Crimes committed at sea often affect more than one country, which increases the complexity of law enforcement and makes pursuit and apprehension of suspects challenging. Whether dealing with weapons or narcotics smuggling, or violent crimes such as piracy against ships, some form of agreement or level of cooperation among maritime states is necessary. Increasingly, however, there is regional consensus on the thorny issue of maritime law enforcement and interdiction of vessels where international waters meet territorial seas, which indicates that a shift in perceptions is occurring about how regional ocean security is managed.
The U.S. Naval War College, in an introduction to its Winter 2008 Review, described the ocean as a "vast maneuver space, where the presence of maritime forces can be adjusted as conditions dictate to enable flexible approaches to escalation, de-escalation, and deterrence of conflicts."
Fluid Boundaries, Shifting Laws
Maritime security plays a dynamic role in international relations. Enforcing international law at sea remains a politically delicate task. U.S. Navy Staff Judge Advocate Michael Bahar, in a 2007 article, writes that states may have common threats, but in all likelihood any changes to international laws to deal with them that threaten territorial sovereignty will fail. Bahar noted in the conclusion to his 2007 treatise on naval deterrence and anti-piracy that, "since, and perhaps because of, the demise of the Soviet Union, asymmetric and law enforcement type threats have dominated the strategic landscape."1
However, as small states have changed their allegiances from international superpowers to regional, order-based systems of states, protecting their sovereignty is increasingly sought through international law.
Flag states are responsible for protecting seafarers, migrants, and refugees against abuse, and preventing weapons smuggling. Interdiction has traditionally referred to the strategic operations of naval forces when denying access or transit through a specified maritime region during times of war. Since World War II, however, the term has increasingly referred to law enforcement operations, as a means to enforce trade sanctions, to prevent the movement of weapons of mass destruction (WMDs), and particularly in the Caribbean Sea, to prevent the smuggling of illicit drugs.
The phrase, "crimes at sea" refers to acts of violence, theft, the transport of illicit drugs, and violence resulting in death. Attacks against ships in Southeast Asia, and increasingly off the coast of Somalia, directly affect professional seafarers who have variously been robbed, assaulted, taken hostage, and murdered. In the Caribbean Sea, illicit drug trafficking increases the prevalence of illegal arms, which has been shown to increase violence and murder rates, especially in micro-states.
Piracy is universally accepted to be a criminal act. Illegally boarding a vessel for the purpose of committing robbery, hijacking, or violence against a vessel and its crew is a crime, regardless of what you call it. Bahar points out that enforcing law presents no problem if the coastal states have municipal laws prohibiting such acts, have the political will to enforce them, and have the capacity to do so. However, when crimes are committed on international waters, border regions, or international transit zones, enforcing law at sea becomes trickier.
The World's Oceans since 9/11
The United States-led Proliferation Security Initiative (PSI) and the International Ship and Port Facility Security (ISPS) Code were responses to the potential threat of the spread of WMDs and thus were a direct outcome of the 9/11 attacks. PSI is a cooperative although informal arrangement, without a formal treaty. All states party to this arrangement agreed to the 2003 Statement of Interdiction Principles (SIP), which gives guidance on the interception of vessels under accepted international law as laid out in the 1982 United Nations Convention on Law of the Sea (UNCLOS). Participating states agree to abide by these principles, but the SIP does not authorize states to conduct interdictions at sea. According to the U.S. Department of Defense (DOD), PSI provides a framework of cooperation for further activities.
Enforcing international law at sea can place authorities in a tenuous legal position, requiring special response mechanisms and procedures. For instance, determining what cargo is "reasonably suspected" is likely to be contestable, as many states reserve the right to ship military, nuclear, and other materiel by sea, and there is nothing in UNCLOS that specifically prohibits the transport of WMDs through international waters. While the ISPS Code stipulates how and when interdiction should be conducted, deciding which states can carry out interdiction, and which state's vessels may be targets of interdiction, may in time prove to be contentious if it is not applied universally, regardless of which flag a ship flies.
However, both the SIP and ISPS Code are ambiguous on the issue of how a threat will be determined and by whom. Such ambiguity should allow flexibility when deciding whom should be targeted, as well as allowing states with veto powers in the UN Security Council, which may legitimately ship nuclear weapons and materials, to avoid being targeted as long as they do not export WMDs to rogue states or non-state groups or individuals.2
The ISPS Code was created under the auspices of the International Maritime Organization (IMO) and is part of the 1974 Safety of Life at Sea Convention (SOLAS) concerning the safety of merchant ships. All 148 signatory countries to SOLAS are expected to comply with the ISPS Code. However, the IMO maintains that it does not issue blacklists of states or ports that do not comply with the code.
Interdiction of the So San: Piracy or Law Enforcement?
On 9 December 2002 the Spanish frigate Navarra was patrolling the Arabian Sea as part of Operation Enduring Freedom. It boarded a small Cambodian-registered vessel, the So San, which displayed no flag or markings and had refused to heave to after several requests. The vessel later turned out to belong to the Democratic People's Republic of Korea (DPRK) and was manned by North Korean nationals bound for Yemen, carrying a concealed cargo of 151 short-range SCUD missiles armed with conventional warheads, along with other materials for making explosives not listed on the ship manifest. The Navarra seized the vessel and escorted it to the U.S. base at Diego Garcia, which ignited protests from the Yemeni government and later claims by the DPRK that this was an act of "unpardonable piracy."
The So San's interdiction and her subsequent release demonstrates how complicated it is to apply interdiction in international waters. Interestingly, while the ISPS Code is an international means to prevent WMDs from being shipped to U.S. ports, thus protecting American interests and security needs, the code has also allowed supplementary inspections of containers around the world, resulting in increasing detection of narcotics and other illegally smuggled goods. The ISPS Code additionally offers greater enforcement of laws in international waters and in territorial seas in areas that UNCLOS does not provide. While UNCLOS arguably provides guidance for peaceful use of the sea, indicated by its limited reference to war, still it does provide for the enforcement of law at sea.
However, the Caribbean Regional Maritime Agreement (CRA) uses the 1988 Drugs Convention as its basis. Drafted in November 2003, its title was, "Agreement Concerning Cooperation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area." Initial negotiations were co-chaired by Costa Rica, the Netherlands, and the Caribbean Community, and were supported by regional governments. The CRA creates a juridical structure for multilateral cooperation and coordination with regard to maritime law enforcement operations. It forms the basis for further agreements and sets out modern operational procedures to confirm the nationality of suspected vessels and aircraft. The CRA covers ship-boarding, ship-riding, pursuit, entry to investigate, over-flight, and the relaying of orders and instructions to aircraft.
The agreement, when it is fully operational, could serve as one of the most comprehensive regional (as opposed to ISPS Code's international focus) agreements concentrating on law enforcement interdiction at sea.
The Threat Depends on Point of View
Pursuing suspects at sea requires that authorities operate within the accepted law of the sea principle. Naval and policing forces may not respond to terrorism in the same way, as it's likely they will regard the threat from their own differing perspectives. Bahar writes that terrorism on the high seas may equate to the crime of piracy against shipping under international law, but it is also considered an act of war, an aspect of law currently being questioned in some quarters. International law itself, which in its maritime sense refers to codified conventions and treaties, is not bound to the same obligations or penalties that one is accustomed to in state-based, municipal law. Sovereign states are not obligated to comply with international law, beyond the boundaries of territorial jurisdiction, whether in outer space or on the oceans of the world.3
Furthermore, beyond the limits of territorial jurisdiction, pursuing law enforcement authorities may or may not be bound by other security agreements that may exist between other coastal states, but the pursuing authority must still respect the international legal regime, the "principles, norms, rules and decision-making procedures" which have been codified in UNCLOS.4 To determine acceptable measures for law enforcement and interdiction in international waters requires that common perceptions exist regarding the level of threat, and that the national interests of states have been considered.
Blue-water law enforcement authorities who are required to work within international maritime conventions, codes, and agreements must understand domestic laws and bilateral agreements among neighboring states. Worldwide maritime policing by naval forces and coast guards (especially the U.S. Coast Guard) are the only state-based authorities permitted to police outside of the territorial sea. UNCLOS defines and provides legal guidance on the territorial sea, the contiguous zone, and the exclusive economic zone. Vessels registered or flagged to a particular state retain that state's sovereign protection. So when authorities interdict a suspicious vessel, they must pay attention to these limitations, or risk being accused either of violating a foreign state's territorial jurisdiction, or breaching international conventions on freedom of the seas.
Enforcing international law at sea therefore requires cooperation among coastal states. Although agreed guidelines can be complicated by geopolitics, principles of cooperative actions are often reduced to acceptable common denominators. How? One means is through adapting existing international maritime law through various mechanisms. Prevention and suppression of threats to maritime security are given authority by:
- The Charter of the United Nations;
- UNCLOS;
- Bilateral agreements and arrangements, and
- National measures.5
International agreements greatly accelerate the process by which law enforcement officials from one state can board suspect vessels flying the flag of another, especially when the flag state is unable to exercise control over the vessel due to its location or other factors, or maintain contact with suspect vessels entering national waters and airspace.
Whether open sea or the high-traffic sea lanes surrounding archipelagos, maritime areas are vast and comparatively less policed than those of dry land, and therefore beyond the reach of land-based police patrols. This makes crimes difficult to detect or prevent. Crimes that occur at sea often go unreported by shipping companies so that crime trend analysis is less certain.
Policing isolated maritime areas is also costly, often under-resourced, and complicated by the rules and agreements that apply to maritime zones. The location of the crime and its geopolitical ramifications often determine the extent to which it can be solved or prosecuted.
Seas Apart, the Same Obstacles
Despite their geographical and cultural differences, Southeast Asia and the Caribbean Sea share similar problems when it comes to policing the seas. They work cooperatively to prevent maritime law enforcement from getting bogged down by the regulations and codes of practice provided through UNCLOS. Given the extent of the seas and straits and the numbers of vessels available to patrol them, maintaining a continuous policing presence is difficult. In the Caribbean, coastal radars and USCG aerial patrols are used; in Southeast Asia, the "Eyes-in-the-Skies" program extends the range of patrol, but all are subject to strict regulation when flying over territorial seas.
There are also similarities in the incidence of sea crimes in the Caribbean and Southeast Asia. Typically, crimes occur relatively close to coastal state territories. Increasing numbers of violent sea-crimes and illicit drug and small arms smuggling have indicated a corresponding increase in crimes ashore. Crimes documented by the International Maritime Bureau, the IMO, and other maritime security watchdogs have occurred at sea where theft or kidnapping was the objective. Politically inspired insurgency has also been a suspected motive, even before President Bush declared a war on terrorism, although incidents of maritime insurgency are not easily linked to other crimes that occur on the high seas.
Despite setbacks to international intentions to secure Southeast Asia against lawlessness at sea, and despite official rhetoric from coastal state governments, there remains some resistance to what is considered foreign interference. Nevertheless, financial incentives and resource assistance of those states with vested interests in securing the seaways, including from the United States, Japan, India, and China, continues to influence the way that maritime law enforcement is managed. Agreements are not even close to being codified in Southeast Asia, but similarities with the CRA model suggest this may not be unattainable.
The CRA is an example of a cooperative approach that has the potential to improve capabilities of Caribbean micro-states to address drug trafficking. It could broaden strategic influence and increase financial investment and potential military aid. By agreeing also to adopt the ISPS Code, many smaller states may accrue beneficial attention from the United States in the future. Larger and smaller states derive benefits from multilateralism but cultural, political, or historical issues may prevent an easy association with one or more states in a multilateral proposal. Therefore, a proposal for multilateral agreement must identify core common denominators, in this case the common maritime security issues. The question stands, will these form the basis for a successful formal agreement?
1. Michael Bahar, "Attaining Optimal Deterrence At Sea: A Legal And Strategic Theory For Naval Anti-Piracy Operations," Vanderbilt Journal Of Transnational Law, vol. 40 (2007)
2. Mark R. Shulman, "The Proliferation Security Initiative and the Evolution of the Law on the Use of Force," Houston Journal Of International Law, vol.28 (2006) part 1
3. H.L.A. Hart, The Concept Of Law, Clarendon Press, Oxford (1961) pp.208-231
4. Stephen Krasner (ed.) International Regimes, Cornell University Press, Ithaca (1983) p.2
5. www.un.org/Depts/los/convention_agreements/convention_25years/07unitar_doalos_2007.pdf