A review of legal measures to combat maritime violence

The recent spate of attacks directed against cargo and passenger vessels off the coast of Somalia has generated worldwide interest in the realm of maritime security while simultaneously presenting a sobering reminder of the vulnerability of the maritime transport system.

These attacks also, inevitably, pose the question of the level of efficacy of the international legal framework governing maritime security.

Not surprisingly then the International Maritime Organisation has recently undertook a review of the legal situation governing in particular, the capture, arrest, prosecution and extradition of alleged offenders.

The subject of maritime security is certainly no newcomer to the limelight. While piracy represents the oldest form of criminal act on the seas, the 1980s ushered in the modern age of maritime terrorism with the highjack of the Italian-flagged Achille Lauro. Maritime security received renewed attention with the September 11, 2001 attacks on the New York World Trade Towers. Following the initial focus on the air transportation system, governments quickly intensified their scrutiny of the maritime sector.

In the maritime world, safety and security are closely linked, even though it is normal for the shipping sector to make a distinction between the two. While the focus of the IMO has traditionally been on safety and the application of technology and knowledge to maintain safety through the prevention of accidents caused by the forces of nature, substandard ships and human error, maritime security introduces an additional element: deliberate actions by people intent on causing harm. Maritime security is therefore designed to deter criminal acts, such as theft, piracy, smuggling, terrorism, extortion and illegal immigration.

The current legislative framework developed by the IMO dealing with maritime violence may be categorised on the one hand into instruments dealing with preventive regimes, and on the other legal regimes dealing with the jurisdictional delineation for punishment of perpetrators of such acts.

July 2004 saw the entry into force of numerous maritime security related amendments to the International Convention for the Safety of Life at Sea 1974, the most far reaching of which enshrined the International Ship and Port Facility Security Code.

The latter delineates the preventive regimes and regulatory measures to be adopted by administrations, port authorities, shipping companies, customs, immigration and training institutions, and include assessment of risk levels and incorporation of technology.

The corollary to preventive measures is an adequate legal regime that provides jurisdiction over the relative offences.

Under general principles of international law, piracy is a crime vested with universal jurisdiction which in essence means that when it is committed on the high seas it is punishable by all nations, thus presenting a significant in-road to the principle of flag state jurisdiction on the high seas.

An interesting twist is that in cases where the act of violence is backed with a political objective, then such act would as a consequence not classify within the traditional notion of "piracy" which is characterised by private gain and would therefore be excluded from the ambit of universal jurisdiction.

The only international convention dealing with maritime violence is the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation.

This Convention provides the legal basis for action to be taken against persons committing unlawful acts against ships, which include the seizure of ships by force, acts of violence against persons on board ships and the placing of devices on board which are likely to destroy or damage the ship.

States, parties are obliged to render offences listed in the convention punishable under their laws and to establish their jurisdiction over, among others, offences committed on or against their ships, in their territory, by their nationals or involving their nationals as victims.

The Convention applies if the ship is navigating or is scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a state party or in any other case in which the alleged offender is found in the territory of a state party.

The Convention obliges contracting governments to either extradite or prosecute alleged offenders.

The inclusion of acts of terrorism within the definition of offences within the SUA Convention in 2005 as part of the legislative overhaul following the 9/11 attacks brought it bang up to date by including in the definition of an offence an act intended to intimidate a population or to compel a government to do or refrain from doing any act. The 2005 amendments also introduced an important provision regarding the boarding rights of a state party when it has reasonable grounds to suspect that a ship flying the flag of another state party or a person on board the ship is, has been or is about to be involved in the commission of an offence under the said Convention.

One questions the relevance of the above measures for crew facing the immediate threat of pirates boarding a vessel. The answer may possibly lie, as it often does when facing threats of these proportions which affect the industry globally, in international cooperation.

Ultimately, although the legal framework for combating acts of violence at sea does exist, the main challenges appear to lie in the political arenas, with states generally being reluctant to agree to cooperative activities if they appear to be compromising or qualifying sovereign rights over their territory.

A manifestation of the tangible results that may be achieved from willingness to cooperate is the recent resolution adopted by the United Nations Security Council which, in light of the consent of Somalia's Transitional Federal Government, allowed states cooperating with TFG to be allowed for a period of six months "to enter the country's territorial waters and use all necessary means to repress acts of piracy and armed robbery at sea, in a manner consistent with the relevant provisions of international law".

On a different plane but emanating from the same philosophy of international cooperation are plans for the establishment of a European Maritime Surveillance network that has recently been announced by Commissioner Joe Borg on the basis that cooperation and information exchange are paramount to the sectors of crime prevention and maritime safety and security.

One awaits with interest the outcome of the IMO's evaluation of the current legal framework addressing maritime violence. Undoubtedly, the forefront concern spurring all of the above is the preservation of the free movement of international trade and, most importantly, the preservation of the life of innocent sea farers and passengers from the threat of maritime violence.

Dr Vassallo is an associate within the Marine Litigation Department at Fenech and Fenech Advocates.

www.fenechlaw.com