Captain Graham began giving weekend seminars for the California
Maritime Academy’s Continuing Education Department to those interested in the
maritime matters in 1975, while on leave from the Navy to attend law school.
The most popular topic over each sixteen-hour session on everything encompassed
by international maritime law was “piracy”.
Over the intervening 35-plus years, the
pertinent law has evolved in some respects and changed not at all in others.
What follows is the second part of Captain Graham’s own legal “take”, his own
opinions, his own view of this precinct of the maritime world. This is the
final installment in this series, previous chapters of which can be found on
the web atwww.pmmonlinenews.com/2013/02/piracy-series.html.
The unfortunate events of 9/11 seem to have
captured the world maritime community’s interest that, in fact, the phenomenon
of “maritime terrorism” was something more than an academic legal theory, a
feature film plot, or an unthinkable event. (Prior to 9/11, terrorism insurance
was issued without additional charge in 70 percent of all insurance policies.)
IMO’s Safety of Life at Sea (SOLAS) members met and began creating an
international treaty framework for vessel and port facility security. The
result was the globally applicable International Ship and Port Facility
Security (ISPS) Code and the US domestic version codified as the Maritime
Transportation Security Act of 2002 Act (MTSA), P.L. 107-295 of November 25,
2002 with implementing regulations at 33 CFR Subchapter H. (It is worth noting
in passing that the instrument prepared by SOLAS as a response tracks with an
ironic pattern. SOLAS generated its first treaty involving improved safety in
the maritime regime in 1914, two years after the loss ofTitanic.
In the time continuum that is our global maritime experience, there remains a
reactionary mode to seaborne threats with scarcely ever a proactive look
forward. An historical sine curve results with fairly long intervals between
peaks of catastrophe.)
The ISPS Code is copyrighted by the IMO and
the International Labor Organization, but a downloadable copy is available
through either the Department of Homeland Security or US Coast Guard’s homepage
if a credit card number is provided. The Code was implemented to: 1. Work
through agreements between signatory nations referred to as “Contracting
Governments” which gather, assess and exchange security data; 2. Maintain
communication protocols for vessels and “port facilities” (the latter being
defined as “a location, as determined by the Contracting Government or the
Designated Authority, where the ship/port interface takes place…including areas
such as anchorages, waiting berths and approaches from seaward, as
appropriate.”); 3. Prevent unauthorized access to port facilities and
restricted areas as well as prevent the introduction of unauthorized weapons,
incendiary devices and explosives; 4. Establish an alarm system for security
threats and incidents; 5. Require port facility security plans based upon
security assessments; and 6. Conduct training through drills and exercises.
The MTSA mimics the ISPS Code with domestic
security-oriented planning and regulatory requirements. The Transportation
Worker Identification Credential or TWIC card, the personal identification card
for waterfront accessibility in the Post-9/11 world, was also a product. The
Coast Guard also used its legal authorities to cut 50 percent of substandard
vessels from calling at US ports and deployed additional administrative
remedies to detain, expel, deny entry, and publicize poor performance of
vessels. The Coast Guard’s MTSA/ISPS Help Desk number is (877) 687-2243.
Hardware changes at port facilities (such as
the nuclear carwash for container traffic) and, more importantly, improved
security practices around the world wrought by ISPS and MTSA are beyond the
scope of a legal retrospective on maritime terrorism. However, it is perfectly
in-scope to continue to sound the alarm that a sensible maritime future demands
that the US squarely address the legal malaise and obfuscation inflicted by
inertia, antiquated authorities, and parochial legal positions.
Let me conclude my legal retrospective by
challenging the mainstream conclusion that piracy and maritime terrorism are
independent performers on the vast stage of the ocean. As one recent study
hypothesized, the ship’s crew that has been overcome by intruders, tied up, and
left aboard the plundered vessel with the autopilot set to ramp up RPMs for sea
speed in a heavily trafficked, narrow international ship channel with
navigational and environmental consequences a certainty, probably won’t be
inclined to split legal hairs over whether financial gain or political
statement was the underlying impetus.
Former Chief of Naval Operations Admiral Gary
Roughead warned in 2006 (while still Commander of the Pacific Fleet) that a
terrorist attack in the Malacca Straits would impact the world economy. His
announcement was the first time in my memory that a public figure didn’t
automatically equate the Malacca Straits with piracy in the same sentence. His
warning “got it right” and linked vessel attacks with maritime terrorists
irrespective of the red herrings of motive, gain, and artificial demarcations.
Current international maritime law literature
regularly features articles that assert piracy is maritime terrorism while
giving equal time to those that attempt to distinguish between the two, e.g .,
it is perfectly legal for ship owners to pay ransoms to pirates to repatriate
vessels and crews which, of course, would be unlawful if the pirates were
terrorists, etc. The legal maze presented by some writers purposefully draws it
with narrow blind alleys going nowhere whereas others reach a more summary
conclusion, e.g ., both groups are “enemies of the human race”; neither are
sponsored by a nation-state as they have no national allegiance; they form
extraterritorial outposts; and both terrorize civilians through death and
destruction for private (non-public) ends.
These seesaw legal debates will persist, yet
became moot, in my opinion, with a simple “connect the dots” exercise. Several
responsible and reliable media reports in 2009 documented the call by al-Qaeda
spokesmen for Somali pirates to attack international shipping to disrupt the
international supply chain. (Remember, Somalia has the longest coastline in
mainland Africa.) Evidence further indicates that ransom money received by
Somali pirates is, in part, being used to underwrite al-Qaeda. (Realize too
that $300 million was paid in ransoms in 2010; the average being $5.4 million;
individual vessel ransoms were in the $10 million range; and a total of $3
billion in insurance claims were made to cover Somali piracy alone. The
continued funneling of these ransom monies is a potential al-Qaeda windfall.)
This vicarious link to underwriting terrorism
with ransom money is, however, no more frightening than the statistic that 20
percent of all ransom money received is re-invested by pirate groups into
better boats, GPS systems, satellite phones, and payments to informants working
in the Middle East. By the way, the existing system of informants appears to
work well, providing advance notice to pirates about which vessels carry armed
guards and which vessel owners have the financial ability to pay ransoms. Using
the services of ransom negotiators generally results in new and better
intelligence being passed along to pirates in Somalia and at least one ransom
“negotiator” has been tried as a pirate.
At this time, it cannot be reported that a
comprehensive legal definition linking piracy and maritime terrorism has been
adopted by the US or the world community. Congress could act in this regard
without creating any clear conflicts in American legal precedent or the
Nation’s international commitments. Another possible initiative awaiting
American leadership is to seek expanded jurisdiction over piracy and terrorism
in the International Criminal Court at The Hague. Although the pattern of
America is to eschew international tribunals and obligations in favor of
parochial procedures and domestic legislation, the international war on
terrorism and interdicting historical enemies of all mankind should force a
much-needed sea change in our legal thinking and global response.
In the meantime, I will continue to advocate
that nations, companies, and individuals at all levels quit making piracy pay.
Raise the ante; raise the risk to pirates and terrorists; raise the risk of
business as usual; and I predict that participants will find another calling.
Tribute was routinely paid to pirates in ancient times until Julius Caesar made
an early career reputation by annihilating them. Our own national history
includes a determined President Thomas Jefferson taking the war against piracy
to the Barbary Coast with good results. An equally resolute Presidential
successor, Andrew Jackson, when taking military action against the pirate
enclave of Quallah Battoo (Kuala Batu) on Sumatra, which had executed American
sailors, reminded the world “the Flag of the Union is not to be insulted with
impunity.” It should not be the common commercial practice nor acceptable to
pay ransoms to pirates.
With the link well established to terrorism,
I will continue to claim that they are both the same phenomenon, but, if you
care to distinguish, then it may be asserted that when you pay pirates you aid
international terrorism. I’m gratified to say having lived long enough to have
challenged the maritime officials of Malacca Strait nations in print who
claimed they were unable to do anything about piracy (even in their own
national waters), that today those same nations actively intervene against
pirates through integrated merchant vessel tracking, deploying viable local
coast guards, and utilizing naval and air forces to escort vessels and
interdict criminals at sea.
One other weapon brought to bear is the use
of real time intelligence generated by IMB’s Piracy Reporting Center in
Malaysia and Singapore’s Information Sharing Center. The welcome comprehensive
result, of course, is that pirate attack statistics are measurably down in the
region.
To quote Theodore Roosevelt (who admittedly
was not speaking to piracy but also did not suffer the kidnap of Americans by
foreign bandits), “In any moment of decision, the best thing to do is the right
thing. The worst thing you can do is nothing.”
I believe there are several channels, legal
and operational, for doing the right thing relative to piracy on the world’s
highway. Collectively, the modern response to date is a failing grade for doing
nothing at all or proceeding with a reluctant, legally-confused attitude and a
tepid, half-hearted response. The professional mariners of the world deserve
better.
Captain Graham began giving weekend seminars for the
California Maritime Academy’s Continuing Education Department to those
interested in the maritime matters in 1975, while on leave from the Navy to
attend law school. The most popular topic over each sixteen-hour session on
everything encompassed by international maritime law was “piracy”.
Over the intervening 35-plus years, the
pertinent law has evolved in some respects and changed not at all in others.
What follows is the second part of Captain Graham’s own legal “take”, his own
opinions, his own view of this precinct of the maritime world. This is the
final installment in this series, previous chapters of which can be found on
the web at
www.pmmonlinenews.com/2013/02/piracy-series.html.
The unfortunate events of 9/11 seem to have
captured the world maritime community’s interest that, in fact, the phenomenon
of “maritime terrorism” was something more than an academic legal theory, a
feature film plot, or an unthinkable event. (Prior to 9/11, terrorism insurance
was issued without additional charge in 70 percent of all insurance policies.)
IMO’s Safety of Life at Sea (SOLAS) members met and began creating an
international treaty framework for vessel and port facility security. The
result was the globally applicable International Ship and Port Facility
Security (ISPS) Code and the US domestic version codified as the Maritime
Transportation Security Act of 2002 Act (MTSA), P.L. 107-295 of November 25,
2002 with implementing regulations at 33 CFR Subchapter H. (It is worth noting
in passing that the instrument prepared by SOLAS as a response tracks with an
ironic pattern. SOLAS generated its first treaty involving improved safety in
the maritime regime in 1914, two years after the loss ofTitanic.
In the time continuum that is our global maritime experience, there remains a
reactionary mode to seaborne threats with scarcely ever a proactive look
forward. An historical sine curve results with fairly long intervals between
peaks of catastrophe.)
The ISPS Code is copyrighted by the IMO and
the International Labor Organization, but a downloadable copy is available
through either the Department of Homeland Security or US Coast Guard’s homepage
if a credit card number is provided. The Code was implemented to: 1. Work
through agreements between signatory nations referred to as “Contracting
Governments” which gather, assess and exchange security data; 2. Maintain
communication protocols for vessels and “port facilities” (the latter being
defined as “a location, as determined by the Contracting Government or the
Designated Authority, where the ship/port interface takes place…including areas
such as anchorages, waiting berths and approaches from seaward, as
appropriate.”); 3. Prevent unauthorized access to port facilities and
restricted areas as well as prevent the introduction of unauthorized weapons,
incendiary devices and explosives; 4. Establish an alarm system for security
threats and incidents; 5. Require port facility security plans based upon
security assessments; and 6. Conduct training through drills and exercises.
The MTSA mimics the ISPS Code with domestic
security-oriented planning and regulatory requirements. The Transportation Worker
Identification Credential or TWIC card, the personal identification card for
waterfront accessibility in the Post-9/11 world, was also a product. The Coast
Guard also used its legal authorities to cut 50 percent of substandard vessels
from calling at US ports and deployed additional administrative remedies to
detain, expel, deny entry, and publicize poor performance of vessels. The Coast
Guard’s MTSA/ISPS Help Desk number is (877) 687-2243.
Hardware changes at port facilities (such as
the nuclear carwash for container traffic) and, more importantly, improved
security practices around the world wrought by ISPS and MTSA are beyond the
scope of a legal retrospective on maritime terrorism. However, it is perfectly
in-scope to continue to sound the alarm that a sensible maritime future demands
that the US squarely address the legal malaise and obfuscation inflicted by
inertia, antiquated authorities, and parochial legal positions.
Let me conclude my legal retrospective by
challenging the mainstream conclusion that piracy and maritime terrorism are
independent performers on the vast stage of the ocean. As one recent study
hypothesized, the ship’s crew that has been overcome by intruders, tied up, and
left aboard the plundered vessel with the autopilot set to ramp up RPMs for sea
speed in a heavily trafficked, narrow international ship channel with
navigational and environmental consequences a certainty, probably won’t be
inclined to split legal hairs over whether financial gain or political
statement was the underlying impetus.
Former Chief of Naval Operations Admiral Gary
Roughead warned in 2006 (while still Commander of the Pacific Fleet) that a
terrorist attack in the Malacca Straits would impact the world economy. His
announcement was the first time in my memory that a public figure didn’t
automatically equate the Malacca Straits with piracy in the same sentence. His
warning “got it right” and linked vessel attacks with maritime terrorists
irrespective of the red herrings of motive, gain, and artificial demarcations.
Current international maritime law literature
regularly features articles that assert piracy is maritime terrorism while
giving equal time to those that attempt to distinguish between the two, e.g .,
it is perfectly legal for ship owners to pay ransoms to pirates to repatriate
vessels and crews which, of course, would be unlawful if the pirates were
terrorists, etc. The legal maze presented by some writers purposefully draws it
with narrow blind alleys going nowhere whereas others reach a more summary
conclusion, e.g ., both groups are “enemies of the human race”; neither are
sponsored by a nation-state as they have no national allegiance; they form
extraterritorial outposts; and both terrorize civilians through death and
destruction for private (non-public) ends.
These seesaw legal debates will persist, yet
became moot, in my opinion, with a simple “connect the dots” exercise. Several
responsible and reliable media reports in 2009 documented the call by al-Qaeda
spokesmen for Somali pirates to attack international shipping to disrupt the
international supply chain. (Remember, Somalia has the longest coastline in
mainland Africa.) Evidence further indicates that ransom money received by
Somali pirates is, in part, being used to underwrite al-Qaeda. (Realize too
that $300 million was paid in ransoms in 2010; the average being $5.4 million;
individual vessel ransoms were in the $10 million range; and a total of $3
billion in insurance claims were made to cover Somali piracy alone. The
continued funneling of these ransom monies is a potential al-Qaeda windfall.)
This vicarious link to underwriting terrorism
with ransom money is, however, no more frightening than the statistic that 20
percent of all ransom money received is re-invested by pirate groups into better
boats, GPS systems, satellite phones, and payments to informants working in the
Middle East. By the way, the existing system of informants appears to work
well, providing advance notice to pirates about which vessels carry armed
guards and which vessel owners have the financial ability to pay ransoms. Using
the services of ransom negotiators generally results in new and better
intelligence being passed along to pirates in Somalia and at least one ransom
“negotiator” has been tried as a pirate.
At this time, it cannot be reported that a
comprehensive legal definition linking piracy and maritime terrorism has been
adopted by the US or the world community. Congress could act in this regard
without creating any clear conflicts in American legal precedent or the
Nation’s international commitments. Another possible initiative awaiting
American leadership is to seek expanded jurisdiction over piracy and terrorism
in the International Criminal Court at The Hague. Although the pattern of
America is to eschew international tribunals and obligations in favor of
parochial procedures and domestic legislation, the international war on
terrorism and interdicting historical enemies of all mankind should force a
much-needed sea change in our legal thinking and global response.
In the meantime, I will continue to advocate
that nations, companies, and individuals at all levels quit making piracy pay.
Raise the ante; raise the risk to pirates and terrorists; raise the risk of
business as usual; and I predict that participants will find another calling.
Tribute was routinely paid to pirates in ancient times until Julius Caesar made
an early career reputation by annihilating them. Our own national history
includes a determined President Thomas Jefferson taking the war against piracy
to the Barbary Coast with good results. An equally resolute Presidential
successor, Andrew Jackson, when taking military action against the pirate
enclave of Quallah Battoo (Kuala Batu) on Sumatra, which had executed American
sailors, reminded the world “the Flag of the Union is not to be insulted with
impunity.” It should not be the common commercial practice nor acceptable to
pay ransoms to pirates.
With the link well established to terrorism,
I will continue to claim that they are both the same phenomenon, but, if you
care to distinguish, then it may be asserted that when you pay pirates you aid
international terrorism. I’m gratified to say having lived long enough to have
challenged the maritime officials of Malacca Strait nations in print who claimed
they were unable to do anything about piracy (even in their own national
waters), that today those same nations actively intervene against pirates
through integrated merchant vessel tracking, deploying viable local coast
guards, and utilizing naval and air forces to escort vessels and interdict
criminals at sea.
One other weapon brought to bear is the use
of real time intelligence generated by IMB’s Piracy Reporting Center in
Malaysia and Singapore’s Information Sharing Center. The welcome comprehensive result,
of course, is that pirate attack statistics are measurably down in the region.
To quote Theodore Roosevelt (who admittedly
was not speaking to piracy but also did not suffer the kidnap of Americans by
foreign bandits), “In any moment of decision, the best thing to do is the right
thing. The worst thing you can do is nothing.”
I believe there are several channels, legal
and operational, for doing the right thing relative to piracy on the world’s
highway. Collectively, the modern response to date is a failing grade for doing
nothing at all or proceeding with a reluctant, legally-confused attitude and a
tepid, half-hearted response. The professional mariners of the world deserve
better.
