A Secure Ocean Commons – Are We Doing Enough?

A safe and secure ocean commons has been a goal for decades. Initiatives to achieve this tend to have their roots in significant events that become forcing functions for change. For example, attention was focused on the security of ships and ports immediately after the 2001 attacks in New York resulted in the establishment of the 2004 International Ship and Port Security Code (ISPS) which, in turn, was supplemented by a number of other initiatives, including the United States Container Security Initiative (CSI) focused on cargo and the co-opting of the International Maritime Organization’s (IMO) mandated Automatic Information System (AIS) to provide positional information on compliant shipping to coastal states.

Today, if so inclined, one can subscribe to IHS Fairplay and receive maritime data services, ship positional information and commercial intelligence analysis. Furthermore, Greenline, in collaboration with IHS Fairplay, provides services that will assist you in determining the risks associated with shipping bound for or sailing within coastal approaches.  It would not be surprising if IHS Fairplay soon adds commercial spaced-based derived AIS information to their services.

The Europe-originated Maritime Safety and Security Information System (MSSIS) offers an interesting deal where individual nations provide ship information into a common network. In return, the contributors gain access to the AIS information provided by more than 60 other participating nations.

The Gulf Cooperation Council held a conference earlier this year, to explore the means by which member and other states could provide better security in the North Arabian Sea and the Gulf of Aden, a key focus area for European and Coalition counter piracy activity.

In the spring of this year, the Economic Community of West African States and the Economic Community of Central African States agreed to the drafting of a Memorandum of Understanding and an Operational Agreement focusing on joint efforts to ensure security in their maritime approaches.  U.S. Africa Command is also pursuing an initiative to share best practices with West African nations.

The Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), a Southeast Asian states initiative, remains the poster child for the success that can be achieved through multi-lateral collaboration. The ReCAAP nations have demonstrated notable confidence and trust in each other and share the planning for surveillance and the use of assets. They have even established a joint information fusion centre.

Along these same lines, the European Union intends to establish a European Border Surveillance System (EUROSUR) that will allow member states to share operational information related to maritime border surveillance and to allow closer cooperation.

Here in North America, Canada and the U.S., under the Beyond the Border Plan, are working to develop an integrated, multi-modal customs and transportation security regime. One notable aspect of this is to develop a harmonized approach to the screening of inbound cargo arriving from offshore that will result in a regime of “cleared once, accepted twice.”

The aim of this broad summary was to reinforce the view that there is lots of activity in the maritime safety and security space. Regional initiatives predominate. Trade, customs, illegal migration, and illegal activities including terrorism are the principal concerns. Notably, these domains are mostly the responsibility of security organizations.  The day to day grind of identifying a potential problem or threat resides in security and defence intelligence apparatus and the day to day operations of customs, border and security organizations searching for anomalies and linking disparate elements of data to create a ‘eureka’ moment. Defence is less important, except in those areas where a direct threat exists, such as piracy in the Horn of Africa or in the intervention of an identified or potential threat. So navies must find their niche within the security constellations and learn how to work within them.

A theme advanced by some defence-focused organizations is that there should be a maritime equivalent to the International Civil Aviation Organization (ICAO) regimes on safety and security to regulate activities on the high seas. Yet this idea has been slow to gain traction. So why has it proven so difficult?

Richard Kilpatrick, in his 2011 paper “Borrowing from Civil Aviations Security: Does International Law Governing Airline Hijacking Offer Solution to the Modern Maritime Piracy Epidemic off the coast of Somalia?”, offers meaningful insights into whether or not an ICAO like regime would be useful to combat piracy. He demonstrates that the current ICAO regime on safety and security was the result of a series of high jacking and hostage taking events that started in the 1960s and which resulted in a series of conventions and international declarations starting in the 1970s and running through the 1990s. These were further enhanced as a result of U.S. domestic laws passed after the 2001 attacks in New York.

The overarching forcing functions in the aviation industry were: the effect of high jacking on the flying public and the American response. In the 1970s and 1980s the American aviation market was predominant. America’s preparedness to deny landing rights to any nation that did not enforce adequate safety and security regimes was a powerful motivator for other nations to conform. Furthermore, the G7 1991 Bonn Declaration demonstrated the unified political will amongst the world’s most powerful economies to enforce this denial of market access regime.

The Convention for the Suppression of Unlawful Acts (SUA) under the International Convention for the Safety of Life at Sea (SOLAS) places very similar obligations on countries to deal with high jacking, hostage taking and terrorist related acts at sea. Yet it does not appear to have the same forcing function that the ICAO conventions and international declarations had. Kilpatrick argues that the immediacy of remedying the hostage/piracy event at sea is markedly different.

Clearly, hostage negotiations as the result of piracy have been drawn out over months, while that of an aircraft needs to be resolved in hours.  Kilpatrick also observes that the human dimension at sea is generally limited to seafarers and their families and is therefore more remote from the much larger flying public; hence there is less political pressure for action. Similarly, the economic impact of piracy while measured in the billions has not markedly affected the cost of goods in the market place, a reflection of the enormous value of international trade at sea. He also offers that flags of convenience and the hesitation of individual nations to prosecute pirates and hostage takers under domestic law derived from the SUA has also contributed to the lack of meaningful international action.

History has taught us that there needs to be a significant forcing function for the status quo to change. For example, many of the initiatives to provide for safety at sea have their roots in the sinking of RMS Titanic. The United Nations Convention on the Law of the Sea (UNCLOS III) had its roots in the uneven and unbridled claims by some coastal states for expanded territorial seas. The SUA convention was a direct result of the high jacking and hostage killing aboard the Italian cruise ship MS Achille Lauro.  The ISPS Code was a direct response to the 9/11 attacks.  The establishment of ReCAAP was a direct result of the regional political will to do something about piracy in the Malacca Straits.

So is there a significant forcing function today that will provide the necessary political will to further regulate the oceans? There have been few significant terrorist attacks on or from the sea over the last decade. The attacks against USS Cole (2000), the French tanker MV Limburg (2002), MV Super Ferry 14 in the Philippines (2004) and the seaborne raid on Mumbai (2008) spring to mind as being the most noteworthy. Although there have also been other less successful attacks, the list remains relatively short.  Illegal activities, such as piracy in the Horn of Africa and the illegal smuggling of drugs and people, seem to be a constant irritant, but they have not been of sufficient impact to rise above more pressing international concerns.  The ISPS Code and other commerce related initiatives seem to have been adequate to safeguard ocean trade with the exception of piracy off the Horn of Africa.

However, there remain initiatives that can and should be pursued absent a significant international forcing function to further enhance safety and security at sea:

  • ISPS, the Container Security Initiative and the World Customs Organization SAFE Framework have all provided an increased level of security to coastal states, their ports and world shipping.  An international Global Supply Chain Security Initiative led by the World Customs Organization in response to a U.S. proposal could make trade even more secure.
  • Regional approaches driven by regional issues, such as piracy, pollution, resource exploitation, should be expanded and cross-connected to other regional initiatives. The world’s oceans and trade routes are all inter-connected in this increasingly inter-connected world.
  • Some basic level of information should be universally agreed to be unclassified and in the public domain and therefore easily shared. These data elements should include as a minimum: vessel identity, position and movement which could then provide the basis for more in depth national and /or multinational analysis while respecting national and international law and commercial interests.
  • There have been a series of technical experiments that demonstrate that the oceans can be made less opaque through the use of commercial space-based sensors including: space based AIS, synthetic aperture radar (SAR), optical and transponder sensors. They provide a real opportunity for surveillance of both compliant and more importantly non-compliant vessels across all of the security domains: trade, resource exploitation, pollution, illegal immigration, or terrorism. This can be done at a cost that would make it attractive to both rich and poor coastal states and would provide nations with a fundamental awareness of what is happening off of their coasts without the significant investments required to become space faring nations.
  • More effort should be expended on advancing and sharing best practices. The focus should be on ensuring all nations understand the best practices that would help them manage their EEZs and trade. For example, the capacity building initiatives being advanced in the Caribbean by the Canadian Departments of Foreign Affairs and International Trade and Transport Canada in conjunction with the U.S. Department of State and the U.S. Coast Guard are providing both educational and policy initiatives that will benefit the individual states and the wider international community. The U.S. initiated Maritime Security Sector Reform Guide could be further internationalized and become the framework that all coastal states see as a sensible basis for the development of their own policies.