Legal Bases for Forcible Maritime Interdiction Operations against Terrorist Threat on the High Seas

• Author: Eric Louis Corthay
• Position: Associate Professor, Bahrain Polytechnic (HEI); eric_corthay@hotmail.com. The present paper is an updated version of a presentation made at the AsianSIL 6th Biennal Conference, Seoul, 25-26 August 2017
• Pages: 53-74

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LEGAL BASES FOR FORCIBLE MARITIME INTERDICTION OPERATIONS

AGAINST TERRORIST THREAT ON THE HIGH SEAS

Eric L Corthay*

1 Introduction

The maritime domain, and especially the high seas, represents an important place for many commercial,

recreational and military activities.

1

From a commercial standpoint, for instance, seaborne trade has been deemed

to b e the ‘lifeblood of the international economic system a nd the source of its wealth’.

2

Nonetheless, many

maritime activities threaten security, prosperity and global stability. Alongside piracy and armed robbery, another

major yet different threat to maritime security is (maritime) terrorism.

3

So far, m embers of the international community have n ot yet been able – or willing – to define the concept of

terrorism. For the sake of clarification, however, the present writer proposes to define terrorism as being a modus

operandi consisting of an unlawful act of intentional violence which induces extreme fear among victims

(secondary target) in order to compel a well identified entity (primary target) to do or t o abstain from doing any

act.

4

With respect to the maritime environment in particular, the Council for Security Cooperation in the Asia -

Pacific’s Working Group on Maritime Cooperation has explained maritime terrorism in the following terms:

the undertaking of terrorist acts a nd activities within the maritime environment, using or against vessels or fixed

platforms at sea or in port, or against any one of their passengers or personnel, against coastal facilities or settlements,

including tourist resorts, port areas and port towns or cities.

5

Vessels are used by terrorists in a number of different ways.

6

To further their aims, they can notably utilize a vessel

as a means, a weapon, a bomb, or as a disruption t ool.

7

Using this classification, a range of maritime terrorist

activities can be postulated.

8

Terrorists may use commercial cargo containers to transp ort terrorists and smuggle

materials and weapons, including weapons of mass destruction (WMD), for an attack on land (vessel as a means).

It has been reported, for example, that Al-Qaeda smuggled explosives into Mombasa on vessels to carry out the

* Associate Professor, Bahrain Polytechnic (HEI); eric_corthay@hotmail.com. The present paper is an updated version of a

presentation made at the AsianSIL 6th Biennal Conference, Seoul, 25-26 August 2017.

1

Robin Bowley, Countering Terrorism in the Maritime Domain: a Contemporary Evaluation of the International Legal

Framework (PhD Thesis, Australian National Center for Ocean Resources and Security, University of Wollongong, 2013)

74 <http://ro.uow.edu.au/theses/4262>.

2

Sir James Eberle, ‘Global Maritime Security: What Does it Mean?’ in Fred W Crickard, Paul T Mitchell and Katherine Orr

(eds), Multinational Naval Cooperation and Foreign Policy into the 21st Century (Ashgate, 1998) 22, 23-4.

3

See Oceans and the Law of the Sea: Report of the Secretary General, UN GAOR, 71st sess, Agenda Item 74(a), UN Doc

A/71/74/Add.1 (6 September 2016) 11 [36]-[37]. For a definition of ‘piracy’, see United Nations Convention on the Law of

the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) art 101 (‘LOS

Convention’ or ‘UNCLOS’).

4

For a detailed explanation of the constitutive elements of this definition see Eric Corthay, ‘Le concept de terrorisme ou la

définition d’un monstre polycéphale’ (2006) 20-21 L’Observateur des Nations Unies 111, 136.

5

Definition cited in Akiva Lorenz, The Threat of Maritime Terrorism to Israel (24 September 2007) International Institute

for Counter-Terrorism

>. See also Md Saiful

Karim, Maritime Terrorism and the Role of Judicial Institutions in the International Legal Order (Brill, Martinus Nijhoff,

2016) 40-6.

6

For a non-exhaustive list of maritime terrorist activities, not only on the high seas, see Bowley, above n 1, app G; RAND,

Database of Worldwide Terrorism Incidents .

7

Tanner Campbell and Rohan Gunaratna, ‘Maritime Terrorism, Piracy and Crime’ in Rohan Gunaratna (ed), Terrorism in

the Asia-Pacific: Threat and Response (Eastern Universities Press, 2003) 70, 80. For Campbell and Gunaratna, vessels are

also seen as a target to be destroyed.

8

See, eg, Michael D Greenberg et al (eds), Maritime Terrorism: Risk and Liability (RAND, 2006) 27; Michael Richardson,

A Time Bomb for Global Trade: Maritime-related Terrorism in an Age of Weapons of Mass Destruction (Institute of

Southeast Asian Studies Publications, 2004) 8; Anthony Bergin and Sam Bateman, ‘Future Unknown: The Terrorist Threat

to Australian Maritime Security’, Strategy, 19 April 2005, 35 the-

terrorist-threat-to-australian-maritime-security>; US Department of Homeland Security, National Strategy for Maritime

Security (September 2005) Homeland Security Digital Library, 4 ; John

F Frittelli, Port and Maritime Security: Background and Issues for Congress (27 May 2005) Congressional Research Service

Reports on Homeland Security, 7 <https://fas.org/sgp/crs/homesec/index.html>.

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bombings of the US embassy in Kenya in 1998.

9

It has to be noted that the transportation of weapons of mas s

destruction – biological, chemical or nuclear weapons and related materials – does not necessarily have to be

linked to terrorist activities, but the possibility of such a connection cannot be excluded either. Terrorists may also

ram a high-speed boat into warship, cruise liner, ferry or oil tanker; they may seize control of a ship and use it as

a collision weapon for destroying offshore platforms, port facilities, bridges or other targets on th e waterfront

(vessel as a weapon). The suicide attack against the US Navy d estroyer Cole in 2000

10

and the attack against the

French super tanker Limburg in 2002

11

are two examples where vessels were used as a weapon. Terrorists ma y

also seize and explode ships with volatile cargoes in proximity to a land or offshore target ( vessel a s a bomb).

Vessels are also used as a bomb when the purpose of the blasting is simply to sink them and to kill passengers in

order to get a message across. This was the case of the bombing of the Philippine SuperFerry 14 in 2004.

12

Last

but not least, terrorists could d ecide to sink a large c ommercial cargo in a critical choke -point, or set ablaze to a

chemical tanker in a busy strait or port to block traffic or cause pollution (vessel as a disruption tool).

It appears that the high seas are a domain from which, through which, or within which maritime terrorist activities

might be conducted and attacks perpetrated. Even though they do not represent per se terrorist attacks, terr orist

activities in preparation of a terrorist attack already represent a terrorist threat that needs to be dealt with by the

international community. When a terrorist attack happens, it is already too lat e, hence the critical importance for

the international community to take timely, accurate and efficient ex ante facto steps. Besides the establishment

of effective control mechanisms in ports, States also carry out maritime interdiction operations against suspected

vessels on the high seas.

Interdiction operations, however, are not left at the sole dis cretion of the interfering States. Counter-terrorism

measures, such as maritime interdiction operations, implemented on the high seas to prevent (maritime) terrorist

attacks from occurring are possible but limited by international law and notably the law of the sea. Indeed, oceans

are governed by the principle of th e freedom of the high seas

13

which comprises, inter alia, th e right to freedom

of navigation.

14

This right, recognised by cust omary international law, allows ships flying the flag of a State to

enter upon the oceans and to pass them without suffering interference from other States.

15

Both the principle and

its consubstantial right are limited by the requirements that they ‘be exercised … with due regard for the interests

of other States in their exercise of the freedom of the high seas’

16

and that the high seas ‘be reserved for peaceful

purposes’.

17

This latter requirement, read in conjunction with Article 301 of the 1982 United Nations Convention

on the Law of the Sea (‘LOS Convention’ or ‘UNCLOS’) which notably prohibits any th reat or us e of force

‘inconsistent with the principles of international law embodied in the Charter of the United Nations’,

18

is generally

understood as forbidding military activities which are contrary to the ius contra bellum.

19

Freedom of navigation on the high seas also leads to the principle of exclusive jurisdiction of the State whose flag

ships lawfully fly. This customary principle, codified in international treaties,

20

means that States are not allowed

to exert control or auth ority on the vessels of other States. As observed b y the Permanent Court of International

Justice in the Lotus case:

…vessels on the h igh seas are subject to no authority except that of t he State whose flag they f ly. In virtue of the

principle of the freedom of the seas, that is to say, the absence of any territorial sovereignty upon the high seas, no

State may exercise any kind of jurisdiction over foreign vessels upon them.

21

In other words, a State A’s warship is a priori not allowed to take measures against State B’s vessels sa iling on

the high seas. However, the exclusivity rule is not an abs olute one from which no derogation is permitted.

9

Rohan Gunaratna, Terrorist threat to shipping is ‘imminent and growing’ (29 September 2004) Lloyds’ List, cited in

Philipp Wendel, State Responsibility for Interferences with the Freedom of Navigation in Public International Law

(Springer, 2007) 27.

10

Database of Worldwide Terrorism Incidents, above n 6.

11

Ibid.

12

Ibid.

13

For a definition of ‘high seas’, see art 86.

14

Ibid art 87(1).

15

René-Jean Dupuy and Daniel Vignes (eds), A handbook on the new law of the sea (Martinus Nijhoff, 1991) 836.

16

UNCLOS art 87(2).

17

Ibid art 88.

18

Ibid art 301.

19

See Yoshifumi Tanaka, The International Law of the Sea (Cambridge University Press, 2012) 151.

20

UNCLOS art 92(1). See also Convention on the High Seas, opened for signature 29 April 1958, 450 UNTS 11 (entered

into force 30 September 1962) art 6(1) (‘1958 Convention’).

21

SS ‘Lotus’ (France v Turkey) [1927] PCIJ (ser A) No 10, 25.