Heightened Security: The Need to Incorporate Articles 3bis(1)(a) and 8bis(5)(e) of the 2005 Draft Sua Protocol into Part VII of the United Nations Convention on the Law of the Sea

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Abstract: Maritime terrorism on the Pacific Ocean is a growing threat. Terrorists can take advantage of widening gaps in the world's maritime security regime. The current incarnation of the legal framework surrounding the nonflag-state right of visit has exacerbated emerging weaknesses. The world must be willing to allow nonflag states greater power to board vessels on the high seas that are suspected of participating in maritime terrorism.

The ship-boarding procedures within the 2005 Draft Protocol to the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation are a step in the right direction. They do not go far enough, however, toward increasing maritime security.

To effectively combat maritime terrorism, the international community should amend the United Nations Convention on the Law of the Sea, incorporating Article 3bis(1)(a) and Article 8bis(5)(e) of the 2005 Draft Protocol into Part VII of the Convention. This would create an additional exception to the principle of exclusive flag-state jurisdiction and control on the high seas, allowing for a nonflag-state right of visit given reasonable grounds to suspect that a ship has committed, is committing, or is about to commit an act of maritime terrorism as defined by Article 3bis(1)(a).

I. INTRODUCTION

Widening gaps in maritime security have resulted in weaknesses ripe for exploitation by terrorist organizations targeting the waters of the Pacific Ocean. The danger of maritime terrorism has become increasingly clear. A member of the Jemaah Islamiyah terrorist organization, a group with ties to Al Qa'ida, has admitted to the Indonesia National Intelligence Agency that the waters of Southeast Asia have emerged as a potential target.1 In a separate incident, Barbar Ahmad, another terrorist linked to Al Qa'ida, was discovered with a set of plans outlining the vulnerabilities of American naval fleets, raising fears of a maritime terrorist attack.2

International terrorist organizations have strengthened their maritime presence. Recent estimates are that Osama bin Laden and those associated with him control a dozen to fifty freighters.3 Al-Qa'ida, the Moro Islamic Liberation Front, the Abu Sayyaff Group, Jemaah Islamiyah, the Kumpulan Militan Malaysia, the Gerakan Aceh Merdeka, and Laskar Jihad are all suspected of planning or undertaking maritime attacks in the Asia Pacific region.4 Reports also indicate a growing interest on the part of Al-Qa'ida, Jemaah Islamiyah and the Kumpulan Militan Malaysia to launch terrorist attacks targeting global trade and the U.S. Navy.5

Although many of the potential targets of maritime terrorism lie in the coastal waters and ports of nation states, effective control over the high seas remains a vital element in the prevention of attacks. Pursuant to the United Nations Convention on the Law of the Sea ("UNCLOS"), the vast majority of the world's oceans are classified as the high seas. Therefore, it is likely that terrorist vessels, even those whose eventual targets lie closer to the shoreline, will travel through the high seas.

Terrorists, taking advantage of weak international enforcement, can also directly target ships traveling on the high seas. In the words of U.S. Admiral Walter F. Doran, "terrorism, like water, flows through the paths of least resistance."6 This comment argues that, under the current international legal framework, the international community has very little power to resist a terror attack on the high seas.

Weak flag-state7 control over vessels traveling on the high seas creates gaps in maritime security, exacerbating the threat of maritime terrorism. UNCLOS codifies the exclusive right of flag states to exercise jurisdiction and control over their vessels traveling on the high seas. While UNCLOS provides a limited number of exceptions allowing for a nonflag-state right of visit given specific circumstances, none of the exceptions focuses on the prevention of a maritime terrorist attack. …