Law of the Sea

A Policy Primer

Chapter 6: Maritime Security, Convention on the Law of the Sea

Maritime Security and the Convention on the Law of the Sea1

Background

The LOSC is the foremost international legal instrument for realizing collaborative approaches to maritime security.2 Maritime security supports an international  order that is maintained through rule of law, and relies upon clear regulation of, and adherence to, the principles of both customary and formal international law, judicial decisions, other protocols, customs, and legal scholarship. Balancing issues of state sovereignty and collective interest, the Convention supports broad issues of security explicitly and implicitly, prescribing specific enforcement and jurisdiction requirements for states. The Convention provides a legal framework through which states organize their military and law enforcement assets to spread safety and security through international networks and coalitions.3

This chapter addresses those portions of the LOSC related to the treatment of illicit activity in the maritime domain, primarily in international waters. Maritime security law involves both the multilateral and bilateral legal regimes directed at eliminating crime in the global commons. Coupled with the Convention, other legal instruments, such as the Suppression of Unlawful Acts at Sea (SUA Convention) and the Proliferation Security Initiative (PSI), and organizations like the International Maritime Organization (IMO), govern activity from the high seas to coastal ports. It is difficult to address the full scope of illicit activity as it often follows legal trade and co-opts technology, modalities, and methods employed by the maritime industry to achieve efficiency and reduce risk; hence the range of legal regimes and institutions required to disrupt and degrade the capacity of criminal organizations to operate with impunity.

Maritime Security and the Convention

At the confluence of maritime security and international law, the law of the sea is a complex architecture of interactive rules and processes that regulate the use of the world’s seas and oceans, and international cooperation and collaboration are necessary to its success. In form, maritime security is crucial to national and international security. In function, maritime security is jurisdictionally complicated, but generally well observed by maritime states and those with a vested interest in maintaining access to the high seas and protection of their coastal waters, including the U.S. As Natalie Klein has noted, “Modern interests are shared interests in terms of maritime security, even if a state has specific needs or interests that coexist with the interests of other states.”4 A common interest in maritime security forms the basis of comprehensive approaches to international security with regard to the seas. This may require rethinking of the shared and exclusive interests because “no single nation has the sovereignty, capacity, or control over the assets, resources, or venues from which transnational threats endanger global security.”5 Operationally, States striving to enforce their national laws and the Convention are challenged not by large navies, but by the threat of non-state actors seeking to exploit the oceans- either for financial gain, under illegal pretext, induction of fear for political gain, or to support criminal enterprises. These threats challenge existing interpretation and application of international law, but also present an opportunity for an improved understanding of maritime security.

The U.S. Navy defines maritime security as “tasks and operations conducted to protect U.S. sovereignty and maritime resources, support free and open seaborne commerce, and to counter maritime- related terrorism, weapons proliferation, transnational crime, piracy, environmental destruction, and illegal seaborne immigration.”6 The United Nations acknowledges no settled definition of maritime security, but instead defines the concept in terms of threats and illicit activities that pose a risk to peace and order.7 The Oceans and the Law of the Sea report, distributed annually by the UN Secretary-General, identifies, inter alia, illicit trafficking of arms and weapons of mass destruction, illicit traffic of narcotics and psychotropic substances, and smuggling and trafficking of persons by sea as threats to shipping companies, militaries, and law enforcement.8

These threats to maritime security are catalysts for action and change, informing the development of the Convention with regard to jurisdiction and operations. “The law of the sea,” states Klein, “has a vital role to play in improving maritime security…the law is one of many factors taken into account in devising new policies.”9 Provisions in the LOSC, enumerated in the following paragraphs, address issues of maritime security.10 These provisions are not exclusive in nature, and are intended not just to frame the rules of interdiction in the various maritime zones, but also to add descriptive and normative elements to the law.

Maritime Security Roles of the Navy and Coast Guard Under the Convention

Military forces operating in international waters fall under multiple legal regimes. Because there is no single unit responsible for guaranteeing maritime security, the Navy, operating in conjunction with the U.S. Coast Guard, enforces both international and U.S. law. U.S. Navy Regulations state, “At all times, commanders shall observe, and require their commands to observe, the principles of international law. Where necessary to fulfill this responsibility, a departure from other provisions of Navy Regulations is authorized.”11 Despite this hierarchy, domestic and international law commonly complement each other. For example, Article 98 of the Convention and U.S. Navy Regulation 0925 emphasize safety of life at sea, and direct the commander of a naval vessel to render assistance and give the commander the right of assistance. These provisions are an important aspect of maritime security, if for no other reason than to afford naval ships the right of approach.

The laws regarding maritime security operations are premised on the notion of universality of crime, that illicit activity conducted on the high seas is contrary to good order and the innate freedom of the seas under international law. Notably, if reasonable suspicion of specific illicit activity, as enumerated in Article 110 of the Convention, is acted upon through a boarding, but the suspicions are unfounded and no illegal activity is discovered, the ship visited is entitled to compensation for any loss or damage.12 Therefore, decisions made by the commander may result in substantial repercussions if proper judgment is not exercised in boarding operations. The criteria articulated in the LOSC are relatively broad in scope; therefore, the particular rights of any vessel depend on the specific circumstances and activity at issue. Articles 95 and 96 provide immunity to warships from jurisdiction of any State other than the flagged State, and to civilian ships used in government non-commercial service; therefore, adjudications of claims are held by international courts or tribunals.

Related to the right of visit are the rules for the use of force. Naval commanders always retain the inherent right and obligation of self-defense. Hostile acts against U.S. ships, U.S. forces, or in certain circumstances, U.S. citizens and property, can be responded to in a manner that removes or eliminates the threat. Article 25 of the Convention is the primary reference to the degree of force that can be used in enforcement measures, but its language refers only to the coastal state’s rights, not rights on the high seas. For further reference on military functions in maritime security, reference Chapter Four: Military Activities in the EEZ.

Varieties of Transnational Crime in the Maritime Domain

Maritime trafficking routes closely follow commercial shipping lanes, and the modalities and technologies employed by criminals are often more advanced than those used in legal trade. The vast expanses of ocean, the complexity of the maritime transportation system, the immense volume of cargo transferred at each port, and the limited capacity for inspections of cargo creates opportunity for criminals. Commercial trade in the maritime domain follows a reasonably defined set of “oceanic roads” based on currents and weather. Because of the reliability of shipping and mass amounts of cargo moved, traffickers utilize the commercial shipping industry with great effect. Shipping and sea lanes offer anonymity for criminals; criminal activity can be hidden behind legitimate industry, appearing to be licit. Criminal activity, especially illicit trade in narcotics, humans, and weapons, has become so extensive that States and corporations may be implicated in the criminal enterprise. Individuals involved may be of different nationalities, vessels may be flagged to different States, multiple vessels may be used in the network, the vessels may transit the waters of various States and call at different ports before reaching a final destination.13 Despite the abundance of laws designed to combat illicit trafficking and an apparent impetus to stop specific types of crime, governments remain only marginally successful in preventing the global flow of illegal goods due to the overwhelming volume and complexity of the markets for illicit trade. Working in tandem, the Navy and Coast Guard disrupt the illicit supply chain and criminal enterprises when engaged in maritime security operations; cooperation and collaboration between military forces and law enforcement organizations that possess the capacity and power to support the rule of law are the best solution to countering transnational crime at sea.

Furthermore, as the high seas fall outside the jurisdiction of a single State, and are collectively policed by all States through international law, a collaborative approach must be taken to address crime occurring at sea or crime carried out through use of the maritime domain.14 Piracy and the illicit trafficking of narcotics, humans, and weapons comprise the main varieties of transnational crime addressed in the Convention. Article 110 discusses the customary rule that warships may exercise “approach and visit” on the high seas of any ship that is suspected of piracy, human trafficking, unauthorized broadcasting; is without nationality; or, “though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.” Article 111 addresses the right of hot pursuit, allowing warships of one State to follow a ship through the different maritime zones if that ship is suspected of illegal activity. Articles related to specific types of crime are included in the following paragraphs.

Narcotics Trafficking

Article 108 requires member States to cooperate and empowers them to offer assistance in the suppression of drug trafficking, specifically addressing other-state flagged vessels. Traditionally, drug traffickers used overland routes, but in the last twenty years, they have shifted transportation west into the Pacific Ocean and east into the Atlantic Ocean. The majority of this trafficking has traditionally been in the littoral regions, and often within territorial waters, but advanced technologies, complex methodologies, and larger ships have allowed traffickers to move further to sea into “blue water” areas, outside the 12-nautical mile mark and often further than the 200-mile EEZ of any country. This shifting between domains and geographic areas has been described colloquially as “squeezing a balloon,” reflecting shifts in supply and demand for different illicit goods.

Reflecting the fact that the U.S. is the world’s largest consumer of illegal drugs, the source and transit zones between Latin America and the U.S. border are highly patrolled. Navy ships, operating with a Coast Guard law enforcement detachment (LEDET) on board, operate under a strict regimen of control that corresponds with domestic law, complies with the Convention, and reflects bilateral agreements the U.S. has with most Latin American states.

Piracy and Armed Robbery at Sea

One of the most ancient and persistent forms of maritime crime, piracy is subject to rigorous treatment under maritime security law, and the provisions in the LOSC derive directly from customary international law. Article 101 defines piracy as “any illegal  acts of violence or detention, or any act of depredation, committed for private ends by the crew or passengers of a private ship or private aircraft…on the high seas against another ship or aircraft…outside the jurisdiction of any State.” The latter portion of the definition is important: piracy is a variety of transnational crime conducted by non-state actors in international waters. Article 105 of the LOSC grants every State the authority to seize any vessel or aircraft and associated property and arrest any persons engaged in piracy. Domestic courts of the State conducting the seizure may prosecute the pirates under domestic law and determine what to do with the vessels; however, to date the courts remain inadequate or unsupported in many places.

Piracy became a security issue of international concern in the last fifteen years, primarily in the Horn of Africa, Gulf of Aden, and the Red Sea; however, since the establishment of Combined Task Force-151(CTF-151), focused on counter-piracy, and Combined Task Force-150 (CTF-150), focused on maritime security, piracy in that region has waned. Supported by several U.N. Security Council Resolutions, these task forces “engage with regional and other partners to build capacity and improve relevant capabilities to protect global maritime commerce and secure freedom of navigation.”16 Recently, attacks emanating from Yemen on commercial and government vessels may evidence a new paradigm in piracy, one that draws on sophisticated tactics and new technology. The attacks on commercial and military vessels employed underwater autonomous vehicles, advanced surface-to-surface missiles, and small boat swarming tactics. Refined methods by pirates may present a greater challenge to maritime security that will require changes to current anti-piracy measures in the region.

Views on piracy are shaded by incomplete data. First, in the Pacific-Asia region, actual acts of piracy are most likely underreported and, of those that are reported, many are of such small scale that they cloud the true volume of major piracy events. Second, like the analogy of the “squeezed balloon” in narcotics trafficking, as piracy has been relatively contained in eastern Africa, it has increased in western Africa, specifically in the Gulf of Guinea. This may be linked to increased trafficking in narcotics from Latin America, illegal fishing, or human trafficking, but is in any event a reminder that piracy remains a persistent and widespread challenge to maritime security. However, recent activity in Somalia and Yemen may foreshadow a resurgence of piracy in the region, bolstered by advanced small arms and light weapons, access to ship monitoring and tracking devices, and use of unmanned systems and long range communications.

The LOSC alone cannot sufficiently address the prosecution of pirates once captured. The IMO has urged all coastal states to take all necessary and appropriate measures to prevent and combat piracy…through regional co-operation, and to investigate incidents of piracy in order to prosecute perpetrators in accordance with international law.17 A 2010 report by the UN Secretary General outlines two significant actions to bring pirates to justice under international law. First, domestic or state courts should be empowered to prosecute pirates. Second, international or regional courts should supplement domestic courts with investigation and prosecution through specialized piracy courts.18 However, so long as many coastal states in Africa and elsewhere lack the resources, experience, and political will to sustain effective prosecution and punishment of captured pirates, these goals will not be met and the best efforts of increased maritime security measures will be undermined.

Slavery, Human Trafficking, and Illegal Migration

Slavery and human trafficking are two other long-standing challenges to maritime security. Under the law, people being trafficked at sea fall into one of two types of human cargo depending on the intent and type of activity they are engaged in: migrants (asylum seekers or those attempting to bypass immigration laws) and victims of trafficking (kidnapped individuals or those coerced or exploited). The U.N. Office on Drugs and Crime (UNODC) provides the following clarifications19:

  • Consent: Migrant smuggling, while often undertaken in dangerous or degrading conditions, involves consent. Trafficking victims, on the other hand, have either never consented or if they initially consented, that consent has been rendered meaningless by the coercive, deceptive or abusive action of the traffickers.
  • Exploitation: Migrant smuggling ends with the migrants’ arrival at their destination, whereas trafficking involves the ongoing exploitation of the victim.
  • Transnationality: Smuggling is always transnational, whereas trafficking may not be. Trafficking can occur regardless of whether victims are taken to another state or moved within a state’s borders.
  • Source of profits: In smuggling cases profits are derived from the transportation of facilitation of the illegal entry or stay of a person into another county, while in trafficking cases profits are derived from exploitation.

Article 99 of the Convention addresses the slave trade and grants freedom to all slaves on the high seas, but makes no distinction between those being trafficked and those being smuggled; therefore, in the maritime domain a legal reference to slavery connotes both trafficking and smuggling. Furthermore, the language makes it clear that a visiting vessel on the high seas only has the responsibility to report slavery to authorities of the trafficking vessel’s flag state. While these distinctions are important, the issues of territoriality and jurisdiction that they present hamper response and risk human life.

Human trafficking is widespread, and “interlinked transnational gangs traffic by land and by sea an estimated four million people every year as ‘human cargo.’ It has been estimated that the annual earnings from this trafficking have reached between $5 billion and $7 billion.”20 This multi-billion-dollar industry has a collective effect on almost every state. The Syrian civil war has resulted in the movement of four million externally displaced people, with approximately one million of those seeking asylum in Europe.21 Due to strict border controls in surrounding states, many of the refugees have fled by boat, using trafficking routes to Greece, Italy, and North Africa. The U.N. High Commissioner for Refugees (UNHCR) found that a total of 65.3 million people were forcibly displaced from their homes by the end of 2015, compared to 59.5 million just a year earlier, many of these traveling by sea.22 Realistic extrapolations may assume that these numbers will increase with conflicts involving coastal or maritime states, such as those in Syria and parts of Africa.

The Institute for Foreign Policy Analysis notes that the challenge of human trafficking lies both in the volume of displaced people and the incapacity of authorities to deal with the problem. This issue is particularly challenging for “law enforcement authorities to manage as it requires an additional set of capabilities and initiatives that go beyond those found in the standard toolkits of local police and border guards.”23 The UNHCR has established offices worldwide, and serves as a bridge between local and regional law enforcement and the international organizations that provide guidance on handling human trafficking at sea.

Small Arms and Weapons of Mass Destruction (WMD)

The 2015 Small Arms Survey estimates that the global trade in illicit small weapons is close to $2 billion per year, adding to the global market upwards of eight million small arms designed for use by individuals or small groups.24 Like the illicit drug trade, the market for illegal small arms and light weapons manipulates security weaknesses within the commercial shipping industry, especially container ships. Unlike the drug trade, weapons trafficking is more consolidated and varied. It also brings in significantly less revenue for traffickers than a shipment of cocaine.

Following 9/11, the proliferation of WMD became a major concern for governments around the world. The abundance of high-capacity freighters, containerization, and a black market for fissile material gave rise to a new regime of international law that addressed gaps in maritime security. The Proliferation Security Initiative (and attendant Container Security Initiative) parallels the Convention with the main purpose of interdicting precursor materials, weapons, and delivery systems at any given point in the transportation system. The PSI has been adopted by most signatories of the Convention and has been successful in preventing the proliferation of WMD.25

The maritime industry has invested heavily in maritime security measures. The international community has focused heavily on combatting trafficking in drugs, weapons, and humans, but the simple calculus of cost/benefit ratios spurs private sector innovation. The U.S. led the world in post-9/11 maritime security measures that became the worldwide standard. Most of this technology focused on detecting WMD and precursor materials. The advent of new technologies employable in the maritime domain, including those focused on detecting WMD and precursor materials, has already created capacity for persistent, reliable intelligence and information. Coupled with existing information sharing systems, like the Automatic Identification System (AIS), the Maritime Safety and Security Information System, and Shipboard AIS and Radar Contact Reporting (SARC-R), use of underwater autonomous vehicles, seabed sensors, and swarming micro-drones may give maritime law enforcement more capacity to gather, interpret, and share information relating to illicit activity in the maritime domain.

Conclusion

The Convention specifically identifies only certain types of transnational crime that affect maritime security, but there are many varieties and combinations of criminal activity that affect security and safety from the high seas to internal waters. Domestic laws must be symbiotic with international law, and cooperative partnerships between States, law enforcement, and militaries to combat illicit activity must transcend the morass of politics that often plague more restrictive legal regimes. Information and intelligence sharing, novel TTPs (tactics, techniques, and procedures), and unconventional employment of existing technologies may assist navies and coast guards in ensuring freedom of the seas. In closing, the Convention provides a strong framework and multilateral efforts to deter and defeat criminal activity in all maritime zones will result in a more secure, safer operating environment for all. However, the recurrent difficulty in successfully prosecuting and punishing wrongdoers, whether engaged in piracy or human trafficking, is a reminder that much remains to be done.

 

 

  1. Portions of this chapter were adapted in part from Timothy Urban, “Blue Water Asymmetry: Transnational Crime, Networks, and the International Rule +of Law in the Maritime Domain,” 2017.
  2. James Kraska, “Grasping ‘The Influence of Law on Sea Power,’” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, June 20, 2009), https://papers.ssrn.com/abstract=1423107.
  3. James Kraska, “Grasping ‘The Influence of Law on Sea Power,’” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, June 20, 2009), https://papers.ssrn.com/abstract=1423107.
  4. Natalie Klein, Maritime Security and the Law of the Sea, 1st pbk. edition, Oxford Monographs in International Law (Oxford: Oxford University Press, 2012), 18.
  5. John G. Morgan VADM and Martoglio, Charles W., RADM, “The 1,000 Ship Navy: Global Maritime Network,” USNI Proceedings, November 2005, 18, http://www.usni.org/magazines/proceedings/2005-11/1000-ship-navy-global-maritime-network., cited in Klein, Maritime Security and the Law of the Sea.
  6. James T Conway GEN, Gary Roughead ADM, and Thad W Allen ADM, “Naval Operations Concept 2010” (U.S. Government, 2010), https://www.uscg.mil/history/docs/2010NOC.pdf.
  7. Klein, Maritime Security and the Law of the Sea, 10.
  8. Secretary-General of the United Nations, “Oceans and the Law of the Sea,” Report of the Secretary-General (New York, N.Y: United Nations General Assembly, September 1, 2015), https://documents-dds-ny.un.org/doc/UNDOC/GEN/N15/269/73/PDF/N1526973.pdf?OpenElement.
  9. Klein, Maritime Security and the Law of the Sea, 326.
  10. 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).
  11. “U.S. Navy Regulations 1990” (U.S. Government, 1990), https://doni.documentservices.dla.mil/navyregs.aspx.
  12. LOSC, Article 110; Klein, Maritime Security and the Law of the Sea, 116.
  13. Klein, Maritime Security and the Law of the Sea, 17.
  14. UNODC, “UNODC Global Maritime Crime Programme,” United National Office on Drugs and Crime, 2016, https://www.unodc.org/unodc/en/piracy/index.html?ref=menuside.
  15. U.S. Customs and Border Protection, “CBP OAM, Interagency Partners Interdict Semi-Submersible Vessel with 8 Tons of Cocaine,” U.S. Customs and Border Protection, July 22, 2015, https://www.cbp.gov/newsroom/local-media-release/cbp-oam-interagency-partners-interdict-semisubmersible-vessel-8-tons.
  16. “CTF 151: Counter-Piracy,” Combined Maritime Forces, September 17, 2010, https://combinedmaritimeforces.com/ctf-151-counter-piracy/.
  17. Kenneth Scott, “Prosecuting Pirates: Lessons Learned and Continuing Challenges” (One Earth Future), 6, accessed April 27, 2017, http://oceansbeyondpiracy.org/sites/default/files/attachments/ProsecutingPiratesReportDigital.pdf.
  18. “Report of the Secretary-General on Possible Options to Further the Aim of Prosecuting and Imprisoning Persons Responsible for Acts of Piracy and Armed Robbery at Sea off the Coast of Somalia” (United Nations, July 26, 2010), 8, http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3 CF6E4FF96FF9%7D/Somalia%20S2010%20394.pdf.
  19. “United Nations Office on Drugs and Crime,” UNODC, January 12, 2016, http://www.unodc.org/unodc/en/human-trafficking/faqs.html.
  20. J. Ashley Roach, “Initiatives to Enhance Maritime Security at Sea,” Marine Policy 28, no. 1 (January 2004): 41–66, doi:10.1016/j.marpol.2003.10.010., quoted in Klein, Maritime Security and the Law of the Sea, 123.
  21. United Nations High Commissioner for Refugees, “Syria Emergency,” UNHCR, accessed January 22, 2017, http://www.unhcr.org/syria-emergency.html.
  22. United Nations High Commissioner for Refugees, “Global Forced Displacement Hits Record High,” UNHCR, accessed June 22, 2017, http://www.unhcr.org/news/latest/2016/6/5763b65a4/global-forced-displacement-hits-record-high.html.
  23. Institute for Foreign Policy Analysis and Geneva Center for Security Policy, “A Comprehensive Approach to Combating Illicit Trafficking,” June 2010, http://www.ifpa.org/pdf/IFPA-GCSPTraffickingReport.pdf. 26.
  24. Small Arms Survey, 2015, Geneva, Switzerland: Graduate Institute of International and Development Studies, 2015, (available at http://www.smallarmssurvey.org/publications/by-type/yearbook/small-arms-survey-2015.html).
  25. “Statement of Interdiction Principles Fact Sheet.” U.S. Department of State. September 4, 2003. Accessed July 06, 2017. https://www.state.gov/t/isn/c27726.htm.