...state jurisdiction. But when might high seas interdictions be lawful, if suspect vessels do not pass through territory within the Proliferation Security Initiative's reach? Ordinarily, merchant vessels in international waters can only be stopped and searched without flag state consent in very limited circumstances. This article, however, argues that insofar as the 'War on Terror' is a conflict with ascertained non-state actors, the law of belligerent contraband could allow high seas interdiction of weapons shipments bound for organisations such as al-Qa'eda.] CONTENTS I Introduction II The So San Incident and the PSI's Foundation A The So San Incident

B Formation of the PSI III Legal Classification of Naval 'Interdiction'.

A The Legal Basis for the So San Interdiction B The Scope of Charter-Era Naval Law 1 Introduction

2 Is There a Separate UK View of Naval and Charter Law's

Interaction? 3 Customary Naval Law's Survival

C Classifying Interdiction Strategies under Naval Law

1 Contraband 2 Blockades 3 Exclusion Zones D Iranian Tanker War Practice E The Cuban Missile Crisis and 'Quarantine'. IV Interdiction as a Use of Force: Article 51 and Self-Defence A Introduction B The Nicaragua Case C Self-Defence against Non-State Actors D Anticipatory Self-Defence and Pre-Emption V Conclusion A Overview

B The So San Incident Reassessed I INTRODUCTION

[I]nterception of critical technologies while en route can prevent hostile states and non-state actors from acquiring ... dangerous capabilities ... The So San episode ... illustrates that proliferators are vulnerable to having their shipments interdicted by the US and our allies. (1)

Containing the proliferation of weapons of mass destruction ('WMD')--chemical, biological and nuclear weapons--has become a major foreign policy objective of the US. (2) However, can states lawfully use force to stop and search foreign-flagged merchant vessels in international waters on suspicion of carrying WMD or WMD-associated materiel and confiscate such cargoes? The United Nations Convention on the Law of the Sea (3) contains no such exception to the principle of freedom of navigation. The question is raised by Spain's 2002 interception of the So San, a vessel transporting Scud missiles (a potential WMD delivery system) between North Korea and Yemen, and the subsequent establishment of the Proliferation Security Initiative ('PSI') by the US.

While the PSI's Statement of Interdiction Principles (4) only expressly deals with interdictions within waters or upon vessels under member states' jurisdiction, the So San incident illustrates that intercepting shipments is sometimes only practical in international waters. If the PSI conducts future high seas interdictions, it will raise questions regarding the limits of self-defence under the Charter of the United Nations ('Charter'), the applicable laws of armed conflict in international waters ('naval law'), and the protection afforded to neutral shipping during armed conflicts. This article will not discuss any PSI implications for interdictions in territorial waters. (5)

WMD interdictions may occur in several scenarios, such as where:

1 one state transports WMD to an ally, shipment of which is intercepted by another state claiming that it is militarily threatened by this development, although no attack appears imminent (for example, the Cuban Missile Crisis);

2 a state claims self-defence (preventing terrorist attacks) when intercepting individual WMD shipments destined for hostile non-state actors ('ad hoc interdictions'); or

3 a state is engaged in an armed conflict (such as 'Operation Enduring Freedom' in Afghanistan) and intercepts WMD shipments destined for state or non-state actors in that conflict.

It will be argued that the legality of ad hoc interdictions in international waters depends upon acceptance of the problematic doctrine of pre-emptive self-defence. Different considerations, however, apply where a state is already involved in armed conflict, be it with another state or a non-state actor. In such cases it will be argued that customary naval law applies to the use of force in self-defence under art 51 of the Charter, and that such interdictions would be permitted under the law of contraband.

This article will examine the So San incident as a model for future high seas interdictions and consider:

1 the So San incident and the PSI's foundation;

2 the characterisation, under naval law, of the interdiction by warships of vessels on the high seas and the legality of the So San incident;

3 Charter law and interdictions involving military force; and

4 whether such interdictions may find support in Charter-era United Nations ('UN') or state practice, especially the Cuban Missile Crisis and the Iran-Iraq 'Tanker War'.

II THE SO SAN INCIDENT AND THE PSI'S FOUNDATION

A The So San Incident

On 9 December 2002, the So San was interdicted 960 kilometres from its destination in Yemen by a Spanish frigate, the Navarra, acting on US intelligence. (6) The Navarra was patrolling as part of Operation Enduring Freedom, intercepting contraband cargo and searching for al-Qa'eda members fleeing Afghanistan. (7) The So San was engaged in transporting 15 Scud missiles from North Korea to Yemen. (8)

The So San displayed no flag or identifying markings. (9) Responding to radio queries, its captain identified his cargo as concrete before attempting to 'speed away', and the Navarra fired warning shots. (10) Spanish special forces then boarded the So San by helicopter. (11) The missiles were discovered under sacks of concrete, along with 85 drums of chemicals, 23 of which contained nitric acid. (12) The vessel was diverted to a naval base, apparently in Bahrain, where US ordinance disposal specialists examined it. (13) Inspection revealed it to be Cambodian flagged. (14) The Spanish Defence Ministry stated that the 25-page declaration of cargo aboard neither listed the Scud missiles nor identified Yemen as a destination. (15) Yemen, however, claimed that it had purchased the missiles legally and guaranteed to the US that they were intended for defence and not for sale to third parties. (16) Consequently, the So San was released, despite Spain's public dissatisfaction. (17)

The White House cited the lack of any basis in international law allowing seizure of otherwise legal weapons as the reason for releasing the vessel. (18) Other factors may have weighed into the decision. The missiles were being transported to an ally, although Yemen is clearly not a traditional US ally. Indeed, one US official stated that the decision reflected the new bilateral relationship with Yemen. (19) Thus, the incident may have served to warn a new ally that its activities were being monitored. There may also have been an intended message for North Korea, given that the incident occurred during the dispute over the fuel oil agreement and the Yongbyon nuclear reactor. Regardless of the So San's Cambodian registration, its cargo and crew were North Korean, and Pyongyang claimed it as a North Korean merchant vessel, denouncing the interdiction as 'violently infringing' its sovereignty. (20) Further, the incident also focused world attention on the potential traffic in WMD and may thus have contributed to the PSI's formation. (21)

B Formation of the PSI

Following the So San episode, a US-led coalition (including Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, and the UK) formed the PSI. (22) By March 2004, it had held six joint military exercises and five formal meetings. (23) Canada, Norway, Singapore and Russia have since joined, (24) and Denmark and Turkey have participated in meetings. (25) The Australian Foreign Minister has referred to 60 countries 'committed' to PSI principles and a smaller group of 'core members'. (26) While statements have been made that the PSI was not established to target North Korea, (27) a PSI declaration refers to Iran and North Korea as 'countries of proliferation concern'. (28)

On 4 September 2003, the PSI released its non-binding Statement of Interdiction Principles. (29) The PSI Principles outline domestic law methods by which member states might stop and search their flag vessels or vessels within their territorial jurisdiction. The preamble states: 'PSI participants are committed to [taking interdiction measures] ... consistent with national legal authorities and relevant international law and frameworks, including the UN Security Council.' (30)

The PSI Principles express member states' commitment to:

1. Undertake effective measures, either alone or ... with other states, for interdicting the transfer ... of WMD, their delivery systems, and related materials to and from states and non-state actors of proliferation concern. 'States or non-state actors of proliferation concern' generally refers to those countries or entities that the PSI participants involved establish ... are engaged in proliferation through: (1) efforts to develop or acquire chemical, biological, or nuclear weapons and associated delivery systems; or (2) transfers (either selling, receiving, or facilitating) of WMD, their delivery systems, or related materials....

4. Take specific actions in support of interdiction efforts regarding cargoes of WMD, their delivery systems, or related materials, to the extent their national legal authorities permit and consistent with their obligations under international law ... to include: ...

b. At their own initiative, or ... [on] good cause shown by another state ... to board and search any vessel flying their flag in their internal waters or territorial seas or areas beyond the territorial seas of any other state that is reasonably suspected of transporting such cargoes to or from states or non-state actors of proliferation concerns, and to seize such cargoes ...

c. To seriously consider providing consent ... to the boarding and searching of its own flag vessels by other states and to the seizure of such WMD-related cargoes in such vessels ...

d. To take appropriate actions to ... stop and/or search in their internal waters, territorial seas, or contiguous zones ... vessels ... reasonably suspected of carrying such cargoes to or from states or non-state actors of proliferation concern and to seize such cargoes ...

f. If their ports ... are used as transshipment points for ... such cargoes to or from states or non-state actors of proliferation concern, to inspect vessels ... reasonably suspected of carrying such cargoes, and to seize [any] such cargoes ...

The measures in para 4 are all uncontroversial, being based on territorial or flag state jurisdiction. (31) Indeed, the US has been at the forefront of using conventional international law means to expand the PSI's reach, entering bilateral agreements with Liberia, (32) Panama, (33) the Marshall Islands, (34) Croatia, (35) Cyprus (36) and Belize (37) that provide for consensual boarding of vessels suspected of transporting WMD. The one reported PSI interdiction to date, that of the BBC China, was also conducted consistently with the idea of national jurisdiction:

The BBC China was a German-owned ship (flagged in Antigua and Barbuda) that the UK and US had information was carrying uranium

centrifuge parts to Libya. In early October 2003 a request was made

to the German Government to search the ship. The German government

agreed and had the owner ... bring the ship in to the Italian port

of Taranto where centrifuge parts were removed by Italian customs

before permitting the ship to continue ... (38) The incident is suggestive of what will probably be the PSI's usual mode of operation: action involving only some PSI members, based on existing national and international law.

However, the PSI Principles and bilateral agreements do not preclude future interdictions of foreign-flagged vessels in international waters--although their implementation may diminish the need for such interdictions. It is hard to imagine a situation where a PSI member, knowing that a WMD cargo bound for a state or non-state actor 'of concern' was travelling through international waters on a vessel not covered by a PSI bilateral treaty or flagged by a PSI member, on a route not passing through any PSI member's territorial jurisdiction, would choose to do nothing. (39) Indeed, US officials have reportedly stated that 'there could be a legal case for interdiction ... [as] self-defence under Article 51 of the UN Charter.' (40)

The drafting of the PSI Principles leaves this issue open. The para 4 measures seem to be minimum commitments, and not necessarily an exhaustive statement of available measures. This suggests a spectrum of views among PSI members about the limits of legal action. One US official commented that: Participating countries have exchanged extensive information about what we believe our respective national authorities are, and the Statement of Interdiction Principles makes clear that the steps it calls for will be taken consistent with those authorities. (41) This diversity of views among PSI members, and their apparent capacity to act outside the enumerated PSI Principles, makes it relevant to enquire whether there is an arguable Charter foundation for high seas interdiction of flag vessels of foreign states.

A further reason to ask the question is the European Union's Strategy against Proliferation of Weapons of Mass Destruction. (42) The EU Strategy contemplates '[s]upporting international initiatives aimed at ... interception of illegal shipments', (43) and notes that coercive measures under Chapter VII of the UN Charter and international law (sanctions, selective or global, interceptions of shipments and, as appropriate, the use of force) could be envisioned. The UN Security Council should play a central role. (44) The language could allow a distinction to be drawn between action under ch VII and other action justifiable under international law, indirectly suggesting that 'interceptions' could occur under international law other than under ch VII. While acknowledging the Security Council's role, its approval is not expressly required. Again, the text leaves open the prospect of individual member states interdicting WMD shipments if they considered that international law supported such action.

This also appears to be the position under the recent Security Council resolution on the issue. Security Council Resolution 154045 prohibits state assistance to non-state actors seeking to acquire WMD, WMD delivery systems or WMD materiel without providing automatic consequences for breaching this regime or creating any new international law counter-proliferation mechanisms. It calls for greater national safeguards to prevent sale or transhipment of WMD materiel and greater multilateral cooperation. Specifically, Resolution 1540 'calls" upon all States, ... consistent with international law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials'. (46) The Resolution clearly does not modify existing law applicable to warship-conducted interdictions in international waters. It thus rests with individual states to act within their interpretation of the applicable law.

III LEGAL CLASSIFICATION OF NAVAL 'INTERDICTION'

A The Legal Basis for the So San Interdiction

The US's principal justification for interdicting the So San was that it flew no flag. (47) This seems a strong argument as the UNCLOS permits, upon reasonable suspicion, a right of visit to ascertain whether a vessel is stateless. Indeed, art 110 apparently codifies the 'right of visit' in international waters (subject to laws of armed conflict, boarding rights created under treaty and 'other rules of international law' limiting the freedom of the high seas), (48) by prohibiting warships from boarding other...

NOTE: All illustrations and photos have been removed from this article.



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