WAR, TERROR AND THE HIGH SEAS

Authored by Anamika and Avni Sharma

Abstract

Terrorism has had a drastic impact in today’s world, primarily after the 9/11 attacks in New York in 2001. It has taken shape and sizes that one could not fathom and has not left one arena where it does not exist. Maritime Terrorism has been added in the vocabulary of international terrorism and security not so long ago. Countries have since long been overlooking the issue of piracy with the idea of it having been eradicated, but the breach in maritime security has gone to a whole different dimension of terrorism. 

Since the beginning of the millennium, new faces of terrorism are being seen. It is no surprise the same is also now seen as prevalent in the seas. The international waters now seem to have become a war field with terrorism increasing at a massive level. The article aims to study the international laws as well as regulations and steps taken up by other nations to curb maritime terrorism and ensure peace on the high seas.

Introductory Remarks

There is no one unequivocal definition of terrorism existing. However, various countries and law enforcement and counter – terror agencies have made efforts to define terrorism in ways they deem best. Terrorism has been mostly defined as a criminal acting involving usage of “violence or threat of violence” to attain a certain goal. The goal can be political or ideological.[1]When it comes to Maritime Terrorism, The Council for Security Cooperation in the Asia Pacific, a working group has defined it as “The use of violence at sea or to a ship… for political ends, including any use of violence for the purpose of putting… the public in fear.”[2]

Crimes on the seas are no more confined to Pirates. The seas have now become a new arena for terror and contemporary warfare.[3]It has taken an altogether new dimension of breach of security among nation and is considered to have developed into Maritime Terrorism. Terror activities have been taking place at sea or in port, against ships’ crews or passengers. Illegal activities such as smuggling of weapons as well as people via sea has also become a new form of migration flowing from the seas leading to increase in terrorism worldwide with easy security breach.[4]

Many cases of hijacking, and violent acts with aim of achieving a political end are now being taken place on the seas. Such growing rate of cases have led to intelligence organization, law enforcement officials and policymakers to pay attention to the increasing level of maritime terror attacks. With the ability to cause significant harm to the international community in the form of person, property, and commerce, maritime security is now being looked as one of the priority areas to be tackled.[5]

The article focuses on the study of terrorism, its risk and liabilities in maritime industry with focus on various terror attacks and smuggling of weapons in the recent decades. Assessment has been done by analyzing the recent cases of maritime terrorism. It also tries to assess the provisions of the UNCLOS relating to maritime security as well as various steps taken by nations on their own domestic level. 

Terror on The Seas

Since the attacks of 9/11 in New York, new forms of terrorism have seen to have emerged. Piracy has always remained an old problem, but the targeting of vessels on the seas with the aim of attaining a religious or political agenda by the terror organizations is a whole another story.[6]

Maritime Terrorism can be said to be divided into various categories:

  • Seas as a means to conduct land-based terrorism: The Mumbai terror attacks, or the 26/11 attacks in India can be considered as an example. The terrorists were “trained to carry out attacks… through medium of the sea.”[7]
  • Ships supporting capacity building for terrorists: The seizure of Karine A, by the Israeli forces, a vessel bound for Palestine containing weapons said to be meant for the Palestine Liberation Organization (PLO) in 2002 can be an example.[8]
  • Hijacking of vessels and taking in hostages: One of the recent instances can be that of the hijacking of the Indian Vessel, “Al Kaushar” in 2017 by the Somali pirates keeping its 11 crew members as hostages. The ship was hijacked by pirates while it was on its way to Al Mukala port in Yemen from Dubai.[9]
  • Attacks against naval targets of high value: One of such attacks was undertaken in 2002. It saw a French oil tanker, M/V Limburg, attacked off Ash Shahir, resulting in an ecological catastrophe with almost 100,000 tons of crude oil spilling into the Gulf of Aden.[10]

Additionally, there have been many more terror attacks undertaken including the horrifying ones such as, the bombing if the Super Ferry in Philippines, which left 116 people dead.[11]Another recent attack was undertaken by the Al Qaida militants against a Pakistani Naval ship PNS Zulfiqar at Karachi with the aim of attacking certain US Warships.[12]

Terrorism and UNCLOS

With the growing numbers of attacks via seas resulting in harm to the lives of the seafarers as well as the passengers of the ships, maritime safety has become a matter of concern in today’s world.[13]Marine trade and business have remained the main source of trade and generation of wealth and economy for time immemorial. This ignites the need to pay attention towards maritime security even further. Efforts have been made by nations and organizations worldwide to curb maritime terrorism at the earliest.

There is no specific definition of terrorism under international law. The United Nations in 1982 came up with The United Nations Convention on the Laws of the Sea. Articles 101 of the UNCLOS defines piracy as an “illegal act of violence” upon the crew or passengers of a ship, or voluntary operation of a ship knowing it to be a pirate ship.[14]It looks at the all the illegal acts of violence or acts through which try to destruct the property. 

For a long time, nations and experts have believed that maritime piracy has been eradicated. It needs to be recognized that not only was it ever eradicated but its number has been increasing day by day. The number of pirate attacks has been growing manifolds with piracy cases being highest in the modern history in the current decades.[15]

LOSC has tried to create a wholesome definition in order to ascertain a crime regarding maritime piracy. What the UNCLOS has seemed to have failed to do is define “maritime terrorism” as a whole. The Convention has further failed to provide for various other transnational crimes affecting the security and safety of the high seas. The political wars of the nations have now been taken to the seas, terror and bombing of the vessels are more for terrorizing the nations rather than just for personal gains. Security issues are now being raised for both the high seas and internal waters.[16]

Regional Cooperation

Nations have taken efforts in order to protect their territorial waters and ensure peace in the high seas. 

France

France applies the LOSC, through which they interpret EEZ as any place which is outside the jurisdiction of any state as founded on article 58 (2) of the LOSC. It also follows Article 105 of the LOSC, which says, “On the high seas… every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates and arrest the persons and seize the property on board.” The courts of the State which carried out the seizure may decide upon the penalties to be imposed and may also determine the action to be taken with regard to the ships, aircraft or property. The French legislation on maritime piracy and armed robbery against ships integrates the principle included in the LOSC provisions on the issue. France was also able to handle about 15 cases and convicted 5 of the pirates[17].

Mauritius 

The year 2011 brought in the need for new regulations looking at the scourge of maritime piracy cases. The legal system is a combination of civil and common law system, national legislation on maritime piracy and armed robbery at sea is contained in the Piracy and Maritime Violence Act 2011. 

The legislation brought in some new aspect to broader picture so as to create protection for its maritime waters. Additionally, it also introduces the definition of “hijacking and destroying ships” and “endangering safe navigation”. The legislation gives a definition of “ship”. “Warship” as well as “pirate ship/aircraft” is defined with reference to the LOSC. The enforcement has been given utmost importance, which can be made out from the fact that the there is a punishment of up to 60 years of servitude. It also is open for transfer if offenders from a foreign state for which it can make agreements with foreign states. 

United States

Maritime surveillance has continuously been a challenge for the U.S. especially because of the technicalities regarding inspection of incoming Cargo.[18]The US has increased its maritime security regimes after the revelation that the actual import of weapons in the 9/11 Terrorist Attacks was through the Maritime routes. But, still there is a scope for forming strict legislations which can enable security level enhancements.

The country has been at the forefront of recent moves to upgrade global maritime security, including the Container Security Initiative, the International Ship and Port Facility Security (ISPS) Code, the Proliferation Security Initiative, and the Customs-Trade Partnership against Terrorism. 

Madagascar 

Madagascar has a geographical location which can be conveniently be affected by because Gulf of Aden and West Indian Ocean have begun to be considered high risk areas with regard to Maritime Risk in terms of Piracy and robbery against ships. 

The code applied here is the Maritime Code 2000. They consider any ship not having a nationality to be a Pirate Ship. The fact that the ship doesn’t have a nationality does not accuse it straight away, but it certainly adds suspicion in terms of its identity. 

Pursuant to article 1.5.05 which is a replicate of the LOSC, article 105, the jurisdiction of Madagascar over maritime piracy extends to the high seas or in a place outside the jurisdiction of any State. The competent courts are left to decide over cases and necessary penal action can be initiated against them subject to the rights of third parties who were acting in good faith. The act does not specifically define the acts which are Maritime Piracy but in territorial waters. Conclusively, we can say that Madagascar has come up with stringent policies and it has taken care of its maritime security.

These case laws clearly state that there can be stringent policies which can lead to proper risk management in maritime field. 

Conclusion

Maritime Security is complex in nature. It can only be maintained by the collective involvement of the marine states in protecting their ports as well as the seas in entirety. “Modern Interests are shared interests”[19]when it comes to maritime security. The sates need to balance out their independent and common interests in order to fulfill what they desire. It is the common interest and common participation of the maritime nations in securing the international waters that forms a basis of comprehensive protection of the seas. 

The threat of non-state actors seeking to exploit the oceans for their own commercial, religious or political means is challenging the application of international maritime law and is compelling to look at the industry from a whole different perspective. The law of the sea has a vital role to play in the improvement and further development of maritime security.[20]The UNCLOS though being a major law for Maritime Security need to focus on contemporary issues of terrorism and should ensure cooperation of nations on an international level. 

International cooperation and further study of maritime security is necessary to expand the development of the industry in a much healthier manner. Maritime industry since history has played a major role in growth of the international community to what it is today. Similar cooperation and efforts is needed to further the cause of maritime security to ensure benefits for all the stakeholders involved.

About the Authors

Anamika is a 4th-year law student at National Law University Odisha. She has been associated with the Centre for Maritime Law for the past one year. She has a keen interest in Maritime Law and its inter realation with environment and cross border security.

Avni Sharma is a 2nd-year law student at the National Law University Odisha. She is currently associated with the Centre for Maritime Law as a member and has been researching about Piracy and Security of trade in International Waters


[1]U.S. Army Counterterrorism Manual, 2014, pg. 7.

[2]Council for Security Cooperation in the Asia Pacific, Memorandum 5 – Cooperation for Law and Order on Sea.

[3]Valerio de Diviis, Maritime Warfare, 137, http://ebooks.iospress.nl/volumearticle/25888 (last visited Jul 10, 2019).

[4]Ibid.

[5]M.D. Greenberg, P. Chalk, H. H. Willis, Maritime Terrorism: Risk and Liability,

[6]Maritime Terrorism: A Rising Threat from Al-Qaeda and Iranian Proxies, European Eye on Radicalization (2019), https://eeradicalization.com/maritime-terrorism-a-rising-threat-from-al-qaeda-and-iranian-proxies-2/ (last visited Jul 13, 2019).

[7]Terrorists trained to attack via sea: Navy chief Sunil Lanba, India Today (2019), https://www.indiatoday.in/mail-today/story/terrorists-trained-to-attack-via-sea-navy-chief-sunil-lanba-1471140-2019-03-06 (last visited Jul 13, 2019).

[8]Brian Whitaker, the strange affair of Karine A the Guardian (2019), https://www.theguardian.com/world/2002/jan/21/israel1 (last visited Jul 13, 2019).

[9]FE Online, Indian cargo ship with 11 crew members from Mumbai hijacked by Somali pirates The Financial Express (2019), https://www.financialexpress.com/india-news/indian-cargo-ship-with-11-crew-members-from-mumbai-hijacked-by-somali-pirates/612749/ (last visited Jul 13, 2019).

[10]Kleanthis Kyriakidis, Maritime Terrorism History, typology and contemporary threats. Maritime security Aspis-superyachts.com (2019), https://www.aspis-superyachts.com/maritime-security/maritime-terrorism-history-typology-and-contemporary-threats.html (last visited Jul 13, 2019).

[11]Amparo Pamela Fabe, The Cost of Terrorism: Bombings by the Abu Sayyaf Group in the Philippines, 61 Philippine Sociological Review 229-250 (2013).

[12]Fahim Ali, Dockyard attackers planned to hijack Navy frigate DAWN.COM (2019), https://www.dawn.com/news/1131654 (last visited Jul 13, 2019).

[13]Natalya А. Knyazeva & Alexander I. Korobeev, Maritime Terrorism and Piracy: The Threat to Maritime Security, Mediterranean Journal of Social Sciences (2015).

[14]Law of the Sea Convention 1982.

[15]Gal Luft & Anne Korin, Terrorism Goes to Sea, 83 Foreign Affairs 61 (2004).

[16]Chapter 6: Maritime Security, Convention on the Law of the Sea – Law of the Sea, Sites.tufts.edu (2019), https://sites.tufts.edu/lawofthesea/chapter-six/ (last visited Jul 13, 2019).

[17]Gal Luft, Anne Korin “Terrorism goes to sea” Foreign Affairs, Vol. 83, No. 6, Nov.- Dec, 2004.

[18]Peter Chalk “Piracy and Terrorism at Sea, A Rising Challenge for U.S. Security” The Maritime Dimension of National Security: Terrorism, Piracy, and Challenges for the United States, 2008.

[19]Natalie Klein, Maritime Security and the Law of the Sea, 1st pbk. edition, Oxford Monographs in International Law (Oxford: Oxford University Press, 2012), 18.

[20]United Nations Convention on the Law of the Sea, Article 29, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter LOSC]. (available at: http://www.un.org/depts/los/convention_agreements/texts/unclos/part2.htm).

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