The Multilateral Approach of the EU Maritime Security Policy: The Fight Against Piracy, Terrorism and Violence at Sea

ANNA ORIOLO the multilateral approach of the eu maritime security policy: the fight against piracy, terrorism and violence at sea Abstract The escalation of incidents of piracy and armed robbery against ships in recent years and new criminal and terrorist activities that since 11 September 2001 have threatened peaceful use of the seas and oceans have led legal scholars to examine the current challenges of maritime security. According to the International Maritime Bureau, more than 300 pirate attacks occurred in the first nine months of 2009, and global piracy figures have surpassed the total number of acts recorded in 2008. On 25 September 2008 Somali pirates captured the Ukrainian ship Faina, with a cargo of combat tanks and other weaponry (33 Soviet-type battle tanks, anti-air systems, rocket launchers and ammunition). This incident renewed international efforts to stem maritime piracy and, on 7 October 2008, the United Nations Security Council, acting under Chapter VII of the Charter, adopted resolution 1838 which “calls upon all States interested in the security of maritime activities to take part actively in the fight against piracy on the high seas off the coast of Somalia, in particular by deploying naval vessels and military aircraft.” The terrorist attacks of 11 September 2001 and the Madrid train bombings in March 2004 drew attention to the vulnerability of global transport infrastructures “both as a potential target for terrorist activity and, perhaps even more threateningly, as a potential weapon of mass destruction” when, for example, the ship is a carrier of biological, chemical and/or nuclear weapons. Another very real threat to maritime security is the possible connection between terrorism, piracy and other crimes occurring at sea, owing to the alleged relationship between the Indonesian Al Qaeda group Jemaah Islamiyah and Somali pirates. These acts of violence at sea undermine maritime security on a global scale: they occur in a number of areas, involve a plurality of countries and endanger a number of international interests such as peace, economy, trade and the environment. Furthermore, maritime security issues are high on the agenda of international institutions. Within the UN framework, the Security Council adopted several resolutions on these issues and the International Maritime Organisation (IMO) amended the existing conventions in 2002 and 2005 to respond to the growing threat of terrorism at sea. In 2006 the European Commission adopted the Green Paper on a future EU Maritime Policy, which includes maritime terrorism and piracy among the sea-related risks and threats to be prevented and combated, and more recently, in 2008, the EU Council launched a military operation -EU NAVFOR Somalia/operation “Atalanta”- in order to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast. With a view to actually enhancing global maritime security, the Green Paper and other EU actions against acts of violence at sea both underline the EU’s need to cooperate with other international organisations and forge a future Community maritime security policy that should be integrated, intersectoral and multidisciplinary. Focusing on the EU’s responses to managing global security at sea this paper illustrates the distinctions and possible connections between piracy, terrorism and other crimes at sea. Further, it examines international rules (customary and conventional) aimed at preventing and counteracting acts of maritime violence. Finally, the article explores traditional repressive measures and new precautionary mechanisms (the universal jurisdiction principle, the aut dedere aut judicare rule and control of cargo operations) underlining the need for international cooperation in order to guarantee global security at sea. On the basis of the discussion so far, it is possible to outline some conclusive observations. First, on a general level, maritime security essentially depends on indirect mechanisms of enforcement. Although a definitive body of international rules regulating maritime security exists, its implementation is based on national systems: for example, an international tribunal competent to prosecute individuals responsible for acts of maritime piracy and terrorism at sea is lacking. When, as in the Somali case, the committed offences threaten and violate universal principles, such as international peace and security, States can exceptionally extend their coercive powers and are legitimised to exercise repressive measures beyond classical limitations deriving from customary international law. Secondly, the threat of new risks to peaceful uses of the seas and oceans and, consequently, the evolution from the classical concept of maritime safety towards the more extensive notion of maritime security, has brought about the introduction and diffusion of new preventive mechanisms to guarantee security at sea. Maritime security itself, as defined by EU Regulation 725/2004, means “the combination of preventive measures intended to protect shipping and port facilities against threats of intentional unlawful acts”. Our reflections on EU maritime policy particularly lead us to observe that, in a context where security of maritime transport, ships and port facilities depends on States, the international organizations’ role in coordinating and harmonizing national activities is essential. Indeed, the EU currently lacks a detailed Community policy of maritime security and prefers to follow in the wake of other international organizations. Certainly, the exact definition of the autonomous Community policy in the field of maritime security has not yet been determined; however, it is possible to identify some key elements of the strategy in progress: a multidisciplinary (transport, customs, immigration, trade, international policy, etc.) and especially a multilateral approach in external relations with international partners and during coordination with Member States. Whilst awaiting completion of its own autonomous maritime Community policy, the EU’s tendency seems to be to refuse unilateral solutions and support multilateral initiatives and/or actions managed by other international organizations at the international level. Consequently, the EU is continuing its dialogue with the IMO and other international fora on maritime security and is promoting Europe’s leadership in international maritime affairs. As outlined by the European Commission, “The EU will work towards more efficient international governance of maritime affairs and effective enforcement of international maritime law, urging Member States to ratify the relevant instruments. It will promote coordination of European interests in key international fora […]. [I]mprovement of maritime safety and security […] and the fight against illegal activities in international waters will be [some of] the external priorities for the Union’s Integrated Maritime Policy”. The EU is thus contributing to better implementation of existing international instruments relating to maritime security by using its external policy; at the same time, where it sees the need for new international rules, it will contribute to their introduction, by, for example, regulating arrangements for accession by Member States.