Maritime Security Operations

Commander James Kraska

Howard S. Levie Chair of Operational Law

International Law Department

U.S. Naval War College

Agenda

• What are MSO?

• Maritime Interception Operations (MIO)

• Proliferation Security Initiative (PSI)

• Suppression of Unlawful Acts against the

Safety of Maritime Navigation (SUA)

• Counter-piracy operations (CP)

• Counterdrug Operations (CD)

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MSO

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MIO ensures designated:

• vessels (categories, types or flags)

• sailing through a specified area

• are in compliance with national or

international law

CJCSI 3121.01A & NTTP 3-07.11

MIO

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MIO Missions

Naval Control and Protection of Shipping (NCAPS)

Diversion of vessels away from an area or into port

Safety of navigation

Escort or protection of endangered vessels

Security zones and restricted access to sea areas

Visit, Board, Search and Seizure (VBSS)

Vessel and cargo inspection

Capture of dangerous persons or seizure of cargoes

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Legal Framework

• Prohibition of the use of “armed aggression”

or “aggressive force,” Art. 2(4)

• “Enforcement action” UN Security Council,

Chapter VII

• “Inherent” right of individual and collective

self-defense, Art. 51

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Legal Framework

• Law of the Sea Convention (LOSC)

• Coastal state sovereignty of territorial sea and

internal waters (Art. 2)

• Freedom of Navigation (Art. 58 and 87)

• “Exclusive” Flag State Jurisdiction (Arts. 92, 94)

• Sovereign immunity of government vessels on

non-commercial service (Art. 32)

Rubik’s Cube

• Flag state of the vessel

• State of incorporation of the owner of the

vessel

• State(s) of incorporation of the owner of

the cargo

• States of nationality of the crew

• State of nationality of the pirates

• Flag state of the warships

VBSS

Self-defense

• Nothing shall impair the inherent right of individual and

collective self-defense if an armed attack (“armed

aggression”) occurs against a member nation of the UN

until the UNSC has taken measures necessary to

maintain international peace and security.

• Hostile act or demonstration of hostile intent

• Threat of the imminent use of force

• Necessary and proportional response

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Flag State Consent

• Vessels subject to jurisdiction of the flag

state

• Ad hoc permission

• Agreement (e.g. counterdrugs, PSI)

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• To permit boarding only, not authority to

conduct search & seizure

• Legal status of officials: “guests”

• Only in international waters

• Conducted by warships or other vessels

clearly marked and identifiable as being on

government service

Master’s Consent

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Approach & Visit

• Any warship or government aircraft

may approach a vessel or aircraft to

determine its nationality

• May conduct a “visit” if:• Vessel is same flag, or

• vessel is “stateless,” and there is a

• reasonable suspicion of piracy; slave trading

or unauthorized broadcasting

Approach & Visit

• Boarding party may conduct search or

seizure of vessel and crew if the vessel is

engaged in international slave-trading or

maritime piracy

• Reflects recognition that slavery and

piracy are universal crimes

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Port State Control

• Coastal state has greater authority for

boarding a vessel as it nears coastal state

• Can impose port state control and entry

measures well out to sea

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UN Security Council

• Legal Basis: Chapter VII

• Threat to breach of the peace, act of

aggression

• Wide discretion of UN Security

Council

• Enforcement measure according to

Arts. 41 and 42

Terrorism & WMD

M/V LIMBURG

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Expanded MIO

• NOTAM WARNING:

• Vessels in the Red Sea, Arabian Sea, Gulf of Aden, Gulf of Oman, and the Arabian Gulf

• Subject to query, stopping, and boarding

• Warships operating ISO OEF

• Any vessel found carrying crew, passengers, or cargo supporting international terrorism will be subject to detention or seizure.”

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Expanded MIO

• The US is committed to capturing Usama bin Laden and senior Al-Qaeda leaders.

• Use full capabilities of US and coalition military aircraft, warships, submarines, and satellites.

• C5F queries commercial vessels, particularly those operating off the Pakistani coast.

• Suspected vessels risk seizure or sinking and persons detained.

• $25 million reward for UBL.

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Proliferation Security

Initiative (PSI)

11 original participating states:

Australia, France, Germany, Italy,

Japan, the Netherlands, Poland,

Portugal, Spain, the UK and the USA.

PSI

• Undertake measures

for interdicting transfer

or transport

• Adopt streamlined info-

sharing procedures

• Review and strengthen

laws

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PSI

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PSI

• “Statement of Interdiction Principles”

• Consistent with national and international law

• Leverage national export laws and domestic

criminal authorities.

• Boarding agreements

• More than 90 participating states

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International

Organizations

• IMO Convention – 1958

• International shipping underpins world trade

• Universal, applicable standards

• UN Specialized Agency

• London

• Annual Budget 50 £ million

• Secretariat

IMO

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Convention on the Suppression of

Unlawful Acts against the Safety

of Maritime Navigation

CDR James Kraska, JAGC, USN

Howard S. Levie Chair of Operational Law

International Law Department,

U.S. Naval War College

Suppression of

Unlawful Acts (SUA)

SUA 1988

• Filled a gap in

international law

• Legal regime governing

acts of violence on board

or against ships

conducting international

maritime navigation and

fixed platforms on the

continental shelf.

1988 and 2005

• The 1988 SUA Convention is a

multilateral (156 parties) anti-

terrorism, criminal law

• Acts that endanger the safe

navigation of ships (e.g.

hijacking)

• Entered into force for the U.S.

in March 1995.

• Efforts to amend SUA

successfully concluded on

October 14, 2005, at a

Diplomatic Conference at IMO

• The 2005 SUA Protocol:

• Use of a ship to transport

terrorists or use as a weapon

• Maritime transport of WMD,

their delivery systems, and

related material

• Boarding suspect vessels

• Establish WMD proliferation as

an international crime for which

parties are obligated to either

extradite or prosecute

• Addressed events after the

illegal acts:

• Apprehension

• Conviction

• Punishment

• Not prevention or

suppression of illegal acts.

• Under-utilized.

SUA 1988

• In 2002, the U.S. proposed amendments

to SUA to facilitate, strengthen, and

expand international cooperation and

coordination.

• 65 States and 7 organizations negotiated

a draft text for consideration by the

Diplomatic Conference.

• Amendments adopted in 2005.

SUA Protocols 2005

Comprehensive

boarding framework

• Reasonable grounds to

believe that an offense

has been, is being or is

about to be committed.

• Detailed procedures for

obtaining Flag State

authorization to board.

SUA Protocols 2005

SUA Protocols 2005

• Criminalize the use of a ship to transport terrorists or

for use as a weapon

• Criminalize the maritime transport of WMD, their

delivery systems, and related materials, incl. dual use

• Comprehensive framework for boarding

• Prosecute or extradite

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• Established additional offenses:

• Using a ship to commit terrorist acts

• Intentional release of harmful substances

(NBC).

• Non-proliferation offenses (e.g., transport

WMD, delivery systems, related materials).

• Transport of persons alleged to have

committed an offense under any of 12 U.N.

terrorism conventions with intent to evade.

SUA Protocols 2005

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• NBC-HE

• Fissionable

• Dual use

• Design

• Make

• Deliver

SUA Protocols 2005

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• Most comprehensive

boarding regime in any

international document

• USG-proposed “use of

force” provisions

• Does not prevent

boarding based on self-

defense or other legal

bases

• Military activities exempt

SUA Protocols 2005

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Boarding Matrix

VESSEL TYPE LOCATION REASON FOR BOARDING SUA BOARDING?

Foreign Warship

Or Gov’t Vessel

No SUA authority to

board

Foreign-

Flagged

Civilian ships

Territorial Sea

High Seas • Transporting

terrorists

• Transporting

WMD, their

delivery systems,

or related materials

• Using a ship as a

weapon

Flag-State approval

(or pre–authorized,

express, or default

after 4 hours)?

No?

Yes?

Conduct boarding

SUA does not apply to

or limit ship boardings

based on self defense or any

other lawful basis.

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SUA Protocols: 8 bis safeguards

• Requires a boarding party to:

• avoid endangering personnel on board;

• take due account of the security of the ship and its

cargo;

• treat persons on board in a manner which preserves

their basic human dignity;

• conduct boardings in accordance with applicable

international law;

• notify the master of the impending boarding;

• take reasonable efforts to avoid unduly detaining the

ship

SUA Protocols 2005

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