International Law of Maritime Security: A Synopsis and Proposal for Change

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International Law of Maritime Security: A Synopsis and Proposal for Change

A. Introduction

In defending his position on the legality of hydrogen bomb tests on the high seas, McDougal asserted:

… the international law of the sea is not a mere static body of rules but is rather a whole decision-making process, a public order which includes a structure of authorized decision-makers as well as a body of highly flexible, inherited prescriptions. It is, in other words, a process of continuous interaction, of continuous demand and response, in which the decision-makers of particular nation states unilaterally put forward claims of the most diverse and conflicting character to the use of the world’s seas, and in which other decision-makers, external to the demanding state and including both national and international officials, weigh and appraise these competing claims in terms of the interests of the world community and of the rival claimants, and ultimately accept or reject them. As such a process, it is a living, growing law, grounded in the practices and sanctioning expectations of nation-state officials, and changing as their demands and expectations are changed by the exigencies of new interests and technology and by other continually evolving conditions in the world arena.¹

Though written in 1955 as part of a discourse on the validity of nuclear weapons tests at sea, this description of the law of the sea and its evolving nature remains pertinent today, especially when considering the current demands of maritime security.

McDougal’s view stands in the face of strong resistance to shift the balance of interests that was established when UNCLOS was adopted in 1982.² While such resistance is understandable, especially by those who were involved in crafting the legal regime enshrined in UNCLOS, it would surely not be the case that rigid adherence to the ‘package deal’ is essential and that the stasis of UNCLOS was fundamental almost 30 years later. This concept of the ‘package deal’ should not stand in the way of progress, but should only mean that there is a need for caution, and a preference for evolution over revolution. This concluding chapter draws together the diverse ways that international law now serves to promote, to varying degrees, maritime security and considers how the law of the sea might further evolve to better achieve maritime security.

B. Laws Relating to Maritime Security Threats

At the outset of this book, the meaning of ‘maritime security’ was considered and the following definition posited: ‘the protection of a state’s land and maritime territory, infrastructure, economy, environment and society from certain harmful acts occurring at sea’. The harmful acts considered were those identified by the UN Secretary-General in his 2008 report on the Oceans and the Law of the Sea,³ as these maritime security threats reflected those most commonly addressed as such by governments, by international organizations and in the academic literature. This part of the chapter organizes the various sources of international law that pertain to each of these maritime security threats and highlights some of the remaining gaps, inconsistencies, and ambiguities.

(1) Piracy and armed robbery

Acts of piracy concern ‘illegal acts of violence or detention, or any act of depredation, committed for private ends’ by crew or passengers on one ship against another ship in areas outside the sovereignty of a state,⁴ whereas armed robbery refers to the same acts but in maritime zones under the sovereignty of the coastal state.⁵ Piracy and armed robbery expose seafarers to personal physical harm, as well as disrupting navigation and causing financial loss to ship owners and insurance companies, and ultimately consumers and producers of the goods on board.⁶ International concern over piracy has been manifest in the collective responses to piracy off Somalia. Modern piracy has become increasingly sophisticated, with suspicions of links to terrorist groups arising,⁷ and the use of ‘phantom ships’ evolving.⁸

There has been considerable academic commentary on the definition of piracy in order to understand its precise scope.⁹ The elements of piracy most commonly identified are those set out in Article 101 of UNCLOS: (a) illegal acts of violence, (b) on the high seas, (c) for private (typically financial) ends, and (d) between two vessels. The elements for armed robbery are the same, except that it does not occur on the high seas but within the territorial sea, archipelagic waters, or internal waters of a state.

When piratical acts occur within the territorial sea of a state, it falls to that coastal state to take the necessary steps to suppress these acts and enforce national laws prohibiting such conduct. Coastal states are obliged to alert shipping of any known danger to navigation within its waters,¹⁰ and arguably may be held responsible for a failure to protect international shipping.¹¹

Foreign warships or government vessels have no policing powers within the territorial sea or internal waters of another state, absent the coastal state’s consent. This lack of power is underlined by the limitations that inhere to the right of innocent passage.¹² Foreign vessels are prohibited from conducting a range of military activities, as well as ‘any other activity not having a direct bearing on passage’.¹³ Moreover, the termination of the right of hot pursuit as soon as the pursued vessel enters the territorial sea of its own or a third state reinforces the lack of policing powers of other states in the territorial sea, even if pirates, the enemies of all human kind, are being pursued.¹⁴

Despite concerns about the extent of piratical acts (armed robbery) occurring in areas under coastal state sovereignty, there has been little willingness to move away from a position that prioritizes the legal rights of the coastal state. So much has been evident in Indonesia and Malaysia’s responses to piracy in the Straits of Malacca and surrounding areas.¹⁵ The Security Council has authorized states to enter the territorial sea of Somalia in pursuit of pirates, but the Security Council resolutions were predicated on the consent of the transitional government of Somalia.¹⁶ Equally, the 2009 Code of Conduct,¹⁷ which was adopted in Djibouti, still requires coastal state consent for the continuation of hot pursuit,¹⁸ and to respond to armed robbery.¹⁹ While the need for collective and cooperative action has thus been recognized through Security Council resolutions and the 2009 Code of Conduct, it is apparent that responses to armed robbery remain a matter of exclusive competence for the relevant coastal states.

One deviation from this position may be seen in relation to the willingness of states to share information about armed robbery and piracy. Recent multilateral agreements directed at addressing the problem of armed robbery and piracy in particular geographic regions have made information sharing a centerpiece of their efforts. ReCAAP,²⁰ with its Information Sharing Centre in Singapore, and the 2009 Code of Conduct, which anticipates the establishment of three information exchange centers,²¹ highlight the need for concerned states to coordinate their responses when news or data concerning planned piracy operations or piratical attacks emerge. It is notable that there has been greater readiness to put information sharing mechanisms in place than to otherwise adjust rules concerning enforcement authority over armed robbery.

Outside the territorial sea and other waters subject to coastal state sovereignty, the situation is different. The right of states to respond to piracy is the most accepted basis of intervention against foreign flagged vessels on the high seas. The right of visit enables warships and other duly authorized vessels or aircraft to board a ship that is reasonably suspected of being engaged in piracy,²² and universal jurisdiction is allocated for the enforcement of prescriptions against piracy.²³

Suppressing piracy is so entrenched in the law of the sea that analogies to piracy have been drawn in an effort to secure greater law enforcement powers in relation to other maritime security threats, most notably in relation to terrorism,²⁴ and, albeit to a lesser extent, in responding to environmental protestors at sea.²⁵ These analogies have largely been resisted because of the preference accorded to upholding exclusive flag state control over vessels on the high seas and minimizing coastal state law enforcement powers in the EEZ. When considering the narrow definition of piracy coupled with the wide powers to respond to piracy, it may be seen that a small door may be opened to a large room for action. The greatest challenge lies in getting through the door in the first instance.

(2) Terrorism

While the definition of terrorism has never been free from controversy, the 1988 SUA Convention took an important step in identifying the following as offences, when an individual unlawfully and intentionally:

(a) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or

(b) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or

(c) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or

(d) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or

(e) destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if any such act is likely to endanger the safe navigation of a ship; or

(f) communicates information which he knows to be false, thereby endangering the safe navigation of a ship; or

(g) injures or kills any person, in connection with the commission or the attempted commission of any of the [above] offences.

In addition, the 2005 SUA Protocol provides that a maritime terrorist offence occurs when a person unlawfully and intentionally commits certain acts and the purpose of the act, by its nature or context, is to intimidate a population or to compel a government or an international organization to do or to abstain from doing any act.²⁶ The identified acts in this context include using against or on a ship or discharging from a ship any explosive, radioactive material, biological, chemical or nuclear weapon, or other hazardous or noxious substances, in a manner that causes or is likely to cause death or serious injury or damage; uses a ship in a manner that causes death or serious injury or damage, or threatens to do one of these acts. Finally, the transport of an offender with the intention to assist that person in evading criminal prosecution for a terrorist act (as defined under other counter-terrorism treaties)²⁷ is also an act of maritime terrorism under the 2005 SUA Protocol.²⁸ Persons also commit maritime terrorism offences when they attempt, participate, organize, or direct others, or contribute to the principal offences set forth in the 1988 SUA Convention or the 2005 SUA Protocol.²⁹

The risk of a terrorist attack against offshore installations has already been demonstrated with the attempting bombing of the Khawr al Amaya oil loading terminal in Iraq in 2004. This possibility had already been foreseen by states and was therefore addressed in a protocol to the 1988 SUA Convention. Under the Protocol to the 1988 SUA Convention, states may exercise jurisdiction over individuals who commit offences against fixed platforms,³⁰ such as seizing or exercising control by force, acts of violence against a person on a fixed platform, destroying or damaging a fixed platform, placing a device or substance on the fixed platform that is likely to endanger its safety, and injuring or killing a person in connection with the commission of any such acts.³¹ The offences against fixed platforms over which states may exercise jurisdiction were also expanded in 2005.³²

There is now an extensive body of law available to respond to terrorist threats involving shipping, offshore installations and other maritime interests. Within ports, the ISPS Code provides a tool for states to assess the risk that a visiting ship may pose to a particular port and provide a means to allow for preventive measures against security threats. The critical gap here is that the ISPS Code applies to passenger and cargo ships of at least 500 gross registered tonnage, and so does not assist in identifying the risks posed by smaller vessels, especially as those craft have been used in terrorist attacks against vessels and ports so far.³³ Moreover, when a state identifies that a particular vessel bound by the ISPS Code does constitute a risk there is no additional authority under that regulation to arrest the vessel. States are not precluded from relying on other applicable sources of law, and national laws relevant to the operation of a port may come into play. Certainly if a ship is engaged in mining or bombing a port then the right of self-defence would likely arise.³⁴ This right does not help when there is a suspicion of a vessel posing such a threat before the actual attack occurs or is imminent.

Further preventive tools available to protect ports from terrorism are available under the WCO Framework of Standards, as well as for states participating in the CSI. These mechanisms allow for greater knowledge about what is being shipped between states, and allows for the inspection of cargo considered to be high risk. The LRIT Regulation may also be used to track a particular vessel, and this information may then supplement other intelligence as to the intent and/or the cargo on board a vessel. Improvements for port security against terrorist attack may also be seen through the Revised Seafarers Identification Convention, which creates uniformity in the information available about persons engaged in international shipping who are entering a state’s territory. All of these threads of information improve the knowledge of a state as to who and what is being shipped where. The ability to gain intelligence about a vessel suspected of being engaged in terrorism is vital for a port or coastal state since inspections of vessels are more practical in port than at sea. While these legal rules have been put in place, there is still work to be done in implementing these new systems fully and globally. The need for cooperation among states remains even with these laws in place.

Even if a vessel does not call at port, a coastal state may have an interest in preventing the passage of a vessel suspected of terrorist activities through its territorial sea. If those activities are in violation of the right of innocent passage, the coastal state may then take the ‘necessary steps’ to ‘prevent’ that passage.³⁵ Those steps are then in addition to the express law enforcement powers set out in Article 27 of UNCLOS. The national laws of coastal states, particularly since the adoption of Security Council Resolution 1373,³⁶ may provide a state with authority to exercise criminal jurisdiction over a vessel if the terrorist act has occurred or is occurring while the vessel is in the territorial sea of the coastal state.³⁷

Two key responses outside the territorial sea of any state to enhance maritime security against the threat of terrorism have been the improved monitoring of vessels and permitting a right of visit against vessels reasonably suspected of having committed a terrorist offence. Consistent with maritime domain awareness policies, the use of AIS on vessels and, more importantly given its greater range, the implementation of the LRIT Regulation will provide states with means to track the voyage of particular vessels. Some states may take the view that intelligence gathering within the EEZ of a particular state may also enhance knowledge as to possible terrorist activity. The latter activity has proven controversial in practice because intelligence gathering in another state’s EEZ most commonly relates to garnering information for national defence purposes. If undertaken to improve law enforcement efforts against terrorists, this monitoring, when coupled with other sources of information, may boost the ability of states to assess when a vessel should be reasonably suspected of involvement in terrorist activity. The accrual of this information then facilitates decisions regarding the boarding and inspection of a vessel.

A more critical source of rights for intervention to respond to international terrorism concerns may come from the UN Security Council, which has set forth prescriptions for all states to prevent their nationals or their territories being used to support terrorist activities.³⁸ The Security Council has expressly authorized maritime interdictions in some Chapter VII resolutions, most commonly in relation to the imposition of embargoes.³⁹ While not explicitly sanctioning maritime interdictions to enforce the terms of its resolutions addressing international terrorism, Security Council Resolutions 1368 and 1373 of 2001 both recognized and reaffirmed the inherent right of self-defence in reference to the September 11 terrorist attacks. Ensuing interdictions of vessels searching for Osama bin Laden and al Qaeda members could then be understood as lawful pursuant to this right of self-defence. Almost 10 years after those events, it is less likely that a state could lawfully interdict a foreign flagged vessel outside the territorial sea on a reasonable suspicion of terrorism acting on the basis of the right of self-defence unless the threatened terrorist attack was imminent.⁴⁰

(3) Trafficking in WMD

The UN Secretary-General identified the illicit trafficking of arms and WMD as a major maritime security threat. This precise activity is complicated by the fact that WMD and its related material extend to ‘dual-use’ items and it may not always be clear to what use certain material will be put. Whether trafficking of arms is lawful or not may also be difficult to discern, as the ultimate recipient of the shipment may be determinative in this regard. For example, the shipment of Scud missiles aboard the M/V So San had to be allowed following its interdiction since there was no prohibition on Yemen taking delivery of such weapons from North Korea.⁴¹ Israel, on the other hand, considered that it acted consistently with the right of self-defence in interdicting the Karin-A, which was alleged to be carrying weapons destined for the Palestinian Authority.⁴² It is the illicit trafficking of WMD and related material, rather than the shipment of conventional arms,⁴³ that has prompted the most legal developments to improve maritime security.

As a general matter, the proliferation of WMD is subject to a complex legal and political regime.⁴⁴ The legal avenues available to respond to illicit trafficking in WMD at sea are similar to those available to respond to maritime terrorism. The linkages reflect the fact that the possible acquisition and use of WMD and related material by terrorists has been a particular cause for concern. Thus, the ISPS Code, the WCO Framework of Standards, the LRIT Regulation, and the Revised Seafarers Identification Convention all support state efforts to assess what is being shipped where and by whom.

Responding to the illicit trafficking in WMD and related materials through the territorial sea of a state raises questions as to the characterization of innocent passage and the law enforcement powers of coastal states. These issues have been assessed by commentators in response to the PSI stipulation that participants will stop and search vessels in their territorial sea.⁴⁵