Drawing two flowchart

Please read the file i uploaded and let me know if its clear

I want you to make two flowchart using mind map or mind view. I draw the
figures but my supervisor does not like the style. He told me to try tomake
flowchart by using mind map or mind view . in the below you will see two figures.
You can copy the word inside them so you can save time but I want to make the
two figures more clean. The problem when I put the figure in my paper, then I
write, the figure go to the footnotes and make the paper messy.
So I want you to make to figures
One about Piracy in relation to maritime terrorism
I have uploaded file name 1 in page 161 you will see a picture
Make sure the size is 12 and use Times new romans
My supervisor comment on the figure that I did before:
Figure 1.3 Piracy in Relation To Maritime Terrorism.1
Second, I want to draw a flowchart. Open the link on page 29 and you will see the
flowchart about terrorism Terrorismus
https://www.bundesheer.at/pdf_pool/publikationen/05_ttt_01_ttt.pdf
I made one you can below but I do not want to make same but you can use the
word that I copy so you can save times
Remember time new roman and size 12
Graham Ong ‘Ships Can Be Dangerous Too’: Coupling Piracy and Maritime Terrorism in Southeast
Asia’s Maritime Security Framework (2004) International Politics & Security Issues Series 1
1
Figure 3.1 Piracy in relation to maritime terrorism.
Distinction
A. Motive
Piracy is essentially motivated
by economic goals while
Maritime terrorism is
motivated
by political goals/ ideology.
B Profile
Pirates seek to avoid attention
and will inflict only as much
harm as is necessary 10
accomplish their objectives.
Terrorists seek attention to
their cause and inflict as much
harm and damage as possible.
C Not all piracy involves acts
of
Violence
Piracy
Maritime
Terrorism
Overlap
A Roots\Circumstances
They are premeditated- planned
in advance rather than on
impulse
Aimed at civilians
Carried out by subnational/transnational groups
B Type and nature of violence
Organised extreme and to some
extent, instrumental
Carried out at sea, using
maritime vessels, using light
and or heavy weapons, involving
hijacking and even thievery.
C Threat/Impact
Economic and political security
affected—threatens life at sea
and safety of maritime
navigation;
disruption of economic activity
and political stability; social
climate of fear/terror.
Figure 4. Terrorism categories.
Terrorism
By means
and
methods
used
State
terrorism
By actors
involved
Statesponsored
terrorism
Suicide
errorism
Revolutionar
y terrorism
Cyberterrorism
Bioterrorism
Nuclear
terrorism
CBRN
terrorism ABCTerrorism
Chemical
terrorism
By
geographical
range
By motives
Religious
terrorism
Narco
terrorism
Political
terrorism
Single-issue
terrorism
Left-wing
terrorism
Right-wing
terrorism
Domestic
terrorism
International
terrorism
University of Wollongong
Research Online
University of Wollongong Thesis Collection
University of Wollongong Thesis Collections
2013
Countering terrorism in the maritime domain: a
contemporary evaluation of the international legal
framework
Robin Bowley
University of Wollongong
Recommended Citation
Bowley, Robin, Countering terrorism in the maritime domain: a contemporary evaluation of the international legal framework, Doctor
of Philosophy thesis, Australian National Centre for Ocean Resources and Security, University of Wollongong, 2013.
http://ro.uow.edu.au/theses/4262
Research Online is the open access institutional repository for the
University of Wollongong. For further information contact the UOW
Library: research-pubs@uow.edu.au
Countering Terrorism in the Maritime Domain: A
Contemporary Evaluation of the International Legal
Framework
A thesis submitted in fulfilment of the requirements for the
award of the degree of
Doctor of Philosophy
from
University of Wollongong
by
Robin Bowley
Australian National Centre for Ocean Resources of Security
Faculty of Law, University of Wollongong
2013
Certification
I, Robin Bowley, declare that this thesis, submitted in fulfilment of the requirements
for the award of Doctor of Philosophy, at the Australian National Centre for Ocean
Resources of Security, Faculty of Law, University of Wollongong, is wholly my own
work unless otherwise referenced or acknowledged. The document has not been
submitted for qualifications at any other academic institution.
……………………….
Robin Bowley
1 October 2013
Acknowledgements
In submitting this thesis I would like to acknowledge and thank several people for their
guidance and support.
First and foremost to my supervisors Professor Martin Tsamenyi AM and Professor Clive
Schofield for their advice and guidance, and their constructive feedback on the progressive
drafts of the chapters
I would also like to thank the various members of the Australian National Centre for Ocean
Resources and Security for their encouragement and collegiality over the years of my
candidature – including Professor Sam Bateman AM, Professor Stuart Kaye, Associate
Professor Robin Warner, Dr Chris Rahman, Dr Mary-Ann Palma, Dr Anthony Morrison, Dr
Lowell Bautista, Dr Mikhail Kashubsky, Kamal Dean Ali, I Made Andi Arsana, Myree
Mitchell and Ben Milligan.
Within the University of Wollongong Law Faculty I would like to thank Professor Adam
Dolnik, Dr Sam Mullins, Pradeep Rathnayke and Khuram Iqbal for their constructive guidance
in relation to various aspects of terrorism and counter-terrorism.
Finally I would like to thank my parents and family who have supported me in all of my
educational endeavours.
To the best of my knowledge this thesis is current as at 1 October 2013. It also incorporates
information from some more recent sources following the thesis examination process.
ii
Abstract
Following the 9/11 attacks, concerns about maritime terrorism prompted several international
legal developments. These included amendments to the 1974 SOLAS Convention introducing
the ISPS Code, and the Long Range Identification and Tracking of ships, with amendments to
the 1958 Seafarers Identity Documents Convention also occurring. 2005 also saw the
finalisation of amendments to the 1988 SUA treaties to better facilitate the interdiction of
suspected terrorist vessels. Additionally, the US-led Proliferation Security Initiative has
prompted critical re-thinks about the interdiction powers of States under the 1982 UN Law of
the Sea Convention, and in exceptional cases, under Article 51 of the UN Charter.
This Study examines the extent to which the above international agreements are likely to
succeed in enabling the prevention of contemporary post-9/11 forms of maritime terrorism. It
formulates the Maritime Terrorism Threat Matrix to statistically analyse all the ways in which
maritime terrorism incidents have occurred, and might occur in future. The study combines
these findings with analyses of how the ISPS Code and LRIT measures have developed since
their entry into force, and also examines the debate amongst international legal scholars about
the legality of vessel interdictions in the post 9/11 maritime security context.
Through considering how the above international agreements might apply in practice, the Study
highlights the importance of continual and rigorous application of ISPS Code security measures
both by contracting governments and at operational levels within maritime industries. Whilst
it identifies scope for flexible interpretations of UNCLOS (and possibly Article 51 of the UN
Charter) relating to the interdiction of suspected terrorist vessels, it argues for increased
ratification of the 2005 SUA Convention to reduce the scope for uncertainty and conflict.
Overall the Study demonstrates that the international legal framework for preventing maritime
terrorism incidents has been improved since 9/11. Going forward, it argues that instead of
further reforms or new instruments, the international community’s focus should be on
continually refining the prospects for the existing instruments to succeed, and outlines
recommendations for how this might be achieved.
iii
Table of Contents
Acknowledgements …………………………………………………………………………………………………….i
Abstract……………………………………………………………………………………………………………………..ii
Table of Contents ………………………………………………………………………………………………………iii
List of Figures and Tables………………………………………………………………………………………….xiv
Acronyms and Abbreviations…………………………………………………………………………………….. xv
Chapter 1:
Introduction
[1.1]
Background…………………………………………………………………………………………..1
[1.2]
The question investigated by this Study ……………………………………………….. 5
[1.2.1]
Existing literatures..………………………………………..………………..… 5
[1.2.2]
Thesis Aims………….……………………………..………………………… 7
[1.3]
Argument of this Study………………………………………………………………………… 8
[1.4]
Outline of the structure of this Study………………………………………………………..9
[1.5]
Scope of this Study …………………………………….…………………….16
[1.5.1]
Scope of analysis of maritime terrorism threats ……………………………..17
[1.5.2]
Scope of analysis of the international agreements ………..…..……………..17
[1.6]
Methodology, information sources and their reliability …………………………….18
[1.6.1]
Regarding maritime terrorism threats ………………………………………..18
[1.6.2]
Regarding the international agreements.……………….……………………..19
[1.7]
Significance of this Study.……………………………………………………20
iv
CHAPTER 2
THE THREAT OF CONTEMPORARY TERRORISM GLOBALLY
[2.1]
Introduction…………………………………………………………………………………………22
[2.2]
The challenges of defining terrorism ……………..…..………………………..23
[2.2.1]
International legal definitions ………………………………………………………………. 23
[2.2.2]
Designated terrorist organisations: International and national
approaches ……………………………………………………………………………………….26
[2.2.3]
Academic definitions of terrorism ………………………………………………27
[2.2.4]
Rationale for this Study’s use of the broad 2011 Revised Academic
Consensus Definition of Terrorism …………………………………………………..32
[2.3]
The evolution of terrorism: Rapaport’s four waves thesis …………………………33
[2.3.1]
The first, second and third of Rapaport’s waves ………………………………………35
[2.3.2]
The fourth (and contemporary) of Rapaport’s waves………………………………..36
[2.3.3]
Factors facilitating development of Fourth Wave terrorism ………………………37
[2.3.4]
Statements of Al Qaeda’s ideology ………………………………………………………..39
[2.4]
Distinguishing contemporary and older forms of terrorism ………………………40
[2.4.1]
Existing distinguishing terminologies …………………………………………………….41
[2.4.2]
Rationale: Contemporary and Pre-Contemporary Terrorism ……………………. 43
[2.5]
Contemporary vs pre-contemporary terrorism: Comparison of
operational profiles ………………………………………………………………………………45
[2.5.1]
Operational profiles of contemporary terrorist attacks……………………………….48
[2.5.2]
Operational profiles of pre-contemporary terrorist attacks ………………………. 52
[2.5.3]
Comparisons of reported interest in acquiring
and utilising Weapons of Mass Destruction ………………………………………. 56
[2.6]
Contemporary vs pre-contemporary terrorism: Comparison of
organisational profiles ………………………………………………………………………….59
[2.6.1]
Globalised outlook of contemporary terrorist groups………………………………. 59
[2.6.2]
Contemporary terrorist groups operating without active State
sponsorship or support………………………………………………………………………… 60
[2.6.3]
Less identifiable organisational structures……………………………………………… 62
[2.6.4]
The increasing prevalence of home grown terrorism ………………………………. 63
[2.7]
International security implications of contemporary terrorism …………………..64
[2.7.1]
Post-9/11 Counter-Terrorism Security Council Resolutions………………………66
[2.8]
Conclusion…………………………………………………………………………………………. 71
v
CHAPTER 3
THE THREAT OF CONTEMPORARY TERRORISM IN THE MARITIME DOMAIN
[3.1]
Introduction ………………………………………………………………………………………. 73
[3.2]
Vulnerabilities of the maritime domain to terrorist targeting and
utilisation ……………………………………………………………………………………………74
[3.3]
Comparison of contemporary and pre-contemporary maritime
terrorist attacks ………………………………………………………………………………….. 76
[3.3.1]
Comparison of operational profiles ………………………………………………………. 77
[3.3.2]
Indications of maritime-focused intent and capability amongst
contemporary terrorist groups ……………………………………………………………….82
[3.4]
How could contemporary maritime terrorism incidents occur? ………………….86
[3.5]
The Maritime Terrorism Threat Matrix …………………………………………………. 90
[3.5.1]
Development of the Threat Matrix …………………………………………………… 90
[3.5.2]
Use of the Threat Matrix for analysing the practical application
of the international agreements in Chapters 5, 6 and 7………………………………96
[3.6]
Criteria for assessing the prospects for the international
agreements to prevent maritime terrorism incidents…………….…….………98
[3.6.1]
Factors that should characterise international efforts to counter
contemporary forms of maritime terrorism………………………………………………99
[3.6.2]
The coverage and acceptance criteria for assessing the prospects
for the international agreements to prevent maritime
terrorism incidents………………………………………………………………………………102
[3.7]
Conclusion……………………………………………………………………………………….. 105
vi
CHAPTER 4
SOLAS MARITIME SECURITY AND VESSEL IDENTIFICATION AND TRACKING
AMENDMENTS AND 2003 SID CONVENTION: ANALYSIS OF DEVELOPMENTS
SINCE THEIR ENTRY INTO FORCE
[4.1]
Introduction ………………………………………………………………………………………107
[4.2]
SOLAS Chapter XI and ISPS Code maritime
security measures ………………………………………………………………………………108
[4.2.1]
Obligations imposed by SOLAS Chapter XI and the ISPS Code……………109
[4.2.1.1]
Obligations for SOLAS Contracting Governments ………………………………..110
[4.2.1.2]
Obligations for SOLAS ships and shipping companies……………………………111
[4.2.1.3]
Obligations for operators of port facilities……………………………………………..112
[4.2.1.4]
Identified limitations of the ISPS Code ………………………………………………..113
[4.2.2]
Limited application of ISPS Code to the ship-port interface ……………………113
[4.2.2.1]
Post 9/11 supply chain security initiatives……………………………………………..115
[4.2.2.2]
Post-2002 IMO-WCO Cooperation ……………………………………………………..117
[4.2.3]
Limited application of ISPS Code to SOLAS vessels …………………………….119
[4.2.4]
Inconsistent application of ISPS Code to offshore platforms……………………122
[4.2.5]
Concerns about Ship Security Alert System arrangements……………………….124
[4.2.6]
Challenges in assessing the actual implementation
of the ISPS Code………………………………………………………………………………..127
[4.2.7]
Prospects for the ISPS Code to prevent maritime terrorism
Best case / worst case scenario factors………………………………………..136
[4.3]
SOLAS vessel identification and
tracking measures.……………………………………………………………………………..141
[4.3.1]
Automatic Identification Systems…………………………………………………………141
[4.3.2]
Long Range Identification and Tracking……………………………………………….143
[4.4]
2003 Revised Seafarer Identity
Documents Convention……………………………………………………………………….148
[4.4.1]
Provisions of the 2003 SID Convention ……………….………………….. 148
[4.4.2]
Implementation status of 2003 SID Convention ………….………………..150
[4.5]
Conclusion ………………………………………………………………………………………..150
vii
CHAPTER 5
COUNTERING TERRORIST TARGETING OF VESSELS
[5.1]
Introduction ………………………………………………………………………………………152
[5.2]
Countering terrorist targeting of vessels from other vessels …………………….153
[5.2.1]
Threat context: Previous occurrences ……………………………………………………153
[5.2.2]
Comparative analysis: Countering vessel-based attacks by
terrorists and by pirates ………………………………………………………………………158
[5.2.2.1]
Distinguishing maritime terrorism from piracy……………………………………..160
[5.2.2.2]
International counter-piracy maritime security
cooperation frameworks……………………………………………………..164
[5.2.2.3]
Multinational naval deployments and strengthened
mandates for interdicting pirate vessels..……………………………………167
[5.2.2.4]
IMO counter-piracy security guidance for commercial vessels ……………168
[5.2.2.5]
Effectiveness of preventative security measures against
pirate targeting of vessels ……………………………………………………………………172
[5.2.2.6]
What might the experience in countering pirate attacks portend
for preventing vessel–based terrorist attacks on vessels….…………….…..174
[5.2.3]
Best case / worst case scenario analysis of SOLAS Chapter XI-2
(ISPS Code) and AIS preventing vessel–based terrorist
attacks on vessels.……………………………………………………………..177
[5.3]
Countering vessel targeting from other than vessel sources …………………….180
[5.3.1]
Threat context: Vessel targeting from the land ………………………………………180
[5.3.2]
Threat context: Vessel targeting from inside the vessel …………………………..182
[5.3.3]
Threat context: Vessel targeting from below the surface …………………………184
[5.3.4]
Threat context: Vessel targeting from the air ………………………………………..186
[5.3.5]
Best case / worst case scenario analysis of SOLAS Chapter XI-2
(ISPS Code) preventing vessel–based terrorist
attacks on vessels…………………………………………………………………….187
[5.4]
Conclusion ……………………………………………………………………………………….192
viii
CHAPTER 6
COUNTERING OFFENSIVE TERRORIST UTILISATIONS OF VESSELS
[6.1]
Introduction………………………..…………….……………..………..….194
[6.2]
Countering dangerous terrorist utilisations of vessels..…..…….……………195
[6.2.1]
Threat context: Previous occurrences..……………….……..………………195
[6.2.1.1]
The vessel as a weapon: Against land targets…..……….…..………………196
[6.2.1.2]
The vessel as a bomb: Against land targets……………..……..……………197
[6.2.1.3]
The vessel as a weapon: Against other vessels………….…………………..198
[6.2.1.4]
The vessel as a bomb: Against other vessels………………..………………..200
[6.2.1.5]
The vessel as a weapon:
Against aircraft..……..…………………………………………..……..……201
[6.2.2]
Best case / worst case scenario analysis of SOLAS Chapter XI-2
(ISPS Code) and AIS preventing dangerous terrorist
utilisations of vessels ….…………………..…………………..……………202
[6.2.3]
Overview of interdictions of suspected terrorist vessels………………….…206
[6.2.3.1]
Overview of interdiction powers across the UNCLOS
maritime zones….……………….………………………….……………….207
[6.2.3.2]
Interdictions of suspected terrorist vessels within territorial seas………..…211
[6.2.3.3]
Interdictions of suspected terrorist vessels on the high seas………………..215
[6.2.3.4]
Interdictions of suspected terrorist vessels in international straits……….…216
[6.2.3.5]
Summary: Prospects for UNCLOS to enable the interdiction
of suspected terrorist vessels …………………………………………….…217
[6.2.4]
1988 SUA Convention …………………………………………………..…218
[6.2.5]
2005 SUA Convention …………………………………………………..…221
[6.2.6]
Conclusion: Interdictions of suspected terrorist vessels ……………………225
[6.3]
Countering terrorist attacks on offshore platforms.………………………….225
[6.3.1]
Threat context: Previous occurrences ………………………………………226
[6.3.1.1]
The vessel as a weapon: Against offshore platforms ………………………226
[6.3.1.2]
The vessel as a bomb: Against offshore platforms …………………………227
[6.3.1.3]
Offshore platforms as bombs against the marine environment …………….228
[6.3.2]
Best case / worst case scenario analysis of SOLAS Chapter XI-2
(ISPS Code) and AIS preventing terrorist attacks on
offshore platforms ………………………………………………………….228
[6.3.3]
UNCLOS protection powers: Offshore platforms ………….……………….230
ix
[6.3.4]
1988 SUA Platforms Protocol …………….……………………………..… 230
[6.3.5]
SUA Platforms Protocol ………………………………..…………………..233
[6.3.6]
Conclusion ………………………………….…………..….……………….234
[6.4]
Countering disruptive terrorist utilisations of vessels……….……..…..……235
[6.4.1]
Threat context: Previous occurrences ……………………..…….….….……235
[6.4.1.1]
The vessel as a disruption tool: Disabling near chokepoints………………..236
[6.4.1.2]
The vessel as a disruption tool: Laying sea mines.……….….………..……237
[6.4.1.3]
The vessel as a disruption tool: Deliberate pollution.………..……..………238
[6.4.1.4]
The vessel as a disruption tool: Against submarine cables …………………238
[6.4.2]
Best case / worst case scenario analysis of SOLAS Chapter XI-2
(ISPS Code) and AIS preventing disruptive terrorist
utilisations of vessels ….……….…………………..………………..………230
[6.4.3]
State protection powers under UNCLOS and the
2005 SUA Convention………………………………..….……….….………242
[6.4.3.1]
Deliberate pollution of the marine environment.………..……..…..……….242
[6.4.3.2]
Protection of submarine cables..………………………..………….….…….245
[6.5]
Conclusion …………………………………………..….……….….………247
x
CHAPTER 7
COUNTERING UTILISATIONS OF VESSELS TO ENABLE SUBSEQUENT
TERRORIST ATTACKS
[7.1]
Introduction ………………………………………………………………………………………249
[7.2]
Countering the utilisation of vessels for transporting
WMD materiel ………………………………………………………………………………….251
[7.2.1]
Threat context: Previous occurrences …………………………………………………..251
[7.2.2]
Best case / worst case scenario analysis of SOLAS Chapter XI-2
(ISPS Code) and LRIT preventing utilisations of
vessels for transporting WMD materiel…………………………………..…254
[7.2.3]
The Proliferation Security Initiative …………………………………………………….257
[7.2.3.1]
Ambiguous aspects of the PSI Interdiction Principles……………………………..259
[7.2.4]
Security Council Resolution 1540…………………………………………………………263
[7.2.5]
Analysis of the legality of WMD interdictions across
the UNCLOS maritime jurisdictional zones…………………………………………..266
[7.2.5.1]
WMD interdictions in internal waters and territorial seas………………………..266
[7.2.5.2]
WMD interdictions in contiguous zones………………………………………………..271
[7.2.5.3]
WMD interdictions on the high seas……………………………………………………..273
[7.2.5.4]
WMD interdictions in straits used for international navigation ………………..275
[7.2.5.5]
Summary: Legality of WMD interdictions under UNCLOS…………………….276
[7.2.6]
International “support” for the PSI Interdiction Principles ………………………278
[7.2.7]
The PSI Bilateral Ship Boarding Agreements…………………………………………281
[7.2.7.1]
Provisions of the PSI Bilateral Ship Boarding Agreements ……………………..283
[7.2.7.2]
Case study: 2011 tracking of the MV Light by the US Navy …………………..286
[7.2.8]
Long-term impact of the Proliferation Security Initiative ………………………..287
[7.2.9]
2005
[7.2.10]
Conclusion ………………………………………………………………………………………..292
[7.3]
Countering the utilisation of vessels for transporting conventional
SUA
Convention……………………………………………………………..290
weaponry, terrorist operatives and terrorist financing………………………………293
[7.3.1]
Threat context: Previous occurrences ……………………………………… 294
[7.3.1.1]
The vessel as a means of transporting conventional weaponry …………….294
[7.3.1.2]
The vessel as a means of transporting terrorist-connected persons…………299
[7.3.1.3]
The vessel as a means of terrorist financing ………………………………..302
xi
[7.3.2]
Best case / worst case scenario analysis of SOLAS Chapter XI-2
(ISPS Code) and the 2003 SID Convention preventing “other
than WMD transporting” utilisations of vessels …………………………….304
[7.3.3]
Analysis of the legality of “other than WMD” interdictions
across the UNCLOS maritime jurisdictional zones.…………………….…..306
[7.3.3.1]
“Other than WMD” interdictions within internal waters and territorial sea….307
[7.3.3.2]
“Other than WMD” interdictions within the contiguous zone……….….….309
[7.3.3.3]
“Other than WMD” interdictions on the High Seas ……………….………..310
[7.3.3.4]
“Other than WMD” interdictions within international straits ……….…..…312
[7.3.4]
Contribution of the PSI to “other than WMD” interdictions.………………..313
[7.3.5]
2005 SUA Convention ………………………………………….……….…314
[7.4]
Conclusion …………………………………………………………….…….315
xii
CHAPTER 8
COUNTERING MARITIME TERRORISM IN EXCEPTIONAL CIRCUMSTANCES
UNDER ARTICLE 51 OF THE UN CHARTER AND THE DOCTRINE OF
NECESSITY
[8.1]
Introduction ………………………………………………………………………………………318
[8.2]
Foundational meanings of “armed attack”…………….……………….……320
[8.2.1]
The Caroline criteria……………………………….……………..…………320
[8.2.2]
Foundational academic writings: Temporal aspects of Article 51………….322
[8.2.3]
Pre-9/11 state practice and 1974 UNGA Definition of Aggression…………324
[8.3]
ICJ jurisprudence regarding Article 51………………………………………326
[8.3.1]
Nicaragua v United States (1986)……………………………………..……327
[8.3.2]
Oil Platforms (Iran v United States) (2003)……………………………..….331
[8.3.3]
Palestinian Walls Advisory Opinion (2003)…………………………..……333
[8.3.4]
DRC v Uganda (2005) ………………………………………………………342
[8.4]
Post 9/11 state practice regarding Article 51……………………………..…343
[8.4.1]
Post-9/11 state practice and academic reactions…………………………….343
[8.4.2]
2004 UN High Level Report on Threats, Challenges and Changes……………345
[8.4.3]
Scholarly opinions: Caroline principles in the post-9/11
counter-terrorism context……………………………………………………348
[8.5]
Restrictive and liberal views of armed attack for interdicting
suspected terrorist vessels on the basis of self-defence………………….….350
[8.6]
Interdicting suspected terrorist vessels on the
Basis of Necessity.……………………………………..……………….…. 354
[8.7]
Conclusion……………………………………..…………………………….355
xiii
CHAPTER 9
CONCLUSION AND FUTURE RECOMMENDATIONS
[9.1]
Introduction ………………………………………………………………………………………357
[9.2]
Significance and principal findings……………………………………………………..357
[9.3]
Recommendations for refining the international legal framework ……………..362
[9.3.1]
Recommendations to refine preventative security arrangements…..….……363
[9.3.2]
Recommendations to refine arrangements for interdicting suspected
terrorist vessels………………………………………………………………365
[9.4]
Directions for further research……………………………………………………………..368
Bibliography …………………………………………………………………………………………………………..370
Appendices
Appendix A:
Designations of terrorist groups by the United Nations
and by selected States as at 1 October 2013 …………….………….414
Appendix B:
Terrorist Groups: Attacks and Fatalities 1968 – 2011..………………418
Appendix C:
Summary of yearly statistics in mass-casualty and
suicide terrorist attacks: 1972 – 2011…………………………….…464
Appendix D:
Summary of aviation bombings: 1970 – 2012………………………469
Appendix E:
Summary of aviation hijackings: 1968 – 2012 …..…………………473
Appendix F:
Summary of yearly trends in barricade terrorist
incidents: 1970 – 2011….……………………………………………509
Appendix G:
Chronology of successful maritime terrorism attacks:
1961 – 2013..….………………..……………………………………512
Appendix H:
Status of international agreements as at 1 October 2013 ………………542
Appendix I:
Effectiveness of preventative security measures against
piracy and armed robbery against ships: 2005 – 2012………………548
xiv
LIST OF FIGURES AND TABLES
Figure 1:
Frequency of Definitional Elements of Terrorism ………………………….. 29
Figure 2:
High-level summary of Rapaport’s Four Waves of Terrorism………………34
Figure 3:
Comparison of ‘Enemy Size/Tactical Footprint’ and ‘Aggregate Intelligence
Effort’ between the Cold War and the War on Terror ………………………66
Figure 4:
Terrorist Risk Factors from Shipping..……………….………………………91
Figure 5:
Depiction of the limited scope of the ISPS Code…………………………….114
Figure 6:
Overlaps and distinctions between piracy and maritime
Terrorism ..………………………………………………………………….161
Figure 7:
Four Circles Model: Piracy, Terrorism, Insurgency and
Organised Crime …………………………..………………..…………….. 164
Table 1:
Suicide terrorist attacks per year: 1972 – 2011 ……………………..……….49
Table 2:
Fatalities per year from suicide terrorist attacks:
1972 – 2011 ………………………………………..……………………….. 49
Table 3:
Mass-casualty suicide terrorist attacks: 1972 – 2011 ..………….…………… 49
Table 4:
Comparison: Mass casualty attacks per year: Suicide vs
Non-Suicide attacks 1972 – 2011 …..…………………………………………50
Table 5:
Comparison: Fatalities from mass-casualty attacks per
year: Suicide vs Non-Suicide attacks 1972 – 2011 …………….…………… 50
Table 6:
Significant contemporary terrorist attacks: 1998 – 2011………….…………51
Table 7:
Air hijackings per year: 1968 – 2011 ……………………………….….…… 54
Table 8:
Barricade incidents per year: 1968 – 2011 ………………….………………. 55
Table 9:
Yearly trends in maritime terrorist attacks: 1968 – 2013………….…………..79
Table 10:
Enumerated Maritime Terrorism Threat Matrix…………………….……….95
Table 11:
Summary of Port State Control Detentions of ships
for maritime security-related deficiencies: 2005 – 2011……………..………130
Table 12:
Best case vs worst case scenarios of the ISPS Code
according to rigour of implementation …………………………….……….139
Table 13:
Yearly global summary of piracy attacks and acts of
violence, 1995 – 2012 ……….……………………………………………..162
xv
ACRONYMS AND ABBREVIATIONS
9/11
September 11, 2001 terrorist attacks
AEO
Authorised Economic Operator
AIS
Automatic Identification System
ASD
Anticipatory Self Defence
ASG
Abu Sayyef Group
AU
African Union
BMP
Best Management Practices
CARICOM
Caribbean Community and Common Market
CGPCS
Contact Group on Piracy off the Coast of Somalia
CIA
Central Intelligence Agency
CSI
Container Security Initiative
CSO
Company Security Officer
CTF
Combined Task Force
C-TPAT
Customs and Trade Partnership Against Terrorism
DCoC
Djibouti Code of Conduct
DRC
Democratic Republic of the Congo
EEZ
Exclusive Economic Zone
ETA
Euskandi Ta Askatasuna ‘Basque Homeland and Freedom
EUNAVFOR European Union Naval Force Somalia
FAL
IMO Facilitation Committee
FARC
Fuerzas Armadas Revolucionarias de Colombia (‘Revolutionary Armed
Forces of Colombia’)
GAM
Gerakan Aceh Merdeka ‘(Free Aceh Movement’)
GDP
Gross Domestic Product
GRT
Gross Registered Tonnes
GISIS
Global Integrated Shipping Information Service
GTD
Global Terrorism Database
ICJ
International Court of Justice
ICS
International Chamber of Shipping
IED
Improvised Explosive Device
IMB
International Maritime Bureau
IMO
International Maritime Organisation
xvi
IMSO
International Mobile Satellite Organisation
INS
Israeli Naval Ship
IRA
Irish Republican Army
ISP
International Standards Organisation
ISPS Code
International Ship and Port Facility Security Code
LNG
Liquefied Natural Gas
LRAD
Long Range Acoustic Devices
LRIT
Long Range Identification and Tracking
LRIT DC
LRIT Data Centre
LRIT IDE
LRIT International Data Exchange
LRIT IDF
LRIT Information Distribution Facility
LTTE
Liberation Tigers of Tamil Eelam
MEND
Movement for the Emancipation of the Niger Delta
MILF
Moro Islamic Liberation Front
MODU
Mobile Offshore Drilling Unit
MOWCA
Maritime Organization of West and Central Africa
MRA
Mutual Recognition Arrangement
MSC
Maritime Safety Committee of the International Maritime Organisation
MSCHOA
Maritime Security Centre – Horn of Africa
MTTM
Maritime Terrorism Threat Matrix
MV
Merchant Vessel
OECD
Organisation for Economic Cooperation and Development
PCASP
Privately Contracted Armed Security Personnel
PFSA
Port Facility Security Assessment
PFSO
Port Facility Security Officer
PFSP
Port Facility Security Plan
PLF
Palestinian Liberation Front
PLFP
Popular Front for the Liberation of Palestine
PFLP–GC
Popular Front for the Liberation of Palestine – General Command
PLO
Palestinian Liberation Organisation
PSI
Proliferation Security Initiative
RAN
Royal Australian Navy
RDWTI
RAND Database of Worldwide Terrorism Incidents
xvii
ReCAAP
Regional Cooperation Agreement on Combating Piracy and Armed Robbery
against Ships in Asia
ReCAAP ISC ReCAAP Information Sharing Centre
SID
Seafarers Identification
SOLAS
Safety of Life at Sea Convention
SS
Steam ship
SSAS
Ship Security Alert System
SSA
Ship Security Assessment
SSO
Ship Security Officer
SSP
Ship Security Plan
SUA
Suppression of Unlawful Acts
SVS-IP
Small Vessel Security Implementation Plan
UCLAs
Unilaterally Controlled Latino Assets
UKMTO
UK Maritime Trade Operations Centre
UN
United Nations
UNCLOS
United Nations Law of the Sea Convention
UNGA
United Nations General Assembly
UNSC
United Nations Security Council
US
United States of America
USS
United States Ship
VCLT
Vienna Convention on the Law of Treaties
VHF
Very High Frequency (radio)
WCO
World Customs Organisation
WMD
Weapons of Mass Destruction
CHAPTER 1
[1.1]
INTRODUCTION
BACKGROUND
Over the last two decades, and particularly following the devastating 9/11 attacks in the United
States, contemporary forms of terrorism have been recognised as a very serious threat to
international peace and security. In comparison to older forms of terrorism, proponents of
contemporary forms of terrorism have perpetrated several significant indiscriminate masscasualty attacks, frequently involving suicide tactics, being largely unidentifiable and
unamenable to negotiation, and privately financed without the active support of states. The
vulnerabilities of the maritime domain to targeting and/or utilisation by contemporary terrorist
groups1 have been recognised by States, international organisations and scholarly
commentators. Incidents such as the bombings of the USS Cole in Yemen in 2000, the MV
Limburg off Aden in 2002, and Super Ferry 14 in the Philippines in 2004, as well as attacks
on shipping around Sri Lanka by the Liberation Tigers of Tamil Eelam (LTTE), 2 contrast
markedly to incidents such as the 1985 Achille Lauro hijacking, and have demonstrated the
capabilities and resolve of contemporary terrorist groups to target vulnerable shipping and
other maritime infrastructure.3 Furthermore, concerns have been widely expressed that terrorist
might seek to utilise vessels to transport weaponry, including both conventional weapons and
Weapons of Mass Destruction (WMD) materiel,4 persons connected with terrorist groups, and
as a means of terrorist fundraising. It has been reasoned that a significant maritime terrorist
attack could have a more disruptive effect on the global economy than the 9/11 attacks; 5 and
that terrorist attacks on land enabled through weaponry or operatives transported by sea could
(and indeed have) been very deadly. Whilst the frequency of maritime terrorist attacks has been
dwarfed by pirate attacks since around 2005, there are no grounds to conclude the threat has
Chapter 2 explains the reasoning for this Study’s use of the terms “contemporary terrorism” and “precontemporary terrorism”
2
Chapters 2 and 3 explain that whilst the LTTE is regarded by many as more of an insurgent group than a terrorist
organisation, as Appendix A shows, the LTTE has been designated as a terrorist organisation by several States
including the United States, the United Kingdom and Canada; and its attacks have been widely recorded as
terrorist incidents
3
For example offshore platforms, submarine cables, ports and navigational facilities
4
Whilst the PSI Interdiction Principles (discussed in [7.2]) use the terms ‘WMD and related materials’, the term
‘WMD materiel’ has been used extensively by international legal scholars, and is used within this Study for the
sake of brevity
5
Given that an major terrorist attack affecting ports or key navigational chokepoints could impact on the real
economy (involving the physical movement of goods) rather than the financial economy (involving the flow of
funds)
1
2
entirely disappeared. Recognition of these increased threats prompted several significant
developments to the international legal framework following 9/11 to better enable the
prevention of contemporary forms of maritime terrorism.
On the one hand, amendments to the Safety of Life at Sea Convention 1974 (SOLAS) 6 have
mandated certain “preventative measures”7 to reduce the scope for terrorists to target and/or
utilise vessels in the first instance. First, through amendments to SOLAS Chapter XI-2,8 the
International Ship and Port Facility Security (ISPS) Code was developed to provide an
internationally consistent maritime security risk management framework. SOLAS Chapter XI2 and the ISPS Code have mandated and recommended physical and organisational security
measures for (at least) “SOLAS vessels”, the port facilities that interface with them, the
shipping companies that operate them, and have also imposed supervisory and oversight
obligations upon SOLAS contracting governments. Second, amendments to SOLAS Chapter
V9 have mandated the fitting of Automatic Identification Systems (AIS) to certain vessels since
2004, and more recently, the Long Range Identification and Tracking (LRIT) of certain larger
vessels engaged on international voyages (which has been progressively implemented since
2006) in order to facilitate the identification and tracking of vessels, and thereby contribute to
improved Maritime Domain Awareness.10 Additionally, the 2003 amendments to the 1958
Seafarers Identity Documents Convention11 (2003 SID Convention) have required state parties
to mandate secure forms of seafarer identification documentation to reduce the scope for
seafarer identification to be fraudulently utilised for nefarious purposes.12
6
International Convention for the Safety of Life at Sea, opened for signature 1 November 1974, 1184 UNTS 278
(entered into force 25 May 1980)
7
The usage of this term to describe the focus of these amendments is consistent with Natalie Klein Maritime
Security and the Law of the Sea (Oxford University Press, 2011), 211 – who uses the term ‘preventative actions’
8
‘Special Measures to Enhance Maritime Security’
9
‘Safety of Navigation’
10
The term ‘Maritime Domain Awareness’ has been widely used following 9/11, and was recently defined by the
IMO as ‘the effective understanding of any activity associated with the maritime environment that could impact
upon the security, safety, economy or environment’: International Maritime Organisation Amendments to the
International Aeronautical and Maritime Search and Rescue (IAMSAR) Manual IMO Doc MSC.1/Circ.1367 24
May 2010
11
Seafarers Identity Documents Convention, opened for signature 13 May 1958, ILO Convention No. 108 (entered
into force 19 February 1961)
12
Including for example the movement of persons connected with terrorist organisations, criminal groups and
illegal immigration
3
On the other hand, there have been several developments relating to the interdiction13 of
suspected terrorist vessels. Concerns about the possible maritime trafficking of Weapons of
Mass Destruction (WMD) and related materiel (WMD materiel) by terrorists have provided
the most significant (but not sole) impetus for these developments. First, between 2002 and
2005 the International Maritime Organisation (IMO) facilitated negotiations to amend the 1988
Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation14
(1988 SUA Convention), and the 1988 Protocol for the Suppression of Unlawful Acts Against
the Safety of Fixed Platforms Located on the Continental Shelf15 (1988 SUA Platforms
Protocol), (collectively the ‘1988 SUA treaties’). Since their entry into force in 1992, the 1988
SUA treaties have enabled state parties to arrest, prosecute or extradite persons who have been
involved in the commission of acts prejudicing the safety of maritime navigation and offshore
platforms respectively. However following 9/11, several limitations of the 1988 SUA treaties
were recognised. These included not addressing the utilisation of ships as weapons, acts of
violence against persons on board vessels that do not compromise the safety of navigation,
deliberate pollution of the marine environment, the dumping of hazardous or nuclear material
or waste, and the maritime smuggling of potential terrorist persons and biological, chemical
and nuclear weapons. These IMO negotiations resulted in the 2005 Protocol to the 1988 SUA
Convention16 (2005 SUA Convention) and the 2005 Protocol to the 1988 SUA Platforms
Protocol17 (2005 SUA Platforms Protocol) (collectively the ‘2005 SUA treaties’). The 2005
SUA treaties addressed the above limitations through expanding the range of offences covered
by the SUA treaties, and including new provisions for interdicting suspected terrorist vessels.
However to date the 2005 SUA treaties have only achieved a very marginal level of acceptance
internationally.
Second, following the interdiction of the So San freighter off Yemen in December 2002, in
May 2003 the United States, in partnership with several other states, announced the formation
Chapter 6 explains there are various definitions of the term ‘interdiction’ – including whether it is limited to the
arrest of the vessel, or might also encompass the disabling of the vessel
14
Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, opened for
signature 10 March 1988, 1678 UNTS 221 (entered into force 1 March 1992)
15
Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental
Shelf, opened for signature 10 March 1988, 1678 UNTS 304 (entered into force 1 March 1992)
16
Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation, opened for signature 14 October 2005, IMO Doc. LEG/CONF.15/21 (entered into force 28 July 2010)
17
Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms
Located on the Continental Shelf opened for signature 14 October 2005, IMO Doc. LEG/CONF.15/22 (entered
into force 28 July 2010)
13
4
of the Proliferation Security Initiative (PSI) as a cooperative effort to facilitate the interdiction
of suspected shipments of WMD materiel to and from ‘states and non-state actors of
proliferation concern’. The PSI involves “participant” states expressing their political
“support” for the loosely-worded PSI Statement of Interdiction Principles (‘PSI Interdiction
Principles’). Whilst not being a formal instrument creating new forms of jurisdiction, the PSI
Interdiction Principles have come to be regarded as a non-binding, political expression of how
“participants” might consider exercising their jurisdictional rights under the United Nations
Law of the Sea Convention18 (UNCLOS).
The measures alluded to in the PSI Interdiction Principles have prompted debate about their
legality. International legal scholars have been divided on the extent to which key post-9/11
counter-terrorism Security Council Resolutions19 might add further justification to
interdictions of vessels suspected of illicitly transporting WMD materiel. Several uncertainties
regarding the vaguely-expressed Interdiction Principles have also been highlighted, in
particular the question of what “support” for the PSI actually entails.20
Furthermore, since 2004 the United States has also progressively concluded nine formalised
PSI ship boarding agreements with significant registry states 21 to facilitate the interdiction of
suspected shipments of WMD materiel (PSI ship boarding agreements), 22 with four of these
ship boarding agreements providing for enforcement by (undefined) ‘third states’ by agreement
of the parties, thereby potentially increasing the overall “reach” of the PSI.
Additionally following 9/11 several studies have identified shortcomings in the various
UNCLOS provisions enabling States to protect offshore platforms, submarine cables and
pipelines from terrorist attacks.
18
United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3
(entered into force 16 November 1994)
19
As Chapter 2 explains, these UN Security Council Resolutions have affirmed and re-affirmed the seriousness
of the contemporary threat of terrorism as a threat to international peace and security, and both obliged and invited
UN member states to take a range of measures to counter terrorist threats
20
Chapter 7 explains that whilst the United States lists over 100 States as “supporting” or “endorsing” the
Interdiction Principles, the question of what “support” for the PSI actually entails – as States are only indicating
their political support, rather than formally committing to treaty obligations
21
As explained in Chapter 7, these key registry states are (in order of the formalisation of the PSI ship boarding
agreements) Liberia, Panama, the Marshall Islands, Croatia, Cyprus, Belize, Malta, Mongolia and the Bahamas
22
As Chapter 7 explains – the US State Department terms these agreements as ‘PSI Bilateral Ship Boarding
Agreements’
5
Finally several post-9/11 policy statements have suggested, and international legal scholars
have argued, that in exceptional circumstances where there was no other jurisdictional basis,
States might interdict suspected terrorist vessels through exercising their the ‘inherent’ rights
of self-defence, recognised under Article 51 of the Charter of the United Nations.23 However
since 1945, and particularly following 9/11, opinion has been divided about precisely when an
‘armed attack’ occurs; what degree of force will constitute an ‘armed attack’; whether ‘armed
attacks’ may be perpetrated by non-state actors such as terrorists as well as by States, and what
amounts of force States may use to counter ‘armed attacks’.
[1.2]
THE QUESTION INVESTIGATED BY THIS STUDY
This Study examines the extent to which the international agreements noted in [1.1] above are
likely to be successful in enabling the prevention of contemporary post-9/11 forms of maritime
terrorism. It uses the “umbrella” term ‘maritime terrorism incident’ to encompass both
maritime terrorist attacks, and the utilisation of vessels to enable the perpetration of subsequent
terrorist attacks on land through transporting weaponry, operatives or financing terrorist
activities.
[1.2.1]
Existing literatures
Since 9/11, discrete aspects of the threat of maritime terrorism, and the international
agreements noted in [1.1] that enable States to prevent the occurrence of such threats, have
been studied to various degrees.
On the one hand, studies by terrorism and maritime security specialists have examined the
profiles of terrorist and insurgent groups known to possess maritime attack capabilities. Other
studies have examined the vulnerabilities of particular states, geographical regions and
maritime industry sectors (for example, shipping containers, passenger vessels and cruise ships,
and Liquefied Natural Gas tankers) to terrorist attacks.24 Whilst some of these studies have
formulated insightful scenarios as to how terrorists might target and/or utilise vessels, these
scenarios tend to be specifically focused towards particular maritime industry sectors or
23
Charter of the United Nations, opened for signature 26 June 1945, 59 Stat 1031 (entered into force 24 October
1945)
24
The existing literature on these fields is examined in [3.3] and [3.4]
6
geographical regions. None of the studies within this literature as yet provides the foundations
for a generalised framework which allows us to statistically analyse all of the ways in which
maritime terrorism threats have been successfully perpetrated, attempted and planned by
various terrorist groups.
On the other hand, several international legal studies have comprehensively examined discrete
aspects regarding the development and uncertain aspects of the international agreements noted
in [1.1].
Around the time of its entry into force in 2004, several studies examined the negotiating
processes for the ISPS Code, and the economic and operational impacts it was expected to have
on the world’s shipping industries. A number of shorter studies have examined the legislative
and policy arrangements for implementing the ISPS Code by States.25 However since the ISPS
Code’s entry into force, no study has undertaken a detailed examination of how the Code’s
limitations26 have been addressed within the IMO, nor examined how the security measures
mandated and recommended by the Code might enable the prevention of maritime terrorism
incidents. Similarly, whilst a handful of studies have examined the development of the AIS and
LRIT amendments to the SOLAS Convention27 and the 2003 SID Convention28 around the
time of their entry into force, the progress of implementing the LRIT vessel tracking
requirements by States has not at yet been studied comprehensively.
A smaller number of studies have examined the jurisdictional gaps under UNCLOS and the
ISPS Code in enabling the protection offshore platforms and submarine cables from terrorist
attacks;29 and the negotiating process for the 2005 SUA treaties has been also been analysed in
detail.30
By far the largest number of international legal studies have focused on analysed the legality
under UNCLOS of the PSI Interdiction Principles as a response to the maritime proliferation
25
These existing literatures are reviewed in [4.2]
The limitations of the ISPS Code include its limited application to the ship-port interface (and not to supply
chains more broadly); its limited application to large SOLAS Ships and the port facilities servicing them;
inconsistencies in the ISPS Code’s application to offshore platforms; and uncertainties regarding the operation of
Ship Security Alert System arrangements mandated by SOLAS Chapter XI-2 Regulation 6
27
These existing literatures are reviewed in [4.3]
28
These existing literatures are reviewed in [4.4]
29
These existing literatures are reviewed in [6.3]
30
See [6.2.5]
26
7
of WMD materiel.31 These studies have been divided in their assessments of the legality of the
vaguely-described PSI Interdiction Principles. They have also highlighted several uncertain
aspects of how the PSI Interdiction Principles might apply in practice, and questioned the long
term viability of the PSI. Some of these studies have briefly noted that in exceptional cases,
interdictions of suspected shipments of WMD materiel might be justified under Article 51 of
the UN Charter, or the doctrine of Necessity – but have not examined this question in detail.
Although these studies have comprehensively examined the legality of the maritime
interdiction of suspected shipments of WMD materiel, these studies have not focused in detail
on the legality of interdicting other utilisations of vessels to enable subsequent terrorist attacks
– including through transporting conventional weaponry, terrorist persons or financing terrorist
activities.
Whilst very thorough and insightful, the existing studies overviewed have tended to be
discretely focused on examining either the specific aspects of the threat of maritime terrorism
on the one hand, or particular aspects of the international agreements on the other. No in-depth
study has yet drawn together these bodies of knowledge to undertake an overall assessment of
the extent to which the international agreements noted in [1.1] are likely to succeed in enabling
the prevention of contemporary post-9/11 maritime terrorism incidents, and the factors that will
determine their success.
[1.2.2]
Thesis Aims
The central research question examined in this Study is “To what extent are the international
agreements noted at [1.1] likely to be successful in enabling the prevention of contemporary
forms of maritime terrorism?”
To investigate the above research question, the chapters of this Study progressively consider
the following sub-questions:
(1) How should the threat of contemporary post-9/11 forms of maritime terrorism be
understood?
(2) What are the limitations of the international agreements, and how have these limitations
been addressed to date?
31
These existing literatures are reviewed in [7.2]
8
(3) What factors are likely to influence the prospects of the international agreements being
successful in preventing maritime terrorism incidents?
(4) Considering how maritime terrorism incidents have previously occurred, and might occur
in the future, how might the international agreements apply in practice in preventing maritime
terrorism incidents?
(5) Going forward, what should be done to maximise the prospects for the international
agreements being successful in preventing contemporary post-9/11 maritime terrorism
incidents?
[1.3]
ARGUMENT OF THIS STUDY
This Study argues that the international legal framework enabling the prevention of maritime
terrorism has been expanded and improved following the 9/11 attacks. However, due to the
very low frequency and unpredictability of contemporary post-9/11 forms of maritime
terrorism, and the restricted nature of ISPS Code security measures and details about vessel
interdictions, it is not possible to make an overall assessment of how effective the international
agreements have been. Therefore, through analysing both IMO proceedings and scholarly
analyses relating to various aspects of the international agreements since their entry into force,
it enunciates the factors upon which the prospects for the instruments to succeed in preventing
maritime terrorism incidents will depend. These factors include the rigor of continuous
application of the ISPS Code by contracting governments and the maritime industry, the
flexibility in the interpretation of UNCLOS (and possibly Article 51 of the UN Charter) in
relation to interdiction of suspected terrorist vessels, and the extent of international support for
agreed vessel interdiction procedures – such as those contained in the 2005 SUA Convention.
Then, through taking account of how maritime terrorism incidents have previously occurred,
and might occur in future, the Study shows how these factors could apply in practice to prevent
the occurrence of maritime terrorism incidents. Overall the Study demonstrates that the
international legal framework for preventing maritime terrorism is adequately developed.
Going forward, it argues that instead of further reforms or new instruments, the international
community’s focus should be on continually refining the prospects for the existing instruments
to succeed, and outlines recommendations for how this might be achieved.
9
[1.4]
OUTLINE OF THE STRUCTURE OF THIS STUDY
Chapter 232 outlines the threat of post-9/11 contemporary terrorism globally.33 It explains the
challenges of defining terrorism and illustrates the variances in international and national
designations of terrorist groups. It shows how over the last two decades, contemporary forms
of terrorism34 – most significantly evidenced by the 9/11 attacks35 have, in contrast to older,
more restrained and “negotiable” forms of terrorism, come to be characterised by very well
planned and coordinated mass-casualty suicide attacks, driven by extremist, non-negotiable
ideologies, and perpetrated by groups with a globalised focus.36 The chapter explains how
recognition of the serious threat of contemporary terrorism to international peace and security
has resulted in a paradigm shift in post 9/11 counter-terrorism Security Council Resolutions –
which have imposed obligations on States that are neither geographically nor temporally
limited. Chapter 2 concludes that more than ten years after the 9/11 attacks and even following
the 2011 death of Osama bin Laden, the threat of contemporary terrorism remains and must be
continually and proactively prevented.
Chapter 337 analyses the threat of contemporary terrorism in the maritime domain. It shows
how maritime terrorist attacks over the last two decades reflect the global trend articulated in
Chapter 2 towards creative and carefully-planned significant-casualty38 suicide attacks, and
away from older, more restrained and negotiable forms of terrorism. The chapter explains how
the disruptive effect of terrorist attacks on significant port facilities or navigational chokepoints could well be profound, and that terrorist attacks on land enabled through weaponry or
operatives transported by sea, or financed by the terrorist utilisations of vessels, could also be
‘The threat of contemporary terrorism globally’
Chapter 2 provides context for Chapter 3’s analysis of the threat of contemporary terrorism in the maritime
domain – with maritime terrorist attacks only account for around two per cent of all recorded terrorist attacks
since 1968 when terrorism statistics began to be methodically recorded
34
Which have been largely driven by Islamic extremism and the Al Qaeda movement, and also practiced by the
LTTE
35
Chapter 2 explains that the terms ‘contemporary’ and ‘pre-contemporary’ terrorism are used in preference to
‘pre- and ‘post-9/11’ terrorism because terrorism did not suddenly “change overnight” on 9/11. Rather, the 9/11
attacks were the most significant manifestation to date of ‘fourth wave terrorism’ which has progressively
developed since the early 1980s. Chapters 2 and 3 also explain that the term ‘contemporary’ terrorism also enables
us to simultaneously examine terrorist attacks both by Al Qaeda-influenced Islamic groups, and by the (nonIslamic) LTTE – which has perpetrated a significant proportion of maritime terrorist attacks
36
Chapter 2 explains the linkages that have developed between like-minded groups, with significant attacks
occurring in many locations around the world
37
‘The threat of contemporary terrorism in the maritime domain’
38
Chapter 2 explains that this Study uses the term ‘Mass casualty’ to refer to attacks with more than 50 casualties;
and Chapter 3 explains that due to the comparatively lower occurrence of maritime terrorist attacks, it uses the
term ‘Significant casualty’ attack to refer to maritime terrorist attacks resulting in more than ten fatalities
32
33
10
(and have been) very devastating. It also notes indications of contemporary terrorist groups
having the intent and capabilities to perpetrate such attacks. Chapter 3 formulates the Maritime
Terrorism Threat Matrix39 – which provides the most structured generic framework to date to
statistically analyse all of the conceivable ways in which terrorists might40 seek to target and/or
utilise vessels.41 The chapter concludes by emphasising the importance of preventing maritime
terrorism incidents, rather than responding after attacks have occurred.
Chapter 4 analyses developments relating to the post-9/11 maritime security and vessel
tracking amendments to the SOLAS Convention (including the ISPS Code under Chapter XI2, and the AIS and LRIT regulations under Chapter V) and the 2003 SID Convention (all of
which have a “preventative” focus)42 since their entry into force.43 The chapter examines how
the identified limitations of these instruments44 have been addressed within the IMO,45 and
39
The Maritime Terrorism Threat Matrix is depicted in Table 10 in [3.5.1]. It enables the recording of all previous
instances where maritime terrorism incidents have been successfully perpetrated, attempted, planned by terrorist
groups, and postulated by maritime security specialists. It examines maritime terrorism incidents under five broad
headings. First, ‘the vessel as a target’- encompassing terrorist attacks on vessels from other vessels, from the
land, from beneath the surface, from within the target vessel and from the air. Second, ‘the vessel as a weapon’ –
encompassing the use of vessels either as kinetic “ramming” weapons, or as “weapons launching platforms” to
attack other vessels, land targets, offshore platforms or aircraft. Third, ‘the vessel as a bomb’ – encompassing the
detonation of vessels within proximity to other vessels, land targets, offshore platforms, and also causing the
explosion of offshore platforms. Fourth, ‘the vessel as a disruption tool’ – encompassing the utilisation of vessels
to disrupt to the free flow of maritime traffic through disabling vessels near critical navigational “choke-points”,
laying sea mines, causing deliberate pollution, or causing damage to with submarine cables. Fifth, ‘the vessel as
a means’ – encompassing the use of vessels as a means to enable the perpetration of subsequent terrorist attacks
on land through transporting weaponry, operatives or financing terrorist activities.
40
Given the cunning, innovative and unpredictable operational profile of contemporary terrorist groups
demonstrated in attacks such as 9/11, which contrasts to the more predictable operational profile of pirate groups,
Chapter 3 reasons that it is very important to examine planned and postulated maritime terrorism incidents as well
as successful and attempted ones. Chapter 2 also notes that the 9/11 Commission Report at 339 – 348 cited the
lack of imagination and the failure to “think outside the box” as a contributing factor to the failure to pre-empt the
9/11 attacks
41
Chapters 5, 6 and 7 shows how the Maritime Terrorism Threat Matrix “captures” all of the maritime terrorism
scenarios that have been postulated by maritime security specialists since 9/11 – thereby demonstrating how it is
the most structured framework developed to date.
42
These instruments have a “preventative” focus because the measures they mandate and recommend are aimed
at preventing maritime terrorism incidents occurring in the first instance – through ship and port security measures,
vessel identification and tracking, and seafarer identification
43
As noted in Chapter 4, the ISPS Code entered into force on 31 July 2004; the AIS requirements under SOLAS
Chapter V, Regulation 19/2.4, para .1 – .4 have applied to all ships over 300 gross tonnes engaged on international
voyages, cargo ships over 500 gross tonnes not engaged on international voyages, and all passenger ships
irrespective of size since 31 December 2004; the LRIT regulations entered into force on 1 January 2008; and the
Revised Seafarers Identity Documents Convention entered into force 9 February 2005)
44
As noted in [1.2.1], the limitations of the ISPS Code include its limited application to the ship-port interface
(and not to supply chains more broadly); its limited application to large SOLAS Ships and the port facilities
servicing them; inconsistencies in the ISPS Code’s application to offshore platforms; and uncertainties regarding
the operation of Ship Security Alert System arrangements mandated by SOLAS Chapter XI-2 Regulation 6
45
Chapter 4 explains that whilst numerous journal articles and similar studies examined the new measures
introduced by ISPS Code around the time of its entry into force in 2004, and whilst several other studies have
examined its operational and economic impact on specific maritime industry sectors, no major study to date has
11
considers the extent to which these amendments have become ingrained throughout the
maritime sector. It shows how contracting governments have preferred to address the
limitations of the ISPS Code through developing non-mandatory guidance rather than
extending its mandatory application, and explains the challenges of assessing how well
ingrained46 ISPS Code security measures have become amongst SOLAS contracting
governments,47 ships and port facilities.48 Chapter 4 articulates the factors likely to influence
whether “best case” or “worst case” scenarios of ISPS Code measures lessening the scope for
the occurrence of maritime terrorism incidents might apply.49 The chapter examines how the
requirements for SOLAS ships to be equipped with AIS and tracked through LRIT have
contributed to increased maritime security levels, and examines how the shortcomings and
uncertainties of AIS50 and LRIT51 have been addressed by the IMO. Finally Chapter 4 considers
the extent to which the 2003 SID Convention has lessened the scope for terrorists to travel
under fraudulent seafarer identification documentation.52
Through undertaking the first major investigation of the “post entry into force status” of the
above instruments, Chapter 4 provides an informed foundation for Chapters 5, 6 and 7 to
examined how its identified limitations have been addressed within the IMO since its entry into force on 31 July
2004
46
Chapter 4 explains how details of ISPS Code security arrangements and compliance are kept confidential for
commercial and national security reasons
47
Chapter 4 discusses how the IMO has noted with concern significant delays in the provision of information by
SOLAS Contracting Governments regarding their implementation of SOLAS Chapter XI-2 and the ISPS Code,
and low response rates from SOLAS contracting governments to voluntary IMO surveys about national maritime
security arrangements
48
Chapter 4 explains how the ISPS Code is a security risk management framework applicable (through various
national implementing laws and regulations) to States, shipping companies, port facilities and ships, any
assessment of the likely success of the ISPS Code must also consider how it is applied at operational levels by
operators of ships and port facilities
49
These factors include the size and type of vessels involved in maritime terrorism incidents; whether terrorists
controlled the vessel involved in a maritime terrorism incident in the first instance; the rigour of the continual
application of the ISPS Code security measures by ships and entities interfacing with them (including port facility
operators and government authorities); whether a maritime terrorism incident involved an entity subject to the
ISPS Code such as a security-regulated port facility or offshore platform; the form of a maritime terrorist attacks;
and the effectiveness of government oversight and response capabilities
50
Chapter 4 explains the improvements achieved through AIS include reduced collision risks and improved
situational awareness for ships’ bridge teams; and that the shortcomings include risks of unauthorised access to
AIS transmissions for nefarious purposes; and the lack of uniform coverage of AIS within certain parts of the
world.
51
Chapter 4 explains that in the short time since becoming operational in early 2011, LRIT arrangements have
been shown to function as required, and LRIT information has proven to be very valuable in counter-piracy
operations around the Gulf of Aden. However it also explains that uncertainties still remain regarding the
enforcement actions that States might take based on LRIT information
52
Whilst Chapter 4 explains how the 2003 SID Convention has lessened the scope for terrorists to travel under
fraudulent seafarer identification, and has been ratified by States from which significant numbers of seafarers
originate; Chapter 7 explains these improved identification measures would be of less preventative security value
if terrorists sought to access to land territories through clandestine landings rather than at major ports
12
examine how these instruments might apply in practice in preventing maritime terrorism
incidents. These chapters examine how different forms of maritime terrorism incidents have
previously occurred, been attempted or planned, and postulated by maritime security specialists
in order to establish the “threat context” – that is, the types of maritime terrorism threats that
might have to be prevented.
Chapter 553 analyses the prospects for the ISPS Code and other SOLAS maritime security and
vessel identification measures to succeed in preventing terrorist targeting of vessels (that is,
attacks on vessels)54 from the five sources noted in the Threat Matrix.55 The contrasts between
contemporary and pre-contemporary forms of terrorism articulated in Chapters 2 and 3 are
highlighted, with the chapter reasoning that the prevention of terrorist attacks on vessels will
very much depend on the rigour with which ISPS Code security measures are continually
applied within ships, port facilities and by contracting governments. The effectiveness of
rigorously-applied preventative security measures in deterring (comparatively far more
prevalent and predictable) vessel-based attacks on commercial vessels by pirates since 2005 is
also shown.56 However the chapter reasons that it would be erroneous to uncritically assume
fanatical terrorists prepared to martyr themselves (as in the USS Cole and MV Limburg attacks)
would be deterred by the prospects of apprehension to the same extent as economicallymotivated pirates,57 and argues there are both positive and negative inferences that can be
drawn from the international community’s experience in countering pirate attacks around the
Gulf of Aden since 2005. Chapter 5 concludes by emphasising the importance of the continual
rigorous application of ISPS Code measures by contracting governments, ships and port
facilities.
‘Countering terrorist targeting of vessels’
Chapter 5 explains that terrorist attacks on vessels have accounted for at least 85 per cent of all maritime
terrorism incidents recorded since 1968
55
That is, from other vessels, from the land, from beneath the surface, from within the vessel and from the air
56
Chapter 5 explains that whilst the ISPS Code was introduced following the 9/11 attacks with the aim of lessening
the scope for terrorists to target or utilise vessels, the IMO has acknowledged ISPS Code security measures are
equally applicable to preventing attacks on vessels by pirates and armed robbers. Also, whilst the focus of this
Study is on maritime terrorism, it significantly is the first to undertake a methodical assessment of the effectiveness
of the SOLAS Chapter XI-2 (ISPS Code) and other preventative security arrangements in preventing attacks on
commercial vessels to by pirates since the ISPS Code’s entry into force in July 2004
57
Chapter 5 explains that because vessel-based attacks by pirates around the Gulf of Aden since around 2005 have
been far more prevalent and predictable than vessel-based attacks by terrorists, they provide a useful point of
comparison to maritime terrorist attacks
53
54
13
Chapter 658 analyses the prospects for the international agreements to succeed in preventing
terrorists from utilising vessels in an offensive manner.59 This could involve the perpetration
of dangerous acts through using vessels as “weapons” (either as launching platforms or as
kinetic ramming weapons) or as “floating bombs” against other vessels, land targets and
offshore platforms; or the perpetration of other disruptive acts.60 In addition to examining how
the ISPS Code and other SOLAS maritime security and vessel identification measures might
succeed in preventing such offensive acts, Chapter 6 analyses the extent to which UNCLOS
and the SUA treaties would enable States interdict vessels suspected of being about to
perpetrate offensive acts. This analysis highlights the jurisdictional gaps in the provisions of
UNCLOS enabling States to protect offshore platforms and submarine cables from terrorist
attacks, the limitations of 1988 SUA treaties, and the consequences of the current low
ratification of the 2005 SUA treaties. The chapter concludes by arguing for greater ratification
of 2005 SUA Convention, and for more IMO guidance on ensuring the security of offshore
platforms and submarine cables.
Chapter 761 analyses the prospects for the international agreements to succeed in preventing
terrorists from utilising vessels to enable subsequent terrorist attacks on land through
transporting weaponry (conventional and WMD materiel) or terrorist operatives to a land
location to perpetrate attacks, or utilising vessels to finance terrorist activities. As well as
examining how the ISPS Code and other SOLAS maritime security and vessel identification
measures might lessen the scope for vessels to be so utilised,62 the chapter also examines the
extent to which UNCLOS and the 2005 SUA Convention might enable States to interdict
vessels suspected of being utilised for such purposes. Whereas Chapter 6 examines the
interdiction of vessels suspected of being about to perpetrate offensive terrorist acts within
maritime zones, Chapter 7 examines the interdiction of “laterally transiting” vessels passing
through maritime zones. It explains how the WMD interdiction measures described in the PSI
‘Countering offensive terrorist utilisations of vessels’
Although Chapter 6 notes that in comparison to terrorist targeting of vessels, there are far fewer examples of
terrorists utilising vessels in an offensive manner, because contemporary forms of terrorism (such as those
demonstrated in the 9/11 attacks) have proven to be extremely innovative and deadly, it is very important to
examine both “routine” attack types and also the extraordinary and unconventional ones
60
Including through disabling the vessel near critical navigational chokepoints, causing deliberate pollution,
facilitating the laying of sea mines, and interfering with submarine cables
61
‘Countering the utilisation of vessels to enable subsequent terrorist attacks’
62
Chapter 7 notes several reported instances of rigorously-applied ISPS Code and other maritime security
measures preventing weaponry and operatives being transported aboard vessels
58
59
14
Interdiction Principles63 have prompted considerable debate about the legality of interdicting
“laterally transiting” vessels under UNCLOS. From its analysis of this scholarly debate,
Chapter 7 is the first study to articulate the “restrictive” and “liberal” views about the legality
of interdicting laterally transiting vessels suspected of illicitly transporting WMD materiel,
with these two views diverging on assessments of the influence that UN Security Council
resolutions64 have on the interdiction powers of States under UNCLOS.65 Whilst it reasons the
liberal view better enables States to (unilaterally) interdict suspected WMD shipments,66 it
argues in favour of formalising specific agreements between States to facilitate vessel
interdictions,67 and reduce the scope for disagreement and conflict.68 Chapter 7 also explains
that whilst the legality of interdicting vessels suspected of transport transporting conventional
weaponry or terrorist operatives to enable attacks on land, and utilising vessels to finance
terrorist activities69 has not received as much scholarly analysis as interdicting suspected
shipments of WMD materiel, there is similar scope for restrictive and liberal views of States’
interdiction powers under UNCLOS albeit with other Security Council resolutions being
involved.70 It notes several reports of States interdicting terrorist shipments of conventional
weaponry outside their territorial seas without protest about the legality of such actions.
The ordering of Chapters 5, 6 and 7 is structured according to two criteria – first the decreasing
imminence of the forms of maritime terrorism incidents, and second, the increasing “lead
warning time” in which the maritime terrorism incidents would typically become apparent.
Vessel targeting by terrorists (examined in Chapter 5) would be the most imminent threat to
maritime security (that is, an attack about to occur), and involve the shortest “lead warning
time” of minutes or even seconds (for example an explosives-packed speedboat approach a
63
Whilst the PSI is not a formal international agreement conferring jurisdiction, Chapter 7 explains that as an
informal political expression of how ‘participants’ indicate they might consider exercising their jurisdictional
rights under UNCLOS, the PSI has prompted considerable debate about States’ interdiction powers under
UNCLOS. Chapter 7 also discusses the uncertainties about how the PSI interdiction measures might be applied
against vessels of non-consenting states; how many states “support” the PSI; and what “support” for the PSI
actually entails
64
Particularly Security Council Resolution 1540
65
Chapter 7 explains that although the very small number of publicised WMD interdictions have all been carried
out in a compliant and cooperative manner, it is still necessary need to consider less straight forward hypothetical
scenarios where a vessel might not consent to interdiction
66
Following recent arguments by scholars for greater flexibility in understanding the law of the sea as a balancing
mechanism between inclusive and exclusive uses of oceans – particularly Natalie Klein Maritime Security and
the Law of the Sea Oxford Monographs in International Law (Oxford University Press, 2011)
67
Chapter 7 explains that specific agreements between States regarding vessel interdictions can reduce the scope
for disagreement and conflict through specifying standards and procedures
68
Chapter 9 discusses possible options for achieving such agreements between States
69
Chapter 7 terms such activities as “Other than WMD transporting” terrorist utilisations of vessels
70
Particularly UN Security Council Resolution 1390
15
target vessel at high speed). The offensive utilisation of vessels by terrorists (examined in
Chapter 6) would constitute a less imminent threat to maritime security after terrorist targeting
of vessels, and could involve a longer “lead warning time” in terms of hours (for example a
hijacked merchant vessel travelling at abnormally high speeds towards a target such as a port
facility or offshore platform). The utilisation of vessels to enable subsequent terrorist attacks
on land (examined in Chapter 7) would not involve an imminent threat to the security of the
maritime areas the vessel was transiting through – with subsequent terrorist attacks on land
enabled through the provision of weaponry, operatives or funding on land possibly occurring
months or even years after being transported to a land location by the vessel.71 Additionally,
the utilisation of vessels to enable subsequent terrorist attacks could well involve lengthy “lead
warning times” of several days or even weeks – for example the So San freighter was tracked
by the US Navy for several weeks before its interdiction.
Chapter 872 examines the international legal options available to States in exceptional
circumstances73 where neither UNCLOS nor the 2005 SUA Treaties (or other specific
international agreements) would enable the interdiction of suspected terrorist vessels. These
options include interdicting such vessels on the basis of States’ ‘inherent’ rights of self-defence
recognised under Article 51 of the UN Charter, and somewhat less clearly, the doctrine of
Necessity. Chapter 8 examines the development of the meaning of ‘armed attack’, 74 and
explains that while the Article 51 self-defence rights of States have traditionally been
understood in the context of “State vs State” conflicts, since 9/11 Article 51 has been
increasingly invoked75 to justify self-defence measures against non-state terrorists, including
the interdiction of suspected terrorist vessels. Through focusing on three questions – the
materiality threshold for an ‘armed attack’; the temporal threshold (at what point in time an
‘armed attack’ occurs); and whether an ‘armed attack’ may originate from non-state actors as
Although subsequent terrorist attacks on land which have been “enabled” through the provision of weaponry
could, and have indeed been, deadly. Chapter 7 notes that the explosives used for the 1998 US embassy bombings
in East Africa and the 2002 Bali bombings were both reported to have been transported by sea
72
‘Countering maritime terrorism in exceptional circumstances under UN Charter Article 51 and the doctrine of
Necessity’
73
Chapters 6 and 7 identify the circumstances in which neither UNCLOS or the 2005 SUA treaties would enable
the interdiction of suspected terrorist vessels
74
Including the Caroline criteria; the foundational academic writings on the temporal aspects of Article 51 (the
debate between Ian Brownlie and Derek Bowett); pre-9/11 State Practice and the 1974 UNGA Definition of
Aggression; ICJ Jurisprudence (including Nicaragua v United States of America (1986), Oil Platforms (2003),
Palestinian Walls (2003) and DRC v Uganda (2003)); post-9/11 state practice and reactions; the 2004 UN High
Level Report on Threats, Challenges and Changes, and post-9/11 scholarly arguments about how the Caroline
Principles should be understood in the context of countering contemporary terrorism.
75
However Chapter 8 also notes the application of Article 51 against non-state actors has been criticised
71
16
well as states – Chapter 8 enunciates restrictive and liberal views on how Article 51 might apply
in relation to the interdiction of suspected terrorist vessels. Significantly, Chapter 8 is the first
study to articulate these two possible interpretations of Article 51 in the maritime terrorism
context. Similarly to Chapter 7, it reasons that a liberal view of Article 51 would better enable
States to interdict suspected terrorist vessels; but also argues that the invocation of self-defence
rights should be an absolute last resort option. Chapter 8 also examines the possibility of States
interdicting suspected terrorist vessels on the basis of the doctrine of Necessity.
Chapter 976 summarises the findings of the above chapters and outlines proposals for further
refinement of the international agreements. In relation to the ISPS Code, these include the
continual rigorous application of security measures, timely reporting by contracting
governments about maritime security arrangements to the IMO, and the development of further
IMO guidance on the protection of offshore platforms and submarine cables. The scope for the
IMO to facilitate increased coordination between States in responding to Ship Security Alert
System activations, and to facilitate international efforts to increase security of AIS information
is also discussed. In relation to vessel interdictions, Chapter 9 argues for increased ratification
of the 2005 SUA Convention as a first preference,77 for the further development of bilateral
ship-boarding agreements similar to the PSI bilateral ship-boarding agreements as a second
preference, for increased formal institutionalisation of the PSI (which has been called for by
several scholars, and by President Obama) as a third preference, and for developing greater
support for liberal views of UNCLOS and Article 51 of the UN Charter as a fourth preference.
The chapter concludes by outlining directions for future research based on the conclusions of
this Study.
[1.5]
SCOPE OF THIS STUDY
The scope of how this Study examines the threat of maritime terrorism, and the likely success
of the international agreements in enabling the prevention of maritime terrorism incidents, is
deliberately limited in several respects.
‘Conclusion and Proposals for Reform’
Chapter 7 explains how the 2005 SUA Convention objectively defines key terms, and clearly specifies
interdiction procedures – including appropriate safeguards
76
77
17
[1.5.1] Scope of analysis of maritime terrorism threats: This
Study
is
confined
to
analysing the maritime threats posed by non-state actor terrorist groups. Chapter 2 explains that
contemporary forms of terrorism are far less, if at all, attributable to States,78 so this Study does
not examine state responsibility for the actions of terrorist groups. The Maritime Terrorism
Threat Matrix focuses on conceptualising all the conceivable ways in which terrorists might
seek to target and/or utilise vessels. Whilst some of the maritime terrorism incidents considered
in this Study might sound melodramatic or far-fetched, this Study does not seek to rank the
likelihood of certain maritime terrorism incidents actually occurring, as other maritime security
specialists have undertaken such inquiries.79 Finally, its focus is on the contemporary threat of
terrorism in the maritime domain. Whilst port facilities and their supply chains are significant
components of maritime trade, the Study only examines attacks on land targets (such as port
facilities) executed from the maritime side (through the use of vessels), as opposed to the
landward side (for example through explosives-laden vehicles), as this would involve
considerations of terrestrial, as opposed to maritime, security.
[1.5.2] Scope of analysis of the international agreements: As [1.2] explained, numerous
studies have comprehensively examined the negotiating processes involved in developing
SOLAS Chapter XI-2 and the ISPS Code, the LRIT amendments to SOLAS Chapter V and the
2005 SUA treaties at around the time of their entry into force. Therefore, this Study instead
focuses on analysing developments relating to these instruments since their entry into force,
which [1.7] explains has not yet been studied comprehensively. Secondly, Chapters 6 and 7
only analyse the likely success of UNCLOS and the 2005 SUA treaties in enabling States to
interdict suspected terrorist vessels – they do not examine national laws and processes relating
to the subsequent prosecution of persons aboard interdicted vessels; nor the confiscation of
materials found aboard. Nor does this Study examine the liability of States for wrongful
interdiction, or loss, damage or delay to cargoes aboard interdicted vessels. 80 Furthermore,
Chapter 2 explains the consensus amongst terrorism specialists that the “controlling minds” of contemporary
terrorist groups such as the late Osama Bin Laden and other Al Qaeda leaders are essentially “invisible”. This
Study proceeds on the assumption that it is fanatical, irrational and non-law-abiding persons that are involved in
the planning and perpetration of terrorist acts within the maritime domain that are acting outside of the direct or
indirect control of states.
79
Sam Bateman ‘Maritime Terrorism: Issues for the Asia-Pacific Region’ (October 2006) 2(3) Kokoda
Foundation Security Challenges 77 – 91 provides a very insightful analysis of the likelihood of “less likely” and
“more likely” categories of maritime terrorist attacks. Peter Lehr ‘Maritime Terrorism: Locations, Actors and
Capabilities’ in Rupert Herbert-Burns, Sam Bateman and Peter Lehr (eds) Lloyds MIU Handbook of Maritime
Security (CRC Press, 2009) also makes similar observations
80
For comprehensive analyses on these points, see Craig Allen Maritime Counter-proliferation Operations and
the Rule of Law (London: Praeger Security International, 2007); Douglas Guilfoyle Shipping Interdiction and the
78
18
apart from some illustrative references to provide context, this Study does not focus on
examining the domestic legislative and institutional arrangements that have implemented the
requirements of SOLAS Chapter XI-2 and the ISPS Code, AIS, LRIT and the 2003
Amendments to the 1958 Seafarers Identity Documents Convention. As Chapter 9 explains, it
is hoped the findings of this Study will stimulate other shorter studies to undertake such
inquiries. For similar reasons, this Study does not examine the political influences on the
positions of States regarding UNCLOS or Article 51 of the UN Charter.81 Finally, Chapter 7
focuses on examining counter-proliferation measures, rather than non-proliferation
measures;82 and although several of the post 9/11 counter-terrorism Security Council
resolutions examined in Chapter 2 have obliged and invited States to implement various
measures to counter terrorism within their territories, this Study does not examine the domestic
implementation of such measures.
[1.6]
[1.6.1]
METHODOLOGY, INFORMATION SOURCES AND THEIR RELIABILITY
Regarding maritime terrorism incidents
As Chapters 2 and 3 explain, terrorism is an inherently unpredictable “low frequency / high
impact” phenomenon – with the contemporary post-9/11 forms of terrorism being extremely
irregular, unpredictable and innovative. Chapter 3 explains that although maritime terrorist
attacks are very infrequent (accounting for around only 2 per cent of all recorded terrorist
attacks since 1968),83 the disruptive effect of such attacks could well be very profound. It
therefore draws on the widest possible range of information sources to develop the “threat
Law of the Sea (Cambridge University Press, 2009); and Phillip Wendel State Responsibility for Interferences
with the Freedom of Navigation in Public International Law Hamburg Studies on Maritime Affairs (Springer,
2007)
81
For example, Mark Valencia The Proliferation Security Initiative: Making Waves in Asia Adelphi Papers
(International Institute for Strategic Studies, 2005) analyses the political motives that have been alleged to be
behind the US lead PSI – and the reactions of certain states to it; See also Chris Rahman ‘The International Politics
of Combating Piracy in South East Asia’ in Peter Lehr (ed) Violence at Sea: Piracy in the Age of Global Terrorism
(Lloyds Marine Intelligence Unit, 2007)
82
And so the Study does not focus on examining instruments such as the Nuclear Non-Proliferation Treaty, the
Chemical Weapons Convention and the Biological Weapons Convention, and arrangements such as the Wassaner
Agreement, and the Australia Group – which impose various obligations on states to implement appropriate
preventative measures to safeguard against unauthorized transfers of WMD materiel. As Chapter 7 explains, these
international agreements do not focus specifically towards the maritime domain. For a succinct explanation as to
the differences between non-proliferation and counter-proliferation, see Craig Allen Maritime Counterproliferation Operations and the Rule of Law (London: Praeger Security International, 2007), pp. 27-29 and
Daniel Joyner ‘The Proliferation Security Initiative: Non-proliferation, Counter-Proliferation and International
Law’ (2005) 30 Yale Journal of International Law 512 – 521
83
Chapter 2 explains that the continuous recording of terrorism statistics commenced in 1968
19
context”84 described in [1.4] – including terrorism databases,85 journal and book articles and
media reports.86 These information sources vary in terms of the detail reported about previous
maritime terrorism incidents, with several sources being quite generalised (for example
‘terrorist group xxx launched an armed assault aboard ship xxx on date xxx’). Whilst every
effort was made to ascertain further details about all maritime terrorism incidents, this was not
possible in all cases.87 It is also possible that terrorists may have attempted or planned other
maritime attacks, with these attempts and plans either failing, being abandoned or being
disrupted by authorities and not publicised. As this Study examines many statistics about
terrorist attacks, statistical trends and notable case studies are discussed in the chapters to
illustrate the arguments of the Study, with complete details being recorded in the appendices.
[1.6.2]
Regarding the international agreements
Because official intelligence about terrorist activities, and the details of arrangements that
States and maritime industries have in place to address terrorist threats are almost entirely
classified and confidential, this Study has been limited to publicly-available secondary
information sources. For example, Chapter 7 notes several international legal scholars pointing
out that interdictions by PSI participants of vessels suspected illicitly transporting WMD
materiel might not be publicised for national security reasons. Similarly, Chapter 4’s analysis
of how the identified limitations of the ISPS Code have been addressed following its entry into
force, and how international LRIT arrangements have functioned since progressively becoming
operational from early 2011 onwards, is based the analysis of publicly-available reports of IMO
proceedings.
Chapters 5, 6, 7 and 8 explain that many reports of previous interdictions of suspected terrorist
vessels, have also tended to be quite vague and generalised (for example, ‘Ship xxx was
interdicted in international waters off State xxx carrying explosives’). Whilst every effort was
made to ascertain further details about previous interdictions, this was not possible in all cases.
84
As [1.4] explained, the threat contexts examine the range of ways in which the relevant maritime terrorism
incidents have previously occurred, been attempted or planned, or postulated by maritime security specialists
85
Chapter 2 explains the terrorism databases that were utilised
86
As [1.2] noted, because discrete aspects of the threat of maritime terrorism, and the international agreements
that enable States to counter such threats have to varying degrees been studied in considerable detail, this Study
generally utilises more journal and book articles than media reports as information sources
87
In some cases, individual studies were the only source of information about particular maritime terrorism
incidents
20
Given the vagueness and ambiguity of many provisions of UNCLOS, and of Article 51 of the
UN Charter, this Study reasons that states would be unlikely to specifically publicise their
interpretations of, or policy in relation to, those instruments in order to maintain maximum
flexibility in their response options.88 Furthermore, since 9/11 there have not been any
international disputes abou…