The concept of maritime terrorism has developed significantly over the years with the expansion of sea trade and the increase in marine terrorist organizations. Traditional acts of piracy are limited to acts directed towards financial gain while maritime terrorism includes a wide range of activities (hijackings, attacks on vessels, smuggling of weapons, drugs, and human trafficking). The law governing maritime terrorism remains inefficient, featuring the same structural deficiencies as the traditional rules on piracy. There are multiple preventive and defensive measures at the states’ disposal, however, these are not sufficient to counter the magnitude of the threat caused by maritime terrorism.
Why is Maritime Security important?
With the advent of globalization, there has been greater interconnectedness between states which has amplified mobility at sea. States are more interdependent on their resources and consequently, there has been an exponential rise in sea trade and demand for sea-based energy resources.1Tahir, M.A. Admiral, CNS Pakistan Navy, “Role of PN in Changing Geo-Strategic Environment” paper presented at the Royal Australian Navy Sea Power Conference, 2008. Southeast Asia and the Indian Ocean are the major global passages for trade containing the most important sea lanes for communication.2ME6 Joses Yau Meng Wee, “Maritime Terrorim Threat in SouthEast Asia And Its Challenges” Pointer, Journal of the Singapore Armed Forces, Vol.43 No.2 Specifically, the oil trade sector primarily benefits from this region (including the North Arabian Sea) as 17 million barrels of crude oil daily pass through the Strait of Hormuz.3Energy Information Administration, Official Energy Statistics from the U.S. Government, January 4 2012 Therefore, the conduct of the states in maritime affairs has a significant bearing on the global stage. This has compounded the significance of maritime security.
Maritime security deals with security at sea and protection against threats arising from inter-state territorial disputes, political instabilities, and transnational terrorism. There has been a global reconfiguration of security perceptions after the events of 9/11 and states have been much more stringent in dealing with external threats. However, unlike military schemes, the maritime environment is much more asymmetrical, owing to its innate flexibility and synergistic nature. Therefore, the current international and regional efforts to counter maritime terrorism are not entirely effective or sufficient in ensuring maritime security.
International Law Governing Maritime Terrorism and its deficiencies
The most significant international legal instruments governing maritime terrorism are the 1958 Convention on the High Seas, UNCLOS, the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, and the International Convention for the Suppression of the Financing of Terrorism (ICSFT). The Geneva Convention on High Seas and UNCLOS entail provisions that create a “right of visit” for foreign warships if there are reasonable grounds to suspect that they may be involved in piracy.4UNCLOS, Art. 110 (1). Art. 101 (1): “(a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109; (d) the ship is without nationality; or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship” Since maritime terrorism falls within the ambit of piracy, this provision would allow states to conduct searches of suspect vessels before they enter their territorial waters. However, the ‘reasonable grounds’ requirement does not allow for random inspections or security screenings. Conversely, Article 110(3)5 197. Id. Art. 110 (3). “[i]f the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.” UNCLOS makes such inspections to be costly procedures, imposing an unfounded burden of compensation. Although the ICSFT does not directly address maritime terrorism, its provisions regarding financing terrorism can apply to maritime terrorism as well. Specifically, Article 2(1)6Article 2(1), International Convention for the Suppression of the Financing of Terrorism, UN 1999 criminalizes funding, which includes providing funds, resources, or financial support for terrorist acts. This, in conjunction with Article 8, emphasizes states to adopt measures necessary to combat the financing of terrorism in the maritime domain.
As previously discussed in this article, the effects of the 9/11 attacks required significant structural changes to control terrorism and by extension, marine terrorism. However, the only indication of such efforts is witnessed in Article 14 of the Geneva Convention71958 Geneva Convention, supra note 178, Art. 14. which places an obligation on the states to “cooperate to the fullest possible extent in the repression of piracy on the high seas or any other place outside the jurisdiction of any State.” This provision is not adequate as it does not consider the fact that there may be multiple perpetrators involved in a terrorist act, both on the high seas and within several national jurisdictions. This notion of state liability/responsibility to take countermeasures against terrorism is reflected in the UN Security Council Resolution 13738UNSCR, 1373 of September 28, 2001 at 1(d), 2(a) and (e) which places a legally binding prosecutorial obligation on States against terrorism. Therefore, if a state assists in transnational terrorism or remains inactive despite having knowledge of the terrorist activity, they stand in clear violation of the UNSCR 1373. It could be argued that the UN Resolutions of the Nations General Assembly exist as ‘soft laws’, without any binding effect or legal force against sovereign states, rendering them ineffective against counter-terrorism efforts.
Finally, the Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation (CSUA) 1988 brought substantial improvements to the innate defects in the preexisting International Law. The Convention gave clarity to a multiplicity of issues such as the ‘private ends’ and the ‘one ship-two ship’ debates. Particularly, Article 3(1) of the Convention clearly defines six different types of offenses9SUA, Art. 1(d): “or causing 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 the ship.” and further articulates three grounds for mandatory jurisdiction and three for permissive jurisdiction.10Id. Art. 6(1)-(2). Art. 6: Each State Party shall take measures as may be necessary to establish its jurisdiction over the offenses set forth in article 3 when the offense is committed: (a) against or on board a ship flying the flag of the State at the time the offense is committed; or (b) in the territory of that State, including its territorial sea; or (c) by a national of that State. A State Party may also establish its jurisdiction over any such offense when: (a) it is committed by a stateless person whose habitual residence is in that State; or (b) during its commission a national of that State is seized, threatened, injured or killed; or (c) it is committed in an attempt to compel that State to do or abstain from doing any act” Therefore, it places a positive obligation on states to extradite the alleged offenders for violation of the Convention. An evident flaw of this convention is that it is merely reactive; in other words, it primarily focuses on responding to incidents rather than proactively preventing them.
Additionally, the CSUA Convention suffers from the same spatial limitations as UNCLOS as it does not apply to territorial waters. In effect, each international convention adjudicating maritime terrorism is riddled with defects and incomplete legal authority.
Distinguishing Maritime Terrorism and Piracy
It is essential to assess what constitutes ‘maritime terrorism’ under international law. A clear definition of maritime terrorism has not been established in the United Nations Convention on the Law of the Sea Treaty (UNCLOS), but Article 10111United Nations Convention on the Law of the Sea, Article 101, “Definition of piracy” (1982) – defining piracy – is closely analogous to maritime terrorism. The key distinction between the two paradigms is that piracy is rooted in animus furandi, which is a mere intention to steal for selfish purposes (‘private ends’’). In contrast, terrorism is any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict.12Article 2.1.b, the International Convention for the Suppression of the Financing of Terrorism, 9 December 1999. There is no all-encompassing legal definition of maritime terrorism as it is much more nuanced in its practicality. These are tactics or strategies an actor may use, either fully and permanently or in combination with alternative non-violent political struggles with guerrilla warfare, to cause death or serious bodily injury to non-combatants.
Piracy exists as one of the chief threats to maritime security. The international convention governing piracy laws are UNCLOS (which superseded the 1958 Convention on the High Seas) and the 1998 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (CSUA). The aforementioned literature suffers from certain limitations. The anti-piracy rules only apply to attacks on high sea waters, despite most pirate attacks occurring in territorial waters.13Marios Tsioufis, Antonios Fytopoulos, Dimitra Kalaitzi & Thomas A. Alexopoulos, Annals of Operations Research, Discovering maritime-piracy hotspots: a study based on AHP and spatio-temporal analysis 2023 The remedies to this are partly covered in the CSUA, which covers the same acts, regardless of the motivation and without the ‘two-ship criterion’ (i.e., that the crime must be from a private ship or a private aircraft, and directed against a ship, aircraft, persons or property, therefore requiring the presence of two vessels).
One of the structural deficiencies in International Law regarding piracy exists in the narrow definition of the term under UNCLOS, as the notion of ‘private ends’ would effectively exclude efforts to destabilize a government or terrorize/blackmail a State, which are characteristic components of modern-day terrorism. The word ‘illegal’ within Article 10114The United Nations Convention on the Law of the Sea (UNCLOS) , Part VII, Article 101: Piracy consists of any of the following acts:(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). of the UNCLOS remains ambiguous, as it is the Court’s discretion of the prosecuting States to adjudicate whether the particular act was illegal under International Law.15Rüdiger Wolfrum, “Fighting Terrorism at Sea: Options and Limitations under International Law” (14.04.06)
While there is a significant nexus between piracy and maritime terrorism, the two phenomena can be distinguished considering the varying interests and objectives rooted in piracy and terrorism. One of the major differences is the personal greed versus political motivation argument. As pointed out by Carolin Liss,16Carolin Liss, Southeast Asian Affairs, Issue I, ISEAS–Yusof Ishak Institute 2003 (pg. 52-68) “While the pirate is acting primarily for selfish, personal reasons, the terrorist believes that he is serving a good cause designed to achieve a higher good for a wider constituency.”17Ibid, (pg. 52-68) This distinction is enshrined in UNCLOS Article 101 which introduced the ‘private ends’ characteristic. However, some commentators argue that there are already political underpinnings to piracy agendas. This view is upheld by Luft and Korin:18Gal Luft and Anne Korin, “Energy Security Challenges for the 21st Century”, 2009 (pg.38) “Unlike the pirates of old, whose sole objective was quick commercial gain, many of today’s pirates are maritime terrorists with an ideological bent and a broad political agenda”.
Additionally, the methods and tactics employed by pirates such as intimidation, violence, and hostage-taking are also similar to those in terrorism, although maritime terrorism has a wider scope of application and deals with a greater degree of threat. The elemental nature of maritime terrorism is a mirror image of piracy and so the laws governing piracy may apply to maritime terrorism as well.
Threat of Maritime Terrorism (Insurgent/Terrorist Groups)
Terrorist groups also have a significant bearing on the threat to maritime security and international peace. The contours of maritime terrorism have assumed a greater dimension in recent decades, specifically since the two attacks by Al-Qaeda on warships. The first was a failed attack one on the USS Sullivan in January 1999, followed by a successful on the USS Cole19The USS Cole was attacked on October 12, 2000, by a small boat laden with explosives during a brief refueling stop in the harbor of Aden, Yemen. The suicide terrorist attack killed 17 members of the ship’s crew, wounded 39 others and seriously damaged the ship. on 12 October 2000 in the port of Aden, Yemen. The second incident attributed to Al Qaeda was the attack on the French tanker LIMBURG20The French double-hulled oil tanker MT Limbur was attacked by terrorists on October 8, 2002, in the port of Ash Shihr Terminal, Yemen. The blast was detonated from a small boat packed with explosives that ran into the tanker deliberately and caused the explosion. As a result, around 90,000 barrels of crude oil leaked into the ocean and caused serious marine contamination in the area. in 2002.21Tahir, M.A. Admiral, op. cit. Additionally, the attack on Superferry 14 on the 27 of February 2004 significantly increased the threat to maritime security since it accounted for 135 out of a total worldwide death toll of 194 from 2004 to 2007.22Bjørn Møller, DIIS Report, “Piracy, Maritime Terrorism and Naval Strategy” 2009 (pg. 25) The attack may arguably fall outside the scope of a terrorist incident since it included a selfish motive (vide infra). The perpetrators of this attack were an ostensibly Islamist group, the Abu Sayyaf Group (ASG), who sent an extortion letter to the ferry company demanding a million dollars in exchange for a safe navigation route.23Ibid, (pg. 25)
Rebel groups such as the Sri Lankan Liberation Tigers of Tamil Eelan (LTTE) and the Palestine Liberation Organisation (PLO) operate extensively through the use of the sea to execute their agendas. The LTTE gained notoriety in 1984 as it established its naval wing, the Sea Tigers, which included phantom/ghost ships and attacked several Sri Lankan vessels. An attack on the Mannar District became the precursor of a battle between the Sea Tigers and the Sri Lankan Navy, killing 11 sailors and 25-30 guerrilla fighters.24Sunday Times, Sri Lanka, “Deadly Plan to Blast Colombo Port”, 18th June 2006
The PLO initially existed as a logistical chain for its land-based forces, with the focus gradually shifting to infiltration from the sea and other coastal raids against Israel (after the Achille Lauro attack in 1985).25J J Paust, Extradition and United States Prosecution of the Achille Lauro Hostage-Takers: Navigating the Hazards, 1987 In multiple attacks, Palestinians employed a ‘mother ship’ servicing small dinghies to launch an attack on the Israeli harbors. Similarly, the Lebanese Movement, Hezbollah, has been garnering maritime capabilities by generating funds via illicit diamond market trade.26Bjørn Møller, DIIS Report, “Piracy, Maritime Terrorism and Naval Strategy” 2009
Lastly, in the Philippines, Islamist Groups (such as the ASG) push forward their religiopolitical narratives through their ‘signature mission’, i.e. coastal raids.27Ibid, (pg. 28) The significant ones are the Moro National Liberation Front (MLF) and a splinter group, the Moro Islamic Liberation Front (MILF), fighting against the Philippine Government for independence.
These terrorist groups are part of the webbed expansion of marine terrorist organizations and their encompassing impact on international peace and security. Considering the rapid expansion of marine attacks, maritime terrorism can be considered to be an emerging form of organized crime.
Counter-Terrorism Efforts (State Practice)
The discussion on counter-terrorism efforts is two-pronged as it deals with preventive measures, intending to discourage prospective terrorist attacks, and defensive measures, intending to protect/guard against terrorist attacks. The primary defensive mechanism exists in the form of self-defense, enshrined in Article 51 of the UN Charter as well as in customary international law.28United Nations, Charter of the United Nations, 24 October 1945, Article 51, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
Actions of self-defense may be triggered if an armed attack is launched on a member of the United Nations.29Ibid. In lieu of freedom of navigation, self-defense must be necessary and strictly proportionate. In an attempt to protect naval vessels from attacks or other terrorist activities, certain ‘Defense Bubbles’30Commander’s Handbook of the German Navy, no. 115 (2002) or exclusion zones may be established, where mariners are required to identify themselves before entering the warning zone. As illustrated in the attack on USS Cole, the extent of the preventive/defensive measures are reliant on the magnitude of the threat posed by the terrorist activity. Since the rationale behind ‘exclusion zones’ can be rooted in self-defense, it is important to recognize that the relevant measure should satisfy the test of immediacy, necessity, and proportionality, as per the judgment of the ICJ in Nicaragua vs US.31Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, p. 14. The first occurrence of the use of ‘exclusion zones’ was witnessed in 1982 during the Falklands/Malvinas conflict. The United Kingdom and Argentina declared certain areas to be ‘maritime exclusion zones’. However, the British Government went one step ahead and declared a ‘total exclusion zone’ (TEZ) restricting every aircraft, military or civil from entering the area without the authority of the Ministry of Defence in London. This restriction could be prima facie legal and valid since there is sufficient notice and is located in a remote sea area which would not impact sea traffic. According to Finnick32The Rome Statute of the International Criminal Court, A Commentary, Volume I at 92., this restriction could be considered to be a “reasonable temporary appropriation of a limited area of the high seas”, despite its erroneous nature.
Port authorities may take precautionary measures through close monitoring and control of the incoming cargo. Policies may be derived to investigate and inspect cargo shipping containers. Such an initiative was taken by Singapore on 19 September 2002 after signing an agreement with the US allowing them to inspect cargo ships. This has been a prevalent practice between several states such as US and Canada or ports Halifax, Montreal, and Vancouver. Similarly, the US ‘Container Security Initiative’ was introduced to address the threat to border security by identifying potential explosive/weaponry devices such as radiological ‘dirty bombs’ to be detonated in various targeted areas in the US. The CSI33US Customs and Border Protection, U.S. Department of Homeland Security Website would prescreen and evaluate high-risk containers to ensure that no weapons are traded within the territorial boundaries of the US. However, this could be a laborious process given the sheer amount of global container shipping rendering the random checks to be insignificant in comparison to the load of other containers.
Another US-led initiative to control the proliferation of weapons of mass destruction and to control maritime terrorism was the ‘Proliferation Security Initiative’ (PSI) launched in May 2003. It is a global effort against the state delivery of weapons from states to non-state actors. The countries endorse PSI assent to interdicting transfers that pose security concerns and partake in counterproliferation efforts through diplomatic, military, and financial contributions to the initiative. Lastly, there are multiple task forces set up to counter threats to maritime security. The most successful one has been the Combined Task Force 150 (CTF 150) which is a multinational task force with various nations participating. CTF 150’S main Area of Responsibility (AOR) is centered around the busiest nautical choke points(Strait of Hormuz, Bab El Mandeb, and the Suez Canal.) such as covering the Red Sea, Gulf of Aden, Indian Ocean, and Gulf of Oman. CTF 150 conducts Maritime Security Operations (MSO) to deter terrorist activity outside the Arabian Gulf, controlling criminal organizations from conducting maritime attacks.
There is a pressing need for a global reconfiguration of the international and regional arrangements to counter maritime terrorism. The current security model is merely reactive and stunted in its application. There has been a significant paradigm shift as maritime terrorism is emerging as a new type of organized crime, working in congruity with renowned terrorist entities. The nature and gravity of the threat posed by naval attacks have significantly increased since the shift to containerization and the expansion of sea trade. This places the global economy in a sensitive place as maritime attacks may tip the scale of balance in international trade and cause a global economic crisis. Hence, the historical conceptions of piracy and terrorism must be disregarded and a new security regime should be initiated.
Momina Saleem is a final-year LLB student at University College Lahore. She has interned at the Centre for Human Rights (CFHR), where she was actively involved in their Marriage Rights Programme and the #HeForShe campaign. She was a Quarter-Finalist in the International Philip C. Jessup National Rounds, having received an honourable mention for the 'Best Memorial' award, and was part of one of the three chosen teams to represent Lahore in the Henry Dunard International Moot Court Competition. Her research interests are International Humanitarian Law (IHL) and Human Rights.