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Law allows search, but does not address seizure of cargo

By Kevin Drew

Spanish naval forces on Wednesday board the So San, which was bound for Yemen carrying a cargo of Scud missiles. The ship was later allowed to proceed.
Spanish naval forces on Wednesday board the So San, which was bound for Yemen carrying a cargo of Scud missiles. The ship was later allowed to proceed.

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WASHINGTON (CNN) -- The United States sought on Wednesday to dampen a dispute over international maritime law by releasing to Yemen a ship that was seized carrying Scud missiles.

The ship, the So San, was seized Monday by a Spanish frigate -- acting on information from U.S.sources -- 600 miles (965 km) off the Horn of Africa in the Indian Ocean. The vessel was found to be carrying 15 Scud missiles.

International law allows nations to stop and search vessels carrying no flags, law experts said. But such laws do not clearly outline a nation's authority to indefinitely hold the vessel, or to seize cargo that is not outlawed.

The White House acknowledged such a point Wednesday.

"While there is authority to stop and search, in this instance there is no clear authority to seize the shipment of Scud missiles from North Korea to Yemen. And therefore, the merchant vessel is being released," said White House spokesman Ari Fleischer.

"We have looked at this matter thoroughly," Fleischer added. "There is no provision under international law prohibiting Yemen from accepting delivery of missiles from North Korea."

Under a 1982 international convention that established the Law of the Sea Tribunal at the United Nations, a nation is justified in boarding and searching a ship if the vessel appears to have no nationality, said John Norton Moore, University of Virginia law professor.

But international laws do not authorize seizing legal cargo under such conditions, said Moore, who also is director of the University of Virginia's Center of Oceans Law and Policy. The United States is not a member of the sea tribunal, Moore added.

U.S. officials Wednesday defended the seizure as consistent with administration policy of interdicting arms sales if a potential exists that they could be used to make or deliver weapons of mass destruction.

International law not explicit

Allowing the ship to go to Yemen seemed to head off a major dispute between the United States and that nation, which has a history of troubled relations with the United States, but has lately provided assistance to the Bush administration's war on terrorism.

The brief standoff pointed up a vague area of international law: While U.S. officials conceded such laws do not allow for the seizure of conventional weapons that are not banned by any treaty, they also argued the law does not explicitly forbid it.

Forces climb from a helicopter to board the So San, seized Wednesday in the Indian Ocean.
Forces climb from a helicopter to board the So San, seized Wednesday in the Indian Ocean.

"The source (North Korea) is a rogue regime that is the world's chief arms bazaar and supplier of weapons of mass destruction and its means of delivery," a senior official said early Wednesday. "We are not dealing with good guys here -- and we see every right and reason to board a 'stateless vessel.'"

Spanish Defense Minister Federico Trillo said the So San sailed under the Cambodian flag, but had no identifying marks on it. Spain's Defense Ministry considered the vessel a "pirate ship" operating illegally.

U.S. international law experts agreed, saying that such identifying markers - or absence of one -- are the determining factor in establishing authority.

"If there's no flag, there's essentially no nationality - it's fair game," said John Norton Moore, law professor at the University of Virginia and director of that school's Center for Oceans Law and Policy.

"They (U.S. authorities) have not violated any law," added Daniel Pinkston of the Monterey Institute of International Studies. "The ship was not carrying the flag, so it's open game. Any nation can legally board and seize the ship."

The absence of a flag raises the question of whether the vessel was really headed toward Yemen, said the University of Virginia's Moore.

The senior U.S. official was highly skeptical of Yemen's claim that the missiles were intended for its army, saying the United States sees no strategic reason for Yemen to have such weapons and also questions how Yemen would pay for the multimillion-dollar cost. "We will talk to them," this official said." Our concern is that we have more questions than answers about the final destination."

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