Global Challenges in Maritime Security: An Introduction (Advanced Sciences and Technologies for Security Applications) 3030346293, 9783030346294

Citation preview

Advanced Sciences and Technologies for Security Applications

Lisa Otto   Editor

Global Challenges in Maritime Security An Introduction

Advanced Sciences and Technologies for Security Applications Series Editor Anthony J. Masys, Associate Professor, Director of Global Disaster Management, Humanitarian Assistance and Homeland Security, University of South Florida, Tampa, USA Advisory Editors Gisela Bichler, California State University, San Bernardino, CA, USA Thirimachos Bourlai, West Virginia University, Morgantown, WV, USA Chris Johnson, University of Glasgow, Glasgow, UK Panagiotis Karampelas, Hellenic Air Force Academy, Attica, Greece Christian Leuprecht, Royal Military College of Canada, Kingston, ON, Canada Edward C. Morse, University of California, Berkeley, CA, USA David Skillicorn, Queen’s University, Kingston, ON, Canada Yoshiki Yamagata, National Institute for Environmental Studies, Tsukuba, Ibaraki, Japan

Indexed by SCOPUS The series Advanced Sciences and Technologies for Security Applications comprises interdisciplinary research covering the theory, foundations and domain-specific topics pertaining to security. Publications within the series are peer-reviewed monographs and edited works in the areas of: –– biological and chemical threat recognition and detection (e.g., biosensors, aerosols, forensics) –– crisis and disaster management –– terrorism –– cyber security and secure information systems (e.g., encryption, optical and photonic systems) –– traditional and non-traditional security –– energy, food and resource security –– economic security and securitization (including associated infrastructures) –– transnational crime –– human security and health security –– social, political and psychological aspects of security –– recognition and identification (e.g., optical imaging, biometrics, authentication and verification) –– smart surveillance systems –– applications of theoretical frameworks and methodologies (e.g., grounded theory, complexity, network sciences, modelling and simulation) Together, the high-quality contributions to this series provide a cross-disciplinary overview of forefront research endeavours aiming to make the world a safer place. The editors encourage prospective authors to correspond with them in advance of submitting a manuscript. Submission of manuscripts should be made to the Editor-­in-­Chief or one of the Editors. More information about this series at http://www.springer.com/series/5540

Lisa Otto Editor

Global Challenges in Maritime Security An Introduction

Editor Lisa Otto SARChI Chair: African Diplomacy and Foreign Policy University of Johannesburg Auckland Park, South Africa

ISSN 1613-5113     ISSN 2363-9466 (electronic) Advanced Sciences and Technologies for Security Applications ISBN 978-3-030-34629-4    ISBN 978-3-030-34630-0 (eBook) https://doi.org/10.1007/978-3-030-34630-0 © Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

To my dad, who will not see my name on the cover of a book but who, in very many ways, is the one who made it possible.

Acknowledgements

A word of thanks must go to each of the contributors who worked tirelessly on their chapters, to the peer reviewers who helped us as authors to improve their quality, to everyone who gave advice along the way and to those who worked behind the scenes to make this volume possible.

vii

Contents

1

I ntroducing Maritime Security: The Sea as a Geostrategic Space������    1 Lisa Otto

2

 ceans and Blue Economies ������������������������������������������������������������������   13 O Ken P. Findlay

3

Illegal, Unreported and Unregulated (IUU) Fishing as a Maritime Security Concern ����������������������������������������������   33 Mercedes Rosello

4

 muggling and Trafficking of Illicit Goods by Sea ������������������������������   49 S Carina Bruwer

5

Migration, Seafarers and the Humanitarian-Security-Economic Regimes Complex at Sea ������������������������������������������������������������������������   75 Amaha Senu

6

 aritime Piracy and Armed Robbery at Sea����������������������������������������   95 M Lisa Otto and Leaza Jernberg

7

 aritime Boundaries and Maritime Security��������������������������������������  111 M Victoria Mitchell

8

 ybersecurity at Sea��������������������������������������������������������������������������������  127 C Polychronis Kapalidis

9

Maritime Terrorism ��������������������������������������������������������������������������������  145 Lisa Otto, Suzanne Graham, and Adrienne Horn

10 Port Security��������������������������������������������������������������������������������������������  161 Risto Talas 11 T  he Successes and Struggles of Multilateralism: African Maritime Security and Strategy ����������������������������������������������  173 Timothy Walker

ix

x

Contents

12 T  he Role of Navies in the Contemporary Era ��������������������������������������  191 Francois Vreÿ and Mark Blaine 13 N  on-state Actors in the Maritime Domain: Non-state Responses to Maritime Security Challenges������������������������  211 Carolin Liss 14 C  onnecting the Dots: Implications of the Intertwined Global Challenges to Maritime Security������������������������������������������������  229 Anja Menzel and Lisa Otto

Contributors

Mark Blaine  joined the South African Navy in 1983, specialising in mine warfare. His time at sea culminated in command of the mine warfare vessel SAS Umzimkulu from 1996 to 1999 and the hydrographic survey vessel SAS Protea from 2004 to 2006. He was the Defence Advisor in Nairobi, Kenya, from April 2007 to September 2011 where he paid specific attention to the piracy problems on the coast of Somalia and the Horn of Africa. He is currently a Researcher for the Security Institute for Governance and Leadership in Africa (SIGLA) and Lecturer for nautical science at the Faculty of Military Science of the University of Stellenbosch and has completed his master’s degree in Maritime Security through Coventry University in 2016. Carina Bruwer  is a PhD Candidate at the University of Cape Town’s Centre of Criminology and holds LLB and LLM degrees from Stellenbosch University, South Africa. Her research looks at transnational organised crime at sea and explores responses to ivory and heroin trafficking to and from Eastern Africa. Potential responses are considered by drawing from the international counter-piracy response off the Horn of Africa and the wider Western Indian Ocean. Her research is interdisciplinary and explores subjects like organised crime, global governance, international law and maritime law enforcement. Ken P. Findlay  is the Research Chair of Oceans Economy at the Cape Peninsula University of Technology (CPUT) in Cape Town, South Africa, and previously directed the MRI Whale Unit of the University of Pretoria. In his position at CPUT, he drives the University’s Centre for Sustainable Oceans, which focuses on oceans economies and governance and ecosystem-based management approaches to balancing ocean health and human benefits from the ocean space. Standardised ocean account frameworks form a major transdisciplinary focus of this work and provide for the integration of information from across the economic, social and environmental domains. Such a standard provides the basis of informed decision support in policy development that maximises ocean benefits, inclusivity and equitable access and sustainability and the UN Sustainable Development Goals.

xi

xii

Contributors

Suzanne  Graham  is Associate Professor of International Relations at the Department of Politics and International Relations at the University of Johannesburg in South Africa and Head of the Department (2018–2020). Her masters research focused on terrorist waves and corresponding terrorist groups. Her doctoral thesis focused on South Africa’s voting behaviour in the United Nations (1994–2008). Her book Democratic South Africa’s Foreign Policy: Voting Behaviour in the United Nations was published in 2016. Her research interests include foreign policy, international organisations, conflict and terrorism studies and African small island developing states. Adrienne Horn  is a Lecturer at Monash South Africa where she teaches modules in international studies and South African politics. Her masters research explored the Islamic State and its constitution of a sixth wave of terrorism. Her research interests span terrorism, democracy and criminology. Leaza  Jernberg  was awarded her PhD in International Relations from the University of the Witwatersrand in 2018. She is a Contract Lecturer and holds an MPhil in International Relations from the University of Cambridge and an MA in International Studies from the University of Stellenbosch. Her primary research interests include the geopolitics of the Indian Ocean and the security of sea lanes, power and the global order and the rise of cities as important actors in global politics. Polychronis Kapalidis  is the European Representative of Hudson Analytix, promoting the company’s synergies in Europe on issues related to security, both physical and cyber. He is also an Academy Associate at the International Security Department, Chatham House. He stands as Visiting Research Fellow at the Dartmouth Centre for Seapower and Strategy at Plymouth University in the United Kingdom and as a Board Member in several academic and scientific bodies. He is also the Course Director for the Certificate in Maritime Cybersecurity Digital Learning Course for Lloyd’s Maritime Academy. He is currently based at the University of Warwick, also in the United Kingdom, where he is pursuing his doctoral degree on cyber risk quantification for the maritime sector. Carolin Liss  is a Senior Research Fellow at the Peace Research Institute Frankfurt, Germany. She received her PhD in Political Science and Asian Studies from Murdoch University, Australia. Her research focuses on piracy, transnational criminal activities, maritime security and the privatisation of security. Anja Menzel  is a Senior Researcher and Lecturer at Fern Universität in Hagen, Germany, where she teaches on international institutions and global governance. She holds a PhD from the University of Greifswald, Germany. Her expertise lies in state cooperation on the combat of maritime piracy in Asia and Africa, with further research interests in maritime security and ocean governance. In another current project, she explores the relationship between Bretton Woods institutions and regional economic organisations.

Contributors

xiii

Victoria  Mitchell  recently completed her PhD thesis at the University of Greenwich, in the United Kingdom, where her research focused on maritime security cooperation in the Gulf of Guinea region. She previously interned with the Commonwealth Secretariat Oceans and Natural Resources Division and has worked as a Researcher for international charities. She holds LLB and LLM degrees from the University College London and an LLM from a joint University of Amsterdam and Columbia University degree programme. Lisa Otto  is a Senior Researcher in the SARChI Chair in African Diplomacy and Foreign Policy at the University of Johannesburg in South Africa and is Co-Editor-­ in-Chief of the African Security Review (2019–2022). She holds a DLitt et Phil in Political Studies from the University of Johannesburg, an MA in International Peace and Security from King’s College London, as well as BA and BA Honours degrees. She has specialised in African issues, particularly those related to conflict and security as well as foreign affairs and political risk. Her research interests have largely revolved around nontraditional threats to security, where she has developed specific expertise in maritime security. Her doctoral research considered the nexus of resource exploitation and transnational organised crime at sea in the Gulf of Guinea, focusing on Nigeria. Mercedes  Rosello  is a Researcher specialising in international and European Union environmental law; the conservation and management of wild marine fisheries; the operational patterns and human security impacts of illegal, unreported and unregulated (IUU) fishing; and the global and regional institutional governance of the oceans. She combines close to two decades of experience as an Academic, Advocate for the marine environment and Lawyer in practice. She obtained her PhD in Public International Law at the University of Hull in the United Kingdom and is the Director and Principal Researcher at the London non-profit consultancy House of Ocean. Amaha  Senu  is currently a Writing Fellow at the Johannesburg Institute for Advanced Study. Prior to that, he was a Research Associate at the Seafarers International Research Centre in the School of Social Sciences at Cardiff University. He was also a SIRC-Nippon Foundation PhD Fellow at Cardiff where he completed his doctoral research into the governance and treatment of maritime stowaways in the global shipping industry. Before his academic career, he qualified as a junior deck officer and had worked on ocean-going cargo vessels. His current research interests include maritime security governance, various forms of illegalised and policed mobilities at sea, the organisation of transnational crimes in the maritime domain as well as the philosophies and methodologies of the Social Sciences. Risto  Talas  is a Lecturer in Risk Management in the Strategy, Enterprise and Innovation subject group in the University of Portsmouth School of Business and Law, where he was previously a Lecturer in Security Risk Management. He has previously lectured at Hull University, the University of London, the University of

xiv

Contributors

West Indies and Sultan Qaboos University. He started his career at Lloyd’s of London as a Leading Underwriter of marine war, aviation war, terrorism and political violence risks. After his MBA at Cass Business School, he worked for Maritime and Underwater Security Consultants prior to completing his PhD in Maritime Port Security Efficiency Modelling. His research interests include maritime piracy and terrorism; mental health and wellbeing among seafarers, door supervisors and privately contracted armed security personnel; the relationship between critical national infrastructure risk and resilience; and unmanned aerial vehicles in port security. Francois Vreÿ  is Emeritus Professor in Military Sciences, Stellenbosch University, South Africa. He completed his PhD at the Institute for Futures Research of Stellenbosch University Business School. He lectured in the Faculty of Military Sciences for 22  years and now serves as the Research Coordinator for SIGLA, Stellenbosch University. He is a C1 Rated Researcher of the National Research Foundation of South Africa. His research fields include future warfare and Africa’s emerging maritime security setting and maritime security governance off Africa in particular. His current posting involves building international research partnerships for SIGLA at Stellenbosch on leadership, landward and maritime security governance and cybersecurity. Timothy Walker  is a Senior Researcher at the Institute for Security Studies working on maritime security and development for the Peace Operations and Peacebuilding Programme in Pretoria, South Africa. His areas of interest include maritime security, piracy, the blue economy, China-Africa relations, international relations theory and human security. He has a Master’s degree in Political and International Studies from Rhodes University.

Abbreviations

ABNJ AEO APEC AU APSA BIMCO DEA CBDs CCIT CGPCS CIR CEMZA CMF C-TPAT CSAV EA EBA EBM ECDIS FOC GDP GPS FAO EEZs ICOM ICZM ICS ISPS IUU ICE IMCAM

Areas Beyond National Jurisdiction Authorised Economic Operator Asia-Pacific Economic Cooperation African Union African Peace and Security Architecture Baltic and International Maritime Council Drug Enforcement Administration Convention on Biological Diversity Comprehensive Convention on International Terrorism Contact Group for Piracy of the Coast of Somalia Consiglio Italiano Per I Rifugiati / Italian Refugee Council Combined Exclusive Maritime Zone of Africa Combined Maritime Forces Customs Trade Partnership Against Terrorism Compañía Sudamericana de Vapores Ecosystem Approach Ecosystem-Based Approach Ecosystem-Based Management Electronic Chart Display and Information System Flag of Convenience Gross Domestic Product Global Positioning System Food Agricultural Organisation Exclusive Economic Zones Integrated Coastal and Ocean Management Integrated Coastal Zone Management International Chamber of Shipping International Ship and Port Facility Security Code Illegal, Unreported and Unregulated Immigration and Customs Enforcement Integrated Marine and Coastal Area Management xv

xvi

IMB MARCOM MSF MMEA MNC MODU MUSC NATO NCA NSIT OLC PCG PLF PLO PSI RAMTC REG RMFOs SHADE SIDS SESs SCS SDGs SLN SLOCs SME SOLAS SURPIC TOC UNCLOS UNTOC UNEP UK UN US UNGA VMS WGBE WIO

Abbreviations

International Maritime Bureau United States Maritime Commission Médecins Sans Frontières Malaysian Maritime Enforcement Agency Monitoring, Control and Surveillance Maritime Offshore Drilling Unit Maritime and Underwater Security Consultants North Atlantic Treaty Organisation National Crime Agency National Institute of Standards Technology Office of Legal Counsel Police Coast Guard Palestinian Liberation Front Palestine Liberation Organisation Proliferation Security Initiative Revised African Maritime Transport Charter Regional Economic Communities Regional Fisheries Management Shared Awareness and Deconfliction Small Island Developing States Socio-ecological Systems South China Sea Sustainable Development Goals Sri Lanka Navy Sea Lines of Communication Small and Medium-Sized Enterprises International Convention for the Safety of Life at Sea Surface Picture Surveillance System Transnational Organised Crime United Nations Convention on the Law of the Sea United Nations Convention Against Transnational Organised Crime United Nations Environment Programme United Kingdom United Nations United States United Nations General Assembly Vessel Monitoring Systems Working Group on Blue Economy Western Indian Ocean

Chapter 1

Introducing Maritime Security: The Sea as a Geostrategic Space Lisa Otto

Abstract  The seas have more recently come into the view of states, beyond those that have traditionally held sea power, to be seen as a new frontier for economic development. At its most basic level of reasoning, therefore, there can be seen to be an incentive for states to provide security in their territorial waters, but also to contribute to good order on the high seas. Beyond this, however, it is evident that the sea is also of importance to states as they have traditionally used their access to the sea and ability to traverse its waters as a means to expand their empires and spheres of influence. Thus, economics, politics, security, and strategic interests merge at sea, and much as maritime security has, in practice, a history spanning hundreds of years, these interconnected interests have only more recently spawned the nascent discipline of maritime security. This chapter considers the emergence of Maritime Security, its history, and its relevance as a field of study by locating the seas as a geostrategic space, and drawing on China’s String of Pearls as an illustrative case study. The discussion in this chapter lays the foundation for the chapters that follow. Keywords  Sea · Ocean · Maritime security · Geostrategy · Geopolitics · String of Pearls

1.1 Introduction While the sea has traditionally been a space that states have used to project their power  – military, economic, and political  – it has only been in recent years that maritime security has become a key issue of interest to policymakers and

L. Otto (*) SARChI Chair: African Diplomacy and Foreign Policy, University of Johannesburg, Auckland Park, South Africa e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Otto (ed.), Global Challenges in Maritime Security, Advanced Sciences and Technologies for Security Applications, https://doi.org/10.1007/978-3-030-34630-0_1

1

2

L. Otto

academics, notably following key incidents such as the attack on the Achille Lauro in 1985 and the 9/11 attacks in the United States of America (US) in 2001, as is detailed later in this volume. The sea is now recognised as an integral part of international security agendas due to its geopolitical importance. Geopolitics, which references the intersection between geography and political processes and imperatives, and geostrategy, the area of geopolitics that addresses strategy (Van Rooyen 2011, p. 6), are important lenses through which states now view the world’s oceans. From the most basic perspective, states rely on the ‘freedoms of the sea’ to be able to conduct trade given that the vast majority of the world’s trade (around 90%) traverses the seas, and are increasingly drawing on their rights to exploit sea resources for their economic development. These both encompass economic imperatives, but of course states also have political imperatives in this space. From a political point of view, states have traditionally used their access to the sea and ability to travel its length and breadth as a means to expand their empires and spheres of influence. Thus, in order to protect these interests, the security of the seas follows naturally as an issue of importance. This chapter will seek to lay the foundation for the volume it introduces by explaining the importance of the sea as a geostrategic space, while also introducing concepts of maritime security, and indeed Maritime Security as a field of study. In so doing it should become clear why the issues that this volume explores have become areas of interest for policymakers in particular; an interest to which academic research has also responded.

1.2 A Brief History of Maritime Security A good starting point to contextualise how maritime security and maritime geostrategy has been shaped, is to consider briefly their historical origins. Amirell (2016) provides a fascinating overview of what he describes as four phases of the historical development of maritime security studies and policy-making. The first phase runs from 1450 to 1600, a period during which the Bull Romanus Pontifex – a document issued by Pope Nicholas V in 1455 – ruled that Portugal essentially had sovereignty over all seas south of the conquered territory of Guinea, including both those that were known to man at that time as well as those that were yet to be discovered. Sailing the seas, trading, and fishing required a license from Portugal’s king along with the payment of a tribute. Amirell (2016, p. 278) notes that “subsequent treaties and writings pertaining to maritime security agreed about the need to provide law and order at sea, even though there was disagreement about the moral and legal basis for the different claims to sovereignty, jurisdiction, the right to exploit natural resources and the right to sail and trade in distant waters”. What followed was the Treaty of Tordesillas which gave Spain maritime powers and sovereign rights alongside Portugal by drawing a demarcation line through the Atlantic. In the second phase – the period 1600–1850 – a decline in the maritime power of Portugal and Spain, and the rise and increasing importance of trading companies,

1  Introducing Maritime Security: The Sea as a Geostrategic Space

3

defines the maritime security regime. It is in this context, with the expansion of Dutch trade, notably through the Dutch East India Company, that Hugo Grotius in 1609 writes Mare Liberum. His text rejects state-based claims of sovereignty and jurisdiction over the seas, advances the notion of freedom of navigation, and for rights for all to sail, trade and fish throughout the seas. This argument “came by and large to prevail until modern times and eventually developed to become the cornerstone of international maritime law”. Indeed, in this period trading companies made sizeable profits as a result of the freedom of navigation (Amirell 2016, pp. 278–279) as Dutch sea lines of communication (SLOCs) traced out the contours of several continents including Europe, Africa, and Asia (Rogers 2010, p. 4). In the period 1850–1990, the third phase, Amirell (2016, pp. 279–281) describes how power shifted and responsibility reverted to states as trading companies declined in the wake of the increasing cost of protection. Alongside this, imperialist states in Europe were on the rise and Great Britain became the “dominating global maritime power”, while others like France, the Netherlands, and the US began playing increasingly important roles. This was particularly so following the opening of the Suez Canal, which granted easier access for European imperial powers to their colonies in Africa and Asia (Rogers 2010, p. 4). Amirell (2016, pp. 279–281) contends that Europeans and North Americans saw themselves as the harbingers “of civilisation” and “the provision of maritime security… was a key aspect of the global civilising project”. Combatting piracy and conducting operations against the slave trade were key elements of the project of securing the seas. In the meanwhile, significant technological advances were made that allowed for a global maritime security regime to exist and be supported by capacitated navies. Thus, by the twentieth century there were few sea-based threats to the economic and political interests of imperialists. These improvements in security at sea “led to the widespread notion that security… was the generic condition of sea travel”. In the post-Cold War era, which is the fourth phase that Amirell (2016, p. 281) describes, three main developments shifted maritime security conditions. First was the international détente at the end of the Cold War, that resulted in a reduction of naval capacity and as great a visible presence of naval power. Secondly, states saw their shorelines be extended with the adoption of Exclusive Economic Zones (EEZs) – an area that extends 200 nautical miles from the territorial sea baseline – which gave responsibility for these swathes of sea to the littoral state. Finally, states again saw their power decline in relation to private actors, and these private actors began taking up a greater role in the provision of public goods that would usually be within the remit of the state, including security, particularly as the responses of global navies to threats such as Somali piracy were deemed insufficient. It is during this period that Rogers (2010, p. 4) contends that the US navy gained far greater prominence, allowing the country to develop itself as a global superpower by constructing maritime theatres that facilitated a rapid power projection that was intended to stave off hostility from enemies, notably the Soviet Union. Amirell (2016, pp. 281–282) concludes on a somewhat ambivalent note, unsure as to whether these developments suggest a next phase characterised by greater private responsibility in the realm of maritime security, or whether China’s growing

4

L. Otto

presence in the East and South China Seas alongside a “more assertive position” suggests that state power continues to loom large. Indeed, China has been at work since the 1960s to create its ‘String of Pearls’ in the seas bordering the Asian and Middle Eastern landmass, which Khurana (2008, p. 1) describes as “nodes of influence”. Another point for consideration here is that, although the US is ceding space to other powers as the world becomes more multipolar, it continues to hold a significant maritime presence with over 500 military installations flecked across its areas of influence and interest, of which the navy forms a strong component (Rogers 2010, p. 4). The United Kingdom (UK) also has a number of naval bases around the world, including in Cyprus, the Falkland Islands, Diego Garcia, Singapore, and Bahrain. This historical overview gives context to how the sea has been seen as space where power can be asserted and projected, as well as to how the key laws and concepts pertaining to the sea that are now accepted came to be so.

1.3 The Sea as a Geostrategic Space Geopolitics is earlier explained as the intersection between geography and political processes and imperatives (Van Rooyen 2011, p. 6), and can be further understood as “an approach to studying contemporary international affairs that is anchored in the study of history, geography and culture” (Granieri 2015, p.  492). Germond (2015, pp. 137–138) expands, explaining that geopolitics can be seen in reference to “state’s zones of interest or influence and how they clash with each other’s”, with states thus factoring geographical factors into their strategic thinking, developing ‘geo-strategies’ to guide their policymaking in relevance to international affairs and security. Indeed, Granieri (2015, p.  493) harks back to The Influence of Sea Power on History 1660–1783, the work of Captain Alfred Thayer Mahan, to explain that the control of the seas played a crucial role in Britain’s ability to rise as a world power. Mahan’s work, published in 1890, holds that the ability to conduct commerce at sea was crucial for dominance on the international stage, with Granieri further arguing that sea power and the success of navies provides an explanation for “how some powers had risen while others had failed”. This sentiment continues to ring true today as the sea remains linked to economic and security imperatives for states. Rogers (2010, p. 3) avers that sea power still matters because, “when wedded to a well-thought-out maritime geostrategy, [it] facilitates the application of maritime assets… to gain influence over particular and geographically sensitive spaces on the global map”. The Chinese String of Pearls is perhaps the best example with which to explain maritime geostrategy. Brewster (2017, pp. 270–272) notes that control over access to the Indian Ocean has long been securitised: given that the ocean is enclosed on three sides by Africa, the Middle East and the Indian subcontinent, and the Asian island states, with only a few entry points from other oceans such as the Red Sea,

1  Introducing Maritime Security: The Sea as a Geostrategic Space

5

the Andaman Sea, the South China Sea (SCS), the Java Sea and so on, those states who then control these so-called ‘chokepoints’ can grant or deny access to the Indian Ocean for others, thus accruing a “strategic premium”. Khurana (2008, pp. 1–2) demonstrates the strategic importance for China being compounded by the fact that, at the time of his writing, 30% of Chinese sea trade transited the Indian Ocean, while 77% of oil imports also traversed this space on the way from Africa and West Asia. A decade later, China still accounts for some of the largest containerised imports and exports, with the SCS, and access from there to the Indian Ocean to the west, and the Pacific Ocean to the east being critical, with US$3.37 trillion of trade passing through the SCS, the largest proportion of which belongs to China (China Power 2017, Internet). To add to this, the SCS may be home to significant oil and gas resources, which has led to contestation over territorial claims of a number of islands in this area, with estimates for oil reserves around the Spratly Islands being between 100 and 200 billion barrels, and gas reserves being estimated to be 266 and 2000 trillion cubic feet. Moreover, as the world population grows, and the ability to secure food sources grows in importance, the SCS offers another attractive prospect: it offers “exceptionally favourable conditions for a fertile marine ecosystem” (Roy 2017, pp. 258–260). Successful claims over these islands allow for the establishment of EEZs, which then forms part of that country’s sovereign territory. This has led China to consolidate its presence in the region, while also sparking controversy and heightening tensions with rivals through the development of a number of man-made islands in contested areas of the SCS (Barron 2018, Internet). But, this is certainly not a new development; China identified the importance of the Indian Ocean and SCS decades ago. The String of Pearls essentially refers to military and commercial assets that China has throughout this region or can leverage due to friendly relations with key countries. This then forms a “wide distribution network to protect the transportation of resources from countries around the Indian Ocean to China’s factories and provide Beijing with a foothold in the Indian Ocean” (Rogers 2010, p. 5). Dabas (2017) lists the following as elements of this strategy: • Maintaining friendly relations with Malaysia and Singapore, particularly because its rival India has a “strategic hold” on the Malacca Strait; • A presence in Myanmar’s Kyaukpyu port, to which it has commercial access and may use for military purposes in times of war; • A military base on the Coco Islands in the north eastern Bay of Bengal, reportedly being built by China; • Investment in Bangladesh’s Chittagong port, with negotiations for a naval base near here being ongoing; • The development of the port in Hambantota, Sri Lanka, which is controlled by a Chinese company, with China also having intentions of negotiating a naval base in Sri Lanka; and • Maintaining its close allegiance with Pakistan, particularly in countering India, with reports of a naval base here too. Khurana (2008, p. 3) quotes You Ji, an expert on the Chinese navy, who says that China is employing a strategy of making its “presence felt through building a

6

L. Otto

credible naval presence”. Moreover, “there exist many uncertain factors in the security environment along China’s borders, especially in the maritime dimension”, which threaten the country’s economic development, which it deems to be dependent upon the sea (Qi 2006, p. 56). This explains why China feels it necessary to project power outward into the Indian Ocean and surrounding seas. China has complemented its String of Pearls with its One Belt One Road initiative – a plan to create overland linkages between the Eurasian hinterland, characterised by sometimes treacherous terrain, and the ocean – given an appreciation that land-based pathways also play an important role in accessing the seas (Brewster 2017, pp. 270–271). As such, the example of the String of Pearls illustrates quite clearly how the sea can also be factored into geostrategy, and be used to advance an array of interests of a particular state. This case demonstrates this on a reasonably grand scale, but the reality is that the sea can be a geostrategic space for states not projecting power to this magnitude, having implications for the smallest of littoral states. Even those that do not have coastlines may view the sea as an important space given that their goods must also reach port in order to be exported, and likewise rely on seaports for arriving imports. The battle for South Sudan’s access to the sea for the export of its oil resources is an apt example to show how non-littoral states can be impacted by sea-based geopolitics.

1.4 Maritime Security as a Field of Study Before coming to what maritime security is, it may be useful consider what security itself is first. Buzan (1983, pp. 4–5), perhaps the most renowned security scholar, classifies security as a contested concept, but notes that an underlying theme emerges when analysing the perspectives of the likes of Jervis, Bull, Ashley, Booth and Beaton; that is: that security bound to the level of states is not adequate. In later works, Buzan, along with Wæver and de Wilde (1998, p. 21), sees security in international relations as being tied to the traditions of power politics, with international security issues thus becoming such when they pose “an existential threat to a designated referent object (traditionally, but not necessarily, the state)”. They (Buzan et al. 1998, pp. 22–23) go on to examine the nature of an existential threat across various levels of analysis and sectors. Stone (2009, pp. 3–6) explains that Buzan offers three levels of analysis: individuals, states and international systems, and sees security threats emerging in five linked sectors: military, political, economic, societal and environmental. All of these concerns can coalesce at sea. Much as maritime security has, in practice, a history spanning hundreds of years, and much as people have theorised about the meaning and value of the sea to mankind, particularly the laws that should pertain to it, actual scholarship around maritime security itself and what that constitutes is relatively nascent. Germond (2015, p. 138) describes the expression as being one that is recent, gaining prominence in the 1990s and 2000s. Maritime security has, thus far, largely been understood from

1  Introducing Maritime Security: The Sea as a Geostrategic Space

7

realist and liberalist points of view, which see the sea as a theatre for power rivalries and projection, while other theoretical perspectives have had a lesser impact on debate around maritime security, but the concept itself remains new and contested (Bueger and Edmunds 2017, pp. 1295–1296). Till highlighted a need for clarity in what the study of Maritime Security would entail going forward, noting the challenge of this, given that the concept of maritime security entails a vast range of issues. Rahman (2009, p. 29) attempts to situate maritime security within broader concepts of security. He says that while maritime security may be seen to reflect wider conceptual debates on security, Security Studies literature does not confirm it as an independent dimension of security. Amirell (2016, pp. 284–285) makes a similar observation, arguing that Maritime Security studies has few academic institutions dedicated to it, does not have dedicated journals, and is not institutionalised as a field of study. Rahman (2009, p. 29) concludes that many established concepts of security may have maritime elements; for example, maritime environmental security, maritime border protection, comprehensive maritime security, and so on. But can maritime security not be defined in its own right? This is exactly the question that Christian Bueger sets out to answer in his now well-cited Marine Policy article. In this piece, Bueger (2015, pp. 159–160) describes maritime security as being a buzzword that has drawn attention to a new set of challenges and threats located in the maritime domain, for which support is rallied. In this context, one might argue that maritime security should simply be the absence of these threats. But, Bueger criticises this approach, considering it insufficient. He takes a similar view to proponents of ‘good order at sea’, which provides a positive end-state rather than a negative peace, but also does not clarify what good order should be or whose order it should be. Bueger’s article sets out to address the dearth of consensus by offering what Mudrić (2015, pp.  5–6) understands as being three underpinning frameworks from which to start better understanding maritime security. Indeed, Bueger (2015, pp. 160–161) uses semiotics, the securitisation framework, and security practice theory to establish a matrix in which maritime security relates four concepts to one another: the marine environment, economic development, national security, and human security. Within this he is able to situate what might be called policy objectives of marine safety, blue economy, sea power, and resilience. Further, it allows him to position numerous of the challenges broadly considered to fall under the umbrella of maritime security – indeed many of which are discussed in this volume – which fall in various locations relative to the four framing concepts he begins with. Bueger includes: accidents at sea, pollution, smuggling, terrorist acts, climate change, piracy, illegal, unreported and unregulated (IUU) fishing, arms proliferation, inter-­ state disputes, and human trafficking. This is illustrated below in Bueger’s Maritime Security matrix (Bueger 2015, p. 161) (Table 1.1). Following on from this Bueger and Edmunds (2017, pp. 1300–1301) continue Bueger’s earlier theorisation of security at sea, describing four characteristics of the maritime security agenda:

8

L. Otto

Table 1.1  Bueger’s Maritime Security Matrix

• one, the interconnected nature of maritime security challenges; • two, the liminality of maritime security  – that is, that most maritime security problems cannot be understood nor addressed without a consideration of their linkages to challenges on land; • three, the transnational nature of maritime security given that the sovereignty of the high seas is shared, with jurisdiction there being international in theory, but also varying depending on the given circumstances pertaining to a threat or incident; and • four, that, by extension, the maritime domain is essentially cross-jurisdictional. This  latter point is certainly also borne out in theory and evidence within this volume. It should also be noted that maritime security is not merely a concern for littoral states or the international community at large in terms of access to the sea as a common space, but is also of concern to landlocked states, given the transnational nature of threats to the maritime domain which also, at some point, meet with land. Moreover, access to sea ports for the purpose of trade is imperative for all nations. Amirell (2016, p. 284) suggests that Maritime Security is not an academic protodiscipline as yet, but it can be argued that maritime security studies may yet evolve into one. Since the time of his writing, more journals have emerged that deal more closely with maritime security, while, as Mudrić (2016, p. 6) notes, a number of academic research centres have also engaged in what he describes as the pioneering venture of defining this emerging field. Examples includes the University of Cardiff and the University of Coventry in the UK, the Maritime Security Programme at the Nanyang Technological University in Singapore, whereas in South Africa the University of Stellenbosch has also placed a clear research focus on maritime security. In fact, the work from scholars from several these institutions are included

1  Introducing Maritime Security: The Sea as a Geostrategic Space

9

in this volume. Moreover, as highlighted by Bueger (2015), maritime security continues to edge closer to the centre from the periphery of issues on both domestic and global agendas, as indicated by the flurry of maritime security strategies that have been developed over the last decade at a state-level for those such as the UK, the US, China, Japan and Brazil, as well as those of regional institutions including most regional economic communities in Africa, the African Union, and the European Union. It is evident that interest in matters relating to maritime security is growing among states, policy-makers, and academics alike, and that more work needs to be done to institutionalise Maritime Security as a field of study. Given the broad range of subjects that Maritime Security covers, it often draws together scholars and policy-­makers with convergent interests but different academic and institutional backgrounds. This volume is intended thus to contribute in some way to this institutionalisation, and act as an introductory and foundational text for those, wherever they may come from, interested in Maritime Security.

1.5 Conclusion The complexity, multi-disciplinarity, and wide-ranging importance of maritime security issues for stakeholders across levels is made clear in this volume. This introductory chapter has set out to designate the sea as a site of importance and to explore that importance, to explain maritime security as a concept, and contextualise the discussion around key challenges that follow in this volume. This chapter should thus have clarified that the sea has for hundreds of years been a site of geostrategic importance to which states have attached their ability to rise on the international stage. In the contemporary era, as globalisation has taken root, the world has become a smaller place, and many of the issues upon which states’ sustained development and security rely has become increasingly transnational in nature. States continue to use the sea to project their power, while for many their sea-based territories have become the next frontier in their economic development, and for others, such as small island developing states, their very conception of national security cannot be divorced from the sea. It can thus be argued that, while the sea has long held great political importance for states, this importance is increasingly brought closer to the centre from the periphery. This volume will explain why. The volume starts with Ken Findlay outlining how the Blue Economy can play a central role in states’ economic development, interrogating the link between maritime security and ocean development. It then moves to key challenges, where Mercedes Rosello details IUU fishing and associated fisheries crimes, which threaten traditional livelihoods as well as threatening the continued existence of certain sea life, thus imperilling local economies and food security. Carina Bruwer, in her chapter, looks at the smuggling of illicit goods, focusing in particular on heroin and ivory trafficking, demonstrating how traffickers use maritime infrastructure to their advantage. Amaha Senu explains irregular migration at sea, which has

10

L. Otto

become an issue of particular interest to states as the so-called migrant crisis has played out on the Mediterranean over the last several years. Senu, however, offers an insight to an understudied method of transit – stowing away. Leaza Jernberg and Lisa Otto then outline the differences between piracy and armed robbery at sea, using Southeast Asia as a case study to show how these threats play out in practice, and how they pose multifaceted threats to states and several industries. Victoria Mitchell explains maritime boundary disputes, looking at the issue from a legal perspective, also illuminating how this can pose challenges to cooperative maritime security. Polychronis Kapalidis details the ever-evolving threat of cybersecurity at sea and how vessels and maritime infrastructure may have their security threatened if their cyber defences are inadequate. Suzanne Graham, Lisa Otto and Adrienne Horn together examine maritime terrorism – a threat that played a key role in propelling interest in maritime security since the turn of the century. The volume then moves to means of addressing these challenges and considers the various actors involved in this. Timothy Walker emphasises the importance of multilateral cooperation in his chapter, bringing a focus on Africa. Francois Vreÿ and Mark Blaine explore the role of navies in maritime security and their continued importance even in an era that may, as has been explained earlier herein, be characterised by declining state-based sea power. Carolin Liss then looks at private actors, which have, also noted herein, become an important player in various ways, both as belligerent actors and as stakeholders in the provision of security. The volume then concludes with an examination of the salient issues described herein, a study of their interconnections, and a summary of the key take-away points presented across this volume, which is put forward by Lisa Otto and Anja Menzel.

References Amirell SE (2016) Global maritime security studies: the rise of a geopolitical are of policy and research. Secur J 29(2):276–289 Barron L (2018) Pentagon official says U.S. Can ‘take down’ man-made islands like those in the South China Sea. http://time.com/5298185/pentagon-kenneth-mckenzie-warning-south-chinasea-islands/. Accessed 24 Oct 2018 Brewster D (2017) Silk roads and strings of pearls: the strategic geography of China’s new pathways in the Indian Ocean. Geopolitics 22(2):269–291 Bueger C (2015) What is maritime security? Mar Policy 53:159–164 Bueger C, Edmunds T (2017) Beyond sea blindness: a new agenda for maritime security studies. Int Aff 93(6):1293–1311 Buzan B (1983) People, states and fear: the national security problem in international relations. University of North Carolina Press, Chapel Hill Buzan B, Wæver O, de Wilde J (1998) Security: a new framework for analysis. Lynne Rienner Publishers, Boulder China Power (2017) How much trade transits the South China Sea? https://chinapower.csis.org/ much-trade-transits-south-china-sea/. Accessed 24 Oct 2018 Dabas M (2017) Here is all you should know about ‘string of pearls’, China’s policy to encircle India. https://www.indiatimes.com/news/india/here-is-all-you-should-know-about-string-ofpearls-china-s-policy-to-encircle-india-324315.html. Accessed 24 Oct 2018

1  Introducing Maritime Security: The Sea as a Geostrategic Space

11

Germond B (2015) The maritime dimension of European security. Palgrave Macmillan, London Granieri RI (2015) What is geopolitics and why does it matter? Orbis 2015(Fall):491–504 Khurana GS (2008) China’s ‘string of pearls’ in the Indian Ocean and its security implications. Strateg Anal 32(1):1–39 Mudrić M (2015) Maritime security: editorial note. Croat Int Relat Rev XXII(75):5–7 Qi X (2006) Maritime geostrategy and the development of the Chinese navy in the early twenty-fist century. Naval War Coll Rev 59(4):47–63 Rahman C (2009) Concepts of maritime security: a strategic perspective on alternative visions for good order and security at sea, with policy implications for New Zealand. Discussion paper no. 07/09. Centre for Strategic Studies/Victoria University of Wellington, New Zealand/Wellington Rogers J (2010) To rule the waves: why a maritime geostrategy is needed to sustain European Union. Security Policy Brief, Egmont, the Royal Institute for International Relations, Brussels Roy N (2017) Fantasy or fiction? Marching of the dragon in the South China Sea. Asian Aff 48(2):257–270 Stone M (2009) Security according to Buzan: a comprehensive security analysis. Security discussion papers series 1, Spring 09. France, GEEST Van Rooyen F (2011) Africa and the geopolitics of the Indian Ocean. Occasional paper no. 78. South African Institute of International Affairs, Johannesburg

Chapter 2

Oceans and Blue Economies Ken P. Findlay

Abstract  Worldwide, nations and regions are increasingly advancing their oceans or blue economies to expand their economic growth and food and energy security through the growth of established marine sectors, the expansion of historically terrestrial sectors into the marine space, or as emergent sector technologies advance marine resource accessibility. Such ocean economy sectoral expansions are in many cases limited to the coastal or shallow shelf regions of a country’s exclusive economic zone (EEZ) resulting in considerable potential for inter-sectoral and / or sectoral-environmental conflict in these regions. Concurrent indirect pressures (e.g. climate change or ocean acidification) arising from increasing human resource consumption potentially further erode the function of ocean ecosystems which provide the ecosystem service foundations of many ocean economy goods and services. Ocean governance policy formulation requires trade-offs that are valuation dependent across the economic, social and environmental domains for the mitigation of both inter-sectoral and sectoral-environmental conflicts and sustainable and equitable resource use encapsulated within the 17 UN Sustainable Development Goals (SDGs). Maritime safety and security are critical within such governance frameworks and are both enablers of the blue economy (through asset and revenue protection) and a potential sectoral source of economic development and growth within blue economies. Keywords  Ocean economy · Blue economy · Sustainable development · Ocean governance

K. P. Findlay (*) Cape Peninsula University of Technology, Cape Town, South Africa e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Otto (ed.), Global Challenges in Maritime Security, Advanced Sciences and Technologies for Security Applications, https://doi.org/10.1007/978-3-030-34630-0_2

13

14

K. P. Findlay

2.1 Introduction The ocean and coastal realm has afforded human populations with extensive market and non-market goods and service benefits for centuries (Kathijotes 2013; Kildow and Mcilgorm 2010; Park and Kildow 2014; Pinto et al. 2015; White et al. 2012), including direct or indirect economic and ecosystem and environmental services. Attri (2018) places the value of the global ocean assets at US$24 trillion, whilst other recent estimates of the ocean’s contribution to the global economy have ranged from US$1.5 trillion to US$3 trillion a year, or about 3–5% of all economic activity in the world (Global Oceans Commission 2014; Hoegh-Guldberg 2015; OECD 2016). However, it should be noted that not all ocean economic or ecosystem service values are estimated in these totals (Colgan 2003). Many ocean-bounded countries have estimated and released national, regional, local or sectoral accounts for their respective ‘ocean economy’ and these are most often undertaken for monitoring the state of the ocean economy and associated industries and to illustrate the importance of the utilised resources in the justification of ocean or coastal policy development and management (Kildow and Mcilgorm 2010). Such value estimations are often taken as the gross domestic product (GDP) contribution derived from ocean-associated economic sectors within a particular economy (Colgan 2013, 2018), a rapidly evolving field of research at national levels. However, there are marked difficulties in comparing such estimates across countries or regions as the definitions, geographic ranges, classification standards and scopes often differ substantially by nation or region (Kildow and Mcilgorm 2010; Park and Kildow 2014). Furthermore, identification of the ocean-based activities within economies, and the separation of these from non-ocean-based activities can be particularly challenging. For example, many authors (e.g. Colgan 2013; Doyle 2018; Morrissey and O’donoghue 2012, 2013; Murillas-Maza et al. 2011; Pugh and Skinner 1996; Zhang and Sun 2018; Zhao et al. 2014) include only the market components within their valuations of national ‘oceans economies’ (Park and Kildow 2014). This results in the exclusion of certain valuable non-market goods and services (e.g. some direct non-market uses such as recreation or important indirect use or non-use values) within their ocean economy estimate. Added to this, the extent of inclusion of certain associated upstream and downstream market sectors (for example, the extent of inclusion of seafood processing or oil and gas refining) differ across national estimates. Lastly, the geographical extent of ocean activity or influence may vary considerably within the models, with certain nations including coastal economies within their ocean economy valuations (Hosking et al. 2014). Oceans have historically contributed to human endeavour and global economies, and there is a growing belief that they now provide significant opportunities for future economic growth (e.g. Attri 2018; Bari 2017; Bennett 2018; Colgan 2018; Costanza et  al. 1998; Cristiani 2017; Dziura and Cernota 2015; Findlay 2018; Kaczynski 2011; Kathijotes 2013; Loomis 2015; Michel 2016; Mohanty et al. 2015; Spamer 2015). Such economic potential of the ocean space means that many coastal nations and regions are proposing increases in their ocean economy activities to foster national economic growth, to advance food and energy and other resource

2  Oceans and Blue Economies

15

security and to create job opportunities for their populations, in what are increasingly being termed oceans economies or ‘blue economies’. Such ocean economy advancement may be both within a country’s jurisdiction regions (in their Coastal Regions, Territorial Seas, EEZ and existing or future potential Extended Continental Shelf Claim Regions) or increasingly in Areas Beyond National Jurisdiction (ABNJ), in the high seas that often exclude adequate governance capacity, but result in economic benefits in home ports. Expansions in oceans economies include: a) the growth of established ‘marine industry’ sectors (e.g. fisheries); b) the extension of historically terrestrial industry sectors into the marine and maritime realm (e.g. agriculture to aquaculture); or c) expansions arising from the advancement of ocean technologies extending the accessibility of marine resources (e.g. technological advances in deep sea mining allowing access to previously inaccessible areas) (see Findlay 2018). Associated with such oceans economy expansions are increases in potential risk in ocean conflicts in two domains, namely (a) conflict between human-use sectors and the ocean environment (Colgan 2003); and (b) conflict between sectors as they vie for ocean access (Jones et al. 2016). Concurrently, indirect pressures placed on ocean systems arising from humans’ resource consumption (such as the pressures of climate change or ocean acidification arising from carbon based energy consumption) are potentially further eroding the functional basis of crucial ocean ecosystems (Brierley and Kingsford 2009; Côté and Darling 2010; Grimm et  al. 2016; Potts et al. 2015; Sherman 2014; Techera 2018)). Importantly, such ecosystems provide the ecosystem support service foundations of many ocean economy goods and services (Potschin and Haines-Young 2011a, b), and erosion of ecosystem function has the potential to compromise future delivery of crucial ecosystem services.

2.2 Background to the Terms Ocean Economy, ‘Blue Economy’ and ‘Ocean Governance’ The concepts of ocean economy or blue economy are relatively recent as noted by the increase in the use of the terms after the United Nations Conference on Sustainable Development held in Rio de Janeiro (‘Rio+20’) in 2012 (Smith-­Godfrey 2016). The relatively recent global expansion of ocean economies and their associated management and regulatory frameworks have resulted in a considerable increase in the literature (from peer reviewed to popular) in these arenas in a relatively short period (see Silver et al. 2015; Smith-Godfrey 2016). Associated with this is a rapid diversification of the typologies and terminologies within the ocean economy and ocean governance areas as different authors use terms in different manners. The ocean economy of a country may be referenced in many different ways including as ocean economy, ‘ocean industry’, ‘ocean sector’, ‘marine economy’, marine industry, ‘marine activity’, or ‘maritime economy’ or ‘maritime sector’ (Park and Kildow 2014). Colgan (2003) defines the ocean economy as “that

16

K. P. Findlay

proportion of the economy which relies on the ocean as an input to the production process or which, by virtue of geographical location, takes place on or under the ocean”. Other definitions (Costanza et al. 1997; MEA 2005) encapsulate the basket of all final market and non-market goods and services that humans derive from the ocean system. Alternatively, the so-called blue economy concept is poorly defined, with confusion arising through multiple uses of the term or similar terms including the following instances: 1. Kim and Mauborgne (2005) proposed a Blue Ocean Strategy relating to uncontested market competitiveness and business strategies that do not pertain exclusively to the ocean realm. 2. Gunther Pauli’s book The Blue Economy: 10 years – 100 innovations – 100 million jobs (Pauli 2010) advocates innovative solutions to sustainable development, including the circular economy concept and the fostering of entrepreneurship to create sustainability (Thomas and Pet Soede 2013). Like the Blue Ocean Strategy of Kim and Mauborgne (2005), Pauli’s (2010) concept however is not limited to the ocean realm and Silver et  al. (2015) noted that discussions on global oceans governance at the United Nations Conference on Sustainable Development (UNCSD) Rio+20 (see below) did not use the term blue economy through the influence of Pauli’s concept. Despite the scope of Pauli’s (2010) definition extending beyond the scope of the ocean realm, the circular economy aspects therein do align directly with the sustainability goals of blue or ‘green economies’. 3. The UNCSD Rio+20 Conference was held in Rio de Janeiro, Brazil, over the period 20–22 June 2012, to advance ‘green economy’ concept and policies, in the context of sustainable development and poverty eradication, and the development of institutional frameworks for sustainable development. Arguments were presented during the lead-up to the Rio+20 Conference preparatory process by coastal nations (particularly the Pacific Small Island Developing States (SIDS)) for the ocean centred blue economy approaches to be more prominently addressed at this meeting. This approach was included in the United Nations Environment Programme Green Economy in a Blue World Report (UNEP et al. 2012) which introduced sustainability in the ocean economy sectors. Following on from this meeting, the Xiamen Declaration of the Asia Pacific Economic Co-­ operation (APEC) meeting of 2014 focused on the development of blue economy initiatives (Mohanty 2018; Mohanty et al. 2015). 4. WWF (2015) noted that certain authors refer to the blue economy as any economic activity in the maritime sector, whether sustainable (and aligned with green economy principles) or not. Silver et al. (2015) and Smith-Godfrey (2016) showed that although the use of the term blue economy increased in the run-up to Rio + 20 UNCSD, there was no consensus on its meaning at the meeting. Consequently, the pertinent question on the blue economy term is whether it specifically aligns with green economy (to include sustainable development and poverty eradication as suggested by the ‘Pacific SIDS’). If so, the term sustainable blue economy (as used for example in the

2  Oceans and Blue Economies

17

Sustainable Blue Economy Conference held in Nairobi, Kenya, in November 2018) would be tautological. Alternatively, blue economy has been equated directly with ocean economy so that the term sustainable blue economy would equate with sustainable ocean economy. Recently, there have been a number of documents that directly imply that blue economy mirrors the green economy of the Rio+20 UNCSD. For example: 1. The Economist Intelligence Unit (EIU 2015) summarise the concept and objectives of blue economy as synonymous to “greening of the ocean economy”. In their Report The Blue Economy: Growth, Opportunity and a Sustainable Ocean Economy, the EIU links the blue economy with “sustainable ocean economy” by defining a blue economy as “a sustainable ocean economy emerges when economic activity is in balance with the long term capacity of ocean ecosystems to support this activity and remain resilient and healthy” (Economist Intelligence Unit 2015). 2. Thomas and Pet Soede (2013) framed a sustainable approach to natural resource-­ use, emphasising the importance of the marine environment to the livelihoods and economies of the Coral Triangle (in the western Pacific Ocean) and termed this a “Green Economy, a Green Economy in a Blue or Marine World, or simply Blue Economy” approach. The authors of this report noted that this approach focuses on blue economy to incorporate both a green economy in a blue or marine world and also the blue economy concept in the Pauli (2010) sense of advocating innovative solutions to sustainable development (Thomas and Pet Soede 2013). 3. Patil et al. (2016) note that the mounting threats to the ocean environment posed by increasing ocean economies have given rise to a new concept or framework to reduce the risks: the transition of the current ocean economy to a blue economy with ‘blue growth.’ Their vision foresees an increase in ocean resource-use in ways that protect its resources and ecological integrity, so that economic activities are balanced to promote a sustainable, healthy ocean to the benefit of humans. Hadjimichael (2018) reported that the term ‘blue growth’ has become a recent buzzword that describes a new era of the seas recognised as economic drivers, and refers to the World Bank definition of the blue economy as “the sustainable use of ocean resources for economic growth, improved livelihoods and jobs, and ocean ecosystem health”. Blue growth has been described (Burgess et al. 2018) as “the newest of many recent calls for more holistic management of complex marine socio-ecological systems” and Bennett (2018) noted that the current lack of responsive ecological governance often hinders progress in sustainable development of such interdependent social and ecological systems. Resource protection consequently becomes a critical component of sustainable ocean governance. 4. The resource-use approach advocated in the Africa’s Blue Economy: A policy handbook (The United Nations Economic Commission for Africa (UNECA) 2016) is premised in the sustainable use, management and conservation of aquatic and marine ecosystems and associated resources. The United Nations

18

K. P. Findlay

Economic Commission for Africa (UNECA 2016) noted that the approach “builds on principles of equity, low carbon footprint, resource efficiency, social inclusion and broad-based development, with the jobs agenda at the centre of it all”, is “anchored on strong regional cooperation and integration, considers structural transformation as an imperative for Africa’s development and a­ dvocates for a complete departure from enclave development models” and “situates the aquatic and marine economies as part of integrated ecosystem services based on the harvesting of living and non-living resources, benefitting both costal, island states and landlocked countries” (UNECA 2016). The overarching vision of the African Union’s (AU) 2050 African Integrated Maritime Strategy (AIMS) is to foster increased wealth creation from Africa’s oceans and seas (and inland waters) by developing a sustainable thriving blue economy in a secure and environmentally sustainable manner (AU 2012). Interestingly, the inclusion or exclusion of inland water bodies within blue economy frameworks varies by region. Whilst many blue economy frameworks include only those waters and associated resources below the high tide mark, the AU for example in the AIMS (AU 2012) integrates the use of seas and oceans, coasts, lakes, rivers, and underground water for economic purposes. 5. Kelleher (2015) in his report Building the Blue Economy in the WIO Region to the 8th Conference of Parties Meeting for the Nairobi Convention, Seychelles, 2015, defines the blue economy to be “marine-based, environmentally sustainable economic growth and social wellbeing”, and notes that by definition the blue economy is a sustainable paradigm that is considered to be largely equivalent to the green economy applied to the oceans and the related coastal areas. 6. The United Nations (UN) Blue Economy Concept Paper defines the blue economy paradigm as “a sustainable development framework for developing countries addressing equity in access to, development of and the sharing of benefits from marine resources”. The authors note further that the blue economy parallels the Rio+20 Green Economy concept of “improved human well-being and social equity, while significantly reducing environmental risks and ecological scarcities”. The Rio+20 UNCSD further identified the oceans as one of seven priority areas for sustainable development and called for immediate action on depleting fish stocks, destruction of habitats, alien invasive species, conserving marine biodiversity, ocean acidification and climate change (Campbell et al. 2013). 7. The Indian Ocean Rim Association (IORA) defines the blue economy as the integration of ocean economy development with the principles of social inclusion, environmental sustainability and innovative, dynamic business models, and has recently established an IORA Working Group on the Blue Economy (WGBE). 8. Colgan (2018), while noting that the term blue economy has no universally accepted and precise definition, describes it as “an integrated approach to economic development and environmental sustainability that is based on the resources of the oceans and coasts.”

2  Oceans and Blue Economies

19

So while there is no widely agreed definition of blue economy, numerous authors generally note that accelerated expansions of ocean economies cannot continue along past exploitative avenues, and sustainable and equitable or socially inclusive frameworks (including robust governance agendas) are imperative in their future policies and management (Berkes et al. 2006; Duda and Sherman 2002; Ruckelshaus et al. 2008). Human resource uses are fixed within complex, social-ecological systems (SESs) (Ostrom 2009). Burgess et  al. (2018) noted that the management of complex ocean systems includes the trade-offs of competing stakeholder objectives, resulting in potential conflict. However, the dominant paradigm in the management of oceans economies (or in fact in any natural resource use management) remains the alleviation of the conflict that arises between the uses of the particular resources and the preservation of those resources to ensure the sustainability of future use. Informed decision-­ making governance frameworks allow the balance of environmental protection with beneficial use, minimises conflict between resource users to ensure equitable access, and ensures the compliance monitoring and enforcement of policies and management frameworks to ensure the security of the resources on which ocean resource uses (across provisioning, regulator and cultural ecosystem services are based). Marine and maritime security consequently become crucial elements within adequate ocean governance frameworks, particularly in cases where resources span national boundaries so that they are share between nations or extend into ABNJ. Adequate ocean governance is key to the sustainable utilisation of ocean resources (Larik 2017; Van Der Geest 2017), and sustainability approaches require society to co-operate within governance systems. However, there appears a poor agreement in the literature as to what governance comprises (Turton et al. 2007), with the word used to describe a variety of meanings ranging from governance as process, structure, systems of values or a specific outcome or product. The sustainable development approach put forward within blue economy models is under-­ pinned by the interplay of the three nested economic, societal and environmental domains (Ostrom 2009), with economies nested within social systems that lie within and often dependent on functional environments. Falkenmark’s (in Turton et  al. 2007) ‘Trialogue’ governance model integrates government, society and science where government includes rule-making, rule application and implementation, and rule adjudication; society centres on the interplay of the economy, society and the environment; and science centres on the empirical knowledge that underpins the extension to policy. Although the science and government components could be argued to be part of society, the model identifies the need for partnerships between these for effective management. The interplay between the three economic, social and environmental domains within ocean sustainability means that environmental and ecological governance frameworks are of particular importance within socio-ecological systems (SESs) that are complex, heterogeneous, dynamic, and prone to nonlinear and often abrupt changes. From an ecosystem and associated ecosystem services perspective, the integration of these three dimensions are critical in governance approaches that aim

20

K. P. Findlay

to achieve long-term ecosystem health and functioning. These in turn provide the ecosystem services on which people rely (Costanza et al. 1997, 2011; Guerry et al. 2012; Kildow and Mcilgorm 2010; MEA 2005; Naidoo et al. 2008; Palumbi et al. 2009; Tallis et al. 2012; TEEB 2010). The basket of goods and service benefits that humans derive from ocean systems can be comprehensively described through such ecosystem service models. Defined as “the benefits of nature to households, communities, and economies” (Boyd and Banzhaf 2007) and “the benefits people obtain from ecosystems” (MEA 2005), ecosystem services may be categorised (Costanza et al. 1997; De Groot et al. 2012; Potschin and Haines-Young 2011a, b; Potschin and Haines-Young 2013) as provisioning, regulatory or cultural services. Ecosystem function (equated to system health and integrity) allows for the supporting ecosystem services, which drive these regulating, provisioning and cultural ecosystem services that are both renewable, and of crucial importance for human survival and well-being. The ecosystem governance definition of (Turton et al. 2007) as a process of informed decision-making that enables trade-offs between competing resource users so as to balance environmental protection with beneficial use in such a way as to mitigate conflict, enhance equity, ensure sustainability and allow accountability.

This appears inclusive of the governance requirements within the ecosystem service aspects of the sustainable ocean economy/blue economy domain. Humans however also derive numerous benefits from the ocean environment that are not dependent on functional ecosystems and such ‘environmental services’ are here defined as those providing benefits that are not wholly dependent of functional ecosystem support services (consider for example ocean mining) and which are often non-renewable. Such “environmental service” provisions often however have the potential to impact system health and integrity, and therefore the provision of further ecosystem services. Ecological infrastructure and systems are recognised as underlying and assets, which support the more tangible produced capital (including machinery and built capital) and intangible capital (skills and expertise with which labour capital is manifested). A blue governance concept needs to emphasise the connection between the ocean’s ecological systems and the human activity that takes place in the ocean economy recognising that whilst only some activities in the ocean economy depend on the underlying ecological systems (as natural capital), nearly all activities have some potential to degrade them. In fact, Cavanagh et al. (2016) suggested that many of the increasing challenges facing marine ecosystems, from changes in physico-­ chemical systems to biodiversity losses arise through inadequate ocean governance so that biodiversity and ecosystem resilience and associated social resilience (arising through ecosystem services) hinges on governance challenges. Bennett (2018) noted that the current lack of responsive ecological governance often hinders progress in sustainable development of interdependent social and ecological systems. Security of resources and resource use to ensure sustainability and inclusivity in resource-use access within blue economies is largely achieved through the regulatory approaches within government’s mandate for rule making, rule implementation and rule adjudication. Marine and maritime security, including marine and maritime domain awareness, consequently become critical tools in the ensuring of resource

2  Oceans and Blue Economies

21

sustainability and equitable accessibility to resource use. Such sustainability and accessibility are often intertwined in complex social ecological systems, ensuring the need for social sciences within informed governance.

2.3 Maritime Safety and Security within Sustainable Ocean Economy / Blue Economy Governance Processes Ocean economic development is strongly linked to maritime safety and maritime security (Voyer et  al. 2018), which are often defined in relation to perceived or potential threats in the maritime domain (Vreÿ 2014). Such threats include boundary disputes, terrorism, piracy, human, narcotic or illicit goods trafficking, arms trafficking, illegal fishing and other environmental crimes, or maritime accidents and disasters. Colgan (2018) noted that the safety and security services are essential to the adequate functioning of any economy, whilst Voyer et al. (2018) reported that maritime security is both an enabler of the blue economy (through economic asset and revenue protection) and a source of economic development and growth as a sector within blue economies. Ocean management strategies to ensure sustainability and social inclusion require both the enforcement and compliance monitoring of laws and regulations and a secure maritime environment, which provides the precondition for managing marine resources. Turton et  al. (2007) in advancing Fallenmark’s ‘Trialogue model’ of ecosystem governance, accent the trias politicas role of governments in the development of legislation and regulations, the implementation, compliance monitoring and enforcement of regulations, and the associated adjudication processes. Colgan (2018) reports these as the setting of appropriate limits, the development of policies to ensure compliance within such limits and the enforcement of such policies and identifies information, co-ordination and participation as central to successful management. The question then remains as to how to achieve sustainable and equitable governance across the three social, economic and environmental domains, particularly where social equity and resource use clashes with resource sustainability and require increased regulation compliance monitoring and enforcement. Sustainable ocean governance has been advanced in a number of different forms, including for example, Integrated Coastal and Ocean Management (ICOM or alternatively, Integrated Coastal Zone Management (ICZM), or Integrated Coastal and Marine Area Management (IMCAM)), all of which generally have the Ecosystem Approach (EA), the Ecosystem Based Approach (EBA) or Ecosystem Based Management (EBM), at their core. A typical definition of EBM acknowledges the complexity and interspecies relationship within ecological systems, but definitions also account for social and governance objectives, with the latter aspects broadening the range of definitions. The Ecosystem Approach is defined by the Convention on Biological Diversity (CBD) as “a strategy for the integrated management of land, water, and living resources that promotes conservation and sustainable use in an equitable way”. The Convention for the Conservation of Antarctic Marine Living Resources (2001),

22

K. P. Findlay

narrowly describes EA as management taking into account “all the delicate and complex relationships between organisms (of all sizes) and physical processes (such as currents and sea temperature) that constitute the Antarctic marine ecosystem”. Long et al. (2015) report that EBM is generally viewed as a strategy that manages the human activities influencing ecosystems, considering such impacts in management decisions. Importantly, the EA considers the functional relationships and processes within ecosystems, the flows from systems to human benefits as ecosystem services, the use of adaptive management practices in policy cycles, management actions at multiple scales, and inter-sectoral cooperation within ecosystem management. Underpinning the process are the needs for balancing resources and resource use of ocean economies through adequate governance approaches that include domain awareness in both the marine biophysical realm and the maritime human resource-use realm. Overarching ocean governance processes that incorporate the sustainability and equity considerations of a blue economy model can be viewed as a series of sequential steps towards the development of effective policies capable of adapting to changes and opportunities as these arise. It should be noted that such governance instruments are often required across multi-sectoral use (and associated authority aspects) in that in many countries ocean use is highly sectoral with government departments / authorities tasked with different ocean management responsibilities (and each often with their own sectoral mandates). These sequential steps include the following aspects: 1. The development of knowledge economies, ocean systems monitoring and research. Ocean governance as either a process or a product requires informed decision-making that in turn depends on relevant information derived through dedicated ocean system monitoring and research programmes across each of the environmental (and ecological) science, social science and economic science domains. Integral within these programmes are a) the resources and human and technological capacity (including increasingly remote-sensing and robotic technological capacity in fourth industrial revolution backdrops) to undertake the required research and monitoring; b) the needs for data systems that can accommodate and process high volumes of data; and c) the capacity to translate data to information to knowledge to wisdom. It is critical that such knowledge creation frameworks go beyond empirical academic knowledge and extend to experiential and indigenous knowledge systems. 2. Standards Development. The use of the knowledge and wisdom derived from adequate research and monitoring to develop standards and metrics against which decisions can be made. Such standards and metrics may, for example, relate to biophysical criteria standards, ecological and conservation status assessments or social criteria. 3. Marine Spatial Planning (MSP). MSP can be viewed as a means to a rational organisation of the use of marine space and the interactions between its users, so as to both balance developmental demands with the need to protect the environment, and to achieve social and economic objectives in an open and planned way (Douvere and Ehler 2009). Within area-based EBM frameworks that primarily

2  Oceans and Blue Economies

23

focus on specific ecosystems and the range of activities impacting them within particular space, MSP aims at “analysing three-dimensional and highly dynamic marine spaces and allocation of these to specific users so as to achieve the ecological, economic, and social objectives that are usually specified through the political process” (Douvere 2008). However, MSP incorporates processes that range from simple mapping to identify conflicts to more comprehensive planning processes that require trade-off valuations across domains and several shortcomings in MSP case studies have been identified (see Jones et al. 2016). 4. Representative Marine Protected Area (MPA) allocation. It is particularly important that representative systems are protected so as to a) advance the conservation of biodiversity and ecosystems leading to potentially enhanced ecosystem services values in SESs; b) ensure the potential role as benchmarks of the impacts of anthropogenic stressors in unprotected areas; c) enhance ecosystem resilience to combat indirect global influences and impacts; and d) ensure the safeguarding against scientific uncertainty and management failure. Representative MPAs can be defined as “any area of the intertidal or sub-tidal terrain, together with its overlying water and associated flora, fauna, historical, and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment” (Kelleher 1996) or as defined by the IUCN “a clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values” (Day et al. 2012). Through protection of both species and their habitats, MPAs advance ecosystem-based approaches to both biodiversity conservation and extractive management, as distinct from the historic and more traditional focus on single species management practices (Glenn et al. 2010; Halpern et al. 2010; Kenchington and Day 2011; Lubchenco et al. 2003). Recent MPA advancement has been boosted by international conservation targets including those resulting from the World Summit on Sustainable Development; the Convention on Biological Diversity and the CBD Aichi Biodiversity Targets, particularly Target 11 (Humphreys and Herbert 2018). 5. Legislation and regulation, compliance monitoring and enforcement including marine domain awareness Surveillance and remote sensing. Regardless of the governance regulations, enforcement and compliance monitoring remains a critical aspect of governance structures. The goods and service benefits of oceans or blue economies arise as both rival and non-rival excludable or non-excludable goods so that competition for access to common pool resources means that they are susceptible to overharvesting and destruction. However, such over-use as embodied in (Hardin 1968) Hardin’s ‘tragedy of the commons’ has been counter-­ argued in that communities manage shared natural resources through the establishment of ‘self-governance’ regulations that limit overuse (see Ostrom 1990). It is however imperative that adequate monitoring and governance instruments are in place in offshore (and relatively invisible) resource uses. Inherent in the compliance monitoring and enforcement are the aspects of safety and security in marine and maritime domain awareness to limit value loss across a range of activities in the ocean domain.

24

K. P. Findlay

6. Capacity Development. Ocean governance is critically dependent on both technological and human capacity across the range of the above disciplines, and Attri (2018) has identified that capacity development in ocean governance in many developing countries is weak. 7. Adaptive Management and Policy Cycles. Integral within ocean governance processes is the need for review and adaptive management within policy cycles. Such adaptive management is particularly important in light of ocean change (e.g. increasing global temperature, altered regional weather patterns, rising sea levels, acidifying oceans, altered nutrient loads and altered ocean circulation) manifested through the human impacts of climate change, ocean acidification, unsustainable extraction, habitat modification or pollution loading (Brierley and Kingsford 2009).

2.4 Case Study: South Africa’s Operation Phakisa’s ‘Unlocking the Ocean Economy’ – Oceans Phakisa South Africa’s National Development Plan Vision 2030 (NDP 2030) is the country’s socio-economic development blueprint aimed at eliminating poverty and reducing inequality in the country by 2030 (Findlay and Bohler-Muller 2018). Central to this plan are the needs to address the past historic injustices through poverty alleviation, employment opportunity creation, and re-distribution of the access to resources and assets. In 2014, the South African Government initiated Operation Phakisa (with Phakisa meaning ‘to hurry’ in South Africa’s Sesotho language), an initiative designed to accelerate the implementation of solutions to critical delivery issues identified in the NDP 2030 (Potgieter 2018). The first of the Operation Phakisa initiatives, the ‘Operation Phakisa: Unlocking the Economic Potential of South Africa’s Oceans’ (hereafter referred to as ‘Oceans Phakisa’) was launched in 2014. The expected value and job creation potential of nine sectoral areas were initially reviewed to identify key priorities for the advancement of South Africa’s ocean economy, including marine transport and manufacturing, tourism, offshore oil and gas, construction, renewable energy, fisheries and aquaculture, communication, desalination and marine protection services and ocean governance. This review process identified that the South Africa’s ocean economy GDP contribution in 2010 of approximately 54 billion ZAR could be expanded to a between 129 and 177 billion ZAR contribution to GDP with an associated creation of almost 700,000 direct jobs by 2033 (Findlay and Bohler-Muller 2018). This process identified six of these sectors as delivery areas, each of which are mandated to a particular government department including marine transport and manufacturing (Department of Transport), offshore oil and gas (Department of Mineral Resources); aquaculture (Department of Agriculture, Forestry and Fisheries); marine protection services and ocean governance (Department of Environmental Affairs); small

2  Oceans and Blue Economies

25

harbours development (Department of Public Works); and coastal and marine tourism (Department of Tourism). Two further enabler areas were identified, namely skills development and training (mandated to the Department of Higher Education and Training) and science, research and technology (mandated to the Department of Science and Technology) (Findlay 2018). Integral in the Oceans Phakisa process is the marine protection services and ocean governance (MPS&G) delivery area, which although not an industry sector per se, plays an important role in the overall ocean management of the initiative. Cognisant of South Africa’s almost 3,000  km extent of the coastline and some 1.5 million square km of EEZ area, the MPS&G delivery area aims at the implementation of “an overarching, integrated ocean governance framework for sustainable growth of the ocean economy that will maximise socio-economic benefits while ensuring adequate ocean environmental protection within the next five years” (OP 2014). Operation Phakisa is based on the Malaysian Government’s Big Fast Results methodology – an eight-step process resulting in detailed plans to ensure successful implementation and effective monitoring of national priorities and the fast-tracking delivery thereof. This process initiates with a ‘lab’ identifying priority areas as initiatives and the MPS&G Lab identified the following ten during their initial lab in 2014 (OP 2015): • The MPS&G initiative one proposes the oversight of the Oceans Phakisa Programme by an Oceans Secretariat with support from the Department of Environmental Affairs, the Department of Agriculture, Forestry and Fisheries and the Department of Science and Technology, to counter (like elsewhere in the world) the current highly siloed nature of ocean governance in South Africa). • The MPS&G initiatives two and three call for a review and enhancement of ocean-related legislation and the development of integrated ocean legislation for South Africa. • The MPS&G initiative four proposes accelerated capacity-building development in ocean governance including in marine spatial planning, given the relative scarcity of these skills in South Africa. Such capacity development is mandated to the enabler Department of Higher Education and Training (DHET) and the South African International Maritime Institute. • MPS&G initiative five is aimed at the advancement of an enhanced and coordinated compliance monitoring and enforcement programme to combat illegal and unregulated extractive activities, pollution, inappropriate habitat modification or other conflicts that could significantly impact marine resource and their uses (leading to potential economic and employment losses). • The MPS&G initiative six calls for the development of a national ocean and coastal information system and an associated extension of earth observation capacity. This is being developed as a National Oceans and Coasts Information Management System (National – OCIMS) and associated earth observation technology for both environmental (advance warning systems) and compliance and MDA.

26

K. P. Findlay

• Initiative seven of the MPS&G Lab recommended that a national water quality monitoring programme be established to both monitor coastal water quality as the ocean economy grows, and develop water quality standards. • Noting that marine resources and resource-use play a critical role in the economy and welfare of many South Africans and that at 0.46% of the EEZ that too little of the South African ocean space is protected, Initiative eight of the MPS&G Lab recommended the establishment of a representative Marine Protected Area (MPA) network targeting a modest 5% of mainland South Africa’s EEZ. This targeting is aimed to be increased to 10% by 2020 so that South Africa can meet its obligations in respect of the Aichi targets of the CBD. • The growth of the OP-OE into a sustainable blue economy model requires a discovery, research and monitoring programme in South Africa’s marine domain (under Initiative nine of the MPS&G Lab) which is to result in the required data to enable effective marine spatial planning and the establishment of a representative MPA network, and • Finally, the MPS&G Lab identified that there is no overall system to guide marine spatial planning (MSP) in South Africa and Initiative ten identifies the need for a national MSP framework, three regional (sub-national) frameworks (the west, south and east coasts) and sub-regional marine spatial plans. Not only is there a need to bolster marine and maritime safety and security (and associated marine domain awareness) within the South Africa’s national EEZs (which include both the mainland and the sub-Antarctic Prince Edward Islands EEZs) with the Oceans Phakisa expansion (as identified within the maritime protection services and governance delivery area), but there is also a need for South Africa to play a role in the security of regional ocean resources. Both South Africa’s prominence at the southern tip of Africa (and the bordering on three ocean systems, namely the Benguela System in the Southeast Atlantic Ocean, the Agulhas Current System in the southwest Indian Ocean and the Southern Ocean) and the country’s relatively advanced maritime infrastructure places unique demands on the country for the provision of international maritime safety, security and governance on a regional basis which in turn, requires significant foreign policy frameworks and plans. Safety and security threats in the Southern African sub-region need to be managed at international, regional and national levels. Governance instruments pertaining to maritime safety and security in the in the sub-region need to contend with three main ‘threat’ areas. These are a) safety aspects relating to maritime accidents and disasters (the risk of which may increase as economic sectors expand), b) security aspects relating to acts of terrorism, piracy, robbery or trafficking (including human, narcotic or illicit goods or arms trafficking), and c) illegal, unreported or unregulated (IUU) resource-use (e.g. IUU fishing) or other environmental crimes including for example, dumping at sea. Oceans or blue economies are largely accounted, managed and governed at national levels. However, the porosity of national ocean boundaries (at human sectoral, biological and physical oceanographic levels), the dynamic nature of ocean fluxes and the often migratory and shared transboundary nature of ocean resources means that the

2  Oceans and Blue Economies

27

safeguarding of oceans or blue economies, their associated resources and their human participants requires international and interregional collaboration and co-­ operation. Policy frameworks for such governance instruments can be found at: (a) continental (e.g. AIMS 2050 or the Lome African Charter on Maritime Security and Safety and Development in Africa (Ntola and Vrancken 2018), (b) regional (e.g. the UNEP Regional Seas Programme, Nairobi Convention or Regional Economic Community levels such as the Southern African Development Community) or (c) national (e.g. domestic frameworks within EEZs such as South Africa’s Oceans Phakisa programme) levels. Imperative within these hierarchical level frameworks are the needs for continued integration across the international, regional and national levels and collaboration across member nations to ensure the safeguarding and security of economic, social and environmental assets, infrastructure and associated goods and service benefits.

References Attri VN (2018) IORA, the blue economy and ocean governance. In: maritime governance and South Asia. Security and Sustainable Development in the Indian Ocean, Trade, pp 141–163 Attri VN (2018) The blue economy and the theory of paradigm shifts. In: Attri VN, Bohler-Muller N (eds) The blue economy handbook of the Indian ocean region. Africa Institute of South Africa, Pretoria, pp 15–37 AU (2012) Africa’s Integrated Maritime Strategy (2050 AIM strategy). African Union, Addis Ababa Bari A (2017) Our oceans and the blue economy: opportunities and challenges. Procedia Eng 194:5–11 Bennett NJ (2018) Navigating a just and inclusive path towards sustainable oceans. Mar Policy 97:139–146 Berkes F, Hughes TP, Steneck RS et al (2006) Ecology. Globalization, roving bandits, and marine resources. Science 311:1557–1558 Boyd J, Banzhaf S (2007) What are ecosystem services? The need for standardized environmental accounting units. Ecol Econ 63:616–626 Brierley AS, Kingsford MJ (2009) Impacts of climate change review on marine organisms and ecosystems. Curr Biol 19:602–614 Burgess MG, Clemence M, Mcdermott GR et al (2018) Five rules for pragmatic blue growth. Mar Policy 87:331–339 Campbell LM, Gray NJ, Fairbanks LW et al (2013) Oceans at Rio + 20. Conserv Lett 6:439–447 Cavanagh RD, Broszeit S, Pilling GM et  al (2016) Valuing biodiversity and ecosystem services: a useful way to manage and conserve marine resources? Proceedings. Biol Sci 283(1844):2016–1635 Colgan CS (2003) Measurement of the ocean and coastal economy: theory and methods. In: Digital Commons CftBE (ed) National ocean economics program winter, 12-1-2003. Center for the Blue Economy Colgan CS (2013) The ocean economy of the United States: measurement, distribution, & trends. The University of Maine, unpublished

28

K. P. Findlay

Colgan CS (2018) The blue economy theory and strategy. In: Attri VN, Bohler Muller N (eds) The blue economy handbook of the Indian ocean region. Africa Institute of South Africa, Pretoria, pp 38–63 Convention for the Conservation of Antarctic Marine Living Resources (2001) CCAMLR’s management of the Antarctic. CCAMLR, Hobart, p 2001 Costanza R, Andrade F, Antunes P et al (1998) Principles for sustainable governance of the oceans. Science 281:198–199 Costanza R, D’arge R, De Groot R et al (1997) The value of the world’s ecosystem services and natural capital. Nature 387:253–260 Costanza R, Kubiszewski I, Ervin D et al. (2011) Valuing ecological systems and services. F1000 Biol Rep (3):14 Côté IM, Darling ES (2010) Rethinking ecosystem resilience in the face of climate change. PLoS Biology PLoS Biol 8(7):e1000438 Cristiani P (2017) New challenges for materials in the blue economy perspective. Metallurgia Italiana 109:7–10 Day J, Dudley N, Hockings M et al (2012) Guidelines for applying the IUCN protected area management categories to marine protected areas. IUCN, Gland De Groot R, Fisher B, Christie M et al. (2012) Integrating the ecological and economic dimensions in biodiversity and ecosystem service valuation Econ ecosyst biodiversity Ecol Econ Found 9–40 Douvere F (2008) The importance of marine spatial planning in advancing ecosystem-based sea use management. Mar Policy 32:762–771 Douvere F, Ehler CN (2009) New perspectives on sea use management: initial findings from European experience with marine spatial planning. J Environ Manag 90:77–88 Doyle T (2018) Blue economy and the Indian Ocean Rim. J Indian Ocean Region 14:1–6 Duda AM, Sherman K (2002) A new imperative for improving management of large marine ecosystems. Ocean Coast Manag 45:797–833 Dziura B, Cernota M (2015) Blue economy: the new model for sustainable development. Actual Probl Econ 169:34–38 Ecomonist Intelligence Unit (2015) The blue economy growth, opportunity and a sustainable ocean economy an economist intelligence Unit briefing paper for the World Ocean summit 2015. In: The economist intelligence Unit limited 2015, USA Findlay K (2018) Operation Phakisa and unlocking South Africa’s ocean economy. J Indian Ocean Reg 14:248–254 Findlay K, Bohler-Muller N (2018) South Africa’s ocean economy and operation Phakisa. In: Attri VN, Bohler-Muller N (eds) The blue economy handbook of the Indian ocean region. Africa Institute of South Africa, Pretoria, p 472 Glenn H, Wattage P, Mardle S et al (2010) Marine protected areas—substantiating their worth. Mar Policy 34:421–430 Global Oceans Commission (2014) From decline to recovery  – a rescue package to the global Ocean. Global Ocean Commission, Oxford, p 90 Grimm NB, Groffman P, Staudinger M et al (2016) Climate change impacts on ecosystems and ecosystem services in the United States: process and prospects for sustained assessment. Clim Chang 135:97–109 Guerry AD, Ruckelshaus MH, Arkema KK et  al (2012) Modeling benefits from nature: using ecosystem services to inform coastal and marine spatial planning. Int J Biodivers Sci Ecosyst Serv Manag 8:107–121 Hadjimichael M (2018) A call for a blue degrowth: unravelling the European Union’s fisheries and maritime policies. Mar Policy 94:158–164 Halpern BS, Lester SE, Kellner JB (2010) Spillover from marine reserves and the replenishment of fished stocks. Environ Conserv 36:268–276 Hardin G (1968) The Tragedy of the Commons. Science 162:1243–1248 Hoegh-Guldberg OEA (2015) Reviving the ocean economy: the case for action. In: WWF International. Gland, Geneva, p 60

2  Oceans and Blue Economies

29

Hosking S, Du Preez D, Kacynsky V et al (2014) The economic contribution of the ocean sector in South Africa. J Stud Econo Econ 38:65–82 Humphreys J, Herbert RJH (2018) Marine protected areas: science, policy & management. Estuar Coast Shelf Sci 215:215–218 Jones PJS, Lieberknecht LM, Qiu W (2016) Marine spatial planning in reality: introduction to case studies and discussion of findings. Mar Policy 71:256–264 Kaczynski W (2011) The future of blue economy: lessons for European Union. Found Manag 3:21–32 Kathijotes N (2013) Keynote: blue economy – environmental and behavioural aspects towards sustainable coastal development. In: AMER international conference on quality of life. Procedia – Social and Behavioral Sciences Langkawi, pp 7–13 Kelleher G (1996) A global representative system of marine protected areas. Ocean Coast Manag 32:123–126 Kelleher K (2015) Building the blue economy in the WIO region. In: blue economy and oceans governance workshop. Mahe, pp 1–36 Kenchington RA, Day JC (2011) Zoning, a fundamental cornerstone of effective marine spatial planning: lessons learnt from the great barrier reef, Australia. J Coast Conserv 15:271–278 Kildow JT, Mcilgorm A (2010) The importance of estimating the contribution of the oceans to national economies. Mar Policy 34:367–374 Kim WC, Mauborgne R (2005) Blue ocean strategy: how to create uncontested market space and make the competition irrelevant. Harvard Business School Press, Boston Larik J (2017) Blue growth and sustainable development in Indian ocean governance. The Hague Institute for Global Justice, The Hague Long RD, Charles A, Stephenson RL (2015) Key principles of marine ecosystem-based management. Mar Policy 57:53–60 Loomis I (2015) A ‘blue economy’ for Belize. Planning 81:28–32 Lubchenco J, Palumbi SR, Gaines SD et al (2003) Plugging a hole in the ocean: the emerging science of marine reserves. Ecol Appl 13(13):3–7 MEA (2005) Ecosystems and human wellbeing: a synthesis report based on the findings of the millennium ecosystem assessment. Island Press, Washington, DC Michel JA (2016) Rethinking the oceans: towards the blue economy. Paragon House, p 179 Mohanty SK (2018) Towards estimation of the blue economy: an accounting framework for IORA. In: Attri VN, Bohler-Muller N (eds) The blue economy handbook of the Indian ocean region. Africa Institute of South Africa, Pretoria, p 472 Mohanty SK, Dash P, Gupta A et al. (2015) Prospects of blue economy in the Indian Ocean. In: Research and information system for developing countries, New Delhi Morrissey K, O'donoghue C (2012) The Irish marine economy and regional development. Mar Policy 36:358–364 Morrissey K, O'donoghue C (2013) The role of the marine sector in the Irish national economy: an input-output analysis. Mar Policy 37:230–238 Murillas-Maza A, Virto J, Gallastegui MC et al (2011) The value of open ocean ecosystems: a case study for the Spanish exclusive economic zone. Nat Res Forum 35:122–133 Naidoo R, Balmford A, Costanza R et al (2008) Global mapping of ecosystem services and conservation priorities. Proc Natl Acad Sci USA 105:9495–9500 Ntola SY, Vrancken P (2018) African governance perspectives of the blue economy in the Indian Ocean rim. In: Attri VN, Bohler-Muller N (eds) The blue economy handbook of the Indian Ocean Region. Africa Institute of South Africa, Pretoria, p 472 OECD (2016) The ocean economy in 2030. In: Organisation for economic co-operation and development. OECD Publishing, Paris OP (2014) Unlocking the economic potential of South Africa’s oceans – marine protection services and governance. Final Lab Report. Operation Phakisa website OP (2015) Oceans economy review workshop summary marine protection services and ocean governance. In: Operation Phakisa. Oceans Economy Review Workshops, Cape Town

30

K. P. Findlay

Ostrom E (1990) Governing the Commons: the evolution of institutions for collective action. Cambridge University Press, Cambridge, UK Ostrom E (2009) A general framework for Analyzing sustainability of social-ecological systems. Sci New Ser 325:419–422 Palumbi SR, Sandifer PA, Allan JD et al (2009) Managing for ocean biodiversity to sustain marine ecosystem services. Rontiers Ecol Environ 7:204–211 Park KS, Kildow JT (2014) Rebuilding the classification system of the ocean economy. J Ocean Coast Econ 2014(1):20171104 Patil PG, Virdin J, Diez SM et al (2016) Toward a blue economy: a promise for sustainable growth in the Caribbean; an overview. The World Bank, Washington DC, p 22 Pauli GA (2010) The blue economy: 10 years, 100 innovations, 100 million jobs. Paradigm Publications, p 308, ISBN 0912111909, 9780912111902 Pinto H, Cruz AR, Combe C (2015) Cooperation and the emergence of maritime clusters in the Atlantic: analysis and implications of innovation and human capital for blue growth. Mar Policy 57:167–177 Potgieter T (2018) Oceans economy, blue economy, and security: notes on the South African potential and developments. J Indian Ocean Reg 14:49–70 Potschin M, Haines-Young R (2011a) Introduction to the special issue: ecosystem services. Prog Phys Geogr 35:571–574 Potschin MB, Haines-Young RH (2011b) Ecosystem services: exploring a geographical perspective. Prog Phys Geogr 35:575–594 Potschin M, Haines-Young R (2013) Landscapes, sustainability and the place-based analysis of ecosystem services. Landsc Ecol 28:1053–1065 Potts WM, Götz A, James N (2015) Review of the projected impacts of climate change on coastal fishes in Southern Africa. Rev Fish Biol Fish 25:603–630 Pugh D, Skinner L (1996) An analysis of marine-related activities in the UK economy and supporting science and technology. In: Information document, vol 5. Inter-Agency Committee for Marine Science and Technology (IACMST),SOC., Southampton, p 52 Ruckelshaus M, Klinger T, Knowlton N et  al (2008) Marine ecosystem-based management in practice: scientific, and governance challenges. Bioscience 58:53–63 Sherman K (2014) Toward Ecosystem-Based Management (EBM) of the worlds large marine ecosystems during climate change. Environ Dev 11:43–66 Silver JJ, Gray NJ, Campbell LM et al (2015) Blue economy and competing discourses in international oceans governance. J Environ Dev 24:135–160 Smith-Godfrey S (2016) Defining the blue economy. Marit Aff 12:58–64 Spamer J (2015) Riding the African blue economy wave: a south African perspective. In: 2015 4th IEEE international conference on advanced logistics and transport, IEEE ICALT 2015 Tallis H, Mooney H, Andelman S et al (2012) A global system for monitoring ecosystem service change. Bioscience 62:977–986 Techera EJ (2018) Supporting blue economy agenda: fisheries, food security and climate change in the Indian Ocean. J Indian Ocean Reg 14:7–27 TEEB (2010) The economics of ecosystems and biodiversity. Mainstreaming the economics of nature. A synthesis of the approach, conclusions and recommendations of TEEB Thomas J, Pet Soede L (2013) WWF and blue economies in the coral triangle: developing and demonstrating blue economies for sustainable development and profitable resource use in the region Worldwide Fund for Nature, p 20 Turton AR, Hattingh JGA, Roux DJ et al (2007) In: Turton AR, Hattingh JH, Maree GA, Roux DJ, Claassen M, Strydom WF (eds) Governance as a trialogue: government-society-science in transition, Water resources development and management series. Springer, Berlin/Heidelberg UNECA (2016) Africa’s blue economy: a policy handbook by the United Nations economic commission for Africa. ECA printing and publishing Unit, Addis Ababa UNEP, FAO, IMO et al. (2012) Green economy in a blue world. www.unep.org/greeneconomy and www.unep.org/regionalseas. ISBN: 978-82-7701-097-7

2  Oceans and Blue Economies

31

Van Der Geest C (2017) Redesigning Indian ocean fisheries governance for 21st century sustainability. Global Pol 8:227–236 Voyer M, Schofield C, Azmi K et al (2018) Maritime security and the blue economy: intersections and interdependencies in the Indian ocean. J Indian Ocean Reg 14:28–48 Vreÿ F (2014) Entering the blue: conflict resolution and prevention at sea off the coast of East Africa. J Indian Ocean Reg 10:203–218 White C, Halpern BS, Kappel CV (2012) Ecosystem service tradeoff analysis reveals the value of marine spatial planning for multiple ocean uses. In: Proceedings of the national academy of sciences of the United States of America (109):4696–4701 WWF (2015) Principles for a sustainable blue economy. WWF Baltic Ecoregion Programme Zhang J, Sun W (2018) Measurement of the ocean wealth of nations in China: an inclusive wealth approach. Mar Policy 89:85–99 Zhao R, Hynes S, Shun HG (2014) Defining and quantifying China’s ocean economy. Mar Policy 43:164–173

Chapter 3

Illegal, Unreported and Unregulated (IUU) Fishing as a Maritime Security Concern Mercedes Rosello

Abstract  This chapter explores the meaning and features of illegal, unreported, and unregulated (IUU) fishing as a governance concept, from the fishery management context in which it was first conceived, to more recent associations with criminal activity. The nature of IUU fishing as a security concern is established by reference to its impacts on human communities, as well as its operational synergies with crime. The activity patterns and regulatory weaknesses that enable IUU fishing and related criminal activities are examined, with a focus on the role of States, as well as international organisations. The degree to which global and regional policy trends address such weaknesses is outlined, and significant innovations are identified, before concluding with some reflections on the potential of current approaches to respond to emerging maritime security concerns. Keywords  IUU fishing · Fishery management · Transnational organised crime

3.1 Introduction to IUU Fishing: Concept and Context IUU fishing is a widely utilised concept, referring to a broad range of damaging activities directly or indirectly related to marine capture fisheries. IUU fishing has been defined in a voluntary instrument, namely the International Plan of Action to Prevent, Deter and Eradicate Illegal, Unreported and Unregulated Fishing (IPOA IUU).1 In accordance with this definition, IUU fishing is conceived as a functional group of categories that, together, serve to interpret fishing or fishery  See paragraph 3 of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2001). This is not the only definition in existence: see United States (US) Magnuson-Stevens Fishery Conservation and Management Reauthorisation Act (2006) 16 US Code 1826j HSDFMPA 609(e)(3). 1

M. Rosello (*) House of Ocean, London, UK e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Otto (ed.), Global Challenges in Maritime Security, Advanced Sciences and Technologies for Security Applications, https://doi.org/10.1007/978-3-030-34630-0_3

33

34

M. Rosello

support activities by reference to two main criteria. Firstly, if the activities are contrary to domestic or international law, they are referred to as illegal fishing. Unreported fishing is set out as a subcategory of illegal fishing, and concerns activities that are contrary to legal obligations, but only in respect of reporting duties. Secondly, activities that do not necessarily imply a breach of a legal obligation, but undermine the rules and measures adopted by regional organisations with authority to manage shared fishery resources, are referred to as unregulated fishing. Such organisations are generally referred to as regional fishery bodies, or regional fishery management organisations (RFMOs). As key multilateral cooperation and decisionmaking fora on matters concerning fishery management, RFMOs have an important role as centres for the establishment of measures to identify and address IUU fishing activities in their respective management areas (FAO 2018). The origins of the term IUU fishing are attributed to a regional organisation that has a broader mandate, but performs the functions of an RFMO in respect of the marine living resources of the Antarctic Ocean: the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR).2 The terms ‘illegal’ and ‘unreported’ were adopted during the 16th conference of CCAMLR,3 and ‘unregulated’ fishing emerged in association to the absence of fishery data made available to the organisation by non-member States responsible for vessels that were operating in the CCAMLR management area.4 Not long afterwards, other regional fishery management organisations went on to use the term.5 The concept was also adopted by the United Nations’ Food and Agriculture Organization (FAO), and was promptly incorporated in other global policy instruments (Hey 1996, p. 459).

3.2 Security Implications The functional nature of the IUU fishing concept has permitted its adoption in official narratives that are not always concerned with matters of fishery conservation, though its inclusion in national maritime security policies has often been met with resistance (Bateman 2011, p. 3). Yet, recent developments in security strategies at the national and regional levels suggest a progressive broadening in understandings  Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), ‘Report of the Fifteenth Meeting of the Commission’ (1996) art 12.13 and 13.24. The terms illegal and unreported were first defined in 1997 during CCAMLR’s 16th session, where associated conducts were identified as a significant issue, with unregulated fishing being defined in the 17th session. 3  CCAMLR, ‘Communication Policy with Non-Contracting Parties Relating to Illegal, Unreported and Unregulated Fishing in the CCAMLR Convention Area’ Report of the Sixteenth Meeting of the Scientific Committee (1997) Annex 6 Paras 4.55 and 2.13 SC-CCAMLR-XVI. 4  For further information, see MA Palma, M Tsamenyi, and WR Edeson, Promoting Sustainable Fisheries: The International Legal and Policy Framework to Combat Illegal, Unreported and Unregulated Fishing (Martinus Nijhoff 2010) 27. 5  See International Commission for the Conservation of Atlantic Tuna (ICCAT) Resolutions 98/18, 99/11, and 99/12. 2

3  Illegal, Unreported and Unregulated (IUU) Fishing as a Maritime Security Concern

35

of maritime security, towards a framework that is more responsive to the risks associated with IUU fishing (Chapsos and Malcolm 2017, p. 179). Scholars increasingly regard maritime security to be inclusive of economic and environmental resilience considerations, and of the role of non-state actors involved in marine fisheries in the causation and perpetuation of risks (Bueger 2015, p. 59). The association between maritime security and IUU fishing broadly responds to two types of distinct but interdependent considerations, namely impacts on human communities, and operational synergies with crime.6

3.2.1 Impacts on Human Communities IUU fishing impacts can be difficult to discern from the effects of legal fishing, but they are thought to be severe (Pitcher et al. 2002, pp. 317–29, 337). Indiscriminate and unmanaged harvesting of ocean living resources, particularly if already under pressure from regulated fishing, may pose a considerable threat to stocks (Lindley et al. 2018, pp. 83–86). When IUU fishing activities include highly destructive fishing gears, they may cause a high incidence of mortality of target as well as non-­ target species, which can be aggravated when gear is discarded at sea (Papaioannou 2016, p. 159). Literature by non-governmental organisations suggests that over 85% of global commercial stocks may be at risk of IUU fishing, with 54% at high risk, throughout all ocean areas. Economically, IUU fishing is believed to exact a heavy cost. In 2015, the FAO commenced a review of existing cost assessments (Tsamenyi et al. 2015), highlighting multiple areas of uncertainty, partly due to the imprecise nature of IUU fishing as an interpretive lens (Poseidon Aquatic Resource Management 2016). An influential 2009 study has suggested that the global costs inflicted by IUU fishing each year could range between US$10 and US$23.5 billion, which is equivalent to between 11 and 26 million tonnes of seafood (Agnew et al. 2009). It is unclear whether these estimations accurately reflect the state of affairs today, though international actors generally accept the lower end of the range as a valid indication. The majority of the costs of IUU fishing are born by the exclusive economic zones (EEZs) of coastal states, which contain most ocean taxa. Over-­ harvesting of EEZ stock can have significant detrimental effect on the security of affected fishing economies (Falaye 2010). In particular, when artisanal and other small-scale fisheries are disrupted, their higher contribution to employment means work and food security may be impacted (Le Manach et al. 2012). It is thought that the impacts caused by illegal fishing may increase the susceptibility of affected individuals to engage in piracy and other unlawful activities in communities lacking economic resilience (Flückiger and Markus 2014, p. 118). Least developed nations  For in-depth discussion of the differences between IUU fishing as a resource management problem and a criminality factor, see I Chapsos, and S Hamilton, ‘Illegal fishing and Fisheries Crime as a Transnational Organized Crime in Indonesia’ (Chapsos and Hamilton 2018) Trends in Organized Crime 1–19. 6

36

M. Rosello

are amongst the most vulnerable to fluctuations in catch availability, due to the fact that ability to plan and execute adaptation in the face of resource scarcity may be diminished by a lack of capacity (Alison et al. 2009, p. 181). A lack of availability of commercially valuable highly migratory species such as tuna, can be particularly damaging to small island states with a high dependency on the harvesting or processing of such fishery products.7

3.2.2 Operational Synergies with Crime IUU fishing is not only characterised by infractions of fisheries conservation and management obligations: IUU fishing operations have been documented to have operational synergies with a broad range of criminal activities (Chapsos and Hamilton 2018; de Coning 2016; de Coning and Witbooi 2015). Vessel operations such as ‘transhipment’, the practice of transferring cargo from one vessel to another, facilitates the blurring of traceability in fishery products, also providing opportunities for transferring non-fishery cargo (Chapsos and Hamilton 2018). Crimes associated with IUU fishing are diverse, and can include documentary fraud, tax evasion, drug smuggling (de Coning and Stolsvik 2013), people smuggling and crew exploitation (Chapsos and Hamilton 2018; Lindley et al. 2018, p.83). Human trafficking has been linked to the Gulf of Thailand, where large-scale economic migration patterns from less developed neighbouring states into Thailand and its large fishing industry have led to significant problems of labour abuse in the fisheries sector (Larschke and Vandergeest 2016). As Thailand has begun developing its domestic legal framework and policies, practices of workforce abuse have nevertheless been identified in fishing vessels flying the flag of other states. Reports of human trafficking are not limited to specific geographies or stages of development, with cases having been documented also in developed states (Chapsos and Hamilton 2018). Links have been established between IUU fishing and drug trafficking routes between South America and Europe. Further, IUU fishing has been associated with corruption, particularly when governance structures are fragile. The interconnectivity of IUU fishing and associated criminal practices, and their impacts on human communities are increasingly being understood as significant from a security perspective (Chapsos and Hamilton 2018). The UN General Assembly (2001) has referred to IUU fishing as ‘one of the most severe problems currently affecting world fisheries and the sustainability of marine living resources (…)’. Yet, research increasingly supports the view that the ramifications and impacts of IUU fishing are complex and far-reaching, transcending the fishery management context in which the term was first coined.  See, for example, the following media reports concerning unreported catches Fiji: http://www. atuna.com/index.php/2-uncategorised/485-albacore-crisis-can-cause-food-dilemma-infiji#. Ut5ZkJE4k18; and http://fijilive.com/news/2014/01/tuna-fishing-industry-has-collapsedsouthwick/56333.Fijilive

7

3  Illegal, Unreported and Unregulated (IUU) Fishing as a Maritime Security Concern

37

3.3 Regulatory Deficiencies and IUU Fishing A common factor enabling IUU fishing and related criminal activity is the evasion of legal duties, and the exploitation of loopholes, particularly in respect of matters involving inspection, monitoring and surveillance (Schmidt 2005; Sodik 2008). Weaknesses in vessel registration procedures enable operators to thwart attempts at the identification of the fishing vessel, and/or its state of regulation. In addition, interference with vessel tracking technology can hide unusual activity and transhipment patterns, ensuring that irregular activities remain unsupervised, and illegality unidentified. It is common for vessels engaging in IUU fishing to be permitted to operate without vessel monitoring systems (VMS), or automatic identification systems (AIS). A common vessel identification avoidance behaviour is ‘flag-hopping’, meaning frequent changes across flags of convenience registries, frequently accompanied with an absence of permanent forms of vessel marking (Miller and Sumaila 2014, p. 40; Petrossian et al. 2015, p. 40). Problems with reporting have often been associated to certain harvesting arrangements between distant water fishing vessels and companies located in coastal states, who then operate the vessels under local rules (Panossian 2015). The joint venture and bareboat chartering arrangements that are frequently associated with such arrangements may result in a parallel registration for a specified period of time (Pauly et al. 2014), and this can result in confusion in respect of applicable controls (Edeson 2012). Further, post-production concealment actions, whether at sea or in poorly controlled ports, can successfully disguise irregularities in the custody chain in order to confer the appearance of legality (Borit and Olsen 2012). Gains for both the vessel owners and operators, and the actors with which they trade within the state of destiny, are perpetuated through the operation of ‘ports of convenience’ (Calley 2011, p. 141). Such ports provide to IUU fishers low inspection and control environments that can quickly establish themselves as favoured destinations for unloading, victualing and trading IUU fishing products (Swan 2006, p. 38). Market accessibility is often combined with an absence of appropriate sanctions in cases where infractions are discovered, creating economic drivers that favour IUU fishing (Cantrell 2006). Flag states may also gain some financial advantages by offering low regulation options resulting from the non-adherence to, or non-enforcement of, international vessel regulation and reporting obligations and are generally referred to as ‘flags of convenience’ (Wiswall 1996, p. 107). There has been a long-standing association between IUU fishing vessels and flags of convenience. This model, in which states compete for the custom of ship owners for registration and associated services, has historically facilitated operators’ adaptability as they are provided opportunities to carry out harvesting operations under the weaker regulatory controls, including minimal sanctions, established by some flag states, to the financial benefit of both, and to the detriment of those who observed more stringent rules. As flag of convenience shortfalls may have the effect of depressing vessel regulation standards internationally, considerable attention has been paid to their involvement in IUU fishing control failure. Historically, en-masse

38

M. Rosello

fishing vessel registrations to flags of convenience were documented, following the expansion of the EEZs and peaking between 1994 and 1997, when around 10% of the merchant fleet had re-flagged its vessels, fishery captures reached their maximum ever recorded under FAO rules, and reporting to the FAO on matters of fishery management by flag of convenience states left much to be desired (Swan 2002). Yet, despite flags of convenience having posed a real and persistent problem for IUU fishing control, IUU activities are not associated exclusively to flag of convenience vessels. IUU operations by vessels registered to traditional flags has also been documented, and they can also be enabled by regulatory disregard from coastal states. In general, it may be assumed that regulatory strategies that are lax on reporting and verification, or that permit anonymity, present a risk to the success of IUU fishing control, which is enhanced by high transnational mobility (Haward 2004, p. 87). Appropriate municipal legislation is essential to ensure that undesirable operational practices are outlawed. Deficient legal frameworks with voids in authority, unclear reporting lines, and minimal or altogether absent sanctions, can enable undesirable fishing practices and associated criminality.8 Monitoring, control and surveillance capabilities are of the utmost importance for successful fisheries control by states. The presence of traceability verification mechanisms linked to market opportunities is also critical as an IUU fishing control measure, as seafood products are amongst the most highly traded foods globally, and demand continues to grow, fostering the mobility of cargo and crews. The elimination of economic conditions that can favour the emergence and perpetuation of IUU operations is equally important (World Bank Group 2017). Further, IUU fishing may also derive from contexts of intense competition over limited resources, which can be incentivised by the mobilisation of overcapacity via harmful subsidies (Milazzo 1998, p.  86; Sumaila et  al. 2006, p. 38). It may be useful to focus on the development and implementation of domestic legal and institutional frameworks able to address  synergies  between  IUU fishing  and crime. In this regard, detailed vessel and ownership registration, activity authorisation and licensing procedures, monitoring and verification mechanisms concerning activity patterns, catch and other cargo, and crews, combined with the imposition of appropriate reporting obligations, will be essential. As a minimum, measures should meet the standards established in international treaties.9 Appropriate inspections, combined with unbroken VMS records, and permanent forms of vessel

 For a discussion on criminal activity reduction strategies concerning removal of rewards and opportunities, see (Petrossian et al. 2015, p. 337) at 40, supra at 52. 9  In particular the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels in the High Seas (1993) (Compliance Agreement), the United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995) (UNFSA), and the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2009) (PSMA). 8

3  Illegal, Unreported and Unregulated (IUU) Fishing as a Maritime Security Concern

39

marking (Miller and Sumaila 2014, p. 208), are critical.10 This should be accompanied by  sufficient coordination of fishery authorisation, vessel registration, coast guard, and police and other authorities with security competences. Policies should promote the eradication of information discontinuities in particular.

3.4 Brief Overview of Emerging Practices To successfully address IUU fishing risks, outward recognition as a security concern in international narratives should be matched by adequate adaptation of domestic legal and institutional frameworks, with a view to capturing the needs outlined above. The degree to which IUU fishing has been recognised and addressed as a maritime security concern may  also be ascertained via  the examination of state practices in the context of international organisations. According to the exposition of maritime security categories carried out by Bueger, concerns identified as maritime security risks have in common the identification and prioritisation of the security risk, and investment in response technologies and other top-down mechanisms (Bueger 2015, p. 59). An increasing number of states have highlighted IUU fishing risks in their security agendas in recent years, and have invested substantially in the implementation of countering mechanisms in maritime areas within their jurisdiction, as well as beyond. In the United States (US), the National Oceanic and Atmospheric Agency relies on naval resources to identify foreign IUU fishing activities on the basis of domestic legislation.11 Since 2013, this US agency identifies offending states on a biennial basis, notifying them in order to encourage the correction of IUU fishing practices. The US has established practices of cooperation with third countries in order to protect regulated fisheries, and in respect of the breach of the international moratorium on large-scale driftnets (DTD 2012), which is considered to have become a part of the international legal corpus through extensive practice. Extraordinary measures have also become visible in recent times in the areas under the jurisdiction of other coastal states. Indonesia has adopted a criminalisation strategy in response to IUU fishing (Chapsos and Hamilton 2018), and has overseen the establishment of domestic moratoria on fishing and transhipment. States have invested in technological tools, and in institutional mechanisms facilitating monitoring and information-sharing in order to address IUU fishing and related threats. Maritime domain awareness tools developed in recent years have been implemented in Indonesia and Peru, in order to effect comprehensive surveillance over areas at  AIS is frequently relied on by operators and coastal States for navigation safety purposes, but its utilisation under the rules of the 1974 International Convention for the Safety of Life at Sea (SOLAS) 1184 UNTS 2. 11  Magnuson-Steven Fishery Conservation and Management Reauthorization Act of 2006, first enacted in 1976. Related regulations include The Shark/IUU Fishing Final Rules (2013) and the IUU Fishing/Bycatch Rule (2011). 10

40

M. Rosello

high risk of IUU fishing. With some delay to ensure the safety of fishing operations and to preserve commercial confidentiality, fishing patterns are being released to the public domain, permitting situational and operational analysis by third parties. This is an unprecedented policy that has positioned these coastal states at the forefront of technology utilisation in matters of IUU fishing control, with other states reportedly considering similar options in the wake of such innovations.

3.5 Multilateral Cooperation and Securitisation The practices of individual states can be significant in catalysing effective trends to combat IUU fishing, but the need for multilevel cooperation in transnational matters is widely acknowledged. Indeed, the often transnational nature of IUU fishing activity means that multilateral institutional approaches may be better placed to address deficiencies in vessel activity regulation, monitoring, and enforcement (Bueger 2015, p. 59). Significant efforts are being made at the global level to address existing weaknesses in governance. Since the 1990s, concerns over IUU fishing have been debated in the forum of the United Nations General Assembly (UNGA) (Bueger (2015) at 163, supra at 12). A resolution upon destructive fishing practices was adopted by the UNGA in 1991, which became upheld by a large number of states (Caddell (2010) at 4, supra at 80.). The adoption of three multilateral fisheries treaties addressing regulatory issues that are essential to IUU fishing control was conducted under the auspices of the UN Food and Agriculture Organization.12 Significantly, the FAO has promoted the adoption of a Global Record of Fishing Vessels, Refrigerated Transport Vessels and Supply Vessels. The Global Record serves as a shared vessel data repository that can support State coordination in combatting IUU fishing, as well as wider coordination with the information held by RFMOs (FAO 2016). In addition, another international organisation with an information remit, Interpol, has also been engaged by its member states for the coordination of law enforcement in matters concerning maritime crime that is transnational in nature, and which frequently involves IUU fishing activities. In the marine space, resource distribution and geopolitical diversity calls for the added  specificity and flexibility of regional approaches. Some regional organisations have developed securitisation policy narratives, in which IUU fishing has been explicitly identified as a risk. Examples include declarations by the European Union (EU) and the African Union (AU), both of which have identified IUU fishing as an eradication objective in their marine security strategies, with the AU in particular identifying IUU fishing as a range of activities akin to criminal acts (African Union, African Integrated maritime Strategy, Addis Ababa 2014). Finally, nowhere is the need for regional approaches to cooperation and coordination more pressing than in regions where IUU fishing has become a complex security risk, combining largescale depressors of human security, and transcending in significance the criminality

12

 Compliance Agreement, UNFSA, and PSMA.

3  Illegal, Unreported and Unregulated (IUU) Fishing as a Maritime Security Concern

41

and food security concerns previously outlined. In particular, in the South China Sea, where fishing has been an important pillar for the food security of the States in the region, IUU fishing has been a persistent threat (Teh et al. 2017). Its prevalence and impacts have been exacerbated by expansionist efforts by China in securing marine resources to an increasing distance from its landmass, combined with sovereignty disputes over maritime features in the area. Fishing vessels have become involved in numerous incidents, exponentially increasing security concerns (Zhang and Bateman 2017, p. 289, 294).

3.5.1 Enhancing Security via Regional Resource Management Fora Regional responses to IUU fishing typically take place in the RFMO fora, where states converge regularly to take important decisions concerning resource utilisation and management, and vessel operations. The authority of RFMOs has been progressively affirmed through growing international support (Swan 2004, p. 82). They often establish conservation and management measures (CMMs) that include operational restrictions and associated controls. CMMs are varied in nature, comprised by heterogeneous technical rules, guidelines and procedures that have the objective of managing harvesting activities. Rules have to be internalised by member states so that they can issue appropriate rules and regulations, ensure compliance by their vessels, and take enforcement action where appropriate (Rayfuse 2015, p.  439).  Beyond this, RFMOs are sites of recurrent formal and informal processes of consultation and review, and their governance remit has the potential to reach beyond the establishment of fisheries CMMs, to touch upon mechanisms of coordination that can be security relevant. These include mechanisms for the recording and disclosure of operational information, identification of infractions and publication of related black lists, and cooperation via complementary surveillance and inspection activities. RFMOs typically require access to fishery management data held by states, in conformity with international law, and with their own internal legal frameworks. State duties extend into matters of compliance, evaluation and verification, via processes under which member States report to the internal institutions of the organisation (Dzidzornu 2002, p. 291). Typically, States report to the RFMO operational and management information, including effort and catch data, in particular formats (Tanaka 2016, p. 102), and some RFMOs also mandate the reporting of transhipment data. Although the quality of RFMO CMMs and other rules varies, as does compliance among the member states (Koehler 2013, p. 36–27), collectively RFMO measures make a valuable contribution to IUU fishing control, particularly as RFMO duties reach States with large fleets that have not always ratified important global fishery treaties.13 Being based to a great extent on information reporting and  China is a member State of the International Commission for the Conservation of Atlantic Bluefin Tuna, but not a party to the UNFSA (see https://www.iccat.int/en/contracting.html and http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm). 13

42

M. Rosello

sharing, the performance of RFMOs largely depends on integration of the relevant data, and the epistemic quality of information disclosures made by states (Tanaka 2016). Resulting RFMO expertise concentration and ability to coordinate regulatory and compliance efforts in their respective management areas confer onto these organisations a unique strategic potential.14 It is precisely in the regions where security is most fragile, such as the South China Sea, and where existing regional arrangements fall short of the capabilities of an RFMO, that their absence might be felt most keenly (George 2012, p. 87, 112).

3.5.2 Enhancing Security Through Port Cooperation In recognition of the economic nature of industrial fishing operations, there has been an increase in IUU fishing control approaches involving port measures. Although coastal states have powers of detention and enforcement under the UN Convention on the Law of the Sea (UNCLOS) (1982) within their EEZs, IUU fishing activities carried out in the high seas fall beyond the jurisdiction of coastal states. The IPOA IUU contains guidance for states interested in developing extraterritorial port based mechanisms (paragraphs 52–64), setting out a number of regulatory options that states may adopt when foreign fishing vessels seek admission for fuelling, victualing, transhipping, or landing fish cargo (paragraph 53). This has served to complement and reinforce the traditional flag state controls over fishing vessels in respect of high seas activities (Molenaar 2006). At least in part, the IPOA IUU reflects provisions contained in a number of international legal frameworks and consolidated State practice affording authority to port States to carry out inspections, and to act alongside flag states to ensure IUU fishing activities are identified and addressed.15 Fisheries-specific international treaties have made an invaluable contribution in respect of extraterritorial standards of conduct that may inform port controls. The United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (usually referred to as the Fish Stocks Agreement) sets out a typology of conducts to which it refers as ‘serious violations’. Significantly, it includes references to conducts that might be seen as possible criminality indicators, such as falsifying documentation regarding the identity or registration of a fishing vessel, and concealing or manipulating evidence. The 2009 Port State Measures Agreement enables verification through inspection of critical information, such as may be found

 For an illustration of the strategic potential and limitations of established regional organisations, see R Pomeroy et al., ‘Improving Marine Fisheries Management in Southeast Asia: Results of a Regional Fisheries Stakeholder Analysis’ (2016) 65 Marine Policy 20–29, 26. 15  See Article 23 of the Fish Stocks Agreement. 14

3  Illegal, Unreported and Unregulated (IUU) Fishing as a Maritime Security Concern

43

in vessel and authorisation documents, and vessel monitoring and surveillance data. These measures are contemplated in respect of vessels, upon which port states may effectively offload the burden of proof, so that investigations and certain consequences of presumed non-compliance are no longer dependent solely on flag states (Swan 2006, p. 38–36). IUU fishing activities could take effect in any part of the ocean, where member states of RFMOs may call on the port state for assistance (Swan 2016, p. 38–36). However, more stringent extraterritorial enforcement measures, such as detention, are restricted to offences committed in the EEZ, and otherwise do not appear to be supported by international practice (Molenaar 2006), beyond certain exceptional instances.16 RFMOs have had a significant role in promoting the coordination and enhancement of port controls (Lobach 2010, p.  111). Insofar as measures of this nature might be operationalised in a manner that may result in them acting as barriers to trade to the detriment of specific states, compliance with the rules of the international organisation established to regulate global trade, the World Trade Organization (WTO), is required. In line with those requirements, a number of RFMOs have elaborated catch documentation schemes (CDS), which operate as statistical tools able to record and clarify the traceability of certain types of catch. Beyond the critically important function of introducing transparency to the product supply chain, the CDS has another advantage: it is able to identify certain governance flaws by the flag states that regulate the relevant fishing vessels (Hosch 2016). Following the success of the measures adopted by some RFMOs, the EU in 2008 adopted a different and more comprehensive mechanism, a regulation establishing market measures in order to combat IUU fishing, named Council Regulation (EC) 1005/2008 (the IUU Regulation), which entered into force in January 2010,17 and related legislation, whereby processes for the identification of the IUU origin of seafood products destined to EU markets are established (Elvestad and Kvalvik 2015). The IUU Regulation applies port state measures to vessels harvesting marine living resources destined to EU ports to be sold. An empirical data collection system for the purposes of identifying and verifying IUU fishing trade flow operates under the IUU Regulation via a specially designed catch certificate,18 conditioning the sale of wild seafood to EU markets to the completion of a standardised form, including identification details of the harvesting vessel.19 Data concerning suspected IUU fishing  See Public Prosecutor v PM Poulsen and diva Navigation Corp, Case C 286/90 (1992) ECR I-6019 paras 28 to 34. 17  Council Regulation 1005/2008/EC of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, amending Regulations (EEC) No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and (EC) No 1447/1999 [2008] OJ 286/1 (CR 1005/2008). 18  European Union Council Regulation (EC) No. 1005/2008 of 29 September 2008, establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, amending Regulations (EEC) No. 2847/93, (EC) No. 1936/2001 and (EC) No. 601/2004 and repealing Regulations (EC) No. 1093/94 and (EC) No. 1447/1999, Official Journal of the European Union, L 286/1 (EC 1005/2008). 19  EC 1005/2008, Annex II. 16

44

M. Rosello

operations has to be validated by each individual vessel’s flag state, which results in the provision of critical evidence on possible breaches of flag state obligations. Where the flag state fails to verify compliance, it may be identified as non-­ cooperating, and receive a trading suspension of all fishery products originating from that state. The IUU Regulation has therefore had the consequence of enhancing port inspections with regard to IUU fishing activities in designated ports across the EU, as well as driving the need to prioritise fishing vessel regulation among the many States that sell seafood to the EU.

3.6 Conclusion It may be inferred from the preceding sections that IUU fishing is increasingly recognised as a security concern by individual states and international organisations alike, and that the methods that have been adopted to deter and control IUU fishing are diverse. One particular trend appears to dominate at both the domestic at the multilateral level: the recognition of the importance of addressing the lack of transparency that is characteristic of IUU fishing operations. This trend is significant, because it has the potential to address the existence of data voids as a weakness area that not only enables IUU fishing, but also favours the perpetuation of operational synergies with crime. The more traditional security responses, such as the presence of navies and inspections at sea is still a reality, although there is an increasing emphasis on  electronic surveillance and port-based controls. The trend has also been reflected in RFMO policies, whilst a number of States have overseen an increase in investment in maritime domain awareness and information-sharing technologies.20 Additionally, the growing  adoption of port and market measures has strengthened the role of port states, as regulatory centres able to subject the activities of IUU fishing operators to scrutiny, increasing their detection competences, and promoting compliance through increased cooperation with flag states. Save for the case of Interpol, which is specifically dedicated to supporting member states in matters of crime control, institutional approaches have not been characterised by a focus on crime (Palma et  al. 2010), despite calls for increased involvement (de Coning and Stolsvik 2013). Similarly, existing policy trends fall short of addressing the specific operational synergies between IUU fishing and transnational and other crimes. Nevertheless, there appear to be latent possibilities in existing initiatives to address the information discontinuities that characterise such synergies, particularly at a regional level. Comprehensive studies regarding the potential of RFMOs to enhance security are lacking. Nevertheless, the well-­ established decision-making, vessel activity regulation, and compliance frameworks of RFMOs may offer suitable platforms for the development of regional policies formulated to address maritime  security risks linked to IUU fishing.

20

 See https://www.ccamlr.org/en/ccamlr-xxxiii/19

3  Illegal, Unreported and Unregulated (IUU) Fishing as a Maritime Security Concern

45

In particular, the premise that RFMOs are well situated to bolster the adoption of information recording and sharing mechanisms in their respective regions merits further exploration.

References African Union, African Integrated maritime Strategy, Addis Ababa (2014). Council of the European Union, European Union Maritime Security Strategy, Brussels (2014) Doc 11205/14 Agnew DJ et al (2009) Estimating the worldwide extent of illegal fishing. PLoS One 4(2):e4570 Alison EH et al (2009) Vulnerability of national economies to the impacts of climate change on fisheries. Fish Fish 10(2):173–196 Bateman S (2011) Solving the “wicked problems” of maritime security: are regional forums up to the task? Contemp SE Asia 33(1):1–28 Borit M, Olsen P (2012) Evaluation framework for regulatory requirements related to data recording and traceability designed to prevent illegal, unreported and unregulated fishing. Mar Policy 36(1):96–97 Bueger C (2015) What is maritime security? 53 marine policy. Maritime security a traditional security challenge? In: Masys (Ed) Exploring the Security Landscape: Non-Traditional Security Challenges (Springer 2016) Calley DS (2011) Market denial and international fisheries regulation: the targeted and effective use of trade measures against the flag of convenience fishing industry. Martinus Nijhoff, Leiden/Boston, p 141 Cantrell R (2006) Finding Nemo… and eating him: the failure of the United Nations to force internalization of the negative social costs that result from overfishing. Wash Univ Glob Stud Law Rev 5:381–402 Chapsos I, Hamilton (2018) Illegal fishing and fisheries crime as a transnational organized crime in Indonesia. Trends Organ Crim 22:255–273 Chapsos I, Malcolm J (2017) Maritime security in Indonesia: towards a comprehensive agenda? Mar Policy 76:178–184 DTD (2012) http://coastguard.dodlive.mil/2012/08/international-partnership-nabs-another-driftnet-violator/ de Coning E (2016) Fisheries crime handbook of transnational environmental crime. Elgar, Northampton de Coning E, Stolsvik G (2013) Combatting organised crime at sea: what role for the United Nations office on drugs and crime. Int J Mar Coast Law 28:189–204 de Coning E, Witbooi E (2015) Towards a new fisheries crime paradigm: South Africa as an illustrative example. Mar Policy 60:208, 208–215 Dzidzornu DM (2002) Marine environment protection under regional conventions: limits to the contribution of procedural norms. Ocean Dev Int Law 291–298 Edeson WR (2012) Fisheries data and the Law of the sea convention. Int J Mar Coast Law 46(3):821–829 Elvestad C, Kvalvik I (2015) Implementing the EU IUU regulation: enhancing flag state performance through trade measures. Ocean Dev Int Law 46(3):241–255 FAO (2016) Report of the 32nd Session of the Committee on Fisheries (Rome, 11–15 July 2016) C 2017/23 paras 70, 71 and 165 FAO (2018) State of the world fisheries and aquaculture (Rome 2018) 90 Falaye AE (2010) Illegal Unreported Unregulated (IUU) Fishing in West Africa (Nigeria & Ghana)’ (Marine Resources Assessment Group Ltd, London, 2008). SM Garcia, and AA Rosenberg, food security and marine capture fisheries: characteristics, trends, Drivers and future perspectives (2010). Philos Trans R Soc Lond B: Biol Sci: pp 2869–2880

46

M. Rosello

Flückiger M, Markus L (2014) Economic shocks in the fisheries sector and maritime piracy. J Dev Econ 114(107):125 George M (2012) Fisheries protections in the context of the geo-political tensions in the South China Sea. J Mar Law Commer 43(1):85–128 Haward MGN (2004) IUU Fishing: contemporary practice. In: Elferink, Rothwell (eds) Oceans management in the 21st century: institutional frameworks and responses. Martinus Nijhoff, Leiden, p 87 Hey E (1996) Global fisheries regulations in the first half of the 1990s. Int J Mar Coast Law 11(4):459–491 Hosch G (2016) Trade measures to combat IUU fishing: comparative analysis of unilateral and multilateral approaches. Int Centr Trade Sustain Dev 6(6):1–3 Koehler H (2013) Promoting compliance in tuna RFMO’s: a comprehensive baseline survey of the current mechanics of reviewing, assessing and addressing compliance with RFMO obligations and measures’. Int Seaf Sustain Found 2013:36–37 Larschke M, Vandergeest P (2016) Slavery scandals: unpacking labour challenges and policy responses with the off-shore fisheries sector. Mar Policy 68:39–46 Le Manach F et al (2012) Unreported fishing, hungry people and political turmoil: the recipe for a food security crisis in Madagascar? Mar Policy 36(1):218–225 Lindley JS, Percy, Techera E (2018) Illegal fishing and Australian security. Aust J Int Aff 73(1):82–99 Lobach T (2010) Combatting IUU fishing: interaction of global and regional initiatives. In: Vidas (ed) Law, technology and science for oceans in globalisation: IUU fishing, oil pollution, bioprospecting, outer continental shelf. Martinus Nijhoff, Boston, p 111 Milazzo M (1998) Subsidies in world fisheries: are-examination. World Bank Technical Paper No 406, 86 Miller DD, Sumaila UR (2014) Flag use behavior and IUU activity within the international fishing Fleet: refining definitions and identifying areas of concern. Mar Policy 44:204–211 Molenaar EJ (2006) Port state jurisdiction: toward comprehensive, mandatory and global coverage. Fish Cent Res Rep 38(1–2):225–257 Palma MA, Tsamenyi M, Edeson WR (2010) Promoting sustainable fisheries: the international legal and policy framework to combat illegal, unreported and unregulated fishing. Martinus Nijhoff, Leiden, p 27 Panossian A (2015) Sustainable fisheries partnership agreements: a necessary harmonisation of the scope and interpretation of the exclusivity clause (CFFA 2015) Papaioannou (2016) The EU-Africa partnership in the fight against IUU fishing. Afr J Int Comp Law 24(1):158–167, 159 Pauly D et al (2014) China’s distant-water fisheries in the 21st century. Fish Fish 15(3):474–488 Petrossian GA et al (2015) An empirical assessment of port characteristics for IUU Fishing. Eur J Crim Policy Res 21(3):337–351 Pitcher TJ et al (2002) Estimating illegal and unreported catches from marine ecosystems: a basis for change. Fish Fish 3(4):317–339. 337 Poseidon Aquatic Resource Management (2016) Review of studies estimating IUU fishing and the methodologies utilized. (FAO 2016) 10 Rayfuse R (2015) Regional fishery management organizations’. In: Rothwell et  al (eds) The Oxford handbook of the law of the Sea. Cambridge University Press, p 439 Schmidt C (2005) Economic drivers of illegal, unreported and unregulated (IUU) fishing International. J Mar Coastal Law 479–508, 485 Sodik DM (2008) Non-legally binding international fisheries instruments and measures to combat illegal, unreported and unregulated fishing’ 15(1). Aust Int Law J 20(3):129–164 Sumaila UR et al (2006) Fuel subsidies to global fisheries: magnitude and impacts on resource Sustainability. Fish Cent Res Rep 14(6):38 Swan J (2002) Fishing vessels operating under open registers and the exercise of flag state responsibilities (FAO Fisheries Circular No. 980 (2002) 38 FIPL/C980

3  Illegal, Unreported and Unregulated (IUU) Fishing as a Maritime Security Concern

47

Swan J (2004) Decision-making in regional fishery bodies or arrangements: the evolving role of RFBs and international agreement on decision-making processes, vol 995. FAO Fisheries Circular, Rome, p 82 Swan J (2006) Port state measures to combat IUU fishing: international and regional developments’ (2006). Ocean & Fisheries Law 38. GA Petrossian et al., ‘Where Do 7(1) Swan J (2016) Port state measures: from residual port state jurisdiction to global standards. Int J Mar Coast Law 31:395–421 Tanaka YA (2016) Dual approach to ocean governance: the cases of zonal and integrated management in international law of the sea. Routledge, London/New York, p 102 Teh LSL et al (2017) What is at stake? Status and threats to South China Sea Marine Fisheries. Ambio 46(1):57–72 Tsamenyi MB, Kuemlangan and M Camilleri (2015) Defining illegal, unreported and unregulated fishing’. In: FAO expert workshop to estimate the magnitude of illegal, unreported and unregulated fishing globally (FAO, 2015) 1 FIRO/R1106 Wiswall FL (1996) Flags of convenience. In: Lovett (ed) US shipping policies and the world market. Quorum Books, London, p 107 World Bank Group (2017) The sunken billions revisited: progress and challenges in global marine fisheries. WBG, Washington, DC Zhang H, Bateman S (2017) Fishing militia, the securitization of fishery and the South China Sea dispute. Contemp SE Asia 39(2):288–314

Chapter 4

Smuggling and Trafficking of Illicit Goods by Sea Carina Bruwer

Abstract  “Transnational maritime crime is increasingly sophisticated, and it is expanding, both in terms of size and types of criminal activities…[t]hese crimes pose an immediate danger to people’s lives and safety, they undermine human rights, hinder sustainable development and… threaten international peace and security” –  Yuri Fedotov, former executive director of the United Nations Office on Drugs and Crime, 2019. The oceans provide a vast, uncontrolled arena to those engaged in illicit trade and transnational organised crime. Their activities include crimes which are maritime by nature, such as IUU fishing, as well as crimes which rely on the ocean for transport, such as drug – and wildlife trafficking. Organised criminal networks are moving these illicit commodities across the world’s oceans using both commercial transport and vessels used exclusively for trafficking purposes. This chapter explores the nature of smuggling and trafficking by sea, the international legal frameworks applicable thereto and considers the case study of heroin trafficking in the Indian Ocean to illustrate how illicit trade and counteroperations work in practice. Keywords  Smuggling · Trafficking · Transnational organised crime · Organised criminal networks · Illicit trade · Globalisation · Cooperation · International law · Law of the sea

C. Bruwer (*) Centre of Criminology, University of Cape Town, Cape Town, South Africa e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Otto (ed.), Global Challenges in Maritime Security, Advanced Sciences and Technologies for Security Applications, https://doi.org/10.1007/978-3-030-34630-0_4

49

50

C. Bruwer

4.1 Introduction: Illicit Trade in the Contemporary World Ninety per cent of licit trade happens at sea. In addition, massive volumes of illicit commodities are also moved across the world’s oceans, including drugs, wildlife products, oil and counterfeit goods. These goods are moved on board a variety of vessels. Guilfoyle (2009) therefore rightly asserts that “the oceans are critical both to States’ interests and to human prosperity, being a highway for commerce, a shared resource and a vector for threats to security.” Illicit trade at sea threatens both littoral and landlocked States and poses a threat not only to security, but also to trade, governance and the environment. As Naim (2007) correctly notes, “networks of Stateless traders in illicit goods are changing the world as much as terrorists are, probably more.” The movement of illicit commodities across land and sea borders is orchestrated by organised criminal networks and are forms of transnational organised crime (TOC), which is defined later herein. The exploitation of the seas by transnational criminal networks reflects a changing security landscape globally post-Cold War. It is now widely acknowledged that the new order is dominated by non-state criminal actors such as insurgents, terrorists and transnational organised criminal networks (Seyle and Madsen 2015; Trelawny 2013) operating sophisticated networks across borders. The threat which these non-state actors pose to global communal interests was propelled onto political agendas after the Twin Tower terror attacks of September 11, 2001. The attacks illustrated the extent to which non-state actors can threaten international peace, security and world trade (Klein 2011) and revealed the power held by these inherently stateless entities (Naim 2007). These non-state actors increasingly pose a threat from the oceans (Fedotov 2019). This has shaped the current interpretation of maritime security and necessitated a re-imagining of counter-responses. As the theoretical movements of global1 and hybrid2 governance explain, the State no longer governs alone and is no longer the sole responder to crime. Instead, it is often joined, or even replaced, by private actors, or forms inter-State coalitions in order to defend mutual interests. The international counter-piracy response is perhaps the most prominent example of this. Such joint efforts to respond to crime reflect the transnational, non-state nature of criminal actors in the post-Cold War globalised and inter-connected world where security threats in one part of the world directly impact States on the opposite side of the globe (Klein 2011). Neither States nor criminal actors are bound by national boundaries and there is no longer a clear distinction between State and non-state, public and private, or political or economic motives (Kaldor 2007).  Global governance is “the interaction of myriad collective or individual entities emanating from various societal and professional orientations, which form networks that engage to address issues that threaten local and global communities. Global governance is concerned with issues that have become too complex for a single state to address alone” (Jang et al. 2015). 2  Hybrid governance is “arrangements in which non-state actors take on functions classically attributed to the State and, in the process, become entangled with formal State actors and agencies to the extent that it is difficult to make a clear distinction between State and non-state” (Colona and Jaffe 2016). 1

4  Smuggling and Trafficking of Illicit Goods by Sea

51

The transnational character of illicit trade at sea is reflected in the nationalities involved in a single maritime operation  – the vessel, crew, traffickers, cargo and victims can all have different nationalities. While this transnational nature poses the biggest challenge to stemming these threats, it should not be a barrier to developing responses as it is also this globalised nature which enables a global response. Indeed, the oceans have become an area of immense transnational cooperation to address mutual threats such as piracy, IUU fishing, terrorism and many forms of trafficking and smuggling, albeit with varying levels of success.

4.2 What Is Smuggling and Trafficking? Many use the terms ‘trafficking’ and ‘smuggling’ interchangeably as both are forms of illicit trade servicing illicit markets.3 However, the terms vary in that the commodities being traded have different controls applicable to them. Distinguishing between licit and illicit trade activity can also be challenging, as such activities are often ‘grey’ and not always conducted exclusively in the form of a clandestine market. Instead, it can be intertwined with licit trade or go through stages of licit and illicitness. For example, conduct might be unlawful in a destination State, but lawful in a transit State. Neither smuggling nor trafficking are defined in international instruments. The primary international instrument applicable thereto is the United Nations Convention on Transnational Organised Crime of 2000 and its Protocols (UNTOC 2000). UNTOC defines trafficking4 and smuggling,5 but does so in terms of specific ­commodities, namely trafficking in humans, arms and smuggling of migrants. UNTOC is also specifically aimed at trafficking and smuggling which crosses  An ‘illicit market’ has been defined as “an arena for the regular voluntary exchange of goods and services for money where the goods and services themselves, their production, selling, and/or consumption violates the law” (Von Lampe 2016). 4  Article 3 of the UNTOC Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children defines trafficking in persons as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation…”. Article 3 of the UNTOC Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition defines illicit trafficking in arms as “the import, export, acquisition, sale, delivery, movement or transfer of firearms, their parts and components and ammunition from or across the territory of one State Party to that of another State Party if any one of the States Parties concerned does not authorise it in accordance with the terms of this Protocol or if the firearms are not marked in accordance with article 8 of this Protocol.” 5  Article 3 of the UNTOC Protocol against the Smuggling of Migrants by Land, Sea and Air defines smuggling of migrants as “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.” Illegal entry is defined in Article 3 as “crossing borders without complying with the necessary requirements for legal entry into the receiving State.” 3

52

C. Bruwer

borders and is therefore transnational. ‘Illicit traffic’ is similarly defined in Article 1 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (Vienna Convention), but the definitions are all drug-related. Despite the failure of international instruments to provide generalised definitions of ‘smuggling’, ‘trafficking’ and even ‘TOC’, the definitions as found in instruments like UNTOC and the Vienna Convention provide guidance as to which actions could qualify as trafficking and smuggling. The following elements are identifiable: (a) a transaction or exchange, which could include procurement, sale, transport, delivery, receipt or harbouring of goods; (b) a financial or other benefit; (c) contravention of laws; (d) actions often taking place in more than one State and (e) participation in, management or financing of such offences and aiding and abetting thereof. Such actions need not always be transnational, although some must be of a transnational nature for certain international instruments to apply.

4.2.1 Trafficking – Absolute Contraband Shaw and Reitano (2014) have defined trafficking as the movement of commodities which are generally considered to be illicit, such as drugs, organs and people against their will. Naylor (2003) has defined such commodities which are illegal in all circumstances as absolute contraband. This means that the market for this type of commodity is typically illegal under all circumstances and is therefore prohibited (Von Lampe 2016). Physical ‘movement’ is not a requirement, as receipt or harbouring of trafficked goods are also considered trafficking. Trafficking also does not always have to take place across State borders. For example, humans can be trafficked within a single territory (United Nations Human Rights Office of the High Commissioner 2014), whereas arms trafficking per definition requires movement across State borders.

4.2.2 Smuggling – Relative Contraband Shaw and Reitano (2014) define smuggling as “the movement of commodities which are not themselves illegal, but that the sourcing or activity of moving them across borders contravenes the law of at least one government, such as in relation to the payment of tax or customs duties.” Smuggled commodities may therefore be obtained legally under certain circumstances, such as cigarettes, certain animal products and migrants who pay to be smuggled. Naylor (2003) has defined commodities for which legal and illegal markets exist as relative contraband. Such commodities are therefore not prohibited, but restricted (Von Lampe 2016). Both trafficking and smuggling are therefore illicit activities, but the commodity being moved will dictate whether the activity taking place is trafficking or smuggling. The examples of human trafficking and migrant smuggling are perhaps most

4  Smuggling and Trafficking of Illicit Goods by Sea

53

illustrative of the distinction, although the line between the two can be blurred (Bhabha and Zard 2006). Moving or trading in people against their will is human trafficking, while moving people who voluntarily pay or offer another award to be moved illegally into another State is migrant smuggling.

4.3 Factors Influencing Trafficking and Smuggling Activity Illicit trade is stimulated where there is demand for a prohibited or regulated commodity, where a commodity is in higher demand than available supply and where a commodity promises a high profit turnover (Kelley et  al. 2005). A multitude of additional factors can influence illicit trade activity in a specific region, including: cross-border price differences, geography, law enforcement activity, security, corruption, development, access to infrastructure and political developments.6 For example, during times of conflict, there can be increased arms trafficking or trading in commodities such as wildlife to fund an insurgency. Existing trade routes and trade relationships can also come into play (UNODC 2013).

4.3.1 Globalisation and Opening of Markets Globalisation is the increased interconnectedness and interdependence of people and States as a result of the opening up of international borders to increased flows of goods, finance, services, people and ideas. It also describes the changes undergone by the national and international institutions and policies facilitating such flows (World Health Organisation n.d.). Vessels transporting people and goods acted as the first connecting node between continents. The voyages of discovery and ocean trade, such as the triangular trade of slaves, raw materials and manufactures between Africa, the ‘New World’ and Western Europe via the Atlantic Ocean (Findley 1990), were some of the earliest forms of global trade. In more recent years, the end of the Cold War, increased involvement of non-state actors in global affairs, the development of communication technology and proliferation of networked global markets have all contributed to contemporary globalisation (Jang et  al. 2015). Globalisation has therefore resulted in an increasing number of States joining the global economy and becoming inter-connected as never before. Organised criminal networks make use of these connections and access to markets. Therefore, as licit trade expanded, so did illicit trade. Increased licit trade enables criminal networks to embed illicit commodities  Factors attracting illicit trade activity vary from State to State and are not always ‘adverse’ factors. It could be that one State’s fragility in the form of corruption, weak institutions and lax law enforcement attracts criminal networks, while another State’s political stability, transport infrastructure and geographic location is what attracts criminal networks. Ease of logistics are therefore a factor considered by traffickers, or in the absence thereof, the ease with which officials can be bribed to turn a blind eye. 6

54

C. Bruwer

in licit markets and to hide illicit goods among massive volumes of licit goods to avoid detection. Globalisation has therefore reduced the gap between supply and demand and has given rise to contemporary illicit trade (Kelley et al. 2005). In contrast, globalisation has also disenfranchised many who have not been able to share in its spoils. Criminal organisations, among others, have consequently also developed in response to and not only as a result of globalisation and have stepped in to provide opportunity to the disenfranchised. This can explain why illicit trade activity is often found in so-called fragile states, serving as an alternative source of income (Kelley et al. 2005, OECD 2012).

4.3.2 The Attraction of the Sea While the oceans are utilised to connect people and things, they are also used for their ‘disconnected’ qualities to allow undetected, clandestine activities through the medium of a vessel. Organised criminal networks are businesspeople, they aim to maximise profits and minimise risk. They therefore make use of the oceans because it is beneficial to their business model. The nature of the oceans does not allow for a comparable level of control to that which can be exercised on land. The primarily unregulated and vast nature of the oceans therefore attracts criminal activity (Klein 2011), especially when conditions on land become an obstacle. The world’s oceans simultaneously provide unique opportunities and challenges to those moving illicit goods, as well as those who respond thereto. For example, the vastness of the oceans favour traffickers who are less likely to be detected. Even as the Western Indian Ocean (WIO) became frequented by patrolling warships in response to Somali piracy, illicit commodities such as drugs, sugar and charcoal have continued to move through the region, mostly unhindered. It is simply impossible to patrol such a vast area in its entirety. Much larger quantities of illicit goods can also be moved in a single shipment by sea than on land or air. In contrast, bad weather conditions, lengthy journeys and a shortage of able seamen can hamper illicit activities at sea as well as counter-efforts. Geography is another important factor for traffickers to consider. Ocean regions situated between the source and destination of illicit commodities are susceptible to trafficking activity. Migrant smuggling in the Mediterranean Sea is an example of this. Germond (2015) has highlighted the pivotal role that geography plays in the type of maritime threats which manifest in specific regions. This is reflected in pirates emanating from areas near busy sea lanes and traffickers being attracted to long coastlines and small islands away from law enforcement pressure. International law dictates what States may do to counter the movement of illicit goods, depending on where at sea the shipment is responded to. But this is complicated by the fact that the majority of ocean space qualifies as international waters or the ‘high seas.’ No State has sovereign power in these waters, which poses unique challenges to law enforcement and presents a breeding ground for transnational crimes (Raymond and Morrien 2009). International treaties have therefore sought different ways to address law enforcement powers at sea, as will be discussed in following sections.

4  Smuggling and Trafficking of Illicit Goods by Sea

55

4.3.3 Land and Sea Nexus The connection between land and sea helps to explain the prevalence of illicit trade activity. Many States struggle to exercise control across their entire territory (Garland 1996; Herbst 2000). If a State cannot control its land territory, it is improbable that it could exercise control in its maritime zones. Instability on land could therefore lead to bad order at sea. Various threats at sea are indeed not water-borne, but spill over from land (Glück 2010; United Nations 2009; Vreÿ 2014a]. The opposite is also true – maritime security threats at sea impact on land (Klein 2011). IUU fishing is an example of this, impacting on the livelihoods of coastal communities and licensed and artisanal fishermen.

4.4 Responding to Trafficking and Smuggling: Cooperation For a detailed discussion on cooperation in the maritime domain, refer to Chapter 11 on “The Successes and Struggles of Multilateralism: African Maritime Security and Strategy”. In summary, for transnational illicit trade activities at sea to be countered, a transnational, multi-actor and multi-­sector private-public response is required (see Germond and Germond-Duret 2016; Vreÿ 2014a, b). The necessity and move towards such cooperative responses are evident in the relevant international instruments and is illustrated in the case study.

4.5 International Law Applicable to Trafficking and Smuggling at Sea 4.5.1 United Nations Convention on Transnational Organised Crime of 2000 and Protocols (UNTOC) Smuggling and trafficking across borders, when committed by an organised criminal group, are forms of TOC. UNTOC is the primary international instrument aimed at TOC, both on land and at sea. There are three Protocols to UNTOC, namely the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children; the Protocol against the Smuggling of Migrants by Land, Sea and Air and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition. There is no drug trafficking Protocol, as drug trafficking is addressed in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.

56

C. Bruwer

4.5.1.1 Defining Organised Crime and Organised Criminal Groups UNTOC does not define ‘organised crime’ and the concept remains debated with no consensus on a definition. To quote Naylor (2003), it is ‘notoriously resistant to definition.’ As Von Lampe (2016) notes, organised crime has been conceptualised according to convenience and choice; it is up to the observer to decide the definition. While this could cause confusion, it also allows for a broad interpretation thereof. What has arguably remained constant is that organised crime describes the activity of pursuing ‘crime as business’ (Von Lampe 2016) and dealing in illicit goods or services in exchange for a benefit. Despite UNTOC’s failure to define organised crime, Articles 2(a) and (b) define what constitutes an ‘organised criminal group’ and a ‘serious crime’: (a) “Organised criminal group” shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit; (b) “Serious crime” shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty.

Article 5 obliges States to criminalise participation in an organised criminal group. There is no single model reflecting the structure of an organised criminal group, which is also referred to as a ‘network’, ‘organisation’ or ‘criminal enterprise’ (See Kelley et al. 2005; Varese 2010]). Organised criminal networks no longer reflect the traditional US-based Italian mafia gangs of the 1960s. Hierarchies, which were once considered an integral part of organised gangs, no longer characterise these groups and membership is no longer defined or necessarily based on nationality or ethnicity (Von Lampe 2016). Because membership could potentially be open to anyone able to advance the activities of the criminal organisation, it is perhaps better described as a network, pooling together resources (Von Lampe 2016). Such an extended network is beneficial when running a transnational operation. Organised criminal networks operating at sea are likely non-hierarchical with fluid membership. They have a combination of local and international actors from source, transit, destination and even third States. These networks are dynamic, they readily adapt to changing circumstances and their composition therefore changes over time and space. Existing trade, familial or logistical relationships can come into play when these networks form. For discussions of different trafficking networks, see (Dimova 2014; Haysom et  al. 2018; Naim 2007; UNODC 2016; Von Lampe 2016). 4.5.1.2 Applying UNTOC to Smuggling and Trafficking at Sea UNTOC is not exclusively aimed at crimes committed at sea, but it does contain provisions with a specific maritime focus, such as Part II of the Migrant Smuggling Protocol. Most importantly, UNTOC Article 15(1)(b) extends State jurisdiction over TOC to certain vessels at sea:

4  Smuggling and Trafficking of Illicit Goods by Sea

57

1. Each State Party shall adopt such measures as may be necessary to establish its jurisdiction…when: … (b) The offence is committed on board a vessel that is flying the flag of that State Party …at the time that the offence is committed.

When a vessel flies the flag of a State, it means that the vessel is registered in that State or is otherwise entitled to fly its flag (Guilfoyle 2009). This State is then called the Flag State and the vessel shall have its nationality, per Article 91 of the United Nations Convention on the Law of the Sea (UNCLOS 1982). States have jurisdiction over criminal acts committed within their territory and international law extends this jurisdiction to vessels registered in that State.7 This is reflected in Article 15. Flag State jurisdiction is however complicated by Flags of Convenience, which often have little desire to exercise control over vessels registered in their State (see Campling and Colas 2018; Mansell 2009; Mihei 2012). UNTOC also provides for cooperation in Articles 1, 19, 26 and 27, mutual legal assistance (MLA) in Article 18, and extradition in Article 16. Article 6 obliges States to criminalise the laundering of proceeds of crime and Article 8 obliges States to criminalise corruption, both of which typically accompany organised crime.8 States must ratify UNTOC and incorporate its provisions into their national legislation in order to reflect the minimum standards as set out therein.

4.5.2 United Nations Convention on the Law of the Sea of 1982 (UNCLOS) UNCLOS is the primary international instrument applicable to the sea. While it was arguably not created to address criminal matters such as trafficking and smuggling, it does provide the basis for exercising jurisdiction over criminal matters at sea. Article 87(1) defines the freedom of the high seas: The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: (a) freedom of navigation; … (e) freedom of fishing… 2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas.

 Article 94 of UNCLOS: “Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.” 8  The role of corruption in the smuggling and trafficking of illicit goods is often absent from discussions around illicit trade. This is also the case with money laundering. Yet, corruption is often at the centre of these crimes and acts as the main facilitator when political elites or corrupt low-level officials facilitate the movements of illicit goods. The link between organised criminal networks and political actors have also formed part of some scholars’ understanding of the very definition of organised crime, reflecting the fundamental link between the two (Von Lampe 2016). UNTOC highlights this link in Articles 8 and 9, which criminalises corruption and obliges States to adopt measures against it. The United Nations Convention against Corruption of 2003 (UNCAC) can also provide guidance in this regard. 7

58

C. Bruwer

Article 89 further provides that no State may subject the high seas to its sovereignty. Article 86 stipulates that the high seas are all parts of the sea that are not in the EEZ, contiguous zone, territorial sea or internal waters of a State or in the archipelagic waters of an archipelagic State. Articles 87 and 89 are the codification of the principal of mare liberum or the freedom of the seas (Klein 2011), as formulated by Grotius in the 1600s. According to Grotius (1633), “the sea is common to all, because it is so limitless that it cannot become a possession of any one, and because it is adapted for the use of all, whether we consider from the point of view of navigation or fisheries.” Accordingly, no one has ownership of the world’s oceans, which are at the equal disposal of all States. This is vital to allow for international trade and States should therefore not interfere with foreign vessels when exercising this right. Article 87 however limits this freedom to the high seas. This is because there are limitations to mare liberum. Mare liberum goes hand in hand with mare clausum, or the ‘closed sea,’ which stipulates that some seas are appropriated by States and are therefore not entirely ‘free’. Some ocean spaces or maritime zones are therefore subject to the jurisdiction of States, which must be able to exercise control and protect their security and resource interests in these spaces (Papastavridis 2013). While the two concepts might seem in contrast, Papastavridis (2013) argues that mare clausum limitations are complimentary to mare liberum, as jurists have historically agreed that States should be able to exercise control over their nearest coastal waters, while the freedom of the seas is reserved for the high seas. The need to protect the public order of the oceans indeed resulted in the establishment of additional maritime zones such as the contiguous zone and exclusive economic zone (EEZ). By giving Coastal States certain powers in these zones, they are able to restrict activities, such as illicit trade, which could have an adverse effect on them. Such limitations eventually grew to include restrictions on foreign vessels on the high seas, such as those engaged in piracy and drug trafficking (Papastavridis 2013). Knowing a State’s rights and limitations in the different maritime zones in terms of international and national law is integral to countering illicit trade at sea, as it dictates which steps States may take to counter it. The case study will illustrate the complexities which this holds in practice. 4.5.2.1 Jurisdiction In accordance with Articles 92 and 94, the Flag State enjoys primary jurisdiction over vessels flying its flag. However, under certain circumstances, a Coastal State may also act against foreign vessels, with or without Flag State consent. A foreign vessel may be boarded without Flag State permission primarily when it is within a relevant jurisdictional zone of the Coastal State. There are a few additional exceptions where unauthorised boarding is allowed, such as in terms of Security Council authorisations. In all other circumstances, the Flag State must consent to another State acting against illicit activity on board its vessels. When a State wishes to interdict a foreign vessel engaged in illicit trade activity, the jurisdiction in question is

59

4  Smuggling and Trafficking of Illicit Goods by Sea

enforcement jurisdiction9 and its extra-territorial application. It is necessary to distinguish between two actions which States may take when exercising such jurisdiction. First, boarding and searching the foreign vessel and second, acting against the cargo and crew if evidence of illicit activity is found (Guilfoyle 2009). The latter authorisation is much harder to obtain and to execute, as will be illustrated in the case study. In all the above circumstances, a State may only act through duly authorised State vessels or warships under government service, per Article 110(5) of UNCLOS. 4.5.2.2 Maritime Zones UNCLOS defines the different maritime zones, as well as the rights and duties of States in these zones. The Coastal State’s powers to respond to illicit trade activity by foreign vessels declines the further away from its territory the crime is committed. Again, the Flag State has primary jurisdiction, but the table below illustrates exceptions to this (Table 4.1). Table 4.1  Maritime zones and jurisdiction Maritime Zone Internal waters Territorial sea and archipelagic waters

UNCLOS Article Article 8

Contiguous zone

Article 33a

EEZ

Article 55–59

Article 2–4 and 27; Article 47 & 49

Which acts may be responded to? All criminal offences Criminal offences which: (a) consequences of the crime extend to the Coastal State; (b) crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (c) assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the Flag State and (d) such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances Criminal offences which break or are intended to break fiscal, immigration, sanitary and custom (FISC) laws in Coastal State’s territory or territorial seas Criminal matters affecting Coastal State’s sovereign rights to its economic resources and economic exploitation of the zone

Rights of the Coastal State Arrest and prosecute Arrest and prosecute

Prevent attempts, arrest and prosecute committed offences (Guilfoyle 2009) Arrest and prosecute

A contiguous zone must be claimed before a State can claim Article 33 jurisdiction. The zone was in fact established to allow States to act against smuggling (UN Global Maritime Crime Programme 2017) a

 Enforcement jurisdiction is the right of a State to enforce its laws or to punish violations thereof. Enforcement can be done by a court or non-judicial bodies such as police (Ryngaert n.d.). 9

60

C. Bruwer

4.5.2.3 UNCLOS Article 86: High Seas In addition to Flag State jurisdiction over vessels on the high seas, Article 110 authorises States to visit foreign vessels on the high seas when there is reasonable suspicion that the vessel is engaged in piracy, slave trade, unauthorised broadcasting, statelessness or hiding the fact that it flies the same flag as the intercepting vessel. In such an event, a State vessel is allowed to: “proceed to verify the ship’s right to fly its flag.” Article 58(2) extends the right of visit to the EEZ. Article 110 is the biggest exception to the principle of mare liberum. However, it does not expressly provide for the boarding of a vessel suspected of smuggling or trafficking10 and must therefore be considered in conjunction with other UNCLOS Articles and crime specific treaties. A State which encounters on the high seas a vessel suspected of trafficking or smuggling, may take the following actions (Table 4.2). Due to the limits of international law and the practicalities of what to do with a seized vessel, cargo and crew, illicit trade activities encountered on the high seas currently pose the biggest obstacle to countering illicit trade. States may also have failed to adopt domestic legislation extending their jurisdiction extraterritorially or may not receive cooperation from the Flag State. This will be expanded on in the case study. Table 4.2  Jurisdiction to board vessels suspected of trafficking or smuggling on the high seas Maritime Instrument and Zone Article High seas UNCLOS Article 110

Which suspicious vessels may be visited? 110(1)(e): Vessel refuses to show flag or flying a false flag, but is in fact of the same nationality as the warship wishing to board 110(1)(d): Vessel is without nationality Vessels suspected of conduct as stipulated by treaty

Rights of intercepting State Board, search, arrest and prosecute

Board, search and perhaps arrest and prosecute Multilateral and Board and take such steps as bilateral crime-­ authorised by Flag State or specific treaties treaty, can include prosecution United Nations Vessels suspected of engaging Board, arrest and prosecute, Charter Chapter VII in activity which threatens or such actions as authorised Authorisation international peace and by Security Council, security (United Nations n.d.) including the use of forcea When such authorisation is given, the requirement to obtain Flag State consent prior to boarding falls away (McLaughlin 2016; UN Global Maritime Crime Programme 2017) a

 There is however ongoing debate about whether trafficking in persons can qualify as ‘slavery’. See for example Brysk and Choi-Fitzpatrick (2012). For the purpose of this chapter, trafficking in persons at sea should be addressed in terms of the Human Trafficking Protocol and Security Council Resolutions. 10

4  Smuggling and Trafficking of Illicit Goods by Sea

61

4.5.3 Other Instruments Applicable to Smuggling and Trafficking In addition to the frameworks discussed in this chapter, there are many international instruments, both specific and general, which are applicable to smuggling and trafficking. These instruments include those aimed at human trafficking and migrant smuggling, drug trafficking, trafficking of firearms, wildlife and environmental crime and counterfeit goods.  It is also important to remember that  States acting against or prosecuting illicit trade activity will do so in terms of their national laws. To this end, the above international instruments must be incorporated into national legislation.11 Direction can be taken from the counter-piracy response which focused on regional law reforms aimed at criminalising piracy and bringing regional States’ legislation in line with international law in order to allow them to prosecute acts of piracy.

4.6 Case Study: Heroin Trafficking in the Western Indian Ocean (WIO) The following section provides an overview of drug traffickers moving heroin from Afghanistan across the WIO via Eastern Africa and onward to Europe. The case study serves to illustrate the modus operandi of the network, the legal framework applicable to drug trafficking at sea and the challenges presented by the different modes of transport. The Eastern African region presents a unique geographical setting due to the securitisation of the surrounding WIO in response to Somali piracy and is characterised by a large extra-territorial naval presence as a result. Trafficking in the WIO is therefore executed in a highly securitised environment, at least in maritime terms. Yet, these measures are of little deterrent value for other illicit activities and arguably were not meant to be. There is also a naval coalition focused primarily on drug trafficking operating in the region. But even though maritime patrols can be based at strategic locations in the WIO, the vast area left without surveillance remains open to criminal networks. This is exacerbated by insufficient intelligence gathering and sharing, negligible regional sea-going capacity and limited jurisdictional powers on the high seas. Criminal networks are therefore willing to take their chances due to the minimal chance of detection and prosecution. Heroin is made from opium, extracted from the seeds of the poppy flower. Thousands of hectares of poppy are under cultivation in Afghanistan (UNODC 2018), the world’s foremost producer of heroin. Most heroin finds its way to consumer markets in Europe and has historically been transported from Afghanistan  Although national legislation can deviate from the provisions set out in international instruments, these instruments provide minimum standards which ratifying States should incorporate into their domestic legislation. 11

62

C. Bruwer

primarily via two overland routes – the Northern Route, stretching from Afghanistan to Central Asia and to Russia (Clarke 2016; Foster 2012), and via the most frequented western route, known as the Balkan Route, which passes through Pakistan and Iran, into Turkey, Bulgaria, the former Yugoslavia, Hungary, Albania and onwards to Western Europe (Foster 2012; UNODC 2015). In the last few decades, but especially in recent years, a maritime route has regained prominence, known as the Southern Route. The Southern Route is a network of routes which flow from Afghanistan to Pakistan and Iran, through the Indian Ocean to Eastern Africa, South and South East Asia and eventually onward to consumer markets primarily located in Europe, Asia, and the United States (UNODC 2015). Various States, especially in Eastern Africa and Asia, are used as transit States, affecting them in varying ways. The Southern Route is primarily a maritime route and it is therefore notable that heroin traffickers have expanded their operations to the oceans. Also noteworthy is the fact that the Southern Route services various markets, unlike the land-based routes (UNODC 2015). While the maritime-based Southern Route has recently gained more popularity with traffickers, the world’s oceans have long been used for the transport of other illicit drugs on boats, container vessels and custom made semi-submersible vessels, especially for the trafficking of cocaine in the Caribbean (Stone 2016; Woody 2016), South America (Europol 2016; United States Government 2017) and West Africa (UNODC 2013) (Fig. 4.1). The use of the Southern Route likely increased due to increased law enforcement on the land-based Balkan route and conflicts in the Middle East (The Economist 2015). This caused traffickers to turn to the sea, which is much harder to police and allow illicit activities to remain undetected. This has pushed drug flows to the WIO and Eastern Africa (Cole 2014). While the majority of heroin is in transit, some remains behind in transit States, either due to leakage from transit shipments or perhaps due to a portion of shipments being specifically destined for these Eastern Africa States (Haysom et  al. 2018). This has resulted in increased heroin use in countries along the route, including Tanzania, Kenya, Seychelles and Mauritius (INCB 2016).

4.6.1 Modus Operandi The Southern Route is a good example of a trafficking network exploiting geography and limited law enforcement capacity, from Afghanistan where poppy is grown, to islands and large coastal areas, busy ports and the high seas. Opium is typically processed into heroin before crossing the ocean to its destination. Heroin is transported from Afghanistan to Iran and Pakistan through the Balochistan region and eventually reaches the Makran coast where it is loaded onto dhows, which are motorised wooden boats of up to 24  m. (Sayehbani and Zeraatgar 2005). These dhows can be packed directly from shore, or smaller boats can transfer the heroin to dhows waiting at sea. The dhows then cross the WIO to transit States on the Swahili

4  Smuggling and Trafficking of Illicit Goods by Sea

63

Fig. 4.1  The Southern Route. (Reproduced from Ref. UNODC 2015)

Coast in Eastern Africa, where the heroin is offloaded. From there, the heroin continues onward to its final destination. Again, offloading can take place directly onto the coast, or cargo can be collected by smaller boats as dhows remain out at sea. On the East African leg, heroin usually hits land in Kenya, Tanzania or Mozambique, but the Indian Ocean islands of Seychelles, Mauritius and Zanzibar are also used as transit States. Islands are often used by drug traffickers, as reflected in the Caribbean, the islands off Guinea Bissau and now in the Indian Ocean, as they allow illicit shipments to be loaded, offloaded, broken up and taken ashore more discreetly. Upon reaching land, the shipment can be rerouted via a maritime, land-­ based12 or air13 route. If heroin is reloaded onto a vessel, it would unlikely be a dhow. Instead, other vessels, such as container ships, are likely used. Some of the heroin will also remain behind in Eastern Africa. Shipping containers have been seized elsewhere along the Southern Route (New York Times 2013), but not yet in Eastern Africa. There have however been seizures of containerised cocaine (Dubois 2015). The lack of containerised seizures likely reflects the inability to locate containerised heroin rather than the absence of this mode of trafficking. A drug carrying container can be hidden among containers carrying licit goods and multiple tonnes can be moved in this manner. While dhows avoid sailing during the monsoon season  A frequently used overland route is from Mozambique to South Africa, where various large consignments have been seized after crossing the border (Dolley 2017; ENCA 2016; IOL 2017). 13  Heroin is sent via air to places like Europe and West Africa (Clarke 2016; Mbogo 2013; UNODC 2013). 12

64

C. Bruwer

(UNODC 2013), commercial shipping vessels are not restricted by weather and sail all year round. Dhows are typically interdicted at sea, while containers are inspected on land. However, very few containers are scanned in ports and container profiling and intelligence gathering are often luxuries in countries experiencing trafficking. Costly, time-consuming measures aimed at locating and countering illicit shipments typically take a backseat to fast turn-around times. Traffickers are also skilled in evading controls at ports and borders, using various means including using unofficial border crossings, fraudulent documentation or bribes. They also make use of trans-shipment. This could be an attempt to minimise the risk of detection (Crosta et al. 2015) or it could be that vessels are following shipping companies’ sailing schedules which use certain transport points. By using transit States, the shipment’s true origin can be hidden from the destination State’s customs agencies (Environmental Investigation Agency 2014). Although no container seizures have been made on the Eastern Africa leg of the Southern Route, there have been heroin shipments with links to container trafficking from the region. One containerised heroin seizure made in Belgium was linked to Mozambique (IOFMC 2016), while another shipment which was destined for a container was made in South Africa. It is therefore likely that containers are used to move heroin, but have remained undetected (Bruwer 2017), allowing multiple tonne shipments to reach consumer markets. There are various reports of politicians and prominent businesspeople facilitating container trafficking through ports in Eastern Africa (Haysom et al. 2018). The use of commercial shipping illustrates how trafficking networks exploit weak controls in commercial and maritime infrastructure and conduct operations in parallel with licit shipments. This highlights the importance of not only securing the oceans, but also securing maritime infrastructure like ports, shipping vessels and containers (for example, see Van de Voort et al. 2003). Shipping companies may or may not be aware that they are used to move illicit goods and urgently need to be included in counter-efforts.

4.7 International Legal Framework Applicable to Drug Trafficking 4.7.1 UNCLOS The Flag State has primary jurisdiction to act against drug trafficking on board its vessels, per UNCLOS Articles 92 and 94 and Article 4(1)(a)(ii) of the Vienna Convention. The power available to States to act against a foreign flagged vessel suspected of drug trafficking depends in which maritime zone the interdiction takes place. Per UNCLOS Article 27 (1)(d), Coastal States may enforcement jurisdiction over drug trafficking in their territorial seas and arguably also in their contiguous zone per Article 33. But which powers do States possess when wishing to respond to drug trafficking on board a foreign vessel in their EEZ or on the high seas? UNCLOS Article 108 calls for full cooperation between States to suppress drug

4  Smuggling and Trafficking of Illicit Goods by Sea

65

trafficking on the high seas and authorises States to request cooperation from other States to suppress such traffic on their flagged vessels. This is however not expanded on any further. Article 110 does not list drug trafficking as a reason to board a foreign vessel. However, a drug trafficking vessel suspected of statelessness may be boarded in order to confirm its nationality. Heroin trafficking vessels in the WIO are often boarded on this suspicion.14 But apart from authorising boarding and s­ earching, Article 110 provides no guidance with regards to a possible legal basis to arrest and prosecute upon finding drugs on board a stateless vessel (see Papastavridis 2013) and the position remains debated. In line with Article 92 of UNCLOS, States may conclude bilateral or multilateral agreements authorising each other to board each other’s vessels and to exercise enforcement jurisdiction. Where there is however no such treaty, the Vienna Convention provides guidance.

4.7.2 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 The Vienna Convention is the primary international instrument applicable to drug trafficking and has been ratified by nearly all UN Member States. It takes direction from the United Nations Single Convention on Narcotic Drugs of 1961. Article 3 requires States to criminalise drug trafficking and related offences, while Article 4 describes jurisdiction. This includes a duty to establish jurisdiction over such offences committed on board a vessel flying that State’s flag (Article 4(1) (a)(ii)) and the option to establish jurisdiction where an offence is committed by a State’s nationals or where “the offence is committed on board a vessel concerning which that Party has been authorised to take appropriate action pursuant to Article 17” (Article 4(1)(b)(ii)). This refers to foreign vessels which authorise another State to interdict or exercise jurisdiction over their vessel. Because Article 4(b)(ii) fails to oblige a State to establishment jurisdiction over such offences (See Papastavridis 2013), States often refrain from doing so. Similar to UNTOC, the Vienna Convention also has provisions on cooperation per Article 10 and MLA per Article 7. Article 17 applies specifically to drug trafficking at sea and calls for cooperation to suppress it. It sets out which powers States have to act against foreign drug trafficking vessels and provides exceptions to Flag State jurisdiction (Table 4.3). International law therefore allows for the boarding of foreign drug trafficking vessels on the high seas under certain circumstances, including after obtaining permission from the Flag State and in accordance with pre-existing agreements authorising a specific interdiction regime. If a foreign vessel requests authorisation from the Flag State to board its vessel on the high seas on suspicion of drug trafficking and no such consent is given, the vessel may not be boarded. It is then the Flag

 Some are however of the opinion that no vessel can ever truly be stateless. Heroin trafficking vessels in the WIO are primarily from Iran, but fail to make a valid claim of registry. 14

66

C. Bruwer

Table 4.3  Boarding  suspected drug trafficking vessels in terms of Article 17 of the Vienna Convention  Article Article 17(2) Article 17(3) & (4)

Article 17(9)

Nationality of suspect vessel Vessels flagged to the Boarding State & Stateless vessels Foreign flagged vessels seaward of territorial seab

Which State may exercise which powers? Flag State may request another State to assist in suppressing such acts. The position with regards to arrest and prosecution of stateless vessels and its crew is debateda Intercepting State may request confirmation of registry from Flag State Upon confirmation, Intercepting State may board, search and request authorisation to take appropriate measures Flag State may authorise such appropriate measures with regards to crew, vessel and cargo if evidence of drug trafficking is found States are encouraged to enter into pre-existing agreements to facilitate boarding of each other’s vessels

Bilateral or multilateral treaties can be established to clarify such issues. An example is the 1995 Council of Europe Agreement on Illicit Traffic by Sea, which expressly requires parties to the agreement to establish jurisdiction over stateless vessels engaged in drug trafficking (Papastavridis 2013) b Guilfoyle (2009) and Papastavridis (2013) assert that Article 17(3) is generally accepted as applying in all maritime zones outside of the territorial sea. The contiguous zone might also be excluded from Article 17(3) as State practice reflects acceptance that drug trafficking breaches FISC laws and the Coastal State shall have jurisdiction over such offences (UNODC 2004) a

state’s responsibility to take appropriate measures against its vessel. Alternatively, the States may wait for the vessel to enter into a Coastal State’s waters, after which the Coastal State may take action. Finally, if action is mandated in terms of a Security Council Resolution, States may take such action as prescribed (UN Global Maritime Crime Programme 2017). Despite the 2019 Security Council debate on the threat which TOC at sea, including drug trafficking, poses to international peace and security, there is yet to be a SC resolution passed on drug trafficking at sea.15 For drug trafficking in the maritime zones other than the high seas, refer to the table on rights and duties in the different maritime zones.

4.8 The Response in Practice The limitations of the international legal framework and the implementation thereof presents a set of complex challenges in addressing drug trafficking at sea.  The closest to such as resolution has been a Presidential Statement on the effect of cocaine trafficking on governance in West Africa (United Nations Security Council 2013). There have also been Presidential Statements issued regarding concerns around increased transnational trafficking and drug trafficking. See, for example, United Nations Security Council (2012). 15

4  Smuggling and Trafficking of Illicit Goods by Sea

67

4.8.1 Law Enforcement For law enforcement measures in ports, States who are signatories to the International Ship and Port Security (ISPS) Code are guided by the standards and measures set out therein. Authorised law enforcement measures at sea depend on where the vessel is registered, in which maritime zone the offence is committed and which international instruments the responding State has ratified and incorporated into its domestic legislation. Most States have ratified UNCLOS and the Vienna Convention and should, in theory, act in accordance with its provisions. Maritime police, coast guards and navies are the primary responders to drug trafficking at sea. The maritime zone where the trafficking takes place may dictate which entity will respond. This is due to different mandates and capacity to operate far from shore.16 Drug trafficking on the high seas is increasingly responded to by State coalitions and navies acting cooperatively. External drug agencies, such as the US’s Drug Enforcement Administration (DEA) and the UK’s National Crime Agency (NCA) also have offices in different locations along the Southern Route. In other regions, such as the Caribbean, States have ship-riders on board their vessels, which are law enforcement representatives from another State who can give boarding and enforcement authorisations (Guilfoyle 2009). The best defence against heroin trafficking in the WIO is a multinational naval coalition called the Combined Maritime Forces Combined Task Force 150 (CMF). The CMF operates under a counter—terrorism mandate, mainly focusing on seizing illicit drugs such as heroin and hashish in the WIO.  The CMF seized nearly 23 tonnes of narcotics in 2017 alone (Rider 2018). The coalition’s area of operations spans over 2 million square miles in international waters (Combined Maritime Forces n.d.), it is therefore impossible to cover the entire area and the CMF relies heavily on intelligence. If a drug trafficking dhow can avoid the CMF navies in international waters, the onus is on the Coastal State to detect the shipment in their national waters and respond thereto.17 Heroin trafficking dhows are often without nationality. The current response to heroin trafficking on the high seas of the WIO is therefore for CMF navies to board the vessel on suspicion of statelessness in terms of UNCLOS Article 110, confiscate the heroin, dispose of it at sea and to let the traffickers and their vessel go without any further consequences. While the uncertain legal position arguably justifies this course of action, it enables the trafficking vessel to return with another shipment. To avoid this, countries like Indonesia and Kenya have resorted to destroying vessels involved in IUU fishing and drug trafficking in their maritime zones. However, such measures are harder to implement on the high seas as it then becomes the interdicting State’s responsibility to repatriate the crew to their home State.  These traditional law enforcement and military actors are different from the response to Somali piracy, for example, which is increasingly seeing private security actors taking on the role of law enforcement. 17  Warning signs that a vessel might be involved in illicit activity are, for example, when a vessel is stateless or claiming to be fishing but has no fishing gear on board. 16

68

C. Bruwer

In the case of a flagged vessel, the Flag State must authorise the boarding, as well as the exercise of enforcement jurisdiction by the interdicting State in terms of Article 17(3) and (4) of the Vienna Convention. In addition, because of the failure of the Vienna Convention to require mandatory exercise of jurisdiction in Articles 4(1)(a)(b) and 17(3), there may be cases where a State is authorised to board a foreign vessel but has failed to establish jurisdiction and therefore cannot act against the vessel, its cargo or crew (Papastavridis 2013). Interdictions are further complicated by the fact that the Flag State may be hard to reach or may exercise its right to sovereignty and refuse authorisation. Ideally, Flag States can interdict their flagged vessels on the high seas themselves in order to establish jurisdiction and prosecute the offenders. But because this is often not possible, existing transnational and interagency efforts such as those of the CMF in the WIO must be relied on. Such efforts can be greatly intensified with regards to cooperation with regional States, gathering intelligence and MLA in  locating illicit shipments and sharpening port security. Such efforts would ideally consist of inter-State, inter-agency and private-public cooperative partnerships, including coastal communities, police, customs officials and the shipping industry.

4.8.2 Prosecution Prosecution of drug trafficking at sea depends on where the drug trafficking vessel was interdicted and by whom. Flag State jurisdiction applies, but drug trafficking suspects apprehended by a Coastal State in its internal waters, territorial sea, contiguous zone or archipelagic waters may also be tried in the Coastal States’ national courts. Due to the current law enforcement practice on the high sea whereby vessels and crews are free to go once their drug shipment has been seized by CMF navies, there have been no prosecutions of foreign flagged or stateless heroin trafficking vessels interdicted on the high seas of the WIO. This might be because States feel that there is no legal basis for them to carry out arrests and prosecutions or because of the difficulty of taking crew to their country for prosecution. The fact that a vessel is stateless might allow any State to try these suspects (Guilfoyle 2009), but this position remains debated.18 Because heroin trafficking on the Southern Route consistently affects the same grouping of States, it would be ideal if affected States and CMF navies could agree to pre-existing boarding authorisations to board each other’s vessels, as well as authorising a prosecution model similar to the regional prosecution model applicable to Somali piracy (see UN Global Maritime Crime Programme n.d.). But even then, maritime and international drug trafficking trials are challenging as evidence can be lost at sea, international law enforcement cooperation to

 For example, it could be argued that all suspects are citizens of some or other State and that that State has the primary right to exercise jurisdiction over them. 18

4  Smuggling and Trafficking of Illicit Goods by Sea

69

gather evidence can be slow or absent and there can be language barriers between suspects and officials. The individuals on board these vessels are also low-level traffickers, as senior members of trafficking networks do not accompany shipments and remain at large.

4.8.3 Suppressing Demand, Eradicating Supply and Harm Reduction Efforts Although trafficked by sea, it is on land where the adverse effects of drug trafficking take form as it fuels addiction, socio-economic challenges, narco-corruption and instability. But there is no use in filling up prisons with low level traffickers trying to make a living, while the heart of the trade is not addressed. While law enforcement is effective in preventing trafficking at sea, addressing demand and supply is the only long-term solution. There is also growing recognition of the need to introduce harm reduction policies instead of criminalising drug users (for example, see Carrier and Klantschnig 2012, Stone 2016, UNODC n.d.). These issues however fall outside of the maritime focus of this chapter.

4.9 Conclusion Various illicit goods are transported via the world’s oceans. The regions being exploited for this purpose are chosen in relation to the source of demand and supply and a variety of conditions enabling traffickers and smugglers to avoid detection. The case study of heroin trafficking on the Eastern coast of Africa illustrates two modes of transport used by traffickers and the different challenges which these methods pose. The mode of transport depends on factors such as the commodity being moved, the geographic location and the means and connections available to traffickers. This chapter has also illustrated how non-state criminal networks are at the heart of contemporary illicit trade at sea and how this has shaped the counter-­ response thereto. The transnational nature of the crimes in question has been met with cooperative State and non-state national, regional and international efforts with varying success. This reflects the hybrid nature of contemporary security governance of transnational non-state threats. However, the limitations of the available resources, expertise and the international legal framework currently hamper law enforcement attempts to combat illicit trade activity at sea. So too does neglecting demand and supply reduction efforts. While maritime transport is a vital link in moving illicit commodities to consumer markets, law enforcement efforts aimed only at trafficking will be futile if demand and supply are not addressed. All illicit commodities are intended to reach land and are often also the product of conditions on land. Land and sea are therefore

70

C. Bruwer

inseparable, and counter-responses should reflect this, addressing all the links along the chain, including demand, supply, development, socio-economic conditions of coastal and other relevant communities, corruption and every other node in-between. Such efforts can only achieve success if it is transnational and accompanied by political will, resource allocation, eradication of corruption and inter-agency and inter-State trust.

References Bhabha J, Zard M (2006) Smuggled or trafficked? Forced Migr Rev 25. Available via Forced Migration Review http://www.fmreview.org/peopletrafficking/bhabha-zard.html. Accessed 23 Aug 2018 Bruwer C (2017) Heroin trafficking through South Africa: why here and why now? Published 15 August. Available via The Conversation. https://theconversation.com/heroin-traffickingthrough-south-africa-why-here-and-why-now-81627. Accessed 3 Oct 2018 Brysk A, Choi-Fitzpatrick A (2012) From human trafficking to human rights: reframing contemporary slavery. University of Pennsylvania Press, Philadelphia Campling L, Colas A (2018) Capitalism and the sea: sovereignty, territory and appropriation in the global ocean. Environ Plan D Soc Space 36(4). https://doi.org/10.1177/0263775817737319 Carrier N, Klantschnig G (2012) Africa and the war on drugs. Zed Books, London/New York Clarke CP (2016) The global illicit trade in illegal narcotics. In: Illicit trade – converging criminal networks, OECD Reviews of Risk Management Policies. OECD Publishing, Paris Cole A (2014) Heroin trafficking in the Indian Ocean: trends and responses. Paper presented at 2014 Galle Dialogue: cooperation and collaboration for maritime prosperity, Galle, Sri Lanka, 1–2 December 2014 Colona F, Jaffe R (2016) Hybrid governance arrangements. Eur J Dev Res 28(2). https://doi. org/10.1057/ejdr.2016.5 Combined Maritime Forces (2018) CTF 150 nets an enormous drugs haul in the Indian Ocean. Published 26 January. https://combinedmaritimeforces.com/2018/01/26/ctf-150-nets-an-enormous-drugs-haul-in-the-indian-ocean/. Accessed 22 Aug 2018 Combined Maritime Forces (n.d.) About Combined Maritime Forces (CMF). https://combinedmaritimeforces.com/about/. Accessed 25 Aug 2018 Crosta A, Beckner M, Sutherland K (2015) Blending Ivory: China’s old loopholes, new hopes. Elephant Action League, Los Angeles Dimova M (2014) A new agenda for policing: understanding the heroin trade in Eastern Africa. SOAS Department of Politics/Department of Development Studies, London Dolley C (2017) Underworld ties in R104m heroin bust at border post- informant. Published 15 June. Available via News24. http://www.news24.com/SouthAfrica/News/underworld-tiesin-r104m-heroin-bust-at-border-post-informant-20170615. Accessed 28 Jul 2017 Dubois A (2015) Cocaine haul worth £4.8m presented in Kenyan court during trial of British aristocrat for drug smuggling. Published 11 November. Available via The Telegraph. http://www. telegraph.co.uk/news/2016/11/11/cocaine-haul-worth-48m-presented-in-kenyan-court-duringtrial-of/. Accessed 27 Jul 2017 ENCA (2016) Man to appear for smuggling R50-mil worth of heroin in fuel tank. Published 7 March. https://www.enca.com/south-africa/mozambican-appear-court-over-r50m-heroinprado. Accessed 28 Jul 2017 Environmental Investigation Agency (2014) Vanishing point: criminality, corruption and the devastation of Tanzania’s elephants. Environmental Investigation Agency, London

4  Smuggling and Trafficking of Illicit Goods by Sea

71

Europol (2016) Ciconia Alba actions on cocaine trafficking by sea and air result in 18 arrests and 2.38 tonnes of cocaine seized. Published 19 October. https://www.europol.europa.eu/ newsroom/news/ciconia-alba-actions-cocaine-trafficking-sea-and-air-result-in-18-arrests-and238-tonnes-of-cocaine-seized-share. Accessed 24 Aug 2018 Fedotov Y (2019) Remarks at the security council debate on transnational organized crime at sea as a threat to international peace and security. Security council debate on transnational organized crime at sea as a threat to international peace and security, New York, 5 February 2019. http:// www.unodc.org/unodc/en/speeches/2019/unsc-tocsea-050219.html. Accessed 27 Feb 2019 Findley R (1990) The “triangular trade” and the Atlantic economy of the eighteenth century: a simple general-equilibrium model (Essays in International Finance No. 177). Princeton University Press, New Jersey Foster K (2012) Croatia: corruption, organized crime and the Balkan Route. Published 25 January. Available via Adriatic Institute for Public Policy. http://www.adriaticinstitute. org/?action=article&id=32. Accessed 28 Jul 2017 Garland D (1996) The limits of the sovereign state: strategies of crime control in contemporary society. Br J Criminol 36(4). https://doi.org/10.1093/oxfordjournals.bjc.a014105 Germond B (2015) The geopolitical dimension of maritime security. Mar Policy 54. https://doi. org/10.1016/j.marpol.2014.12.013 Germond B, Germond-Duret C (2016) Ocean governance and maritime security in a placeful environment: the case of the European Union. Mar Policy 66. https://doi.org/10.1016/j. marpol.2016.01.010 Glück Z (2010) Maritime piracy, capital and securitization: the case of Somalia. In: Hyden G, Tarrosy I, Szabo L (eds) The African State in a changing global context: breakdowns and transformations. LIT Verlag, Munster Grotius H (1633) The freedom of the seas or the right which belongs to the Dutch to take part in the East Indian trade (translation of Mare Liberum sive de iure quod batauis competit ad indicana commerici: Dissertatio) Reproduction of 1688 edition by Magoffin R (1913) Oxford University Press, New York Guilfoyle D (2009) Intercepting vessels at sea. Cambridge University Press, New York Haysom S, Gastrow P, Shaw M (2018) The heroin coast: a political economy along the eastern African seaboard. Research Paper Issue 04 June. Institute for Security Studies, Pretoria Herbst J (2000) States and power in Africa: comparative lessons on authority and control. Princeton University Press, Princeton Indian Ocean Forum on Maritime Crime (IOFMC) (2016) Drug trafficking on the Southern Route and impact on coastal states. Paper presented at the High Level meeting of Interior Ministers of the Indian Ocean region, Colombo, 29 October 2016 International Narcotics Control Board (INCB) (2016) Report of the International Narcotics Control Board for 2016. UNODC, Vienna IOL (2017) Three arrested, R100m worth heroin seized in drug bust. Published 14 June. http:// www.iol.co.za/news/south-africa/kwazulu-natal/three-arrested-r100m-worth-heroin-seized-indrug-bust-9784596. Accessed 28 Jul 2017 Jang J, McSparren J, Rashchupkina Y (2015) Global governance: present and future. Palgrave Commun 2(15045). https://doi.org/10.1057/palcomms.2015.45 Kaldor M (2007) New and old wars, 2nd edn. Stanford University Press, Stanford Kelley RJ, Maghan J, Serio J (2005) Illicit trafficking: a reference handbook. ABC CLIO, Santa Barbara Klein N (2011) Maritime security and the law of the sea. Oxford University Press, New York Mansell JNK (2009) Flag State responsibility: historical development and contemporary issues. Springer, Heidelberg Mbogo S (2013) Drug traffickers turn East Africa into hub. Published 19 October. Available via The East African http://www.theeastafrican.co.ke/news/Drug-traffickers-turn-East-Africainto-hub/-/2558/2039324/-/87yfoj/-/index.html. Accessed 28 Jul 2017

72

C. Bruwer

McLaughlin R (2016) Authorizations for maritime law enforcement operations. Int Rev Red Cross 98(2). https://doi.org/10.1017/S1816383117000340 Mihei AS (2012) “Flag of Convenience”: risk factor in the security environment. International Scientific Conference “Strategies XXI”. Support Centre for Defence and Security Strategic Studies, Romania Naim M ( 2007) Illicit: how smugglers, traffickers and copycats are hijacking the global economy. Arrow Books, New York Naylor RT (2003) Towards a general theory of profit-driven crimes. Br J Criminol 43(1). https:// doi.org/10.1093/bjc/43.1.81 New York Times (2013) Sri Lankan agents seize 550 pounds of heroin. Published 31 August. https://www.nytimes.com/2013/09/01/world/asia/sri-lanka-seizes-550-pounds-of-heroin.html. Accessed 7 Jun 2018 Papastavridis E (2013) The interception of vessels on the high seas: contemporary challenges to the legal order of the oceans. Hart Publishing, Oxford Raymond Z, Morrien A (2009) Security in the maritime domain and its evolution since 9/11. In: Herbert-Burns R, Bateman S, Lehr P (eds) Lloyd’s MIU handbook of maritime security. Taylor & Francis, New York Rider D (2018) New CMF drugs bust. Published 5 January. Available via Maritime Security Review. http://www.marsecreview.com/2018/01/new-cmf-drugs-bust/. Accessed 24 Aug 2018 Ryngaert C (n.d.) The concept of jurisdiction in international law. Utrecht University. Available via Utrecht University. https://unijuris.sites.uu.nl/wp-content/uploads/sites/9/2014/12/TheConcept-of-Jurisdiction-in-International-Law.pdf. Accessed 28 Sept 2018 Sayehbani M, Zeraatgar H (2005) A survey on the features of the existing motorized wooden dhows and the proposed replacement for these vessels. WIT Trans Built Environ 79(1). https:// www.witpress.com/Secure/elibrary/papers/MH05/MH05008FU.pdf Seyle C, Madsen J (2015) Non-State actors in maritime security. One Earth Future Policy Brief, One Earth Future Foundation, Broomfield. https://doi.org/10.18289/OEF.2015.002 Shaw M, Reitano T (2014) The political economy of trafficking and trade in the Sahara: instability and opportunities. Paper in Sahara knowledge exchange series. World Bank, Washington Stone K (2016) Global state of harm reduction 2016: regional overview sub-Saharan Africa. Harm Reduction International, London The Economist (2014) Full Circle: drug trafficking in the Caribbean. Published 24 May. https:// www.economist.com/the-americas/2014/05/24/full-cir. Accessed 24 Aug 2018 The Economist (2015) The Smack Track. Published 15 January. https://www.economist.com/middle-east-and-africa/2015/01/15/the-smack-track. Accessed 10 Oct 2018 The Organisation for Economic Co-operation and Development (OECD) (2012) Transnational organized crime and fragile states. OECD Development Co-operation Working Papers W/P 2/2012 Trelawny C (2013) Maritime security beyond military operations: a civilian perspective. RUSI J 158(1). https://doi.org/10.1080/03071847.2013.774639 UN Global Maritime Crime Programme (2017) Maritime crime: a manual for criminal justice practitioners. United Nations, Vienna UN Global Maritime Crime Programme (n.d.) Maritime Crime Programme  – Indian Ocean. Available via UNODC https://www.unodc.org/unodc/en/piracy/indian-ocean-division.html. Accessed 18 Sept 2018 United Nations (2009) Secretary General, addressing international donors’ conference, spells out priorities for international efforts to enhance security in Somalia. Published 23 April. http:// www.un.org/News/Press/docs/2009/sgsm12203.doc.htm. Accessed 28 Sept 2018 United Nations (n.d.) Chapter VII: Actions with respect to threats to the peace, breaches of the peace and acts of aggression. http://www.un.org/en/sections/un-charter/chapter-vii/index.html. Accessed 3 Oct 2018 United Nations Convention against Corruption, 31 October 2003, New York, UNTS 2349 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, Vienna, 28 ILM 497

4  Smuggling and Trafficking of Illicit Goods by Sea

73

United Nations Convention on the Law of the Sea, 10 December 1982, Montego Bay, 1833 UNTS United Nations Convention on Transnational Organized Crime, 15 November 2000, New York, 40 ILM 353 United Nations Human Rights Office of the High Commissioner (2014) Human rights and human trafficking. United Nations, Vienna United Nations Security Council (2012) Statement by the President of the Security Council, 25 April 2012, S/PRST/2012/16. http://www.securitycouncilreport.org/un-documents/drug-trafficking-and-security/. Accessed 3 Oct 2018 United Nations Security Council (2013) Statement by the President of the Security Council, 18 December 2013, S/PRST/2013/22. http://www.securitycouncilreport.org/atf/ cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_prst_2013_22.pdf. Accessed 30 Jul 2018 United Nations Single Convention on Narcotic Drugs, 30 March 1961, New York, 520 UNTS 204, as amended by the Protocol amending the Single Convention on Narcotic Drugs, 1961, 25 March 1972, Geneva, 976 UNTS 3 United States Government (2017) Global cocaine trafficking. Published March. Available via White House. https://www.whitehouse.gov/sites/whitehouse.gov/files/ondcp/global_cocaine_ trafficking.pdf. Accessed 3 Oct 2018 UNODC (2004) Practical Guide for competent national authorities under Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. UNODC, Vienna UNODC (2007) Cocaine trafficking in West Africa: the threat to stability and development (with special reference to Guinea-Bissau). UNODC, Vienna. https://www.unodc.org/documents/ data-and-analysis/West%20Africa%20cocaine%20report_10%2012%2007.pdf. Accessed 24 Aug 2018 UNODC (2013) Transnational organized crime in Eastern Africa: a threat assessment. UNODC, Vienna UNODC (2015) Afghan opiate trafficking through the Southern Route. UNODC, Vienna UNODC (2016) The Afghan opiate trade and Africa: a baseline assessment. UNODC, Vienna UNODC (2018) Last year’s record opium production in Afghanistan threatens sustainable development, latest survey reveals. Published 21 May. http://www.unodc.org/unodc/en/ frontpage/2018/May/last-years-record-opium-production-in-afghanistan-threatens-sustainable-development%2D%2Dlatest-survey-reveals.html. Accessed 30 Jul 2018 UNODC (n.d.) Pillar V: prevention of drug use, treatment and care of drug use disorders and HIV and AIDS prevention and care. http://www.unodc.org/easternafrica/en/sub-programme-V.html. Accessed Jun 2015 Van de Voort M, O’Brien KA, Rahman A, Valeri L (2003) “Seacurity”: improving the security of the global sea-container shipping system. RAND Europe, Santa Monica. Also see Chapter X on Port Security Varese F (2010) What is organized crime? In: Varese F (ed) Organized crime: critical concepts in Criminology. Routledge, London (updated version of chapter) Von Lampe K (2016) Organized crime: analysing illegal activities, criminal structures, and extra-­ legal governance. Sage, Thousand Oaks Vreÿ F (2014a) Entering the blue: conflict resolution and prevention at sea off the coast of East Africa. J Indian Ocean 10(2). https://doi.org/10.1080/19480881.2014.952956 Vrey F (2014b) Perspectives on maritime security cooperation in the Gulf of Guinea. Acta Criminol: S Afr J Criminol. Special edn. https://doi.org/10.1080/19480881.2014.952956 Woody C (2016) US agents nearly caught $194 worth of cocaine in a narco-submarine. Published 28 May. Available via Business Insider. https://www.businessinsider.com/us-agents-nearlycaught-194-million-in-cocaine-in-narco-submarine-2016-3?IR=T. Accessed 24 Aug 2018 World Health Organization (n.d.) Globalization. Available: https://www.who.int/topics/globalization/en/. Accessed 25 Feb 2019

Chapter 5

Migration, Seafarers and the Humanitarian-Security-Economic Regimes Complex at Sea Amaha Senu

Abstract  Undocumented migration across the maritime space poses different challenges to the maritime industry. By focusing on a hitherto overlooked group, seafarers, the chapter attempts to set their experiences in the maritime security research agenda by using the Mediterranean scene as a demonstrative case study. The chapter highlights the normative dilemma and conceptual limitation of reading undocumented migration at sea through a security lens alone. Instead, by focusing on the experiences of seafarers in relation to migrants at sea, the chapter draws from the literature on international regime complexity to frame the socio-legal, political and economic environment seafarers inhabit and operate in vis-à-vis migrants as a ‘humanitarian-security-economic regimes complex’. Using examples from the Mediterranean Sea, the chapter argues that the humanitarian, security and economic regimes within the complex place contradicting expectations on seafarers which entail significant tensions and lead to trade-offs such as instances of non-rescue. The chapter, thus, calls for more research into the experiences of seafarers which takes into account the nuances of the humanitarian, security and economic challenges they face when encountering migrants at sea. Keywords  Undocumented migration · Mediterranean · International regime complexity · Seafarers

A. Senu (*) Johannesburg Institute for Advanced Study, Johannesburg, South Africa © Springer Nature Switzerland AG 2020 L. Otto (ed.), Global Challenges in Maritime Security, Advanced Sciences and Technologies for Security Applications, https://doi.org/10.1007/978-3-030-34630-0_5

75

76

A. Senu

5.1 Introduction The chapter explores the challenges posed by large-scale undocumented migration at sea to commercial shipping by focusing on the Mediterranean Sea. Ships are required by international law1 to come to the assistance of anyone in distress at sea, provided that such action does not endanger the safety of the ship and the crew. In addition, Chapter III Regulation 17-1 of the SOLAS Convention states that all ships should have specific plans and procedures for recovering persons from the water (IMO 2014, p. 243). However, as the International Chamber of Shipping’s (ICS) guidance for large-scale rescue at sea points out, such procedures were not designed to address large-scale rescue of migrants, nor were the international regulations (ICS 2015, pp.  3–4). According to the ICS, merchant ships had rescued around 100,000 migrants in the Mediterranean between 2015 and 2018 (ICS 2018). Eugenio Cusumano (Cusumano 2019), based on figures obtained from the Italian Maritime Rescue Coordination Centre, also provides figures on the numbers of migrants rescued by commercial ships. For instance, in the years 2014, 2015, 2016 and 2017, merchant vessels rescued about 42,000, 16,000, 14,000 and 7000 migrants respectively (Cusumano 2019, p.  11). The shipping industry has voiced concerns that commercial ships are not equipped to undertake large-scale rescues (ECSA 2015) and that states’ refusals to allow disembarkation have serious humanitarian and commercial consequences (ICS). While the central focus of this volume revolves around various ‘maritime security challenges’, discussing undocumented migration in the maritime domain through a security lens raises a serious normative dilemma (Huysmans 2002). In addition, it also essentialises security tropes while the challenges the shipping industry faces also include humanitarian and economic ones. In the subsequent section, I will elaborate on the normative dilemma of discussing undocumented migration at sea under the rubric of ‘global maritime security challenges’. As I will discuss, and justify, in more detail below, this normative dilemma necessitates two heuristic manoeuvres in which I deem it necessary to: (1) expand the challenges to global shipping considered here beyond security to humanitarian and economic ones; and (2) focus specifically on seafarers as the actors in global shipping to whom undocumented migration at sea poses challenges. Subsequently, in order to fully account for the nuanced challenges seafarers face, the chapter draws from the regime complexity literature in framing the socio-legal, political and economic context within which seafarers operate vis-à-vis migrants as a humanitarian-security-economic regimes complex. This regime complex is understood as being constituted of humanitarian, security and economic regimes, each entailing specific expectations for seafarers which they have to meet simulta-

 Article 98.1 of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS); Chapter V, Regulation 33.1 of the International Convention for the Safety of Life at Sea, 1974 (SOLAS); Chapter 2.1.10 of the International Convention on Maritime Search and Rescue, 1979 (SAR); Article 10 of the International Convention on Salvage, 1989 (SALVAGE). 1

5  Migration, Seafarers and the Humanitarian-Security-Economic Regimes…

77

neously. Against this regime complex backdrop, the main point the chapter seeks to get across is that seafarers often find themselves having to navigate contradictory demands stemming from the constituent regimes of the complex when encountering migrants at sea. These contradictory demands entail significant stress for seafarers and, in some instances, lead to trade-offs such as failure to render assistance to the migrants. Therefore, the chapter argues that the distinct humanitarian, economic and security-related expectations need to all be taken into account to fully understand the nuances of the challenges seafarers face. The chapter will largely draw on relevant academic literature, legal documents, public statements from relevant organisations as well as publicly available media reports to ground the discussion in reported incidents of (non-)rescue across the Mediterranean scene. Combinations of keywords were used to identify incidents in which commercial vessels rescued or failed to rescue migrants. In addition, the provisions of the relevant legislations constituting the respective regimes were also consulted. Reports on specific incidents are drawn here anecdotally to support the overall claim made in the chapter. In that sense, the chapter does not present a systematic and conclusive exploration of the experiences of seafarers when encountering migrants. Instead, by drawing attention to this largely overlooked aspect, the chapter aims to serve as an agenda-­ setting attempt to place the experiences of seafarers firmly at the core of future research.

5.2 The Normative Dilemma of Discussing Migration as a Maritime Security Challenge Discussing the issue of migration in a volume dedicated to introducing ‘Global Challenges in Maritime Security’ presents a normative dilemma. Various scholars in critical security studies have argued that migration as a security problem is not a given, but rather involves the active framing of the issue as such. Subsequently, as Huysmans (2002, p. 47) points out, there is always a risk for scholarly analysis to contribute to and reproduce framings of migration as a security problem even when seeking to critically engage in analysing the processes of security framings, their reproductions and implications. For instance, the simple inclusion of migration at sea as one of the global challenges in maritime security has the performative effect of constituting the issue as a maritime security problem. This would risk reifying migration at sea as primarily a security challenge, frustrating rival framings such as as a question of free movement of labour or as a human rights issue or as a consequence of global inequalities or as a humanitarian tragedy (Guiraudon 2000, 2003; van Munster 2009). The rich literature on the securitisation of migration has demonstrated how migration is made into a security concern for states through active discursive framings and institutional practices (Bigo 2001, 2002; Huysmans 2000, 2006; Leonard 2010; Pugh 2004; Tsoukala 2005; van Munster 2009; Watson 2009). The shipping industry is also implicated in the secu-

78

A. Senu

rity framing of migration through similar discursive and institutional practices. For instance, BIMCO, one of the influential international shipping associations, publishes a regularly updated ‘Shipmaster’s Security Manual’, lauded as an ‘indispensable tool for the shipmaster and shipowners to reduce the human and economic cost related to security breaches and illegal maritime activities’ which include ‘piracy, terrorism, stowaways, smuggling and migrant rescues’.2 However, in industry publications, such as the BIMCO’s one above, it is also acknowledged that migration at sea poses significant humanitarian challenges and economic cost to the industry. Nonetheless, the shipping industry involves diverse actors such as shipowners, seafarers, insurance companies, charterers, shipping associations and organisations. Hence, it is also important to be specific about which actors are under consideration when discussing the challenges to shipping. This certainly constitutes a normative dilemma in the face of the suffering and deaths taking place across the Mediterranean.3 It is a very uneasy exercise to discuss the economic cost to corporate and business actors in shipping when squared against the tragic experiences of the migrants involved (Crawley et al. 2017; HRW 2009; Squire et al. 2017). Furthermore, while there have been documented incidents in which rescued migrants posed significant security concerns to the crew on board, and this certainly merits discussion, one needs to take caution to reduce the risk of repeating/reinforcing the very securitisation of migration at sea when discussing such incidents (Huysmans 2002, p.  47). This dilemma is even more pronounced when the writing is aimed at a collection intended to provide insights into, arguably, less contested security challenges such as piracy, IUU fishing and maritime terrorism. As a way around this normative dilemma, I have engaged in two heuristic manoeuvres which, in the first instance, involves specifying the actors in shipping to be considered here. I have chosen to focus on seafarers4 in this regard. The experiences of seafarers when encountering boats full of migrants have not been centred in academic research. Although there are some notable exceptions that specifically focus on shipping and, to a limited extent, on seafarers (Aarstad 2015; Basaran 2014, 2015a; Goddard 2015; Kilpatrick 2017; Kilpatrick and Smith 2015), the lived experiences of seafarers vis-à-vis migrants at sea have been overlooked. Instead, the emphasis has been on analyses of the provisions in various legal instruments (Bailliet 2003; Coppens 2013a, b; Coppens and Somers 2010; Davies 2003; Tauman 2002). In addition to addressing this oversight, I also find it more ethically palatable to focus on seafarers as they also constitute a vulnerable group, albeit, confronting a significantly more vulnerable group at sea. While not equating the sufferings of migrants at sea with the pressures and challenges experienced by seafarers, seafarers,

 https://www.bimco.org/products/publications/witherbys/shipmasters-security-manual  See annual recorded deaths since 2014 at: https://missingmigrants.iom.int/region/mediterranean 4  The term ‘seafarers’ is construed here broadly to include fishers working on fishing vessels as well as those working on commercial ships. 2 3

5  Migration, Seafarers and the Humanitarian-Security-Economic Regimes…

79

nonetheless, are a vulnerable group susceptible to externalities beyond their control as the subsequent discussion demonstrates. However, the challenges seafarers face cannot simply be relegated to security, but also involve issues of humanitarian traditions at sea as well as their economic roles qua seafarers. This necessitates a second heuristic manoeuvre which involves broadening the analysis beyond security themes to include humanitarian and economic dimensions. As mentioned in the introduction, seafarers are, as far as practicable, legally bound to render assistance and come to the rescue of anyone at sea. The duty to render assistance is, however, rendered problematic as states can refuse the disembarkation of the migrants, causing delays for the ships. While examples of such scenarios are provided in the chapter, it suffices to mention here that rescue efforts entail financial cost for shipowners that are exacerbated by delays, bringing the economic dimension front and centre. This is an important dimension to consider when ­analysing the experiences of seafarers and the challenges they face. Hence, the security-­related themes of migration at sea, such as border security and ship security, need to be considered alongside the humanitarian and economic dimensions of (non-)rescue. In the next section, I have drawn from the literature on regime complexity to frame the socio-legal, political and economic environment seafarers inhabit and operate in vis-à-vis migrants as a humanitariansecurity-economic regimes complex. While the humanitarian and border security regimes at sea are often acknowledged in the literature, centring the shipping industry and seafarers in the analysis introduces a distinct economic regime leading to a regime complex. The three regimes constituting the complex and the roles they bestow on seafarers will be separately discussed before moving on to looking at cases of (non-)rescue in the Mediterranean Sea to demonstrate the contradictory expectations placed upon seafarers and the trade-offs the regime complex entails.

5.3 Humanitarian-Security-Economic Regimes Complex In international relations, regimes are understood as ‘sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given issue-area’ (Krasner 1982, p. 186). A single regime can involve a number of intergovernmental organisations and treaties (Orsini et al. 2013, p. 29) as well as state and non-state actors who have stakes in a given issue area. Regime complexes, on the other hand, are defined as ‘a network of three or more international regimes that relate to a common subject matter; exhibit overlapping membership; and generate substantive, normative, or operative interactions recognised as potentially problematic whether or not they are managed effectively’ (Orsini et al. 2013, p. 29, emphasis added; see also Alter and Meunier 2006, 2009; Raustiala and Victor 2004, p. 279). Orsini et  al. also add that ‘the constitutive elements of regime complexes are distinct regimes on their own right’ (Orsini et al. 2013, p. 29) and that ‘policymakers and stakeholders must see the simultaneous existence of elemental regimes as being actually or at least potentially problematic for a regime complex to exist’ (Orsini et al. 2013, p. 31). Furthermore, different regimes shape

80

A. Senu

actors’ understandings of a given problem in different and potentially conflicting ways (Struett et al. 2013) as well as prescribe conflicting actions to be taken. Regime complex theory traditionally focuses on such actors as states, international organisations and NGOs, and the consequences of regime complexes for these actors and how they actively navigate the complexity using various strategies (Alter and Meunier 2009; Gehring and Faude 2013, p. 126). The units of analysis are not individuals but institutions even in those works which are mainly interested in exploring the consequences of international regime complexity to the behaviours, decision-making and strategies of actors (Alter and Meunier 2009; Drezner 2009; Struett et al. 2013). While I am not engaging in an ‘orthodox’ regime complex analysis here, I find it useful to frame the broader context seafarers find themselves in when encountering migrants at sea as a regime complex so that it serves as the background against which the tensions and contradictions experienced by seafarers are understood. This is because seafarers are subject to the established norms, principles and procedures embedded in humanitarianism at sea, maritime economics as well as border and maritime security. Seafarers are trapped between regimes at the level of micro-­ dynamics, juggling with diverging expectations coming ‘from above’. In what follows, I will carve out these regimes and highlight the conflicting demands they place up on seafarers.

5.3.1 The Humanitarian Regime at Sea Although my use of ‘humanitarian regime at sea’ denotes a single regime, there are in fact three distinct regimes subsumed under it – a ‘humanitarian regime proper’, a human rights regime and a refugee regime (Betts 2010; Perkowski 2018). Perkowski (2018) emphasises that it is necessary to differentiate between human rights and humanitarianism in the analysis of border policing as humanitarian and human rights discourses can be deployed differently to justify different practices (Perkowski 2018, pp. 463–466). Alexander Betts, in his discussion of ‘the refugee regime complex’, treats refugee, human rights and humanitarianism regimes as distinct from one another. The refugee regime is constituted of the 1951 Convention on the Status of Refugees,5 with the UNHCR as the organisation to uphold and oversee its implementation (Betts 2010, pp. 17–18). On the other hand, the human rights regime is indicated as being constituted of various instruments and organisations such as the Convention against Torture,6 the European Convention of Human Rights, as well as the OHCHR.7 The humanitarian regime Betts considers, however, relates more to humanitarianism ashore and has less to do with the maritime scene; but the refugee  United Nations Convention Relating to the Status of Refugees, 1951.  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. 7  Office of the United Nations High Commissioner for Human Rights. 5 6

5  Migration, Seafarers and the Humanitarian-Security-Economic Regimes…

81

and human rights regimes remain relevant and are subsumed here under the ‘humanitarian regime at sea’. The maritime ‘humanitarian regime proper’ is ‘a composite of maritime laws, norms and practices’ (Pugh 2004, p. 58) founded upon key provisions enshrined in various international conventions, long-established customary practices in shipping as well as various guidelines circulated by institutions such as the IMO.  The foundational conventions are the UNCLOS, SOLAS, SAR and SALVAGE Conventions which require shipmasters to render assistance to anyone in distress at sea, provided that such action does not endanger the safety of the ship and the crew. The Refugee regime, which Betts (2010) distinguishes, is drawn into the humanitarian regime at sea through IMO’s guidelines, such as Resolution MSC.167 (78), which introduce the principle of non-refoulement stating that shipmasters should ‘seek to ensure that survivors are not disembarked to a place where their safety would be further jeopardised’ (IMO 2004, p. 6; Tondini 2012, p. 64). IMO guidelines also mention asylum examination procedures and make explicit references to the 1951 Convention Relating to the Status of Refugees and the 1984 Convention against Torture, linking humanitarianism at sea with the refugee and human right regimes (IMO 2009, see also Tondini 2012). Hence, while it may be useful to distinguish between humanitarian, refugee and human rights regimes when analysing the practices of certain actors (Betts 2010, Perkowski 2018), it is appropriate to subsume all these under the ‘humanitarian regime at sea’ when analysing the experiences of seafarers. This is because obligations to treat rescued migrants humanely and observe the principle of non-refoulement follow from the initial act of rendering assistance and constitute the continuum of expectations placed upon seafarers when they encounter migrants floating at sea. The humanitarian regime at sea functions fairly smoothly when the rescued are other seafarers or passengers who are properly documented and would not be difficult to repatriate, but becomes complicated when undocumented migrants are involved (Aalberts and Gammeltoft-Hansen 2014; Trevisanut 2010). In fact, the history of the humanitarian regime at sea and the legislative changes which were introduced over time reveal this very clearly (see Aalberts and Gammeltoft-Hansen 2014; Trevisanut 2010). This is because rescuing undocumented migrants at sea, and disembarking them subsequently, confronts states’ imperatives to control migration and their borders.

5.3.2 The Security Regime and Its Interplay with Humanitarianism at Sea The security regime at sea is understood here as encompassing maritime border security and ship security. Before attempting to delineate the security regime at sea, it is important to say a few words about an emerging body of literature which draws

82

A. Senu

attention to a curious interplay between border security and humanitarianism at sea. It is often argued that border security actors have been co-opting humanitarian norms and principles in justifying increasing border control enforcements (Basaran 2014, 2015a, b; Cusumano 2018; Little and Vaughan-Williams 2017; PallisterWilkins 2017, 2018a; Pugh 2004; Walters 2011). Pallister-Wilkins (2015) argues that humanitarianism and border policing are not contradictory and competing practices, but rather represent a governmental logic in which migrants are viewed as both ‘at risk’ in need of help and ‘a risk’ to be managed (Aradau 2004). Hence, actors engaged in border policing view/argue that their policing activities are simultaneously advancing humanitarian aims (Pallister-Wilkins 2015, 2017, pp. 92–93). While humanitarianism and border security are increasingly intertwined, it is useful to treat the two as distinct regimes when discussing seafarers’ experiences. First, seafarers do not have the resources to co-opt one by the other as states do. Instead, they inhabit a space that is simultaneously governed by norms, regulations and procedures stemming from humanitarian, border security as well as economic concerns, and are expected to abide by all of them at once. Yet, their experiences reveal significant tensions as we shall see later in the chapter. In order to tease out these tensions, it is useful to conceive of humanitarianism, border security and maritime economics as distinct regimes and identify the different obligations these regimes place upon seafarers. Accordingly, the border security regime(s), although more nebulous in comparison to the other two, can be understood as primarily founded upon states’ sovereign prerogatives to regulate transborder flows (Krasner 2001, p. 8). This appears to be implicitly recognised in the international conventions constituting the humanitarian regime at sea which all fall short of explicitly requiring states to permit disembarkation onto their territories. Any attempt to include mandatory provisions to that effect has been strongly resisted during the drafting stages of these instruments (Coppens 2013a; Coppens and Somers 2010, pp. 388–392). Seafarers are indirectly constituted in the border security regime(s) through state practices, such as disembarkation refusals and/or using ‘anti-­smuggling laws’, which have modulating effects on the behaviours of seafarers (Basaran 2014, 2015a). However, the shipping industry also has a security regime of its own in the form of the ISPS Code8 which is concerned with ship and port security. References to the ISPS Code and security are often made in various industry guides in relation to the rescue of migrants. For instance, the International Chamber of Shipping’s (ICS) guidance on ‘Large Scale Rescue Operations at Sea’ states that ‘[…] as a result of the large scale character of some rescues, it may also be necessary to refer to: The Ship Security Plan (SSP) required by the ISPS Code […]’ and also provides detailed guidance on security measures which seafarers ought to take (ICS 2015, p. 3, 8). BIMCO’s ‘Shipmaster’s Security Manual’ includes a dedicated discussion on migrant rescue alongside issues of piracy and cybersecurity (BIMCO 2019).

 International Ship and Port Facility Security Code, 2002.

8

5  Migration, Seafarers and the Humanitarian-Security-Economic Regimes…

83

Nonetheless, humanitarian obligations and considerations of security are not the only ones that impinge upon seafarers’ interactions with migrants at sea.

5.3.3 The Economic Regime in Commercial Shipping It is an inconvenient truth that economic rationalities should come into play vis-à-­vis saving lives, but they do and need to be taken seriously when discussing seafarers’ experiences. While the economic dimension is usually acknowledged, it is not treated as a regime in its own right. The economic regime encompasses a set of principles, norms, rules and procedures as well as organisations geared towards facilitating, harmonising and regulating maritime trade. Davies (2003), Aarstad (2015), Goddard (2015), Kilpatrick and Smith (2015) and Kilpatrick (2017) are among the few notable works to bring the commercial implications of rescue into focus. They examine the commercial implications of large-scale rescues of migrants for merchant shipping from the vantage point of the economic regime. This regime is constituted of: the New York Produce Exchange time charter party forms; international conventions, such as the Hague-Visby Rules9, the Hamburg Rules10 and the Rotterdam Rules11; as well as P & I Clubs’12 indemnity insurance. While P & I Clubs usually cover the direct liability costs associated with rescue, the costs of delay or chartering are not, which need to be settled between shipowners and their customers. Through examining the text of the above legal documents and case studies, Kilpatrick (2017, p. 14) concludes that shipowners are usually protected from being liable for breach of contract for delays and deviations for the purpose of saving lives. However, when it comes to the issue of whether a ship is deemed ‘off-hire’ during the period she is saving lives and, hence, no payments being made to the shipowner by the charterer, the widely used charter party form (commonly referred to as NYPE 1946) is not clear. Although arbitration cases seem to have favoured shipowners in the past, there is a strong potential for disputes (Kilpatrick 2017). Furthermore, these disputes will also taint the business relationships of shipowners with their customers. Seafarers are keenly aware of the economic implications of rescuing migrants whether to the shipowners or their insurers and customers. Even if their shipowners are protected from any cost through their contractual agreements with third-parties, non-financial issues, such as business reputations, are likely sources of concern. In light of what some note as the increasing loss of professional autonomy of the ships’ crew (Sampson et al. 2019) and tendency to try to think in terms of ‘what the ship International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, 1924, as amended by the Brussels Protocol, 1968. 10  United Nations Convention on the Carriage of Goods by Sea, 1978. 11  Convention of Contracts for the International Carrying of Goods Wholly or Partly by Sea, 2008. 12  P & I Clubs (Protection and Indemnity Insurance Clubs) are non-profit mutual insurance associations that provide cover against third-party liabilities for their members, who will typically be shipowners, charterers and ship operators. 9

84

A. Senu

owner wants’ as opposed to using professional discretions (Sampson 2013, p. 89), the economic dimension of rescue gains increased salience. More importantly, in the context of precarious contractual employment in contemporary shipping, studies have demonstrated how seafarers are concerned about incurring costs to their employers and the subsequent implications to their job security and careers (Bhattacharya 2011; Kahveci and Nichols 2006; Sampson et al. 2019; Xue et al. 2016). This calls for taking the economic implications of rescue for seafarers, and migrants, seriously as the case study below demonstrates.

5.4 Seafarers and the Humanitarian-Security-Economic Regimes Complex in the Mediterranean Sea Large-scale rescue operations involving migrants pose significant challenges for seafarers. Cases such as that of MV King Jacob, in which close to 800 migrants perished when the migrant boat collided into the ship during an attempt to render assistance (Miglierini 2016),13 highlight the strenuous nature of large-scale rescue operations. Captain Jamie Wilson, who was involved in the rescue of 907 migrants off the coast of Libya in January 2017, indicated that although his crew were prepared for the possibility of encountering migrants, albeit, without any previous rescue experience, they were overwhelmed by the sheer number of the migrants (BBC 2017). His account affirms that humanitarian principles take precedence over any other considerations for many seafarers. As captain, you’re bound by law to proceed to help anyone in danger, […] There’s no grey area for me as captain – you have to go and assist. My duty is to save lives at sea. (BBC 2017)

There have been a number of exemplary cases in which seafarers rescued many migrants involving relatively smooth operations. These include the cases of containerships MV Evelyn Maersk and NYK Orion which rescued 352 and 257 migrants respectively in August 2014 (No Author 2014a; Zheng 2014). In both cases, the rescues were initiated by the Rescue Coordination Centres (RCCs) in the region and disembarkations were swift. The case of MT Bonita also stands out as a demonstration of seafarers’ commitment to saving life at sea. In August 2014, the seafarers on board rescued 360 and 180 migrants in the Mediterranean in the span of one week (No Author 2014b). However, in other cases, rescues can turn out to be far from smooth and swift, with rescued migrants getting increasingly agitated especially when they are concerned about being taken to undesirable destinations. While not having taken place on the Mediterranean, the well-known case of MV Tampa is illustrative in which the 440 rescued migrants threatened to commit suicide and to embark on hunger strikes unless they were taken to Australia, which prevented the captain from proceeding to his initial intended next port of call  – 13

 Also see, https://deathbyrescue.org/report/narrative/

5  Migration, Seafarers and the Humanitarian-Security-Economic Regimes…

85

Singapore (Bailliet 2003; Kenney and Tasikas 2003; Tauman 2002). There is also the case of the cruise liner Salamis Filoxenia which rescued about 300 migrants who subsequently refused to disembark in Cyprus, demanding to be taken to Italy instead. The stand-off was reported to have costed the company ‘hundreds of thousands of euros’ (BBC 2014). The Spanish fishing vessel, Nuestra Madre Loreto, also found itself in a situation where 11 migrants were stranded on the vessel for ten days when Italy and Malta refused to allow the ship to enter their ports. The captain of the fishing vessel is said to have told the AFP: We have been left in the lurch at sea, we can’t go anywhere, […] If we go to Libya, we run the risk of a mutiny… when they hear the word Libya they get very nervous and hysterical, it is hard to calm them down. […]We don’t want to return them to Libya. After they managed to get here, we don’t want to return them to the place they are fleeing from. (No Author 2018a)

It was also reported that the captain indicated they were running low on fuel and provisions and added, ‘I cannot sail north and south, east and west, fleeing bad weather, without having an answer. I cannot believe it’s not possible to find these people shelter’ (No Author 2018b). In other instances, seafarers might also risk taking the rescued to a place where they would face danger, going against the principle of non-­refoulement under the refugee regime. The case of MV Nevin in November 2018 is demonstrative here. The 95 rescued migrants refused to disembark for ten days in the Port of Misrata, Libya, voicing concerns about their safety. They were subsequently forcefully removed by the Libyan authorities, reportedly using rubber bullets and tear gas (Domonoske 2018; Hayden 2018; No Author 2018c). Seafarers can, at times, experience rescue operations as challenging, worrisome and characterised by uncertainties when fulfilling their humanitarian obligations. For instance, on 22nd October 2014, the dry bulk carrier MV CS Caprice was alerted by Malta’s Rescue Coordination Centre to proceed to the assistance of a boat in distress carrying migrants. While the ship had only 20 crew members on board, the migrants they eventually rescued numbered at 510 individuals. Captain Rajesh Dhadwal, who was the designated person ashore (DPA) at the time providing guidance to the crew, indicated that the crew had reservations and concerns. His account highlights the health, safety and security concerns that are often felt by seafarers in such situations. The human spirit has to lift itself to another level. You cannot attempt this scale of operation if you are thinking about compensation or ‘what if the migrants have Ebola?’ or ‘what if there are terrorists among them and they take over the ship?’ You have to put aside the ‘what ifs’. […] Isis has said it might use this as a channel to export terrorism, this is a real threat and it becomes so real when you start talking about gas tankers where, if people took over the ship, you would be facing an environmental disaster. […] When you are in the middle of the sea, with so many people with no papers, how can you stand off and not help them, thinking of all the various scenarios? If they die and they were not criminal or terrorists, then who is liable for their deaths? (No Author 2015).

Considering the rescue operation took place at the time of the Ebola epidemic in West Africa and the political crises in Libya and Syria, his account highlights the profound health and security concerns seafarers can have when engaged in rescuing

86

A. Senu

migrants in the Mediterranean Sea and beyond. What Valverde (2014, p. 384) calls ‘the affective dimensions of security’ are ever-present on board in these situations. Furthermore, the absence of clear instructions from coastal states on the next course of action can exacerbate the level of anxiety among seafarers on board. The lack of clarity on where to disembark the rescued was highlighted by the DPA in the case of MV CS Caprice. When we picked up that group of 510 people, we did not know where we would be able to take them; we did not know how long they would be with us. […] We need clear guidelines explaining: in the Mediterranean Sea, within these boundaries, migrants should be taken to so and so place, or reported to so and so (No Author 2015).

In this instance, the migrants were on board for four days during which the charterers refused to pay for those four days that they considered the ship to be ‘offhire’, bringing forth the economic dimension and charter party issues raised in the preceding discussion under the economic regime (No Author 2015). The economic aspects of rescue are very important in the context of the nature of seafarers’ employment in contemporary shipping. In some instances, economic rationalities can easily override any humanitarian convictions. In fact, there are a number of testimonies from migrants that attest to ships simply passing by without rendering assistance at sea (CIR 2007; Heller and Pezzani 2016; HRW 2009; Strik 2012). Hence, it is important that shipping companies assure seafarers of their unwavering commitment to humanitarian norms at sea and provide their full support. As in the case of MV CS Caprice mentioned earlier, there are other exemplary instances where companies stood by their workforce and reinforced the humanitarian regime. In a case involving MT Torm Arawa in June 2015, the head of the company’s technical division stated, ‘I am pleased that our capable crew acted according to procedures and saved so many lives, reflecting outstanding commitment to international maritime laws and humanitarian efforts’ (Tees 2015). Similarly, the CEO of Nordic American Tankers Limited commended the seafarers on one of the company’s vessels (MT Nordic Passat) which rescued 150 migrants in September 2014. He stated, ‘[the] Captain and his crew performed first class seamanship in accordance with the best maritime traditions to save lives in distressed situations. They all deserve a lot of credit. The incident shows that all links in the NAT organisation did function very well in this situation’ (Schuler 2014). A case which provides a stark indication of how economic rationalities can undermine humanitarianism at sea is the case of the Maltese fishing boat Budafel in 2007. In this particular incident, 27 migrants were forced to hold on to the tuna pen for what was initially reported as 24 hours, as the crew refused to allow the migrants to board their vessel while the Maltese and Libyan authorities argued about which country should assume the responsibility for taking the migrants. The owner explicitly indicated security concerns as the rationale behind the four fishers’ decision in not allowing the migrants to board. “As a Maltese, I’m prepared to assist people, but there’s a limit to everything. What if these 24 strong men rebelled and tried to assume control of the boat?” he asked, admitting that the immigrants’ lives were at stake (Grech 2007).

5  Migration, Seafarers and the Humanitarian-Security-Economic Regimes…

87

Interviews by the Italian Council for Refugees (CIR) with the survivors after they were rescued by the Italian Navy, however, revealed that the migrants actually clung to the buoys around the tuna pen for three days. The four crew members of the Budafel provided the migrants with some fruit and water while stopping short of allowing the migrants to board the vessel (CIR 2007, p. 3). Basaran (2015a, p. 213) refers to such practices as ‘humanitarianism light’ which involve ‘providing directions, water, and possibly food to people in distress, but without taking them on board, hence avoiding complications associated with rescue.’ Furthermore, it was also reported that the captain had argued ‘he could not take the persons to Malta as he could not risk losing the € 1 million-worth catch of tuna being hauled by the ship, which was heading to Spain’ (CIR 2007, p. 3) highlighting the economic concerns at play alongside any ‘security concerns’ that might have been present. However, a significant share of the threat to the humanitarian norms stem from the behaviours and practices of coastal states such as refusing to allow disembarkations. This has often been accompanied by disputes among coastal states as to which one of them are responsible for disembarkation. Prominently, this has been the recurrent dispute between Italy and Malta which is addressed in detail by Coppens (2013a, b), Coppens and Sommers (2010) and Trevisanut (2010). While I will not delve into the intricacies of the disputes here, it will suffice to point out that this has led to a number of cases in which migrants were stuck for days on the ships that had rescued them. For instance, a relatively well-known case involved the Turkish vessel Pinar E which rescued 140 migrants in April 2009 and the high-profile dispute that ensued for four days between Malta and Italy regarding who would be responsible for the migrants (HRW 2009; No Author 2009). There was also the case of the oil tanker MT Salamis which rescued 102 migrants on 5th August 2013 and the two-days standoff that followed between the vessel and Maltese authorities due to disagreement over disembarkation (No Author 2013a, b). However, since 2013, Italy has de facto assumed responsibility for both the Maltese and the Libyan Search and Rescue Regions (Cuttitta 2018a, p. 798) and has been ‘committed to permitting a lawful disembarkation of all migrants in its ports’ (Cusumano 2018, pp. 391–392), which seemed to have alleviated the wrangling between the Maltese and Italian authorities. However, recent developments suggest a return to the same problem. For instance, in June 2018, the NGO rescue ship Aquaris was refused entry by both Italy and Malta after having rescued 629 migrants (Cockburn 2018) and was finally able to disembark the rescued in Spain (Segreti and Parrinello 2018). The Italian Coastguard Ship, Ubaldo Diciotti, was also refused to disembark the 177 migrants she rescued since Italy insisted that Malta should receive the migrants, claiming that the ship had first passed through Malta’s SAR region, heralding the return of ‘game of rescues’ between the two countries. The containership MV Alexander Maersk, which rescued 113 migrants upon the request of the Italian Rescue Coordination Centre (RCC) in June 2018, was refused to disembark the migrants in Italy. This led to interventions by the Danish prime minister and minister for immigration, and it was only after four days that disembarkation took place (Jensen and Smith 2018; No

88

A. Senu

Author 2018d; Segreti and Parrinello 2018). Such inconsistent and unpredictable practices by costal states in the Mediterranean create an environment of confusion. Pallister-Wilkins (2018b) sees creating confusion as a deterrent strategy in relation to rescues by NGOs. ‘Anti-smuggling legislations’ are also used to discourage non-­state actors from independent rescues unsanctioned by the state. For instance, the crew of the Tunisian fishing boats Fakhreddine Morthada and Mohamed el-Hedi rescued migrants in August 2007 and proceeded to Lampedusa, disregarding non-­ disembarkation orders by the Italian authorities. They were promptly arrested and tried on charges of smuggling which were subsequently dropped. However, the captains of each vessel were convicted of ‘charges of resisting public officer and committing violence against a warship’ and sentenced to two and half year’s imprisonment as well as a fine of € 444,000 each, which were subsequently dropped during appeal (Basaran 2014, p. 376). Although all the fishers were ultimately exonerated, the trials lasted many years, the fishing vessels were confiscated for long periods and were rendered unusable, ‘effectively amounting to the loss of [the fishers’] economic livelihoods’ (Basaran 2014, p. 376). In September 2018, six Tunisian fishers were arrested on accusations of smuggling charges. They were captured at sea after their trawler released a small vessel it had been towing with 14 migrants on board 24 miles off the Lampedusa coast. While this led to charges of smuggling by the authorities, it was reported that the captain had had an established reputation for rendering assistance to migrants, bringing remains of the dead back to shore and giving them burials, as well as discouraging the youth in Tunisia against embarking on such voyages. In fact, long before this incident, there was a petition circulating in his hometown to nominate him for the Nobel Peace Prize (Tondo 2018a, b). Furthermore, it was also mentioned that he had participated in a sea rescue drill organised by Médecins Sans Frontières (MSF) in 2015, attesting to his humanitarian intentions (Tondo 2018a). While the fishers were subsequently released and allowed to return to Tunisia, it was also reported that the trial would continue (Tondo 2018b). While many of these charges do not result in convictions (Pallister-Wilkins 2018b), Basaran (2014) emphasises that the prosecution process and the cost of the criminal procedure are effectively used as a deterrence technique to discourage humanitarian acts unsanctioned by the state. The criminal procedure has been aggressively used particularly in relation to NGO rescuers which has driven a number of them out of the humanitarian space at sea (Cuttitta 2018b; Pallister-Wilkins 2018b; Squire 2018; Tondo 2018c). Considering the NGOs were doing the heavy-­ lifting of the rescue operations during the time they were operational, their exiting from the humanitarian scene in the Mediterranean is only going to leave commercial shipping to pick up the slack again, which is certainly not a good news for seafarers working in and across the Mediterranean Sea.

5  Migration, Seafarers and the Humanitarian-Security-Economic Regimes…

89

5.5 Conclusion This chapter has sought to place the experiences of seafarers vis-à-vis migrants at sea at the core of the maritime security research agenda. Taking a slightly different approach from the existing literature on humanitarianism and border security in the maritime domain, the chapter has emphasised that the economic dimension also needs to be taken into account when exploring the challenges seafarers face. Seafarers often find themselves entangled between humanitarian, security and economic regimes when they meet migrants at sea. Using a regime complex approach to contextualise the socio-legal, political and economic background shaping their experiences, I have attempted to demonstrate how the three regimes simultaneously place often conflicting demands on them. As the examples used in the case study demonstrate, this sometimes leads to trade-offs with implications for both seafarers and the migrants. Indeed, this undermines the long-established tradition of humanitarianism at sea. With non-governmental rescue organisations increasingly being pushed out by states, it is likely that seafarers will assume increasing importance in saving migrants’ lives. However, these actors are accorded little attention in existing research. Hence, further exploration of their experiences, the challenges they face, as well as the extent to which humanitarian principles in commercial shipping are challenged by security imperatives and economic rationalities is a timely undertaking. Acknowledgements  An earlier version of the chapter was presented at the Department for Politics and International Relations Postgraduate Research Conference at Cardiff University on the 7th of May 2014. I would like to thank Jan Stockbruegger and Christian Bueger for discussing and commenting on the paper. I would also like to thank the editor, Lisa Otto, and the reviewer for their constructive feedback. I am also grateful to Anja Menzel, Jonathan Preminger, Tugba Basaran and Polly Pallister-Wilkins for their comments.

References Aalberts TE, Gammeltoft-Hansen T (2014) Sovereignty at sea: the law and politics of saving lives in mare liberum. J Int Relat Dev 17(4):439–468 Aarstad AK (2015) The duty to assist and its disincentives: the shipping industry and the Mediterranean migration crisis. Mediterr Polit 20(3):413–419 Alter KJ, Meunier S (2006) Nested and overlapping regimes in the transatlantic banana trade dispute. J Eur Publ Policy 13(3):362–382 Alter KJ, Meunier S (2009) The politics of international regime complexity. Perspect Polit 7(1):13–24 Aradau C (2004) The perverse politics of four-letter words: risk and pity in the securitisation of human trafficking. Millenn J Int Stud 33(2):251–277 Bailliet C (2003) The “Tampa” case and its impact on burden sharing at sea. Hum Rights Q 25(3):741–774 Basaran T (2014) Saving lives at sea: security, law and adverse effects. Eur J  Migr Law 16(3):365–387

90

A. Senu

Basaran T (2015a) The saved and the drowned: governing indifference in the name of security. Secur Dialogue 46(3):205–220 Basaran T (2015b) The curious state of the good Samaritan: humanitarianism under conditions of security. In: Kinnvall C, Svensson T (eds) Governing borders and security: the Politics of connectivity and dispersal. Routledge, Abingdon, pp 49–63 BBC (2014) Cyprus police end migrant stand-off abroad cruise ship. [Online]. Available at: http:// www.bbc.co.uk/news/world-europe-29358265. Accessed 4 Dec 2017 BBC (2017) Award for Scottish ship’s captain who rescued 907 migrants. [Online]. Available at: http://www.bbc.co.uk/news/uk-scotland-tayside-central-41472873. Accessed 4 Dec 2017 Betts A (2010) The refugee regime complex. Refug Surv Q 29(1):12–37 Bhattacharya S (2011) Sociological factors influencing the practice of incident reporting: the case of the shipping industry. Empl Relat 34(1):4–21 Bigo D (2001) Migration and security. In: Guiraudon V, Joppke C (eds) Controlling a new migration world. Routledge, London, pp 121–149 Bigo D (2002) Security and immigration: toward a critique of the governmentality of unease. Alternatives 27(Special Issue):63–92 BIMCO (2019) Shipmaster’s security manual 2019. BIMCO, Bagsværd CIR (2007) CIR report regarding recent search and rescue operations in the Mediterranean. [Online]. Available at: http://www.europarl.europa.eu/hearings/20070703/libe/cir_report_ en.pdf Accessed 28 June 2015 Cockburn H (2018) Stranded migrant rescue boat unable to make voyage to Spain as weather deteriorates. Independent [Online]. Available at: https://www.independent.co.uk/news/world/ europe/aquarius-migrant-crisis-boat-mediterranean-libya-italy-malta-spain-a8394416.html. Accessed 7 Jan 2019 Coppens J (2013a) The essential role of Malta in drafting the new regional agreement on migrants at sea in the Mediterranean basin. J Marit Law Commer 44(1):89–115 Coppens J (2013b) The Lampedusa disaster: how to prevent further loss of life at sea? Int J Mar Navig Saf Sea Transp 7(4):589–598 Coppens J, Somers E (2010) Towards new rules on disembarkation of persons rescued at sea? Int J Mar Coast Law 25(3):377–403 Crawley et al (2017) Unravelling Europe’s ‘migration crisis’: journeys over land and sea. Policy Press, Bristol Cusumano E (2018) The sea as humanitarian space. Non-governmental search and rescue dilemmas on the Central Mediterranean migratory route. Mediterr Polit 23(3):387–394 Cusumano E (2019) Migrant rescue as organized hypocrisy: EU maritime missions offshore Libya between humanitarianism and border control. Coop Confl 54(1):3–24 Cuttitta P (2018a) Delocalization, humanitarianism, and human rights: the Mediterranean border between exclusion and inclusion. Antipode 50(3):783–803 Cuttitta P (2018b) Pushing migrants back to Libya, persecuting rescue NGOs: the end of the humanitarian turn (part I). [Online]. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/04/pushing-migrants. Accessed 2 May 2018 Davies M (2003) Obligations and implications for ships encountering persons in need of assistance at sea. Pac Rim Law Policy J 12(1):109–141 Domonoske C (2018) Migrants forced off ship after they refused to return to Libya. NPR [Online]. Available at: https://www.npr.org/2018/11/20/669526616/migrants-forced-off-ship-after-theyrefused-to-return-to-libya. Accessed 7 Jan 2019 Drezner DW (2009) The power and peril of international regime complexity. Perspect Polit 7(1):65–70 ECSA (2015) Humanitarian crisis in the Mediterranean Sea. [Online]. Available at: http://www.icsshipping.org/docs/default-source/Submissions/EU/attachment-to-press-release.pdf?sfvrsn=2. Accessed 22 Nov 2017

5  Migration, Seafarers and the Humanitarian-Security-Economic Regimes…

91

Gehring T, Faude B (2013) The dynamics of regime complexes: microfoundations and systemic effects. Glob Gov 19(1):119–130 Goddard KS (2015) Rescuing refugees and migrants at sea: some commercial shipping implications. J Int Marit Law 21(5):352–367 Grech H (2007) Illegal immigrants floating in limbo. TIMES OF MALTA [Online]. Available at: http://www.timesofmalta.com/articles/view/20070528/local/illegal-immigrants-floating-inlimbo.16401. Accessed 28 June 2015 Guiraudon V (2000) European integration and migration policy: vertical policy-making as venue shopping. J Common Mark Stud 38(2):251–271 Guiraudon V (2003) The constitution of a European immigration policy domain: a political sociology approach. J Eur Publ Policy 10(2):263–282 Hayden S (2018) Nearly 80 rescued migrants forced off cargo ship in Libya. CNN [online]. Available at: https://edition.cnn.com/2018/11/20/africa/libyan-migrants-forced-off-ship-intl/ index.html. Accessed 7 Jan 2019 Heller C, Pezzani L (2016) Ebbing and flowing: the EU’s shifting practices of (non-) assistance and bordering in a time of crisis. Near Futures [Online] 1. Available at: http://nearfuturesonline. org/ebbing-and-flowing-the-eus-shifting-practices-ofnon-assistance-and-bordering-in-a-timeof-crisis/. Accessed 28 Nov 2017 HRW (2009) Pushed back, pushed around: Italy’s forced return of boat migrants and asylum seekers, Libya’s mistreatment of migrants and asylum seekers. Human Rights Watch, New York Huysmans J  (2000) The European Union and the securitization of migration. J  Common Mark Stud 38(5):751–777 Huysmans J (2002) Defining social constructivism in security studies: the normative dilemma of writing security. Alternatives 27(1):41–62 Huysmans J (2006) The politics of insecurity: fear, migration and asylum in the EU. Routledge, Abingdon ICS (2015) Large scale rescue operations at sea: guidance on ensuring safety and security of seafarers and rescued persons, 2nd edn. International Chamber of Shipping, London ICS (2018) Shipping industry increasingly worried about EU member states’ policy on migrants rescued at sea. [Online]. Available at: http://www.ics-shipping.org/news/press-releases/viewarticle/2018/06/26/shipping-industry-increasingly-worried-about-eu-member-states-policyon-migrants-rescued-at-sea. Accessed 29 Dec 2018 IMO (2004) Guidelines on the treatment of persons rescued at sea. Resolution MSC 167(78), adopted on 20 May 2004 IMO (2009) Principles relating to administrative procedures for disembarking persons rescued at sea. FAL.3/Circ.194, 22 January 2009 IMO (2014) SOLAS consolidated edition 2014: consolidated text of the international convention for the safety of life at sea, 1974, and its protocol of 1988, 6th edn. International Maritime Organization, London Jensen T, Smith A (2018) Container ship picks up 113 migrants from boat south of Italy. Reuters [Online]. Available at: https://uk.reuters.com/article/uk-eu-migrants-maersk/container-shippicks-up-113-migrants-from-boat-south-of-italy-idUKKBN1JJ0F3. Accessed 7 Jan 2019 Kahveci E, Nichols T (2006) The other Car workers: work, organisation and technology in the maritime car carrier industry. Palgrave Macmillan, Basingstoke Kenney FJ Jr, Tasikas V (2003) Tampa incident: IMO perspectives and responses on the treatment of persons rescued at sea. Pac Rim Law Policy J 12(1):143–178 Kilpatrick RL (2017) The ‘refugee clause’: why contractual allocation of rescue costs is critical during periods of mass migration at sea. NUS Centre for maritime law working paper. National University of Singapore, Singapore Kilpatrick RL, Smith A (2015) The international legal obligation to rescue during mass migration at sea: navigating the sovereign and commercial dimensions of a Mediterranean crisis. USF Marit Law J 28(2):141–194

92

A. Senu

Krasner SD (1982) Structural causes and regime consequences: regimes as intervening variables. Int Organ 36(2):185–205 Krasner SD (2001) Problematic sovereignty. In: Krasner SD (ed) Problematic sovereignty: contested rules and political possibilities. Columbia University Press, New York, pp 1–23 Little A, Vaughan-Williams N (2017) Stopping boats, saving lives, securing subjects: humanitarian borders in Europe and Australia. Eur J Int Rel 23(3):533–556 Leonard S (2010) EU border security and migration into the European Union: FRONTEX and securitisation through practices. Eur Secur 19(2):231–254 Miglierini J (2016) Migrant tragedy: anatomy of a shipwreck. BBC News [Online]. Available at: http://www.bbc.co.uk/news/world-europe-36278529. Accessed 3 Dec 2017 No Author (2009) Italy to allow disputed migrant ship to dock. The Telegraph [Online]. Available at: http://www.telegraph.co.uk/news/worldnews/europe/italy/5184979/Italy-to-allowdisputed-migrant-ship-to-dock.html. Accessed 2 Dec 2017 No Author (2013a) Salamis heads to Italy as Malta refuses access to rescued asylum seekers. Malta Today [Online]. Available at: http://www.maltatoday.com.mt/news/national/28928/slideshowsalamis-adrift-malta-refuses-access-to-rescued-asylum-seekers-20130806#.WiTEJmdLE5v. Accessed 2 Dec 2017 No Author (2013b) Tanker ‘Salamis’ carrying migrants stopped from entering Malta. Watch the Med [Online]. Available at: http://watchthemed.net/reports/view/18. Accessed 3 Dec 2017 No Author (2014a) Evelyn Maersk rescues 352 from sinking vessel. World Maritime News [Online]. Available at: https://worldmaritimenews.com/archives/135813/evelyn-maersk-rescues-352-from-sinking-vessel/. Accessed 7 Jan 2019 No Author (2014b) Extraordinary acts of kindness by seafarers. ISWAN News [Online]. Available at: https://www.seafarerswelfare.org/news/2014/extraordinary-acts-of-kindness-by-seafarers. Accessed 7 Jan 2019 No Author (2015) Captain calls for ‘diplomatic’ leadership and guidelines in Med rescues. Fairplay [Online]. Available at: https://fairplay.ihs.com/article/17652/news-insight-master-recountsmigrant-rescue. Accessed 4 Dec 2017 No Author (2018a) Spanish fishing vessel ‘left in the lurch’ after rescuing 12 migrants. The Local [Online]. Available at: https://www.thelocal.es/20181128/spanish-fishing-vessel-in-the-lurchafter-rescuing-12-migrants. Accessed 8 Jan 2018 No Author (2018b) Malta takes migrants rescued by Spanish fishermen: aid group. The Local [Online]. Available at: https://www.thelocal.es/20181202/malta-takes-migrants-rescued-byspanish-fishermen-aid-group. Accessed 8 Jan 2018 No Author (2018c) Rescued migrants forcibly removed from Nivin in Libya. Rubber bullets and tear gas used. World Maritime News [Online]. Available at: https://worldmaritimenews.com/ archives/265298/rescued-migrants-forcibly-removed-from-nivin-in-libya-rubber-bullets-andtear-gas-used/. Accessed 7 Jan 2019 No Author (2018d) Italy’s refusal of Maersk migrants ‘unreasonable’: Denmark’s immigration minister. The Local [Online]. Available at: https://www.thelocal.it/20180625/italys-refusal-ofmaersk-migrants-unreasonable-denmarks-immigration-minister. Accessed 7 Jan 2019 Orsini A et al (2013) Regime complexes: a buzz, a boom, or a boost for global governance? Glob Gov 19(1):27–39 Pallister-Wilkins P (2015) The humanitarian politics of European border policing: frontex and border police in Evros. Int Political Sociol 9(1):53–69 Pallister-Wilkins P (2017) Humanitarian borderwork. In: Günay C, Witjes N (eds) Border politics: defining spaces of governance and forms of transgressions. Springer, Cham, pp 85–103 Pallister-Wilkins P (2018a) Médecins Sans Frontières and the making of a humanitarian borderscape. Environment and Planning D: Society and Space 36(1):114–138 Pallister-Wilkins P (2018b) Criminalising assistance and solidarity: the ERCI case and beyond. Observatory of the Refugee and Migration Crisis in the Aegean [Online]. Available at: http:// refugeeobservatory.aegean.gr/en/criminalising-%CE%B1ssistance-and-solidarity-erci-caseand-beyond. Accessed 15 Jan 2019

5  Migration, Seafarers and the Humanitarian-Security-Economic Regimes…

93

Perkowski N (2018) Frontex and the convergence of humanitarianism, human rights and security. Secur Dialogue 49(6):457–475 Pugh M (2004) Drowning not waving: boat people and humanitarianism at sea. J  Refug Stud 17(1):50–69 Raustiala K, Victor DG (2004) The regime complex for plant genetic resources. Int Organ 58(2):277–309 Sampson H (2013) International seafarers and transnationalism in the twenty-first century. Manchester University Press, Manchester Sampson H et al (2019) Between a rock and a hard place: the implications of lost autonomy and trust for professionals at sea. Work Employ Soc 33(4): 648–665. Schuler M (2014) Crude oil tanker rescues 150 migrants from Mediterranean. gCaptain [Online]. Available at: https://gcaptain.com/crude-oil-tanker-rescues-150-migrants-mediterranean/. Accessed 7 Jan 2019 Segreti G, Parrinello A (2018) Migrants rescued by Danish cargo ship land in Sicily. Reuters [Online]. Available at: https://af.reuters.com/article/libyaNews/idAFL8N1TS17K. Accessed 7 Jan 2019 Squire V (2018) Crew of NGO ship grounded in Malta sound alarm as search and rescue cooperation founders in Mediterranean. The Conversation [Online]. Available at: https:// theconversation.com/crew-of-ngo-ship-grounded-in-malta-sound-alarm-as-search-and-rescueco-operation-founders-in-mediterranean-99308. Accessed 7 Jan 2019 Squire et al (2017) Crossing the Mediterranean Sea by boat: mapping and documenting migratory journeys and experiences, final project report [Online]. Available at: www.warwick.ac.uk/ crossingthemed. Accessed 2 Oct 2018 Strik T (2012) Lives lost in the Mediterranean Sea: who is responsible? Committee on Migration, Refugees and Displaced Persons, Council of Europe Struett MJ et al (2013) Navigating the maritime piracy regime complex. Glob Gov 19(1):93–104 Tauman JE (2002) Rescued at sea, but nowhere to go: the cloudy legal waters of the Tampa crisis. Pac Rim Law Policy J 11(2):461–496 Tees P (2015 ) Danish tanker saves 222 refugees in Mediterranean. Copenhagen Post Online [Online]. Available at: http://cphpost.dk/news/danish-tanker-saves-222-refugees-in-mediterranean.html. Accessed 7 Jan 2019 Tondini M (2012) The legality of intercepting boat people under search and rescue and border control operations. J Int Marit Law 18(1):59–74 Tondo L (2018a) Tunisian fishermen await trial after ‘saving hundreds of migrants’. The Guardian [Online]. Available at: https://www.theguardian.com/world/2018/sep/05/tunisian-fishermenawait-trial-after-saving-hundreds-of-migrants. Accessed 7 Jan 2019 Tondo L (2018b) Italy releases Tunisian fishermen held on suspicion of smuggling migrants. The Guardian [Online]. Available at: https://www.theguardian.com/world/2018/sep/22/italyreleases-tunisian-fishermen-arrested-on-suspicion-of-smuggling-migrants. Accessed 7 Jan 2019 Tondo L (2018c) My crew saved 218 migrant from drowning- so why are we the enemy? The Guardian [Online]. Available at: https://www.theguardian.com/world/2018/mar/24/proactivaopen-arms-rescue-boat-saved-218-from-drowning-mediterranean-migrants. Accessed 10 April 2018 Trevisanut S (2010) Search and rescue operations in the Mediterranean: factor of cooperation or conflict? Int J Mar Coast Law 25(4):523–542 Tsoukala A (2005) Looking at migrants as enemies. In: Bigo D, Guild E (eds) Controlling frontiers: free movement into and within Europe. Ashgate Publishing, Aldershot/Burlington, pp 161–192 Valverde M (2014) Studying the governance of crime and security: space, time and jurisdiction. Criminol Crim Just 14(4):379–391 van Munster R (2009) Securitizing immigration: the politics of risk in the EU. Palgrave Macmillan, Basingstoke

94

A. Senu

Walters W (2011) Foucault and frontiers: notes on the birth of the humanitarian border. In: Brockling U et  al (eds) Governmentality: current issues and future challenges. Routledge, New York, pp 138–164 Watson SD (2009) The securitization of human migration: digging moats and sinking boats. Routledge, Abingdon Xue C et  al (2016) Who is dominant? Occupational health and safety management in Chinese shipping. J Ind Relat 59(1):65–84 Zheng T (2014) Container ship rescues 257 people in Mediterranean. Fairplay [Online]. Available at: https://fairplay.ihs.com/article/14419/boxship-rescues-hundreds-migrants-mediterraneansea. Accessed 7 Jan 2019

Chapter 6

Maritime Piracy and Armed Robbery at Sea Lisa Otto and Leaza Jernberg

Abstract  Piracy is one of the oldest threats to maritime security. It was largely thought to have been eradicated by the 1830s in most of the world’s oceans, except for parts of Asia. However, from the late twentieth century and into the early twenty-­ first century, it has again emerged as a significant threat to international maritime safety and security. In the modern context, the Somali piracy epidemic in the late 2000s and early 2010s is perhaps best known, but is today most prevalent off the west coast of Africa in the Gulf of Guinea, and in Southeast Asia. However, international responses to piracy remain stymied by issues of international law, particularly definitional issues of what constitutes piracy as opposed to armed robbery at sea. As a result, the most effective responses to piracy have been at the level of regional initiatives. This is partly due to the fact that the causes of piracy and the type of piracy undertaken is largely driven by the geography of the littoral states and by political and economic developments on land. The threat of maritime piracy, and its distinction from armed robbery at sea, is examined in this chapter, with the case of Southeast Asia serving as a real-world illustration. Keywords  Piracy · Armed robbery at sea · UNCLOS · International law · Southeast Asia

6.1 Introduction Piracy is one of the oldest threats to maritime security; indeed, Scharf and Taylor (2017) note maritime piracy to be the oldest international crime, having given rise to the legal notion of universal jurisdiction with pirates being considered hostis L. Otto (*) SARChI Chair: African Diplomacy and Foreign Policy, University of Johannesburg, Auckland Park, South Africa e-mail: [email protected] L. Jernberg University of the Witwatersrand, Braamfontein, South Africa © Springer Nature Switzerland AG 2020 L. Otto (ed.), Global Challenges in Maritime Security, Advanced Sciences and Technologies for Security Applications, https://doi.org/10.1007/978-3-030-34630-0_6

95

96

L. Otto and L. Jernberg

humani generis, or an enemy of all mankind. Books and movies like the Pirates of the Caribbean film series have popularised historical Caribbean piracy, which began in the 1500s, reaching its Golden Age between the 1690s and 1730s (Frécon 2006, p. 64), before becoming largely obsolete by the 1830s due to vigorous law enforcement by colonial powers. The rise of national navies essentially signalled the end of significant pirate actives on the high seas, despite states still experiencing naval criminality in their own territorial waters. However, the crime of piracy was recalled to public attention when pirates began attacking and holding ships and their crews for ransom off the coast of Somalia in the late 2000s, effectively hampering trade through the Gulf of Aden, which is one of the world’s busiest shipping lanes or sea lanes of Communication (SLOCs) (Møller 2009, p.  5). While Somali piracy has gained significant international attention over the last two decades, piracy is also a major concern in other areas, namely the Gulf of Guinea off West Africa, and in Southeast Asia, which forms the case study of this chapter. Indeed, the International Maritime Bureau’s (IMB) annual report for 2018 shows a total of 201 actual and attempted attacks around the world, the majority of incidents being recorded in Southeast Asia and Africa respectively, as is demonstrated below (International Maritime Bureau 2018, p. 6) (Fig. 6.1). Despite the numerous books and articles written about piracy, issues of definition remain. This chapter will look at the legal distinction between piracy and armed robbery at sea. It will examine the different types of piracy or methods used by pirates. While anti-piracy operations require legal and operational knowledge about what constitutes piracy and how to combat the activities of pirates, it is increasingly clear that until the underlying causes of piracy are adequately addressed, piracy will remain an ongoing problem. This is clearly illustrated by the fact that despite a successful international effort to curtail Somali piracy through international naval operations, as these operations have been scaled down, Somali pirates were again

Fig. 6.1  Actual and Attempted Piracy Attacks 2014-2018 (adapted from International Maritime Bureau 2018, p. 6)

6  Maritime Piracy and Armed Robbery at Sea

97

operating, although on a much smaller scale, in 2018. These causes, which are demographic, political, economic and ecological in nature, are resistant to military solutions and require multi-dimensional and sustained responses from the international community. While this may seem daunting, the costs of piracy detailed in this chapter illustrate that the land-based elements of maritime security, as raised by the threat of piracy, are too costly for the international community to ignore.

6.2 Maritime Piracy and Armed Robbery at Sea: Theory and Practice 6.2.1 The Legal Context Given the historic nature of piracy, the threat that it has posed to important maritime routes, and the difficulty in apprehending or prosecuting perpetrators, piracy has long been considered a threat to all people everywhere (Azubuike 2009, p.  44). Furthermore, because the seas were generally thought to be beyond the territory of any one state and therefore the territory of all, all states were given universal jurisdiction over the crime of piracy (Campbell 2010, p. 19). This doctrine of universal jurisdiction means that any nation can capture and try pirates that they may find on the high seas (Kontorovich 2010, p. 244). This customary law acceptance of universal jurisdiction over pirates was essentially codified when the 1982 United Nations Convention on the Law of the Sea (UNCLOS) was drawn up (Kontorovich 2010, p. 252). The convention, which was ratified by almost every state in the world, with the notable exception of the United States, came into force in 1994. Nevertheless, because UNCLOS is considered a codification of customary international law, its provisions are binding an all states including non-parties to the Convention (Azubuike 2009, p. 49). Therefore, the accepted international legal definition of the crime of piracy can be found in Article 101 of UNCLOS, which, in summary, deems piracy to be acts that involve illegal acts of violence or detention against a private vessel, by the crew of another private vessel, on the high seas or outside any state’s jurisdiction. UNCLOS distinguishes between piracy and the crime of armed robbery against ships, which can occur within the territorial waters of a littoral state and, as a result, means that that state has primary jurisdiction and responsibility for law enforcement in these situations (UNCLOS 2010). Furthermore, armed robbery against ships is also an offence under the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (more commonly known as the SUA Convention) and, depending on the facts of the crime, the 2000 United Nations Convention against Transnational Organised Crime (UNCLOS 2010). However, this maritime territorial distinction between piracy on the high seas and armed robbery at sea is problematic as it creates a number of jurisdictional issues that make counter-piracy operations difficult. While the right of hot pursuit in

98

L. Otto and L. Jernberg

article 111 of UNCLOS allows for the continuous pursuit of a vessel that has committed a crime in a state’s territorial waters from that state’s sovereign waters onto the high seas and its seizure there (Koppe 2015; Walker 2011, p. 194), there is no right of reverse hot pursuit enshrined in UNCLOS from the high seas into a state’s territorial waters and such a pursuit would only be allowed with that state’s consent (Bento 2011, p. 420). The UNCLOS definition also restricts piracy to attacks for ‘private’ ends (Bento 2011, p. 416), which thus excludes those committed for public or otherwise political ends. The ‘two-ship requirement’, does not account for mutiny or internal seizure, as happened in the case of the Achille Lauro, detailed elsewhere in this volume (Bento 2011, p. 416, 421). Finally, UNCLOS does not mandate states to adopt counter-piracy laws that would allow them to implement their international legal commitments (Bento 2011, p. 416). Therefore, many states lack domestic legislation to prosecute acts of piracy. Despite the attempt to rectify this through United Nations (UN) Resolution 1918 in 2010, the failure to provide guidance on how to define and criminalise piracy, means that the specifics of domestic laws have been left to the discretion of individual states lawmakers and, as such, has done little to rectify the situation. Thus, the legal and jurisdictional challenges persist for those trying to operate anti-piracy enforcement operations (Bento 2011, p. 422). The SUA Convention came as an attempt to redress some of the inadequacies of UNCLOS. While SUA does not define piracy, it does authorise states who are signatories to prosecute anyone who “seizes or exercises control over a ship by force or threat of force or any other form of intimidation” (Bento 2011, p. 425). However, due to the fact that a number of states who experience problems with piracy, particularly in Asia, have not signed this treaty, and that it does not adequately address how these attacks should be prosecuted, the SUA Convention remains largely unused (Bento 2011, p. 425). Given the weakness of the international conventions in defining piracy and the resulting complications in enforcement and prosecution, a number of regional agreements have arisen on a case-by-case basis, for example, the Regional Cooperation Agreement on Combating Piracy and Armed Robbery (ReCAAP), which has been hailed as a great success, the Djibouti Code of Conduct in East Africa, and the Yaoundé Code of Conduct in the Gulf of Guinea (Bento 2011, pp. 426–427). Further, international actors have also played an exceedingly important role in combatting piracy, as has been seen in the case of Somalia, where the Contact Group on Piracy Off the Coast of Somalia was instrumental. The International Maritime Organisation (IMO), which is a UN specialised agency that has a regulatory role overseeing shipping, maritime security and safety, refers to both piracy and sea robbery in its reports. While it adheres to the UNCLOS definition of piracy, the IMO defines “armed robbery against ships” as “any unlawful act of violence or detention or any act of depredation, or threat thereof, other than an act of ‘piracy,’ directed against a ship or against persons or property on board such ship, within a State’s jurisdiction over such offences” (Chalk 2008). However, the IMB, which collects and collates piracy and armed robbery at sea incident data, does not draw on the UNCLOS definition but instead speaks of “piracy and armed robbery”, defined as “an act of boarding or attempting to board any ship with the apparent intent to commit theft or any other crime and with the

6  Maritime Piracy and Armed Robbery at Sea

99

apparent intent or capability to use force in the furtherance of that act” (Chalk 2008). What is noteworthy is that this definition does not limit itself according to the jurisdictional boundaries of domestic and international law (Chalk 2008). This allows for an understanding of the illegal maritime activities taking place in a region, but does not distinguish effectively between crimes taking place on the high-seas versus in territorial waters. Given this understanding of definitional difficulties, it is easy to see why the term ‘piracy’ tends to be used as a catch-all phrase to denote the illegal activities at sea described in the IMB definition.

6.2.2 Modus Operandi The modus operandi of pirates is often determined by the geographic location in which they operate, the sophistication of both their targets and the equipment, particularly weaponry, available to them. This means that piracy often gains characteristics based on its locale. Nevertheless, it is possible to describe the different types of piracy that occur on a spectrum. According to Chalk (2008), there are three main types of piracy that currently occur in global waters. The first of these are anchorage attacks mounted against ships at harbour, or what the IMB refers to as ‘low-level armed robbery (Chalk 2008). These are essentially opportunistic attacks that exploit weaknesses in the security of ports or the vulnerability of vessels close to land. The attackers generally use small, high-speed water craft and are normally armed with knives or small arms, which they use to rob their victims of cash and other high-­ value personal items. The second main type of piracy is “the ransacking and robbery of vessels on the high seas or in territorial waters” (Chalk 2008). This type of piracy is considered medium-level armed robbery by the IMB as it involves “violent thefts involving serious injury or murder by well-organised gangs who usually operate from a ‘mother ship’ and are equipped with modern weaponry” (Chalk 2008). This style of attack best describes much of the Somali piracy that took place in the Gulf of Aden. However, the term ‘medium-level armed robbery’ is somewhat misleading as it implies somehow that these attacks are less serious, despite the enormous costs both in terms of lives as well as the economic costs that the disruption to SLOCs results in. Finally, the third type of piracy that Chalk (2008) outlines is attacks that result in the theft of ships and their use in illegal trading. These are considered to be major criminal hijacks by the IMB as they “are well-resourced and meticulously planned, employing highly trained and heavily armed syndicates working in conjunction with land-based operatives and brokers” (Chalk 2008). This so-called ‘phantom ship’ phenomenon involves the seizure of ships, which are then renamed, re-registered and used to take on new cargo, seemingly legitimately. However, instead of being delivered, this cargo is taken and sold illegally to a different buyer. While these three types of piracy may represent three points on the spectrum of maritime crime, there does seem to be a commonality in terms of motivation and that is that they are undertaken for economic gain. This is what distinguishes piracy from maritime terrorism, as discussed in another chapter in this volume. While the

100

L. Otto and L. Jernberg

size and the type of vessel targeted appears to vary depending on the type of piracy undertaken, the perceived vulnerability of the targeted vessel is important: “ships that are more susceptible to piracy are those with a lack of surveillance technologies, small crews, and are easy to board” (Nelson 2012). Pirate attacks typically involve seven steps, namely “stalk; site; stop; shock; smother; secure, search and snatch; and scram” (Mitchell 2009, p. 165 as quoted in Nelson 2012). The first two steps involve the planning, intelligence gathering, and preparation needed prior to the attack. The pirates then ambush the vessel, using a variety of methods to get the vessel to stop, and then once on board the vessel, they swiftly overwhelm the crew in order to prevent them from fighting back. The last three steps involve the pirates taking the targeted goods and departing, either with or without the crew and vessel, depending on whether they intend to demand ransom for the crew, vessel or cargo, or whether they plan to use the ship as a phantom ship. While most of the act of piracy itself takes place at sea, it is imperative to note that all piracy, especially the more sophisticated and organised pirate groups, require land-based support networks and safe haven ports (Nelson 2012).

6.2.3 Causes of Piracy The causes of piracy are many and varied, often depending on the region in which the attacks take place (Jeong 2015). However, it is possible to consider various contemporary trends that have contributed to the re-emergence of piracy in the twenty-­ first century. Globalisation, the rapid development of technology and the growing interconnectedness of the global economy after World War II have resulted in the rapid growth of commercial maritime transport and its supporting infrastructure, namely ports, increasing the number of potential targets for pirates to attack (Chalk 2008). Furthermore, despite the growth in global shipping, geographical chokepoints remain (Chalk 2008; Jeong 2015). These narrow points connecting the oceans, such as the Bab-el-Mandeb, the Straits of Malacca, and the Suez Canal, provide a target-rich environment for pirates, where ships are required to slow down and follow restricted routes in order to achieve safe passage. Furthermore, the proliferation of ports and harbours, many of which lack sufficient security measures, have enabled the ‘low level armed robbery’ described above. Much of the piracy described either takes place in the territorial waters of developing and lesser developed states or draws its personnel from them. The reasons for this are two-fold: not only are these countries poor with few socio-economic opportunities for their citizens, these states are also unable to exert effective control of their maritime territory as they do not have the resources to do so (Nelson 2012; Storey 2016). In many cases, the institutions of these states are weak or, in some cases, non-existent (Storey 2016), otherwise being described as failed states. Poor law enforcement and weak court systems do little to deter would-be pirates and widespread corruption often facilitates these activities. Furthermore, many of these states are experiencing political upheaval and/or conflict themselves and, as littoral

6  Maritime Piracy and Armed Robbery at Sea

101

nations, their citizens often have a long history of seafaring and fishing, giving them the experience and equipment necessary to undertake acts of piracy. In many cases, these fishermen are forced out of their traditional livelihoods due to over-fishing and environmental degradation (Storey 2016), while informal governance structures in places like Somalia and Nigeria may offer opportunities both for employment and local development. Finally, the widespread proliferation of small weapons and the ease with which they can be accessed, particularly in developing countries in the Post-Cold War era, lowers the barriers of entry to becoming a pirate (International Maritime Bureau 2018). The case of Somali piracy is a prime example of this. Not only were the people of Somalia trapped in desperate poverty after many years of civil war, in which time Somalia was a failed state, they were left without many of the skills needed to participate in the global economy, with their source of traditional livelihood in terms of fishing was being threatened by environmental degradation, including the dumping of toxic waste, and overfishing. This led some to take advantage of the unmanned waters left by the collapse of the Somali state, making piracy an attractive option, particularly to a number of the young men living in destitution with no viable alternatives, who already had experience of fighting and had access to weapons as a result of the ongoing conflict in the country. As a result, an entire illicit economy sprang up around the ‘industry’ of piracy in parts of Somalia (Otto 2011).

6.2.4 Costs of Piracy It is incredibly difficult, if not impossible, to calculate the true costs of piracy. After all, how does one place a value on a human life, both those of the crew that are kidnapped and ransomed, or in some cases killed, as well of those of the pirates themselves (Chalk 2008; Nelson 2012). The economic impact of piracy is thought to be significant, and some attempts at calculation have been made by Oceans Beyond Piracy and the World Bank. Piracy increases the cost of international maritime transport since crews demand higher danger pay, the cost of upgrading ships’ security measures and higher insurance premiums, as well as the cost of potential ransoms need to be accommodated. Alternatively, longer and costlier trade routes can be used or more expensive transport alternatives such as air-freight could be resorted to (Møller 2009, pp.  2–3). At its height between 2010 and 2012, “piracy off the coast of Somalia was estimated to cost the world more than $12 billion [per annum], which includes the price of everything from counter-piracy naval operations to higher insurance rates for commercial shippers to ransom payments”. What’s more, piracy has also negatively impacted Somalis by having significantly restricted delivery of food aid to a country which is perennially drought-­ stricken, thus resulting in thousands of deaths (Scharf and Taylor 2017). The political costs of piracy can be equally severe, especially for fragile states, as the corruption of elected government officials undermines the legitimacy of the regime and the institutions of the state (Chalk 2008). It is further feared that pirate attacks

102

L. Otto and L. Jernberg

could precipitate an environmental disaster, particularly if they attack vessels in crowded sea-lanes and chokepoints frequented by oil tankers or other vessels carrying other potentially toxic and harmful products/waste (Chalk 2008).

6.3 Southeast Asia: A Case Study The below case study will demonstrate the nature and extent of piracy in Southeast Asia, chosen for this purpose due to having the highest number of attacks compared to other regions per the IMB’s records over the past five years, as illustrated above.

6.3.1 Origins Acts of maritime piracy in Southeast Asia stretch back as far as 414 AD, when cases of raiding, robbery and marauding were recorded in the writings of a monk. Piracy continued into the 1700s and was worsened by attempts of the Dutch to monopolise trade routes, which in turn disrupted traditional local trade routes in the sub-region. Then, by the 1800s, “marauding… [had] become endemic to much of the Malayan world largely because it was integral to the political dynamics of intertribal warfare and archipelagic empire-building in the region”. In the following century privateering (when a state commissioned a privately-owned vessel to carry out attacks on enemy vessels) was still taking place in Southeast Asian waters, being of particular concern in the 1960s, while Vietnamese boat people came under attack by Thai raiders as they fled a communist regime in the 1970s (Chalk 1998, pp. 87–88). Liss (2011, p. 22) indicates that the Philippines, and Manila Bay were the hotspot for global incidents at the time when the IMB started collecting reports in the early 1980s. Yachts and fishing trawlers were also attacked alongside Vietnamese refugees (Liss 2011, p. 58), with the attacks being mostly opportunistic, although there were also some cases of piracy that could be considered somewhat more sophisticated. The economic crisis that Asia suffered in 1997 exacerbated existing problems of: poverty resulting from a failure to align socio-political development with economic growth; the side-lining of subsistence economies on which local populations, particularly littoral ones, have traditionally relied; the rise and expansion of organised criminal networks in the region; and weak state development as an overall challenge. The crisis spread rapidly like wildfire, and “the linked markets and interconnected economic structures forged through processes of globalisation, and built upon questionable political and economic policy, created a monetary ripple… that quickly grew into a tsunami that inundated the region” (Young 2007, p. 61). The same thing was seen in the aftermath of the global economic crisis in the late 2000s. Responses to the crisis were sluggish and as a result markets began to falter, and in turn, inflation rose, unemployment shot upward, and the cost of living became unmanageable for many (Young 2007, p.  61). It was alongside these economic

6  Maritime Piracy and Armed Robbery at Sea

103

trends that piracy and maritime criminal incident numbers, Young avers, began to climb. The complexity of the region’s geography has also assisted the pirate menace in pushing forth; coastlines are long, the topography is characterised by “littoral mangrove and lowland swamps cut by riverine estuaries, spotted with sand banks and shifting waterways”, scattered with reef-surrounded islands big and small, which are often mountainous in nature with rivers nearly unnavigable and dense tropical jungles. This makes the territories of states difficult to patrol and police and, as a result, sea borders have often been porous (Young 2007, p. 70). Liss (2003, p. 58) notes that the end of the Cold War also contributed here, as this led to a pronounced reduction in the presence of naval vessels of foreign powers in Southeast Asian waters, alongside the existence of large supplies of high-tech weaponry cheaply sold off after the end of conflicts in the region. What’s more, many of the borders still enforced were those established arbitrarily by colonial powers, and which maritime peoples of the sub-region have often not recognised or related to, particularly as borders had more to do with realms of influence rather than physical demarcations. Young (2005, p.  17) highlights this issue also, noting that: “prior to the development of colonial states, the complex, fluid geography of maritime Southeast Asia, both physical and cultural was not challenged”. Indeed, “for centuries maritime peoples had navigated the waters of Southeast Asia, fishing, trading, harvesting sea products, and raiding with scant [recognition for] what map makers in Europe had decided. Their lives and their cultures mimic the sea in some aspects, for just as the sea does not know borders, so the people who ply them have little respect for borders as well”.

6.3.2 What Does Piracy in Southeast Asia Look Like? Unlike Somali piracy, which has very much been characterised by a model where attacks have taken place on the high seas, and often also far afield into the Indian Ocean, and unlike in the Gulf of Guinea, which is almost exclusively characterised by attacks within territorial waters (Otto 2018, p. 140), piracy and maritime crime in Southeast Asia represent a merge of location represented in these other two regions, with attacks taking place both within territorial waters and on the high seas. Chalk’s (1998, pp. 88–89) categorisation of piracy has been illustrated earlier, but in his writing he also makes specific reference to Southeast Asia, identifying three main types of contemporary piracy. The first of these are incidents that occur in port or at anchorage, with a hit-and-run modus operandi, which has been referred to as ‘Asian piracy’. He describes this type of attack as constituting the majority of incidents in Jakarta in the mid-1990s, which has been the case in the years following also, being mostly opportunistic in nature, mounted from small, high-speed vessels, and crewed by locals with seafaring skills and armed most often with knives (Liss 2003, p. 59; Liss 2011, p. 40; Young 2007, p. 68). Raymond (2005, p. 64) notes that the attacks are usually perpetrated between 01:00 and 06:00, in order to avoid confrontation with the crew and perpetrators will often flee, instead of turning to

104

L. Otto and L. Jernberg

violence, when this does happen. Vessels and their crew are liberated of cash and portable valuable items. Von Hoesslin (2012, p. 544) notes that the areas where this kind of attack has been most frequent include: Tanjung Ayam (Malaysia), Tanjung Priok (Indonesia), Vũng Tàu (Vietnam), and Belawan (Indonesia). Tanjung Priok and Dumai ports in Indonesia have experienced attacks against berthed vessels, although these have occurred less frequently. This category of attack has managed to continue due to lax security practices in ports, particularly in the many smaller ports across the sub-region. Young (2007, p. 65) notes that many of the people committing acts of this kind came from the marginalised labour pool and, ironically, preyed often on people from the same social group – fishermen and local traders who were considered easy targets. It is in this lower-end group of more ad hoc maritime crime that Young (2007, pp. 65–67) likens to Hobsbawm’s description of social banditry, where these bandits are regarded not as criminals, but as “heroes of the people, distinct from organised crime as well as distinct from traditional peoples for who raiding was a way of life”. Indeed, raiding has been perpetrated across the entire archipelago, propelled by success, leading to the rise of the Sulu area as a ‘pirate state’, as it were (À Campo 2003, pp. 167–168). It is this ‘in-between’ nature of the crime that Young (2007, pp. 65–67) describes as ‘social piracy’ that renders it a socially acceptable and even ethically justifiable activity that can be utilised as an income stream in years when the fishing season is bad, or when times are otherwise tough. What’s more, local villagers are likely to be paid off for their cooperation, while profits trickle down within the community, creating an informal economy around acts of maritime crime. Victims of crime, it is rationalised, may have more than they need, and therefore in a Robin Hood sense of justice, these victims ‘deserve’ to be stolen from, in order to more equally distribute wealth. The proximity of passing pleasure craft as well as “ships laden with the bounty of foreign countries bound for foreign lands” exacerbates and promotes this way of thinking. Second, the most common form of attack that Chalk (1998, p.  88) identifies comprises of ransacking or robbery taking place either on the high seas or in territorial waters. Given the nature of the seascape there, characterised by archipelagos, undulating borders, and narrow navigable lanes, maritime transport has been particularly vulnerable, and this has caused much disruption to navigation. Pirates in operation in this region often make use of motherships and are able to board the target vessel carrying heavy arms, allowing them to both intimidate and detain crew whilst they carry out their work (Chalk 1998, p. 88; Liss 2011, p. 41). Concurring with Chalk’s assessment of modus operandi, Von Hoesslin (2012, p. 544) adds that a bamboo pole with a hook is most often used to aid boarding, and that the pirates generally head straight for the Master’s cabin and liberate the vessel of cash and valuables, whilst often having taken a crew member hostage as collateral. Sometimes, however, these attacks take place without the bridge knowing, with pirates boarding, thieving and departing in as little as 15 to 30 min. Items thieved would often value between US$10,000 and US$20,000 (Raymond 2005, p. 64). Von Hoesslin (2012, p.  544) describes the western Singapore Strait, the coastal waters of the

6  Maritime Piracy and Armed Robbery at Sea

105

Anambas Islands, and the South China Seas as being the main locales for this category of crime. In the South China Seas in particular, “it is apparent that a sophisticated syndicate is responsible… typically operating at night and targeting slow-moving tugs with low freeboards”. Raymond (2005, pp. 64–65) indicates that the third type of piracy – hijacking – is usually motivated by requirements for a vessel for the purposes of conducting illicit activities such as illegal trade and maritime piracy. Given this, these attacks are thus both organised and sophisticated, with linkages to international criminal groups having been identified, which allows for perpetrators that are well-trained and well-­ equipped. This type of piracy also tends to carry with it a higher risk of casualty as those involved are willing to make use of deadly force. Further, government officials are often implicated in supplying intelligence and providing logistical support to the pirates, especially in cases where vessels are intended for use as ‘phantom ships’. Attacks have tended to follow a specific pattern: vessels are attacked, and their cargoes transferred to another vessel, then fraudulently re-registered through the obtaining of forged papers if to be used as phantom ships, and a fresh load is then taken onboard. This “new cargo is never delivered to its intended destination but is transferred to another vessel and taken to an alternate port where it is sold to a prearranged buyer who more often than not is a willing participant in the whole venture” (Chalk 1998, p. 89). Oftentimes, however, pirates will also steal cargo that can easily be resold on the black market, and for this reason fuel oil was popularly targeted in the 1990s (Liss 2011, p. 41; Raymond 2005, p. 64). Another type of attack under the category of hijacking has been hijacking for the purpose of extortion, where fishing trawlers have most often been targets, and the locale of these activities is usually in the Sulu Sea. These have been carried out for two reasons: firstly, seizures that are ordered by rival companies in order to reduce competition for fishing stocks; and secondly, seizures of Malay trawlers conducted by a syndicate operating from Cagayan in the Philippines, where vessels, once captured, are sailed north of Sandakan and then ransomed for sums in the region of US$60,000 (Von Hoesslin 2012, p. 545). Bradford (2008, p. 477) reiterates Chalk’s findings here, calling the hijacking of vessels “piracy’s most extreme form” due to the willingness of pirates to take crew members prisoner, kill them, or set them adrift at sea, as Raymond (2005) also confirms. The rate of hijackings, Bradford (2008) notes, remained relatively constant throughout the 2000s, but increasingly smaller vessels with more limited crews and lower freeboards have come under attack, as they constitute softer targets. Of course, it is obvious here that hijackings are highly sophisticated and organised and therefore require corrupt connections that can allow for obtaining false documentation, docking for the offloading of cargo, markets for stolen goods, logistics around keeping the vessel’s crew, et cetera (Raymond 2005, pp. 64–65). Further, kidnap for ransom had become more and more common, particularly since the mid-­2000s, when such attacks became frequent in the Malacca Straits, but have declined somewhat since then. These variations in pattern can be attributable to a variety of circumstances including: changes in the needs, make-up, and capability of responsible groups, the movement and activity of naval forces and policing,

106

L. Otto and L. Jernberg

weather events, and economic conditions on land. In these attacks, crewmembers were kidnapped and removed from the vessel, then held to ransom for either their employers or families to pay, with sums between US$100,000 and US$200,000 being demanded, and between US$10,000 and US$20,000 being paid following the conclusion of negotiations (Raymond 2005, p. 65). Von Hoesslin (2012, p. 545) notes that kidnap for ransom in this region has been associated with militant groups, of which the Free Aceh Movement (GAM) has been particularly troublesome, often targeting local fishermen. Notably, the incidence of kidnappings fell dramatically once GAM reached a peace deal with the Indonesian government, and when a former GAM militant who had left the group and launched operations privately had been arrested. However, Raymond (2005, p. 66) points out, views on this have shifted with evidence suggesting that “these attacks are not necessarily perpetrated by terrorist groups but are the work of crime syndicates operating from fishing boats and staging copycat kidnaps which they see as an easy way to make money”. As has been illustrated above in the discussion around modus operandi, because of the variance in the type of attack, violence either may or may not be used. On the one hand, where more opportunistic, less sophisticated, and less organised attacks are concerned, perpetrators often, although being armed in order to scare crew, appear to prefer not to make use of violence. Liss (2011, p. 44) does, however, note that these more common pirates, often armed with traditional knives, are willing to use violence if it does become necessary. As the sophistication of attacks increase, so does the incidence and degree of violence. In robberies, violence may be employed as a means to an end, but, in the most severe cases, specifically when vessels are hijacked for use as phantom ships, the crew does not serve a purpose to the criminals and can therefore be disposed of if necessary. Then, where kidnap for ransom is concerned, motivations for the use of violence are similar to the Somali case, and, given that kidnapped crew represent their profits, criminals are less likely to make use of force, in order to keep them in a ransomable condition.

6.3.3 How Is Southeast Asian Piracy Being Combatted? Chalk (1998, p. 98) notes that efforts to stem contemporary piracy in Southeast Asia began in earnest in 1991 when Singapore initiated measures that were aimed at improving maritime awareness capabilities and improving coastal patrol functions, efforts that were largely successful mostly due to the small sea space needing covering. Malaysia followed with its own unilateral efforts, and in 1993 set up four new anti-piracy commando units with tactical and intelligence capabilities that would serve to patrol Malaysian waters, alongside a newly created special anti-­piracy police force, known as the Sabah Police Field Force Brigade, to be active in the Sulu Sea. Though having been thought to lag behind, Indonesia also initiated efforts and in 1992 infiltrated local pirate groups and made arrests. A more recent assessment conducted this decade, finds the Malaysian Maritime Enforcement Agency (MMEA) and the Singapore Police Coast Guard (PCG) to be

6  Maritime Piracy and Armed Robbery at Sea

107

the more effective in the region, whilst Indonesian forces are thought to be less so. In particular, Indonesia earns this reputation due to infrequent patrols, which often do not afford significant attention to pirate problem areas. It is noted that securing high-value oil and gas fields, tackling smuggling, and addressing overfishing exist as greater strategic priorities, and “countering piracy… is therefore neither a geographic nor functional priority” (Von Hoesslin 2012, pp.  546–547). Having said this, however, Frécon (2006) notes that: “Indonesian police do actually catch pirates and send them to jail from time to time”, pointing to the example of a notorious Indonesian pirate operating in one of the bigger syndicates being arrested and incarcerated for six years from 1999. Bilateral efforts were also taking place in the early 1990s, starting with Indonesia and Singapore establishing a full-time communication link between their navies in 1992, alongside holding coordinated patrols, and having agreements in place for hot pursuit across territorial borders. In December of 1992, Indonesia established a joint Maritime Operation Planning Team to conduct joint patrols along their common borders, as well as conducting occasional joint exercises. Then, in 1994, Malaysia and the Philippines signed a Memorandum of Understanding (MoU) allowing for information sharing and coordinated patrols of shared borders. A series of trilateral agreements were also signed between Malaysia, Indonesia and Singapore, allowing for armed police to board vessels and provide assistance when necessary and for a limited period. In 1997, Vietnam and Thailand also came on board with their own anti-piracy efforts with an agreement providing for joint naval patrols (Chalk 1998, p. 99). Singapore and Indonesia also began a cooperative effort with real-time radar surveillance for the Singapore Straits, a system known as SURPIC – the Surface Picture Surveillance System, which is operated from Batam Island (Raymond 2005, p. 69). More recently, regional initiatives have been launched, the best known of which is ReCAAP. This was the region’s first intergovernmental agreement on cooperation in combatting piracy and maritime crime there, being finalised in November 2004 and coming into force in September 2006. It has 20 contracting parties, including: Australia, Bangladesh, Brunei, Cambodia, China, Denmark, India, Japan, Korea, Laos, Myanmar, the Netherlands, Norway, the Philippines, Singapore, Sri Lanka, Thailand, the UK, the US, and Vietnam (ReCAAP 2018, Internet). Under ReCAAP an information sharing centre was established and launched in Singapore in late 2006, and serves: as a platform for information exchange between contracting parties; to facilitate communication; to collect and provide statistical analysis; to facilitate capacity building efforts; to facilitate cooperative exercises including joint patrols, capacity building, and so forth with other parties that are not members of ReCAAP. Furthermore, all ReCAAP focal points feed reports and other information gained at their station in to the information sharing centre where this information can be collated and responses coordinated (ReCAAP 2018, Internet). Nonetheless, piracy in this part of the world continues to be problematic and remains a major hotspot for piratical and maritime criminal activities. As such, the fight against piracy is ongoing, and faces broad challenges.

108

L. Otto and L. Jernberg

The first of these is, alluded to earlier herein, the nature of the geography and the archipelagic character of the region which makes it very difficult to patrol and monitor, with the Indonesian and Philippine archipelagos having 20,000 islands between them (Raymond 2005, p. 63). Indeed, the Philippines has an area of 200 nm wide in the Moro Gulf, and another 200 nm off the Sulu, which should elucidate how difficult it may to secure this sea space, being constrained by the topography. What’s more, the typical dynamic nature of pirate groups has meant that the theatre of attacks often shift, be it due to weather patterns or physical constraints in the form of patrols or policing (Renwick and Abbott 1999, p.  190). Secondly, limited resources, human-, financial-, and material-, are available in these countries for the purposes of countering piracy and maritime crime, particularly where it comes to maritime domain awareness and patrolling of potential hotspots (Renwick and Abbott 1999, p. 191). Additionally, “there are problems of intra-bureaucratic, interstate and interagency coordination… [as] inertia, complacency and the complexities of national pride and rivalry are ever-present elements limiting effective action” (Renwick and Abbott 1999, p. 191), much as is the case in West Africa. Fourth, corruption and the collusion of officials from security agencies who should be engaged in countering and fighting piracy has been suggested, less so with opportunistic and unsophisticated attacks, but more so with those that have clear prior knowledge around the movement of vessels, their security, cargoes et cetera. Such allegations come forth continually, levelled in particular against officials from China, Indonesia, Thailand and the Philippines. “Demands for payments to officials before investigations can start, and suspicious incidents during enforcement processes in these countries that undermine the prosecution of those charged with piracy” have spurred these kinds of allegation (Renwick and Abbott 1999, p. 191). Finally, international law, as elucidated in the conceptualisation portion of this study, poses a significant challenge in itself. This is because it is based on common law derived from the very beginnings of counter-piracy legislation during the Golden Age of piracy, and as a result fails to reflect the nature of piracy (as shown herein to in fact most often be clearly distinguishable maritime crimes) as it presents itself in the present day. In particular of course, the jurisdictional responsibility shifting from the universal to the domestic at any given time depending on the location of the commission of a crime in this sub-region, alongside acts being committed at varying times by the same groups for either private or public gain, render the framework within which the international community can act to counter these crimes limited. Whilst Renwick and Abbott describe these challenges in the context of the circumstances nearly two decades ago, much of this still holds true today, as Young (2007, pp. 82–85) testifies though that many gains have been made, particularly where cooperative efforts are concerned.

6  Maritime Piracy and Armed Robbery at Sea

109

6.4 Conclusion Piracy, as the crimes discussed herein are often referred to collectively, is dynamic, ebbing and flowing as circumstances change, with perpetrators shifting their modus operandi and areas of focus accordingly. This forms part of why piracy, having been plaguing the world’s oceans for centuries, is likely to continue to persist. Lessons that can be drawn from experiences of contemporary piracy are manifold, but can be summarised as follows. Firstly, the nexus between land and sea cannot be disregarded: piracy plays out at sea, but the actors involved and the push and pull factors emanate from land. As such, multi-pronged approaches are necessary to tackle piracy, and deal not only with the symptoms but also with the causes. This brings us to the second point, which is that both symptoms and causes are best addressed collaboratively, between relevant departments and institutions at state-­ level, as well as through interstate cooperation at a regional level, and multilateral efforts at an international level. The successes of counter-piracy cooperation have been demonstrated in the case of ReCAAP, and with the case of Somali piracy, the latter of which was tackled via several cooperative mechanisms from both state and non-state actors. This in turn, leads to the next lesson, which is that non-state actors, as is explained elsewhere in this volume, along with the private sector, can play an invaluable role in counter-piracy efforts. This has been seen with the use of armed guards aboard vessels in the Gulf of Aden, alongside industry players which developed best practice, both of which were integral in preventing attacks. Piracy has been a key area of focus within the field of Maritime Security, and should continue to garner interest from researchers, academics and policymakers. Areas for future research should include more in-depth studies into the groups responsible for acts of piracy, as well as the value chains, specifically the money trails, of pirate activity. Research into the necessary legislation at domestic level (which is often absent), policy and prosecution may also be further developed, while the use of new technologies in the maritime domain, as it pertains to piracy, should also be further explored.

References À Campo JNFM (2003) Gauging the historical dimension of globalization: the case of maritime piracy in insular Southeast Asia. Int J Marit Hist XV(1):159–175 Azubuike L (2009) International law regime against piracy. Ann Surv Int Comp L 15(1):43–59 Bento L (2011) Toward an international law of piracy sui generis: how the dual nature of maritime piracy law enables piracy to flourish. Berkeley J Int L 29(2):399 Bradford JF (2008) Shifting the tides against piracy in Southeast Asian waters. Asian Surv 48(3):473–491 Campbell P (2010) A modern history of the international legal definition of piracy. In: Elleman BAFA, Rosenberg D (eds) Piracy and maritime crime. Historical and modern case studies. Naval War College Press, Newport Chalk P (1998) Contemporary maritime piracy in Southeast Asia. Stud Confl Terror 21(1):87–112

110

L. Otto and L. Jernberg

Chalk P (2008) The maritime dimension of international security: terrorism, piracy, and challenges for the United States. Rand Corporation, Santa Monica Frécon E (2006) Piracy and armed robbery at sea along the Malacca Straits: Initial Impressions from fieldwork in the Riau Islands. In: Ong-Webb GG (ed) Piracy, maritime terrorism and securing the Malacca Straits. ISEAS Publishing, Singapore International Maritime Bureau (2018) Piracy and armed robbery against ships: report for the period 1 January – 31 December 2018. ICC International Maritime Bureau, London Jeong K (2015) Diverse piracy patterns and different control mechanisms, A Paper for the ISA Global South Caucus Conference, 2015 Kontorovich E (2010) A Guantánamo on the sea: the difficulty of prosecuting pirates and terrorists. Calif Law Rev 98:243 Koppe EV (2015) Hague case law – latest developments. Neth Int Law Rev 62:521–522 Liss C (2003) Maritime piracy in Southeast Asia. In: Southeast Asian Affairs (2003). ISEAS, Singapore, pp 52–68 Liss C (2011) Oceans of crime: maritime piracy and transnational security in Southeast Asia and Bangladesh. ISEAS Publishing, Singapore Møller B (2009) Piracy, maritime terrorism and naval strategy, DIIS report 2009:02. Danish Institute for International Studies, Copenhagen Nelson ES (2012) Maritime terrorism and piracy: existing and potential threats. Global Secur Stud 3(1):15–28 Otto L (2011) Benefits of buccaneering: the political economy of maritime piracy in Somalia and Kenya. Afr Secur Rev 20(4):45–52 Otto L (2015) The Gulf of Guinea’s troubled waters: the evolution of piracy and other maritime crimes in Nigeria. Unpublished thesis, University of Johannesburg Otto L (2018) Defining maritime piracy: the problem with the law. Acta Criminologica 31(2):134–148 Raymond CZ (2005) Piracy in Southeast Asia: new trends, issues, and responses. No. 89, Working Paper Series, Institute of Defence and Strategic Studies, Singapore ReCAAP (2018) About ReCAAP. http://www.recaap.org/AboutReCAAPISC.aspx. Accessed 8 Dec 2018 Renwick N, Abbott J (1999) Piratical violence and maritime security in Southeast Asia. Secur Dialogue 30(2):183–196 Scharf M, Taylor M (2017) A contemporary approach to the oldest international crime. Utrecht J Int Eur L 33(84):77–89 Storey I (2016) Addressing the persistent problem of piracy and sea robbery in Southeast Asia, ISEAS – Yusof Ishak Institute Perspective, 2016 (30) United Nations Division for Ocean Affairs and the Law of the Sea (2010) Legal framework for the repression of piracy under UNCLOS. http://www.un.org/Depts/los/piracy/piracy_legal_framework.htm. Accessed 10 Jan 2019 Von Hoesslin K (2012) Piracy and armed robbery at sea in Southeast Asia: organized and fluid. Stud Confl Terror 35(7–8):542–552 Walker R (2011) International law of the sea: applying the doctrine of hot pursuit in the 21st century. Auckl Univ Law Rev 17:194 Young AJ (2005) Roots of contemporary maritime piracy in Southeast Asia. In: Johnson D, Valencia M (eds) Piracy in Southeast Asia: status, issues, and responses. ISEAS Publishing, Singapore Young AJ (2007) Contemporary maritime piracy in Southeast Asia: history, causes and remedies. ISEAS Publishing, Singapore

Chapter 7

Maritime Boundaries and Maritime Security Victoria Mitchell

Abstract  Delimitation of maritime boundaries is a complex process and worldwide a great number of maritime boundaries remain to be delimited. In some instances situations of outstanding delimitation may rise to the level of dispute, either concerning sovereignty over territory or overlapping maritime entitlements or a combination of the two. Unsettled maritime boundaries and maritime boundary disputes affect maritime security themselves and through their impact on jurisdiction, cooperation and economic activity. This chapter addresses the concept of maritime zones and the maritime boundaries, the basis for maritime boundary disputes, and the impact on maritime security before considering these issues in respect of a case study: the dispute between Somalia and Kenya currently before the International Court of Justice. Keywords  Maritime boundaries · Maritime security · Disputes · Delimitation · Somalia · Kenya

7.1 Introduction Oceans cover over 70% of the surface of the planet. The regime established under the United Nations Convention on the Law of the Sea (UNCLOS) 1982 (United Nations 1983) establishes the right of coastal states to claim maritime space out to 200 nautical miles (M) (UNCLOS Article 57), and further where what is commonly termed as an extended continental shelf may be established (UNCLOS Article 76).

V. Mitchell (*) University of Greenwich, London, UK e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Otto (ed.), Global Challenges in Maritime Security, Advanced Sciences and Technologies for Security Applications, https://doi.org/10.1007/978-3-030-34630-0_7

111

112

V. Mitchell

This regime requires neighbouring states to delimit newly overlapping maritime claims. The presence of unsettled boundaries as well as maritime boundary disputes are directly and indirectly linked to maritime security. Economic, environmental and security considerations are amongst those that enter into consideration for states contemplating maritime delimitation. They may also be barriers to delimitation or the cause of disputes. Maritime security does not have a settled definition but can include ‘the protection of a state’s land and maritime territory, infrastructure, economy, environment and society from certain harmful acts occurring at sea’ (Klein et al. 2010). Maritime security is of vital importance to individuals, states and the international community. This may be captured through a snapshot of the use humans make of the oceans. Over 90% of trade travels by sea (Kraska 2010), fisheries provide approximately 17% of animal protein consumed globally and for 3.2 billion people this rises to almost 20% of average per capita intake of animal protein (FAO 2018). Despite a focus on decarbonisation, exploitation of offshore hydrocarbons deposits remains a potential gateway to prosperity and diversification of a national economy and demand for oil is expected to continue to increase. Emerging sectors such as sustainable marine tourism, offshore renewable energy, seabed mining and exploitation of marine genetic resources are newer lenses through which to enjoy the potential of the oceans. These sectors depend for their success upon maritime security. Maritime boundaries underpin maritime security by defining sovereignty and sovereign rights offshore and, in particular, clarifying the extent of a coastal state’s jurisdictional rights. Although security matters are not repeatedly expressly referred to in the governing regime, UNCLOS, from the territorial sea rules on innocent passage (UNCLOS, Part II, Section 3) outward through provisions such as safety zones around offshore installations in the Exclusive Economic Zone (EEZ) (UNCLOS, Article 60) coastal states are able to utilise the rights and jurisdictions provided to attempt to ensure maritime security. This has been increasing in controversy as states exert greater claims in the EEZ in the name of security in ways that threaten the traditional freedom of the seas (Kraska 2011; Oxman 2006). Where maritime boundaries are unsettled or the subject of dispute, uncertainty over jurisdictional rights and competing efforts to assert rival claims creates a number of risks for maritime security. This chapter outlines the concept of maritime zones, the maritime boundaries that delimit them and the process by which boundaries are settled. It details the nature of maritime boundary disputes and the impact of unsettled boundaries and maritime boundary disputes for maritime security. This covers cooperation for security and for economic activity, jurisdiction, and as a driver of conflict in itself. These ideas are then addressed in the case study, which focuses on the maritime space off Somalia and Kenya, states whose maritime boundary dispute is currently the subject of proceedings before the International Court of Justice (ICJ).

7  Maritime Boundaries and Maritime Security

113

7.2 Maritime Zones and Maritime Boundaries: Definition, Delimitation and Disputes 7.2.1 Definition of Maritime Zones Ocean space has been a concern of states for centuries but the expansion of state capacity to take advantage of the space continues to evolve. Key developments following the Second World War (Rothwell and Stephens 2015) led the international community to seek to address the gap in regulation of the maritime space, ultimately negotiating over three intergovernmental conferences, the UNCLOS. UNCLOS represents the regime for organising maritime space. Beginning from a baseline the zonal regime encompasses a 12 M territorial sea (UNCLOS, Article 3), 24 M contiguous zone (UNCLOS, Article 33), 200 M EEZ (UNCLOS, Article 57) and continental shelf (200 M or what is commonly termed an extended continental shelf in accordance with UNCLOS, Article 76). Waters landward of the baseline are internal waters (UNCLOS, Article 8). Boundaries fix the limit or extent of these zones. Definition of maritime zones as well as their limits and boundaries is important for many reasons but in the context of this chapter focus will be on what rights are provided for in these zones that states may judge to be necessary to protect, and what security capacity is enabled. Within these zones the coastal state has rights and duties that relate to ensuring maritime security. In internal waters and the territorial sea the coastal state has sovereignty. It may act against vessels which do not have sovereign immunity (UNCLOS, Article 32) where these vessels fall within the coastal state’s criminal jurisdiction (UNCLOS, Article 27) or otherwise violate the peace, good order or security of the coastal state (UNCLOS Part II, Section 3). The regime of innocent passage provides for navigational rights which qualify coastal state sovereignty in the territorial sea. In the contiguous zone, the coastal state may act to prevent or to punish offences concerning fiscal, sanitary, customs and immigration laws and regulations within its territory or territorial sea (UNCLOS, Article 33 (1)). Definition of a state’s maritime space is therefore critical to accessing and protecting rights over the expanded space to which it may lay claim. Of particular importance is the UNCLOS-created sui generis regime of the EEZ.  Prior to the establishment of the EEZ regime, states had claimed a territorial sea and continental shelf rights. The rights, jurisdiction and duties provided to the coastal state in Article 56(1) illustrate the importance for states of determining the extent of their respective maritime space: 1. (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

114

V. Mitchell (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: the establishment and use of artificial islands, installations and structures; marine scientific research; the protection and preservation of the marine environment; (c) other rights and duties provided for in this Convention.

These rights and jurisdictions are subject to the due regard for rights and duties of other states (UNCLOS, Article 56(2)) and exercised in accordance with Part VI UNCLOS (UNCLOS, Article 56(3)). The scope for regulation of resources, infrastructure, marine scientific research, activities that impact the marine environment, and the non-exhaustive nature of rights and duties provides coastal states with the ability to exert certain levels of control with respect to surveillance and enforcement over a range of activities across a wide maritime space. The right to exert security jurisdiction beyond internal waters, the territorial sea and contiguous zones becomes significantly reduced. This space is governed by the rule of exclusive flag state jurisdiction (UNCLOS, Article 92) save for specific exceptions that reflect rights of the coastal state in the EEZ (UNCLOS, Articles 73, 220) and states generally in the high seas (UNCLOS, Articles 110, 11).

7.2.2 Delimitation of Maritime Space Between States In order to realise the expanded suite of rights and duties and have the opportunity to exert power to affect maritime security, states have to delimit their respective spaces. UNCLOS provides for general rules regarding delimitation between states with opposite or adjacent coasts. Article 15 establishes rules for delimitation of territorial seas: Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.

This provision makes a clear expectation of the use of equidistance method. The provisions concerning delimitation of the EEZ and continental shelf are more ambiguous. Delimitation of EEZ and continental shelf is established respectively by Articles 74(1)/83(1): The delimitation of the (exclusive economic zone/continental shelf) between States with opposite or adjacent coasts shall be affected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

Respective Articles 74(3)/83(3) provide that states shall make efforts to enter into provisional arrangements pending delimitation. The ambiguity and reliance on ‘agreement on the basis of international law’ was a deliberate compromise by states

7  Maritime Boundaries and Maritime Security

115

negotiating UNCLOS (Kim 2004). Consequently, reference to state practice and case law is required to provide insights into relevant delimitation method and practice. There may be cogent reasons for not concluding delimitation. The status quo may be preferable for states and may include for example circumstances where political relations are not conducive to delimitation negotiation, or where the existence or scale of resources are yet to be fully determined. The generally final and binding nature of delimitation treaties and lines may make caution understandable. States have the freedom to adopt any approach in bilateral negotiations. This is where the majority of boundaries are agreed. This approach has the benefit of freedom of choice of process and result, and a positioning of the actors involved not as adversaries but as states seeking to reach agreement. The content of negotiations and basis upon which a resultant line is arrived at are often confidential, but evidence of practice is available (International Maritime Boundaries 1993 - present). This is not always a preferable route for states, and in such cases they may resort to conciliation (Guterres 2018), mediation (Merrills 2012) or to international courts or tribunals (Beckman and Sim 2017).

7.2.3 Disputes Over Maritime Boundaries Overlapping claims to maritime space may remain unsettled indefinitely. In some cases this undelimited space will become the subject of a maritime boundary dispute. At present disputes are identifiable across the globe and include maritime space in the South and East China Seas (McDorman 2018; Odeyemi 2015) Indian Ocean (Bonafé 2017), Central and West Africa (Gilpin 2007), Mediterranean Sea (IBRU 2015) the Caribbean (International Maritime Boundaries 2005) and the Arctic (Rothwell 2008). The British Institute for International and Comparative Law reports on obligations in undelimited areas distinguishes maritime disputes and undelimited space: “undelimited” maritime areas are areas where the continental shelves or EEZs of States overlap or may potentially overlap, and no final delimitation is in place (whether by agreement or judicial award)’ and ‘[t]he term “undelimited area” is used here rather than “disputed area”, which may, depending on context, refer to a more specific area and is not free from ambiguity’ (BIICL 2016). The Permanent Court of International Justice defined “dispute” as “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.” (Mavromattis 1924) The finding of the existence of a dispute is a complex determination for courts and tribunals (Harrison 2017). A maritime boundary dispute may pertain to one or both of two issues. A maritime boundary dispute may concern a sovereignty dispute over territory on the mainland or over islands. In the second case a maritime boundary dispute may concern overlapping entitlement to maritime rights and jurisdiction (Anderson 2006). In the dispute before the International Court of Justice in the Cameroon v Nigeria case (Cameroon/Nigeria 2002) the two states disputed sovereignty over the Bakassi peninsula and also put forward overlapping claims to the relevant maritime area.

116

V. Mitchell

The method developed through the case law before international dispute settlement bodies has been evolutionary (Evans 2015). The 2009 Black Sea (Romania v Ukraine) case sets out the current method (Romania/Ukraine 2009, paras 115–22). It outlines a test comprising three defined stages. The first stage is the construction of the provisional delimitation line based on equidistance. The second is an assessment of any relevant circumstances that may necessitate an adjustment to that line. The final stage is a (dis)proportionality test, which considers whether the proposed resulting line disproportionately favours one party over another. The fidelity of courts and tribunals to the test has been questioned by various authors (Evans 2015; Fietta and Cleverly 2016). Maritime security has been proposed as a relevant circumstance but there is no consistent standard (Tanaka 2006) in the delimitation process in cases before international dispute settlement bodies. Of the second stage, relevant circumstances, geographical factors have been given overwhelming precedence (Tanaka 2006). States have also sought to raise what is a matter of major importance: access to resources. Hydrocarbons and/or fisheries have been raised by states before international dispute settlement bodies (Tunisia/Libya 1982; Cameroon/Nigeria  2002; Guyana/Suriname 2007; Nicaragua/Honduras  2007; Ghana/Cote d’Ivoire 2017) and in evidence in treaties (Nigeria – São Tomé et Príncipe). Maritime boundaries and security considerations have been addressed but no international standard for taking account of security is in place (Fietta and Cleverly 2016). The ICJ in Nicaragua v. Colombia stated ‘legitimate security concerns might be a relevant consideration, if a maritime delimitation was effected particularly near to the coast of a State and the Court will bear this consideration in mind in determining what adjustment to make to the provisional median line or in what way that line should be shifted’ (Nicaragua/Colombia 2012). The proximity to the coastline is relevant to the importance of security considerations as a relevant circumstance. The complexity of this issue, as reflected in case law, makes the resolution of disputes a challenging and often controversial matter, with consequences extending beyond the conclusion of the case itself. To continue by way of example the reference to the Cameroon v Nigeria dispute, the parties continue, following the conclusion of the case in 2002, to work on matters including demarcation of the land boundary and confidence building measures through the United Nations Office for West Africa. This review has illustrated that coastal states have reason to choose to expand their claims to maritime space. The rights and duties pertaining to the various maritime zones enable states to manage and derive benefit from the oceans. The potential to make maritime claims to 200 M and potentially beyond has resulted in many overlapping maritime claims and this necessitates maritime delimitation. Coastal states have the freedom to determine their own approach, and an international framework and dispute settlement process is available to assist in delimiting of maritime space. Yet over half of potential maritime boundaries remain undelimited (Schofield 2011). Establishment of maritime boundaries determines the scope of jurisdiction of states. In this regard they represent a critical tool for states to exert relative control

7  Maritime Boundaries and Maritime Security

117

over matters relating to maritime security. Settled maritime boundaries are preferable to unsettled boundaries for maritime security and maritime security is further threatened where in some cases unsettled maritime boundaries become disputed which can pose a threat to international peace and security. Further, unsettled maritime boundaries may cause uncertainty in respect of jurisdiction therefore compromising maritime security efforts. The following section expands upon this and addresses how the presence of unsettled and disputed maritime boundaries impact maritime security.

7.3 Unsettled and Disputed Maritime Boundaries and Maritime Security Maritime security is a complex and unsettled concept. It affects state and non-state actors. Its impact is felt from an individual level in fishing communities up to the level of government and naval forces (Bueger 2015). As Section 7.2 detailed, maritime boundaries define the space within which states may exercise their rights and jurisdiction in their claimed maritime zones. This has been acknowledged to be controversial in some instances, notably in the creeping claims for security purposes in the EEZ. However it can be argued that settled maritime boundaries offer the best prospect for ensuring maritime security by enabling states’ jurisdiction to act for security purposes. The scope of powers available to coastal states that may be relevant to ensuring maritime security has been detailed in Section 7.2. Unsettled maritime boundaries and maritime boundary disputes can in this way and others negatively impact maritime security. As identified above, maritime boundaries are a global concern, and affect maritime security worldwide. There is a reciprocal relationship between maritime delimitation and maritime security. Firstly maritime security can negatively impact on efforts to achieve maritime delimitation, “maritime delimitation issues can become even more intractable because of security concerns.” (Kim 2004). As one part of a wider state agenda it is not possible to isolate maritime delimitation from the wider international relations environment or from broader state resource considerations. Maritime security requirements on government agencies may divert focus and resources from maritime delimitation, or cause damage to international relations necessary to conclude delimitation. Secondly, unsettled maritime boundaries or the subset of these boundaries that become the subject of dispute may impact maritime security or themselves present a maritime security risk. This forms the focus of this section. Klein highlights maritime delimitation as a major security risk because of conflict potential and the block to inclusive interest (Klein 2015). Townsend-Gault observes: Some parties to disputes claim that they are prepared to wait for centuries for their claims to be recognised. But where the marine environment is under threat, and illegal acts at sea are rife, time is not on their side. (Townsend-Gault 2012).

118

V. Mitchell

Ali and Tsamenyi summarise the link between maritime boundaries and maritime security as representing three concerns: cooperative challenges; jurisdictional uncertainties; and conflicts and instability – that unresolved maritime boundaries may create (Ali and Tsamenyi 2013). Whilst the authors focus on the Gulf of Guinea and the consequences of unresolved maritime boundaries their assessment is geographically more widely applicable and relevant to the specific case of disputes within “unresolved maritime boundaries”. Security cooperation activities identified by Ali and Tsamenyi are cooperation against piracy and illicit narcotics traffic (UNCLOS Articles 98, 100, 108 and 109) and cooperation to ensure that escaping vessels entering a neighbouring state’s territorial sea face arrest (UNCLOS Article 111). Where a dispute exists cooperation is likely to be limited. Limiting of cooperation may be with respect to tracking and information sharing to monitor fishing, a key tool in the prevention of illegal fishing. In a space where maritime domain awareness is essential and many states do not have the capacity to adequately conduct Monitoring, Control and Surveillance (MCS) activities, limited cooperation due to maritime boundary disputes can impact maritime security more broadly through diminished cooperation between ports, security services and governments. Maritime security is also linked to the blue economy (Voyer et al. 2018). The blue economy is also undefined, but the concept broadly may be understood as “economic growth, social inclusion, and preservation or improvement of livelihoods while at the same time ensuring environmental sustainability” (The World Bank 2017). Beyond the reduction in cooperation for security activities that may be caused by uncertain maritime boundaries and maritime boundary disputes, cooperation on economic activities can be negatively affected. Fishing vessels determine where their activities may take place and oil companies purchase blocks and commence exploration based upon this issue. Limiting the capacity of actors to conduct economic activities in the maritime space both impacts their maritime security where it damages livelihoods of communities dependent upon the sea, and links between reduction of economic security and maritime insecurity are evident, indeed are cited as one of the drivers of Somali piracy (Biziouras 2013). Issues of jurisdiction concern which state has the authority and responsibility to secure the space (Ali and Tsamenyi 2013). This may present a challenge to security actors who dispute and each separately assert a right to exercise jurisdiction. Further, lack of clarity or dispute over this can establish a gap in which illegal activities detrimental to maritime security can be created and spread. Maritime boundary disputes are a maritime security risk in themselves (Ali and Tsamenyi 2013). Economic interests in the maritime space that factor into state decision making about delimitation are fisheries, and, in cases to date, most clearly hydrocarbons. Conflict over resources in unsettled or contested space may occur between local communities or reach the interstate level. The importance of hydrocarbons has been in evidence in the recent Ghana/Cote d’Ivoire case (Ghana/Cote d’Ivoire 2017) before a special chamber of the International Tribunal for the Law of the Sea, and led to removal of personnel from an oil installation in the context of Guyana/Suriname (Guyana/ Suriname 2007).

7  Maritime Boundaries and Maritime Security

119

It is clear that maritime boundaries affect maritime security in terms of cooperation, jurisdiction and conflict potential. The cooperative link extends beyond security cooperation into cooperation for regulation of economic activities. Jurisdiction is both a conflict potential in that security forces may dispute jurisdiction, for example in recognising claims to resource access, and also other actors may exploit gaps in jurisdiction to conduct illicit activity. The final link between maritime boundaries and maritime security is the potential for conflict that disputes may give rise to, a maritime security risk in themselves whether at a local or international level. The next part, Part 4, addresses a case study. The case study has been selected because of its current status as a maritime boundary dispute before the International Court of Justice and its geographical location as one which faces clear maritime security concerns.

7.4 Case Study: Somalia and Kenya The government of the Federal Republic of Somalia filed an application instituting proceedings against the Republic of Kenya on 28 August 2014 (Somalia v Kenya application 2014) requesting the International Court of Justice to determine the course of a single maritime boundary including beyond 200 M. The dispute concerns waters in the Indian Ocean. The parties to the case are adjacent states on the East African coast. Somalia’s 3025 km coastline faces the Gulf of Aden and Indian Ocean. Kenya’s coastline faces the Indian Ocean and stretches 536 km. (CIA World Factbook 2018). Somalia borders Kenya to the south-west, Ethiopia to the west and Djibouti to the north-west. Kenya borders Somalia to the north-east, Ethiopia to the north, South Sudan to the north-west, Uganda to the west and Tanzania to the south. The maritime space is critical for shipping, fisheries and ports critical for trade dot the coastline. In 2014 Somalia deposited a list of geographical coordinates of points with the United Nations establishing its EEZ (2014 [1]). The Presidential Proclamation (United Nations 2016) details the declaration of the EEZ under UNCLOS.  The action was not uncontroversial. Yemen and Djibouti have respectively lodged communications (United Nations 2014 [2]) and a Note Verbale (United Nations 2017) disputing the action. The proclaimed EEZ encroaches on Yemeni-controlled islands and Djibouti waters. The dispute that this section focuses on concerns Kenya. One critical issue driving the dispute is the existence of hydrocarbon deposits. The Ghana/Cote d’Ivoire precedent indicates one approach to addressing such activity, namely continuing existing exploitation, and ceasing planned exploitation. Should the disputed area be decided in favour of Somalia, Kenya would potentially need to compensate Somalia and share information about the area. Such has been posited by Somalia (Somalia Memorial Vol 1 2015). The impact on previously-issued exploration permits is also at issue (Pappa 2017).

120

V. Mitchell

The proclaimed Somali EEZ followed a line of equidistance which, because of the broadly South West – North East orientation of their coastlines, results in a line trending South East. This differs from the Kenyan position that the boundary line follow the parallel of latitude emanating from the land boundary terminus, which Kenya argues is consistent with regional practice and has been established by Presidential Proclamation since 1979 and has not been disputed before 2009 (Kenya Memorial 2015). The relevant area is yet to be determined by the court. The ultimate timeframe for proceedings is uncertain; the ICJ most recently announced public hearings in the case are to be held in June 2020. The maritime boundary dispute impacts maritime security. To speak first to cooperation: the states cooperate for maritime security as well as land-based security. The most notable evidence of maritime security cooperation concerns anti-­ piracy measures (Guilfoyle 2013). Information sharing has been critical (IMO 2011). The level of cooperation has extended: Kenya has hosted trials for persons captured by international naval forces, this has been critical for ensuring a flow through from capture to conviction and ensuring that the international community can retain solutions within the region (Gathii 2010). This was part of an important effort to make the most of scarce resources (Guilfoyle 2013). The states also cooperate within a number of regional maritime security cooperation organisations and initiatives (Djibouti Code 2009; Jeddah Amendment 2017; AIMS 2050, 2012; Lomé Charter 2016). Kenya and Somalia are part of a number of regulatory and security focused organisations including the EUCAP Nestor and EUCAP Somalia and the Contact Group on Piracy off the Coast of Somalia. The continuation of the maritime boundary dispute could hinder cooperation prospects with each other and with states in the wider region. Maritime links go beyond piracy and armed robbery at sea. Fishing access is a concern as a possible driver of pirate activity (Westberg 2016), although this is disputed, and more broadly as an important economic activity. In 2018 Somalia recommenced fish exports to Kenya (The East African 2018). Reports of increased fishing off Kenyan coastlines in the highpoint of Somali piracy (Associated Press 2010) indicated interconnectedness. Somalia has sought to focus its attention on combatting illegal fishing (Patinkin 2018). Illegal fishing vessels transit the waters off Somali and Kenyan coastlines (FISH–I–Africa 2018). The Greko 1 vessel docked in Mombasa after evading capture by Somali authorities (Stop Illegal Fishing 2016). Better data to support authorities is urgently needed (Cashion et  al. 2017) and cooperation for information sharing is vital to this. Fisheries cooperative organisation infrastructure includes the FISH-I Africa task force (Stop Illegal Fishing 2018) and the IGAD Security Sector Program (IGAD 2018). How could the maritime boundary dispute impact cooperation? The states are part of a number of cooperative initiatives and institutions. Damage to bilateral relations in one area could have a ripple effect on political will to cooperate in other areas. It could also cause a shift in security cooperation alliances where states may seek to establish new connections or cement existing relationships (Igadwah 2017).

7  Maritime Boundaries and Maritime Security

121

To look now at the impact on the jurisdictional concerns relevant to maritime security. Jurisdiction to prosecute offenders is critical to ensure comprehensive action can be taken against offenders. In this context of a maritime boundary dispute focus is on at-sea enforcement jurisdiction as between the states. The complex maritime security picture in the Indian Ocean region (Chatterjee 2014) increases the need for clarity of authority of respective states’ naval and coastguard forces. This is of even greater consequence where capacity differs between states (Janes World Navies 2018) and where maritime security concerns prompt states to increase their naval and/or coastguard capacity (Mwakio 2014). The maritime boundary dispute risks maritime security jurisdictional concerns. This is both in a sense of potentially overlapping jurisdiction or otherwise an absence of claim to jurisdiction creating a void which illegal actors take advantage of. Capacity in this area is most clearly demonstrated through looking at the coastguard development. The focus on combatting illegal fishing referenced above has been noted to be in part responsible for prompting Somalia to move to increase its fleet capacity (IHS Markit 2018), with a Somaliland Coast Guard law passed in 2019, enabling the coast guard to tackle violations of and related to illegal fishing (EUCAP 2019). Capacity increase is also being undertaken by Kenya with a coastguard recently established (Coast Guard Service Act 2018). The purpose of the coastguard is to patrol the territorial waters and to protect Kenyan maritime space (Nkala 2018). The increase in fleet capacity may be understood as both positive and potentially negative. A greater at-sea presence is critical to deterring illegal activity. A greater fleet presence however risks the potential for overlapping assertions of jurisdiction, and escalation towards conflict. This flows into concern regarding the potential for conflict. The situation is a dispute with contested jurisdiction over maritime space and the rights to resources contained therein. The possible economic value of resources make them of critical importance to states. At the same time the states are each demonstrating their intention to increase at-sea capacity. Contested jurisdiction could lead to conflict between state vessels or between nationals of the respective states seeking to exploit resources in waters subject to overlapping claims. The threshold for conflict can begin at a low level but can escalate; examples from other areas of the world demonstrate this real risk (Johnson and De Luce 2016). Deterioration in relations between states could cause challenges on land, for example in communities affected by limitations on access to the sea and its resources. Somalia and Kenya are not isolated states, but rather sit within a wider regional space. The dispute could escalate beyond the bilateral level, although this is very unlikely. What is clear is that as the value of maritime space is understood by states they increase the steps they are prepared to take to ensure it for themselves. In the case study context this has been seen in moves toward increasing fleet capacity and seeking bilateral arrangements or building on existing relationships to bolster maritime security alliances. This case study has demonstrated the link between maritime boundary disputes and maritime security. The ongoing dispute before the ICJ between Somalia and Kenya is subject to binding dispute resolution however it is unlikely to be resolved in the immediate future. The dispute represents a risk to maritime security cooperative ties between the states, ties within the region for cooperation for wider regional

122

V. Mitchell

maritime security and the international community who are invested in maritime security along this trade route. The dispute raises questions about jurisdiction for maritime security. There is an indication of development of jurisdiction to ensure that capacity is available. Development of capacity is not definitively linked however increased focus on the maritime space because of a dispute has been seen in other instances (Daniel 2005). Enforcement jurisdiction potential has been increasing which could be positive where it enables effective control of the maritime space however where aggressive policy is pursued and jurisdiction is contested there is a risk of escalation towards conflict. The potential for maritime security to be disrupted by conflict is increased in the context of a maritime boundary dispute. For example, the stated aim of the Kenyan Coast Guard is to protect marine assets in Kenya’s EEZ. Similarly the focus of the Somaliland Coast Guard includes to monitor and prevent damage to maritime resources. The EEZ includes part of the maritime space under dispute therefore bringing new civilian/military forces into a disputed area. There is also potential for conflict on land linked or in the extreme, within the region. The case study demonstrates that a dispute concerning maritime boundaries is itself a threat to maritime security and may have consequences for economic activity, for maritime security cooperation and claims of jurisdiction, all of which impact maritime security.

7.5 Conclusion This chapter has outlined the subject of maritime boundaries and the link between maritime security of unsettled maritime boundaries and maritime boundary disputes. The subjects themselves and the links between them are complex and evolving particularly in view of the considerations states may include in decisions to progress or otherwise with delimitation. Maritime boundaries the world over are widely unsettled. States may make their own negotiated settlement or submit to third party dispute settlement. A subset of unsettled boundaries may be characterised as maritime boundary disputes. Maritime boundary disputes may concern sovereignty over land territory or overlapping maritime claims or a combination of both. The method for delimiting boundaries is not mandated although state practice has evidenced a preference for equidistance and international dispute settlement bodies have recently focused on the three-stage process discussed above. Maritime security may impact maritime delimitation efforts, either by causing deterioration in international relations, creating a status quo that makes delimitation undesirable, or by necessitating diversion of capacity and resources that would otherwise be focused on resolving delimitation matters. It is clear also that maritime boundary disputes have implications for maritime security. These have been summarised, as Ali and Tsamenyi describe, as relating to matters of cooperation,

7  Maritime Boundaries and Maritime Security

123

jurisdiction and conflict. The issues overlap and therefore in addition to being a cause of conflict in themselves, the different agenda areas impacted by disputes then negatively impact maritime security. The current proceedings before the ICJ between Somalia and Kenya are an example of the potential for maritime boundary disputes to affect maritime security. States’ decisions in the context of the dispute itself and in related areas for example for at-sea enforcement capacity illustrate this link. The ongoing proceedings have potential to limit or even damage maritime security directly in the region and, through the impact on trade and international relations, worldwide. This conclusion may apply to unsettled maritime boundaries and maritime boundary disputes further afield.

References Ali K-D, Tsamenyi M (2013) Fault lines in maritime security. Afr Secur Rev 22(3):95–110 Anderson D (2006) Introduction: methods of resolving maritime boundary disputes. Meeting of the International Law Discussion Group at Chatham House on 14th February Associated Press (2010) The upside of Somali piracy: bigger catches for Kenyan fishermen, available at https://www.cleveland.com/world/index.ssf/2010/01/the_upside_of_somali_piracy_bi.html Beckman R, Sim C (2017) Maritime boundary disputes and compulsory dispute settlement: recent developments and unresolved issues. In: Nordquist M, Norton Moore J, Long R (eds) Legal order in the world’s oceans: UN convention on the Law of the Sea. Brill | Nijhoff, Leiden BIICL (2016) Report on the Obligations of States under Articles 74(3) and 83(3) of UNCLOS in respect of Undelimited Maritime Areas. BIICL, London Biziouras N (2013) Piracy, state capacity and root causes. Afr Secur Rev 22(3):111–122 Bonafé BI (2017) Maritime delimitation in the Indian Ocean. Am J Int Law 111(3):725–731 Bueger C (2015) What is maritime security? Mar Policy 53:159–164 Cameroon/Nigeria (2002) Land and maritime boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, pp. 303 Cashion T et al (2017) Fisheries in Somali waters: Reconstruction of domestic and foreign catches for 1950–2015. Mar Policy 87(2018):275–283 Chatterjee A (2014) Non-traditional maritime security threats in the Indian Ocean region. Mar Aff 10(2):77–95 CIA World Factbook (2018) The world Factbook: Somalia, available at https://www.cia.gov/ library/publications/the-world-factbook/geos/so.html and the world Factbook: Kenya, Available at https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html Coast Guard Service Act (2018) Kenya Coast Guard Service Act (Act no. 11 of 2018) available at, http://www.kenyalaw.org/lex/actview.xql?actid=No.%2011%20of%202018 Daniel T (2005) Region IV: African Maritime Boundaries. In: Colson DA, Smith RW (eds) International Maritime Boundaries. Brill Nijhoff, Leiden, pp 3429–3437. (2005. The American Society of International Law) Evans M (2015) Maritime boundary delimitation. In: Rothwell D, Oude Elferink A, Scott K, Stephens T (eds) The Oxford handbook of the law of the sea. Oxford University Press, Oxford EUCAP (2019) Somaliland Coast Guard ready to exercise its powers across territorial waters available at https://www.eucap-som.eu/somaliland-coast-guard-ready-to-exercise-itspowers-across-territorial-waters/ FAO (2018) The State of World Fisheries and Aquaculture 2018 – meeting the sustainable development goals (Rome. Licence: CC BY-NC-SA 3.0 IGO. 2.)

124

V. Mitchell

Fietta S, Cleverly R (2016) A Practitioner’s guide to maritime boundary delimitation. Oxford University Press, Oxford FISH–I–Africa (2018) Mysterious movements on the Somali coast: the POSEIDIN and the AL-AMAL, available at, https://fish-i-africa.org/mystrerious-movements-on-the-somali-coastthe-poseidin-and-the-al-amal/ Gathii J (2010) Kenya’s Piracy Prosecutions. AJIL 104(3):416–436 Ghana/Cote d’Ivoire (2017) International Tribunal for the Law of the Sea, Case No. 23 Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire) Gilpin R (2007) Enhancing Maritime Security in the Gulf of Guinea. Strategic Insights VI(1) 1 Guilfoyle D (2013) Piracy off Somalia and counter-piracy efforts. In: Guilfoyle D (ed) Modern piracy: legal challenges and responses. Edward Elgar Publishing, Cheltenham Guterres A (2018) Remarks at signing ceremony of a New Maritime Boundary agreement between Australia and Timor-Leste’, available at, https://www.un.org/sg/en/ content/sg/speeches/2018-03-06/maritime-boundary-agreement-between-australia- and-timor-­ leste-remarks Guyana/Suriname (2007) Award in the Arbitration regarding the delimitation of the Maritime Boundary between Guyana and Suriname, award, 17 September 2007, vol 30 U.N.R.I.A.A., 1 Harrison J (2017) Defining disputes and characterizing claims: subject-matter jurisdiction in law of the sea convention litigation. Ocean Development & International Law 48(3–4):269–283 IBRU (2015) Gas field discoveries increase stakes in Mediterranean maritime border dispute’, available at, https://www.dur.ac.uk/ibru/news/boundary_news/?itemno=25784 IGAD. (2018), ‘Maritime Security’, available at, https://www.igadssp.org/index.php/ components-mainmenu/maritime-security Igadwah L (2017) Kenya and India in deal to boost maritime security’, available at, https:// www.businessdailyafrica.com/magazines/Kenya-and-India-in-deal-to-boost-maritimesecurity/1248928-3521004-8wn2ynz/index.html IHS Markit (2018) Jane’s World Navies (IHS Markit) IMO (2011) Piracy Information-Sharing Centre in Mombasa commissioned by IMO Secretary-­ General, available at, http://www.imo.org/en/MediaCentre/PressBriefings/Pages/15-mombasaisc.aspx#.W5unRqZKg2w International Maritime Boundaries (1993-present) International Maritime Boundaries Online. In International Maritime Boundaries Online, Brill | Nijhoff, Leiden, available at, https://brill. com/view/db/mboo Johnson K, De Luce D (2016) Fishing Disputes Could Spark a South China Sea Crisis, available at, https://foreignpolicy.com/2016/04/07/fishing-disputes-could-spark-a-south-china-sea-crisis/ Kenya Memorial (2015) Maritime delimitation in the Indian Ocean (Somalia v Kenya), preliminary objections of the Republic of Kenya Pursuant to Article 79 of the rules of court, volume I 7 October 2015 Kim S (2004) Maritime delimitation and Interim arrangements in North East Asia publications on Ocean Development Series. Martinus Nijhoff Publishers, Leiden Klein N (2015) Maritime security. In: Rothwell D, Oude Elferink A, Scott K, Stephens T (eds) The Oxford handbook of the law of the sea. OUP, Oxford Klein N, Mossop J, Rothwell D (2010) Australia, New Zealand and maritime security. In: Klein N, Mossop J, Rothwell D (eds) Maritime security: international law and policy perspectives from Australia and New Zealand. Routledge, London, pp 22–36 Kraska J (2010) Freakonomics of Maritime Piracy. Brow J World Aff XVI(II):109–119 Kraska J (2011) Maritime power and the Law of the Sea. OUP, Oxford Mavromattis (1924) Mavromattis Palestine Concessions (Greece v. United Kingdom) (Preliminary Objections), (1924). [1924] P.C.I.J. Reports Series A, (2)11 McDorman T (2018) The South China Sea tribunal awards. Asia-Pac J Ocean Law Policy 3(1):134–145 Merrills JG (2012) International dispute settlement. Cambridge University Press, Cambridge

7  Maritime Boundaries and Maritime Security

125

Mwakio P (2014) Kenya plans to form marine guard’ available at, https://www.standardmedia. co.ke/article/2000103374/kenya-plans-to-form-marine-guard Nicaragua/Honduras (2007) Territorial and maritime dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) [2007] ICJ Rep 659 Nicaragua/Colombia (2012) Territorial and Maritime Dispute (Nicaragua v Colombia) (Judgment) [2012] ICJ Rep 624 Nkala O (2018) Kenya proposes establishing a coast guard’, available at, http://www.defenceweb. co.za/index.php?option=com_content&view=article&id=50992 Odeyemi C (2015) UNCLOS and maritime security: the “securitisation” of the South China Sea disputes. Defense & Security Analysis 31(4):1–10 Oxman BH (2006) The territorial temptation: a Siren song at Sea. Am J Int Law 100:830–851 Pappa M (2017) The impact of judicial delimitation on private rights existing in contested waters: implications for the Somali-Kenyan maritime dispute. J Afr Law 61(3):393–418 Patinkin J (2018) Somalia’s IUU fishing woes, available at, http://www.marsecreview.com/2018/05/ somalias-iuu-fishing-woes/ Romania/Ukraine (2009) Maritime delimitation in the Black Sea (Romania v. Ukraine) Judgment 2009 ICJ Reports 61 Rothwell D (2008) The Arctic in international affairs: time for a new regime? Brow J World Aff XV(1):241–253 Rothwell D, Stephens T (2015) The international law of the sea. Bloomsbury, London Schofield C (2011) The Delimitation of Maritime Boundaries: an Incomplete Mosaic. In: Wastl-­ Walter D (ed) The Ashgate research companion to border studies. Routledge, London, pp 665–681 Somalia Memorial Vol 1 (2015) International Court Of Justice 13 July 2015 Case concerning maritime delimitation in the Indian Ocean Somalia V. Kenya Memorial Of Somalia Volume I Somalia v Kenya application (2014) Application instituting Proceedings Filed in the Registry of the Court on 28 August 2014 Maritime delimitation in the Indian Ocean (Somalia V. Kenya) Stop Illegal Fishing (2016) Fugitive vessel Greko 1 docks in Mombasa available at, https://stopillegalfishing.com/news-articles/fugitive-vessel-greko-1-docks-mombasa/ Stop Illegal Fishing (2018) FISH-i Africa meet to develop a unified response to illegal fishing in the Western Indian Ocean’, available at, https://stopillegalfishing.com/news-articles/fish-iafrica-meet-to-develop-a-unified-response-to-illegal-fishing-in-the-western-indian-ocean/ Tanaka Y (2006) Predictability and flexibility in the law of maritime delimitation. Hart, Oxford The East African 2018: Somalia exports fish after 30-year break, available at, http://www.theeastafrican.co.ke/business/Somalia-is-exporting-fish-after-30-year-break/2560-4626166-s2x3lxz/ index.html Townsend-Gault I (2012) Zones of cooperation in the oceans – legal rationales and imperatives. In: Nordquist M (ed) Maritime Border Diplomacy. Brill, Leiden Tunisia-Libya 1982: Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p18 United Nations (1983), ‘The Law of the Sea’ UN Document UN/Doc.A/CONF.62/122 (United Nations) United Nations (2014 [1]) Somalia: Deposit of a list of geographical coordinates of points dated 3 July 2014, available at: https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/ PDFFILES/mzn_s/mzn106ef.pdf United Nations (2014 [2]) Yemen: Communication dated 25 July 2014, available at,  http:// www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/communications/yen_ re_som_2014eez.pdfand Yemen: Communication dated 10 December 2014, available at, http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/communications/ yemen.pdf United Nations (2017) Djibouti: Note Verbale dated 31 January 2017, available at, http://www. un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/communications/djibouti_re_ som_310117.pdf

126

V. Mitchell

Voyer M et al (2018) Maritime security and the blue economy: intersections and interdependencies in the Indian Ocean. Journal of the Indian Ocean Region 14(1):28–48 Westberg A (2016) Anti-piracy in a sea of predation: the interaction of navies, fishermen and pirates off the coast of Somalia. Journal of the Indian Ocean Region 12(2):209–226 The World Bank (2017) Potential of the Blue Economy: increasing long-term benefits of the sustainable use of marine resources for small island developing states and coastal least developed countries. World Bank, Washington, DC

Chapter 8

Cybersecurity at Sea Polychronis Kapalidis

Abstract  Over the past few years there has been growing interest in the issues of cybersecurity and maritime security, but far too little attention has been paid to the combination of the two security problems; and yet there are clear and critical points of intersection. The dependence of the international maritime community on cyberspace is substantially increasing and, thus, forges new and unexpected vulnerabilities. Maritime transport and all related activities are conducted by technology-intensive platforms, which today rely heavily on information systems. The maritime community, consisting of maritime transport, port operations, critical offshore infrastructure and digital economic transactions is heavily structured around online systems. The chapter assesses the risks and vulnerabilities of the international maritime sector in regard to cybersecurity and identifies potential tools and international measures to enhance cyber resilience in the wider maritime security field. The chapter contributes to a deeper understanding of the wider dynamics of these implications, providing the basic principles, comprehension and framework in order to apply cyber resilience together with situational awareness, business continuity plan and risk management. Keywords  Maritime Cybersecurity · Resilience · Business continuity plan · Risk management · Shipping · Maritime Security

P. Kapalidis (*) CyberSecurity Centre, WMG, University of Warwick, Coventry, UK International Security Department, Chatham House, London, UK e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Otto (ed.), Global Challenges in Maritime Security, Advanced Sciences and Technologies for Security Applications, https://doi.org/10.1007/978-3-030-34630-0_8

127

128

P. Kapalidis

8.1 Introduction On 31 March 2017, Vice Admiral Clive Johnstone, Commander of NATO Allied Maritime Command (MARCOM), mentioned cybersecurity more than five times in his 20-minute speech at the Hellenic Armed Forces Officers’ Mess on the ‘Contemporary Maritime Security Threats in the Mediterranean and the Role of MARCOM in Addressing Them’. A few months before, it was Sir Admiral ret. George Zambellas, the former First Sea Lord of the Royal Navy, that highlighted the importance of cybersecurity on the maritime domain during a similar event on ‘The Security Challenges in Eastern Mediterranean and the Edge of Technology’. Jeremy Corbyn, the leader of the Labour party, during the 2017 election campaign, also clearly stated, on several occasions, that the priority for his government security-­ wise, if elected, would be to counter the two predominant threats to the UK’s national security: cybersecurity and terrorism. No one can blame him since this prioritisation was confirmed during the cyber-attack at the National Health Service (NHS) and the terrorist attacks in London and Manchester, all taking place within the first quarter of 2017. Undoubtedly, cyberspace is a global domain. It passes, dynamically, physical, organisational, geographical and time boundaries. Using commonly used infrastructures (such as the world wide web), its impacts and effects are fast and far reaching. As a threat, it may be considered as asymmetric or hybrid, since it is cheap, anonymous, anarchic, endless, like space, and overwhelmingly intangible. It may be targeted by criminals, terrorists, individuals or groups as well as state actors. These actors’ motivation include financial gain, military or political advantage or even solely drawing attention to a specific situation. Actors engaged in cyber-attacks use multiple methods to achieve their goals. These may include phishing, distributed denial of service attacks (DDoS), drive by attacks, SQL injection, watering hole, spearphishing, advanced persistent threat (APT), logistic bombs and other sophisticated methods (Singer and Friedman 2014). The target groups vary from home users to small medium-sized enterprises (SMEs), market primes and even governmental structures. If you add in this equation the unexpected nature of such acts, as the cyberattacks at the NHS and the entire IT structure of the Ukrainian government in May and June 20171 aptly highlighted, an unfamiliar, high risk and impact, novel form of threat emerges. The importance of cybersecurity in the maritime domain is prominent since it engages all maritime related activities. As regards, port operations and infrastructure, cranes, logistic software and port services are Information and Communications Technology (ICT) and Operational Technology (OT) connected assets, connecting to ships, headquarters, shipping and trading companies, transport operators and pilot associations. Ships are connected through navigation aid systems and  safety communication systems to their navigation and engineering systems, as well as command and control, and logistic services.  These events will be analysed later on. We refer to the ransomware attack at NHS and the “Petya” attack respectively. 1

8  Cybersecurity at Sea

129

The future in shipping suggests an autonomous shipping era which makes the aforementioned connected activities even more challenging. Finally, maritime traffic control centres heavily depend on the aforementioned ICT equipment in order to remain connected and monitor safety at sea with ships, port authorities, national shipping authorities, pilot agencies and other maritime organisations.2 Several actors have identified the importance of cybersecurity in order to achieve normal conduct of operations whilst maintaining safety and security at sea. The European Union (EU), in its Maritime Security Strategy (EU 2014) and its related Action Plan, states that managing cyber threats is integral to achieving maritime security. NATO identifies cyberspace as an independent domain of operations along with air, sea, land and space, and to this end organised, amongst other initiatives its first conference on maritime cybersecurity at the NATO Maritime Interdiction Operations Training Centre (NMIOTC) in Crete, in October 2016. The International Maritime Organisation (IMO) was urged by the initiatives undertaken by the Baltic and International Maritime Council (BIMCO) and Lloyd’s Register to issue its first ‘Interim Guidelines in Maritime Cyber Risk Management’ in 2016 (IMO 2016). Furthermore, the number of states that engage with the issue is rapidly increasing, with the United States of America (US) and the United Kingdom (UK) being the pioneering ones, issuing reports and strategies3 on maritime cybersecurity awareness, risk management and mitigation, and contingency planning. The chapter’s main aim is to raise situational awareness within the maritime community as regards existing and potential threats, vulnerabilities and risks on the cyber domain, focusing primarily on those related with the industry’s most valuable asset; the ship. Drawing on these findings it will further suggest risk mitigation and contingency planning, in order to minimise the efficiency of such attacks. In this context the main objectives are the following: (a) Provide best practice and cybersecurity threat information to transnational shipping; (b) Activate practitioners and academics to develop means and methods for tackling cyber threats, including developing an appropriate framework for information sharing, coordination and training; (c) Encourage law enforcement and international partners to develop a cooperative construct for defeating cybercrime in the maritime domain; and (d) Lay the framework for the application of cyber resilience together with situational awareness, business continuity plan and risk management. To this end, the chapter will initially define the framework for analysis, by briefly examining existing definitions regarding cybersecurity, a rather crucial stage, since the entire analysis of the chapter will be based on these definitions. It will further  These include but are not limited to Maritime Security Centre  - Horn of Africa (MSCHOA), United Kingdom Maritime Trade Operations (UKMTO) and the NATO Shipping Centre (NSC). 3  USCG Cyber Strategy 2015. The UK Maritime Strategy identifies cyber-attacks at the maritime domain as one of the five Maritime Security Risks (UK Government 2014, p. 19). 2

130

P. Kapalidis

identify the components of the maritime industry. Moving onwards, the securitisation of cyberspace will be analysed, looking at specific threat actors that may target the maritime industry and digging deeper in specific case studies for a more apt analysis. Having set the framework for analysis, examples of cyberattacks at the maritime domain, along with the vulnerabilities and disruptions of the defined maritime industry will be presented. Drawing on these findings, the chapter will assess the risk stemming from cyber-insecurity in the maritime industry and, to this end, will reach the final part of the analysis by outlining the main principles as regards cyber resilience together with situational awareness, business continuity plan and risk mitigation. Herein, a three step analysis will be adopted in order to serve the aim and fulfil the aforementioned objectives. These are: (a) Awareness of cyber issues in the maritime domain among key stakeholders; (b) Assessment of what needs to be done and who needs to act; and (c) Development and implementation of risk and threat mitigation to ensure a maritime cyber secure environment. In order to define the referent object for analysis in this case a holistic approach will be adopted. This comprehensive approach is assessed as the most appropriate for the goals of this chapter, since it provides a wide inception of the term maritime industry and allows relevant stakeholders to isolate and focus on the relevant, to their interests, specifics. Hence, the maritime industry is what stakeholders make of it.

8.2 Defining the Framework for Analysis 8.2.1 What Is Cybersecurity? In an effort to set the framework of analysis, it is mandatory to present briefly what cybersecurity entails for the maritime sector. Prior to that though, it is important to clarify the concept in its broader context, so that the reader will be able to understand this new, insidious threat that is generated from the digital world. As anticipated, there are numerous definitions introduced by different stakeholders, most of which are tailored to a specific sector’s needs or are representative of the author’s background i.e. academic, government etc. What is common practice though is that for industrial control systems (ICS), including those used broadly in the maritime sector, security encompasses the protection of both their hardware and software components. This combination of physical and information security is often defined as converged security (Azeem et  al. 2013). Even though cybersecurity is not the same as information security (Bishop 2003; Rossouw and Van Niekerk 2013), it often replaces the latter within the ‘converged security’ approach. Concisely,

8  Cybersecurity at Sea

131

cybersecurity includes the protection of information handled in the cyber realm but is not limited to that, while information security focuses on protecting data, not restricted in the digital environment (NISTIR 2013). Furthermore, when trying to identify the enablers towards cybersecurity and resilience, academics and practitioners focus on three pillars, namely people, processes and technology. What is problematic in this approach, when we try to apply it in the industrial sector, is that physical infrastructure is omitted. This does not, by any means, suggest that analysts are wrong in their approach. It solely aims to introduce a fourth pillar that is relevant in specific sectors and industries, maritime being one of them. Moving on, and in line with the scope of this chapter, it is much more applicable to look at how relevant maritime industry guidelines define cybersecurity. Hence, the UK Department for Transport (DfT) Code of Practice: Cybersecurity for Ships document, prepared by Institute of Engineering and Technology (IET) (2017) states that cybersecurity can be defined as: the collection of tools, policies, security concepts, security safeguards, guidelines, risk management approaches, actions, training, best practices, assurance and technologies that can be used to protect the cyber environment and organisation and user’s asset.

The core conceptualisation, drawn from the aforementioned definition is that cybersecurity requires a holistic approach. Achieving effective security in cyberspace requires initially for targeted policies to be adopted, which will later be interpreted into actions, that will utilise existing cutting-edge technologies to protect the organisation’s cyber environment. Drawing for that definition, the same document suggests that a ship’s cyberspace is composed of: interconnected networks of both IT, OT and cyber-physical systems utilising electronic, computer-based and wireless systems, including the information, services, social and business functions that exist only in cyberspace.

8.2.2 What the Maritime Industry Consists Of? In order to frame the unit of analysis, that is the maritime industry, which will be used as the basis for the chapter’s analysis, a comprehensive approach is adopted. That means that the maritime industry, as set in the methodology section above, will be defined as a holistic entity, composed of several subcomponents, each of which faces specific cyber challenges. Following the aforementioned theoretical approach, the broad definition of the maritime industry incorporates all directly and indirectly related, to the industry, personnel, activities, procedures and infrastructure. These subcomponents are: –– Ports, as physical space; –– Port operations and personnel; –– Ships;

132

–– –– –– –– ––

P. Kapalidis

Offshore infrastructure; Operational and Information Technology Systems; Insurance agencies and vendors; Booking agents; and Related banking-economic transactions.

This categorisation suggests that the maritime industry does not only consists of core material assets but includes the peoples engaged and the activities and procedures related with the industry. Hence, these components of the maritime industry could be categorised as follows: –– Mobile assets (Ships, auxiliary platforms); –– Infrastructure (Port infrastructure, offshore energy infrastructure, safety and security controls, navigation aids, communication systems (onshore, offshore, satellite), underwater cables and pipelines); and –– Financial activities (Insurance agencies and vendors, booking/charter agencies, banking-economic transactions) (Weber and Weber 2010) (Fig. 8.1). On a ship, the computer-based systems will comprise a range of information technology (IT) and OT components. The subcomponents within the ship’s environment that need to be protected from the risks of a cyber incident are not only limited to the ship IT and OT systems per se, but include a much wider spectrum, encompassing people (both crew and passengers where relevant), cargo, cargo transport units and ship’s stores. For that reason, all ship crew, both senior officers and junior crew members, along with all ashore staff, as stated in Elements 7 and 13 of the

Fig. 8.1  The Components of the Maritime Industry

8  Cybersecurity at Sea

133

Tanker Management Self-Assessment 3,4 should receive cybersecurity training, at least at an awareness level. Hence, what should be primarily understood is that cybersecurity is everyone’s responsibility. That is of fundamental value, since cyber attacks can impact the whole spectrum of a maritime company’s operations, including its entire fleet, worldwide.

8.2.3 Securitising the Cyberspace The international community started engaging with security issues in the maritime domain after the 9/11 attacks and al-Qaeda’s declarations that its next target was the maritime industry. This gave birth to the introduction of the International Ship and Port Facility Security Code (ISPS Code). Later, in response to the emerging piracy threat in the Gulf of Aden, industry-related associations introduced the Best Management Practice  5, that gave specific guidelines for tackling the problem, which will be further analysed in another chapter in this book. This pattern of action from the maritime international community is indicative of the way of thinking regarding security issues. This reactive approach is certainly not the best, but it offers effective measures, as practice has indicated. It can be argued that the issue of IMO’s Interim Guidelines in Maritime Cyber Risk Management is the first proactive act by the prominent international maritime organisation. These were adopted in 2017 and consequently the organisation issued the Resolution MSC.428 (98) later the same year. This specific document suggests that as of January 1st, 2021 all stakeholders engaged in the industry should demonstrate cyber capability.5 Although not mandatory, these advisory guidelines highlight that the international maritime community has identified that cyber threats are real and could target the industry. Thus, securing the maritime cyber environment should become a priority for maritime professionals. In that context, there is another issue that needs to be clarified at the early stages of this chapter. There is a lot of debate globally, not limited to the maritime sector discourse, that when it comes to cybersecurity, geography is not relevant. The chapter argues that cyber threats are regionally related for two main reasons, one being on the potential of an attack to be conducted when transiting over a specific part of the world and the other, in the event of such an attack occurring, is related to response mechanisms available. Hence, it is vital to build regional situational awareness as regards cyber threats, since we should be able to identify how regional and global actors make use of the cyber domain to their end. Shipping companies operating ships in unstable regions should pre-emptively analyse the local actors’ offensive cyber capabilities based on their motivation and thresholds to employ these offenses. ISIS could be a useful case study in this case. Even though they have not launched, as far as we are in a  TMSA 3 programme provides companies with a means to improve and measure their own safety management systems. For further details see www.ocimf.org/sire/about-tmsa.aspx. 5  For further details see IMO (2016). 4

134

P. Kapalidis

position to know, any cyberattacks, it is broadly accepted that they are rather capable in IT, practising ‘hybrid warfare’ tactics, through their widespread presence over the world wide web. It may be argued that, even if they do have the capabilities, they do not have the physical access to the Mediterranean or the Gulf in order to coordinate a cyber-physical attack against a high value target at sea. That is certainly not the case. Make no mistake, ISIS’ expansion in Libya, apart from any other strategic objectives it might serve (Kapalidis 2016), offers unobstructed access to the Mediterranean along with notable proximity to Europe through the Italian coastline. Although regional threat assessment does not a priori provide mitigation over such an attack, in the event of it occurring, the victim should have already developed a threat mitigation strategy which should incorporate relevant local internal and external partners, that can provide support, may that be either IT or even physical. Following on from the aforementioned example, in the Mediterranean, maritime professionals should know who to address, may that be the Computer Emergency Response Team of the European Union (CERT-EU), similar national CERT’s, and contracted service providers. The EU’s directive on security of network and information systems (NIS Directive), put into force in May 2018, dictates that EU states should, among other actions, develop and indicate the National Competent Authority for Cybersecurity, whilst setting up a national CERT. This initiative creates a roadmap that shipping companies should adopt as part of their emergency response cybersecurity plan.6 Maritime operators should also be aware of physical ‘safe havens’ that they could use in case a cyber attack occurs to a ship which jeopardises its safety of navigation, communication or seaworthiness in general. These ‘safe havens’ could literarily be commercial ports in the proximity of the ship’s position, which the ship could reach in short time and remain secure until the effects of the attack are eliminated.

8.3 Is the Maritime Industry a High-Value Cyber Target? What is becoming apparent is that in the maritime transportation sector, cyber threats are becoming more frequent and sophisticated as individual hackers, well-­ funded organised criminal networks, nation states, and others target shipping companies, their vessels and their shore-side facilities. The fact that maritime companies are constantly adopting new technologies, systems and platforms, in an effort to offer greater levels of capability and efficiency, is introducing new risks to their activities. The systems at risk are not only emails and office applications used widely in administrative IT-enabled office environments, but almost all modern OT systems as well: those that affect the very seaworthiness of vessels, that support safety of navigation and propulsion, and that protect human life and the  Although common sense, research conducted by Chatham House, a UK-based think tank, has indicated that such response plans are not in place in most of the world’s shipping companies, at the time of writing if this chapter (Autumn 2018). 6

8  Cybersecurity at Sea Table 8.1  Notable Maritime Related Cyber Incidents (statistics until November 2018)

135 Date 2010–2011 Aug 2011 2011–2013 2012 2012–2014 Apr 2016 June 2017 June 2017 Nov 2017 July 2018 Sept 2018

Victim Greek Shipping Company Iranian Shipping Line (IRISL) Port of Antwerp Australian Customs & Border Protection Service agency Danish Port Authority South Korea AP Moller Maersk Ships in Novorossiysk Clarksons Cosco US Ports of Barcelona & San Diego

environment in general. Before presenting the current and potential threats to the defined components of the maritime industry it is considered necessary to confront the argument that cyber threat actors are not actually targeting the maritime industry per se. There are several voices arguing that academics and practitioners attempt to find answers to a fictional problem, that will not affect the industry in the foreseeable future. That is certainly not the case. The threat is real, it is out there, and it has already affected the industry in numerous occasions, as illustrated in Table 8.1 and analysed in Annex A. As argued, “it is not a matter of if but when you will be attacked” (Kapalidis 2017). The other key realisation based on Table 8.1 is that the frequency of reported cyber incidents has increased considerably from 2017 onwards. Previously, there were about one or two main cases reported annually, but lately we can see that this has changed. Whether this will develop into a trend or not it still remains to be seen but make no mistake, global trends are indicating that cybersecurity is about to become the number one risk for all industries in the years to come.

8.4 Case Studies and Lessons Learned Out of the eleven notable case studies presented in Table 8.1 it is worth looking at three of them from a critical perspective, to try to extract lessons learned and suggest mitigation measures that could have minimised the outcome of the cyber breach.7 Another case study is presented that examines a cyber incident in a Maritime Off-shore Drilling Unit (MODU), aiming to illustrate that all aspects of the maritime industry are vulnerable to such breaches.

 These four case studies where part of an Industrial e-paper that was published by Knect365, where the writer was asked to comment and advise. Further details can be found on Knect365 (2018). 7

136

P. Kapalidis

8.4.1 Clarksons Clarksons is one of the world’s largest shipbrokers. In November 2017 the company became a victim of a cyber breach, when, as stated in an official press release by the company “unauthorised access [was] gained via a single and isolated user account”. In response, an immediate investigation was launched, and the company was able to recover and meet the year’s expected financial targets, despite a short-term sharp stock drop. As commented in the Knect365 report: “This incident highlights in the most apt way that the issue of cybersecurity in the maritime industry should not be solely considered for ships and ports. It affects directly the entire maritime economy, consisting of ships, ports, shipping companies, insurers, brokers, vendors, classes and others. It illustrates the importance for the development of ‘cyber culture’ or the most important pillar of cyber resilience, the human factor. If it was an unintended act it brings forward the necessity for effective cybersecurity training to all maritime professionals. If it was an intended act the companies should redraft their access and administration rights, adopting a ‘need-to-know’-principle, limiting them only to necessary personnel, all of which should be closely monitored” (Knect365 2018, p. 10).

8.4.2 A.P. Moller Maersk In June 2017, another major maritime company, A.P.  Moller-Maersk, suffered a major business disruption cyber event. The company’s terminal in Ukraine was affected by an allegedly state-drive attack, that introduced the notPetya malware. The malware spread very quickly across a large number of the company’s port terminals globally, affecting as many as 76, including major ones such as Rotterdam, Los Angeles, Mumbai and Auckland. What is notable in this case is the way the company communicated the crisis in the media. In an interview with KNect365, Commissioner William P.  Doyle of the US Federal Maritime Commission commended “Maersk for making the decision to waive demurrage and detention fees arguably accrued by customers during the period when a system outage caused by the Petya cyberattack impacted its ability to release cargo”. According to the company’s CEO, they suffered a $250–300 million loss due to the disrupted business operations in July and August. As commented in the Knect365 report: This specific hack highlights two things. First, it shows the importance of the third pillar of cyber resilience: the procedures. Secondly, it stresses the significance of effective testing of all adopted cybersecurity policies and measures within each specific industry. The specific malware affected a known vulnerability, that could have been identified if efficient pen-­ testing was conducted by a 3rd party IT firm. Finally, on a positive side, it should be accredited to Maersk that they chose to go public; a fact that stresses the importance of information sharing (Knect365 2018, pp. 10–11).

8  Cybersecurity at Sea

137

8.4.3 Port of Antwerp The Port of Antwerp case is different than the other two, since this was a targeted and well-orchestrated attack that was resurfaced in spring 2018. From 2011 to 2013 the digital container tracking system which controlled the movement and location of containers in the port was breached, in order to facilitate the smuggling of illicit goods, primarily drugs, by North American organised criminal groups. Hackers, paid by these networks, were able, using initially social engineering methods to gain access to the port’s system and when later discovered were resourceful enough to find alternative ways to regain access and continue their malicious acts. In 2018, the Port of Antwerp was again in the news for the same issue, highlighting that organised crime networks will continue to exploit the vulnerabilities of port environments for financial gain (WSJ 2018). As commented in the Knect365 report: This case illustrates how cyberspace may be used as a facilitator for traditional organised crime. It was clear that no sufficient cybersecurity measures were in place. It also stresses the necessity for developing resilient mechanisms to such attacks by adopting a backup container control and monitoring system. Finally, it highlights the intertwinement between cyber and physical systems (Knect365 2018, p. 11).

8.4.4 Maritime Off-Shore Drilling Unit The final case is an apt example of why people are ‘the weak link’, when it comes to cybersecurity, not only in the maritime, but in an industry as a whole. A MODU was affected by malware, constituting it inoperable for a few weeks. The malware was introduced to the rig’s systems by portable storage devices, namely USB and hard disk drives, that included downloaded adult content and illegal entertainment media. The malware affected the signals to the dynamic positioning thrusters, causing the MODU to drift away from its initial drilling position. Due to safety implications the managing company was forced to halt operations until the issue was finally resolved. As commented in the Knect365 report, this is: Another example of a non-existent ‘cyber culture’. The incident highlights the disastrous effects that such an attack on an offshore critical infrastructure, or a ship, could have on the environment. A case that affected both the human factor and the infrastructure and illustrated the necessity for effective cyber training for maritime professionals, once again (Knect365 2018, p. 11).

8.5 Fostering the Maritime Industry 8.5.1 Vulnerabilities and Disruptions What these notable case studies indicate, along with those briefly presented in Annex A, is that the shipping industry has been targeted, so far, primarily for financial gain. Specifically, from a threat actor perspective, current practice has indicated

138

P. Kapalidis

that organised criminal groups is the predominant actor targeting the shipping industry. There are several reasons for that. Primarily, the industry’s financial transactions are conducted mainly online, between people that often do not know each other. The scale of these transactions is so big and spread out that makes it easy for organised criminals to conduct fraud and direct payments to their preferable accounts. Also, shipping companies face cybersecurity risks from crew (including officers), staff, current and former employees, contractors, and vendors. Having said that and although a trend regarding financial gain is apparent, this does not mean we should exclude the likelihood of other types of actors targeting the industry, aiming to achieve different outcomes such as corporate espionage, terrorism, piracy and hacktivism. What the aforementioned case studies indicate as well, is that, in several cases, companies and assets suffering consequences from malicious digital content were not targeted per se. Take the Maersk incident for example; the Danish company was, what can be described as collateral damage to a presumably, state-­ sponsored attack against a sovereign state. Hence, the maritime sector should develop a security and response strategy that should be in a position to address both targeted attacks and untargeted breaches. Another key question that needs answering at the very early stages on analysis is Why is the maritime industry any different from any other industry when it comes to cybersecurity? The differentiator for the maritime domain is the wide range of technical systems, infrastructure and human resources in use. With increased reliance on third party systems and personnel, as analysed above, all the different subcomponents of the maritime industry are intertwined, aiming to support the industry’s most valuable asset. The very fact that ships are increasingly using systems that rely on digitalisation, integration, and automation, introduces new threats and vulnerabilities to the ship’s environment.

Case Study A Ponemon Institute survey of US oil and gas professionals responsible for securing or overseeing cyber risk in the OT environment found 59% believe there is greater cyber risk there than in enterprise IT. “Critical network segments in production sites used to be isolated but are now connected to networks, making operational technology more vulnerable,” said Petter Myrvang, Head of Information Risk Management, DNV GL – Oil & Gas. “It is one reason why we conduct ethical hacking for customers in the sector. For further details see. https://www.cybersecurity-review.com/study-reveals-cybersecurityreadiness-gaps-in-us-oil-and-gas-industry/

8  Cybersecurity at Sea

139

On the more technical side, without deviating from the scope of the chapter, systems, either IT or OT, that are vulnerable to cyber incidents can be broadly categorised as follows: –– Systems that are connected to the internet or other external networks. On board ships, these may be the Electronic Chart Display and Information System (ECDIS), Global Positioning System (GPS) receivers, fleet management systems and in newly built ships integrated bridge control and/or engine control consoles along with crew entertainment equipment. Connectivity is required for either software and patch management updates or system monitoring and performance optimisation. –– Systems that are not connected to the internet but have a software element that affects/controls/monitors their operation such as loading and stability, alarm and monitoring or power management systems. As technology continues to develop, trying to achieve operations optimisation, IT and OT onboard ships8 are being networked together, while becoming more frequently connected to the internet or have a software component related to them, that was not in place in the past. Thus, reliance on third party systems and personnel require a holistic approach beyond purely the maritime, especially with respect to contingency and business continuity plans. 8.5.1.1 Identifying the Risk In an effort to identify the risk, it is mandatory to counter existing fears of over-­ reacting and over-investing in cyber risk mitigation due to the novelty of the challenge. Ongoing discussions on how to access cyber risk are dazzled at the initial stage, where most stakeholders struggle to come up with measurable outcomes in case of a cyber breach. A first step towards untying the node is to sort what are the possible consequences of a cyber breach. What are the specific areas of any maritime transportation organisation that could be affected? Taking into consideration everything that has been presented in this chapter it could be argued that the following systems, services and fields are at jeopardy in the event of a cyber incident: • Loss of corporate data, • Financial loss,  In general, ship systems are distinguished in two categories, the IT and OT. The first category includes IT System Management, Surveillance within the ship, Maintenance monitoring, crew and passenger entertainment and any other system that offers support to a ships’ operation cycle. OT systems are the core systems that control the ship’s daily operations and include power generation and distribution, propulsion, navigation and steering, ship-to-ship and ship-to-shore, along with emergency and distress communications and so forth. These are the systems that are first on the priority list regarding cybersecurity for ships. For further details see http://www.ics-shipping.org/ docs/default-source/resources/safety-security-and-operations/guidelines-on-cyber-securityonboard-ships.pdf?sfvrsn=16 8

140

P. Kapalidis

• IT and OT (where applicable) systems’ confidentiality, integrity and availability, and • Safety of Life and Navigation at Sea, resulting even in environmental disruption. What should be understood is that if the management of cyber risk is not regarded as a priority, then reactive measures needed to be applied when a cyber breach occurs will not be able to, sufficiently, minimise the consequences. A proactive approach needs to be adopted, where resilience and risk mitigation should be the predominant concepts.

8.5.2 Risk Assessment and Management, Risk Mitigation and Business Continuity Plan Finally, before concluding this brief introduction to the threats posed to the shipping industry by the increasing use of digital systems and services, and building on what has been analysed in the previous sections, it is crucial to understand the process that needs to be adopted in order to protect a company’s and a ship’s vital systems. A process which is focused on analysing the threats to an organisation’s ecosystem with a risk-based approach. Risk assessment and management are the predominant principles for a manager to focus on, since these will provide him or her with a constructed framework in order to achieve and maintain effective cybersecurity within the organisation. Besides, as previously noted, the IMO, through its cyber risk management guidelines, has suggested that cyber policies and measures should be adopted as of January 2021. These guidelines suggest that one approach is to comprehensively assess and compare an organisation’s current, and desired, cyber risk management postures (IMO 2016). This comparison will probably reveal gaps that should be addressed to achieve risk management objectives through a prioritised cyber risk management plan. This is a risk-based approach designed to encourage organisations to target investments in resources in the most effective manner. It maps directly to the US National Institute of Standards and Technology (NIST) Cybersecurity framework, focusing on five main steps: Identify, Protect, Detect, Response and Recover. This framework is used by several industries as the basis or reference for their respective models. The NIST CSF was used as the basis for the model introduced by BIMCO and other maritime stakeholders, currently in its third version (BIMCO 2018), which is focused purely on the maritime industry, namely ships. What is important to understand is that this model follows a risk-based approach, where three of its six steps deal with risk mitigation, impact minimisation, contingency planning and recovery. This very fact confirms the main realisation of this chapter that it is not a matter of if we will be affected but when and, with that in mind, we should be prepared to deal with the aftermath of such an incident. Hence, cybersecurity awareness, or better put, cybersecurity approach should be comprehensive and holistic.

8  Cybersecurity at Sea

141

According to BIMCO, a cyber risk management approach should initially identify the specific threats more relevant to the organisation, both external and internal, posed by misuse of installed networks and lack of awareness. Secondly, it has to identify the vulnerabilities of all assets within an organisation. Those conducting the assessment should record all connected onboard systems, understand the consequences of breaching the security of these systems and identify the limitations of existing protective measures. Thirdly, following a risk management analysis, they should determine the possibility of these systems being targeted by external and internal actors. The next step would be to develop risk mitigation policies and specific measures that will reduce the likelihood of these vulnerabilities and also reduce the potential impact that an attack may have on a specific vulnerability of these systems. This leads to the next step which is the development of contingency plans to tackle all effects of potential attacks to the safety and security of the ship. Finally, in the event of such an attack occurring, having applied the already developed contingency plan, the relevant staff should aim to recover normal operations as soon as possible and assess the effectiveness of the aforementioned plans in order to further amend and update them (BIMCO 2018).

8.6 Conclusion The increasing dependency of the maritime sector to software-based technologies, combined with the key role of the maritime transportation system in global trade and critical national infrastructure mean there is a key imperative to take action to protect global shipping and maritime trade routes. It should also be widely understood that it is impossible to achieve a 100% cyber-secure environment. Practice so far has indicated that there is no absolute solution against all cyber threats; no system can be rendered 100% secure. Taking into consideration the existing cyber landscape with a variety of threat actors and the indispensable weaponry available for their goals, no maritime stakeholder can claim that his organisation is not a potential target. The case studies presented in this chapter aptly support this claim. Even though the industry is gradually starting to come to grips with this new insidious threat, there is still a lot of ground to be made. The first step towards that goal, though, is to help senior management understand what the cyber realm entails for their organisation. Confronting with cyber risks requires a top-down approach. Once this is achieved there are specific steps to be taken, following in all cases a risk-based, people- infrastructure-and-processes approach. In a nutshell, this new ‘cyberised’ risk environment represents a chronic state of affairs that is best addressed over time, resourced thoughtfully and managed collaboratively. Fortunately, managing risk is not unusual for today’s modern mariners. In fact, managing risk is an activity for which they are well suited for.

P. Kapalidis

142

Annex A (Table 8.2) Table 8.2  Case study analysis (commentary is informed by the Risk Focus Cybersecurity prepared by Thomas Miller and the UK P&I Club) Date 2010–2011

Aug 2011

2011–2013

2012

2012–2014

Apr 2016

June 2017

June 2017

Victim Greek Shipping Company

For two years a Greek shipping company suffered several successful piracy attacks in the Golf of Aden, since local pirates hired hackers to gain access to the company’s HQ and identify the most vulnerable ships along with route timetables. Hackers were able to gain access to the company’s IT systems via wi-fi equipment that was installed at the company’s offices. Iranian Shipping The servers were hacked resulting in damage to data Line (IRISL) relating to rates, loading, delivery and location. Consequently, the location of many cargo containers remained unidentified and an undisclosed amount of financial losses were incurred as a result. Port of Antwerp The port had been a victim of an APT attack since 2011 commissioned by a drug cartel. The attack targeted terminal systems which were subsequently compromised by hackers and used to release containers without port authorities becoming aware. Illicit drugs and contraband worth approximately US$ 365 million, firearms and approximately US$ 1.5 million were seized when authorities finally became aware. Australian Customs Cargo systems controlled by customs and border protection & Border Protection were hacked in order to determine which shipping containers were suspected by authorities. Service agency Danish Port An email virus spread through the port network that was Authority likely initiated through an infected pdf document. The virus spread and successfully reached other Danish government institutions. South Korea 280 ships were forced to return to port due to problems on their navigation systems. The issue was largely blamed on North Korea however this remains unconfirmed. AP Moller Maersk NotPetya also known as ExPetr ransomware led to outages on A.P. Moller Maersk computer systems impacting both oil and gas production and port operations. Following the incident, Maersk claimed to have changed its IT systems to prevent similar incidents from occurring in the future. The incident resulted in an estimated US$ 300 million of losses. Ships in At least 20 ships in the Black Sea were reporting false data Novorossiysk was being transmitted, indicating the ships were 32 km inland of their actual position. It is now believed to have been as a result of a GNSS spoofing attack. (continued)

8  Cybersecurity at Sea

143

Table 8.2 (continued) Date Nov 2017

Victim Clarksons

July 2018

Cosco US

Sept 2018

Ports of Barcelona & San Diego

Perpetrators gained unauthorised access to computer systems, accessing confidential information and threatening to release information unless ransom payment is made. Company share prices decreased by 2.71%. Cosco’s Shipping Lines suffered from a cyber breach that affected email and network telephone initially in the US, but not ships. This expanded to their Americas facilities hence the company decided to shut down the connections with other regions for further investigation. The company was able to recover within a week. It is believed to have been a malware (ransomware) incident. Within a week both ports suffered from a cyber-related business disruption event. Even though both organisations did not disclose a lot of information, they both claimed that this was not a major disruption and it affected mainly IT systems at shore. It is assumed that it was the same malicious content that affected both ports.

References Azeem A, Wakefield A, Button M (2013) Addressing the weakest link: implementing converged security. Secur J 26(3):236–248 BIMCO (2018) The guidelines on cybersecurity onboard ships. BIMCO et al, London Bishop M (2003) What is computer security? IEEE Secur Priv 1(99):67–69 EU (2014) EU maritime security strategy. European Commission, Brussels UK Government (2014) The UK national strategy for maritime security. OGL, London IMO (2016) Interim guidelines on maritime cyber risk management. IMO, London Knect365 (2018) Shipping 2030: collaboration in the shipping industry: innovation and technology. Informa Publishing, London NISTIR (2013) NISTIR 7298: glossary of key information security terms, revision 2. Washington, DC, NIST Rossouw VS, Van Niekerk J (2013) From information security to cyber security. Comput Secur 38:97–102 Weber R, Weber R (2010) Internet of things: legal perspectives. Springer, Berlin WSJ (2018) Cocaine’s new gateway to Europe: busy Belgian port. s.n, Antwerp Kapalidis C (2016) ISIS is closing in on Europe’s backyard, Middle East Monitor. Available at https://www.middleeastmonitor.com/20150314-isis-is-closing-in-on-europes-backyard/ Kapalidis C (2017) Maritime Cyber Security: No Substitute for Testing, Chatham House. Available at https://www.chathamhouse.org/expert/comment/maritime-cyber-security-no-substitute-testing Institute of Engineering and Technology (2017) Code of practice: cyber security for ships. IET, London Singer PW, Friedman A (2014) Cybersecurity and cyberwar: what everyone needs to know. Oxford University Press, Oxford

Chapter 9

Maritime Terrorism Lisa Otto, Suzanne Graham, and Adrienne Horn

Abstract  Maritime terrorism remains a key issue on the maritime security agenda, notably following the attack on the Achille Lauro in 1985, and subsequently the 9/11 attacks on the Twin Towers and the Pentagon in the United States of America. Despite data suggesting that maritime terrorism is an objectively small threat compared to international terrorism, cases of maritime terror detailed herein evidence the need for this issue to remain on the maritime security agenda. Indeed, the case studies provided of the Achille Lauro incident, and the USS Cole attack in 2000 (although not a frequent element of the responsible groups’ modus operandi) demonstrate how devastating such attacks can be when they occur, while those perpetrated more habitually by groups indicate the impacts of sustained attack for the economies and coastal communities of the affected states. This chapter thus sketches the emergence of maritime terrorism as an important concern in maritime security debates, considers what maritime terrorism is, what might take terrorists to sea, and what risks are posed in the maritime domain by terrorists, before discussing measures available to address maritime terrorism, and then laying out the abovementioned case studies. Keywords  Terrorism · Maritime terrorism · Achille Lauro · USS Cole

L. Otto (*) SARChI Chair: African Diplomacy and Foreign Policy, University of Johannesburg, Auckland Park, South Africa e-mail: [email protected] S. Graham Department of Politics and International Relations, University of Johannesburg, Auckland Park, South Africa e-mail: [email protected] A. Horn Monash South Africa, Johannesburg, South Africa e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Otto (ed.), Global Challenges in Maritime Security, Advanced Sciences and Technologies for Security Applications, https://doi.org/10.1007/978-3-030-34630-0_9

145

146

L. Otto et al.

9.1 Introduction Incidents of maritime terrorism predate the 9/11, 2001, attacks on the Twin Towers in New York, the Pentagon and the fourth hijacked plane in Pennsylvania, but it is following these attacks – and the subsequent scramble in the security community to increase preparedness for attacks where modes of transportation are used in the commission of terror – that interest grew around maritime terrorism. The 9/11 incident “exposed the potential brittleness” of systems of transportation that could result in disruptions to global trade (Hong and Ng 2010, p.  51). Nincic (2005, p.  620) argues that the “ease with which mundane objects such as airplanes and subway cars could be turned against us has forced us to imagine and anticipate other forms of attack”. Indeed, within a week of 9/11, William O’Neil, who was then Secretary-General of the International Maritime Organisation (IMO), emphasised that international terrorism posed a real threat to the maritime industry, noting: “we are all potential targets of terrorist activity” (Malcolm 2016, p. 444). As such, maritime terrorism has, since 2001, remained on the maritime security agenda. Despite the fact that maritime terror events are not particularly frequent, there are some groups who do habitually employ terror tactics at sea, and there is a concern that should the resources and circumstances permit, other groups may be able to take their agenda to sea also. This chapter will thus lay out what maritime terrorism is, discussing both theory and practice. It first looks at how terrorism is defined before moving on to consider maritime terrorism itself. It discusses how maritime terror attacks are committed and by who, as well as discussing the consequences of maritime terrorism, and summarising measures used to tackle it. It also briefly considers the overlap between piracy and maritime terrorism. The chapter then moves to two case studies to provide real-life illustrations of maritime terrorism. The cases in question are the Achille Lauro and USS Cole incidents which took place in 1985 and 2000 respectively.

9.2 Maritime Terrorism: Theory and Practice 9.2.1 What Is Terrorism? Before coming to maritime terrorism, it is prudent to first consider what terrorism is. Indeed, terrorism has been a challenge for the international community to define. This has been largely because generating consensus on what terrorism is has been obstructed by “the divergent (and intractable) political positions” of some states regarding whether the actions of states can be deemed to be terrorist in nature, and whether liberation movements, when employing violence to achieve their ends, should be labelled as terrorist (Golder and Williams 2004, p. 273). This leads many to believe that consensus around a definition can never be achieved (Ganor 2002, p. 287).

9  Maritime Terrorism

147

Ganor (2002, p. 288), however, is of the view that a “correct and objective definition” can be based on accepted international laws pertaining to war, jus ad bellum or the criteria making it permissible to go to war, and jus in bello or the law that governs the way in which war is carried out. Clarified in the Geneva and Hague Conventions, these laws are based on the notion that soldiers may come to harm in war, even deliberately, by its nature, but that the commission of violence against civilians is strictly forbidden. “These Conventions thus differentiate between soldiers who attack a military adversary, and war criminals who deliberately attack civilians”. Ganor (2002, p. 88) further argues that this principle could be extended from applying to states, to referring to conflict between a nongovernmental organisation or non-state actor and a state. Saul (2008), however, argues that a separate definition should be clarified in international law. Singh (2017, pp. 1–3) notes that such efforts have been ongoing since the days of the League of Nations, including the 1994 and 1996 Declarations on Measures to Eliminate International Terrorism, and, since 2000, the drafting of the Comprehensive Convention on International Terrorism (CCIT). The CCIT is to include terrorist crimes not presently covered under existing international law, as well as to seek the adoption of enhanced co-­ operative measures between states. The CCIT has itself faced challenges in generating consensus around a definition, with divergence emerging between two clear groups (Singh 2017, p. 4). A survey of proffered definitions, however, concludes that terrorism has a political motive, generates fear through the deliberate use or threat of violence, and may target either civilian or state-based persons or property. Schwenkenbecher (2012, p. 38) summarises this in her definition, describing terrorism as: an indirect strategy of using fear or terror induced by violent attacks or force (or the threat of its use) against one group of people (direct target) or their property as a means to intimidate and coerce another group of people (indirect target) and influence their actions in order to reach further political objectives. Terrorist acts are the violent acts that form part of such a strategy.

9.2.2 What Is Maritime Terrorism? Moreels (2016, p.  4) notes that much like terrorism, maritime terrorism lacks an internationally agreed upon definition. He, and others such as Hong and Ng (2010, p.  52), however, refer to the definition determined by the Council for Security Cooperation in the Asia Pacific Working Group as a suitable working definition. This is: “… the undertaking of terrorist acts and activities within the maritime environment, using or against vessels or fixed platforms at sea or in port, against coastal facilities or settlements, including tourist resorts, port areas and port towns or cities”. Nincic (2005, p. 620) demonstrates a number of types of terrorism that could play out in the maritime domain: direct attacks against vessels, of which the cases of the USS Cole and Limburg provide examples; hijackings, such as occurred with the Achille Lauro; as well as the use of vessels for the transportation of individuals

148

L. Otto et al.

and materiel in support of terror activities. Additionally, according to a former North Atlantic Treaty Organisation (NATO) Supreme Allied Commander, Admiral Stavridis (2017), nautical terrorist attacks could also play out in the form of possible environmental or economic damage inflicted on coastal towns or ports, via chemical or biological weapons. Nonetheless, Asal and Hastings (2015, pp.  722–724) describe maritime terrorism as being a rare form of terrorism, calculating via the Global Terrorism Database that over 40 years, less than 0.2% of attacks have taken place at sea. Farrell (2007, p. 47) reiterates this, noting that the majority of terrorism is land-based. Asal and Hastings (2015, pp. 722–724) echo the sentiment of Greenberg et al. (2006, p. 11) in their explanation for why terrorist groups may not want to carry out attacks at sea. They provide three main arguments. One, terrorist groups are operationally conservative and therefore tend to rely upon tried and tested methods, which are likely to deliver the desired outcome; they further argue that if terrorists moved into what is likely a new operational environment for them, they would want to test their capabilities first in “high probability, low impact” attacks. Two, many terrorist organisations may not have the requisite logistical and training competence to carry out attacks at sea, and may not have access to equipment such as boats. The authors cite al-Qaeda’s failed attempt against the USS The Sullivans in 2002, where their own vessel sank before they reached their target, simply because it was overloaded with explosives. Three, the very nature of the environment – distance from land – may act to disincentivise terrorists as this is “removed from large civilian populations and out of easy reach of news cameras and camera phones”. Asal and Hastings [2, p.  724] put forth Lehr’s arguments for why terror groups may find attacks at sea attractive. First, with more training opportunities now being available around seafaring and other maritime skills, it is possible for the requisite skills to be easily acquired. Second, terrorists may be attracted by the economic disruption that a maritime terror attack can bring, given how vitally important sea lines of communication are for the maintenance of global trade, and how the structure of the global shipping industry is heavily networked. Lastly, some types of vessels can offer “contained spaces where civilian casualties can be maximised relative to the explosives used”. The case of Abu Sayyaf’s 2004 bombing of a ferry in Manila Bay, which caused a fire that trapped passengers onboard and ultimately resulted in the death of 116 people, is illustrative of this. Farrell (2007, pp.  49–50) argues for realism around the probability of terror attacks at sea, noting that few organisations legitimately have the capability and know-how to carry out such attacks. There are a few exceptions, notably in Southeast Asia, where two terrorist groups have been particularly successful in carrying out their activities at sea: Sri Lanka’s Liberation Tigers of Tamil Eelam (LTTE) and the Philippines’ Abu Sayyaf. With respect to the former, the LTTE have been carrying out maritime suicide attacks since 1984, with Farrell citing a study by the Woodrow Wilson School of Politics and International Affairs which credits the group with having destroyed between a third and half of the country’s naval coastal craft. Banlaoi (2005, p.  70) describes Abu Sayyaf as a group of bandits and pirates who seek attention through their acts in order to claim influence and power.

9  Maritime Terrorism

149

The organisation has been active at sea for many years, using mobile operations and guerrilla tactics, as well as urban terror attacks to divert attention from their mountainous hideouts. The group has enjoyed much local support, and has been able to escape consequences for their attacks by being adept at dispersing and blending in with local sea-craft (Farrell 2007, pp. 49–50; Banlaoi 2005, p. 70). Nincic (2005, pp.  623–631) describes ways in which maritime terror could evolve to play out. She notes that terrorists could operate their own shipping fleets by making use of so-called ‘flags of convenience’, where ships are legitimately registered but where the country responsible for this registry has limited requirements for vessels to comply and either carries out limited checks, or carries out no checks at all. This of course makes their activity difficult to track, which provides perfect cover for terrorist organisations. Further, vessels could be used as tools of proliferation, being used to transport chemical, biological and radiological, and nuclear (CBRN) weapons. Next, vessels themselves could be used as weapons of mass destruction, particularly if containing CBRN weapons, set to detonate when reaching a particular target. Ships could also be rendered a weapon if carrying dangerous cargo such as liquefied petroleum gas, which could be used to set the entire vessel alight in a suicide attack. Farrell (2007, pp.  50–55) echoes many of these scenarios, adding the possibility of the use of vessels to attack coastal or inland infrastructure given the accessibility some vessels may have to ports or other inland infrastructure via waterways. Knyazeva and Korobeev (2015, p. 230) further determine, amongst others, the following as areas of risk for maritime terrorism: • The indirect use of vessels by terrorists in the commission of terrorist acts; • The use of vessels for the commission of organised crime, which may provide a revenue stream for terror groups; and • The destruction of or interference with the operation of marine navigation equipment, which could negatively impact safe navigation.

9.2.3 Consequences of Maritime Terrorism While some of the consequences of maritime terrorism have already been hinted to herein, Greenberg et  al. (2006, pp.  29–34) explain that two types of vessels are likely to be affected: commercial ships, and passenger ships used for commuting and leisure. Further then, a maritime terror attack could impact upon private sector, public sector or individual parties, for whom the consequences may either be shared or independent. They explain these consequences as being direct or indirect, where the former encompasses loss of human life, the physical destruction of property, and response to and recovery from an incident, while the latter could include businesses being unable to operate, the activities of businesses and individuals being disrupted, and that individuals and firms could change their decision-making patterns as a result of an attack. They go on to describe categories of consequences, which they plot against the party affected; these are: human-, economic-, and intangible consequences.

150

L. Otto et al.

While the first two may seem reasonably obvious – human consequences referring to loss of life and economic consequences addressing the range of financial and operational repercussions that might be faced by parties affected, intangible consequences can be situation-specific and harder to determine. Greenberg et al. (2006, p. 24), however, suggest the following could be included amongst these: psychological consequences, loss of human capital in both the public- and private sectors, changes in consumption and investment, stock market shifts, impacts on foreign direct investment and trade, and reduced tourist visits.

9.2.4 The Nexus Between Piracy and Maritime Terrorism In a volume such as this, it is worth noting the nexus between piracy and terrorism, which comes up repeatedly in literature (see Halberstam 1988) on both these phenomena. Hong and Ng (2010, p. 52) note that the line between maritime terrorism and maritime piracy can be blurred as although the following factors serve to distinguish between the phenomena, these may also bring them together. For one, piracy is usually financially motivated whereas terrorism is driven by political motivations; however, pirates in some parts of the world have claimed to be motivated by seeking political change, while terrorists likewise could use piratical activity as an income stream. Moreover, whilst pirates often employ basic tactics such boarding, theft, and threat of the use of force, terrorists tend to want to achieve strategic goals, but “contemporary piracy and terrorism are no longer necessarily discrete and there is even a complex piracy-terrorism continuum”. Banlaoi (2005, p.  64) refers to Southeast Asia where, because piracy is commonplace, terrorists are able to use it as a cover for maritime terrorism. He further highlights that terrorists can make use of pirate tactics in the theft of a vessel, which could then be detonated or used to ram into another ship or a port facility, in order to instil fear. Nincic (2005, p. 620), however, insists that the distinction between the two should be maintained that they should be studied as separate phenomena.

9.2.5 Measures to Address Maritime Terrorism With respect to applicable law, the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (also known as the SUA Convention) is the first international legal instrument with a regime covering maritime terrorism (Hong and Ng 2010, p. 52). The SUA Convention was developed in the aftermath of the Achille Lauro incident, with recommendations emanating from the IMO around the need for treaties dealing with terrorism. The convention “made it illegal for a person to unlawfully and intentionally seize or exercise control over a ship by force, threat, or intimidation”, while also prohibiting the placement of a destructive device

9  Maritime Terrorism

151

or substance onboard, and the commission of acts of violence that could endanger safe navigation (Power 2008, p. 127). Following this, and in the aftermath of 9/11, the SUA Convention was deemed insufficient and in need of updating, which led to the adoption of the 2005 Protocol to the SUA Convention. The Protocol, Moreels (2016, p. 35) explains, focused on four parameters: (1) to consider more seriously the prospect of the use of vessels for purposes of transport or as weapons by terrorists, (2) the hypothetical use of vessels to transport proliferation equipment, (3) the extensions and revision of extradition in order to render it efficient as a preventative measure, and (4) the provision of a legal basis to facilitate preventative boarding procedures. The International Ship and Port Facility Security (ISPS) Code provides another legal avenue that can work to combat maritime terrorism. Malcolm (2016, p. 444) describes this as “the international community’s most prominent regulatory response to concerns that terrorists might attack ships and ports and/or exploit them to facilitate attacks elsewhere”. Raymond (2004, p. 1) summarises that the ISPS Code requires both vessels and port facilities to conduct security assessments, upon which security plans should be developed, including the appoint of ship- and company security officers, and deems the possession of relevant onboard equipment necessary. Governments are required to set an appropriate level of risk (either one, two, or three, corresponding to normal, medium, and high), which should be communicated to relevant parties, and these levels should be raised in circumstances of heightened risk, during which period additional security measures should be taken. Moreels (2016, p. 41) notes two further measures in tackling maritime terrorism: the Proliferation Security Initiative (PSI) and the Container Security Initiative (CSI). The PSI is an effort to halt shipments in biological, chemical, and nuclear weapons along with missiles or other goods or equipment that can be used in the commission of terror (Williams 2016: Internet). Participants of the initiative, which include 105 nations and the Holy See, are encouraged to commit to the principles of the PSI, review legislation and strengthen authorities where necessary, provide points of contact for interdiction requests, participate in training exercises and actual operations, and consider joining other relevant agreements. Importantly, however, the PSI “does not create a new legal framework but aims to use existing national authorities and international law to achieve its goals” (Nikitin 2018, p. 2). The CSI “is based on the premise that the security of the world’s maritime trading system needs to be enhanced and that it will be more secure if high-risk cargo containers are targeted and screened before they are loaded”. The initiative thus seeks to facilitate the detection of potential threats at the soonest possible opportunity, essentially being designed to prevent the use of the seas by terror groups to transport weapons. It is comprised of four parts: identifying security criteria to identify containers that could be high-risk, pre-screening of said containers, using available technologies to screen containers, and the development of secure containers (UNCTAD 2004, pp. 5–6). Additionally, the Customs Trade Partnership Against Terrorism (C-TPAT), initiated by the United States of America (US), aims to build relationships between states to strengthen the supply chain and improve border security with a view

152

L. Otto et al.

minimise the terror threat. It is a non-contractual and voluntary agreement, with participation possible by importers, by air-, rail- and sea, US port authorities and terminal operators, as well as certain foreign manufacturers (UNCTAD 2004, p. 4). Beyond international law, Nincic (2005, p. 621) notes that traditional policies and strategies for dealing with terrorism may be insufficient in the maritime domain, and indeed inappropriate, arguing that the inclusion of maritime terrorism in a broader maritime security regime is merited. She (Nincic 2005, p. 633) explains that the limiting of the use of the shipping industry for the commission of terrorism should involve the following: reducing the likelihood that ships can be used to smuggle CBRN components as well as other materials and/or personnel, curbing the possibility for terror groups to use flags of convenience, and limiting the ability of terrorists to turn “merchant vessels into floating bombs”.

9.3 The Cases of the Achille Lauro and the USS Cole: Two Case Studies A useful framework to employ in interrogating any act of terrorism is Post, Ruby and Shaw’s (2002, pp. 73–77) integrated framework which identifies four conceptual categories which help to indicate a radical group’s inclination towards the use of terror: (1) contextual features; (2) group characteristics; (3) key actors affecting the group, and (4) immediate situations which trigger an event (in Graham 2004, pp. 4–5). The historical and socio-political context of a group is important as history usually determines the motivations of the group; which may be borne from societal discontent, a violent cultural heritage, or pre-existing conflict along ethnic, religious or class lines among other reasons. How a group is organised, that is, how it is structured, what characterises the group’s make-up and its methods of operation all play a role in the group’s survival. In the context of maritime terrorism, as stated previously in this chapter, Nincic (2005, p. 620) contends that there are numerous ways in which terrorist groups may employ the sea in their modus operandi. Group ideology and goals and leadership style also factor in here. Actors affecting a group can be wide-ranging. These actors can be elements of society which the group perceives to be acting in opposition to its goals and needs, and this may include a government and its security forces, sub-state actors, other hostile groups or even whole societies espousing overarching opposing ideologies or ways of living. Group supporters can be local sympathisers or foreign communities or governments (state-sponsored terror) with a shared goal. In conflict literature, Nye and Welch (2014) contend that for simmering tensions in societies to suddenly flare up and become violent, there needs to be a triggering event, or immediate characteristics of a situation that escalate often without warning. This framework ties in with the OCI threat assessment framework which considers opportunity, capability and intent of terrorist groups in carrying out acts of terror (Wee 2017, p. 33).

9  Maritime Terrorism

153

9.3.1 The Achille Lauro The MS Achille Lauro, also referred to as the star-crossed ship, was a goliath passenger liner whose destiny would be afforded no more than 50 years. Sailing under the flags of Italy and Holland, the Achille Lauro was fated for disaster. With its construction beginning in 1939 as the Dutch liner Willem Ruys, development was arrested with the eruption of World War II. Withstanding the war and German occupation, the liner was completed and embarked on her maiden voyage in December 1947, sailing between Holland and Southeast Asian seas in the 1950s. During her 1953 voyage through the Red Sea the Willem Ruys collided with her sister vessel, the Oranje. Not before long, the Willem Ruys was repaired and outfitted as a pleasure cruise-liner, converting from its previous passenger-hauling status to one of luxury Mediterranean voyages. In 1965 the liner was sold to the Italian Flotta Lauro line and renamed the Achille Lauro. That same year, a fire erupted and destroyed half the ship. Repaired once again and reintroduced to the stage in 1966, the vessel spent the next seven years cruising the Mediterranean and voyaging to Australia. In 1972 the ship was ravaged by another fire, repaired and sent forth once more only to collide with a cargo ship in 1975. In 1981, she suffered another fire before being hijacked in 1985 (Blumenthal 1985; Company of Master Mariners of Australia 2014). On the 7th October 1985 just off the Egyptian coast, four young men belonging to Mohamed Zeidan’s (Abdul Abbas) Palestine Liberation Front (PLF), a branch of the Palestine Liberation Organisation (PLO), boarded and hijacked the liner en route from Egypt’s Port Alexandria to the Israeli port in Ashdod, taking her 476 passengers and 80 crew hostage. Uncovered by crew members, the terrorists took control of the vessel and began directing it to Port Tartus in Syria intending to strong-arm the Israeli government into releasing 50 Palestinians imprisoned in Israel (Fisk 2006, pp. 465–466). While navigating the Syrian coast, the hi-jackers murdered an elderly American-­ Jewish passenger, Leon Klinghoffer, when they were denied port in Tartus and their demands refused. Wheelchair-bound, the victim was killed and thrown overboard still in his chair. Mohammed Yasser Abdel Rahman Abdel Raouf Arafat al-Qudwa, commonly known as Yasser Arafat, a statesman, so-called ‘master of terror’ and PLO official, flew to Cairo as a humanitarian negotiator and convinced the PLF leader Abu Abbas and his hijackers to direct the vessel to Egypt’s Port Said in return for their pardoning and safe passage. Sailing for Port Said, the gunmen surrendered on orders from their leader Abu Abbas. The vessel coming in to port was blood streaked and stained down its side. The Achille Lauro hijacking was, according to Abbas, “financially and politically disastrous for the Palestinian cause” (in Fisk 2013). The killing of Klinghoffer sparked widespread outrage even from those in support of the Palestinian cause (Fisk 2013). Many debated and questioned whether the attack was an act of vengeance for the Israeli military air strike on the PLO headquarters in Tunis a week prior or simply a matter of recovering lost and imprisoned officials. Reports also surfaced that Abu Abbas was determined to force the Israeli government to release Samir Kuntar. His was the only name specified by the

154

L. Otto et al.

hijackers. Kuntar, a Lebanese man and friend of Abbas had been imprisoned in an Israeli jail for the attempted kidnapping and killing of a Jewish family on 22 April 1979 in Nahariya near the Lebanese border, where a father and two young daughters had died (Alster 2014). Kuntar was captured that night after the attack and with the executor of this attack in custody, attention shifted to the brain behind the operation. Planned by PLF leader Abu Abbas, the attack was reasoned as a protest to the Israeli-Egyptian Peace Treaty signed at Camp David. Abu Abbas escaped justice and Kuntar was released in 2008 (Alster 2014). Bassam al-Achkar was one of the hijackers and was only 17 at the time. According to al-Achkar, Abbas was ‘struck’ by the simplicity and ease with which a sea-­ harboured assault on Israel could be executed, as opposed to anticipated ground assaults from Syria, Jordan or Lebanon. Abbas sent the four young men involved in the 1985 hijacking on trial “training runs” on the Achille Lauro itself for the 11 months leading up the that fateful day, disguised as wealthy Latin American passengers (Fisk 2013). On the 7th of October 1985, on board the Achille Lauro, the crew realised something was wrong when the smell of petroleum permeated throughout. According to al-Achkar, the weapons were concealed in the fuel tank of an Italian marked car. In the room, the men were trying to clean the guns and diffuse the pungent smell while housekeeping and crew, fearing for an oil leak and potential fire, located the smell and opened the door to find all four men armed and ready. In that moment, the four men instantaneously subdued the crew and took control of the vessel (Fisk 2013). Abbas proclaimed that the intention of the act was to “carry out an honourable operation against the Israeli Army. I wanted them to reach Ashdod: not to fight the passengers on board.” Abbas was later recorded condemning the young men, bellowing “why the hell were you fixing your weapons without having locked the damn door first?” (Fisk 2013). On another occasion, record has Abbas’ wife Reem al-Nimer reasoning that: The young men cowered when it was time for them to die…They came from the Palestinian camps of Jordan and Syria, had never seen anything as lavish in their lives, as what they experienced on the Achille Lauro. Overnight, here were these street boys sipping champagne at pool parties, surrounded by beautiful Italian women in bikinis. Before… they had always embraced death, as they had never seen a day of comfort in their lives… (Now), they quickly began to understand that there were indulgences in life that they previously knew nothing about. Life, suddenly, began to have a new sweet meaning to it (Fisk 2013).

This hijacking involved people on an international scale as crew and passengers included American, British, Italian, Honduran and Portuguese citizens. The governments of the US, Syria, Egypt and Israel also played a role in bringing this attack to a close (Fisk 2006, p.  466). The Egyptian government essentially negotiated the terrorist’s abortion of the mission in exchange for their safe passage. Egypt put the hijackers and Abbas aboard an Egyptair Boeing and flew them to Tunis, the capital of Tunisia, where the PLO maintained its headquarters. US fighter jets intercepted the flight and forced it to land at a NATO airfield in Italy. Abbas was passed over to the Yugoslavians and the US made to apologise for forcing the aircraft from its course. Forgiven by Israel, Abbas was later allowed into Gaza as a mini-statesman to vote in Palestinian elections after the 1993 Oslo agreement (Fisk 2006, p. 466).

9  Maritime Terrorism

155

Abbas later moved to Baghdad where he died mysteriously in US custody in a prison camp after America’s 2003 invasion of Iraq (Fisk 2006, p. 466; Fisk 2013). The Achille Lauro finally came to rest in November 1994 while cruising the Indian Ocean en route to South Africa. A fire erupted in the engine room and burned for three days. On the 2nd of December 1994 the fated liner sank off the coast of Somalia (Company of Master Mariners of Australia 2014). Coincidentally, the resting place of the Achille Lauro later became a hotbed for maritime piracy, with attacks on international shipping lanes off the Horn of Africa growing in frequency since 2005. Although the Achille Lauro hijacking at sea was fairy unique in 1985, groups’ hijacking modes of transport was not. Four months earlier on 14 June 1985, Trans World Airlines Flight 847 was hijacked after take-off from Athens airport. After that event, and presumably because of it, slack demand resulted in the decommissioning of three Epirokiti ships, the Jupiter, the Jason and the Neptune which had been operating in and around the Greek Islands and Eastern Mediterranean (Blumenthal 1985).

9.3.2 The USS Cole On 12 October 2000, the USS Cole, a US naval destroyer, was preparing to refuel in port in Aden, Yemen en route to the Persian Gulf when it was bombed by a small boat, or rubber dinghy, stacked with explosives and steered by alleged followers of al-Qaeda. The explosive attack resulted in the deaths of 17 US sailors (ranging in age from 19 to 35 years old), the injuring of 42 others and a 150-square metre hole in the destroyer’s hull (CNN 2018: Internet). At a 2001 Senate hearing reviewing lessons learned in relation to the Cole attack, United States Army General HH Shelton (2001), asserted that: “on this incident, terrorists were able to exploit control measures and perimeter security vulnerabilities associated with waterside approaches to our ships while they are in port”. This case has witnessed a series of court cases over the years. By July 2004 a Yemeni court charged six men for the bombing: Al-Badawi, Maamoun Msouh, al-Quso, Ali Mohamed Saleh and Murad al-Sirouri. The sixth man charged, in absentia as he was already in US custody since 2002, was Saudi-born Abd al-Rashim al-Nashiri.1 Osama bin Laden and Walid bin Attash, or Khalid bin Attash were also charged as co-conspirators of the attack and the US Justice Department indicted al-Badawi and al-Quso for their involvement. Ibrahim al-Thawr and Abdullah al-Misawa were named as two of the boat’s pilots. Although various reports have suggested that the attackers were motivated by a general anger against America’s military presence in the Middle East, others are less convinced. Phillips (2000) contends that at the time, although tensions in the Middle East over the Israeli-Palestinian struggles were high, the Cole bombing was  By 2011, al-Nashiri faced new charges by the US Defense Department in relation to planning the USS Cole attack; the attack on the MV Limburg (French oil tanker) in 2002, and the attempted attack on the USS The Sullivans in 2000 (CNN 2018). 1

156

L. Otto et al.

probably not related to that specifically. Prior to 2000, Palestinian terrorist groups, like the PLF referred to in the first case study above, had used suicide bomb tactics against Israeli targets and not usually US military personnel. Even Lebanon’s Hezbollah group, which had supporters in Yemen, had refocused their campaigns against Israel (not the US) since 1991. Attacks carried out by loose networks such as al-Qaeda, whose leader Osama bin Laden had orchestrated the 1992 bombing of a Yemeni hotel used by US military personnel, were most likely the perpetrators of the Cole bombing. Bin Laden, had been quoted at the time as condoning the Cole attack in a short video showing the damaged USS Cole and reciting a poem: “And in Aden, they charged and destroyed a destroyer that fearsome people fear, one that evokes horror when it docks and when it sails” (The Guardian 2011: Internet). However, other theories on who the attackers may have been representing have emerged, some without evidence, ranging from Yemeni government-backed support for the attack, a Saudi cover-up, an Israeli backed attack, to simply a ‘lucky day’ for the bombers as opposed to a well-planned masterminded incident (see Burns and Myers 2000). Whether or not this attack was well-orchestrated or simply on impulse,2 the truth is that it was ‘effective’ in that it killed so-called opponents of the bombers, it caused serious and expensive damage, it had far-reaching repercussions for the US and for the al-Qaeda network and it demonstrated the real power of the so-called ‘weaker’ actors of asymmetric warfare. After all, the nearly new US warship, with sophisticated technology including an advanced radar system and missiles and cannons, was unable to prevent this type of attack  – “the maritime equivalent of a truck packed with explosives pulling up to a building” (Burns and Myers 2000). The approaching boat had not raised suspicions as it was assumed to be part of a legitimate flotilla of boats assisting the destroyer with its mooring to refuel. It is interesting to note that the Cole had been on security alert but had failed to implement all 62 force protection measures required of a warship at Threatcon BRAVO. The most serious fault, as fate would have it, was the failure to implement a requirement “to coordinate security measures for the USS Cole’s visit with the local Yemeni husbanding agent and a requirement to keep unauthorised boats away from the ship” (HASC 2001, p. 3). A telling summation of the USS Cole attack was outlined by the HASC report (HASC 2001, p. 3): Waterborne terrorist threats proved to be the Achilles’ heel of the Navy’s counterterrorism program. No one in the chain of command appears to have recognised that additional security measures were necessary to protect against waterborne terrorist threats. A waterborne suicide attack had not been considered likely’ (HASC 2001, p. 3).

Over a five-year period between 2010 and 2015 surviving sailors and families of the victims of the USS Cole attack sued the government of Sudan for allegedly supplying material aid to the attackers in the form of funding, training and additional  This explanation seems unlikely as the USS Cole was scheduled to be in port for just four hours. This suggests the attackers knew of the precise date and time of the destroyer’s port visit. 2

9  Maritime Terrorism

157

support to al-Qaeda. The plaintiffs sought compensation from the assets housed in Sudanese banks. To satisfy geopolitical context, there are 772 nautical miles between Port Sudan on the east coast of Sudan and the port of Aden in Yemen. Despite an appeal, the Sudanese government was ordered to hand over $314,705,896 in damages to the plaintiffs in 2015.3

9.4 Conclusion In either case study, there is no obvious trigger event that led to the hijacking in the first instance or to the suicide bombing in the second case. Although the cruiser hijacking was part of a slow build-up of repeated efforts by terrorist groups to hijack modes of transport, the USS Cole bombing was a rare attempt by a group to use one ship to destroy another ship. In both instances it appears that the use of maritime terrorism had afforded terrorist groups a unique and effective modus operandi as maritime security policies had not fully considered the possibilities, and realities, of deadly maritime attacks. This evidences what has been previously laid-out herein: that maritime terrorism, seen as a proportion of international terrorism, remains small. But these more opportunistic attacks (rather than being a more frequent element of the modus operandi of the groups involved), far-reaching in their consequences, as well as those more habitual attacks perpetrated in Southeast Asia, demonstrate that despite its small proportion, the international community cannot let its guard down, and must continue to work toward preventing and combatting maritime terrorism.

References Alster P (2014) The untold story of the horrendous murders which led to the 1985 Achille Lauro hijacking  – the terrorist outrage that’s been made into an opera sparking protests in America. Retrieved from The Daily Mail. 28 October. https://www.dailymail.co.uk/news/ article-2805285/The-untold-story-horrendous-murders-led-1985-Achille-Lauro-hijackingterrorist-outrage-s-opera-sparking-protests-America.html Asal V, Hastings JV (2015) When terrorism goes to sea: terrorist organizations and the move to maritime targets. Terrorism Polit Violence 27(4):722–740 Banlaoi RC (2005) Maritime terrorism in Southeast Asia: the Abu Sayyaf threat. Nav War Coll Rev 58(4):63–80 Blumenthal R (1985) Hijacking at sea; The Achille Lauro: over half a century, a series of crises and mishaps. New York Times, 9 October. https://www.nytimes.com/1985/10/09/world/hijackingsea-achille-lauro-over-half-century-series-crises-mishaps.html Burns JF, Myers SL (2000) The warship explosion: the overview; Blast kills sailors on U.S. Ship in Yemen, New  York Times, 13 October 2000. https://www.nytimes.com/2000/10/13/world/ the-warship-explosion-the-overview-blast-kills-sailors-on-us-ship-in-yemen.html  For an update on this case which has been delayed due to a legal technicality see Totenberg (2018).

3

158

L. Otto et al.

CNN (2018) USS Cole bombing fast facts. https://edition.cnn.com/2013/09/18/world/meast/usscole-bombing-fast-facts/index.html Company of Master Mariners of Australia (2014) Stories from the past: the Achille Lauro story. http://www.mastermariners.org.au/stories-from-the-past/25-the-achille-lauro-storyFarrell R (2007) Maritime terrorism: focusing on the probable. Nav War Coll Rev 60(3):46–60 Fisk R (2006) The great war for civilisation: the conquest of the middle east. Harper Perennial, Hammersmith, London Fisk R (2013) How Achille Lauro hijackers were seduced by the high life’. The Independent, 5 May. https://www.independent.co.uk/voices/comment/robert-fisk-how-achille-lauro-hijackers-were-seduced-by-high-life-8604519.html Ganor B (2002) Defining terrorism: is one man’s terrorist another man’s freedom fighter? Police Pract Res 3(4):287–304 Golder B, Williams G (2004) What is terrorism’? Problems of legal definition. UNSW Law J 27(2):270–295 Graham S (2004) Terrorist waves and corresponding terrorist groups: a comparative analysis of the IRA, FARC and Al Qaeda. Masters dissertation, University of Johannesburg Greenberg MD, Chalk P, Willis HH, Khilko I, Ortiz DS (2006) Maritime terrorism: risk and liability. RAND Corporation, Santa Monica Halberstam M (1988) Terrorism on the high seas: the Achille Lauro, piracy and the IMO convention on maritime safety. Am J Int Law 82(2):269–310 HASC (2001) Attack on the U.S.S. Cole: the investigation into the attack on the U.S.S. Cole, May 2001. http://www.bits.de/public/documents/US_Terrorist_Attacks/HASC-colereport0501.pdf Hong N, Ng AKY (2010) The international legal instruments in addressing piracy and maritime terrorism: a critical review. Res Transp Econ 27:51–60 Knyaezeva NA, Korobeev A (2015) Maritime terrorism and piracy: the threat to maritime security. Mediterr J Soc Sci 6(6):226–232 Malcolm J (2016) Responding to international terrorism: the securitisation of the United Kingdom’s ports. Br J Polit Int Rel 18(2):443–462 Moreels S (2016) The insurability of maritime terrorism. Unpublished thesis. Gent University. See: https://lib.ugent.be/fulltxt/RUG01/002/272/401/RUG01-002272401_2016_0001_AC.pdf Nikitin MB (2018) Proliferation security initiative (PSI). Congressional Service Research, Washington, DC Nincic D (2005) The challenge of maritime terrorism: threat identification, WMD and regime responses. J Strateg Stud 28(4):619–644 Nye JS Jr, Welch DA (2014) Understanding global conflict & cooperation: intro to theory and history, 9th edn. Pearson, Essex Phillips J (2000)TheYemen bombing: another wake-up call in the terrorist shadow war.https://www.heritage.org/middle-east/report/the-yemen-bombing-another-wake-call-the-terrorist-shadow-war Post JM, Ruby KG, Shaw ED (2002) The radical group in context: 1. An integrated framework for the analysis of group risk for terrorism. Stud Confl Terrorism 25(2):73–100 Power J (2008) Maritime terrorism: a new challenge for national and international security. Barry Law Rev 10(Spring 2008):111–133 Raymond CZ (2004) The challenge of improving maritime security: an assessment of the implementation of the ISPS Code and initial responses as to its effectiveness. IDD Commentaries, Nanyang Technological University, Singapore Saul B (2008) Defining ‘terrorism’ to protect human rights, Legal studies research paper no. 08/125. Sydney Law School, Sydney Schwenkenbecher A (2012) Terrorism: a philosophical enquiry. Palgrave Macmillan, London Shelton HH (2001) Lessons learned from the attack on U.S.S. Cole, on the report of the Crouch-­ Gehman Commission, and on the Navy’s Judge Advocate General manual investigation into the attack, including a review of appropriate standards of accountability for U.S. Military Services. https://www.gpo.gov/fdsys/pkg/CHRG-107shrg81231/html/CHRG-107shrg81231.htm

9  Maritime Terrorism

159

Singh N (2017) The United Nations efforts at combatting international terrorism, FICHL policy brief series no. 81. Torkel Opsahl Academic EPublisher, Brussels The Guardian (2011) Bin Laden: the war in his words. https://www.theguardian.com/world/2011/ may/02/bin-laden-war-words-quotes Totenberg N (2018) Trump administration sides with Sudan against USS Cole survivors in lawsuit. https://www.npr.org/2018/11/08/665407297/trump-administration-sides-with-sudan-againstuss-cole-survivors-in-lawsuit?utm_medium=RSS&utm_campaign=world UNCTAD (2004) Container security: major initiatives and related international developments. See: https://unctad.org/en/Docs/sdtetlb20041_en.pdf Wee JYM (2017) Maritime terrorism threat in southeast. Asia and its challenges. Pointer: J Singap Armed Forces 43(2):32–44 Williams I (2016) The proliferation security initiative (PSI) at a glance. https://www.armscontrol. org/factsheets/PSI. Accessed 8 Nov 2018

Chapter 10

Port Security Risto Talas

Abstract  The role of ports as nodes in global supply chains is crucial for international trade and their protection against security incidents is paramount. Prior to the 11th September 2001 terrorist attacks against New York and Washington DC, also known as 9/11, the types of security incidents in ports were largely smuggling by organised criminals, theft, and the presence of stowaways. Terrorist attacks against ports or shipping in ports was relatively rare. After 9/11, the focus moved to potential acts of terrorism and the International Maritime Organisation (IMO) introduced the International Ship and Port Facility Security (ISPS) Code which mandated security procedures in the world’s ports that receive internationally trading vessels of 500 tons and more. Other initiatives included the United States of America’s (US) Maritime Transportation Security Act passed by Congress in November 2002, which included the Container Security Initiative and the Customs-Trade Partnership Against Terrorism. Since then the International Organisation for Standards has introduced ISO 28000 for Supply Chain Security. The enclosed case study highlights the need for effective cybersecurity in ports, as Dubai Ports (DP) World discovered to their cost in Antwerp in 2012. Keywords  Port security · Ports · Terminals · Cybersecurity · ISPS Code

10.1 Introduction Ports and terminals are the essential nodes in all global transport systems. They are the interfaces between different transport modes, be it shipping, trucking, rail or pipeline. They are situated in geographically strategic locations in different countries, typically for historic trade or defence purposes. They are expensive and expansive. Without them, there would be no international maritime trade and without

R. Talas (*) University of Portsmouth, Portsmouth, UK e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Otto (ed.), Global Challenges in Maritime Security, Advanced Sciences and Technologies for Security Applications, https://doi.org/10.1007/978-3-030-34630-0_10

161

162

R. Talas

trade there would be no economic growth. It is well known that ports and terminals maintain a variety of roles, not only for the import and export of bulk and non-bulk cargoes, but for their value-adding activities as well, such as port-centric logistics (Mangan et al. 2008). While ports and terminals maintain such a significant role in a nation’s economy and contribute so much to its success, they largely do not feature in the lives of ordinary citizens despite handling the import (and export) of the majority of electronic devices and white goods to be found in most global households. Furthermore, ports and terminals do not feature in the general public’s psyche owing to their remoteness in terms of location and the public’s ignorance of their role. Considering ports and terminals as nodes in global transport systems, they are the very same nodes in global supply chains. After Christopher (2005) and Peck (2006), supply chains are not two-dimensional chains but a complex “network of organisations that are linked through upstream and downstream relationships in the different processes and activities that produce value in terms of products and services in the hands of the ultimate consumer.” These complex networks of organisations are in turn serviced where necessary across national maritime borders by ports and terminals with value-adding activities where appropriate. However, as with any complex network such as a supply chain, risk is inherent in its operations and stability, and has an impact on its resilience. While ports and port facilities have enacted the International Maritime Organisation’s (IMO) International Ship and Port Facility (ISPS) Code, which was agreed at the Diplomatic Assembly of the IMO in 2002 but which came into force on 1 July 2004, and subsequently through the European Commission, to enshrine international port and maritime security as Regulation EC725/2004. What is of interest is that while the IMO presided over laying a blanket of security over the oceans and their ports, the land based logistics and supply chain operators followed suit by adopting the principles of ISO 28000  – Supply Chain Security. This chapter concerns port security, beginning with the nature of port security risk before discussing port security vulnerabilities and the current international initiatives which govern port security. The chapter concludes with a case study of cybersecurity attacks in the port of Antwerp.

10.2 Port Security Threats In the aftermath of the terrorist attacks in New  York and Washington on 11 September 2001 (also known as 9/11) security specialists and academics suggested that the global maritime environment would be a suitable target for a large-scale terrorist attack. Over the next 10 years, however, this trend of focusing purely on acts of terrorism began to fade in favour of cyber attacks and illicit acts by organised criminals involved in smuggling. Bueger (2015) describes maritime security threats to be: “threats such as maritime inter-state disputes, maritime terrorism, piracy, trafficking of narcotics, people and illicit goods, arms proliferation, illegal fishing, environmental crimes, or maritime accidents and disasters.”

10  Port Security

163

Pinto and Talley (2006) indicate a series of threats associated with US ports’ security among which they mention: containers with smuggled nuclear and chemical weapons, mines placed on ships that can disrupt the use of shipping channels and pirate vessels that can be set to destroy bridges or other important landmarks. Parfomak and Fritelly (2007) add examples to Pinto and Talley’s list (2006) thus proving that there is a large range of potential risks to be considered. Due to this consideration, these threats and the increased probability associated with their incidence are constantly scrutinised by specialist marine war and terrorism underwriters, who evaluate these risks as well as the costs associated with them. Talas (2010) points out that before the 9/11 incident the most important port security threats were considered those related to organised crime and drug smuggling. However, since September 2001, terrorist attacks have become the main concern when it comes to security risks associated with ports. Raymond (2006) indicates that these facilities are characterised by features that make them particularly vulnerable to terrorist attacks, pointing out their considerable extent and the fact that ports can be easily reached both by sea and by land. These access options make it difficult for them to be protected by the same security measures as those corresponding to airports. Further security-related vulnerabilities are described by Bichou (2004): ports’ interaction with cities and tourist attractions. Researchers have considered (2005) terrorist groups which are known to display different levels of maritime expertise. While these should not be ignored, neither should be the observation made by Raymond (2006), according to which port security threats should not be reduced to those potentially posed by groups who have already conducted maritime terrorist attacks. Talas (2010) argues that port security risks can also be associated with the security labour force (i.e. manpower shortfalls and security guard violations such as unauthorised copying and distribution of security passes) and to operational aspects corresponding to security systems (i.e. information technology (IT) systems, closed circuit television (CCTV) camera unit failings, alien detection of scanning devices etc.). The failure of existing security systems or other existing vulnerabilities must also be included on the list of port security risks (Juttner et al. 2003). One relevant example in this respect is that of the suspected al-Qaeda member who was transported in a container to an Italian port (Raymond 2006) .

10.3 Cyber Threats The threats to ports and the maritime transport system from cyber attack have caused disruptions. These have been classed as cyber accidents and cyber attacks. An example of a cyber accident described by Clark and Hakim (2017) was where a crew member plugged their smart phone into the Universal Serial Bus (USB) port on a ship’s navigational system and malware on the phone deleted all of the vessel’s electronic charts, delaying the vessel’s departure for two days. According to a BBC

164

R. Talas

report the port of Antwerp was targeted by drug traffickers for two years from 2011 to 2013. Initially, the port’s IT systems were hacked in order to access data on container movements in order for drug traffickers to intercept containers of bananas and timber that had been loaded with cocaine in the port before the actual consignees could arrive to collect their containers. When new firewalls were installed, the organised criminals sent in a team of would-be IT technicians in order to install devices which were plugged into the computers’ USB ports to record keystrokes and to take screen shots of container movement data. This data was also used by the drug traffickers to intercept containers with drugs before the rightful owners could collect them from the port.

10.4 Organisational Risk Sources Organisational risk sources in port security stem chiefly from the security labour force and the operational aspects of security systems, including IT systems. Examples of labour force risks include security guard manpower shortfalls and security guard violations. Security guard violations cover not only on-site breaches in working practices but include the unauthorised copying, lending or sale of security passes. According to Raymond (2006, p. 243), seafarer certificates can easily be forged, and identity documents can be bought on the black market, so it must follow that this can be done onshore as well. Operational aspects of security systems include failure by the security workforce to adhere to security procedures, failure of CCTV camera units, intruder detection devices, scanning equipment or any IT security system.

10.5 Network-Related Risks Juttner et  al. (2003) describe network-related risk sources as those “which arise from interactions between organisations in the supply chain.” Network-related security risks which ports face are those which have their origins in supply chain interactions and can result from the failure of any company’s security systems or the exploitation of a security weakness. For example, in the containerised trade, the possibility of the introduction of a chemical, nuclear, biological or radiological (CNBR) device which is detonated in a port will have considerable consequences for the port facility as well as causing severe supply chain interruption. In the port security war game Gerencser et al. (2003) showed that a dirty bomb, a conventional explosive device used to scatter nuclear or radiological material, found at the port of Los Angeles followed by the discovery of another shipped through the port of

10  Port Security

165

Savannah could ultimately lead to supply chain interruptions and stock market falls which could causing up to US$68 billion in direct and indirect losses. Other network-­related risks include the use of the containerised trade to transport stowaways or even terrorists through ports and across national boundaries, as in the case of the suspected member of al-Qaeda found on the quay in an Italian port in a container converted into a mobile hotel room (Raymond 2006, p. 246, OECD 2003) .

10.6 Port Security Risk Mitigating Strategies Pinto and Talley (2006, p. 268) describe the security incident cycle of ports in four phases: prevention, detection, response and recovery. They describe prevention as barriers that deny terror plans and events; detection provides early apprehension; response pursues as event and mitigates its impact; and recovery involves the return to normal operations. The port security risk mitigating strategies in this research are concerned with the first two phases as described by Pinto and Talley (2006). There are two key port security risk mitigating strategies which were introduced after 9/11. The main one is the ISPS Code. The other is the Maritime Transportation Security Act (MTSA) and relates to US port facilities. According to Bichou (2004, p. 323), the ISPS Code is “the most important global security initiative ever.” The European Union (EU) equivalent of the ISPS Code is Regulation (EC) No. 725/2004, which is largely a word-for-word reproduction of the ISPS Code. In the next sections the key points of the ISPS Code, the MTSA, the EU’s Authorised Economic Operator and ISO 28000 (Supply Chain Security) are discussed.

10.6.1 ISPS Code The ISPS Code was drawn up in November 2001 by the IMO’s Maritime Safety Committee and its Maritime Security Working Group in little over a year following the adoption of resolution A.924(22) on the review of measures and procedures to prevent acts of terrorism which threaten the security of passengers and crews and the safety of ships, (ISPS Code 2003: iii). The ISPS Code was adopted on 12 December 2002 by the Conference of Contracting Governments to the International Convention for the Safety of Life at Sea (SOLAS) 1974 when the existing Chapter XI was amended and re-identified as Chapter XI-1 and a new Chapter XI-2 was adopted on special measures to enhance maritime security. Amendments were also made to the existing SOLAS Chapter V. The ISPS Code is divided into two Parts, A and B. Part A establishes the new international framework of measures to enhance maritime security by introducing mandatory provisions while Part B provides non-compulsory guidance on the procedures to be undertaken in order to comply with the provisions of Chapter XI-2 and of Part A of the ISPS Code (Bichou 2004). Certain countries, such as the European

166

R. Talas

Union under EC Regulation 725/2004, have made compliance with Part B of the ISPS Code mandatory through legislation (Dekker and Stevens 2007; Anyanova 2007). The objectives of the ISPS Code are to enable the prevention and detection of security threats within an international framework; to establish roles and responsibilities; to enable the collection and exchange of security information; to provide a methodology for assessing security and to ensure that adequate security measures are in place. The objectives are to be achieved by the designation of appropriate personnel on each ship, in each port facility and in each shipping company, to prepare and to put into effect the approved security plans. The ISPS Code is applicable to vessels engaged in international trade including passenger vessels with 12 or more berths, cargo vessels of 500 gross tonnes and over, mobile offshore drilling units and all port facilities serving such vessels engaged in international trade. The ISPS Code definition of responsibilities determines the responsibilities of Contracting Governments, ship operators and port facility operators. Contracting Governments must identify the Designated Authority (for port facilities), set security levels, coordinate with port facility security officers and issue and inspect International Ship Security Certificates. In turn, ship and port facility operators must designate the appropriate security officers and develop and implement the security plans. In addition, each Contracting Government (or a Recognised Security Organisation appointed by the Designated Authority) must carry out a Port Facility Security Assessment (PFSA) which will include the following elements (ISPS Code Part A.15.5): • Identification and evaluation of important assets and infrastructure it is important to protect; • Identification of possible threats to the assets and infrastructure and likelihood of their occurrence, in order to establish and prioritise security measures; • Identification, selection and prioritisation of countermeasures and procedural changes and their level of effectiveness in reducing vulnerability; and • Identification of weaknesses, including human factors, in the infrastructure, policies and procedures. Each Contracting Government (or Recognised Security Organisation appointed by the Designated Authority) must then prepare a Port Facility Security Plan (PFSP) which addresses at least the security measures listed in ISPS Code Part A.16.3. Against the background of the security measures described above, all port facilities and the relevant vessel types must also operate at one of three security levels, determined by their Contracting Government. Security level 1 is the level for which minimum appropriate protective security measures shall be maintained at all times. The following security-related activities in a port facility are mandated by the ISPS Code (Part A.14) at security level 1: • • • •

Ensuring the performance of all port facility security duties; Controlling access to the port facility; Monitoring of the port facility, including anchoring and berthing areas; Monitoring restricted access areas to ensure that only authorised persons have access;

10  Port Security

167

• Supervising the handling of cargo; • Supervising the handling of ship’s stores; and • Ensuring that security communication is readily available. At security level 2 additional protective measures, as detailed in the PFSP shall be implemented and maintained for a period of time as a result of a heightened risk of a security incident. At security level 3 further specific protective measures, as detailed in the PFSP shall be implemented and maintained for a limited period of time when a security incident is probable or imminent, although it may not be possible to identify the specific target (Jones 2006, p128). Following the approval of the PFSA and the PFSP, including any amendments, the Statement of Compliance of a Port Facility is then issued by the Contracting Government (ISPS Code, B.16.54) for a period not exceeding five years.

10.6.2 Maritime Transportation Security Act (MTSA) The MTSA is the US equivalent of the ISPS Code and in common with its international counterpart, was implemented on 1 July 2004. It shares many commonalities with the ISPS Code but goes much deeper into specific requirements of securing the US maritime infrastructure (Jones 2006: 99). The MTSA prescribes the formation of: a national maritime security plan and advisory committee; area maritime transportation security plans and committees; vessel and (port) facility security plans; security incident response plans; the appointment and training of security personnel; and the development of specific sanctions against those who fail correctly to implement the Act. In line with the ISPS Code, the MTSA also establishes the three levels of security. Furthermore, the MTSA introduces additional security initiatives, the most significant of which are the Container Security Initiative (CSI) and the Customs-Trade Partnership Against Terrorism (C-TPAT).

10.6.3 Container Security Initiative (CSI) The Container Security Initiative was launched in 2002 with 20 of the world’s largest container terminals and forms part of the US MTSA. By June 2003, 23 ports representing at least 60% of container imports to the US had signed CSI agreements. In 2006, 43 ports with approximately 75% of cargo containers destined for US ports were part of the CSI scheme (Jones 2006:101). By September 2007 there were 55 CSI ports worldwide and in 2009 there were over 60 ports that were part of the scheme.CSI addresses the threat to border security and global trade posed by the potential for terrorist use of a maritime container to deliver a weapon. CSI proposes a security regime to ensure all containers that pose a potential risk for terrorism are identified and inspected at foreign ports before they are placed on vessels destined

168

R. Talas

for the US. The US Customs and Border Protection Agency (CBP) has stationed multidisciplinary teams of US officers from both CBP and Immigration and Customs Enforcement (ICE) to work together with host foreign government counterparts. Their mission is to target and pre-screen containers and to develop additional investigative leads related to the terrorist threat to cargo destined to the United States. The pre-screening of containers is assisted by the introduction in December 2002 of the Advanced Manifest Rule, or 24 Hour Rule. Through CSI, CBP officers work with host customs administrations to establish security criteria for identifying high-risk containers. Those administrations use non-intrusive inspection (NII) and radiation detection technology to screen high-risk containers before they are shipped to US ports. CSI, a reciprocal program, offers its participant countries the opportunity to send their customs officers to major US ports to target ocean-going, containerised cargo to be exported to their countries. Likewise, CBP shares information on a bilateral basis with its CSI partners. Japan and Canada currently station their customs personnel in some US ports as part of the CSI program.

10.6.4 C-TPAT, Customs-Trade Partnership against Terrorism C-TPAT is a joint government-business initiative to build cooperative relationships that strengthen overall supply chain and border security. Central to the security vision of C-TPAT is the core principle of increased facilitation for legitimate business entities that are compliant traders. Only importers and carriers based in the US were initially eligible to participate in the programme and one of its main motivations is to protect US borders from terrorist attacks occasioned by goods entering the country.

10.6.5 European Union Authorised Economic Operator The EU’s Authorised Economic Operator (AEO) is a voluntary security initiative which is designed to reflect the US C-TPAT security initiative. Those eligible to apply for AEO membership include manufacturers, importers, exporters, brokers, carriers, consolidators, intermediaries, ports, airports, terminal operators, integrated operators, warehouses and distributors within the EU. AEOs are able to benefit from facilitations for customs controls or simplifications for customs rules or both, depending on the type of AEO certificate. There are three certificate types: • Customs Simplifications: AEOs are entitled to benefit from simplifications provided for under the customs rules; • Security and Safety: AEOs are entitled to benefit from facilitations of customs controls relating to security and safety at the entry of the goods into the customs territory of the Community, or when the goods leave the customs territory of the Community; and

10  Port Security

169

• Customs Simplifications/Security and Safety: AEOs are entitled to benefit from both simplifications provided for under the customs rules and from facilitations of customs controls relating to security and safety.

10.6.6 ISO 28000, Supply Chain Security The International Standards Organisation has developed security standards aimed at becoming the global supply chain security standard program. It is intended to act in concert with and complement other contemporary transport and supply chain security initiatives. ISO 28000 is applicable to all sizes and types of organisations at any stage of production or anywhere in the supply chain. It is a voluntary Standard which may be certified by third party auditing companies to demonstrate that a company has taken a proactive and responsible approach to security by establishing a security management system that assures compliance with a documented security management policy. ISO 28000 is based on the format adopted by ISO 14000 owing to its risk-based approach to management systems and is based on the methodology known as Plan-Do-Check-Act: • Plan: establish the objectives and processes necessary to deliver results in accordance with the organisation’s security policy; • Do: implement the process; • Check: monitor and measure processes against security policy, objectives, targets, legal and other requirements, and report results; and • Act: take actions to continually improve performance of the security management system. ISO 28000 requires an organisation to assess the security environment in which it operates to determine if adequate security measures are in place and to identify and comply with relevant regulatory requirements. If security needs are identified by this process, the organisation should implement mechanisms and processes to meet these needs. The security management system clearly defines the strategic security objectives of the organisation and puts into effect constant monitoring with a focus on continual improvement. The purpose of the Standard is to provide a documented security management system which identifies security threats, assesses the risks and controls and mitigates their consequences. This process is continual so that the system can be effectively maintained and improved. The scope of the security management system needs to be defined by detailing the physical area covered by the system and the operations that are undertaken within this area. Any outsourced processes should be considered and controlled where necessary. It was on one day in August 2012 that professional thieves broke into the offices of DP World in Antwerp and inserted USB drives into some of the company’s computers Robertson and Riley (2015). The purpose of the USB drives was to record and transmit the computer keyboards’ keystrokes and to take screen shots of shipping documentation related to the movements of containers within the DP

170

R. Talas

World port facility. This data was destined for the organised criminals involved in the smuggling of drugs into the port of Antwerp and whose earlier attempts at stealing container logistics data through flooding the port company’s offices with malware had been halted when new firewalls were installed on the discovery of the cybersecurity breaches (Mulrenan 2014).

10.7 Case Study: Cybersecurity Attacks in the Port of Antwerp However, this was not just a simple case of a break-in to steal the vital PIN-codes which consignees used to collect their inbound containers from the container terminal but a more complex story of Turkish drug dealers and two coerced Belgian computer experts. Robertson and Riley (2015) describe in detail how Davy Van de Moere and Filip Maertens, who had met aged 14 and had eschewed football as teenagers in favour of computer programming and were eventually hired by Ernst & Young in order to audit computer networks. While the pair initially followed separate careers, they remained close and helped each other in their respective business areas. In the summer of 2011 Maertens was looking for an investor for his start-up company for smartphone datamining and was introduced to a Turkish trader with an interest in technology, Orhan Adibelli. Adibelli was a fruit trader using a company called Ogear Trading. In December 2011 Adibelli decided not to invest in Maertens’ start-up despite months of discussions and introduced him to Ahmet Okul, another Turk who ran a shop selling spying equipment in the Dutch town of Arnhem. In the hope that Adibelli might still invest in his company, Maertens foolishly began to give Okul lessons in computer hacking. From thereon the exact involvement of how Van de Moore and Maertens interacted with the two Turks is not clear, according to police reports (Robertson and Riley 2015) , but what is apparent is that they suffered threats and physical violence in order to supply the electronic eavesdropping equipment that were used to harvest container PIN numbers and screen shots. The equipment included the various ‘pawnies’ or surveillance devices and a number of Wi-Fi keyloggers (small devices installed in USB ports to record keystrokes) which were installed on the computers in DP World’s offices. In autumn 2011 Abidelli’s apartment in Rotterdam was burgled and the police were called. They found a number of signal-jamming devices, key-logging software and listening equipment as well as a bill of lading for a seized shipment of cocaine from South America and meeting notes which linked to Maertens. The presence of the illicit surveillance equipment came to the attention of Antwerp’s port officials in the summer of 2012 when a Swiss shipper started to complain about the computers being slow as typed words were not instantly appearing on the screen. Technicians uncovered the presence of a number of surveillance devices on the computer network, which included pawnies and Wi-Fi keyloggers. According to police, the organised criminals targeted Mediterranean Shipping Company as well as the Chilean shipping company Compañía Sudamericana de

10  Port Security

171

Vapores (CSAV) during that period. It is believed that the over time a number of unique container PIN numbers used by legitimate consignees to collect their containers from the port were sold by Abidelli to organised criminals who used the containers to smuggle drugs from South America (Robertson and Riley 2015).

10.8 Cybersecurity in Ports The case study above reveals some interesting gaps in the port’s cybersecurity. Boyes et al. (2016) describe the five sets of port assets affected by cybersecurity: • • • • •

Port control and administration; Security control and administration; Customs and border control; Cargo reception, handling and storage; and Supply chain facilities.

By hacking into the port control and administration, the organised criminals were able to bypass the security measures in place to tackle smuggling by manipulating the cargo reception, handling and storage of containers. Furthermore, the Boyes et al. (2016, p. 16) describe how “the failure of an organisation to appreciate the structure and operation of its assets, systems and associated business processes can result in accidental or inadvertent exposure of sensitive systems, applications or data to unauthorised users.” This is exactly the type of cybersecurity breach which occurred in the port of Antwerp. As a result of these cybersecurity breaches, DP World banned all use of USB memory sticks and other USB devices in all of its port facilities.

References Anyanova E (2007) The EC and enhancing ship and port facility security. J Int Com Law Technol 2:25 Benamara H, Asariotis R (2007) ISPS Code implementation in ports: costs and related financing. In: Bichou K, MGH B, Evans A (eds) Risk management in port operations, logistics and supply chain security. Informa, London Bergen PL (2014) Drone wars. Cambridge University Press, Cambridge Berger S (2015) Mexico drug trafficking: drone carries 28 pounds of heroin across border to US.  IB Times. Retrieved 04/07/2016, from http://www.ibtimes.com/ mexico-drug-trafficking-drone-carries-28-pounds-heroin-across-border-us-2051941 Bichou K (2004) The ISPS code and the cost of port facility compliance: an initial logistics and supply chain framework for port security assessment and management. J Marit Econ Logist 6:322–348 Bichou K, Evans A (2007) Maritime security and regulatory risk-based models: review and critical analysis. In: Bichou K, MGH B, Evans A (eds) Risk management in port operations, logistics and supply chain security. Informa, London

172

R. Talas

Boyes H, Isbell R, Luck L (2016) Code of practice: cyber security for ports and port systems. Department for Transport, London Bueger C (2015) What is maritime security? Mar Policy 53:159–164 Christopher M (2005) Logistics and supply chain management, 3rd edn. FT Prentice Hall, Harlow Clark RM, Hakim S (2017) Protecting Critical Infrastructure at the State, Provincial, and Local Level: Issues in Cyber-Physical Security. In: Clark R, Hakim S (eds) Cyber-Physical Security, Protecting Critical Infrastructure, vol 3. Springer, Cham Dedrone (2016) Why do you need a drone detection system? Available at: http://www.dedrone. com/en/application/reasons-why-drone-detection. Accessed 24 Aug 2016 Dekker S, Stevens H (2007) Maritime security in the European Union  – empirical findings on financial implications for port facilities. Marit Policy Manag 34(5):485–499 Farrow S, Shapiro S (2009) The benefit-cost analysis of security focussed regulations. J Homeland Secur Emerg Manag 6(1), Article 25 Greenberg M, Chalk P, Willis H, Khilko I, Ortiz D (2006) Maritime terrorism: risk and liability. RAND Corporation Centre for Terrorism and Risk Management Policy, Santa Monica Huang H (2010) Autonomy levels for unmanned systems. The national Institute of Standards and Technology (NIST) International Ship and Port Facility Security Code (2003) International Maritime Organisation Jones S (2006) Maritime security: a practical guide. Nautical Institute Juttner U, Peck H, Christopher M (2003) Supply chain risk management: outlining an agenda for future research. Int J Log Res Appl 6(4):199–213 Mangan J, Lalwani C, Fynes B (2008) Port-centric logistics. Int J Logist Manag 19(1):29–41 Mullany A (2015) Drone sparks alarm in Goulburn’s maximum-security prison. The Daily Telegraph. Retrieved 04/07/2016, from http://www.dailytelegraph.com.au/ news/nsw/drone-sparks-alarm-in-goulburns-maximum-security-prison/news-story/ acd1867efc7f3e62851da50859942165 Mulrenan J (2014) How hackers attacked the Port of Antwerp, TradeWinds, August 1, 2014. http://www.tradewindsnews.com/weekly/342065/How-hackers-attacked-the-Port-of-Antwerp. Accessed 21 Feb 2015 Nincic D (2005) The challenge of maritime terrorism: threat identification, WMD and regime response. J Strateg Stud 28(4):619–644 OECD (2003) Security in maritime transport: risk factors and economic impact. Maritime Transport facility Committee, Directorate for Science, Technology and Industry, OECD, Paris Parfomak P, Frittelli J (2007) Maritime security: potential terrorist attacks and protection priorities. CRS Report for Congress, Washington, DC Peck H (2006) Reconciling supply chain vulnerability, risk and supply chain management. Int J Log Res Appl 9(2):127–142 Pinto CA, Talley WK (2006) The security incident cycle of ports. Marit Econ Logist 8:267–286 Raymond CZ (2006) Maritime terrorism in Southeast Asia: a risk assessment. Terrorism Polit Violence 18(2):239–257 Robertson J, Riley M (2015) The Mob’s IT Department. How two technology consultants helped drug traffickers hack the Port ofAntwerp. Bloomberg. Retrieved online 13 July 2019.Available at: https:// www.bloomberg.com/graphics/2015-mob-technology-consultants-help-drug-traffickers/ Russon M (2013) Drones used to deliver drugs to prisoners in Canada. Retrieved 04 July 2016, from http://www.ibtimes.co.uk/drones-delivers-drugs-prison-canada-contraband-inmates-526190 Synergia (2016) Counter-UAV solutions. White paper Talas R (2010) The efficient relationship between residual security risk and security investment for maritime port facilities. Unpublished Doctoral thesis, City University London Talas R (2016) Transport security. In: Mangan J, Lalwani C (eds) Global logistics and supply chain management. Wiley Zomer G (2019) Supply chain security. In: Zijm H, Klumpp M, Regattieri A, Heragu S (eds) Operations, logistics and supply chain management, Lecture notes in logistics. Springer, Cham

Chapter 11

The Successes and Struggles of Multilateralism: African Maritime Security and Strategy Timothy Walker

Abstract  Cooperation between states in multilateral institutions is acknowledged as one of the key ways to address common maritime security challenges. The transnational nature of crimes and threats at sea constrains the ability of states and agencies to cope and respond. A number of multilateral treaties and conventions play an important role in addressing these maritime security challenges by encouraging cooperation and the enforcement of common norms and rules. Research on multilateral cooperation regarding maritime security at the regional level is well advanced in both South East Asia and Europe, yet insufficient attention has been paid to similar multilateral cooperation  initiatives in the African maritime security context. African multilateral cooperation involves some of the most complicated ongoing  efforts in both establishing and consolidating maritime security  cooperation between states. A detailed case study of African Union’s efforts to bring together its member states to address the maritime security challenges facing them helps illustrates some of background and theory, as well as successes and struggles, and contributes  to a richer  understanding of how multilateral cooperation influences and improves maritime security. Keywords  Maritime security · Blue economy · Maritime strategy · Multilateralism · African maritime domain · Piracy · African Union

11.1 Introduction The increasingly complex nature of human activity at sea requires stakeholders, primarily states, cooperate to achieve maritime security. History has shown that the seas and oceans are too vast a space for states to attempt to control. Multilateral cooperation anchors successive efforts by  an increasing number of state and T. Walker (*) Institute for Security Studies, Pretoria, South Africa e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Otto (ed.), Global Challenges in Maritime Security, Advanced Sciences and Technologies for Security Applications, https://doi.org/10.1007/978-3-030-34630-0_11

173

174

T. Walker

non-­state actors, particularly since the end of the Second World War, to inculcate and implement  common maritime security strategies and plans to protect  coastal communities, seafarers, and the shipping upon which global commerce and trade depends. The most notable success has been the creation, adoption and enforcement of the United Nations Convention on the Law of the Sea (UNCLOS), which is now complemented by a number of complementary frameworks and conventions. In 2014, during the commemoration of the twentieth anniversary of its entry into force the former Secretary-General of the United Nations, Ban Ki-Moon, described UNCLOS as “one of the most significant and visionary multilateral instruments of the twentieth century” (United Nations 2014, p. 3). Against this background this chapter will appraise the role that multilateral cooperation plays in maritime security. The is comprised of two sections, the first briefly elucidates some of the key principles that anchor multilateral cooperation and then describes some of the notable examples of this regarding maritime security. The section provides a definition for two concepts, maritime security and the African maritime domain, to show why they are key for understanding this issue in an African context. The second part of the chapter provides a detailed case study of the ongoing efforts of the African Union (AU) to establish viable multilateral maritime security institutions in and around Africa. Multilateral cooperation for enhanced maritime security is especially significant at the sub-regional level and for many African countries. Since 2009 the African Union (AU) and Regional Economic Communities (RECs) have created a number of instruments such as the 2050 Africa’s Integrated Maritime Strategy (2050 AIMS), the African Charter on Maritime Security and Safety and Development in Africa (Lomé Charter) and the Revised African Maritime Transport Charter (RAMTC). While African states have been crucial contributors and signatories to many multilateral treaties and conventions such as UNCLOS, implementation of these complementary instruments has proven complicated. The prospects for the  creation of effective, accountable and inclusive African maritime security and maritime law enforcement institutions that can collectively reduce violence, while promoting sustainable development, must be viewed against the backdrop of the successes and struggles of multilateral cooperation if we are to appreciate how they complement the international maritime law’s rich framework.

11.1.1 The Success and the Struggle of Multilateralism Multilateralism, in International Relations (IR) theory, is typically understood as the pursuit of common or mutually beneficial goals or outcomes by three or more states, taking place over time and in an international setting (such as within an organisation). Bischoff (2008) suggests that they key to successful multilateral governance is that it results in predictable relations within regions and between countries, anchored by rules and their enforcement. John Ruggie’s (1992) notion of

11  The Successes and Struggles of Multilateralism: African Maritime Security…

175

multilateralism provides the most useful optic to understand offers the best framework for understanding how and why states engage in multilateral actions. Interaction is anchored by the principles of generalised principles of conduct and indivisibility, whereby states are not differentiated or treated varyingly, and diffuse reciprocity, whereby states are prepared to compromise or defer receiving their desired benefits from interaction in favour of longer-term returns. It is important to note that the definition of multilateralism as commonly used and applied is state-centric. As Robert Cox (1992) has observed, “It is limited to relations among states through diplomatic channels or inter-state organisations”. This leads to three caveats in the analysis – Firstly a solely state-centric discussion of African maritime security does not explore the myriad ways that state and private industry and interests are increasingly cooperating. For instance, it has not simply been states and their navies who have contributed to the fight against piracy off the coast of Somalia, as “multilateral cooperation efforts in the region have involved Governments, regional organisations, intergovernmental organisations as well as the shipping industry” (United Nations Conference on Trade and Development (2014, p.  1). Other multilateral platforms such as the Shared Awareness and Deconfliction (SHADE) and the Contact Group for Piracy off the Coast of Somalia (CGPCS) are good examples of cooperation in innovative settings (Tardy 2014). Secondly, a state-centric focus must acknowledge that most African states possess limited maritime security and governance capacity. While many African states are coastal or littoral, few can be described as maritime powers and this means they are sometimes overlooked (Vogel 2009). Apart from port security and monitoring fisheries, maritime governance and  development has tended to be a low priority (Ncube and Baker 2011). Thirdly, there is a growing consensus that multilateralism is in crisis, both as an idea and in practice. This concern was eloquently stated by António Guterres, current Secretary-General of the United Nations in the 2018 report, who implored the world to remember that “as today’s problems grow ever more global, multilateralism is more important than ever.” (United Nations 2018a). This position is widely promoted and expressed by the AU, such as in the N’djamena Declaration on the Emerging Global Order, Multilateralism and Africa after the 8th Annual Retreat of African Union Special Envoys and Mediators on the Promotion of Peace, Security and Stability in October 2017. One of the major critiques of multilateralism concerns  its impact upon sovereignty. As Martin (1992) has observed, “states sacrifice substantial levels of flexibility in decision making and resist short-term temptations in favour of long-term benefit”. Paul Wambua (2009) presciently notes  how “maritime affairs involve cooperation to a degree that does not fit in easily with the staunchly defended concepts of sovereignty and jurisdiction. However, issues of maritime governance transcend national, geographical and political boundaries.” Therefore, while acknowledging that common threats exist is often the first and easiest step, moving towards a sustainable and long-term solution will involve decisions about pooling sovereignty, adopting consensus decision-making, and perhaps vesting or granting some decision-making power to supranational groups.

176

T. Walker

11.1.2 The United Nations, Multilateral Cooperation and Maritime Security The United Nations and the UNCLOS provides the frameworks for the emergence of multilateral instruments and institutions. Even states that are  distantly connected  in a geographical sense can  seek to improve mutual security by acting in concert with those who are similarly affected or interested (Caporaso 1992). The United Nations Convention of the Law of the Sea (UNCLOS), was the outcome of the almost decade-long (1973 and 1982) third United Nations Conference on the Law of the Sea (UNCLOS III). One of the most significant outcomes of UNCLOS was that it defined new jurisdictional maritime zones, such as the territorial sea, the exclusive economic zone (EEZ) and the high seas. These spatial delineations form the basis for maritime governance and relations between states regarding their maritime rights and obligations, freedoms and opportunities. The extension of the territorial waters of a state  out to 12 nautical miles reflected an increased interest in asserting sovereignty at sea, as did the new EEZ. In addition, UNCLOS provisions affect scientific research, key principles of navigation and innocent passage and how states can peacefully resolve disputes that arise over their interpretation of the treaty. UNCLOS is supplemented or accompanied by other regimes, institutions, treaties and conventions that play an important role in improving maritime security by compelling state parties to take the necessary measures to establish their jurisdiction and domesticate into their national legislation. This includes the International Convention for Safety of Life at Sea (SOLAS) of 1974/1988, the International Ship and Port Facility Security Code (ISPS code) – an important amendment to SOLAS through Chapter XI-2 that came into force in 2004 to reduce the risk of terrorism and enhance maritime security on board ships and in ports – and the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) that became effective in 1992 and whose 2005 Protocols broadened the number off offences and crimes it covered (Blede 2014). Environmental concerns such as discharges from ships are also covered by the International Convention on the Prevention of Pollution from Ships of 1973, which was modified with a Protocol in 1978 – known as MARPOL and countering the illicit traffic in narcotic drugs and psychotropic substances is covered by the 1988 United Nations Convention. The Agreement on Port State Measures (PSMA) targets Illegal, Unreported and Unregulated (IUU) fishing by preventing vessels engaged in IUU fishing from using the ports of signatory states. A number of UN Security Council and General Assembly Resolutions have also been adopted to provide the necessary measures for fighting piracy and armed robbery at sea. Recent debates have explored expanding this focus to other transnational maritime crimes (Walker and Reva 2019). At the time of writing, a series of negotiations on governing ‘areas beyond national jurisdiction’ (ABNJ) are taking place at the UN headquarters in New York, with important contributions from Africa (United Nations 2018b). The participation

11  The Successes and Struggles of Multilateralism: African Maritime Security…

177

of African countries/governments in these negotiations is important as this demonstrates that there is a preparedness and interest in engaging in multilateral institutions to produce commonly agreed upon and beneficial outcomes for African maritime security. It is noteworthy too that common interests in fighting transnational maritime crime have been brought to the attention of the UN Security Council (UNSC) by African members. Equatorial Guinea prepared a concept note for a Security Council ministerial debate on the theme “Transnational organised crime at sea as a threat to international peace and security”. The three non-permanent African members (Equatorial Guinea, Ethiopia and Cote d’Ivoire, with South Africa replacing Ethiopia in 2019) are making the UNSC the leading forum for reflecting on the impact of crimes at sea, and determining how best to promote and support the fight against maritime crimes. Enhanced maritime security coordination between the UN and AU therefore presents an opportunity for strengthen African countries in the fight against emerging transnational maritime crimes (Wambua 2015).

11.2 Multilateral Cooperation in the Fight Against Piracy The value of multilateral cooperation is widely regarded as central in the intense international effort since 2008 to combat and overcome the threat piracy and armed robbery at sea off the coast of Somalia and in the Western Indian Ocean posed to shipping and commerce. It arguably became the most high-profile maritime security threat to have proliferated in, and spread outside of, the African maritime domain. A large number of states identified and acted upon a common interest in securing the area so that international shipping could proceed without threat or hindrance. This was enabled by Article 100 of UNCLOS, which concerns the obligation of states to cooperate in the repression of piracy. The article states that “all States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.” This grants them universal jurisdiction the ocean areas outside of a state’s territorial waters, in other words on the High Seas, to seize vessels and aircraft either involved in carrying out, or having fallen victim to, acts of piracy. The rise of piracy off the coast of Somalia prompted massive interest and policy involvement in developing effective maritime security responses (Hansen 2009; Murphy 2010; Struett et al. 2013; Vreÿ 2009). Initially, the solution to piracy was largely discussed as securing vessels and shipping from piracy through patrolling, deterrence and prosecution of pirates (Till 2013; Vreÿ 2009). The focus on piracy, to the exclusion of other maritime crimes and threats, such as illegal fishing, that affected the security of  African  littoral communities and  countries, meant  that resources and capacity were concentrated on  the fight against just  one maritime crime (Percy 2016).

178

T. Walker

While the United Nations has been central to establishing and consolidating counter-piracy frameworks, it was unable to set wider  parameters for necessary measures. UN Security Council Resolution 1838, for instance, called upon states “interested in the security of maritime activities to take part actively in the fight against piracy on the high seas” (UN Security Council 2008a). With the benefit of hindsight, this provided a chance to emphasise the importance of capacity building with African stakeholders for tackling the root causes of piracy. Resolution 1838 was widely adopted as the basis for action. This might suggest that the interests of international actors in the region took precedence over those of regional countries. There can lead to a sustainability problem if policies rely on external influence to deter or prevent maritime crimes such as piracy. One of the key multilateral institutions established to help coordinate the multinational fight against piracy and to  ensure there is no resurgence is  the Contact Group for Piracy off the Coast of Somalia (CGPCS). This group was established within the context of UN Security Council Resolution 1851 (2008b), and has demonstrated that there is a willingness among participating states and organisations to cooperate in innovative and often informal ways to suppress piracy and share information  (UN Security Council 2008b). This also occurs without some of the more formal attributes associated with multilateral institutions such as a secretariat, decision-making procedures, legal framework and budget (Tardy 2014, p. 9). This group is now seeking to evolve to be better able to facilitate cooperation between members in the fight against broader maritime security threats, akin to the fight against wicked problems. Here African states and organisations have taken the lead, with assistance from international agencies such as the International Maritime Organisation (IMO). On 25 June 2013, the Code of Conduct concerning the Prevention of Piracy, Armed Robbery against Ships and Illicit Maritime Activity in West and Central Africa (the Yaounde Code of Conduct) was authored and signed by 22 States, signalling their intention to cooperate to the fullest possible extent in the prevention and repression of maritime crimes including Whereas beforehand piracy and armed robbery at sea was widely regarded as the primary threat to African and international peace and security – given 19 UN Security Council Resolutions have been issued concerning piracy off the coast of Somalia in 10 years (the most recent being 2442 in 2018), as well as 2 in regards to piracy in the Gulf of Guinea – other maritime crimes are now threatening insecure and vulnerable communities and states. A number of additional points must be in order to understand why multilateral cooperation between African states in regards to maritime security has taken the direction that can be observed. Firstly, the fight piracy is not the foremost concern for many afflicted African littoral states and organisations. There is no consensus yet. Some African maritime strategies such as the ECOWAS Integrated Maritime Strategy (EIMS), include the fight against piracy as a crucial, but by no means paramount, component. Instead it frames the fight against piracy as part of a broader or comprehensive regional project for combatting all types of maritime crime that have been enabled by the weak presence of states, and lack of law enforcement at sea.

11  The Successes and Struggles of Multilateralism: African Maritime Security…

179

Fishery crimes and destructive fishing practices that could lead to food insecurity and loss of livelihoods and development opportunities is a far more widespread worry. Other organisations however, such as the Southern African Development Community (SADC), adopted regional maritime security strategies that focus on fighting piracy. Unfortunately, the SADC maritime strategy remains confidential although it is described as largely a means of fighting piracy in the Indian Ocean (Blaine and Sinovich 2015). It is also strictly military rather than an integrated strategy that maps how regional security and development policies and priorities could be achieved in a common and mutually beneficial fashion. Secondly, a critical reading highlights the long-standing problems facing maritime security in all of Africa’s ports, harbours, anchorages and territorial waters, especially as the volumes of trade is likely to increase. The requisite regimes, such as the ISPS code have been drawn up and ratified. This raises questions over how best then to support African states and stakeholders with implementation. For instance, while the ISPS is almost exclusively concerned with counter-terrorism measures, it does lead to the securing of ports and harbours through the requirement for regular assessments and the appointment of dedicated port security officials, albeit not for vessels under 500 gross registered tonnes (Klein 2011, p.  306). The ability of port and territorial water authorities to deter and respond to distress calls in their sovereign waters must be improved and supported, which means the security of African ports, harbours and anchorages needs to be researched. Thirdly, the continual emphasis on piracy has been described as a useful pretext for the continued presence of navies in the service of their own national and geostrategic interests, some of which may not be contingent upon engaging with a stronger African multilateral set of institutions. As Lee Willett (2011) has remarked, “piracy is as significant for the international power play surrounding it, as for its direct threat to maritime security”. Other analysts have also suggested that protecting shipping is not the goal, but rather alternate military, political and financial objectives (Singh and Bedi 2016). This is one explanation for the recent establishment of numerous military bases in the Horn of Africa (Fabricius 2018).

11.3 Defining Maritime Security In his 2008 report to the UN General Assembly on developments and issues relating to ocean affairs and the law of the sea, the UN Secretary-general acknowledged that “new and evolving threats require a new vision of collective security in the twenty-­ first century. Today’s threats recognise no national boundaries, are connected and must be addressed at all levels”. In dealing with and mitigating these maritime security challenges, there is only so much that individual states, even powerful ones, can do. Creating maritime security therefore demands effective cooperation at multiple levels and between multiple actors, within the state as well as internationally. Bateman (2011) has usefully defined such challenges as ‘wicked problems’ because

180

T. Walker

their complexity defies simple, national solutions. The absence of consensus over the definition of maritime security does  complicate matters. Klein (2011) has observed the intersubjective nature of the term, pointing out how “maritime security can mean different things to different people”. This point is further developed by Christian Bueger, who has described maritime security as a ‘buzzword’, where multiple (re)definitions mean that actors have read their own interpretations into documents and outputs (Bueger 2015). Somewhat confusingly, this can be seen in the 2050 AIMS and Lomé Charter, which provide two definitions of maritime security despite both being AU instruments. The 2050 AIMS defines maritime security more as an end state but with a more comprehensive scope than is usually encountered, whereby maritime security enhances “sustainable socioeconomic development, the condition that reflects the freedom of public and private entities to conduct legitimate activities such as the exercise of sovereign and jurisdictional rights, resource extraction, trade, transport and tourism, free of threats or losses from illegal acts or aggression, for an integrated and prosperous Africa”  (African Union 2018b). The illegal and aggressive acts listed in 2050 AIMS include a wide range of maritime security threats and transnational organised crimes: illegal arms and drug trafficking; piracy and armed robbery at sea; illegal oil bunkering/crude oil theft along African coasts; maritime terrorism; human trafficking; and illegal, unreported and unregulated (IUU) fishing and overfishing. The Lomé Charter takes a narrower, and arguably more traditional approach, and defines maritime security as “the prevention of and fight against all acts or threats of illicit acts against a ship, its crew and its passengers or against the port facilities, maritime infrastructure, maritime facilities and maritime environment” (African Union 2018c). As guided by Klein, the latter definition accepts that “there has been an expansion of the matters falling under the traditional regulation of criminal offences in offshore areas to include the illegal importation of drugs, illegal fishing, pollution of the marine environment and organised illegal immigration by ship” (Rothwell and Klein 2010, p. 25). In order to both cope and effectively respond to these challenges, African states are increasingly realising that enforcing the law and securing the seas requires dedicated national actions and plans, as well as concerted transnational and multilateral collaboration. Whether obliged by the Lomé Charter, or encouraged by the 2050 AIMS, the provision of a common platform at the AU to deliberate and further develop response mechanisms an institution is held back. African countries are therefore experiencing maritime crimes as wicked problems because they are acutely vulnerable to maritime insecurity. This is because, firstly, the number of crimes threatening them, and against which action is expected, has been expanded, secondly, as we have seen, many possess limited ability to exercise their authority and enforce law in their maritime areas. Finally, the growing sophistication of maritime crimes is complicating these efforts. As was argued before the UN Security Council in February 2019, maritime crimes cannot simply be dealt with unilaterally. The emphasis on common challenges and costs borne by all  therefore show that there is an inherent principle of indivisibility being applied by African states and the AU when considering maritime security.

11  The Successes and Struggles of Multilateralism: African Maritime Security…

181

11.4 Why Is Africa Important? To have an actor such as the AU Commission, or a regional community, coordinate a heterogeneous and diverse set of states and regions of varying degrees of threats, development and maritime interests and consistent with African principles, is a great challenge (Potgieter and Walker 2015). As Murithi has observed, the AU’s role is “complicated by the difficulty of promoting consensus among African states and then maintain that consensus in the face of often divergent national interests” (2010: 193). Coordination is contingent on the acceptance of a number of common concepts that can rally states and align actions towards achieving common goals and objectives – in this case this is increasingly settling around the vision of an African blue economy and expressed in the outputs of the AU. Distinctions are also to be found between regions with different geostrategic orientations, identities, languages and cultures. The North African or Mediterranean littoral countries are often overlooked – usually by focusing on Sub-Saharan Africa. The African continent contains the largest number of states of any continent. Thirty-eight (38) member  states of the AU  are either coastal or island. The easy distinction between littoral or coastal and landlocked (or landly as 2050 AIMS refers to them) is collapsed by the AU, instead seeing no barrier to landlocked country engagement and involvement in the African maritime domain (AMD). The maritime domain, as defined in the AU’s Africa’s Integrated Maritime Strategy 2050 (AIMS 2050), comprises: all areas and resources of, on, under, relating to, adjacent to, or bordering on an African sea, ocean, or African lakes, intra-coastal and inland navigable waterways, including all African maritime-related activities, infrastructure, cargo, vessels and other means of conveyance. It also includes the air above the African seas, oceans, lakes, intra-coastal and inland navigable waterways and to the oceans’ electromagnetic spectrum as well (AIMS 2050 Annex B 2013: 1).

This means that 2050 AIM Strategy includes inland waters and lakes as part of the AMD – bringing in countries that share the Nile River for instance, or surround and share sovereignty over some of the Great Lakes such as Victoria, Tanganyika and Malawi. Secondly, the 17 landlocked countries – the largest number of such countries in the world – are important role payers and maritime security as per the 2050 AIMS definition of the AMD. This implies that all African states must recognise they have a stake in the pursuit of greater maritime security taking place through African multilateral organisations and institutions. Indeed, this can be readily observed in the fact that the most recent signatories to the RAMTC in 2018 are the Central African Republic and Chad, while Ethiopia (2012) and Burkina Faso (2016) have  also ratified the charter (African Union 2019). Many landlocked countries therefore realise that a lack of a coastline is no barrier to involvement in multilateral maritime institutions and that the AU can provide a platform for the pursuit of common or mutual interests. The lack of capacity of most African countries accentuates the ability for criminal activity to easily spread or take root elsewhere. This can threaten the survival and human security of marginalised coastal communities by

182

T. Walker

robbing them of resources and opportunities. This would have then imperilled the creation of viable, long-term security institutions and solutions, while risking an increase in corruption and grievances among communities who bear the brunt of these crimes.  Strengthening institutions that can support  weaker states should also lead to increased security and justice, deterring maritime criminals and thus preventing them from operating in vulnerable areas. As noted by Nmehielle and Pasipanodya, “The AU has sought to help African states begin to benefit economically and socially from the rights they secured through the LOSC and other prior advances in the law of the sea” (Nmehielle and Pasipanodya 2017, p. 52). They go on to describe the 2050 AIMS as “the AU’s flagship policy to advance these goals”. The 2050 AIMS foregrounds its text with the calculation that approximately 90% of Africa’s trade is conducted at sea. It also sees the maritime sector is seen as both relatively under-developed and the source of future jobs and wealth. Maritime security is further recognised as a prerequisite for the sustainable development of maritime resources. Increasingly the maritime security discourse has lauded the impact blue economies might have – “the future of Africa…resides in her blue economy” (African Union 2013a). They stand to benefit from the investment to create blue economies from their maritime assets. This has found currency throughout Africa with the coining of the concept of a “blue economy”. As a result, the AU’s Agenda 2063 10-year implementation plan included blue economies as an aspiration and the Blue Economy will become part of the reformed AU Commission (the AU’s secretariat) in 2021. It is therefore one of the crucial sectors upon which Africa’s future growth and security will depend. The AU Peace and Security Council acknowledged that “the future of Africa, among other sectors, resides in her blue economy, which is a new frontline of Africa’s renaissance” in the final communique of the 387th Peace and Security Council meeting in 2013 (African Union 2013a). As earlier noted, another level of multilateral cooperation at which African states have sought to address security challenges are the RECs. Of these the most notable RECs efforts for member states to adopt are through ECCAS (the ECCAS Protocol on the Strategy to Secure Vital Interests at Sea signed on October 24, 2008  in Kinshasa, DRC), SADC with its Maritime Security Strategy adopted in August 2011 and ECOWAS, which adopted its ECOWAS Integrated Maritime Strategy (EIMS) in 2014. The UN, through Security Council Resolution 2039 of 29 February 2012 urged synergy between the Economic Community of West African States (ECOWAS), the Economic Community of Central African States (ECCAS) and the Gulf of Guinea Commission (GGC) that they cooperate in the development of regional strategy to fight against piracy, armed robbery, and other illicit activities committed at sea (UN Security Council 2012). The Intergovernmental Authority on Development (IGAD) produced a maritime strategy (2015–2030), and has focused on working together with other Southern and Eastern African RECs including the Common Market for Eastern and Southern Africa (COMESA) and the East African Community (EAC), together with the Indian Ocean Commission (IOC) in implementing the European Union’s (EU) Regional Programme for the Promotion of Maritime Security (MASE).

11  The Successes and Struggles of Multilateralism: African Maritime Security…

183

11.5 The African Union and the Implementation of the 2050 AIMS The AU Heads of State and Government in July 2009, at the 13th Ordinary Session of AU Assembly, in Sirte, Libya, conveyed its “serious concern at the mounting insecurity in the maritime spaces around Africa, and Somalia in particular, and strongly condemn all illegal activities in the regions, including piracy illegal fishing and dumping of toxic waste” (African Union 2009). The Assembly is the AU’s supreme decision-making body and is comprised of Heads of State and Government from all of the  member states. It called upon it’s secretariat, the African Union Commission (AUC) to develop “a comprehensive and coherent strategy to combat these scourges” (African Union 2009). This would take the continental response beyond counter-piracy, thereby giving it overall applicability. The AU was the appropriate coordinator and setting for such a move, as few problems at sea would remain unique to one state or region – it suited the AU principle of common (African) solutions for common (African) problems. Nmehielle and Pasipanodya (Nmehielle and Pasipanodya 2017) have observed how the AU “used its convening power to bring African states together to share ideas and expertise and to jointly craft norms on the law of the sea that bring African peoples closer to the productive, equitable and sustainable use of their marine resources for their advancement”. The AU thereafter embarked on years of meetings, workshops and conferences to coordinate efforts among member states and RECS, to produce a comprehensive strategy that was both indivisible and contained generalised principles of conduct  that could achieve consensus and strategic convergence. The Decision of the 15th Ordinary Session of the Assembly held in Kampala, Uganda in July 2010 [Decision Assembly/AU/Dec. 294(XV)] strengthened and supported the AU Commission’s effort to create the continental maritime strategy. The 242nd meeting of the Peace and Security Council (PSC), held on 04 October 2010, also welcomed these efforts and “looked forward to the early development of the African Integrated Maritime Strategy”. The strategy is neither a wholly security, nor development strategy, but tries to bridge the two by identifying the maritime domain as a site in which a broad array of threats, as identified by the strategy, could affect the ability of all member states to grow their economies. States would act cooperatively in the pursuit of greater wealth, which was contingent upon greater overall maritime security, but also according to the principle of diffuse reciprocity. The long time frame of 2050, combined with the inclusion and emphasis on landlocked states and inland waterways and lakes, means that a complex set of bargains and negotiations would be required, and there could be no expectation of immediate rewards. The drafting process was anchored by two conferences of African Ministers Responsible for Maritime-related Affairs, the first taking place on 21 April 2012 and the second on 6 December 2012. During the second conference  the assembled ministers adopted the 2050 AIMS and issued the Addis Ababa Declaration. This proposed the establishment within the AU Commission of a fully-fledged a department for maritime affairs, alongside a High Level College of Champions (HLC2), composed of

184

T. Walker

high profile African leaders that would lobby for the necessary resources for implementation, and called on the AU Commission to develop a plan for the early implementation of the strategy (African Union 2012). This process  had also  been complemented by a High Level African Maritime Cross-sectoral Senior Officials Meeting on 5 December 2012 and five African Maritime Cross-sectoral Experts Workshops, the first meeting took place on 6–7 April 2010 and the fifth and final on 3–4 December 2012 (African Union 2012). Most meetings tended to take place back-to-back with each other. A year’s delay unfortunately occurred between the completion of this process, and the adoption of the 2050 AIMS at the 22nd Assembly of African Union Heads of States and Governments on 30–31 January 2014. The Assembly also endorsed the 2012 Addis Ababa Declaration. A Plan of Action had been adopted, but this quickly fell behind schedule and there was apparently little appetite among member states to implement what it  proposed. As Nmehielle and Pasioanodya went on to explain, “the intent was for AIMS to establish a framework that could galvanise broad interest and support, while leaving goal prioritisation and detailed action plans for later” (Nmehielle and Pasioanodya 2017, p. 55). While the 2050 AIMS was being created, an 2050 AIM Interdepartmental Team was formed in June 2011 under the auspices of the AU Office of the Legal Counsel (OLC). The location of this taskforce was, however considered appropriate at the time given it could play its cross-cutting role in a central location, under the chairperson, close to the top and with access to all departments. The relocation of maritime officials within the AU Commission to the OLC from their previous location under the Peace and Security Department (PSD) was not, sadly, accompanied by the necessary administrative support to allow it to thrive (Engel 2014). Unfortunately, though, it’s removal from the PSD and from greater consideration as part of the African Peace and Security Architecture (APSA) has resulted in a marginalism that officials have struggled to overcome and resolve. One of the major difficulties was attracting the attention of, and attaining sufficient numbers of, participating member states to buy into and legitimise the process (Walker 2017). A Strategic Task Force (STF) was to be the lynchpin at the AU. The STF was mandated by the AU’s Executive Council meeting in 2014  in Malabo, Equatorial Guinea, to be composed of Member States, the AU Commission and the RECs. In response, Member states and organisations such as the RECs had indicated their willingness to be members and develop an implementation plan or roadmap, but at this crucial juncture with adoption still fresh in the memory, this STF only managed to meet once, for an informal deliberation, in July 2015. The concept note for the July 2015 meeting envisioned a 2-day meeting for both considering and adopting Terms of Reference for the STF, resulting in the development of a roadmap for the 2050 AIM Strategy, in conformity with international maritime law. However, as only 7 member states and one REC representative participated, the meeting failed to meet the desired quorum (Walker 2017). Participants instead decided to declare the meeting an open event taking place over a single day, at which outside non-state observers could attend. The STF has met three times since, most recently in August

11  The Successes and Struggles of Multilateralism: African Maritime Security…

185

2018 and has reactivated the process, but a revised plan of action for the implementation of 2050 AIMS has yet to be produced. The inability to convene the STF created a major stumbling block to securing the buy-in of member states into the implementation of the 2050 AIMS Strategy in the years after its adoption. The failure to reach quorum at the July 2015 meeting was indicative of a lack of interest from sufficient numbers of member states and RECs, despite the best efforts of the AU Commission to notify and communicate to member states the importance of participating and thereby shaping the future norms and institutions that would govern maritime matters in Africa. Many technical details concerning institutions remain outstanding, particularly concerning the AMD’s Combined Exclusive Maritime Zones for Africa (CEMZA), which is seen as an essential part of 2050 AIMS. The AMD and it’s CEMZA would result in a common maritime space for Africa, which could  be bedevilled by two issues. Firstly, the large number of unresolved boundary disputes and delimitations in the African maritime domain, which cannot be swiftly resolved given the lack of dispute resolutions mechanisms at the AU and in the RECs (Walker 2015). The Lomé Charter commits states to delimit their boundaries, but this process is likely to take a number of years even if were to be  prioritised. 2050 AIMS also makes the lofty  promise that the CEMZA “will grant Africa enormous crosscutting geostrategic, economic, and political, security and social benefits, as well as minimise the risks of all transnational threats including organised crime and terrorism in Africa” (African Union 2018b, p. 16), however the definition of the AMD, in which the CEMZA will be established, is the cause of some concern and possible indifference. A major challenge is the clash between a more supranational understanding of maritime governance, which unless clarified further, presupposes a renegotiation, as with CEMZA, of sovereignty at sea, with the understanding and practice of sovereignty in Africa. As Nathan (2012) has suggested, the unwillingness to consider building regional (and by implication continental) structures and organisations is due to concerns over sovereignty. While the 2050 AIMS states that the CEMZA was to be established without prejudicing each individual nations’ maritime zones and sovereignty as established by UNCLOS, the lack of supporting published documentation that could clarify the expectations of all signatories, as well as reach a consensus on a way forward consistent with the decisions of the AU Assembly, has likely created enough confusion and consternation to hinder interest in the overall implementation of 2050 AIMS. It is clear that states intend to create and benefit from multilateral institutions (often transnational or multilateral, but leading to supranational ideas), but are not taking many beyond the proposal stage (Møller 2005). This means that while strategies are created with wide participation, they remain poorly implemented and few assessments are carried out that could either identify obstacles or suggest alternative ways of securing greater participation. For instance, 42 AU member states attended the first workshop in 2010, including key maritime states such as Algeria, Nigeria and South Africa. Four RECs – EAC, ECCAS, IGAD and SADC – also attended. The most recent STF meeting in August 2018 continued to draw a considerable

186

T. Walker

number of states (27), but only one REC (COMESA). There has been an inconsistent participation by states and RECs, while the AU Commission has struggled to provide the necessary, and mandatory, platform through convening STF meetings that will produce both the Lomé Annexes and the revised 2050 AIMS Plan of Action.

11.6 Additional AU Multilateral Tools for Promoting African Interests? Three initiatives/additional legal and operational tools, which have sought to promote multilateral cooperation, shall be briefly looked at here. These are the Lomé Charter, the Revised African Maritime Transport Charter, and the Seapower for Africa Symposium. While there is an apparent interest in creating and signing various instruments for multilateral cooperation, the appetite for ratification and implementation has so far been minimal among member states. 2050 AIMS was created soon after the RAMTC, and was supposed to complement and encourage member states to sign and ratify the charter. This was soon followed by another charter – the Lomé Charter. A legally-binding African Charter on Maritime Security and Safety and Development, commonly referred to as the Lomé Charter, was adopted at Extraordinary Summit in Togo in October 2016. The Lomé Charter was drafted as a means of addressing some of the gaps and ambiguities found in the 2050 AIMS and which would commit state parties to action that reinforces responses/strengthening the legal force of other instruments and ensuring their implementation. The STF convened by the AUC for this purpose in 2018, it has instead focused on the annexes of the Lomé Charter, despite assurances that it would be ready soon after the Summit in 2016 (Egede 2017). However, without a major increase in support for creating formal and dedicated maritime elements in the AU itself, the charter could suffer from similar challenges and delays that have prevented the RAMTC from coming into force. Another significant African maritime instrument, the Revised African Maritime Transport Charter (RAMTC), was adopted in 2010 in Kampala. While it was being revised, it was accompanied by the Durban Resolution in 2009 on Maritime Safety, Maritime Security and Protection of the Marine Environment in Africa, by which member states undertook to take all necessary measures to give full effect to international instruments concerning maritime security and recommended all member states to accede to other relevant instruments. Despite implorations to also ratify the RAMTC, it has been overtaken by the recent interest and drive to create the Lomé Charter and finalise its annexes. At the time of writing it has yet to sign and only one state, Togo, has ratified the Charter according to the most recent status list (African Union 2018c). A final maritime security institution worth reflecting upon is the Seapower for Africa Symposium (SPAS). The first SPAS had taken place in 2005 followed by the second in Nigeria in 2006 and the third in South Africa in 2009.

11  The Successes and Struggles of Multilateralism: African Maritime Security…

187

Libya had been requested to host in 2010 and Senegal subsequently took over the mantle and was preparing to host it in 2013 when it was unfortunately cancelled at  short notice. While it  has not been held since, the revival of the SPAS would provide an African-owned and  driven maritime security multilateral cooperative initiative to assist with the implementation of 2050 AIMS and add crucial support to other instruments (South African Navy 2017).

11.7 Conclusion Advances in global maritime security has been made possible by a large number of states adopting, ratifying and implementing/enforcing a range of multilateral instruments and conventions, the foremost of which being the UNCLOS framework. The high level of ratification demonstrates the widespread willingness of states, in regards to maritime security, safety and governance, to develop and enter in to agreements in support of their common interests at sea. As UNCLOS is not security focused, a range of supplementary conventions were created, such as the SOLAS and SUA conventions. When threats such as Piracy and Armed Robbery off the Coast of Somalia became major concerns, states (and other actors such as shipping) created innovate mechanism such as the SHADE and CGPCS to improve their cooperation. Undervalued and explored though, are regional efforts, particularly at the African level. While most African countries are signatories to the various multilateral instruments that anchor maritime security, governance and development and they (as well as the AU) played an important role in their creation, adoption and enforcement, their ability to both implement, and continue cooperating to revise or strengthen strategies and charters is limited. This partly stems from material reasons of insufficient resources and dedicated capacity, but it also stems from some of the problems inherent to some of the principles of multilateral cooperation, especially the idea of diffuse reciprocity and finding the necessary political will to either seek compromises, or too often engage in processes that would take time and resources to resolve, such as maritime boundary disputes. Despite the prescient warning of the final sentence of the 2050 AIMS, that “it will require the utmost political will of Member States”, this political will for multilateralism has not, however, been much in evidence – despite the early promise of the 2050 AIMS or later high points such as the Extraordinary Summit in Lomé. While this is not a unique problem in the maritime environment – as suggested by “African states have not demonstrated a greater interest than the rest of the world in ratifying and implementing those instruments” (Tsamenyi et al. 2017, p. 767), it is likely that governments will continue to struggle, both individually and collectively, to deal with collective maritime issues unless they invest in and strengthen the multilateral instruments they have adopted and endorsed.

188

T. Walker

References African Union (2009) Decision on the report of the Peace and Security Council on its activities and the state of peace and security in Africa Decision [Assembly/AU/Dec.252(XIII)] www. peaceau.org/uploads/assembly-au-dec-252-xiii-e.pdf African Union (2012) Addis Ababa declaration on the 2050 Africa’s integrated maritime strategy (2050 Aim Strategy) AU (DECL/M/II/CAMRMRA/2012). https://au.int/sites/default/files/ newsevents/workingdocuments/27462-wd-declaration_eng.pdf African Union (2013a) Peace and security council 387th meeting at ministerial level, 29 July 2013 Addis Ababa, Ethiopia, PSC/MIN/COMM2(CCCLXXXVII). http://www.peaceau.org/ uploads/psc-387-com-yaounde-summit29-07-2013.pdf African Union (2018a) Celebration of African day of seas and oceans held at the African Union Headquarters in Addis Ababa, May 30, 2018. https://au.int/en/pressreleases/20180530/2018celebration-african-day-seas-and-oceans-held-african-union-headquarters. Accessed 19 Dec 2018 African Union (2018b) 2050 Africa’s integrated maritime strategy (2050 AIMS). https://au.int/en/ documents-38. Accessed 19 Dec 2018 African Union (2018c) African charter on maritime security and safety and development in Africa (Lomé Charter). https://au.int/en/treaties/african-charter-maritime-security-and-safety-anddevelopment-africa-lom%C3%A9-charter. Accessed 19 Dec 2018 African Union (2019) Revised African maritime transport charter. https://au.int/en/treaties/revisedafrican-maritime-transport-charter. Accessed 7 May 2019 Bateman S (2011) Solving the “wicked problems” of maritime security: are regional forums up to the task? Contemp Southeast Asia 33(1):1–28 Bischoff P (2008) Pan-African multilateralism: transformative or disconnected? Politikon S Afr J Polit Stud 35(2):177–195 Blede B (2014) No shortcuts in ship and port security, ISS Today, 7 November 2014. https://issafrica.org/iss-today/no-shortcuts-in-ship-and-port-security. Accessed 19 Dec 2018 Blaine M, Sinovich J (2015) Ensuring the SADC maritime interest through good order at sea. In: Vreÿ F, Mandrup T (eds) Towards good order at sea. Sun Media, Stellenbosch Bueger C (2015) What is maritime security? Mar Policy 53:159–164 Caporaso JA (1992) International relations theory and multilateralism: the search for foundations. Int Organ 46(3):599–632 Cox RW (1992) Multilateralism and world order. Rev Int Stud 18(2):161–180 Egede E (2017) Africa’s Lomé Charter on maritime security: what are the next steps? http://piracystudies.org/africas-lome-charter-on-maritime-security-what-are-the-next-steps/. Accessed 19 Dec 2018 Engel U (2014) The African union, the African peace and security architecture, and maritime security. Afr Secur 7(3):207–227 Fabricius P (2018) AU summit 30: should Africa worry about a growing foreign military presence? ISS Today, 25 January 2018. https://issafrica.org/iss-today/au-summit-30-should-africa-worryabout-a-growing-foreign-military-presence. Accessed 7 May 2019 Hansen SJ (2009) Piracy in the greater Gulf of Aden: myths, misconception and remedies. Norwegian Institute for Urban and Regional Research, Oslo Klein N (2011) Maritime security and the law of the sea. Oxford University Press, Oxford Martin LL (1992) Interests, power, and multilateralism. Int Organ 46(4):765–792 Møller B (2005) The Pros and Cons of subsidiarity: the role of African regional and subregional organisations in ensuring peace and security in Africa. DIIS Working Paper No 2005/4 Murphy MN (2010) Small boats, weak states. In: Dirty money: piracy and maritime terrorism in the modern world. Hurst, London Nathan L (2012) Community of insecurity: SADC’s struggle for peace and security in southern Africa. Ashgate, Farnham

11  The Successes and Struggles of Multilateralism: African Maritime Security…

189

Ncube N, Baker ML (2011) Beyond pirates and drugs. Unlocking Africa’s maritime potential and economic development. Afr Secur Rev 20(1):60–69 Nmehielle V, Pasipanodya T (2017) African Union. In: PHG V, Tsamenyi M (eds) The law of the sea. The African Union and its member states. Juta, Claremont Percy S (2016) Counter-piracy in the Indian Ocean: a new form of military cooperation. J Glob Secur Stud 1(4):270–284 Potgieter J, Walker T (2015) The 2050 African integrated maritime strategy (AIMS): content and progress. In: Vreÿ F, Mandrup T (eds) Towards good order at sea. Sun Media, Stellenbosch Rothwell DR, Klein N (2010) Maritime security and the law of the sea. In: Maritime security: international law and policy perspectives from Australia and New Zealand. Routledge, London Ruggie JG (1992) Multilateralism: the anatomy of an institution. Int Organ 46(3):561–598 Singh C, Bedi AS (2016) War on piracy: the conflation of Somali piracy with terrorism in discourse, tactic and law. Secur Dialogue 47(5):440–458 South African Navy (2017) 2017 standing maritime committee documentation. http://www.navy. mil.za/SMC/2017_documentation.htm. Accessed 19 Dec 2018 Struett MJ, Nance MT, Carlson JD (eds) (2013) Maritime piracy and the construction of global governance. Routledge, London Tardy T (ed) (2014) Fighting piracy off the coast of Somalia: lessons learned from the Contact Group. European Union Institute for Security Studies Report 20 Till G (2013) Seapower: a guide for the twenty-first century, 3rd edn. Routledge, London Tsamenyi M, Ali K, Kaye S (2017) Conclusion. In: Vrancken PHG, Tsamenyi M (eds) The law of the sea. The African Union and its member states. Juta, Claremont United Nations (2014) Report of the twenty-fourth meeting of states parties of the United Nations Convention on the Law of the Sea, (SPLOS/277). https://undocs.org/SPLOS/277. Accessed 31 May 2019 United Nations (2018a) Multilateralism: the only path to address the world’s troubles, signals Guterres, UN News. https://newsunorg/en/story/2018/08/1017012. Accessed 19 Dec 2018 United Nations (2018b) Delegates say new marine biodiversity treaty must respect jurisdiction of coastal states over their continental shelf, as intergovernmental conference continues, UN Press Release 5 September 2018. https://wwwunorg/press/en/2018/sea2077doc.htm. Accessed 19 Dec 2018 UN Security Council (2008a) Security council resolution 1838 [on acts of piracy and armed robbery against vessels in territorial waters and the high seas off the coast of Somalia], 7 October 2008, S/RES/1838 (2008). https://www.refworld.org/docid/48ef651f2.html. Accessed 19 Dec 2018 UN Security Council (2008b) Security council resolution 1851 [on fight against piracy and armed robbery at sea off the coast of Somalia], 16 December 2008, S/RES/1851 (2008). https://www. refworld.org/docid/4952044e2.html. Accessed 14 Feb 2020 UN Security Council (2012) Security council resolution 2039 [on acts of piracy and armed robbery at sea off the coast of the States of the Gulf of Guinea], 24 May 2012, S/RES/2039 (2012). https://www.refworld.org/docid/4fbe210f2.html. Accessed 14 Feb 2020 United Nations Conference on Trade and Development (2014) Maritime piracy (Part II): an overview of the international legal framework and of multilateral cooperation to combat piracy – studies in transport law and policy – 2014 (No.2) (UNCTAD/DTL/TLB/2013/3) 19 Aug 2014 Vogel A (2009) Navies versus Coast Guards: defining the roles of African maritime security forces. Africa Security Brief 2. Africa Centre for Strategic Studies, Fort McNair Vreÿ F (2009) Bad order at sea: from the Gulf of Aden to the Gulf of Guinea. Afr Secur Rev 18(3):17–30 Walker T (2015) Why Africa must resolve its maritime boundary disputes. Institute for Security Studies Policy Brief 80 Walker T (2017) Reviving the AU’s maritime strategy. Institute for Security Studies Policy Brief 96

190

T. Walker

Walker T, Reva, D (2019) Promising signs of Africa’s global leadership on maritime security, ISS today, 19 February 2019. https://issafrica.org/iss-today/promising-signs-of-africas-globalleadership-on-maritime-security. Accessed 14 Feb 2020 Wambua PM (2009) Enhancing regional maritime cooperation in Africa: the planned end state. Afr Secur Rev 18(3):45–59 Wambua PM (2015) UNCLOS and good order at sea: a normative framework. In: Vreÿ F, Mandrup T (eds) Towards good order at sea. Sun Media, Stellenbosch Willett L (2011) Pirates and power politics. RUSI J 156(6):20–25

Chapter 12

The Role of Navies in the Contemporary Era Francois Vreÿ and Mark Blaine

Abstract  Navies remain primary political instruments of military coercion operating on and from the sea. In essence, navies exist to conduct naval warfare and are accordingly trained and equipped. Navies also experience constant pressures to respond to political demands to do more than warfighting, and these pressures compel navies as political instruments of policy to respond. As opposed to shedding warfighting roles, navies as flexible entities rather migrate along their role and task spectra to keep in step with changes and demands in their operating environment. Navies respond in different ways to keep in step with what the opposition and their policy-makers demand. Some navies execute several roles simultaneously, but prioritise warfighting capabilities while others prefer to dedicate their resources to roles below warfighting. Sri Lanka and countries bordering the Gulf of Guinea off West and Central Africa express how navies deal with threats below the warfighting level to protect their national interests. Navies tend to adapt to changes in their environment rather than shedding old and assuming new roles and tasks. Keywords  Navies · Naval power · Warfighting · Sri Lanka · Gulf of Guinea

12.1 Introduction The turn to maritime security as an end state includes narratives that often suggest a lesser role for navies in the pursuit of security on the world’s oceans. Whether real or perceived, some hold that not all navies of the world can merely assume their standing as the foremost and primary security actor at sea. Shifting debates, as well as evolving security events at sea playing out below the naval warfighting level, together with actor growth on the oceans steer understanding of navies and their roles towards questioning the supremacy of navies at sea (Berube and Cullen 2013; F. Vreÿ (*) · M. Blaine Stellenbosch University, Stellenbosch, South Africa e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2020 L. Otto (ed.), Global Challenges in Maritime Security, Advanced Sciences and Technologies for Security Applications, https://doi.org/10.1007/978-3-030-34630-0_12

191

192

F. Vreÿ and M. Blaine

Shemella 2016). In part, the latter influences thought and perceptions on the standing of navies as instruments of state to safeguard, and if necessary, defend ocean territories by force or through deterrence. Navies are important instruments of power, but subject to political decisions, increasingly in competition with other interest groups, and faced by an ever growing and competitive actor spectrum at sea (Liss 2013). Navies play primary and secondary roles that evolved from their attributes and the nature of the maritime environment, but their roles rise and decline as fleets attempt to remain in step with developments in the strategic environment and political demands (Martin 2016). Inherently, naval roles have evolved over centuries and undergo refinement and prioritisation, rather than radical changes. Changing terminology by scholars, practitioners and politicians tend not to substantially alter tried and proven roles. Important to note is the emphasis on, or prominence of some roles over time, rather than a rise and decay of naval roles in themselves. Some navies like that of the United States of America (US) execute an array of roles and tasks over a vast maritime landscape. Others confine their roles to selected ambits of threat while some become de facto coast guards or maritime police agencies in all but name, while certain navies fade away or reposition themselves as time passes as demonstrated by the Sri Lanka Navy (Lalwani 2017; Till 2013). The implied dynamics of change and stasis have more to do with political, economic and other policy matters and less with the established credibility and validity of navies as policy instruments with staying power. The topic “The role of navies in the contemporary era” allows for two pathways of discussion. First, an approach to argue the demise or declining roles of navies based upon their alleged decreasing functionality. A second approach offers room to describe the continued relevance of navies based upon their flexibility in spite of arguments to the contrary. The following chapter aims to address twenty-first century roles of navies by emphasising their warfighting primacy amidst persistent demands to contribute to diplomatic and constabulary missions. The latter pathway rests upon the literature that acknowledges a growing realm of threats at sea, primary roles of navies and their continued contributions set within changing or shifting security landscapes. The sections outline aspects of how armed forces change before addressing the interplay between primary warfighting and secondary roles. The discussion then turns to maritime security aspects, covers two cases of how navies from the developing world adjusted their roles to remain in step with rising threats before offering a summary and conclusion.

12.2 Contemporary Navies: Changing Roles and Responsibilities Countries with maritime interests are, more often than not, entrapped in a difficult dilemma: how to create and maintain a navy to execute activities required by political decision-makers as guided or, misguided, by the reigning strategic logic (Martin 2016). Political understanding of maritime threat landscapes alongside roles and

12  The Role of Navies in the Contemporary Era

193

attributes of navies are important elements of how commanders employ navies, their composition, budgets, national prioritisation and related matters (Farrell and Terriff 2002; Germond 2015). Political rulers calculate maritime interests that call for defence, oversee preparation of their naval forces and prioritise roles for their navies within the array of national interests they deem suited for naval actions. This is a difficult process and Booth and those following his initial 1977 work to fit naval functions and roles to the international environment warned about a complex international relations environment facing future policy and naval decision-makers (Booth 1977, 2014). In retrospect, the mentioned complexities foreseen by Booth are probably confronting most, if not all, twenty-first century navies of note. Furthermore, navies are no longer the only and for some, the primary instrument of coercion on the oceans and decision-makers cannot ignore this complicating and often threatening matter of actor proliferation. Turning to navies and their roles, change and stasis is a continuous dialectic facing naval forces. Analysts and scholars often depict armed forces as generally averse to deep changes and navies are no different. Parker (The Military Revolution 1988/1996), Van Creveld (Transformation of war 1991), Farrell and Terriff (eds) (The sources of military change 2002), Murray and Millett (eds) (Military innovation in the interwar period 1998) and Liang and Xiangsui (Unrestricted warfare 2002) and Hammes (The sling and the stone 2006), represent snapshots of studies on how military organisations change to address new and rising demands. The said publications address catalysts for change in armed forces, how they respond to absorb change and reorganise to meet rising competitors. One central tenet in the said literature points to the notion of incremental changes, rather than persistent deep revolutionary changes, as indicative of how armed forces adapt to shifts in their operating environments. Millett, Till, and Herwig in Murray and Millett (1996) relate changes to navies in particular and point out how concepts and technologies and platforms related to amphibious landings, aircraft carriers, and submarines gradually found their way into navies to extend their roles on, below and above the sea surface (Murray and Millett (eds) 1996). Pressures for change are not new and rather question how contemporary navies are bound to respond to another cycle of catalysts for change emanating from technologies and their operating environments. Significant changes in roles of navies during times of peace are even more difficult as a peer or near-peer styled pressures are often absent (Murray and Millett (eds) 1996). One can attribute the current drive by the US Navy alongside those of several European countries to ensure or rebuild their naval warfighting capabilities against the rise of China and Russia’s naval revival holding a direct drive for naval supremacy at sea (Speller 2014). With reference to contemporary naval entities, the idea that navies are inclined to shed or terminate some and assume dramatic new roles is rather opportunistic given the rise of threats in their high and low-intensity role environments. In keeping with what literature suggests, a more conservative approach seems prudent. Smaller and incremental changes to respond to threats below the level of warfighting at sea alongside primary warfighting postures are to be expected.

194

F. Vreÿ and M. Blaine

Navies remain flexible military organisations and continue to embrace roles other than warfighting as well to express their adaptability when required. In this manner, navies uphold and reinforce their relevance and contributions in a fast-changing strategic environment by responding to a widening role spectrum, but tend to nurture their primary roles and posture to defend against critical threats to national interests (Speller 2014). Till (2013) sets out the continuum of traditional thought from Mahan and Corbett against the sometimes messy realities facing contemporary navies in decision-making about concepts and doctrine to address peace support operations, piracy, terrorism and smuggling. Both Speller (2014) and Till (2013) recognise the rising demands for navies emanating from the lower spectrum of maritime threats, but attribute the majority of their work to primary naval roles contained in maritime strategy, naval warfare and naval diplomacy. Both however, emphasise the setting from which navies and maritime strategies that guide their missions originate. The maritime environment and attributes of naval forces are two matters that define why navies are substantially different from non-naval competitors (Speller 2014). Navies that master the sea as a physical environment in terms of its size, featurelessness and inhospitable nature find themselves in a better position to conduct naval operations on and from the sea. They are also well ahead of their non-­ naval competitors and even naval rivals who struggle to reconcile the sea and its attributes to conduct naval operations. In mastering the physical environment to exploit the attributes or core capabilities of navies, present day decision-makers can follow the modern or post-modern pathway to execute their missions Till (2013). One way to understand this is how modern navies and post-modern navies are portrayed. Till (2013) outlines missions for modern navies as primarily preoccupied by defence of the country and its immediate interest. Mission priorities could then well manifest as sea control, nuclear deterrence and ballistic missile defence, maritime power projection, exclusive good order at sea and competitive gunboat diplomacy. Post-modern navies lean towards defending the global system based upon using the sea communications and the widening risk spectrum it faces. Subsequently post-­ modern navies gravitate towards sea control, expeditionary operations, stability operations or humanitarian assistance, inclusive of good order at sea and cooperative naval diplomacy. While both categories set naval warfighting missions first, modern navies have a lesser focus on other roles while post-modern missions a greater emphasis on dealing with an array of missions below the traditional warfighting spectrum and building cooperative partnerships to execute the missions. It is probably in the latter role spectrum that other agencies and small navies that cannot or prefer not to follow the modern or post-modern pathway by itself, become partners to defend the global system against threats and intrusions. Not all navies have mastered the attributes or core capabilities to operate in the modern or post-modern mode and either partner with others or like the Iranian Navy for example, pursue a go-it-alone strategy. As noted by Till (2013) neither modern or post-modern navies are cemented into modern or post-modern missions and mission migration is to be expected. In a similar fashion conflict and cooperation between states direct what roles navies are expected to play with the caveat that many navies due to require capabilities cannot and

12  The Role of Navies in the Contemporary Era

195

should not be expected to execute missions across the whole spectrum of low and high intensity roles.

12.3 Navies in the Contemporary Era After land armies, navies are the second oldest arm of service and evolved to defend maritime interests and influence events such as military operations on land. A second observation relates to roles of navies that evolved over time, but it is risky to cast these roles in stone. Some become more latent than others as time goes by and threats rise or decline. Operations to conquer territory have become more dormant (not rejected), if not illegal under international law. Operations to dominate or control part of the ocean (even if contested) for campaign purposes remain more relevant as demonstrated by twenty-first century presence of the US, United Kingdom (UK) and France in the Persian Gulf and Russian naval operations in the Eastern Mediterranean and in the Caspian Sea to strike into Syria (Srivastada 2016). A more emphatic demand for navies to control an ocean space looms in the South China Sea with modern blue water navies from China, the US, UK, Australia, and Japan sailing through disputed waters at regular intervals to register presence and for show of force (Moore 2018). Regardless of arguments to the contrary, navies remain important instruments of state power in spite of the growth of and interest in softer maritime security threats where navies have a lesser role to play, but are often the only instrument at hand (Shemella 2016). The role and prominence of navies tie in with the centrality of armed coercion. As noted by Gray, the attributed saliency in debates and the literature to prioritise other forms of armed threat is not a convincing argument to neglect dangerous and even existential threats to national and international security interests (Gray 2008–2009). One therefore continues to find that in step with role and task migrations imposed upon modern armed forces, navies also have to function below the warfighting level. Navies are in all probability the arm of service best suited to migrate vertically and horizontally to cover low and high intensity naval roles, as well as the expanding field of maritime security threats at sea and on land, some of which require naval intervention, or a naval presence. Figure 12.1 illustrates this task spectrum by way of an Australian adaptation of the triad suggested by Booth to illustrate the shifting roles and parallel elements of coercion that culminates in combat operations at and from the sea (Royal Australian Navy 2005; Booth 2007).

12.4 Maritime Security: Mapping Security, Actorness and Warfighting The position of navies and their roles became topical in debates and research attempting to address sea power and maritime security. While ‘naval’ houses a close navy and warfighting nexus and harbours an exclusive right to warfighting and

196

F. Vreÿ and M. Blaine

Fig. 12.1  Span of maritime tasks

organic capabilities, ‘maritime’ tends to include other non-military agencies that play their respective roles and mostly to counter the soft security side of threats and vulnerabilities at sea (Le Miére 2014). As argued by Le Miére, contemporary developments at sea that require intervention call for a greater mix of actor responses and it is difficult to cast naval and maritime capabilities and roles into exclusive categories. As illustrated in Fig.  12.1, navies harbour secondary roles. These roles are more suited for navies to function alongside or in support of non-naval actors to address a persistent landscape of maritime threats and vulnerabilities demanding of softer diplomatic and constabulary responses. Combat operations at and from the sea remain at the heart of what navies prepare for. This primary reason underpins what navies stand for and must execute. Even if decision-makers prefer to redirect or stall the primary role of their navies for some reason, fighting navies remain dominant within debates of what navies do. However, actor growth is reshaping maritime actorness and traditional naval dominance, as well as security on the oceans. More actors claiming to promote maritime security are flooding the maritime space assumedly in response to a greater array of offenders collectively endangering aspects of good order at sea (Liss 2013). Very few, if any, of new maritime

12  The Role of Navies in the Contemporary Era

197

entries are able, or claim to execute the full spectrum of warfighting, diplomacy and policing roles attributed to navies. Narratives often refer to private navies, but mostly in terms of anti-piracy and not warfighting (Berube and Cullen 2013; Pitney and Levin 2013). It is difficult, if not impossible to place private navies in the same setting as navies proper and it remains an ongoing discourse, rather than an operational reality of substitution. Although private security or multinational corporate actors at times rival the assets of small or even premodern navies, the state-navy nexus and political supremacy over the navy as a coercive instrument of power able to conduct naval warfighting, remains pinnacle. In a certain sense private or other maritime security actors cannot and should not partake in naval warfighting and remain confined to low threat scenarios to allow states to use their naval assets. The debate however continues as not every country houses a navy proper and must cooperate with other agencies with private maritime security companies like in the case of Benin with the US based AdvanFort becoming the preferred service provider to patrol maritime territories (DefenceWeb 2013). Private gunboats on the horizon (Spearin 2012) and Blackwaters for the Blue Waters (Berube 2007), and Private anti-piracy navies: How warships for hire are changing maritime security (Pitney and Levin 2013) are three pieces of literature that address this discourse. This comes at a time when private maritime security actors have made disproportional inroads as a way to contain lower-order maritime security threats, but becoming good at lower-order policing tasks does not pose a universal challenge to all navies (Berube 2007; Spearin 2012; Pitney and Levin 2013). Maritime militias show a growing or renewed presence. Both China as well as Vietnam pursue this pathway while China has made progress with rather extensive militias (some claim the largest in the world) that operate at sea (Kraska and Monti 2015). Vietnam employs its own version of maritime militias and in competition with Chinese militias complicate matters in an already tense South China Sea. By mixing fishing vessels, coast guard platforms and maritime militias operating below the naval threshold, an actor mix of navies, coast guards, militias and fishing fleets extend acclaimed national interests to a contested and often congested maritime landscape (Bateman and Hongzhou 2018). Maritime militias and private maritime security contractors fill a capability void between naval warfighting and policing roles primarily dedicated to the province of maritime security/good order at sea (Chalk 2016). Of significance is the rate at which non-naval agencies react and often enter the maritime security landscape alongside traditional navies. One example of this is found in the best practices listing of on-board security contractors for shipping passing through high-risk areas (HRA) with only three out of 26 flag state countries listed by Oceans Beyond Piracy, prohibiting the use of private security contractors on their vessels (Oceans Beyond Piracy 2018). While maritime militias could serve as force multipliers for navies, private security actors appear to be more closely associated with maritime commerce and interests and collectively give meaning to arguments of navies finding themselves operating alongside a growing actor landscape at sea. Germond points out the growth in use of the term maritime security since 2002 and the events at sea that unfolded largely as dangers below the naval warfighting

198

F. Vreÿ and M. Blaine

spectrum. The mentioned events refer to the 9/11 attacks and terrorism, terrorism and possible threats at sea accentuated by terror attacks on naval, commercial and passenger vessels (Germond 2015). Surges in piracy attacks in the Strait of Malacca followed by the prominent upwelling off Somalia that increased the attention focused on maritime security by scholars, policy makers and those from business communities in the maritime sector. In response, navies feature prominently in order to project power and support landward operations to underpin both conventional, as well as counter-insurgent operations and by way of their flexibility operate astride the implied divide between conventional and unconventional operations. Although actor growth remains confined largely to softer maritime security roles, warfighting remains exclusively in the naval ambit (Tan 2007/2011). This often takes place amidst an almost overcrowded maritime landscape where actors pursuing legitimate ends, ways and means must contend with extensive threats and vulnerabilities from actors operating below the level of state, but overlapping with warfighting at times. The latter stems evermore also from actors other than the state with political agendas intermixed with criminal actors operating locally, regionally and transnationally. One prominent example plays out in the Gulf of Aden off Yemen and the Horn of Africa. From Yemen a mix of rebel forces, former Yemeni government forces with alleged Iranian support stage armed attacks on naval and commercial vessels in the Gulf of Aden and the Bab-el-Mandeb. Simultaneously, naval contingents take up station off Djibouti with apparent intent to safeguard shipping passing to and from the Red Sea and Mediterranean Sea (Shay 2016). This is one example of how navies contend with armed threats against naval and commercial vessels from non-traditional actors intermixed with state entities like Iran, the Saudi Arabian coalition of Arab states fighting in Yemen and military remnants of the former Yemeni government (Hokayem and Roberts 2016). For the purpose of national security and underpinned by vital national interests, navies remain primary and on-call coercive instruments of state power. Vital national interests are those that governments are willing to defend or back with military power when necessary and if affordable. The more decision-makers perceive events as threatening to vital interests one can expect national and collective responses that prioritise naval warfighting capabilities of navies. Elements of this vital interest-­ military nexus is visible in the posturing of naval forces in and around the South China Sea (Karim 2013). Off Somalia one finds extensive naval deployments to secure common vital national interests, but through naval policing actions at sea against piracy attacks threatening the free flow of seaborne trade through an international sea lane. In the case of Sri Lanka Liberation Tigers of Tamil Eelam (LTTE) insurgents attacked the legitimate government and thus the turn to the extensive use of Sri Lanka’s naval forces to fight off the threat at sea (Smith 2007). This shifting threat-response line of thought resonates with Fig.  12.1 of how threat migration guide naval responses vertically along a softer diplomatic, policing and harder warfighting axis that culminates in coercive and warfighting roles depicted at the bottom of the triad. The study of naval warfare and navies continues unabated and a brief scrutiny of some literature show the naval – maritime security interplay. The Cass Series on

12  The Role of Navies in the Contemporary Era

199

Naval Policy and History for example lists 67 publications of which 63 could include maritime security as a chapter, but only four have titles that explicitly cover maritime security (Taylor and Francis n.d.). This suggests a recognition of wider maritime security aspects without adding new roles, but rather placing renewed emphasis on matters such as disaster relief and humanitarian assistance roles for navies. The common narrative in the literature alludes to navies playing their roles and functions over an expanded maritime threat landscape by way of a growing frequency of deployments to address what political decision-makers choose to cover. From the perspective of Sea Power, Till (2013) addressed naval matters by placing navies and their naval/warfighting roles central to what navies do. His work also allowed room for maritime security matters if viewed over time and its growing prominence within his series on seapower. Speller, in Understanding Naval Warfare (2014) follows a similar approach, but both scholars attend to the rising threat landscapes of maritime security and the drive for general good order at sea and demands this holds for navies. One observation is that maritime security became a difficult, but much-discussed phenomenon in contemporary literature, but one that does effect a stark break with naval warfighting and the notion of the one or the other. The scholarly practice tends to embrace both, rather than exclude the one or the other. One response to order the surge in maritime security matters and its impact on navies and understanding of naval warfare comes from Bueger and Edmunds. They address the fuzziness of maritime security as a concept by way of a matrix, but one recognising the sea power-navy-naval warfare nexus (Bueger and Edmunds 2017). Their matrix does not prioritise any one of the four quadrants (maritime environment, economic development, human security and national security), but recognises the ebb and flow of interests and debates that elevates different quadrants (including the national interests-naval quadrant) of maritime security over time. Bueger and Edmunds created more clarity in the debate on what maritime security entails and to position different domains and actors and interests within the debate. Similar to Till, Bueger and Edmonds point to a shifting setting at sea where naval and other security actors play larger or lesser roles according to rising and declining security landscapes informed by threats and vulnerabilities. Till for example juxtapositions naval roles with lower order softer roles dedicated to less intense threats and vulnerabilities (Till 2013). In contrast, those making maritime security their main focus, recognise the role of navies, but largely as an instrument to help maintain good order at sea, and less so as an exclusive instrument of warfighting. From the aforementioned, a mutual recognition emerges of the softer and harder roles of maritime security agencies and navies that in turn question arguments for the decline or relegation of navies and their warfighting roles. Shifting roles of navies informed by how political decision-makers direct their use and the rising prevalence of non-naval security actors find expression in several regions of the world. Navies deal with lower order threats by invoking their flexibility to deal with secondary threats or cooperate with other maritime agencies (state and non-state) to augment their capacities to deal with threats that are not within the ambit of a peer or even a near-peer competitor, and mostly from non-state actors. For the purpose of this chapter, two cases of role migration to contain dangerous

200

F. Vreÿ and M. Blaine

threats at sea follow below. First, the case of Sri Lanka where armed insurgency at sea provoked a morphed naval response, but one vested solely within the Sri Lanka Navy to counter a direct threat to the country’s national security interests – that of state survival. Second, the case of the Gulf of Guinea off West Africa where countries neglected their maritime responsibilities resulting in extensive policing actions through national, regional and international naval cooperation alongside non-naval security actors to restore good order at sea.

12.5 Sri Lanka One can trace the history and development of the Sri Lanka Navy (SLN) from its formation as a regular naval force in 1950, its involvement and transformation through the civil war and its repositioning thereafter. Its initial stated roles were as follows: aid to civil power, security of the port of Colombo, anti-smuggling and anti-illicit immigration patrols. In the latter half of the 1960s the service was essentially an unarmed small boat navy with 28 patrol craft (Globalsecurity 2012b). The force was renamed the SLN in 1972, acquiring smaller boats from the Soviet Union as well as patrol boats from China and the UK. At the same time, the Colombo shipyard built two 40 m Offshore Patrol Vessels (OPV) (Globalsecurity 2012b). The utility of the naval force was realised at an early stage when the SLN was instrumental in disaster relief operations after cyclone Emly in 1978, providing assistance in hospitals, outlying islands and merchant ships carrying relief equipment (Globalsecurity 2012a).The most significant achievement of the SLN is probably its successful structural and role adaptation to counter the dangerous maritime wing of an insurgent movement that almost brought Sri Lanka to its knees.

12.5.1 The Sri Lanka Civil War At the onset of the civil war (1983–2009), the SLN was essentially a ceremonial force. It focused on coastal duties: fishery protection, search and rescue, humanitarian assistance and disaster response. As the war progressed and threatened maritime security, the force adapted their modus operandi to combat the maritime threat posed by the LTTE (Lalwani 2017). The Sea Tigers (the maritime division of the LTTE) were probably the most effective or brutal maritime insurgent movement conducting a terror campaign at sea in recent history. They developed operational sea capabilities in support of the landward insurgency campaign and dominated the Sri Lankan sea route to India in the north. The movement formed in the early 1980s with the Black Tigers as the special branch mostly used for suicide missions (Chandradasa 2012). It would be remiss not to highlight the role of the LTTE in the formation of the SLN.

12  The Role of Navies in the Contemporary Era

201

The LTTE was probably the only insurgent movement in the world with a fully-­ fledged maritime strategy. The Sea Tigers were initially the weaker opponents and used irregular warfare to exploit weaknesses of the stronger SLN in order to compel them to change their concept of operations and doctrine, even if temporary. This resulted in the expectations of the contribution by the SLN being stretched ever wider to cover an increasing maritime threat landscape. The Sea Tigers were initially very successful due to the unpreparedness of the SLN, which had to adjust its roles to counter the threat. The initial shock resulted in many SLN boats being sunk. The Sea Tigers challenged the SLN’s jurisdiction in its own waters and generally threatened good order at sea (Vreÿ 2013). The SLN offset the initial advantage of the Sea Tigers’ asymmetrical tactics by systematically adjusting its own doctrine and tactics to counter the threat. The LTTE employed many small boats to transport equipment from India and had some deep-sea ships for logistic support. They used commercial off the shelf (COTS) equipment and with the aid of sympathetic states manufactured their own boats in different sizes and for various roles. With the absence of sufficient port facilities, the LTTE used tractors and trailers to launch the boats which gave them mobility, flexibility and surprise. By incorporating swarming/suicide tactics, the group sunk more than 20 SLN boats while they also attacked and sunk transport ships, SLN fast attack craft and gunboats between 1990 and 2007 (The Island 2008). By 1993 the SLN had created the special boat squadron to counter the menace of the Sea Tigers. It reverse engineered captured Sea Tiger boats and manufactured in excess of 200 in local shipyards. Simultaneously, the service had to change its training and doctrine. It appointed experienced commanders for operations, procured new weapons and refined recruitment and training. The changes resulted in a drastic decline in Sea Tiger successes – it sunk 21 SLN boats in 2006, 12 in 2007 and less than five  in 2008 (De Silva-Ranasinghe 2010). The SLN identified larger supply ships that helped insurgents maintain their momentum on land and at sea, providing equipment and weapons, including underwater attack equipment. Through a careful process of intelligence gathering and planning, the authorities located these vessels offshore, targeted and destroyed them through naval operations at sea (The Island 2008). The destruction of eight such ‘pigeon’ ships up to 1600 nm off the coast in 2007 played a major role in the eventual capitulation of the LTTE (Povlock 2011; The Sri Lanka Guardian 2017). As far as equipment for the SLN was concerned, between 2001 and 2008, the force received offshore patrol vessels from India and decommissioned coast guard vessels from the USA, which provided the service with a helicopter capability (Globalsecurity 2012c). By 2009 the LTTE (including the Sea Tigers) were defeated. The above events demonstrate the ability of the SLN to successfully shift its roles and tasks towards the lower treat spectrum of policing and when required, fighting an irregular threat in its territorial waters and even warfighting at sea beyond its sovereign waters.

202

F. Vreÿ and M. Blaine

12.5.2 Post-Civil War The defeat of the Sea Tigers (LTTE) allowed the SLN to adjust its focus to becoming a naval player in the region. The intent remained a conventional navy with the security of the maritime domain as its main task. It thus changed to counter an asymmetrical threat and then adjusted its focus back to a conventional outlook (Vreÿ 2013). The SLN has realised the requirement for an amphibious capability for humanitarian assistance and disaster response (HA/DR), UN Peacekeeping Operations and maritime security and with US assistance, formed a marine corps in 2016 (Nappi 2017). The SL Navy Commander in 2008 articulated the following as the roles of the SLN in protecting the sovereignty and national interest of the state: • Military Role: to counter threats by nonstate actors, to counter threats by other states, and collaboration with alliances; • Politico-diplomatic Role: multinational naval operations; • Constabulary Role: realising that most of the effort of the SLN occurs in the EEZ; and • Benign Role: realising that the SLN currently has an inability for large scale out of theatre HA/DR operations (Lalwani 2017; The Island 2008). In 2009 the country established a coast guard with two ships from the SLN to conduct maritime security operations close to the coast. Five more boats from the SLN followed in 2011 (Globalsecurity 2012a). At the end of the civil war, the SLN shifted its role focus to emerging challenges such as illegal, unregulated and unreported (IUU) fishing in the exclusive economic zone (EEZ) and the mass movement of people. It interdicted 88 boats between 2009 and 2014 with approximately 4300 illegal immigrants. With the changing maritime threat, the need for larger ships was identified with a commensurate larger role in naval diplomacy in the Indian Ocean Region (IOR). Approximately 1200 SLN personnel trained overseas (mostly in India and Maldives) while officers attended tertiary education opportunities in Australia (De Silva-Ranasinghe and Sutton 2015). There is a general push for a growth in the OPV capacity and to modernise the existing fleet. In this regard the SLN received two OPVs (with helicopter capability) from India in 2017. The new ships will perform roles in accordance with Booth’s trinity of naval functions whilst continuing with assistance to the Sri Lanka army and air force (The Sri Lanka Guardian 2017).

12.6 The Gulf of Guinea The maritime security situation in the territorial waters of the Gulf of Guinea (GoG) is aggravated by the current neglected state of regional navies amidst the increase in criminality at sea in the region (Musah 2009). The evolving security threat as well

12  The Role of Navies in the Contemporary Era

203

as the responses have been markedly different to those in other regions such as Sri Lanka and the Gulf of Aden while the multitude of maritime security role players from the region and beyond illustrate a busy maritime security landscape.

12.6.1 Maritime Security Challenges in the Gulf of Guinea Threats to the region include acts of violence at sea, trafficking of drugs and illegal substances, organised transnational crimes, illegal fishing, and ecological risks. These threats are excacerbated by porous borders, environmental degradation, illegal or underreported fishing, border disputes and the competition for petroleum products (Vreÿ 2009). The rise in maritime insecurity in the region could further be attributed to sea blindness, youth unemployment and poverty, political disputes, corruption and weak governance, and legal challenges (Jacobsen and Nordby 2015). The regional oil industry in the GoG is a major contributor of disorder and oil piracy in the region as illustrated by the large percentage of attacks targeting vessels carrying petroleum products. This remains viable only due to the presence of a booming black market for these products in West Africa and beyond (United Nations Office on Drugs and Crime 2013). During the period 2007 to 2016 an average of 122 incidents took place in the GoG waters annually of which in excess of 30% resulted in kidnappings (International Maritime Bureau 2015). Although Nigeria remains the focus of piracy incidents, it must be understood that not all incidents are reported and many incidents are not seen as piracy or armed robbery strictly as per the definition (Tull 2011).

12.6.2 Maritime Security Actors in the Gulf of Guinea The US Navy (USN), through its Africa Partnership Station (APS) has spent in excess of US$35 million (2012) on training GoG naval personnel in counter-piracy measures, including combating illegal oil bunkering and maritime crime. Cooperation is operationalised in joint training exercises between regional navies in conjunction with international partners. One example of such an exercise is the annual Obangame Express which regularly include regional navies as well as navies and personnel from the US, France, UK, Brazil, Italy, Belgium, Netherlands, Germany, Norway, Portugal, Denmark and Spain (Onuoha 2012). The region has improved its coastal surveillance capability with financial assistance from external partners such as the USA and EU. This surveillance is however restricted to coastal waters up to a range of 30–40 nautical miles (Osinowo 2015). Another example of maritime security cooperation in the GoG is the French Navy’s efforts since 1990 as part of Operation Corymbe to enhance maritime security in the region, protect French interests in the region and contribute to maritime capacity building (eNews 2014).

204

F. Vreÿ and M. Blaine

The increased cost of growing maritime insecurity has driven efforts towards better regional and bilateral cooperation. The Nigerian Navy (NN) teamed up with the Benin Navy in October 2011 for combined maritime patrols in Operation Prosperity while there is a plan to include Ghana and Togo in such future endeavours and to expand the surveillance area (International Peace Institute 2014; Onuoha 2012; Tepp 2012). A Nigerian Joint Military Task Force (JMTF) emerged in 2009 during Operation Restore Hope and included elements of the NN, Nigerian Army, Nigerian Air Force, Police and State Security Services. The main aim of the operation was to restore order in the Niger Delta region by suppressing the Movement for the Emancipation of the Niger Delta and other militant groups whose activities extended into the GoG. To this extent, the task force targeted the reduction of theft of oil bunkers, pipeline vandalism and illegal refineries (International Peace Institute 2014; Tepp 2012). Collaboration between private maritime security companies (PMSCs) and the NN in May 2012 included armed protection for ships at anchor or conducting transfer operations (Osinowo 2015). The Nigerian government has endeavoured to legalise PMSCs under strict conditions. PMSCs provided new boats and aircraft for use in maritime security patrols while the NN provides the weapons and personnel to operate the assets. Ghana, Cameroon, Togo and Benin have similar cooperation with PMSCs (International Crisis Group 2012).

12.6.3 Regional Maritime Security Actions Maritime security is best promoted through cooperation on maritime domain awareness to structure appropriate responses. Given the vastness of the GoG, regional cooperation became a preferred way to address escalation of maritime threats in the Gulf. Map 12.1 illustrates the two Regional Economic Communities (RECs) and two Regional Mechanisms (RMs) which coordinate maritime security cooperation in the GoG while its functions are summarised in Table 12.1. It is evident that regional organisations have been established mainly to deal with maritime security threats through cooperation to combat activities of a criminal nature where navies operate at the lower level of coercion and enforcement in the task spectrum of navies.

12.6.4 Capacity Building in the GoG Of the navies in the GoG, only Nigeria has a limited capacity to employ naval forces in the conventional war fighting role. Nigeria is the only country in the GoG considered to have the capability to carry out continuous patrols in the EEZ, while Ghana, Angola and Cameroon possess the capability to function within their respective contiguous zones. The overall capability of the GoG states clearly indicates an inability to police the region resulting in ill-governed maritime spaces, which has

12  The Role of Navies in the Contemporary Era

205

Map 12.1  RECs and RMs in the GoG (Stepmap 2018)

led to the high incidence of maritime crimes and insecurity (Osinowo 2010) . The International Institute for Strategic Studies’ Military Balance report classifies the navies of the GoG as follows (Table 12.2). Most of the navies in the region have embarked on programs to modernise and expand their navies. The table below reflects the recent acquisitions or development of ships and boats by selected GoG navies (Table 12.3). The table above illustrates the focus on coastal and inland patrolling capabilities required due to criminality in coastal and territorial waters. Most of the hulls procured have very little to do with preparing for naval warfighting, but reflect on the nature of the insecurity which necessitates multi-agency cooperation between navies, regional bodies and private contractors.

12.7 Summary and Conclusions The role of navies in the contemporary era is subject to narratives arguing for the decline of their warfighting role. A more nuanced reality underpins contemporary roles of navies. As military institutions navies change in incremental ways and this goes for role changes as well. Although operating environments of navies change,

206

F. Vreÿ and M. Blaine

Table 12.1  Regional maritime security architecture in the GoG Organisation MOWCA 25 Member States

Date established 1975

ECOWAS 15 Member States

1975

ECCAS 11 Member States

1985

GGC 8 Member States

1999

Yaoundé Summit 25 AU Member States attended

2013

Purpose/function Maritime Organisation for West and Central Africa  Establishing of a sub-regional integrated coast guard network  Framework for regional maritime cooperation Economic Community of West African States  ECOWAS Integrated Maritime Security Strategy (EIMS) 2014  Provides for a holistic maritime policy framework for cooperation  Strengthening collaboration with other regional bodies  The Regional Centre for Maritime Security in West Africa (CRESMAO) established in Abidjan, Nigeria, 2014 Economic Community of Central African States  Regional leader in maritime security developments  Comprehensive joint maritime security architecture  Maritime strategy developed in 2008  Creation the Regional Centre for Maritime Security in Central Africa (CRESMAC) in Pointe-Noire, Congo, 2014 Gulf of Guinea Commission  Harmonise policies of member states on peace and security  Functional in 2006  Seen as bridge between the two RECs  Harmonise policies and activities in the region Yaounde Summit  Created a concerted trans-regional counter-piracy strategy  Declaration on maritime safety and security in the common maritime domain  MoU on maritime safety and security in the region  Code of conduct on repression of piracy and armed robbery against ships and illicit maritime activity in the region

Adapted from African Union (2013), International Crisis Group (2012), Jacobsen and Nordby (2015), Osinowo (2015) and United Nations (2012)

decisions about tasks and roles tend to migrate along a spectrum to remain in step and to cooperate with other maritime agencies to address softer maritime security threats as well. As flexible instruments of military coercion, navies have evolved over time to ply their trade over an extended landscape of maritime threats and vulnerabilities and harness flexibility to remain in step, rather than reject the old and

207

12  The Role of Navies in the Contemporary Era Table 12.2  Classification of GOG navies Type of navy Littoral/ contiguous Coastal Constabulary Token

Capacity Offshore defence capability in the EEZ

Country Nigeria

Primary inshore territorial defence and limited offshore defence capabilities Limited capability for coastal and inshore operations Unable to patrol territorial seas effectively and impotent in the EEZ

Ghana, Angola, Cameroon DRC, Ivory Coast Benin, Gabon, Togo Equatorial Guinea, Guinea, Sierra Leone, Congo

Adapted from International Institute for Strategic Studies Table 12.3  Recent acquisitions by GOG navies Country Nigeria

Angola Cameroon Equatorial Guinea Ghana

Ships/boats 3 Inshore Patrol Vessels 2 US Coast Guard Cutters 4 Buoy Tenders 2 Offshore Patrol Vessels 10 Fast Patrol Boats 4 Patrol Craft 20 Gunboats (IPV) 9 Gunboats (IPV) 7 Patrol Craft 2 Patrol Craft 1 Frigate 4 Patrol Boats

Donated by/procured from Israel, USA USA USCG China France USA Nigeria Sri Lanka Brazil China Ukraine China

Adapted from Defenceweb (2016)

assume new roles. In essence, primary warfighting roles remain at the apex of what contemporary navies prepare to do in spite of the fact that navies across the world are much busier in their secondary role spectrum. Not all navies are organised and equipped to migrate successfully to address changing maritime threats in the contemporary era. They rather dedicate their organisational culture and assets to address selected maritime threats and vulnerabilities given that different countries or even governments have different uses for navies. Modern blue water navies from China, the US and the European Union for example demonstrate their ability to conduct policing, diplomatic and simulated warfighting roles simultaneously off Africa and in the South China Sea. The SLN demonstrated how a navy can sequentially migrate between traditional and non-traditional roles and tasks when national maritime interests are threatened. Sri Lanka faced a national security threat with a maritime dimension that could probably only be addressed by its navy and its ability to turn from its ceremonial and primary roles to that of fighting insurgency from the sea. The GoG in turn exemplifies how navies cooperate with multiple agencies across regions to contend with a growing maritime threat landscape affecting national and regional security.

208

F. Vreÿ and M. Blaine

Threats in the GoG are not naval in kind and show how institutions other than navies play important roles together with or more independent from navies to mitigate maritime threats and vulnerabilities related to national interests. The collective outcome is one of role migration, rather than stark rejection of traditional naval tasks and roles amidst a policy and security environment calling for a wider range of contributions from navies.

References African Maritime Safety and Security Agency (2008) Maritime Organisation for West and Central Africa (MOWCA). Available via http://www.amssa.net/framework/mowca.aspx. Accessed 15 Sept 2018 African Union (2013) Declaration of the Heads of State and Government of Central and West African States on Maritime Safety and Security in their Common Maritime Domain. Available via http://pages.au.int/sites/default/files/Declaration%20of%20the%20Heads%20of%20 State%20and%20Government%20on%20Maritime%20Safety%20and%20Security.pdf. Accessed 15 Sept 2018 Bateman S, Hongzhou Z (2018) Bigger fish to fry than militias in the South China Sea. EASTASIAFORUM 13 February. http://www.eastasiaforum.org/2018/02/13/bigger-fish-tofry-than-militias-in-the-south-china-sea/. Accessed 31 Oct 2018 Berube C (2007) Blackwaters for the blue waters. The promise of private naval companies. Orbis 51(4):601–615 Berube C, Cullen C (eds) (2013) Maritime private security. Market responses to piracy terrorism and waterborne security risks in the 21st century. Routledge, Oxon Booth K (1977) (2014) Navies and foreign policy. Routledge, Oxon Booth K (2007) Croom Helm & republished 2014 by Routledge) Navies and Foreign policy. Routledge Revivals. Routledge, Oxon/New York Bueger C, Edmunds T (2017) Beyond sea blindness. A new agenda for maritime security studies. Int Aff 93(6):1293–1311 Chalk P (2016) Armed maritime crime. In: Shemella P (ed) Global responses to maritime violence. Cooperation and collective action. Stanford University Press, Stanford Chandradasa M (2012) Learning from our enemies: Sri Lankan naval special warfare against the Sea Tigers. Available via https://globalecco.org/learning-from-our-enemies-sri-lankan-navalspecial-warfare-against-the-sea-tigers. Accessed 3 Sept 2018 DefenceWeb (2013) US company to undertake anti-piracy patrols off Benin. Available via https:// www.defenceweb.co.za/security/maritime-security/us-company-to-undertake-anti-piracypatrols-off-benin/. Accessed 10Mar 2019 Defenceweb (2016) Nigerian Navy commissions 39 gunboats, local patrol vessels. Available via http://www.defenceweb.co.za/index.php?option=com_content&view=article&id=4476 5:nigerian-navy-commissions-39-gunboats-local-patrol-vessel&catid=51:Sea&Itemid=106. Accessed 15 Sept 2018 De Silva-Ranasinghe S (2010) Strategic analysis of Sri Lankan military’s counter-insurgency operations. Future Directions International Strategic Analysis Paper. Perth De Silva-Ranasinghe S, Sutton M (2015) Future considerations for Sri Lanka’s Navy. Australian Naval Institute. Available via https://navalinstitute.com.au/future-considerations-for-srilankas-navy/. Accessed 3 Sept 2018 eNews (2014) French Navy to Patrol West African Coast. Available at https://www.enca.com/ africa/france-sets-pirate-patrol-mission-west-african-coast. Accessed 13 Mar 2019

12  The Role of Navies in the Contemporary Era

209

Farrell T, Terriff T (eds) (2002) The sources of military change. Culture politics, technology. Lynne Rienner, Boulder/London Germond B (2015) The geopolitical dimension of maritime security. Mar Policy 54:137–142 Globalsecurity (2012a) Sri Lanka Navy. Globalsecurity. Available via https://www.globalsecurity. org/military/world/sri-lanka/navy.htm. Accessed 3 Sept 2018 Globalsecurity (2012b) Sri Lanka Navy- History. Globalsecurity. Available via https://www.globalsecurity.org/military/world/sri-lanka/navy-history.htm. Accessed 3 Sept 2018 Globalsecurity (2012c) Sri Lanka Navy- Modernisation. Globalsecurity. Available via https://www. globalsecurity.org/military/world/sri-lanka/navy-modernization.htm. Accessed 3 Sept 2018 Gray C (2008–2009) The 21st century security environment and the future of war. Parameters 38(4):14–26 International Crisis Group (2012) The Gulf of Guinea: The New Danger Zone. Africa Report 195 International Institute for Strategic Studies. The military balance. Available via https://www.iiss. org/publications/the-military-balance. Accessed 15 Sept 2018 International Maritime Bureau (2015) Piracy and armed robbery against ships  – 2014 annual report. IMB, London International Peace Institute (2014) Insecurity in the Gulf of Guinea: assessing the threats, preparing the response. Report from a round table on Peace and Security in the Gulf of Guinea held at the International Peace Institute, New York, 6 June 2013 Jacobsen KL, Nordby JR (2015) Maritime security in the Gulf of Guinea. Royal Danish Defence College Publishing House, Copenhagen Hokayem E, Roberts DB (2016) The war in Yemen. Survival 58(6):157–168 Karim MA (2013) The South China Sea disputes: Is high politics overtaking? Pacific Focus. Inha J Int Stud 38(1):99–119 Kraska J, Monti M (2015) The law of naval warfare and China’s maritime militia. International Law Studies US Naval War College No 91 Lalwani SP (2017) Size still matters: explaining Sri Lanka’s counterinsurgency victory over the Tamil Tigers. Small Wars & Insurgencies 28(1):119–165 Le Miére C (2014) Maritime diplomacy in the 21st century. Drivers and challenges. Routledge, London Liss C (2013) New actors and the state: addressing maritime security threats in Southeast Asia. Contemp Southeast Asia 35(2):143–144 Martin C (2016) The UK as medium maritime power in the 21st century: logistics for influence. Springer, London Moore A (2018) This is not a drill: 5 facts about the South China Sea. Public Affairs. University of Melbourne. 1 March. https://pursuit.unimelb.edu.au/public-affairs. Accessed 8 Oct 2018 Murray W, Millett A (eds) (1996) Military Innovation in the Interwar Period. Cambridge University Press, Cambridge Musah A (2009) West Africa: governance and security in a changing region. International Peace Institute, New York Nappi NR (2017) Sri Lanka is an open door to the Indian Ocean. Proceedings [online] 143/9/1,375. Available at https://www.usni.org/magazines/proceedings/2017-09/sri-lanka-open-doorindian-ocean. Accessed 3 Sept 2018 Oceans Beyond Piracy (2015) Maritime organisation for West and Central Africa. Available via http://oceansbeyondpiracy.org/matrix/maritime-organization-west-africa-and-central-africamowca. Accessed 15 Sept 2018 Oceans Beyond Piracy (2018) Introduction to private maritime security companies, p 8. Available via http://oceansbeyondpiracy.org/introduction-private-maritime-security-companies-pmscs. Accessed 10 Oct 2018 Onuoha F (2012) Piracy and maritime security in the Gulf of Guinea: Nigeria as a Microcosm. Al Jazeera Centre for Studies. Available via http://studies.aljazeera.net/ResourceGallery/media/ Documents/2012/6/12/201261294647291734Piracy%20and%20Maritime%20Security%20 in%20the%20Gulf%20of%20Guinea.pdf. Accessed 15 Sept 2018

210

F. Vreÿ and M. Blaine

Osinowo A (2010) Right-sizing African navies for maritime security. Paper presented at the African Centre for strategic studies conference, Dar es Salaam, Tanzania, 18–23 April 2010 Osinowo A (2015) Combating piracy in the Gulf of Guinea. African Security Brief 30 Pitney J, Levin JC (2013) Private anti-piracy navies: how warships for hire are changing maritime security. Lexington Books, Lanham Povlock P (2011) A guerrilla war at sea: the Sri Lankan civil war. Small Wars Journal, 9 September Royal Australian Navy (2005) The navy contribution to Australian Maritime Operations. Defence Publishing Service, Canberra, p 9 Shay S (2016) The Bab El Mandeb strait and the Houthi threat. IPS Publications. Institute for Policy and Strategy, Lauder School of Government Diplomacy and Strategy, October Shemella P (ed) (2016) Global responses to maritime violence. Cooperation and collective action. Stanford University Press, Stanford Smith JO (2007) Maritime interdiction in Sri Lanka’s counterinsurgency. Small wars Insurgencies 22(3):448–466 Spearin C (2012) Private gunboats on the horizon. In: Berube C, Cullen P (eds) Maritime private security. Market responses to piracy terrorism and waterborne security risks in the 21st century. Routledge, Oxon, pp 39–48 Speller I (2014) Understanding naval warfare. Routledge, New York/Oxon Srivastada N (2016) Russia’s naval resurgence in Eurasia? Marit Aff J Natl Marit Found India 12(2):42–57 Stepmap. Map created with Stepmap. Available via https://www.stepmap.de/. Accessed 3 October 2018 Tan ATH (2007/2011) The politics of maritime power: a survey. Routledge, Oxon/New York Taylor and Francis page on Cass Series on Naval Policy and History (n.d.). https://www.routledge. com/Cass-Series-Naval-Policy-and-History/book-series/CSNPH?page=2&page=1. Accessed 31 July 2018 Tepp E (2012) The Gulf of Guinea: military and non-military ways of combating piracy. Balt Secur Def Rev 14(1):181–214 The Island (2008) SLN Commander outlines navy’s long and short-term challenges. The Island [online] 1 June 2018. Available via http://www.island.lk/2008/06/01/features14.html. Accessed 3 Sept 2018 The Sri Lanka Guardian (2017) Navy’s proud moment. The Sri Lanka Guardian [online] 7 August 2017. Available via http://www.dailynews.lk/2017/08/07/editorial/124329/ navy%E2%80%99s-proud-moment. Accessed 3 Sept 2018 Till G (2013) Seapower in the twenty first century. Routledge, Oxon Tull D (2011) West Africa. In: Mair S (ed) Piracy and maritime security: regional characteristics and political, military, legal and economic Implications. Stiftung Wissenschaft und Politik (SWP), Berlin, pp 28–33 United Nations (2012) Report of the United Nations Assessment Mission on Piracy in the Gulf of Guinea. Available via http://www.securitycouncilreport.org/atf/ cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/AUUN%20S% 202012%2045. pdf. Accessed 15 Sept 2018 United Nations Office on Drugs and Crime (2013) Transnational organised crime in West Africa: a threat assessment. UNODC, Vienna Vreÿ F (2009) Bad order at sea: from the Gulf of Aden to the Gulf of Guinea. Afr Secur Rev 18(3):17–30 Vreÿ F (2013) Asymmetric threats at sea: a perspective on three cases. Royal Danish Defence College, Copenhagen

Chapter 13

Non-state Actors in the Maritime Domain: Non-state Responses to Maritime Security Challenges Carolin Liss

Abstract  Over the past decades, non-state actors have played an increasingly important role in the mitigation of maritime security challenges, particularly non-­ traditional security threats such as piracy, illegal fishing or human trafficking at sea. Among the most prominent of these non-state actors are Private Military and Security Companies (PMSCs) and non-governmental organisations (NGOs). Taking a closer look at the activities of anti-piracy PMSCs and NGOs active in search and rescue (SAR) operations in the Mediterranean, this chapter examines the role of non-state actors in maritime security governance and assesses if their efforts work against or complement state responses to maritime security challenges. Keywords  Non-state actors · Maritime security · Private maritime security · Search and rescue · Piracy · Human trafficking

13.1 Introduction Non-state actors have long been involved in the maritime sphere, engaged, for example, in the protection of the marine environment or the welfare of seafarers. Over the past decades, non-state actors have also played an increasingly important role in the mitigation of maritime security challenges, particularly non-traditional security threats such as piracy, illegal fishing or human trafficking at sea. Among the most prominent of these non-state actors are private companies that offer commercial solutions to security threats and non-governmental organisations (NGOs) which are mostly involved in addressing humanitarian or environmental concerns in the maritime sphere. This chapter will examine the role of these two different types of non-state actors in maritime security (governance) and assess if their efforts work C. Liss (*) Peace Research Institute Frankfurt and Vesalius College, Frankfurt am Main and Brussels, Germany and Belgium e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Otto (ed.), Global Challenges in Maritime Security, Advanced Sciences and Technologies for Security Applications, https://doi.org/10.1007/978-3-030-34630-0_13

211

212

C. Liss

against or complement state responses to maritime security challenges.1 The chapter demonstrates that these non-state actors work alongside state agencies and that their activities are at times welcome – and not welcome at other times – depending on factors such as the changing political environment they are operating in. The first part of the chapter provides the theoretical framework, illustrating the complex relationship between state and non-state actors in addressing maritime security threats and in maritime security governance. The second part offers two case studies highlighting the different involvement of non-state actors in addressing or managing maritime security threats. The first example discusses the employment of Private Military and Security Companies (PMSCs) to protect commercial vessels from pirate attacks and the second focuses on the role of NGOs in search and rescue operations in the Central Mediterranean.

13.2 Part I: Non-state Actors in (Maritime) Security Governance Over the past three decades, maritime security challenges such as maritime terrorism, people trafficking by sea and piracy, have received increasing attention worldwide. Responding to maritime security threats, which are regarded as challenges to national security, is still often understood as the responsibility of governments or international institutions. Yet, the notion of the state as the sole provider of (maritime) security is becoming increasingly dated, as non-state actors such as private businesses and NGOs play ever more important roles in providing security and security governance. With this involvement of non-state actors, established patterns of security governance are changing and alternative methods for tackling maritime security threats have become more prominent. Throughout history, non-state actors have played a role in addressing and managing concerns and threats in the maritime sphere. Over time, the type of non-state actors and the role they have played in security governance changed, with different types of actors flourishing or waning in certain periods and political environments (Thomson 1994). Among the most prominent historical non-state actors active in the maritime sphere are privateers. Privateers were private persons (or vessels) which attacked enemy ships during wars on behalf of governments. Authorised by a ‘letter-of marque’, they were used to disrupt enemy trade and shipping and were, at least in theory, obliged to follow set rules and operational procedures. However, with the emergence of modern, permanent navies and the development and enforcement of the idea of a state monopoly on violence (at sea), such armed non-state actors vanished from the oceans. Privateering, for instance, became delegitimised and was eventually abolished with the 1856 Declaration of Paris (Thomson 1994, pp. 70–71).  The role of the maritime industry will not be discussed in detail as this is beyond the scope of this chapter. 1

13  Non-state Actors in the Maritime Domain: Non-state Responses to Maritime…

213

This process was driven by the notion that the provision of national security, including the protection of citizens and national borders, is a fundamental responsibility of governments. Max Weber’s definition of the state as “a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory” (Gerth and Wright Mills 1970, pp.  70–1) is frequently referred to in this context. This “‘monopoly’ of the nation state in the legitimate provision of security (…) developed over the past centuries and appears to have reached its prime during the Cold War” (Krahmann 2005, p. 9). It was indeed only after the end of the Cold War that non-state actors once again became important players in national and international (maritime) security governance. The non-state actors that became prominent in the post-Cold War era include a variety of different actors, such as NGOs, private companies and hybrid actors. They include for-profit actors motivated by financial gain as well as not-for-profit actors driven by other objectives such as humanitarian or environmental causes. The nature and scale of these actors’ involvement in maritime security governance depends on their motivations and capacities. There are a variety of global, regional and local changes that facilitated the recent involvement of non-state actors in managing and responding to maritime security challenges. Of particular significance for this discussion are: (1) global economic, political and social changes in the post-Cold War era and (2) the identification of a wide range of (non-traditional) security threats in the maritime sphere that receive substantial international attention.

13.2.1 Economic, Political and Social Changes in the Post-Cold War In the post-Cold War environment non-state actors have become involved in responses to economic, political and social problems, such as financial crisis and climate change that pose serious challenges to existing state institutions worldwide. They often assist or work alongside national agencies to manage or respond to contemporary concerns, including maritime security threats. A range of economic, political and social changes facilitated the involvement of these non-state actors in security governance. They include the global downsizing of major militaries, the changing nature of conflict after 1989, the development of technologies that allow easy global communication and travel, and rising international awareness of humanitarian and ecological crisis that require complex (international) responses. Furthermore, the involvement of commercial actors was driven by the broader process of privatisation of public services and state sector enterprises (such as education and healthcare on land and the privatisation of ports in the maritime sphere) – leading to the outsourcing of an ever increasing range of security services (Avant 2005; Avant et  al. 2010; Hall and Biersteker 2003; Josselin and Wallace 2001; Singer 2003). However, the role and impact of non-state actors in international security governance remains contested. Some argue that their increased engagement diffuses state power and points toward a shift to an international system in which authority is

214

C. Liss

increasingly exercised by a plurality of different state and non-state actors. Even though states continue to be important, they are no longer the sole source of authority (Avant et al. 2010; Cutler et al. 1999; Rosenau and Czempiel 1992). Others suggest that states will remain the most prominent players in security governance, at best assisted by non-state actors, and that the significance of the role private actors play is exaggerated (Drezner 2007; Krasner 1999). There is, however, little doubt that non-state actors have taken on new, or different, responsibilities, regardless of how their involvement affected the role of the state.

13.2.2 Emerging Maritime Security Threats Maritime security has received more and more attention over the past decades and has increasingly been recognised as a vital component of national security – even by non-coastal states (Bueger 2015; Eklöf Amirell 2016). The maritime sphere is of strategic importance for a variety of reasons. Shipping, for instance, is the foundation of the global economy, with ships carrying more than 90% of goods by volume worldwide (Stopford 2004). Countries around the world also rely on the oceans for natural resources such as gas and oil, and the oceans are an important source of nutrition. Furthermore, maritime industries, such as the fishing industry, are crucial parts of local, regional and international economies. A range of security threats today challenge the safety and security of maritime nations and industries and the marine environment that require complex international responses. For example, over the past few decades, disputes over maritime boundaries and ownership of water areas and islands have increasingly strained relations between countries involved. The periodic flare-up of tensions over ownership of the Spratley Islands involving China and several Southeast Asian countries is one of the most prominent examples today. Maritime borders, as well as other maritime infrastructure such as ports, Sea Lines of Communication (SLOCs) and offshore energy installations, are also increasingly challenged by illegal non-state actors, particularly criminals and radical politically motivated groups. Criminals active at sea include pirates and smugglers. Smuggling is a concern in most parts of the world, with goods such as prohibited drugs, fake medicine, weapons and cigarettes illicitly transported by sea. Particular attention has been paid in recent years to the activities of people smugglers or traffickers. Among the most prominent examples are people trafficking through Southeast Asia to Australia and, as will be discussed later in more detail, the smuggling of people through the Mediterranean to Europe (Little and Vaughan-­ Williams 2017). Piracy emerged as a contemporary maritime security concern in the 1970s, with the attacks on the Vietnamese Boat people in Southeast Asian waters. While piracy hot-spots have shifted to different water areas and regions over the years, Southeast Asia continues to remain a global ‘hot spot’ of pirate attacks on commercial vessels and fishing boats (ICC 2018; Liss 2011). In more recent years, pirate attacks in the Gulf of Aden and the Gulf of Guinea have flared up, with Somali and Nigerian

13  Non-state Actors in the Maritime Domain: Non-state Responses to Maritime…

215

pirates attacking merchant and fishing vessels and holding ships and crew for ransom. Politically and ideologically motivated groups are also a concern in the maritime environment. Among these are terrorist and separatist groups, as well as radical environmental movements. While expert opinions vary on the likelihood of politically or ideologically motivated attacks on maritime targets, such organisations can target maritime assets such as vessels, offshore energy or port facilities. Among the most prominent examples of such an attack is the bombing of the SuperFerry 14 in February 2004 in the southern Philippines, in which more than 100 people lost their lives (Labog-Javellana and Tubeza 2004). Alternatively, radical groups can use the maritime environment to improve their ability to operate on land, by using waterways for transport, for example. Last but not least, there has been increasing concern about the overexploitation and destruction of the marine environment. Problems such as marine pollution or the effect of climate change have received attention in this regard, as well as illegal, unreported, and unregulated (IUU) fishing. IUU fishing includes activities such as fishing illegally in protected waters, fishing without a valid licence, underreporting catch, and using banned fishing gear. IUU fishing is facilitated by the availability of ever more effective fishing equipment and vessels. It causes the depletion of fish stocks, the destruction of the marine environment, and substantial financial losses to affected communities and countries (High Seas Task Force 2006). Addressing these diverse maritime security threats and concerns is a difficult task and requires a multitude of different responses. Additional manpower and task-­ specific resources are needed, which can overstretch capacities of government agencies. It also requires regional and international cooperation, for example, to establish international guidelines and laws to protect the marine environment or address other transnational maritime security concerns. Government agencies such as navies have adapted their operations to address contemporary maritime security threats (Till 2013, pp.  31–38, 282–305), and cooperation between countries exists. Indeed, a range of new international regulations have been introduced, including the International Ship and Port Facility Security (ISPS) Code. However, government agencies generally do not have the resources to address (all aspects of) all maritime security concerns, and do not necessarily have the manpower and expertise to implement and enforce new regulations. As a result, non-state actors have become increasingly involved in addressing maritime security threats.

13.3 Part II: Non-state Actors in the Maritime Domain: Case Studies There is a wide range of non-state actors that are today involved in addressing maritime security threats and challenges. Among them are for-profit actors, such as PMSCs, which are engaged primarily to generate income, and not-for-profit actors, which are motivated by a set of ideals or a single issue. The latter include NGOs and other civil society organisations, but also hybrid organisations and international

216

C. Liss

institutions. Perhaps in-between these categories are trade associations that are very active in the maritime sphere and have contributed substantially to managing and averting risks and maritime security threats. They include national associations as well as large international organisations, such as the International Association of Independent Tanker Owners (Intertanko) and the International Chamber of Shipping (ICS).2 Trade associations such as the ISC have published guidelines and recommendations for seafarers and ship-owners to respond to threats such piracy and have been actively involved in the establishment of national and international regulations addressing maritime security challenges.3 All of these non-state actors are involved in the maritime sphere in a variety of ways and offer various solutions and assistance to manage security challenges and their consequences. This chapter takes a closer look at two different non-state actors: PMSCs, with a particular focus on the provision of anti-piracy services, and NGOs, especially those engaged in search and rescue missions in the Central Mediterranean.

13.3.1 PMSCs and Anti-piracy Services PMSCs are private businesses and are part of the wider private security industry. They offer a wide range of security services but operate mostly on land. They are active in war and conflict zones as well as in more peaceful environments where they guard shopping centres or airports. Some companies like GardaWorld (which acquired AEGIS in 2015) operate on land but also offer maritime services (GardaWorld n.d.). Other companies solely specialise in maritime security services, including the Malta-based company Seagull Maritime Security (n.d.), the London-­ based Maritime and Underwater Security Consultants (MUSC) (n.d.) and Hart Maritime, with headquarters in Dubai and offices in London, Cyprus, Sydney, Kabul and Mogadishu (n.d.). As these examples show, PMSCs that offer maritime services are based around the world and often operate globally. They are hired by governments, ship-owners, insurance companies, port operators or other clients. Most maritime PMSCs emerged in the past two decades, although some companies have been in operation for several decades, including MUSC which was established in 1974 (Maritime and Underwater Security Consultants n.d.). The number of companies offering maritime security services fluctuates strongly, with companies emerging, going out of business, merging or changing their name and field of operation. Many PMSCs active in the maritime sphere are set up by and employ ex-military personnel. They offer a variety of passive and active services in the maritime sphere. Among the core passive services are the publication of risk assessments, client  The ICS, for example, is the “principal international trade association for merchant ship-owners and operators, representing all sectors and trades and over 80% of the world merchant fleet” (International Chamber of Shipping n.d.). 3  See, for example, International Association of Independent Tanker Owners et al. (2018). 2

13  Non-state Actors in the Maritime Domain: Non-state Responses to Maritime…

217

specific intelligence reports and maritime security training for crews of merchant vessels or port employees. The active services concentrate largely on the armed and unarmed protection of maritime assets and onshore and offshore installations. Onshore, these include port security services, such as access control and emergency responses. Offshore, the services include the protection of offshore energy installations against attacks from terrorists, insurgents and radical civil protest groups (Kashubsky 2013). However, the most prominent offshore employment of PMSCs is the armed protection of vessels against pirates. 13.3.1.1 PMSC Anti-piracy Services PMSCs offer a range of services to protect vessels from pirate attacks and prepare the crew for such incidents. These include the training of crews and the fortification of ships with electric fences, long range acoustic devices or other technological gadgets.4 The most talked-about and controversial anti-piracy services provided by PMSCs are, however, the employment of Privately Contracted Armed Security Personnel (PCASP) onboard vessels, the use of armed escort ships and the recovery of hijacked ships and cargoes. Clients such as ship or cargo owners and insurance companies hire PMSCs to conduct anti-piracy services in high risk waters, where government protection is insufficient. The first anti-piracy PMSCs were hired to protect vessels in the Malacca Strait in the early 2000s when pirate attacks became a serious international concern in this strategically important waterway. At the turn of the century, the number of reported incidents in the strait jumped from two reported actual and attempted attacks in 1999 to 75 in 2000. The following year, the number dropped to 17 and declined again further to 16 incidents in 2002. In 2003, 28 incidents were reported, 37 in 2004, 12 in 2005 and 11 in 2006 (ICC 2007). As government forces were deemed unable to address the piracy problem, some ship-owners hired PMSCs to protect their vessels and crews. Mainly PCASP were employed to protect vessels but some companies also provided escort vessels that accompanied their client’s ship through the strait. As the number of attacks in the Malacca Strait declined after 2007, the employment of anti-piracy PMSCs in the Malacca Strait also dropped (Author’s Interviews, Liss 2011). Only a year later, a spate of hijackings and other serious attacks conducted by Somali pirates began to trigger a boom in demand for anti-piracy services. In 2008, attacks by Somali pirates conducted in the Gulf of Aden, the Red and Arabian Seas, parts of the Indian Ocean, and Omani waters began to cause international concern, as the number of actual and attempted attacks rose from 51 in 2007 to 111 in 2008. The upwards trend continued in the following years with 218 reported incidents in 2009, 219 in 2010, peaking at 237 attacks in 2011 (ICC 2012). The pirates targeted ships of all types, sizes and nationality, including merchant ships, yachts, UN

 For a list of devices see Kantharia (2017).

4

218

C. Liss

supply ships, fishing boats and supertankers. Most of the attacks were serious in nature, with Somali pirates holding vessels and crews for ransom. While estimates vary, a World Bank study found that between April 2005 and December 2012, Somali pirates hijacked a total of 179 ships and collected between US$339 million and US$413  million in ransom (World Bank 2013). Given the magnitude of the attacks, governments from around the world sent naval vessels to protect international shipping in the affected waters and multilateral organisations, such as NATO and the European Union, sanctioned and organised missions to combat Somali piracy (Ehrhart et al. 2010). Efforts also included unorthodox measures by governments, with France and the Netherlands, for example, using military personnel as armed guards on merchant and fishing boats flying their respective flags (see Liss and Schneider 2015). Despite these measures, however, pirate attacks initially continued and ship owners and the insurance industry turned to PMSCs for additional vessel protection. PMSCs were mostly hired to provide PCASP to secure merchant ships, but also yachts, fishing boats and cruise ships. Two to six armed guards were usually hired to protect a merchant ship, armed with heavy or war weapons, which needed to be taken onboard the client’s ship and then removed upon the debarking of PMSC personnel. PCASP usually boarded their client’s ship before it entered the high-risk zone, for example just after a ship travelling from Europe towards Asia passed the Suez Canal, and debarked when the ship reached safer waters, in places such as the Seychelles or Sri Lanka. Some clients also paid for additional security measures such as water cannons or electric fences to be installed on their vessels, and a few companies began to offer the use of armed escort vessels to protect client ships in the high risk area (Author’s Interviews with shipowners, underwriters and PMSC employees 2000–2017). The large number of serious attacks by heavily armed Somali pirates and the large amount of ransoms paid fuedled the demand for PCASP (Author’s Interviews with shipowners, underwriters and PMSC employees 2010–2017). In response, a large number of PMSCs emerged, specialising in maritime security, and some already existing companies expanded their range of services on offer to also include anti-piracy (and other maritime security) measures. At the peak, an estimated 300 PMSCs offered vessel protection services, but it is unclear how many of these companies actually conducted anti-piracy operations. The rapid expansion of the industry was possible because many of the PMSCs that emerged were small businesses, with few permanent staff members and, in some cases, even without a fixed office. PCASP were often hired by PMSCs on short-term contracts when needed, with only a few companies successful enough to offer guards more permanent employment of six to twelve months (Author’s Interviews; Berube 2014). The combined efforts of governments and PMSCs began to show success in 2012, with ‘only’ 75 attempted and actual attacks by Somali pirates reported that year. In the following year the number dropped further to 15 incidents, including two successful hijackings that ended within one  day (ICC 2014, p.  20). While Somali piracy has not been fully eradicated, the number of attacks conducted by these pirates has remained low, with 11 actual and attempted attacks reported in 2014, zero in 2015, two in 2016 and nine in 2017 (ICC 2018). With the decline in Somali piracy, demand for private anti-piracy services has also dropped and the

13  Non-state Actors in the Maritime Domain: Non-state Responses to Maritime…

219

number of companies offering anti-piracy services waned.5 However, demand for anti-piracy services has not fully vanished, because pirates in other areas, including Southeast Asia (Liss and Biggs 2017) and the Gulf of Guinea (ICC 2018), began to increase their activities. In addition, other maritime security threats fuel demand for vessel protection services, including the conflict in Yemen. Vessel protection is needed there because ships have been accidentally and intentionally assaulted in the conflict (International Association of Independent Tanker Owners 2018). The use of PCASP to secure vessels against Somali pirates is significant as it indicates a re-evaluation of the use of PCASP onboard vessels. Indeed, until the high-profile Somali pirate attacks, the use of armed guards was firmly rejected by the maritime industry, policy makers, and international organisations. While PMSCs often seem to work alongside, rather than with government forces, the use of PCASP is today widely regarded as an accepted and successful method to prevent pirate attacks. An important step in this direction was the introduction of regulations managing the employment of PMSCs and PCASP. Indeed, a major concern was initially the lack of laws and regulations regarding maritime PMSCs. Regulating PMSCs in general is beset with difficulties (see, for example, Avant 2005; Singer 2003), and government oversight and control of operations at sea has its own challenges. Government control at sea is often weak and PCASP travelling on a vessel operate far from the eyes of impartial observers. Indeed, mostly only the crew of the client’s vessel (and in some cases the pirates) can observe how the armed guards operate. PCASP also works across borders within a single operation. Complicating the situation further is that they operate in environments with overlapping jurisdictions, as the client’s ship not only passes through international waters and the waters under the jurisdiction of coastal states, but the ship itself has the nationality of the country of registration and is bound to the flag state’s laws.6 Despite these difficulties, the rising employment of PCASP forced governments and the wider international community to react and regulate the activities of maritime PMSCs. Noteworthy in this regard are the guidelines issued by the International Maritime Organisation (IMO) since 2008, which recommend that flag states in cooperation with ship owners should generate policies to regulate the use of PCASP (International Maritime Organisation 2011, p.  31). Other, voluntary international initiatives such as the Code of Conduct for Private Security Providers (International Code of Conduct Association n.d.) and guidelines from within the maritime security industry have also been introduced. However, no binding international regulations were established that specifically address the use of PCASP on vessels. As a result, the responsibility to regulate and control anti-piracy PMSCs has largely been left to flag states. Leaving the responsibility to flag states has been problematic, particularly because many flag of convenience (FOC) countries are renowned for their lack of resources and their lax regulations in regard to vessel safety and security standards. Most flag states did not have comprehensive regulations that governed  Other reasons why some companies went out of business include failure to win customers and insufficient funds and skills to organise armed international operations. 6  Jurisdiction over water areas and vessels is largely determined by the United Nations Convention on the Law of the Sea (UNCLOS). 5

220

C. Liss

the use of armed PMSC guards on ships. Therefore new regulations had to be introduced, with flag states approaching this process in different ways. Some states, especially flag of convenience (FOC) countries, simply did not introduce clear rules and delegated the responsibility of hiring PCASP to ship owners and masters of protected vessels. Other states did develop new regulations and attempt to control PMSCs and their operations in the maritime sphere. These countries include Japan, Germany, Norway, and the United Kingdom (UK) (International Chamber of Shipping and European Community Shipowners Associations 2017). Yet, every flag state has its own regulations, with major variations regarding the licensing of PMSCs and PCASP, the types of weapons allowed to be used and the rules relating to the export, transport and storage of these weapons (see Liss and Schneider 2015). Despite these international and flag state efforts, a range of problems and concerns remained, not only because some flag states do not make serious efforts to regulate anti-piracy PMSCs. The main problem is that the current system has too many loop holes that prevent proper regulation and oversight of PMSCs. Vessel owners can, for instance, change the flag of their vessels if their own flag state introduces regulations that are too stringent. Furthermore, oversight of PMSC activities at sea remains difficult, and many regulations address only some aspects of PMSC anti-piracy operations. For example, many regulations do not cover the international transportation of weapons used by PCASP or their storage between operations (Liss and Schneider 2015). The existence of these loop holes has allowed anti-piracy PMSCs a lot of freedom to conduct their services and have resulted in some dubious working practices. Concerns have especially centre on the acquisition, transport, and storage of weapons. PMSCs either legally or illegally purchase their weapons or rent them from private businesses or governments. Keeping track of these weapons is difficult, if not impossible. The weapons also need to be transported to the clients’ vessels and stored between operations, with some companies relying on floating armories  – mostly old vessels located in international waters that store weapons, ammunition, and equipment for PMSCs (Chapsos and Paul 2015). It is also worrisome that unsupervised use of weapons can result in the killing of fishermen or other seafarers mistakenly identified as pirates. Bringing these concerns to the point, a UN Security Council (2012) Report states: (T)his highly profitable business has expanded beyond the provision of armed escorts to the leasing of arms, ammunition, and security equipment, and the establishment of ‘floating armouries’, that operate in international waters beyond the remit of any effective international regulatory authority. The absence of control and inspection of armed activities inevitably creates opportunities for illegality and abuse and increases the risk that the maritime security industry will be exploited by unscrupulous and criminal actors, eventually coming to represent a threat to regional peace and security, rather than part of the solution.

Such concerns remain, even though issues such as the lack of regulation of floating armouries have received less attention after the drop in pirate attacks conducted by Somali pirates (Blake 2017).

13  Non-state Actors in the Maritime Domain: Non-state Responses to Maritime…

221

13.3.2 NGOs in the Maritime Sphere and SAR Operations in the Mediterranean Various NGOs are actively involved in addressing maritime security concern and the ecological and humanitarian consequences of crisis at sea. They include small, locally active groups, as well as large, internationally operating organisations such as the World Wildlife Fund (WWF) and Greenpeace. Like the latter two, some are active on land and at sea, while others, such as Project Aware and the Sea Shepherd Conservation Society focus solely on the maritime sphere. NGOs active in the maritime sphere are motivated by a wide range of objectives and ideas. These objectives include marine conservation issues, such as the protection of whales or broader concerns such as the reduction of marine pollution. NGOs are also actively engaged in addressing maritime workers’ concerns and offer responses to maritime security threats such as piracy or human trafficking at sea. While often associated with left-­ wing activities, NGOs active in the maritime sphere are also motivated by other ideals, including right wing ideologies. One example is the Identitarian Movement and its short-lived campaign Defend Europe. This right-wing organisation hired a vessel (a ship previously used as a floating armoury) and crew “to defend Europe” by taking “action against the ships of supposed ‘humanitarian’ NGOs” providing SAR operations in the Mediterranean (Identitarian Movement n.d.). NGOs use different modus operandi to further their aims, including passive, peaceful means as well as active, and in some cases violent, measures. The passive activities include campaigns to raise awareness of concerns such as IUU fishing; the collection and publication of data, such as piracy or fishing data; and lobbying cooperation with governments, international institutions, industry representatives and coastal communities. Examples of NGOs active in this manner include the International Maritime Bureau’s Piracy Reporting Centre, which, among other activities, offers a 24-h free piracy reporting service and collects and publishes piracy data (International Chamber of Commerce n.d.). Other NGOs have been granted consultative status at the IMO (n.d.). Meanwhile, WWF reportedly works with fishing communities to assist in fisheries management and the protection and restoration of mangroves and coral reefs (World Wildlife Fund n.d.). NGOs are also engaged in more active operations in the maritime sphere, including activities that address security concerns directly. The Indonesian NGO Gerakan Anti Trafficking (GAT), for example, has taken it upon itself to process the arrival of Indonesians returning home through illegal channels from neighbouring countries. Largely ignored by the authorities, GAT set up its own immigration centres in the Riau Islands, Indonesia, where it collects personal information of returnees, and performs ‘customs checks’ for contraband goods (Ford and Lyons 2013). The active operations conducted by NGOs also include activities against, or assaults on, offshore installations, vessels or other maritime facilities identified by these NGOs as transgressors. In September 2013, for example, Greenpeace activists attempted to climb onto a Gazprom oil platform to protest drilling in the Arctic (Kashubsky 2013). Other examples are the campaigns of the Sea Shepherds, who describe themselves as a “direct-action ocean conservation movement”. The organisation owns its

222

C. Liss

own fleet of vessels and has, for example, over years obstructed Japanese whaling vessels in the Southern Ocean and IUU vessels in waters around the world (Sea Shepherds n.d.). Critics of the organisation have pointed to the dangerous working practices of the Sea Shepherds (such as provoking collisions with targeted vessels or direct attacks on ships) and the activists have been labelled extremists or even eco-terrorists (Doherty 2017; MI News Network 2016). The active operations of NGOs in the maritime sphere also include activities that address the humanitarian or ecological consequences of crisis in the maritime sphere such as the SAR operations conducted by NGOs in the Mediterranean. 13.3.2.1 NGO SAR Operations in the (Central) Mediterranean7 NGOs began to provide SAR operations in the Mediterranean in 2014 in response to the high death toll of migrants crossing these waters on their way to Europe. In 2014 alone, an estimated 3283 people vanished in the Mediterranean, with the number increasing to 3782  in 2015 and 5143  in 2016. In 2017 the number of deaths dropped to 3139 in 2017 and to 2297 in 2018 (Missing Migrants Project 7 February 2019). In the eyes of these NGOs, governments did not make sufficient efforts to assist those in need and stop this humanitarian crisis (Cusumano 2016). Government SAR efforts remained indeed limited. The early efforts of the Italian Navy, however, are noteworthy. It began SAR missions to save lives at sea in 2004 and increased its efforts after the sinking of two migrant vessels in October 2013, which left more than 600 people dead. This tragedy caused an international outcry and prompted Italy to launch operation Mare Nostrum to intensify its SAR operations. After only one year, Mare Nostrum ended on 31 October 2014, due to a lack of support from other European countries. Mare Nostrum was replaced by Triton (and subsequently Triton II), an operation headed by Frontex, the European Border and Coast Guard Agency. Triton’s focus, however, was not on SAR operations but the protection of European borders and the fight against people smugglers in the Central Mediterranean. The same was true for the second Frontex operation Poseidon, which was launched in the Aegean in response to the increasing number of migrants crossing these waters towards Greece. As the humanitarian crisis continued, Triton was supported by EUNAVOR Med Sophia, with a similar objective, as well as other, smaller efforts by individual governments and international institutions, notably NATO (Cusumano 2016; Steinhilper and Gruijters 2017). With government efforts failing to avert the humanitarian crisis in the Mediterranean, a small number of NGOs decided to use vessels to conduct SAR operations at sea to rescue migrants and save lives.8 The first organisation to launch a vessel in response to this  The focus is on the Central Mediterranean but other parts of the Mediterranean are also briefly discussed. 8  The engagement of NGOs in such SAR operations has been rare, with precedents including the use of vessels to rescue Vietnamese Boat people in Southeast Asian waters in the late 1970s and the operations conducted by the SAR vessel Cap Anamur (del Valle 2016, p. 35). 7

13  Non-state Actors in the Maritime Domain: Non-state Responses to Maritime…

223

humanitarian crisis was the Migrant Offshore Aid Station (MOAS). MOAS is a Malta-based organisation specifically created for this purpose. It uses a former fishing vessel which has been converted into a SAR ship by the millionaires Christopher and Regina Catrambone and chartered for free to the organisation. MOAS’s first operation began in August 2014, and as the organisation began to successfully rescue migrants at sea, their example was followed by about a dozen other NGOs. These include other, comparatively small, specialised organisations such as Sea-­ Eye, Pro Activa Open Arms, SOS Mediterrane (SOS Med), Sea-Watch and Jugend Rettet as well as large international organisations such as Medicines Sans Frontiere (MSF) and Save the Children (Cusumano 2016; Zandonini 2017). While all of these NGOs are engaged in SAR operations, their modus operandi varies. Many organisations use their vessels to take migrants in distress onboard and disembark them in European ports, initially mostly in Italy when they are were rescued in the Central Mediterranean. Others, especially smaller organisations such as Sea Watch, Pro Activa and Sea Eye, do not take migrants on board. They provide first aid, life vests and drinking water to migrants at sea and monitor the situation until a larger vessel takes the migrants to the mainland (for more details see: Cusumano 2016). A few organisations, including MOAS and Sea Watch, also have planes available to support their operations (Zandonini 2017). The NGO SAR operations initially received strong public support, demonstrated by the donations that fund the NGO work conducted at sea. Public support was strengthened through positive media coverage of the NGO activities, combined with coverage of the human tragedy unfolding at sea. NGO SAR operations also initially received praise from governments, and the organisations were regarded by authorities as legitimate providers of SAR missions. The President of the Italian Republic, for example, awarded a medal to MOAS co-founder Regina Catrambone for her contribution to assist those in distress. More important was, however, the willingness of Italian and other authorities to cooperate with the NGOs. This cooperation was essential for NGOs to legally disembark the migrants they rescued and to avoid prosecution for their activities. Prosecution has been a concern because conflicting national and international regulations regarding SAR and illegal migration complicate the legal environment in which SRA NGOs operate. In order to avoid legal complications, NGOs have conducted “SAR operations only in coordination with and under the authorisation of local Coast Guards” (Cusumano 2016, p. 95). More recently, however, the SAR operations conducted by NGOs have increasingly been criticised. Accusations include allegations that these operations are a ‘pull factor’, encouraging migrants to start their journey to Europe. Supported by findings of recent studies (Steinhilper and Gruijters 2017 for example) NGOs have rejected this claim. Del Valle (2016), Head of Advocacy and Operational Communications, MSF Amsterdam, made the following point: [MSF] had enough experience to reject the myth that aid in itself is the primary factor triggering or generating displacement, and the situation in the Mediterranean was no different. Indeed, being active in most of the countries from which people were coming, MSF was aware of the powerful push factors behind the choice to migrate from war, persecution, or crippling misery.

224

C. Liss

NGOs have also been accused of assisting and cooperating with people smugglers, or alternatively facilitating the dangerous practices of these criminals because the smugglers count on migrants being rescued (and can therefore use unseaworthy vessels, for instance). NGOs conducting SAR missions have categorically denied that they cooperate with people smugglers (or actively support them in any other way) and have pointed out that they have always cooperated with authorities, particularly the Maritime Rescue Coordination Center (MRCC) in Rome, but also, among others, EUNAVOR MED and Frontex. They further explained that they received information about the location of people in distress from such authorities or other legal channels, not from criminals (del Valle 2016, pp. 30–33, 38–39). The criticism of NGO SAR operations is a reflection of the changing political environment in Europe and elsewhere, especially the strengthening of right-wing and populist powers. The success of Salvini’s League and the Five Star Movement in the 2018 Italian election is an important case in point, because Italy has played such a crucial part in SAR missions. This power shift to the right has adversely affected the work of NGOs at sea – and has forced SAR NGOs to suspend their operations at times. Significantly, the Italian government began to deny NGO boats access to Italian ports to disembark migrants or refuel their ships – with the blockage in place ‘all summer’ in 2018. In June that year, the SOS Med vessel Aquarius, for example, was denied access to Italian ports to disembark 695 rescued migrants. After a period of uncertainty in which provisions ran out, Spain eventually allowed the ship to dock in Valencia (Kirchgaessner et  al. 2018; Nicholls 2018). A few months later, the Aquarius, this time with 141 migrants on board, ran into trouble again as Spain also denied it access to its ports. The vessel was eventually allowed to dock in Malta, after Spain, Portugal and other European countries signalled their willingness to accept the migrants. The Aquarius was at the time the only NGO SAR vessel still active, but it encountered additional problems when Panama revoked the ship’s registration in late September 2018 (Rose 2018). Other NGOs suspended their operations because their boats have been arrested by authorities. For example, the boat operated by Jugend Rettet has been seized by Italian authorities in August 2017 and detained now for over a year, with the crew accused of having been in contact with Libyan smugglers. Similar developments can be observed in other parts of the Mediterranean, as demonstrated by the recent charges against Emergency Response Centre International (ERCI), an NGO engaged in the rescue of migrants off the Greek island of Lesbos. Formerly celebrated for his engagement, Panos Moraitis, ERCI’s founder, and several other members have been accused by the Greek authorities of cooperating with people smugglers and other criminal activities (Christides  2018; Emergency Response Centre International 2018). All these developments have hindered the operations of SAR NGOs. As a result, fewer (and sometimes no) NGO SAR boats are active in the Mediterranean. Frédéric Penard, director of operations SOS Méd, summarised the situation as follows: “It is horrible what has been reported. This tragedy has been going on for years and is especially bad now. There are fewer boats, and with fewer boats there are fewer rescues, and there are more deaths” (Tondo and McVeigh 2018).

13  Non-state Actors in the Maritime Domain: Non-state Responses to Maritime…

225

13.4 Conclusion Various non-state actors are today involved in mitigating maritime security concerns such as the overexploitation of the oceans, piracy and human trafficking. The nature and scale of their involvement in maritime security governance depend on their motivations and capacities. Among the most prominent non-state actors involved are PMSCs and NGOs. Both operate alongside government agencies, and in some cases cooperate with authorities directly. While there are significant differences between these actors and their operations, they nonetheless face similar problems. Both operate in an environment with overlapping jurisdiction, and the regulation of these actors and their activities is patchy. While this allows organisations to exploit legal loopholes, it also makes them vulnerable to be targeted by authorities. PMSCs and NGOs are also both dependent on public opinion and the acceptance by authorities. As demonstrated in the two case studies discussed above, public and official support can change over time, depending on factors such as the broader political environment and the nature of their engagement with authorities. However, despite these difficulties, it is likely that non-state actors will continue to become increasingly involved in addressing maritime security concerns.

References Avant D (2005) The market for force: the consequences of privatizing security. Cambridge University Press, Cambridge Avant D, Finnemore M, Sell SK (eds) (2010) Who governs the globe? Cambridge University Press, Cambridge Berube C (2014) PMCS: the end or the beginning. Center for International Maritime Security, 17 April. Available via http://cimsec.org/pmcs-end-beginning/10926. Accessed 8 Aug 2014 Blake T (2017) Calls made for regulation of floating armouries. Fairplay, 25 October. Available via https://fairplay.ihs.com/article/4293241/calls-made-for-regulation-of-floating-armouries. Accessed 31 Oct 2018 Bueger C (2015) What is maritime security? Mar Policy 53:159–164. https://doi.org/10.1016/j. marpol.2014.12.005 Chapsos I, Paul H (2015) Arms at sea: floating armouries in the Indian Ocean. In: Small arms survey 2015 yearbook. Small Arms Survey, Geneva Christides G (2018) Griechenland kriminalisiert Seenotretter. Vom Helfer zum Häftling, Spiegel Online 1 Oct. Available via http://www.spiegel.de/politik/ausland/griechenlands-staat-gegenhelfer-seenotrettung-ist-kein-verbrechen-a-1229735.html. Accessed 1 Oct 2018 Cusumano E (2016) Emptying the sea with a spoon? Non-governmental providers of migrants search and rescue in the Mediterranean. Mar Policy 75:91–98. https://doi.org/10.1016/j. marpol.2016.10.008 Cutler C, Haufler V, Porter T (eds) (1999) Private authority and international affairs. SUNY Press, Albany del Valle H (2016) Search and rescue in the Mediterranean sea: negotiating political differences. Refug Surv Q 35:22–40. https://doi.org/10.1093/rsq/hdw002

226

C. Liss

Doherty B (2017) Sea Shepherd says it will abandon pursuit of Japanese whalers. Guardian, 29 August. Available via https://www.theguardian.com/environment/2017/aug/29/sea-shepherdsays-it-will-abandon-pursuit-of-japanese-whalers. Accessed 23 Oct 2018 Drezner D (2007) All politics is global: explaining international regulatory regimes. Princeton University Press, Princeton Ehrhart HG, Petretto K, Schneider P (2010) Security Governance als Rahmenkonzept für die Analyse von Piraterie und maritimem Terrorismus. Konzeptionelle und Empirische Grundlagen. PiraT-Arbeitspapiere zur Maritimen Sicherheit, Nr. 1 Eklöf Amirell S (2016) Global maritime security studies: the rise of a geopolitical area of policy and research. Secur J 29(2):276–289 Emergency Response Centre International (2018) Press release ERCI, 29 August. Available via https://ercintl.org/press-release-erci-3/. Accessed 29 Oct 2018 Ford M, Lyons L (2013) Outsourcing border security: NGO involvement in the monitoring, processing and assistance of Indonesian nationals returning illegally by sea. Contemp SE Asia 35(2):215–234 GardaWorld (n.d.) Port security services. https://www.garda.com/security-services-sectors/portsecurity-services. Accessed 16 Oct 2018 Gerth HH, Wright Mills C (1970) From Max Weber. Essays in sociology. Routledge & Kegan Paul Ltd., London Hall RB, Biersteker TJ (eds) (2003) The emergence of private authority in global governance. Cambridge University Press, Cambridge Hart Maritime (n.d.). http://hartinternational.com/maritime-security/. Accessed 16 Oct 2018 High Seas Task Force (2006) Closing the net: stopping illegal fishing on the high seas. Governments of Australia, Canada, Chile, Namibia, New Zealand, and the United Kingdom, WWF, IUCN and the Earth Institute at Columbia University. Available via http://www.high-seas.org/docs/ HSTFfinal/HSTFFINAL_web.pdf. Accessed 23 June 2008 ICC (2007) Piracy and armed robbery against ships. Report for the period 1 January – 31 December 2006. International Maritime Bureau, London ICC (2012) Piracy and armed robbery against ships. Report for the period 1 January – 31 December 2011. International Maritime Bureau, London ICC (2014) Piracy and armed robbery against ships. Report for the period 1 January – 31 December 2013. International Maritime Bureau, London ICC (2018) Piracy and armed robbery against ships. Report for the period 1 January 2017–31 December 2017. International Maritime Bureau, London Identitarian Movement (n.d.) Mission: defend Europe. https://www.identitaere-bewegung.de/en/ mission-defend-europe-en/. Accessed 23 Oct 2018 International Association of Independent Tanker Owners, Baltic and International Maritime Council, and International Chamber of Shipping (2018) Interim guidance on maritime security in the southern Red Sea and Bab Al – Mandeb. Available via http://www.imo.org/en/OurWork/ Security/Documents/MaritimeSecurityinTheSouthernRedSeaandBabal-Mandeb.pdf. Accessed 31 Oct 2018 International Chamber of Commerce (n.d.) IMB piracy reporting centre. https://www.icc-ccs.org/ index.php/piracy-reporting-centre. Accessed 24 Oct 2018 International Chamber of Shipping (n.d.). http://www.ics-shipping.org/. Accessed 16 October 2018 International Chamber of Shipping and European Community Shipowners Associations (2017) Comparison of flag state laws on armed guards and arms on board. Available via http://www. ics-shipping.org/docs/default-source/Piracy-Docs/comparison-of-flag-state-laws-on-armedguards-and-arms-on-board-2017.pdf?sfvrsn=0. Accessed 28 Oct 2018 International Code of Conduct Association (n.d.) Promoting responsible private security. https:// www.icoca.ch/. Accessed 21 Oct 2018 International Maritime Organisation (n.d.) Non-governmental international organizations which have been granted consultative status with IMO. Available via http://www.imo.org/en/About/ Membership/Pages/NGOsInConsultativeStatus.aspx. Accessed 23 Oct 2018

13  Non-state Actors in the Maritime Domain: Non-state Responses to Maritime…

227

International Maritime Organisation (2011) Guidance on armed security personnel on ships agreed. IMO News, Issue 3 Josselin D, Wallace W (2001) Non-state actors in world politics. Palgrave Macmillan, New York Kantharia R (2017) 18 anti-piracy weapons for ships to fight pirates. Marine Insights, 8 October. Available via https://www.marineinsight.com/marine-piracy-marine/18-anti-piracy-weaponsfor-ships-to-fight-pirates/. Accessed 21 Oct 2018 Kashubsky M (2013) Protecting offshore oil and gas installations: security threats and countervailing measures. Journal of Energy Security, 13 August. Available via http://ensec.org/index. php?option=com_content&view=article&id=453:protecting-offshore-oil-and-gas-installations-security-threats-and-countervailing-measures&catid=137:issue-content&Itemid=422. Accessed 8 Aug 2014 Kirchgaessner S, Tondo L, Jones S (2018) Italian minister declares victory as Spain accepts rescue boat. Guardian, 11 June. Available via https://www.theguardian.com/world/2018/jun/11/uncalls-for-migrant-ship-to-be-allowed-to-dock-in-italian-port. Accessed 29 Oct 2018 Krahmann E (2005) From state to non-state actors: the emergence of security governance. In: Krahmann E (ed) New threats and new actors in international security. Palgrave Macmillan, New York. Available via http://eis.bris.ac.uk/~poxek/NewThreatsChap1.pdf Krasner SD (1999) Sovereignty: organized hypocrisy. Princeton University Press, Princeton Labog-Javellana J, Tubeza P (2004) SuperFerry 14 Bombing Solved, Says Arroyo. Philippine. Daily Inquirer, 12 October, p A1 Little A, Vaughan-Williams N (2017) Stopping boats, saving lives, securing subjects: humanitarian borders in Europe and Australia. Eur J Int Rel 23(3):533–556. https://doi. org/10.1177/1354066116661227 Liss C (2011) Oceans of crime: maritime piracy and transnational security in Southeast Asia and Bangladesh. Institute of Southeast Asian Studies, Singapore Liss C, Biggs T (2017) Piracy in Southeast Asia trends, hot spots and responses. Routledge, London Liss C, Schneider P (eds) (2015) Special issue: regulating private maritime security providers. Ocean Development and International Law 46(2) Maritime and Underwater Security Consultants (n.d.). https://www.mandusc.com/. Accessed 16 Oct 2018 MI News Network (2016) 10 things you must know about the Sea Shepherds. Marine Insight, 21 July. Available via https://www.marineinsight.com/environment/10-things-you-must-knowabout-the-sea-shepherds/. Accessed 23 Oct 2018 Missing Migrants Project (7 February 2019). https://missingmigrants.iom.int/region/mediterranean. Accessed 8 Feb 2019 Nicholls S (2018) NGO boats to be blocked ‘all summer’ from Italian ports. Euronews, 20 June. Available via https://www.euronews.com/2018/06/30/ngo-boats-to-be-blocked-all-summerfrom-italian-ports. Accessed 28 Oct 2018 Rose M (2018) Portugal, Spain, France, Germany agree to take in Aquarius ship migrants. Reuters, 25 September. Available via https://uk.reuters.com/article/uk-europe-migrants-aquarius/ portugal-spain-france-agree-to-take-in-aquarius-migrants-idUKKCN1M50QS. Accessed 29 Oct 2018 Rosenau JN, Czempiel EO (eds) (1992) Governance without government: order and change in world politics. Cambridge University Press, Cambridge Sea Shepherds (n.d.) Who we are. https://www.seashepherdglobal.org/who-we-are/. Accessed 25 Oct 2018 Seagull Maritime Security (n.d.). http://www.seagullsecurity.com/main.asp?new=1&id=32677. Accessed 16 Oct 2018 Singer PW (2003) Corporate warriors: the rise of the privatized military industry. Cornell University Press, Cornell Steinhilper E, Gruijters R (2017) Border deaths in the Mediterranean: what we can learn from the latest data. Available via https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/03/institutional. Accessed 26 Oct 2018

228

C. Liss

Stopford M (2004) Maritime economics. Routledge, London Thomson JE (1994) Mercenaries, pirates and sovereigns. State building and extraterritorial violence in early modern Europe. Princeton University Press, Princeton Till G (2013) Seapower. A guide for the twenty-first century, 3rd edn. Routledge, New York Tondo L, McVeigh K (2018) No NGO rescue boats currently in central Mediterranean, agencies warn. Guardian, 13 September. Available via https://www.theguardian.com/world/2018/ sep/12/migrant-rescue-ships-mediterranean. Accessed 29 Oct 2018 UN Security Council (2012) Somalia report of the monitoring group on Somalia and Eritrea submitted in accordance with resolution 2002 (2011). United Nations, 13 July World Bank (2013) Pirate trails: tracking the illicit financial flows from piracy off the horn of Africa. United Nations Office on Drugs and Crime and World Bank, Washington, DC World Wildlife Fund (n.d.) Oceans. http://wwf.panda.org/our_work/oceans/. Accessed 23 Oct 2018 Zandonini G (2017) How the humanitarian NGOs operate at sea. Open Migration, 22 May. Available via https://openmigration.org/en/analyses/how-the-humanitarian-ngos-operate-atsea/. Accessed 26 Oct 2018

Chapter 14

Connecting the Dots: Implications of the Intertwined Global Challenges to Maritime Security Anja Menzel and Lisa Otto

Abstract  Scholars have long discussed the land-sea nexus in the context of maritime security, and indeed in the exploration of the issues and challenges contemplated throughout these pages, we note that in the same way that the sea and land are connected beyond the shoreline where they meet, there are likewise many intersections between the global challenges to maritime security. In this chapter five connecting themes are identified, which draw together the threads weaving through the chapters of this book, specifically: the transnational nature of maritime threats, the role played by territoriality, the blue security nexus, the contribution of non-state actors to the maritime domain, and, lastly, the impact of technological developments. Further to connecting these dots, we synthesise a number of policy recommendations that emanate from within the chapters of this volume. These centre on cooperation (particularly in capacity building and information-sharing), appreciating the role of geopolitics and actively acknowledging this through the necessary legal instruments, an integrated approach toward sea-based economic activity, the need for platforms where private and public stakeholders can come together to coalesce around solutions to key problems, and preparing for and leaning on the challenges and opportunities presented by technological advances. Distilled further from this is the importance of maritime domain awareness, as policy interventions at the state-, regional-, and international levels all require an accurate picture of what is happening in the maritime domain. Lastly, we look to the areas in which new research must focus, in order to further develop our understanding of the intertwining of these various issues, but also to provide actionable inputs into policy processes.

A. Menzel (*) FernUniversität in Hagen, Hagen, Germany e-mail: [email protected] L. Otto SARChI Chair: African Diplomacy and Foreign Policy, University of Johannesburg, Auckland Park, South Africa e-mail: [email protected] © Springer Nature Switzerland AG 2020 L. Otto (ed.), Global Challenges in Maritime Security, Advanced Sciences and Technologies for Security Applications, https://doi.org/10.1007/978-3-030-34630-0_14

229

230

A. Menzel and L. Otto

Keywords  Maritime crime · Maritime governance · Maritime security · Territoriality · Blue economy · Non-state actors · Maritime domain awareness

14.1 Introduction The oceans exist as a space deep and wide, presenting plentiful resources and opportunities, which, traditionally, provided a frontier for exploration, discovery and innovation, and in many ways continue to do so. Importantly also, the oceans are an expanse that connect us – with shared waters lapping up on distant shores, bridging our territories, and bestowing us with a global common. The introductory chapter of this volume discussed maritime security as being a state that extends beyond the mere absence of threats to domestic and shared maritime domains, but the presence of ‘good order at sea’, with frameworks in place to address the many challenges falling under the umbrella of maritime security, notably as threats pertaining to the marine environment, sea-based economic development, human security and national security (Bueger 2015a). This volume has discussed a wide range of issues, spanning the age-old role of naval power and the emerging world of cybersecurity in the maritime domain. The challenges to maritime security, which has been our focus in this volume, alongside the actors, institutions, mechanisms, and technologies involved in securing the seas are manifold and often mutating. In fact, the maritime security field is characterised by an interconnectedness of issues, given the sea as a site of connection: we observe a symbiosis between land and sea, the transnational nature of the issues that affect the oceans, and the spanning and crossing of various jurisdictions within which these issues play out (Bueger and Edmunds 2017). Indeed, the contributions in this volume have underlined that the challenges addressed in individual chapters should not be understood in isolation, but that it is crucial to consider the bigger picture of maritime security governance: grasping common features of maritime security not only allows for a better understanding of recent developments in the maritime domain, but also helps to improve responses to existing challenges. This chapter looks to examine in particular the interconnections between various maritime security challenges that have been unpacked in the pages of this book, identifying five intertwining themes: transnational maritime crime governance, the territoriality of maritime security, where maritime security and the blue economy meet, the role of non-state actors, and the rise in importance of technology. Suggesting maritime domain awareness to be a synergistic meeting point of the above mentioned connections, we discuss how these interconnections hold important policy implications that are worth considering. We then move to outline themes where there is a need for future research, which of these avenues are especially promising, and note the need to develop a community of practice across the stakeholder groups within the field.

14  Connecting the Dots: Implications of the Intertwined Global Challenges…

231

14.2 The Importance of Transnational Maritime Crime Governance Due to the cross-boundary nature of maritime crimes, their combat is a challenge that cannot be tackled by states on their own. It is sensible to differentiate between two mechanisms here, which both have important implications for an effective governance of maritime crimes. First, criminals in the maritime domain often do not care for national borders; per definition, illicit maritime trafficking in narcotics, arms or exotic wildlife involves the movement of specific objects from one state territory to another by sea. In the same vein, human trafficking is defined as the illegal entry of a person into a state territory of which the person is not a national (United Nations 2000, p. 2). We have seen this demonstrated in the chapter authored by Carina Bruwer, who unpacked how organised criminal networks use the ocean to transport illicit commodities for the purposes of smuggling and trafficking, and the chapter by Amaha Senu, who focused on irregular migration at sea. Meanwhile, armed robbers often operate beyond state borders and regularly cross territorial demarcations to avoid prosecution (Murphy 2007, p. 177). Leaza Jernberg and Lisa Otto captured this in their discussion around territorial boundaries, demonstrating the distinction between the piracy of the high seas and armed robbery at sea in territorial waters. Second, illicit maritime activities in one state territory may directly affect other territories. On the one hand, fish stocks affected by illegal, unreported and unregulated (IUU) fishing are mobile and move across maritime borders. While most IUU fishing takes place on the high seas, it may also damage ecosystems in more than one state’s territory and harm several national fishing industries (FAO 2019). This was underlined by Mercedes Rosello in her exploration of how threats through IUU fishing, along with fisheries crime, can put the income generated by the fishing industry as well as the sustainability of fish stocks at risk. On the other hand, intentional and unlawful damage to the marine environment may also affect ecosystems in more than one state’s territory. Another maritime threat that can carry impact in territories beyond where the act is committed is that of maritime terrorism, as discussed in this volume by Lisa Otto, Suzanne Graham and Adrienne Horn. Both types of transnational organised crimes at sea underline the challenges to the effective governance of maritime crimes. While crimes committed ashore legally take place in the jurisdiction of one or more states, maritime crimes can also take place on the high seas and thus outside the jurisdiction of any state (UNCLOS Art. 86). This does not imply that these crimes cannot be prosecuted, as the flag state principle ensures national jurisdiction for vessels on the high seas. It does mean, however, that national responsibilities for the combat of crimes at sea are more complex than on land (Treves 2013). In this regard, the United Nations Convention on the Law of the Sea (UNCLOS) is often criticised for being an insufficient tool in the combat of maritime crimes (Otto 2018), as it does not criminalise illicit behaviour in territorial waters, and a ‘hot pursuit’ of criminals into state territory is not provided for in UNCLOS. The Convention for the Suppression of Unlawful Acts

232

A. Menzel and L. Otto

against the Safety of Maritime Navigation (SUA) closes this gap, as it extends its reach beyond the high seas into state parties’ territories (Passas and Twyman-­ Ghoshal 2012, p. 73), and may thus be a more suitable instrument to address maritime crimes more effectively. Its membership, however, is not as comprehensive as UNCLOS. In view of these legal challenges, state-to-state cooperation is becoming more and more important to govern maritime crimes. At the international level, an increasing number of multilateral initiatives already counter maritime crimes. Most prominently, piracy and armed robbery in East Africa are governed by a variety of naval missions such as the European Union’s mission Atalanta, the North Atlantic Treaty Organisation’s mission Ocean Shield or the United States-lead Combined Maritime Forces. Other initiatives range from bilateral cooperation, such as the Malacca Straits Patrol between Indonesia, Malaysia, Thailand and Singapore, to more formalised initiatives like the Contact Group on Piracy off the Coast of Somalia (CGPCS), in which 60 states and various international and national organisations have thus far participated. Meanwhile, regional economic communities such as the Economic Community Central Africa States and the Economic Community of West African States serve as important fora for multilateral cooperation on maritime security issues. The Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing plays a central role in combating IUU fishing through international cooperation, while international organisations such the World Customs Organisation and the United Nations Office on Drugs and Crime are key players in the combat of maritime smuggling. Timothy Walker underlined the importance of this multilateral cooperation by exploring the actors and platforms through which threats to maritime security are discussed. State actors are certainly important within the context of this cooperation, which is what Francois Vreÿ and Mark Blaine highlighted in their chapter on the role of navies in maritime security in the contemporary era. These state and non-state institutions and initiatives share a common denominator: due to the cross-boundary nature of criminal activities at sea, close cooperation and information sharing between national enforcement agencies is crucial for effectively addressing maritime crimes. Agreements such as the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), the Djibouti Code of Conduct or Yaoundé Code of Conduct encourage regional cooperation on a variety of maritime crimes and, with their information sharing centres, provide an infrastructure for collecting and disseminating incident data between member states and vessels in the region (Menzel 2018). Various information sharing systems of national navies and the shipping industry are also in place. However, information sharing is still flawed, as regional definitions are partly inconsistent and national focal points might be biased in their reporting, while underreporting remains a cause of disquiet (Coggins 2012).

14  Connecting the Dots: Implications of the Intertwined Global Challenges…

233

14.3 The Territoriality of Maritime Security As maritime crimes are transboundary in nature, territorial sovereignty is a constant point of concern for states. In fact, the sea is a vast interest space, and states’ maritime agendas are always informed by the territorial implications of maritime politics (Germond 2015). As UNCLOS establishes distinct sea areas in which states have different rights of jurisdiction and exploitation of marine resources, states are sensitive about their territorial integrity. Consequently, maritime security is inseparably intertwined with geostrategic considerations. Since states are eager to protect their territorial waters from foreign interference, their territorial concerns may hamper multilateral cooperation to fight maritime crimes. This was highlighted in the introductory chapter of this volume, which detailed why the sea is meaningful to us as a geostrategic space. Unresolved boundary disputes further challenge the maintenance of security in the maritime domain, and thus touch upon many of the issues discussed in this book: disputed delimitations are even more porous than settled maritime borders, and therefore present an opportunity for organised maritime crime to flourish. Additionally, boundary disputes further complicate multilateral cooperation to combat maritime crimes due to unclear jurisdictions and high distrust between neighbouring states (Bateman 2017). However, unclear border delimitation also presents a convenient opportunity for states to increase their geopolitical and economic influence, particularly if the claimed maritime zones are known or suspected to be rich in natural resources. Two cases of unsettled territorial claims are particularly prominent and contain large-scale political brisance: the unclear extended continental shelf claims made by the Arctic littoral states, and China’s claims to large parts of the South Chinese Sea (the so-called ‘Nine-Dash-Line’), both of which are motivated by geostrategic considerations. The complexities around the delimitation of maritime boundaries and how a greater number remain undelimited were discussed by Victoria Mitchell. Her chapter showed how geostrategic deliberations hold the potential for conflict or dispute between states, which may often emerge from the overlap of rights around how territory may be used or its resources exploited. Delimitation is, however, often overshadowed by other maritime security challenges, despite the fact that settling maritime boundaries provides states the best conditions in which to ensure maritime security. Indeed, as new resources are discovered, maritime boundary disputes will continue to pose a challenge to maritime security. While concerns over territorial integrity and boundary disputes can jeopardise multilateral cooperation efforts to secure the maritime domain, several approaches are underway to alleviate the problem. In Southeast Asia, where territorial sensitivities are high, cooperation is generally based on the principle of non-interference in internal affairs of other states, and thus, all maritime cooperation efforts within Association of Southeast Asian Nations (ASEAN) are subject to this principle. In the Strait of Malacca and the Sulu Sea, for example, patrols between the littoral states to combat piracy, armed robbery and maritime terrorism are conducted coordinated although not joint (Storey 2009):

234

A. Menzel and L. Otto

each state patrols its own waters, however in a coordinated fashion, while the authority to prosecute criminals into foreign waters is subject to prior bilateral agreements between the littoral states. In the Arctic, where a variety of conflicts around territorial delimitations and resource management exists between the littoral states, multilateral fora like the Arctic Council facilitate stability and can act as mediators between conflict parties (Roth 2011). Additionally, several maritime boundary disputes which could not be settled bilaterally have been brought before arbitration in the past, which goes to show the crucial role that international courts such as the International Tribunal for the Law of the or the International Court of Justice can have for maritime security issues. However, China’s rejection of an arbitration ruling brought by the Philippines concerning China’s claims in the South Chinese Sea in 2016 is an indicator of the relatively weak position of courts (Permanent Court of Arbitration 2016), and underlines how, despite multilateral efforts to counter territorial conflicts, geostrategic motivations often still prevail.

14.4 The Nexus Between Maritime Security and the Blue Economy While unresolved maritime boundary disputes underline how the economic considerations of states wanting to expand their territorial influence may destabilise efforts to secure the maritime domain, maritime security is also connected to a much more positive notion of economic development, the so-called ‘blue economy’. Ken Findlay has written in this volume about the economic value that can be derived from the sea, but started off, importantly, by distinguishing between the blue economy and the oceans economy, words that are often used interchangeably but which are different as concepts. The concept of the blue economy generally describes any economic activity in the maritime domain. For the World Bank, it is the “sustainable use of ocean resources for economic growth, improved livelihoods and jobs, and ocean ecosystem health” (World Bank 2016). As such, it directly touches upon many of the topics the authors of this book have discussed, since sustainable economic growth, responsible fisheries management and the protection of fragile ecosystems directly contribute to preventing economic grievances that may drive individuals in less developed countries to turn to criminal activities in the maritime domain. Instead, the blue economy has the potential to secure or improve the livelihoods of coastal communities by creating jobs in fisheries, tourism or renewable energies. As noted herein, however, there are also threats emerging from the exploitation of marine resources, and the trade-offs between these threats and potential economic gains are at the heart of states ocean governance, based on actors’ priorities and the sustainability with which plans can be implemented. Although the idea that state and non-state actors can profit from securing the marine realm is not new, policy-makers have only recently begun to develop comprehensive strategies to strengthen blue economic growth. In its Europe 2020

14  Connecting the Dots: Implications of the Intertwined Global Challenges…

235

strategy, the European Union considers the maritime domain to be an important factor for innovation and economic growth, and lays out its approach towards blue growth, which includes developing the fisheries, tourism and energy sectors as well as providing knowledge, legal certainty and security in the blue economy (European Commission 2019). More recently, the African Union’s 2050 AIM Strategy of 2014 and the Lomé Charter of 2016 are pioneering achievements, because they highlight the prospects of utilising marine spaces and resources as the key driver for economic development, and clearly link these prospects to maritime security and safety (Egede 2017). In 2018, the World Bank launched a Sustainable Development Bond series which seeks to raise awareness from investors to the critical role of ocean resources. Small island states in Africa such as the Seychelles are particularly ambitious in developing their blue economies, while states in Asia still lag behind, despite initiatives such as the Food and Agriculture Organisation’s Pacific’s Blue Growth Initiative which aims at utilising the synergies between the sustainable use of marine resources and regional economic development in Asia. Altogether, it is important to consider that while the blue economy is an enabler of maritime security, an expansion of the blue economy also results in growing demand for maritime security capabilities, such as surveillance technologies and port security measures, and is therefore a trigger for increased investment in the maritime domain itself (Voyer et al. 2018). Risto Talas’ discussed this in his chapter on port security: being that this is the clearest interface between land and sea, particularly for the maritime transport industry, it thus plays an integral role in the maritime system generally and in maritime security more specifically. This underlines how deeply maritime security and the blue economy are intertwined and how they cannot be understood separately.

14.5 The Importance of Non-state Actors As the oceans are a space of various, often contested interests, non-state actors play an important role in governing the variety of maritime security issues touched upon by this volume. In the context of a changing global order, the monopoly of legitimate violence and the responsibility for responding to challenges have become somewhat blurred in recent years, with the provision of security being outsourced at an increasing rate. To date, a specific focus of the debate has been on private maritime security companies (PMSCs), which have emerged in the wake of the rise of piracy attacks in Southeast Asia and off the coast of Somalia, and provide a wide range of commercial maritime security services to government, corporate and non-­ corporate clients. Their offers include anti-piracy vessel escorts as well as the use of private contracted armed security personnel on board the commercial vessels, while PMSCs also protect ports and engage in training of crews (Cullen 2012). However, the increasing deployment of private armed security personnel gives rise to questions concerning sovereignty and state control of the use of force at sea and comes along with legal and regulatory issues. Consequently, states were initially opposed

236

A. Menzel and L. Otto

to the regular deployment of PMSCs, but, as unpacked in the chapter authored by Carolin Liss, the practice has spread rapidly in recent years and resulted in most states hesitantly accepting PMSCs as maritime security actors. A variety of other non-state actors exist who hold crucial interests in the maritime domain. The shipping industry, the fisheries sector, and other industries connected to the exploitation of marine resources are powerful lobbies, and any comprehensive public approach to secure the sea will have to include these industries, as the diverse knowledge the industry brings to the table is crucial for effective governance of maritime issues (Bueger 2015b, p. 40). The same holds true for non-­ profit non-state actors in maritime security (Ford and Lyons 2013; Liss 2013). Nongovernmental organisations that are committed to protecting the marine environment, the rights of indigenous coastal communities or the lives of victims of human trafficking, to name a few examples, are sources of indispensable expertise on the issues they work on. Finally, there is another, yet often overlooked group of non-state actors relevant to securing the maritime domain: the criminals themselves. Like other non-state actors, they can be highly organised and form political interest groups as well as sophisticated networks. Examples include the Somali piracy networks that are known for their business structure of hijacking vessels for ransom (Hallwood 2014) and militant group Abu Sayyaf which pursues its objective of an Islamist state in the Southern Philippines with kidnappings and terrorist attacks, and has at times carried these out at sea (Singh 2018). Facing the threats to the maritime domain posed by these actors needs a thorough understanding of their structures and operating principles. Considering belligerents as non-state actors with their own agendas could thus be helpful to better grasp their organisational structures, and in turn may benefit the shaping of effective governance tools to counter maritime crimes.

14.6 The Role of Technology in Securing the Maritime Domain A final common denominator of the issues discussed in this volume is the way that technological innovations shape the threats to maritime security. With ships increasingly using systems that rely on digitisation, integration and automation, they are particularly vulnerable to cyber-attacks and provide criminals with an opportunity to gather intelligence for their illicit activities (Jensen 2015). Robbers and pirates may gain access to confidential data about a ship’s position or cargo to facilitate theft or hijacking for ransom, while fishers may use information technology to fake fishing permits. Smugglers may manipulate loading lists to allow for the fraudulent transport of illegal cargo, and maritime terrorists may use digital information to obtain access to critical port infrastructure in preparation of attacks. As a consequence, cybersecurity on board as well as on shore is an essential aspect of maritime security. By explaining the vulnerabilities for the maritime transport sector,

14  Connecting the Dots: Implications of the Intertwined Global Challenges…

237

Polychronis Kapalidis highlighted the critical points of intersection between maritime security and cybersecurity, given how heavily reliant the maritime transport sector is on technology for its operations. Policy-makers in the public sector have begun to adapt to this growing demand for maritime cybersecurity. As the traditional conception of navies as actors in naval warfare is changing, more attention now lies in their role in maintaining a ‘good’ and stable order at sea (Speller 2018), and they increasingly engage in monitoring, policing and preventing criminal maritime activities. At the same time, intergovernmental actors and the private sector often participate in issuing standards to improve the resilience of the shipping industry to cyber risks. The 2003 International Ship and Port Facilities Security Code aims at enhancing the security of ships and port facilities by focusing mainly on physical security and object protection. A shipping industry network consisting of the Baltic and International Maritime Council, the World Shipping Council and other private fora issued guidelines on cybersecurity onboard ships in 2016, and regularly updates its recommendations (ISC 2018). In 2017, the International Maritime Organisation (IMO) put forward guidelines on maritime cyber risk management, which identify functional elements of cyber risk management and include best practices (IMO 2017). Thus, while the rapid change of information technology shifts the operation of criminals in the maritime domain, it also shapes new mechanisms for combating criminal activity and securing the maritime space. Examples include an application that allows seafarers to report information on incidents of piracy and armed robbery on-site on their mobile phones, which is then disseminated to relevant actors in the region (ReCAAP 2018), and the increasing use of monitoring and surveillance technologies such as drones and satellites to control IUU fishing (Toonen and Bush 2018). As technological developments will advance more and the dynamics of maritime crime are thus subject to constant change, the future will see more of these kinds of innovations from criminals as well as the shipping industry and governments.

14.7 Policy Implications: Maritime Domain Awareness Is Key The interconnections between the global challenges to maritime security we have identified all underscore the importance of understanding maritime security as a multi-dimensional concept. The transboundary nature of maritime crimes, inherent questions of territoriality, the nexus between security and the blue economy, and the important role of non-state actors and innovative technologies make it impossible to consider maritime security challenges and the consequent responses from actors on the regional, national and international level separately. The interconnections therefore hold several important policy implications, both on their own and more generally, which we discuss below.

238

A. Menzel and L. Otto

First, since several state territories may be affected by illicit activities at sea simultaneously, an orchestrated response between local, national and international actors is crucial to succeed in fighting the transnational challenges of maritime crimes. The cross-border nature of maritime crimes also puts emphasis on the importance of transnational capacity building and information-sharing measures. Many of the states affected by crimes at sea are considered developing countries, and their different levels of naval force and law enforcement agencies make international cooperation difficult (Liss 2011). Strengthening the capabilities of local coastguards and navies through training and the sharing of best practices is thus essential for a successful combat of transnational maritime crimes. In this regard, international organisations such as the IMO, which is very active in providing assistance and training to developing countries, and regional agreements like ReCAAP are vital for enhancing maritime security through capacity building. These and other organisations and actors also play an important role in collecting and disseminating incident data on maritime crimes, but the information sharing mechanisms remain flawed. While instant dissemination of data between the various bodies of information sharing is needed to ensure a timely and effective response to maritime crimes in every corner of the world, a more detailed and reliable data collection would also help academics and policy-makers to analyse transnational patterns of criminal activities at sea more thoroughly. Second, territorial sovereignty concerns and unresolved maritime boundary disputes underline the importance of strengthening the rule of international law. If territorial conflicts are brought to arbitration, the parties involved should acknowledge the rulings of the arbitrating bodies. In the same vein, strengthening international organisations that could act as mediators between conflicting parties, such as the Arctic Council, could help mitigate the negative consequences of geopolitical tensions and boundary disputes on security in the maritime domain. Additionally, in cases where natural resources extend beyond a boundary or overlap and delimitations are unclear, a joint management approach might be viable to coordinate exploration and exploitation (Okonkwo 2017), as UNCLOS (Art. 74; 83) encourages such provisional arrangements of a practical nature in the case of unresolved delimitations. Third, the variety of stakeholders and interests involved in the blue economy requires an integrated approach towards economic activities in the maritime domain. For the sustainable and economically successful management of ocean resources, close collaboration across the public and private sector is necessary. Governments need to be aware of the importance of private actors for a thriving blue economy, and create an attractive environment for businesses through the rule of law as well as an investment-friendly infrastructure. In this regard, safeguarding navigation routes is just as important as protecting rights over valuable marine resources within their jurisdiction (Voyer et al. 2018), while accounting for the needs and capabilities of local coastal communities is also conducive for a sustainable blue economic growth. Additionally, the blue economy can profit immensely from evidence-based decision-making. More knowledge is needed on the role of functioning marine ecosystems for industries in the maritime domain, and how environmental costs of

14  Connecting the Dots: Implications of the Intertwined Global Challenges…

239

certain economic activities can be measured. Questions related to the challenges of climate change to the blue economy such as ocean warming and the rise in sea levels, but also the incentive climate change presents to develop innovative technologies to face these challenges, are equally important (Allison and Bassett 2015). To ensure a sustainable and profitable use of ocean resources in light of intensified economic activities, it is crucial for policy-makers to consider scientific findings when drawing up strategies for blue economic growth, and to feed this information into their national decision-making processes. Fourth, the diversity of state and non-actors in the maritime domain additionally results in different, sometimes opposed interests. Communication between these actors is challenging, as representatives of national agencies pursue other goals and may, figuratively speaking, speak another language than industry employees or activists. An important role to keep the dialogue between the variety of actors going may therefore fall to informal governance arrangements such as the CGPCS. Established in 2009, the CGPCS aims at facilitating coordination of action among more than 60 states and various organisations to suppress piracy off the coast of Somalia, and its organisational structures with no formal membership are often credited with providing a flexible forum for mediating between different counter-­ piracy stakeholders (Bueger 2014; Guilfoyle 2013). For other maritime security issues, informal contact groups like the CGPCS may thus be a promising instrument to share practical experience, collect and share data relevant to all actors and, despite potentially diverging approaches, allow state and non-state actors to find common ground. Fifth, as advances in technology march on, the dynamics of maritime crime are also subject to constant change. In order to efficiently face the evolution of existing threats and the emergence of new ones, innovative solutions are necessary. While the surveillance of the sea remains a difficult task even for economically developed states, their navies and coastguards possess the technical capabilities to fulfil this function, whereas many coastal states particularly affected by maritime crimes lack capacity and do not have the technological means to keep up with the criminals (Bueger 2017, p. 5). It is therefore crucial to strengthen coastal states’ capabilities by updating their fleets to modern information and communication technology standards, raising awareness for cybersecurity issues, and training their national enforcement agencies in the collection and use of digital data on maritime crimes. Overall, our discussion of the many interconnections between challenges to maritime security has shown that policy-makers need to keep in mind the bigger picture and consider how issues that seem unrelated at first glance are in fact deeply intertwined. In practice, this integrative approach to policy-making in the maritime domain proves rather difficult, as practitioners are usually highly specialised. While this is a logical consequence of necessary expert knowledge, it often entails the attention fading away from the complex and interconnected nature of maritime security issues. In light of these challenges that policy-makers and practitioners face, creating and strengthening maritime domain awareness (MDA) is the most important implication stemming from the interconnections we have discussed. MDA includes the integrative understanding of developments and threats at sea, and

240

A. Menzel and L. Otto

as such is a prerequisite for coordination and cooperation between diverse maritime security agencies and actors (Bueger 2015c). Establishing and developing MDA tools and capacities ultimately remains a state-based responsibility given the need for states to protect their sovereign territory, which, in itself, requires them to have knowledge of the threats within this territory. This allows states the actionable intelligence to plan, strategise, and implement relevant to the specific complement of threats and challenges they face in their maritime domain that could impact on safety, security, the economy, or the environment. Likewise, it is this very awareness that will better enable states to share information with one another as well as with other interested non-state actors, through their regional groupings and the information-sharing platforms that exist within them, while also improving the quality of inputs states and regions can make into their cooperative efforts at the international level (Lim 2007).

14.8 Maritime Security: Looking Ahead Going forward, and certainly linked to the above mentioned policy recommendations, there remains a plethora of research opportunities in this dynamic and growing field. Shifts in the global balance of power, the fourth industrial revolution, and a movement toward a greater respect for the planet in tension with competing economic agendas all bear consequences for the oceans themselves and the business conducted upon them. These developments will reshape the international political milieu and spill into the maritime domain, meaning that the nature of threats and challenges will evolve, whilst our capability to respond to these threats and challenges as well as the actors involved with them will also be metamorphosing. More research is needed to uncover points of confluence between different forms of transnational organised crime at sea and the entanglement of the groups involved in perpetrating these various crimes. Given the pervasiveness of these threats to both littoral states and the international community, research clarifying these connections between crimes and actors can bring forth greater connectivity between the regulatory and legal frameworks that address these challenges. In Africa, for example, we see links between the smuggling and trafficking of drugs, weapons, animal products and people, whilst linkages have been identified between IUU fishing and the drug trade. Another area where scholars of maritime security can make a significant contribution is in mainstreaming the importance of both security and sustainability in development opportunities stemming from the seas. Security and development have become increasingly wed together, with the security-development nexus, which is accepted on land, also being applied to the seas. States are demonstrating a belief that economic opportunities emanating from the oceans cannot be harnessed in full unless there is good order at sea, and ocean resources are respected and protected. Indeed, the tensions that exist between the blue economy narrative (where sustainability is a focus) and the ocean economy narrative (where economic gain is central)

14  Connecting the Dots: Implications of the Intertwined Global Challenges…

241

need to be further explored in research, particularly with the Sustainable Development Goals in mind  – including No Poverty, Zero Hunger, Responsible Production and Consumption, and Life Below Water. Further, as technological advances march steadily ahead, innovative work is required from the research community to aid preparing the maritime sector to make better use of the technological applications becoming available, and develop cognisance of how technology may play a role in the evolution of existing threats and the emergence of new ones, as outlined above. Research can, for example, address the follow questions: What impact can technology have on the resilience of the shipping industry and ports infrastructure to cybersecurity threats? How can states use the newest technologies to improve their MDA, use this intelligence for efficient responses, and share information more widely with neighbours and other partners to streamline efforts to secure their territorial waters? Answers to these questions can, indeed, feed into policy-making processes. There is also room for scholars to develop a community of practice that marries together the interests of the public-, private- and third sectors, to share perspectives, findings, approaches, and resources to approach the most pervasive threats to maritime security, and to do so strategically. State- and non-state actors have demonstrated an ability to work well together, drawing on each other’s strengths to tackle obstacles. Positive outcomes for both the development of the field and the practical response to sea-based challenges could result from the hosting of workshops, conferences, and the like, where varied perspectives may be ventilated and where creative solutions can be arrived at, based on a diversity of experience and a sharing of common goals. In sum, this volume has introduced some of the many challenges to maritime security, highlighted their interconnections, and demonstrated the many areas in which more research, more work, and more partnership is needed. In this concluding chapter, we have underlined how in a field such as maritime security, which tends to be more policy-oriented and less often conducted from ivory towers, there is a real potential for collaborative work between academics, researchers, policy-­ makers, industry, and other interested parties to yield meaningful results that benefit both land- and sea-based interests.

References Allison EH, Bassett HR (2015) Climate change in the oceans: human impacts and responses. Science 350(6262):778–782 Bateman S (2017) Building cooperation for managing the South China Sea without strategic trust. Asia Pac Policy Stud 4(2):251–259 Bueger C (2014) Experimental governance: can the lessons of the CGPCS be transferred to other policy fields? In: Tardy T (ed) The Contact Group on Piracy off the Coast of Somalia (CGPCS). A lessons learnt compendium. EU Institute for Security Studies, Paris, pp 78–85 Bueger C (2015a) What is maritime security? Mar Policy 53:159–164

242

A. Menzel and L. Otto

Bueger C (2015b) Learning from piracy: future challenges of maritime security governance. Glob Aff 1(1):33–42 Bueger C (2015c) From dusk to dawn? Maritime domain awareness in Southeast Asia. Contemp Southeast Asia 37(2):157–182 Bueger C (2017) Effective maritime domain awareness in the Western Indian Ocean. Policy Brief 104, Institute for Security Studies. https://orca.cf.ac.uk/102573/1/Bueger%20 %282017%29%20Maritime%20Domain%20Awareness%20in%20WIO.pdf. Accessed 14 May 2019 Bueger C, Edmunds T (2017) Beyond seablindness: a new agenda for maritime security studies. Int Aff 93(6):1293–1311 Coggins BL (2012) Global patterns of maritime piracy, 2000–09. Introducing a new dataset. J Peace Res 49(4):605–617 Cullen P (2012) Surveying the market in maritime private security services. In: Cullen P, Berube C (eds) Maritime private security: market responses to piracy, terrorism and waterborne security risks in the 21st century. Routledge, New York, pp 45–57 Egede E (2017) Africa’s Lomé Charter on maritime security: what are the next steps?. http://piracystudies.org/africas-lome-charter-on-maritime-security-what-are-the-next-steps. Accessed 29 Aug 2019 European Commission (2019) Maritime affairs. https://ec.europa.eu/maritimeaffairs/policy. Accessed 29 Aug 2019 FAO (2019) What is IUU fishing? http://www.fao.org/iuu-fishing/background/what-is-iuu-fishing/ vn/. Accessed 13 May 2019 Ford M, Lyons L (2013) Outsourcing border security: NGO involvement in the monitoring, processing and assistance of Indonesian nationals returning illegally by sea. Contemp Southeast Asia 35(2):215–234 Germond B (2015) The geopolitical dimension of maritime security. Mar Policy 54:137–142 Guilfoyle D (2013) Prosecuting pirates: the Contact Group on Piracy off the Coast of Somalia, governance and international law. Global Pol 4(1):73–79 Hallwood P (2014) Economics of the oceans. Rights, rents and resources. Routledge, New York IMO (2017) Guidelines on maritime cyber risk management. http://www.imo.org/en/ OurWork/Security/Guide_to_Maritime_Security/Documents/MSC-FAL.1-Circ.3%20-%20 Guidelines%20On%20Maritime%20Cyber%20Risk%20Management%20(Secretariat).pdf. Accessed 14 May 2019 ISC (2018) The guidelines on cyber security onboard ships. http://www.ics-shipping.org/docs/ default-source/resources/safety-security-and-operations/guidelines-on-cyber-securityonboard-ships.pdf?sfvrsn=16. Accessed 14 May 2019 Jensen L (2015) Challenges in maritime cyber-resilience. Technol Innov Manag Rev 5(4):35–39 Lim I (2007) Comprehensive maritime domain awareness: an idea whose time has come. RSIS Working Paper 141/07, S.  Rajaratnam School of International Studies. https://dr.ntu.edu.sg/ bitstream/handle/10220/4397/RSIS-WORKPAPER_116.pdf?sequence=1&isAllowed=y. Accessed 14 May 2019 Liss C (2011) Oceans of crime. Maritime piracy and transnational security in Southeast Asia and Bangladesh. Institute of Southeast Asian Studies, Singapore Liss C (2013) New actors and the state: addressing maritime security threats in Southeast Asia. Contemp Southeast Asia 35(2):141–162 Menzel A (2018) Institutional adoption and maritime crime governance: the Djibouti Code of Conduct. J Indian Ocean Reg 14(2):152–169 Murphy M (2007) Piracy and UNCLOS: does international law help regional states combat piracy? In: Lehr P (ed) Violence at sea: piracy in the age of global terrorism. Routledge, London, pp 155–182 Okonkwo T (2017) Maritime boundaries delimitation and dispute resolution in Africa. Beijing Law Rev 8:55–78

14  Connecting the Dots: Implications of the Intertwined Global Challenges…

243

Otto L (2018) Defining maritime piracy: the problem with the law. Acta Criminologica: Southern African. J Criminol 31(2):134–148 Passas N, Twyman-Ghoshal A (2012) Controlling piracy in Southeast Asia – thinking outside the box. In: Beckman RC, Roach JA (eds) Piracy and international maritime crimes in ASEAN: prospects for cooperation. Edward Elgar Publishing, Cheltenham, pp 65–94 Permanent Court of Arbitration (2016) The South China Sea arbitration (The Republic of the Philippines v. The People’s Republic of China). https://pca-cpa.org/en/news/pca-press-releasethe-south-china-sea-arbitration-the-republic-of-the-philippines-v-the-peoples-republic-of-chin a/&sa=U&ved=2ahUKEwi54uvVruflAhVCPFAKHZyMBSMQFjABegQICRAC&usg=AOv Vaw2K2EXohmYELmg8Zs6NIRUG. Accessed 29 Aug 2019 ReCAAP (2018) ReCAAP Information Sharing Centre launches new website and mobile App. http://www.recaap.org/resources/ck/files/news/2018/ReCAAP_ISC_Launches_New_ Website_and_Mobile_App_News_Release_FINAL.pdf. Accessed 15 May 2019 Roth B (2011) A call for mediated solutions to arctic region disputes. Cardozo J Int Comp L 19:851–896 Singh B (2018) Crime-terror Nexus in Southeast Asia: case study of the Abu Sayyaf Group. Counter Terror Trends Anal 10(9):6–10 Speller I (2018) Understanding naval warfare. Routledge, London Storey I (2009) Maritime security in Southeast Asia. Two cheers for regional cooperation. In: Sing D (ed) Southeast Asian affairs 2009. Institute of Southeast Asian Studies, Singapore, pp 36–58 Toonen HM, Bush SR (2018) The digital frontiers of fisheries governance: fish attraction devices, drones and satellites. J Environ Policy Plan:1–13 Treves T (2013) Piracy and the international law of the sea. In: Guilfoyle D (ed) Modern piracy. Legal challenges and responses. Edward Elgar Publishing, Cheltenham, pp 117–146 United Nations (2000) Protocol against the smuggling of migrants by land, sea and air, supplementing the United Nations convention against transnational organized crime. New York Voyer M, Schofield C, Azmi K, Warner R, McIlgorm A, Quirk G (2018) Maritime security and the blue economy: intersections and interdependencies in the Indian Ocean. J Indian Ocean Reg 14(1):28–48 World Bank (2016) What is the blue economy?. https://www.worldbank.org/en/news/infographic/2017/06/06/blue-economy. Accessed 29 Aug 2019