Student Editor - Vivek Sharma | Junior Editor - Vaibhav Chitlangia | Senior Editor - Rajnandini Muduli
Maritime law, also known as admiralty law, is a body of laws, Conventions, and Treaties that govern private maritime business and other nautical matters, such as shipping and offenses occurring on open water. International rules for the use of the oceans and seas are known as the Law of the Sea.[i] This article aims at understanding how terrorism and piracy haunt the seas, focusing on civil liabilities arising out of such acts. It would further aim at examining legal stances of countries like USA and India. This article inclines more towards getting readers acquainted with the problems rather than the solutions. However, the problem does have a solution, an ever-evolving solution, which will be done warranting justice in following article.
Maritime terrorism is a relatively new field. The occurrences of terrorist acts in the sea and other water bodies have been sparse. A research conducted by RAND Center for Terrorism Risk Management Policy (CTRMP) in 2003 found that seaborne strikes had constituted only 2 percent of all international incidents over the last 30 years (approximately from 1973 to 2003)[ii]. However, owing to the sheer advantage that the seas offer, it has become a critical field of study and interest amongst academicians, military experts, governments, diplomats and defence intelligentsia. With a sea cover of more than 130 million square miles, maritime terrorism and piracy has been an ever-evolving activity.
One more advantage that the seas offer terrorist interests is the complex web of jurisdictions that governs the seas. Although theoretically the nautical boundaries of sovereign jurisdictions are well defined, the same precision and clarity is seen lacking in practice. Exact maritime boundaries are neither known nor acknowledged as the confluence of such boundaries, especially amongst hostile nations, poses a tricky problem. Nations are usually wary of flirting with exactness of the boundaries in practice. This coupled with dynamism in international relations, a still developing (and at places underdeveloped) understanding of International Laws, and disputed water regions have further added to the vulnerability of the seas. These practical shortcomings have somewhat tended to the growing confidence amongst the terrorist forces towards this upcoming avenue for their interests.
The most prominent reasons for traditional avoidance of seas by terrorist is the non-alignment of the terrorist capabilities, interests and methods with the kind of role that the sea plays in the human world.
Operating at sea requires terrorists to have mariner skills, access to appropriate assault and transport vehicles, ability to mount and sustain operations from a non–land-based environment, and familiarity with certain specialist capabilities (for example, surface and under-water demolition techniques).[iii]Limited resources have traditionally precluded such options being available to most of the groups. The inherently conservative nature of terrorists in terms of their chosen attack modalities compounds the constraints imposed by limited opportunities and the lack of technical skills.
Mainly because groups are constrained by ceilings in operational finance and skill sets, most deliberately choose to follow the course of least resistance— adhering to tried and tested methods that are known to work, which offer a reasonably high chance of success, and whose consequences can be relatively easily predicted. Stated more directly, in a world of finite human and material assets, the costs and unpredictability associated with expanding to the maritime realm have typically trumped any potential benefit to the terrorists that might have been garnered from initiating such a change in operational direction.[iv]
There is seen to be a growth in awareness regarding the precariousness of this case. International community has been seen taking cognizance of the general vulnerability of global shipping as a result of largely unguarded, un-policed nature of the high seas, the inability of governments owing to lack of resources (and at times willingness) to counter the terrorist activity in the seas.
As Rupert Herbert-Burns observes[v]:
The combination of the enormous scope, variety and “room for maneuver” offered by the physical and geographical realities of the [earth’s] maritime environment . . . presents a sobering and uncomfortable reality . . . What compounds this reality further is that the commercial milieu that simultaneously affords . . . the ability to deploy, finance operations, tactical concealment, logistical fluidity and wealth of targets of opportunity—the commercial maritime industry—is itself numerically vast, complex, deliberately opaque and in a perpetual state of flux.
Civil Liability and Marine terrorism
The sea has always been crucial for the global trade and has served as medium for world trade since time immemorial. Though violence against seafarers has also existed since ages, terrorists have recently been taking notice of the same. One of the critical challenges before the law is determining the civil and criminal liability after such acts of violence. Non-uniformity of maritime laws across nations and lack of stringent international regimes are also contributing factors to these challenges.
Lawsuits filed by victims against terrorist perpetrators can be difficult to pursue, particularly when perpetrators deliberately kill themselves to perpetrate an attack, or when perpetrators are international fugitives who are impossible to locate or to investigate.[vi]
In case of ascertaining liabilities of the parties involved the following flowchart may be helpful.[vii]
* Negligence-based theories of liability typically require that defendants take reasonable care against foreseeable harms, within the scope of their duties of care.
** To the extent that commercial interests now recognize the existence of broad terrorist threats, default rules and contractual terms can be written to address and apportion those risks.
The US Scenario:
As a threshold matter, some terrorist attacks on passenger and containerized shipping fall entirely outside the jurisdictional bounds of the U.S. legal authority and are unlikely to be subject to the U.S. civil liability rules. An obvious example might be a terrorist attack on a foreign passenger vessel (e.g., a ferry), occurring in the internal waters of a foreign state (e.g., an inland waterway), and without any involvement of any U.S. national as passengers or crew. In general, a terrorist attack that has no connection to the United States whatsoever would not be subject to the U.S. laws or jurisdiction. It would instead be addressed through the legal rules and authority of the sovereign State in which the attack takes place.
The answer to ‘where the civil liability lies’ draws partly on international treaties and common law doctrines concerning jurisdiction on the high seas generally and, in particular, in relation to the acts of piracy and terrorism. The general rule regarding police and judicial jurisdiction on the high seas is (1) that it cannot be arbitrarily imposed by a State on a foreign- flagged vessel and (2) that the flag State ordinarily retains sole jurisdiction and regulatory authority over its own flagged vessels while they operate on the high seas.[viii]
Perhaps the most important exception to the general rule regarding jurisdiction on the high seas involves acts of piracy, which, pursuant to UNCLOS and international common law, can become subject to the jurisdiction of any State, regardless of the flag status of a pirated vessel, because piratical acts have customarily been viewed as “crimes against the human race”
In particular, UNCLOS defines piracy as acts involving violence, detention, or depredation committed “for private ends” (United Nations, 1982, pp. 60–61). Commentators have disputed for years over what exactly “private ends” means, but the consensus appears to distinguish terrorist acts (i.e., those politically motivated) from piratical acts (i.e., those criminally motivated), with the former falling out- side the rule of universal jurisdiction.[ix]Article 27 and 28 of United Nations Convention Laws Of Sea provide for criminal and civil jurisdiction to coastal to the ships and the personnel on board in case of any possible harm to the coastal state or disturbance to the peace of that territory.
Under the U.S. Constitution, federal courts have subject-matter jurisdiction over maritime and admiralty matters.[x] This is important partly because it means that plaintiffs in admiralty disputes are automatically entitled to bring their claims in federal court and because federal admiralty laws, as opposed to state laws, may apply to the resolution of those claims. U.S. admiralty jurisdiction in tort cases requires an allegation that the tort occurred on navigable waters and that the tort bears some nexus to traditional maritime activities. [xi]
Indian capability to challenge terrorism at sea was well demonstrated during the capture of mercenaries who held the Maldives Minister of Education as a hostage in November 1988. Two trawlers carrying 150 People’s Liberation Organization of Tamil Eelam (PLOTE) mercenaries landed on the shores of Maldives.[xiii] They quickly overpowered the Maldivian Militia using rockets and machine guns and attacked the President’s residence. A ‘panicked’ Maldivian government sent out calls asking for assistance and India responded with the launching of Operation Cactus and a large contingent of paratroopers made an unopposed landing in the capital Male. The island was secured within 30 minutes after the arrival of forces. Shortly afterwards, a vessel was seen fleeing Male with mercenaries and hostages including the Maldives Minister of Education. An Indian Navy maritime reconnaissance aircraft detected the ship and Indian navy vessels then captured the ship.[xiv]
Similarly, the Indian coast guard, responsible for maintaining order at sea in the IEEZ, demonstrated its capability by capturing M. V. Alondra Rainbow, a 7000-ton Panama-registered vessel belonging to Japanese owners, hijacked by pirates in the Malacca Straits.[xv]
Indian Maritime Law is an emerging and yet, an evolving field. One of the primary maritime legislations in India is the Merchant Shipping Act, 1958 (hereinafter ‘MSA’). MSA primarily deals with the entire shipping industry and hence, focuses neither on piracy nor on terrorism. However, it being the foremost maritime legislation, we do owe it a sweeping glance. Here is a brief overview of provisions under the MSA, which may be used in settling ancillary issues arising out of acts of maritime piracy or terrorism. Part IXB of MSA titled Security Of Ships And Port Facilities Sections (Sections 344J o 344T) provides with what kind of regulations ports and shipping industry in general need to follow. Part X Collisions, Accidents At Sea And Liability (Sections 345-351) provides for the ways in which liability can be decided but it does not provide for terrorist and pirate activities. However, the logic of the said provisions may act as a guiding legislation for enacting more specific legislations. In extension of the same are following parts of the Act, Part XA Limitation Of Liability (Section 352-352FA)
Part XII Investigations And Inquiries (Sections 357-389) and Part XVI Penalties And Procedure (Sections 436-448).
Considering the need of a specialized legislation, the Indian Parliament had tabled Anti-Maritime Piracy Bill (2019) catering specifically to the issues at hand. Although the Bill has not been passed, it does seem to hold the future of maritime laws in India against piracy and terrorism.
The Bill defines concepts such as ‘piracy’, ‘pirate ship or aircraft’ and such relevant terms. Under section 3 of the proposed Bill, punishment for piracy is given as
Whoever commits any act of piracy, shall be punished—
(i) With imprisonment for life; or
(ii) With death, if such person in committing the act of piracy causes death or an attempt thereof,
And in addition shall also be subject to restitution or forfeiture of property involved in the commission of such offence.
It also provides for courts with jurisdiction to try such cases. In its statement of objects and reasons, signed by Dr. S Jaishankar (Minister of External Affairs, Government of India), it specifically states that the Bill is tabled keeping in mind the absence of such legislations and the timely need of the same. Furthermore it also refers to UNCLOS and adherence to its provisions in the Bill.
The topic of maritime activities is interesting all by itself. That, coupled with terrorism and piracy, becomes even more intriguing. Setting it in a frame of reference of Indian context, with all its complex geo-political threats, international relations and an ambition to lead the world as a global super power gets us a recipe for a deep and meaningful discussion. This writing has barely scratched the surface. It would be an attempt by the author and Tathya to do justice to this theme of Maritime Law in context of terrorism and piracy.
[i] Definition, Investopedia, https://www.investopedia.com/terms/m/maritime-law.asp (last viewed on 9th August 2020) [ii] Michael D. Greenberg, Peter Chalk, Henry H. Willis, Ivan Khilko and David S. Ortiz, The Contemporary Threat of Maritime Terrorism in MARITIME TERRORISM, RISK AND LIABILITY [iii] Anonymous former British defense official and Department of Homeland Security Liaison attache, British Embassy, interviews with the authors, London, 2005. See also Frittelli, John F., PORT AND MARITIME SECURITY: BACKGROUND AND ISSUES FOR CONGRESS, Washington, D.C.: Congressional Research Service, RL31733, December 30, 2004. As of July 26, 2020: https://digital.library.unt.edu/ark:/67531/metacrs6470/m1/1/high_res_d/RL31733_2005May10.pdf (2004, pp. 1–3); Wrightson, Margaret T., MARITIME SECURITY: NEW STRUCTURES HAVE IMPROVED INFORMATION SHARING, BUT SECURITY CLEARANCES PROCESSING REQUIRES FURTHER ATTENTION: REPORT TO CONGRESSIONAL REQUESTERS, Washington, D.C.: U.S. Government Accountability Office, GAO-05-394, 2005. (pp. 1, 7) [iv] Michael D. Greenberg, Peter Chalk, Henry H. Willis, Ivan Khilko and David S. Ortiz, The Contemporary Threat of Maritime Terrorism in MARITIME TERRORISM, RISK AND LIABILITY [v] Herbert-Burns, Rupert, Terrorism in the Early 21st Century Maritime Domain, in Joshua Ho and Catherine Zara Raymond, eds., THE BEST OF TIMES, THE WORST OF TIMES: MARITIME SECURITY IN THE ASIA-PACIFIC, Singapore: World Scientific, 2005, pp. 155–178. [vi] Even where such lawsuits are legally practical, they may nevertheless be financially nonviable: Individual terrorists and terrorist groups may lack the financial resources to make tort litigation against them worthwhile. See Dellapenna, Joseph, INTERNATIONAL TERRORISM: PREVENTION AND REMEDIES: LEGAL REMEDIES FOR TERRORIST ACTS, Syracuse Journal of International Law and Commerce, Vol. 22, Spring 1996, pp. 13–18 (p. 14). [vii] See Greenberg, M., Chalk, P., Willis, H., Khilko, I., & Ortiz, D. (2006), Civil Liability and Maritime Terrorism In MARITIME TERRORISM: RISK AND LIABILITY (pp. 39-72) Santa Monica, CA; Arlington, VA; Pittsburgh, PA: RAND Corporation. Retrieved July 27, 2020, from www.jstor.org/stable/10.7249/mg520ctrmp.14 [viii] See commentary in Jesus, H. E. José Luis, PROTECTION OF FOREIGN SHIPS AGAINST PIRACY AND TERRORISM AT SEA: LEGAL ASPECTS, The International Journal of Marine and Coastal Law, Vol. 18, No. 3, 2003, pp. 363–400. (p. 373); Garmon, Tina, INTERNATIONAL LAW OF THE SEA: RECONCILING THE LAW OF PIRACY AND TERRORISM IN THE WAKE OF SEPTEMBER 11TH, Tulane Maritime Law Journal, Vol. 27, No. 1, Winter 2002, pp. 257–276 (p. 268); and Wing, Maria J., RETHINKING THE EASY WAY OUT: FLAGS OF CONVENIENCE IN THE POST–SEPTEMBER 11TH ERA, Tulane Maritime Law Journal, Vol. 28, No. 1, Winter 2003, pp. 173–190 (p. 174). See also generally Halberstam, Malvina, TERRORISM ON THE HIGH SEAS: THE ACHILLE LAURO, PIRACY AND THE IMO CONVENTION ON MARITIME SAFETY, American Journal of International Law, Vol. 82, No. 2, April 1988, pp. 269–310. See also Diaz, Leticia, and Barry Hart Dubner, ON THE PROBLEM OF UTILIZING UNILATERAL ACTION TO PREVENT ACTS OF SEA PIRACY AND TERRORISM: A PROACTIVE APPROACH TO THE EVOLUTION OF INTERNATIONAL LAW, Syracuse Journal of International Law and Commerce, Vol. 32, No. 1, Fall 2004, pp. 1–50, and Mellor, Justin S. C., MISSING THE BOAT: THE LEGAL AND PRACTICAL PROBLEMS OF THE PREVENTION OF MARITIME TERRORISM, American University International Law Review, Vol. 18, No. 2, 2002, pp. 341–398. [ix] See discussion in Je Jesus, H. E. José Luis, PROTECTION OF FOREIGN SHIPS AGAINST PIRACY AND TERRORISM AT SEA: LEGAL ASPECTS, The International Journal of Marine and Coastal Law, Vol. 18, No. 3, 2003, (pp. 377–379); Garmon, Tina, INTERNATIONAL LAW OF THE SEA: RECONCILING THE LAW OF PIRACY AND TERRORISM IN THE WAKE OF SEPTEMBER 11TH CENTURY, Tulane Maritime Law Journal, Vol. 27, No. 1, Winter 2002, pp. 257–276. (p. 265), and Halberstam, Malvina, TERRORISM ON THE HIGH SEAS: THE ACHILLE LAURO, PIRACY AND THE IMO CONVENTION ON MARITIME SAFETY, American Journal of International Law, Vol. 82, No. 2, April 1988, pp. 269–310 (pp. 272–291). [x] See discussion in Force, Robert, ADMIRALTY AND MARITIME LAW, Washington, D.C.: Federal Judicial Center, 2004. As of 10th August 2020: https://public.resource.org/scribd/8763552.pdf (2004, p.1); see also THE CONSTITUTION OF THE UNITED STATES OF AMERICA (2002, pp. 15–16, Article III) and 28 USC 1333 (1949). See also discussion in Rue, Thomas S., THE UNIQUENESS OF ADMIRALTY AND MARITIME LAW, Tulane Law Review, Vol. 79, Nos. 5 and 6, June 2005, pp. 1127–1148. (p. 1127). [xi] See Force (2004, p.5) and Rue (2005, pp.1129–1130). The implication is that most maritime terrorist attacks involving vessels in navigable U.S. waters would be subject to admiralty jurisdiction, but also that some terrorist attacks on vessels on inland waterways or on other inland targets by means of sabotaged cargo containers, might not. [xii] See Greenberg, M., Chalk, P., Willis, H., Khilko, I., & Ortiz, D. (2006), Civil Liability and Maritime Terrorism In MARITIME TERRORISM: RISK AND LIABILITY (pp. 39-72) Santa Monica, CA; Arlington, VA; Pittsburgh, PA: RAND Corporation. Retrieved July 27, 2020, from www.jstor.org/stable/10.7249/mg520ctrmp.14 [xiii] See Operation Cactus, https://www.bharat-rakshak.com/ARMY/history/siachen/281-Operation-Cactus.html (last viewed on 5th August 2020) [xiv] Ibid [xv] The MV Alondra Rainbow was hijacked in November 1999. The vessel was en route from Kuala Tanjung, Indonesia to Milke in Japan. See Vijay Sakhuja, Maritime Order and Piracy, Strategic Analysis, New Delhi, vol. xxiv, no. 5, pp. 935-36