ASIL Insights

            On December 10, two Spanish naval ships stopped and boarded a North Korean cargo vessel on the high seas about 600 miles from the coast of Yemen.  The cargo vessel flew no flag.  According to a Pentagon official, the vessel took evasive measures in order to avoid inspection.  The boarding party found fifteen Scud missiles hidden under sacks of cement. The cargo vessel's manifest said that it was carrying 40,000 sacks of cement, and apparently mentioned no other cargo.  The Spanish naval ships were participating in organized patrols of the Indian Ocean and nearby waters keeping watch for al Qaeda fighters fleeing from Afghanistan.  The United States and other countries also participate in the patrols, and U.S. explosives experts were summoned to inspect the Scud missiles on board the cargo vessel.

            Under the United Nations Convention on the Law of the Sea, which for the most part codifies the law of the sea even for non-parties to the Convention, vessels on the high seas are subject to the exclusive jurisdiction of their flag state and ordinarily may not be boarded by anyone from a foreign naval ship. [1] An exception exists, however, if the boarded ship is without nationality. [2]   A vessel that flies no flag and is not otherwise clearly identified with a state of registration is considered a ship without nationality.  Consequently it appears that the boarding of the cargo vessel, in and of itself, did not violate international law.

            There would still be questions relating to the purpose and consequences of the boarding.  The Convention on the Law of the Sea says that when an exception to the no-boarding rule exists, the naval ship may verify the boarded vessel's right to fly its flag or may check its documents and further examine the ship if "suspicion remains." [3]   In the context of the Convention, though, the suspicion would have to relate to certain enumerated offenses, which do not include the carrying of weapons.  The carrying of weapons at sea, even on a merchant ship, is not a violation of international law unless the carriage is in violation of a treaty obligation of the transporting state.  Such does not appear to have been the case here.  Nor could the carrying of weapons, without more, be analogized to an actual or imminent armed attack of the sort that might justify action in self defense by threatened states.

            Spain and the United States might have made an argument that the Scud missiles are contraband and thus would be subject to confiscation.  The argument would have been weak.  The law of contraband, which developed more than a century ago, applies to items that have military uses and are on their way by sea for the use of an enemy belligerent in wartime.  The missiles obviously would have military uses, but they appear to have been destined for use by the government of Yemen, which could not reasonably be considered a belligerent despite any terrorist incidents that have occurred there.  Nor is there currently a war in the normal sense between the United States (or Spain) and any state involved in the carriage of the missiles.

            On December 11, the United States government confirmed that the missiles were destined for the government of Yemen, and released the cargo vessel to complete its voyage.  White House spokesperson Ari Fleischer was quoted as saying that "In this instance there is no clear authority to seize the shipment of Scud missiles from North Korea to Yemen."  He added, "There is no provision under international law prohibiting Yemen from accepting delivery of missiles from North Korea."  Thus the US government appears to have conceded that any justification it might offer under international law for detaining the vessel or seizing the missiles would be unconvincing.

            Mr. Fleischer's statements reflect a willingness of the United States government to respect international law under the circumstances currently prevailing.  Among those circumstances presumably are the need for cooperation by the government of Yemen in US efforts to contain terrorism and in the event of war with Iraq.  Nevertheless, the government's expression of respect for international law as the motivation for releasing the vessel is significant as a recognition by the world's superpower of relevant legal norms restricting the confiscation on the high seas of cargo with obvious military uses, even when the military cargo is being transported clandestinely from an unfriendly state into a volatile part of the world.

About the Author: 
Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee University School of Law.  He has written books and articles on international law, and is a member of the Board of Editors of the American Journal of International Law.