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
Harrington, Caitlin A., Washington International Law Journal
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.
Under current international law of the sea, nonflag states must gain flag-state permission to board a suspect vessel on the high seas or rely upon the flag state to ensure that the vessel is not involved in terrorist activity. Flag states exert varying levels of regulation and enforcement over their ships. So-called "flags of convenience" are those of flag states that fail to strictly monitor and enforce international law on their vessels. To prevent a maritime terrorist attack, the international community clearly must rectify the weaknesses in maritime security created by inadequate flag-state enforcement.
The 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation ("SUA Convention") and the 2005 Draft Protocol to the SUA Convention ("2005 Draft Protocol") are both attempts to strengthen international maritime security. The director for operations policy of the United States Coast Guard, Rear Admiral Wayne Justice, describes the 2005 Draft Protocol as providing "unprecedented tools" that will counteract the threat of maritime terrorism if and when it enters into force.8
This comment focuses on Article 3bis(1)(a) and Article 8bis(5)(e) of the 2005 Draft Protocol ("Article 3bis(1)(a)" and "Article 8bis(5)(e)"). …