convincing legal arguments in support of a wide variety of countermeasures involving as well as a possible resort to (limited) force.62 On the other hand, it manifests the necessity of a scrupulous preparation of personnel that is to conduct a militarily and politically sensitive operation in times of tension. Obviously, neither the commander, nor the crew of the USS Pueblo, nor the higher military echelons were fully aware of the overall political situation. The operational planning and the preparation of the crew were not sufficient to enable them to act and react appropriately. Had the linguists been sufficiently skilled, the commander might have been able to understand the situation he was in and to leave the area of operations before interception.

Footnotes:

1  Although the terms are often used interchangeably, ‘capture’ is accomplished at that point in time in which a foreign vessel has come under the control of the boarding party or of other organs of the captor state, whereas ‘seizure’ is to be understood as the act of appropriating a captured vessel.

2  Court of Inquiry to inquire into the circumstances relating to the seizure of the USS Pueblo (AGER 2) by North Korean Naval Forces, which occurred in the Sea of Japan on 23 January 1968, and the subsequent detention of the vessel and the officers and crew, 9 April 1969, 34. In the following referred to as ‘Court of Inquiry’. The Court’s findings of fact, opinions and recommendations are available at: <http://www.usspueblo.org/Court_of_Inquiry/Court%20&%20SECNAV%20findings.pdf> accessed 17 November 2016.

3  These documents are available at: <https://www.nsa.gov/search/?q=uss+pueblo> and <http://www.usspueblo.org> accessed 17 November 2016. See also Robert E Newton, The Capture of the USS Pueblo and its Effect on SIGINT Operations (National Security Agency 1992) available at: <http://nsarchive.gwu.edu/NSAEBB/NSAEBB278/US_Cryptologic_History--The_Capture_of_the_USS_Pueblo.pdf> accessed 17 November 2016.

4  The USS Pueblo is therefore also referred to as ‘AGER 2’.

5  Court of Inquiry (n 2) 34.

6  ibid.

7  The secondary mission and mission objectives of USS Pueblo are laid down in a former secret, but now de-classified document (DOCID: 4121723).

8  Court of Inquiry (n 2) 35.

9  ibid 36.

10  ibid.

11  In the morning of 23 January CDR Bucher reported the events of the night, which included eighteen contacts and the sighting of an orange flare.

12  Court of Inquiry (n 2) 37.

13  See US Department of State telegram of 8 February 1968, reproduced in: ‘Contemporary Practice of the United States Relating to International Law’ (1968) 62 American Journal of International Law 754, 756–57.

14  ibid.

15  Court of Inquiry (n 2) 36 and 37.

16  US Department of State telegram (n 13).

17  Court of Inquiry (n 2) 38.

18  ibid 40.

19  ‘North Korean Document Signed by U.S. at Panmunjom’ (1969) 63 American Journal of International Law 684.

20  See the statements of 22 December 1968 by the Department of State spokesman and by Secretary Rusk, reprinted in ‘Release at Panmunjom of Crew of U.S.S. Pueblo: Statement by the Department of State Spokesman, December 22’ (1969) 63 American Journal of International Law 682.

21  See US Naval Vessel Register at: <http://www.nvr.navy.mil/SHIPDETAILS/SHIPSDETAIL_AGER_2_2235.HTML> accessed 17 November 2016.

22  See n 19.

23  Letter dated 25 January 1968 from the Permanent Representative of the United States of America addressed to the President of the Security Council (25 January 1968) UN Doc S/8360.

24  ibid.

25  UNSC Verbatim Record (26 January 1968) UN Doc S/PV.1388; UNSC Verbatim Record (27 January 1967) UN Doc S/PV.1389.

26  UN Doc S/PV.1388 (n 25) [57]–[58].

27  ibid [86].

28  UN Doc S/PV.1389 (n 25) [9].

29  UN Doc S/PV.1388 (n 25) [28].

30  ibid [9].

31  ibid [108] et seq.

32  ibid [134].

33  UN Doc S/PV.1389 (n 25) [64].

34  ibid [64]–[66].

35  UN Doc S/PV.1388 (n 25) [19] and [21]. In particular, he rejected the US view that the vessel had been operating on the high seas. See UN Doc S/PV.1389 (n 25) [33] et seq.

36  Court of Inquiry (n 2) 40, 41.

37  For that incident see Balázs Szalontai, ‘In the Shadow of Vietnam: A New Look at North Korea’s Militant Strategy, 1962–1970’ (February 2013) 14 Journal of Cold War Studies 122, 144. See also the statement by the Permanent Representative of the US at the meeting of the UN Security Council of 26 January 1968, UN Doc S/PV.1388 (n 25) [58] (United States).

38  Those documents of Romanian origin can be found at: <http://digitalarchive.wilsoncenter.org/collection/85/uss-pueblo-crisis> accessed 17 November 2016.

39  Szalontai (n 37) 160.

40  Convention of the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958) 516 UNTS 205.

41  See United Nations Department of the Law of the Sea, Law of the Sea Bulletin No 15 (May 1990) 29. Claims in (1960) and in 1969: 3 nm: (22) 28; 4 nm: 3; 6 nm: (10) 13; 9 nm: 1; 10 nm: 1; 12 nm: (13) 42; 130 nm: 1; 200 nm: (1) 5.

42  Ximena Hinrichs Oyarce, ‘Pueblo Incident (1968)’ (2007) Max Planck Encyclopedia of Public International Law [10].

43  See also George H Aldrich, ‘Questions of International Law Raised by the Seizure of the U.S.S. Pueblo’ (1969) 63 Proceedings of the American Society of International Law 2, 3.

44  Court of Inquiry (n 2) 42.

45  Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v Albania) (Merits) [1949] ICJ Reports 4.

46  For state practice and a legal assessment see J Ashley Roach and Robert W Smith, Excessive Maritime Claims (3rd edn, Leiden/Boston 2012) 228ff.

47  See also Aldrich (n 43) 3.

48  For the immunity of warships see Constantine John Colombos, The International Law of the Sea (6th edn, Longmans 1968) 259ff. See also The ‘Ara Libertad’ Case (Argentina v Ghana) (Provisional Measures, Order of 15 December 2012) ITLOS Reports [95] <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.20/C20_Order_15_12_2012.pdf>.

49  Convention on the High Seas (Geneva, 29 April 1958) 450 UNTS 11.

50  See also Aldrich (n 43) 3.

51  For the concept see Yoram Dinstein, ‘Booty in Warfare’ (2015) Max Planck Encyclopedia of Public International Law.

52  Yoram Dinstein, ‘Armistice’ (2015) Max Planck Encyclopedia of Public International Law [16]ff.

53  Regulations Respecting the Laws and Customs of War on Land, Annex to Convention (IV) Respecting the Laws and Customs of War on Land (The Hague, 18 October 1907) (1908) 2 American Journal of International Law Supplement 90.

54  Agreement between the Commander-in-Chief, United Nations Command, on the one hand, and the Supreme Commander of the Korean People’s Army and the Commander of the Chinese People’s volunteers, on the other hand, concerning a military armistice in Korea, Done at Panmunjom, 27 July 1953, Article II(15) (4 UST 234).

55  Hinrichs Oyarce (n 42) [19].

56  ibid.

57  Aldrich (n 43) 4.

58  See Clovis C Morrison, Jr, ‘International Law and the Seizure of the USS Pueblo’ (1968) 4 Texas International Law Forum 187, 191; Francesco Francioni, ‘Peacetime Use of Force, Military Activities, and the New Law of the Sea’ (1985) 18 Cornell International Law Journal 203, 209.

59  William E Butler, ‘The Pueblo Crisis: Some Critical Reflections’ (1969) 63 Proceedings of the American Society of International Law 7, 10.

60  ibid 11.

61  Case concerning Oil Platforms (Islamic Republic of Iran v United States of America) (Merits) [2003] ICJ Reports, 161, 195.

62  According to the present author’s position, a state may respond to a use of force that has not reached the threshold of an armed attack by forcible countermeasures. For the contrary position see, however, Article 50(1)(a) of the ILC’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (28 January 2002) UN Doc A/RES/56/83.