Academic journal article The George Washington International Law Review

All Aboard: Developing an International Institution to Combat the Proliferation of Weapons of Mass Destruction on the High Seas

Academic journal article The George Washington International Law Review

All Aboard: Developing an International Institution to Combat the Proliferation of Weapons of Mass Destruction on the High Seas

Article excerpt

I. INTRODUCTION

On December 9, 2002, Spanish special military forces boarded and conducted a search of the freighter motor vessel So San, concluding a multinational intelligence operation that had lasted for nearly a month.1 The U.S. and British intelligence satellites had detected the loading of ballistic missiles onto the So San several weeks earlier in the North Korean port of Nampo and had been tracking the vessel's movements since its departure.2 As the So San approached the Arabian Peninsula, the Spanish frigates Patino and Navarra moved to intercept the So San about six hundred miles offof the Horn of Africa.3

The Spanish frigates discovered that the So San was neither flying the flag of any nation nor displaying any indication of its state of registry.4 The North Korean flag on the freighter's funnel had been painted over, as had the name So San in Korean characters.5 When the Navarra contacted the So San by radiotelephone to determine the ship's registration, the So San's master provided only cursory and inconsistent responses to requests for information before indicating that the vessel was registered in Cambodia and carrying cement to Yemen.6

The Navarra contacted the Cambodian government to verify the shipmaster's claim.7 Cambodia could confirm only that the ship met the description of a vessel registered in Cambodia under a different name8 and therefore granted consent for the boarding of the So San on the condition that the vessel was in fact registered in Cambodia.9 Thus, the ship-boarding operation undertaken by the Spanish forces on December 9 occurred under the assumption that Cambodia had given its consent to board a Cambodian-flagged ship10 or that the So San's failure to fly a flag or display its name, along with the unverifiable claim of Cambodian registry, provided reasonable grounds to conclude that the So San was a stateless vessel.11

The Spanish boarding team discovered hiding under the So San's cargo of cement fifteen complete scud surface-to-surface missiles and conventional warheads,12 rocket fuel, and the components to make eight additional missiles.13 After several days of uncertainty, Yemen admitted that it was the intended recipient of the missiles and gave assurances to Spain, the United Kingdom, and the United States that the scuds would not be transferred to a third party.14 Shortly thereafter, the So San and its cargo were released for lacking basis under international law to seize the missiles or take action against the So San or its crew.15

The United Nations Convention on the Law of the Sea (UNCLOS or Convention) codified customary international law of the sea and progressively developed the law of the sea in some respects.16 UNCLOS presents a jurisdictional challenge to the international effort of combatting the proliferation of weapons of mass destruction (WMDs), their components, and their delivery systems.

Currently under UNCLOS, ships should sail under the flag of only one state and generally are subject to only that state's exclusive jurisdiction on the high seas, except for certain situations expressed by the Convention or by consensual agreements provided in international treaties.17 There is, however, no exception to the exclusive jurisdiction rule for the transportation of WMDs and their related materials in UNCLOS.18 Thus, had the So San not engaged in suspicious behavior but simply declared its North Korean registry, there would have been no clear legal justification19 for Spain's boarding operation despite the knowledge of the scuds present onboard and heading for an unknown recipient.20

In addition to this jurisdictional problem under UNCLOS, enforcement is problematic; international law does not allow for the confiscation on the high seas of materials that any particular nation may consider as contraband.21 This enforcement problem explains the inability of Spain, the United Kingdom, and the United States to seize the So San's shipment of scuds and prevent their transportation to Yemen. …

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