On 10 December 2002, a North Korean ship named So San was intercepted by a Spanish frigate and a support vessel Patino patrolling in the Indian Ocean as a part of multinational force participating in US led “Enduring Freedom.”  So San was loaded with about fifteen Scud missiles hidden under cement bags and bound for Yemen. The search team was later augmented with officials from US warships operating in the vicinity. Two days later, the seized Scud missiles were returned to the Yemen government by a reluctant Bush administration because there was no provision under international law prohibiting Yemen from accepting delivery of missiles from North Korea.

The whole operation of stopping, boarding and seizing a legitimate vessel operating on the high seas raises many questions related to the “Freedom of Seas” (FOS). Does the military necessity of the “war on terrorism” permit the powerful nations to violate the basic principles and norms of laws of sea?

The principle of FOS lies at the heart of maritime law. It is closely associated with the process of evolution of the laws of seas, primarily because sea was recognized as commune omnium, or, common property of all.  According to customary international law, the freedom of navigation on the high seas is absolute, subject to four exceptions. A warship of one state may board the merchant ship of another flag only if,

·         Such power is granted by a treaty between the two parties;

·         The ship is engaged in piracy;

·         The ship is engaged in slave trade; or,

·         Though flying a foreign flag, or refusing to show its flag, the ship is in reality of the same nationality as the warship.

Furthermore, according to UNCLOS (United Nations Convention on the Law of the Sea), the ship has no “freedom of navigation” if it is suspected to be without any nationality. In the case of So San, its initial and temporary seizure is being justified by American and Spanish authorities on the grounds that the freighter was not flying any flag; and therefore, as per maritime law, the interdiction is legal. However, it is difficult to justify this action because American intelligence agencies were aware of the ship’s movement for several days; hence, they knew of the port of origin and nationality of the ship and this intelligence must have been passed on to the Spanish ship operating in the area. Therefore, the claim that So San was a “stateless vessel” does not hold much water.  Also, on the high seas, ships are under the jurisdiction of the State whose flag they fly. Therefore, it is only the flag state which has the right of intervention.

The question is why would a North Korean ship carrying a legal shipment of arms refrain from flying a flag? The Americans also argue that the reason for intercepting the vessel was that the arms could have been destined for Iraq. This is a specious argument because misjudgment on the part of American intelligence networks cannot be accepted as a valid reason for violation of international norms.

So San was registered in Cambodia and crewed by North Koreans. This is a common practice these days as a majority of the world ocean going fleet is registered in “tax havens” countries like Panama, Liberia, Bahamas and Malta. Liberia and fly the “Flags of Convenience” (FOCs).

It is possible that among thousands of ships on the high seas it may be difficult to pin-point a terrorist ship. This difficulty could lead the coalition forces participating in operation “Enduring Freedom” to check every possible threat, which, in turn, may not grant them enough opportunity to observe the niceties of law. According to Adnan Malik (Associated Press), by January 2002, some 6000 ships had been detected and questioned by coalition ships patrolling the sea. There is a danger of such search measures directly impinging on the “freedom of navigation” on high seas and becoming a norm over years thus overriding laid down laws.

Another controversial aspect is the establishment of maritime zones of exclusion from which shipping is totally or partially excluded. In this context, the problem the war on terrorism poses is that, since the scope and area of the terrorist attacks at sea remain undefined and at best unpredictable, there is a danger of vast areas of sea becoming war zones for prolonged durations.

The thin line dividing terrorism and piracy is fast vanishing; with both beginning to look alike, the laws governing the two also tend to merge. Should terrorism and piracy be equated, the legality of intervention would not be questioned as States can seize vessels despite acts of piracy not being committed.

 It is possible to ignore freak violations of international law committed by the military necessity of the war on terrorism and, international law can absorb these as occasional exceptions to the rule. The moot point remains: is the war on terrorism an exception?