maritime security operations - สำนักงานพระธรรมนูญ ... mso kraska...
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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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