The Author is Vrinda Sareen from Amity University, Noida. She is working with Droit Penale as a Sub-editor.
The collapse of Soviet Union and Eastern communist bloc in 1991, laid down the platform for unstability of international peace and order. Further, with the end of Cold war, the condition further got deteriorated through which ‘grey-area phenomenon’ came into being. These threats, could not be met through the traditional defences of the state which they specifically use for protecting their territories and population. Such threats are rising at a higher rate in the maritime realm especially in the high seas as the principle of Freedom of navigation applies in that area. The reason behind this is the poor monitoring of these water bodies and according to international jurisprudence, they are recognised as the independent entities.
The highlighted threats are piracy and maritime terrorism. For the purpose of analysis, the definition of terms are as follows:
Piracy is an act of boarding or attempt to board any ship with the apparent intent to commit theft or any other crime and with the apparent intent or capability to use force in furtherance of that act.
Maritime terrorism refers to the undertaking of terrorist acts and activities within the:
· Marine environment
· Using or against vessels or fixed platforms at sea or against the passengers
· Against coastal facilities or settlements including tourist resorts, port seas and port towns.
Maritime terrorism has become a major concern for the international community as it is committed in all maritime zones and affect to a greater degree the interests of states whether coastal or landlocked. Whereas Piracy is committed against the private vessels and therefore specifically effect the private actors. One of the solutions to fight against Piracy at Sea is the involvement of private insurance companies by increasing the overall cost of maritime transport and introducing piracy clauses in contracts.
There are two arguable reasons for categorising maritime terrorism as an international crime:
First reason is that international terrorist groups have committed a number of maritime terrorist attacks during the last decades. For instance, on 23rd September, 2019, a group affiliated with the IS in Philippines aboard two pump boats ambushed and sized three fishermen off the coast of East Sabah (Malaysia). Further, various regional and national agreements have been entered into between the states aimed to strengthen maritime security such as Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia 2004.
Second reason is that maritime terrorism constitutes an international crime sensu stricto based on the following:
· There are resolutions that condemned international terrorism. Such as Resolution 579(1985) in which the Security Council has pointed out that international terrorism is a criminal, unjustifiable and one of the most serious threats to international peace and security, which requires cooperation and enforcement mechanisms to suppress it.
· International organisations paid attention to maritime terrorism as a threat to international security
· There are also increasing number of legislations on international terrorist offences.
However, historically the world of ocean’s have not been a major target point of terrorists activities because an attack on ship is less likely to attract publicity in comparison to strike on land-based targets.
Five main factors that shift the focus of the terrorists to the water based environments are as follows:
· Lack in port security and profusion of targets
· Dependence on maritime trade. Eg. Members of Indonesian based Jemaah islamyya network are known to have enrolled in scuba courses run by commercial or sea diving companies.
· Additional means of causing economic destabilization. Case: M/V Limburg in 2002
· Sea-based terrorism constitutes o viable means of inflicting ‘mass-coercive punishment’ on enemy audiences. Eg. Bombing of SuperFerry 14 in the Philipines
· Expansive global container-shipping offers terrorists a logistical channel that favours covert moment of weapons and personnel.
Taking all the considerations the reason for the growth of maritime terrorism is the ineffectiveness of point of origin inspections and the absence of uniform dock side safeguards works to the direct advantage of terrorists because it is impossible to check the container once they are on high seas and due to the fact that only tiny fraction of cargo are checked while they reach the destination.
Although there is international law related to maritime terrorism and state practice that further developed as a customary international law in this area. Based on this custom, the International Law commission developed a series of provisions related to piracy which were incorporated in the Geneva Convention on the High Seas i.e. Articles 14 to 21. These articles further laid down the foundation for Articles 100 to 107 of United Nation’s Convention on Law of Sea.
Despite such extensive amount of international, regional and national law, there are still important issues of international law which are uncertain or underdeveloped such as:
· Prevention of piracy through state’s cooperation, ideally laying down the methods of prevention and further laying down the punishments for the person’s committing such acts.
· Adoption and harmonisation of National Criminal Laws on Piracy at Sea, as most of the state’s jurisdiction is dependent upon ratification of conventions which are insufficient and requires enactment of national statutes criminalising piracy as there is no crime and no penalty till the time law is in place.
· Clarifying the relationship of Maritime Piracy to Armed Robbery at Sea as it would create a problem of ‘double incrimination’ which further lead to confusion regarding applicability of law.
But state’s actions at sea are limited in dealing with maritime piracy as it leaves behind the private vessels. Therefore, International Law Commission must also take into consideration the aspect of private vessels in this area and lay down the law thereby prohibiting the vessels from engaging in acts of exercising lethal action when approached by other vessels.