From Interstate - Journal of International Affairs VOL. 2013/2014 NO. 1
International Cooperation in Combating Threats to Maritime Security: Global Maritime Security and International Law
2.4 Maritime Terrorism
Before 1988, maritime terrorism was not a crime covered by international law. This was a lacuna that became painfully obvious after the Achille Lauro incident in 1985,48 when the United States49 called the hijacking of the cruise ship an act of piracy. This characterisation was both contested and supported by legal experts50 and called for clarification as of to which regime applies to this kind of attack. In response to the legal confusion and at the initiative of the IM0,51 the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation52 was signed in Rome on the 10th of March 1988.53 Article 3 of this- convention criminalises a series of acts-, which were expanded by the 2005 Protocol, and considered forms of maritime terrorism.54
2.4.1 The SUA Convention
The initial Convention Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) provided for major flaws in a classic transnational crime punishment regime, modeled after earlier UN terrorism treaties.55 These flaws were slow ratification and a lack of preventive measures.56 The SUA regime improved significantly after the September 11th attacks inspired a greater level of cooperation57 in the 2005 protocol,58 which states a commitment to cooperate and how this is to be achieved.
The new article 8bis-,59 of the SUA convention imposes-a general duty to cooperate to the fullest extent , preventing and suppressing transnational crime. This article also gives a duty to answer all requests from other state parties in regard to this article as expeditiously as possible. One such request would be a par ty issuing assistance, if it h as reasonable ground s to suspect an offence under the SUA Convention involves a ship flying its flag. Other par ties are then obliged to assist within their means .
The article also contains ship-boarding provisions similar to the ones found in some drug and migrant smuggling treaties.60 More specifically, it allows a party to board and search a ship flying the flag of another party if it has reasonable grounds to suspect that the ship or a person on board is involved in an offence under the SU A Convention. Authorization by the flag state remains a requirement, but parties can notify the IMO Secretary General that if there is no response from the state regarding the request within four hours, authorization may be assumed. In the same way a party can also notify that it authorises a requesting party to question the persons on board to determine if an offence has been or is about to be committed.
Finally, the article encourages parties to harmonise standard operating procedures for joint operations and to conclude bilateral agreements to improve the effectiveness of their cooperation in regard to their obligations under article Sbis.61 The U.S.-led Proliferation Security Initiative could be seen as this kind of arrangement.62
2.4.2 The Proliferation Security Initiative
The Proliferation Security Initiative is a global effort to increase international cooperation in interdicting shipments of WMD63 related materials. By itself it does not create new international law, but aims to use the already present legal framework64 as effectively as possible through joint training exercises and bilateral boarding agreements.65 The participants to the initiative also commit to a series of interdiction principles , which include adopting streamlined procedures for rapid exchange of relevant information.66
'Maritime piracy consists of:
(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)'.67
Once considered a thing of the past68 piracy today is a rising threat affecting a number of regions and attracting growing international concern.69 Yet, the Law of the Sea Convention of 1982 already prescribed a duty to 'cooperate to the fullest extent in the repression of piracy on the high seas'.70 Problems with the definition of piracy,71 and the fact that the Convention only covers piracy on the high seas,72 caused this provision to be ineffective despite its universal acceptance.73 The 2005 SUA Protocol is faced with the opposite problem; although containing promising solutions, an insufficient number of states have ratified it.74
However, there have been improvements to the situation; as seen in Asia where the number of serious cases of piracy dropped in 2010 due to extensive regional cooperation.75 In the Straits of Malacca there have been joint anti-piracy drills, security pacts, coordinated air and sea patrols, a regional information network and a joint sea surveillance system.76 Indonesia, Singapore and Malaysia have even agreed to give each other permission to pursue pirates into their respective territorial waters, an important development in an area with no other maritime zones-.77 This cooperation culminated in the 2004 Regional Cooperation Agreement on Combating Piracy and Armed Robbery against ships in Asia, RECAAP.78 Among other cooperative measures the agreement creates an Information Sharing Centre79 in Singapore. This proved effective and inspired the IMO to push for more of this kind of cooperation in other troubled areas.80
In January 2009, this effort led to the signing of a regional agreement called the Djibouti Code of Conduct.81 Signatories to the Code agree to cooperate in the investigation , arrest and prose cutio n of piracy suspects, the interdiction of suspect ships, the rescue of victim ships and proper treatment of the persons on board, the conduct of shared operations, and the sharing of information.82
Complementary to the Code, there are several relevant UN Security Council Resolutions aimed at facilitating anti-piracy cooperation in the region. Specifically they call upon nations with military capacity in the area to actively fight piracy on the high seas off the coast of Somalia,83 and allow these nations to operate in Somali territorial waters84 using land-based operations.85 In Resolution 1918, the Security Council calls upon all states to criminalise piracy, to prosecute piracy suspects apprehended off the Somali coast,86 and to fully implement the Djibouti Code of Conduct as soon as possible.87 Although most of the eligible states88 have signed the Djibouti Code, it remains to be seen whether, together with the relevant UN resolutions, it will lead to cooperation effective enough to tackle the piracy problem in the Gulf of Aden.
There has been a development towards international cooperation in the area of transnational crimes against maritime security. Although the focus on state sovereignty has remained, it has been necessary to cooperate in the effort to combat contemporary threats. UNCLOS was created in a different time and had the aspiration to fight maritime crime, but achieved limited success. Due to an increasingly globalised world and with new technology available, organised crime today operates all over the world. The transnational character of these crimes make s it impossible for one state to fight them alone. Economic factors and each state's individual interest, of course, determine how far cooperation will extend.
Furthermore, even if sufficient legal instruments are provided through bilateral or regional agreements, not all states have the resources to act. They might not even have an interest in, for example, preventing the smuggling of migrants or drugs originating from their shores, save for political reasons. The solution seems to be for more developed countries to take more responsibility. Economic interests are deemed to come before taking responsibility for human rights which explains the more advanced cooperation when it comes to threats that have a negative impact on trade such as piracy and terrorism. Since bilateral agreements, which entail mechanisms where authorisation is deemed to be given are expressed in a number of agreements in very similar ways, it could be argued that regional customary law is being developed. Progress has been more successful in some areas of threats to maritime security compared to others. However, it can be observed that we are generally moving towards a more comprehensive international cooperation to combat transnational maritime crime.
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