The recent salvage of a "mystery(or suspicious) ship" from the East China Sea last September by the Japan Coast Guard came again as a vivid reminder of the serious issue of intrusion of spies from the sea. The arms-laden vessel that sank in December 2001 after a gun-battle with Japanese patrol boats finally turned out to be a North Korean spy ship. From the results of investigations carried out both before and after the vessel was raised, it was labeled as a spy ship.¹

An intrusion of spies from the sea(or more generally maritime infiltration) is one of illegal activities at sea which might be defined as a criminal offence connected to the sea or to ships.² Effective enforcement against it often relies upon intelligence from shore-based sources as well as cooperation between law enforcement agencies at a domestic level and between law enforcement agencies in different national jurisdictions.

An intrusion of spy ships into a country's territorial waters generally does not take the form of direct armed aggression, and at the initial stage of action taken by the country against the ships, it treats them as "unidentified and suspicious vessels." Therefore, it is normal to deal with the situation initially by the national constabulary function. However, if a forceful investigative action is taken on these spy ships, shooting might occur, and the possibility of the situation escalating seriously could not be ruled out. Espionage is nothing less than a direct threat to the nation's peace and security, and may cause a situation that the constabulary function alone would not be able to cope with. Recognizing these problems, the author would like to explore the countermeasures against intrusion of spy ships from the sea, by illustrating some real cases.

　

Ships can operate wherever there is sufficient depth of water to float. This gives them immediate access to some 70 per cent of the earth's surface, an effect magnified by the fact that the vast majority of the world's population lives within a hundred and fifty kilometers of the sea. Ships do not create a "footprint" on other nations' territories or in their airspace and thus do not challenge sovereignty in the way that land forces or forward deployed or over-flying air forces do. Restrictions on airspace and ground facilities may mean in some circumstances that ships are the only option available to achieve a certain mission.

For this reason, intrusion of spies from the sea occurs very frequently in Northeast Asia, where the security environment is relatively unstable and state-to-state relationships are not fully normalized as compared to other regions of the world. So far, the Republic of Korea (South Korea) and Japan have been menaced by recurrently intruding spy ships from the sea.

　

　

In South Korea, on September 18, 1996, one SangO-class coastal submarine of North Korea was found stranded off Kangnung on its east coast. Subsequently, a unit of the South Korean armed forces exchanged fire with armed agents of North Korea who had landed from the stranded submarine, causing number of casualties on both sides. In 1998, similar incidents of infiltration into South Korea by North Korean armed agents occurred frequently. On June 22, the South Korean Navy captured a crippled submarine that got caught in a fishing net off Sokcho in the eastern shore of South Korea. It was a Yugo-class midget submarine of North Korea and sank while it was being towed to a naval base by a South Korean naval vessel. Subsequently, it was reflated, and nine bodies apparently of crew members and agents were found inside the submarine. On December 17, South Korean guard units spotted a suspicious vessel at a point about 8 kilometers off its southern coast of Yeosu, and the vessel turned out to be a North Korean semi-submersible craft. Thereupon, South Korean navy-air force joint task force tried to seize it and shooting took place. Although the semi-submersible craft tried to escape, the joint task force pursued and fired at, and sank the craft at a point about 80 kilometers southwest of Tsushima Island near the territorial waters of Japan.

In Japan, two infiltration incidents took place in March 1999 and December 2001 respectively. The first incident, in which two unidentified ships were spotted in Japan's territorial waters west of Sado Island and east of the Noto Peninsula, could have had a connection with North Korea's operations of infiltration into the territorial waters of South Korea that had occurred frequently in 1998.³ The Japanese Maritime Safety Agency(MSA) tracked the ships with firing the warning shots but lost sight of them. The second infiltration incident occurred in the waters west of Amami-Oshima Island. The unidentified boat, apparently camouflaged as a fishing vessel and carrying a crew of about 15 people, sank with the presumed loss of all on board after a fire fight with Japan's coast guard after entering Japan's exclusive economic zone(EEZ). As previously mentioned, the boat was finally raised last September and it is believed to be a North Korean spy ship.

The maritime infiltration incidents occurred both in South Korea and Japan have attracted international attention on the continuing intelligence activities of North Korea. The vessels used in both cases turned out to be the products of North Korea. It is reported that North Korea developed an ambitious ship-building program in the 1990s for the purpose of maritime infiltration. In addition to the high-speed submersible infiltration craft, this program reportedly includes: a 1,000-ton class infiltration submarine; a two-man swimmer delivery vehicle/ midget submarine which can dive to a depth of 5-8m; and a "stealth" patrol boat. This "stealth" boat is reportedly constructed with faceted surfaces covered with radar absorbing paint, has a crew of 30, is 38m long, and has a maximum speed of 50 kts. It is fitted with 57mm and 37mm gun mounts.⁴ In particular, the infiltration craft of the type used in the 1998 incident in South Korea are usually transported to their area of operations by a "mother" ship which approaches the South Korean waters. These are either a 50-100 ton vessel posing as a fishing vessel or a larger vessel operation as a cargo ship. The "mother" ship launches the infiltration craft at night from a point 25-50 miles off the coast. According to an intelligence source, a typical infiltration mission takes six to eight hours to complete. This includes: launching of the infiltration craft from the "mother" ship; insertion; landing; and, finally, recovery and stowage of the infiltration craft on the "mother" ship. For the landing operation the crew brings the vessel to within 100-200m of the shore. Here the two escorts exit the craft and swim to land. If they are recovering agents, they escort infiltrators back to the craft. If they are inserting agents, the escorts will secure the beach and then signal the agents to swim ashore. The escorts then ensure the agents' safe departure inland, clear the beach of any traces of infiltration and return to the infiltration craft.⁵

Then, what are the major objectives of a North Korean maritime infiltration mission done by a "suspicious ship"? Usually the term "suspicious ships" includes smuggling boats, boats for illicit trafficking or illegal immigrants and spy boats. In the case of spy boats, they may conceivably infiltrate the territorial waters of other countries to help their personnel infiltrate another country for collecting intelligence and spying, for carrying out subversive activities, for receiving funds raised there or for kidnapping local inhabitants. Although details are lacking, it is reported that the major objectives of a North Korean maritime infiltration have been centered on those missions of intelligence collection and other illegal activities such as drug smuggling, kidnapping foreign nationals and passing of counterfeit bills.⁶

　

Illegal acts threatening the security of destabilizing the environment of the sea ― in particular, infiltration of a state's territorial waters by spy ships ― sometimes cannot be adequately dealt with merely by strengthening the maritime constabulary capability and the maritime defense capability, the latter designed to meet a sea-borne armed aggression. In peacetime, it is necessary to build a maritime defense capability that can meet the task of maintaining public peace and order at sea, ensuring unhindered utilization of the sea, and to make multilateral arrangements to help these capabilities function effectively.

In this regard, the existing policies of some major countries dealing with spy ships infiltrating their territorial waters can provide lessons. In the United States, it is basically the responsibility of the U.S. Coast Guard for checking illegal activities at sea. The U.S. Navy sometimes participates in the action where necessary. Recently, the number of Joint/ inter-agency operations conducted by the U.S. Coast Guard and the U.S. Navy to check illegal migration and drug smuggling from Latin American countries and cases of joint work regarding boarding inspection has been increasing. For instance, the U.S. Navy and the U.S. Coast Guard have formed a joint task force to intercept drug smugglers coming from Latin American countries. In the Persian Gulf and in the Adriatic Sea, U.S. Navy vessels and U.S. Coast Guard cutters participated in the maritime intercept operations in support of U.N. sanctions against Iraq. In September 1998, the chief or naval operations and the commandant of the U.S. Coast Guard signed a National Fleet ― Joint Navy/Coast Guard Policy Statement. The term "National Fleet" is a concept born of the necessity for synchronizing planning, training and procurement of the navy and the coast guard to improve their overall capabilities.

In the case of the United Kingdom, the Royal Navy has the responsibility for guarding its territorial waters. The Royal Navy has three tasks to perform: military, constabulary and benign operations (humanitarian assistance and civic cooperation). Its constabulary duty includes the enforcement of embargoes, surveillance of fisheries and dealing with piracy and terrorism.

In South Korea, it is the responsibility of the National Maritime Policy Agency, and when the infiltration boat is believed to be a spy ship of North Korea, the navy takes charge of the situation. In this regard, one of the major missions of the ROK Navy is the increased surveillance of the 12-mile territorial sea limit in to order to discourage, or prevent foreign spying, particularly by the North Korean spy vessels in the guise of fishing craft.

In the case of Japan, the Maritime Safety Agency(MSA) has been responsible for checking maritime intrusion. However, the 1999 infiltration incident of spy ships, in which Japanese forces opened fire for the first time(only with warning shots) since the end of the World War II, prompted a reevaluation of the country's maritime-defense needs. The major points raised at that time in Japan were the necessity for relaxing the criterion of using weapons during maritime security operations, for giving the MSA patrol boats capability to navigate at a higher speed, for strengthening the coordination and cooperation between the Maritime Self-Defense Force(MSDF) and the MSA, and for assigning the duty of what is called "guard operation in the territory" to the Self-Defense Forces(SDF).⁷ Now, the MSA is still responsible for checking suspicious ships infiltrating Japan's territorial waters. However, in the case the MSA finds it extremely difficult or impossible to deal with a given incident by itself, the SDF is supposed to deal with such an infiltration of spy ships by conducting maritime security operations.

In addition to strengthening coordination between law enforcement agencies at a domestic level, bilateral cooperation is crucial when a suspicious ship flees into the territorial sea of a third state. The seas in Northeast Asia border on the territorial waters of a number of states, and when an any spy ship flees to the territorial waters of any of these states, it could affect the security of many countries ― so that actions taken by one country could conceivably disturb the maritime security of other countries. Therefore, it is imperative for the affected country to coordinate the actions it takes against such spy ships with those of other countries concerned. In this regard, following the 1999 intrusion incident of the suspicious ships in Japan, the bilateral cooperation established between South Korea and Japan is suggestive. The two countries set up a hot line between the defense authorities to exchange information.

Furthermore, international cooperation at the regional level is needed to reduce the incidence of maritime crimes such as an intrusion of spy ships and maintain good order at sea in Northeast Asia where maritime jurisdiction and enforcement are extremely complex. As all of us are aware, the United Nations Convention on the Law of the Sea(UNCLOS) prescribes for territorial sea, exclusive economic zones(EEZ) and continental shelves, and grants coastal states sovereignty over their territorial sea, sovereign rights to natural resources in their EEZ and continental shelf, and jurisdiction over the environmental protection of their EEZ. Since the establishment of EEZs by coastal states, almost all the area of the region has become subject to the jurisdiction of one country or another. Most of the infiltration by spy ships has occurred in sea areas over which one coastal state or another claims sovereignty, sovereign rights or jurisdiction. Therefore, conflicting claims of sovereignty, sovereign rights or jurisdiction over a particular sea area by different countries have a profound impact on the security of the seas.

In conducting international cooperation on various problems affecting the maritime security of the regional countries, if the UNCLOS is interpreted merely as a law governing relations between sovereign states, such an approach sometimes makes it difficult to solve those problems. When countries too rigidly demand the protection of their sovereignty over their territorial waters, chances will be lost for developing avenues of international cooperation to combat common threats.

　

Infiltration of a state's territorial waters by spy ships is one of the illegal activities at sea which poses a serious threat to national security. Infiltration of spy ships occurs very frequently in Northeast Asia, where the security environment is relatively unstable and state-to-state relationships are not fully normalized.

The major mission of infiltration of spy ships is to infiltrate the territorial waters of other countries to help their personnel infiltrate another country for collecting intelligence and spying, for carrying out subversive activities, for receiving funds raised there or for kidnapping local inhabitants.

Countries may face difficulties in combating maritime infiltration of spy ships due to the lack of modern equipment, the obsolescence or inadequacy of much national legislation, and the weak maritime law enforcement capability of national agencies. Even developed countries with sophisticated maritime patrol and surveillance capabilities may have difficulty in adequately policing expanded offshore areas.

In order to prevent maritime infiltration of spy ships, it is necessary to build a maritime defense capability that can meet the challenge of maintaining public peace and order at sea, ensuring unhindered utilization of the sea, and making bilateral and multilateral arrangements to help these capabilities function effectively.