Ocean Governance Topic Week

By Alexander Lott

Introduction

Since Frank Hoffman coined the term “hybrid warfare” in 2007,¹ numerous articles and books have been written on this theme from the perspective of military studies and international relations.² Yet the existing legal literature has not so far focused on the challenges that hybrid warfare poses for the order of the oceans. One of the main current research gaps lies in the lack of clear understanding on how the law of the sea operates in hybrid warfare.³

The principal question is how can the law of the sea contribute to ensuring the rule of law in major shipping routes impacted by hybrid warfare? Another fundamental research problem lies in the ambiguities of how hybrid naval warfare or conflict differs – if at all – from traditional concepts of naval warfare or law enforcement operations. The implications of hybrid warfare for ocean governance deserves to be examined, as well as the usefulness of the concept of hybrid warfare for assessing the (il)legality of an aggressor’s actions in the maritime domain.

Hybrid Warfare as a Challenge to the Rights of Navigation

The means of hybrid naval warfare include the use of firearms and explosives, arrests of ships, cyberattacks, threats of force, economic coercion, and grey maritime networks, to name a few.⁴ Its scope may also include industrial projects that cause ecological destruction and pose security threats in the maritime domain. Notable examples include the construction of the Kerch Strait Bridge in the Black Sea, subsurface Nord Stream pipelines in the Baltic Sea, and artificial islands in the South China Sea that are allegedly detrimental to the marine environment and are protested against by the coastal states that are impacted by these construction activities.

Coastal states may perceive such industrial projects in their adjacent waters as a threat to their national security. For example, Finland’s defense minister has referred to concerns that are largely shared with the neighboring Baltic States that Russia could use its armed forces during a conflict situation to control the Nord Stream pipelines that cross Finnish, Swedish, and Danish maritime zones.⁵ Ukraine has similar concerns in respect of the Kerch Strait Bridge and much of the international community in relation to the artificial islands in the South China Sea. These projects have also created new challenges for the rights of navigation in the relevant maritime areas and thus for the stability of the law of the sea.

In 2018, the volume of seaborne trade reached over 11 billion tons which accounts for approximately 90 percent of global trade.⁶ Hybrid warfare is a hindrance to navigation in important maritime routes and has a negative impact on the stability of global commerce. In particular, such challenges to the rights of navigation go against the strategic maritime security interests of the European Union (EU) and its member states, which are “[t]he preservation of freedom of navigation, the protection of the global EU supply chain and of maritime trade, the right of innocent and transit passage of ships and the security of their crew and passengers.”⁷ The United States shares these interests and, in pursuance of these aims, operates the freedom of navigation program for the protection of navigation rights. In the example of freedom of navigation operations carried out in the South China Sea this has primarily caused tensions with China. Similarly, United States warships have repeatedly encountered dangerous approaches from the Iranian navy vessels in the Persian Gulf and Russian warships and aircraft in the Baltic Sea.

Russia, China, and Iran are three states which are primarily associated with the adoption of techniques of hybrid conflict.⁸ They are also important law of the sea actors, whose maritime areas include or are proximate to strategic waterways.

It is estimated that the rate of crossings in the South China Sea amounts to more than half of the world’s merchant fleet capacity,⁹ and the Baltic Sea is an area where approximately 15 percent of global cargo is trafficked.¹⁰ The Baltic Sea, the South China Sea, the Strait of Hormuz, and the Black Sea are also strategically important routes for oil and gas shipments.¹¹ The Baltic Sea, which is already heavily used for the export of Russian oil, is also destined to become the biggest route for the transportation of Russian natural gas to Europe, overshadowing the main alternative transit route in Ukraine.¹² The Black Sea, which holds itself as much natural gas reserves as the North Sea, is used by Russia as one of its main routes for oil shipments and is also destined to become crossed by many subsurface pipelines.¹³ Furthermore, the Strait of Hormuz is one of the main global chokepoints for the transportation of oil. Approximately a fifth of global oil exports are shipped via the Strait of Hormuz.¹⁴

The strategic importance of these maritime regions shows how significant it is to uphold the rule of law and safeguard the passage rights therein. However, these maritime regions are also areas where the stability of navigation is currently under pressure due to the coastal states’ shifting security considerations and methods of hybrid conflict. Foreign ships that were navigating through important chokepoints of maritime commerce have recently repeatedly been subjected to the use of force or coercion by some coastal states. Notable examples include the Kerch Strait incident of November 25, 2018, and the Strait of Hormuz incidents in the summer of 2019. 

Regional Examples of Grey Zones in Maritime Hybrid Conflict

The grey zone in hybrid warfare can be understood as a space short of clear-cut military action wherein the aggressor creates enough ambiguity to reach its strategic objectives without engaging in an open offensive.¹⁵ In the Kerch Strait incident of November 2018, Russia arguably made use of legal uncertainty by operating in a grey zone for complicating decision-making for other states. It seized three Ukrainian naval ships, including two warships, and arrested their crew as they were entering the Kerch Strait under freedom of navigation. In the context of the annexation of Crimea and armed conflict in eastern Ukraine, this incident has raised the question of whether Russia’s actions in the Kerch Strait should be considered as being undertaken in the legal framework of international humanitarian law.¹⁶ In other words, it is not entirely clear to what extent the law of the sea applies in hybrid warfare or conflict. This is intertwined with the question of whether the law of naval warfare or the legal framework on law enforcement should be applied in so-called grey areas to assess the legality of the coastal State’s use of force or direct coercion on the sea.

In the Kerch Strait incident Russia acted openly by using its Coast Guard vessels. By contrast, in the attacks against two oil tankers at the approaches to the Strait of Hormuz in the summer of 2019, the aggressor used a covert operation. In the context of the South China Sea, China’s activities in a grey zone allegedly include both elements, such as the use of law enforcement and a maritime militia in an escalatory manner to deter the use of natural resources by other states.¹⁷

As widely acknowledged, the passage rights of foreign ships and aircraft are at the center of tensions between China and the user states of navigation routes in the South China Sea.¹⁸ By contrast, Russia’s practice in relation to the passage rights of ships and aircraft in, above and near its maritime areas in the Baltic Sea (such as the eastern part of the Gulf of Finland and adjacent to the Kaliningrad enclave) has largely remained unnoticed in legal research. The repeated unsafe actions of Russian fighter jets against U.S. warships that have entered the Baltic Sea, the incursions of suspected Russian submarines into the territorial seas of Sweden and Finland, as well as the multiple violations of Estonia’s airspace by Russia’s aircraft are all instances that merit further attention in the context of hybrid conflict in the Baltic Sea region.¹⁹

In other occasions, tensions between the coastal states of the Gulf of Finland have had a direct adverse impact on the passage rights of ships. For example, in the aftermath of the 2007 riots which were sparked in the Russian-speaking minority in Tallinn due to the relocation of the Soviet Bronze Soldier monument, Russia declined to give its authorization for crossing its territorial sea under the right of innocent passage to the commercial ship Vironia. She transported goods and passengers in the eastern Gulf of Finland between the Estonian Sillamäe Port and the Finnish Kotka Port. Russia effectively caused the closure of the ferry line.

In practice, the Nordic States acknowledge the threats of hybrid warfare and actively prepare to counter such challenges in the northern Baltic region.²⁰ For example, the first large-scale training exercise of the United Kingdom-led Joint Expeditionary Force was aimed at countering threats emanating from a hypothetical hybrid warfare in Estonia, including its maritime domain.²¹ Likewise, the Finnish defence minister has cautioned against the possibility that the demilitarized Åland Islands are turned into a theater of war by so-called little green men in case a foreign state is willing to breach the rules of international law.²²

Legal Implications of Grey Zone in the Maritime Domain

The aggressor usually uses grey areas to complicate decision-making on the (il)legality of its actions in conflict situations and, from other states’ perspective, make it more difficult to take resolute steps in response. This is partly because it remains unclear what is the threshold for the applicability of the law of naval warfare in situations of hybrid conflict. Nonetheless, this does not necessarily mean that hybrid conflict should be subjected to a new set of rules. Usually, incidents that have occurred in grey areas in the context of hybrid conflict (e.g. the examples provided above) can be subjected to the legal framework of humanitarian law or peacetime law enforcement based on which it is possible to assess their legality.

Historians have pointed out that hybrid warfare is not a distinctly new phenomenon and, instead, simply constitutes a new term for a centuries-old concept.²³ In the negotiations, drafting, and discussions during the process of creating the relevant treaties on the law of the sea and armed conflict, states did not consider it necessary to establish a separate legal framework for hybrid warfare. When drafting the relevant treaties, they instead proceeded from traditional concepts of laws of peace and war. Although rapid developments in technology have made it now possible to adopt more sophisticated means of hybrid warfare, including cyber warfare, states should still principally be able to classify any incidents of hybrid warfare under either the ramifications of armed conflict or peacetime law enforcement operations.

Any new legal framework for hybrid naval warfare that falls between the laws of peace and war would risk creating additional ambiguities in assessing the legality of the aggressor’s actions in the so-called grey area. Generally, where disputes arise over the interpretation of the applicable laws in situations concerning grey areas in whatever field of law, recourse is made to courts for justice and legal certainty. Similarly, one may expect that the current ambiguities regarding the classification of incidents which have occurred in grey areas in a hybrid conflict will gradually dissolve in the proceedings before international judicial bodies on a case-by-case basis.

In this context, the ongoing arbitral proceedings between Ukraine and Russia over the Kerch Strait incident of November 2018 are particularly promising. The International Tribunal for the Law of the Sea has found that “the distinction between military and law enforcement activities must be based primarily on an objective evaluation of the nature of the activities in question, taking into account the relevant circumstances in each case.”²⁴ This question will likely be addressed in greater detail during the arbitral proceedings as instituted by Ukraine on April 1, 2019 under Annex VII to the Law of the Sea Convention²⁵ on the Kerch Strait incident.²⁶

Thus, instead of drafting new international rules on the so-called grey area in hybrid warfare or conflict, it might be feasible to first wait for international judicial bodies to develop their case law which would clarify the criteria for distinguishing between law enforcement operations in the maritime domain from naval warfare operations.

At the same time, states could modify their current domestic legal acts on national defense, law enforcement, and state of emergency in order to ensure that the key provisions on declaring a state of emergency or war and maintaining order in the maritime domain are sufficiently flexible for responding to the dynamic challenges of hybrid warfare. This may require amendments to domestic definitions such as those pertaining to a state of emergency or defense readiness. For example, maintaining in a domestic legal act a closed list of instances that constitute a threat to constitutional order (e.g. terrorist activity, forceful isolation of an area), and offer a prerequisite for a state to declare a state of emergency, might not enable it to proportionately tackle the irregular tactics and formations of hybrid warfare. This is especially the case where a state has defined the state of emergency via an outdated closed list of activities that are deemed to pose threat to its constitutional order. States that are located at the front line of hybrid warfare should consider making the threshold for declaring a state of emergency rather flexible.

Conclusion

Based on the incidents in the Black Sea, the Strait of Hormuz, the Baltic Sea, and the South China Sea in the past decade, one may reasonably argue that state practice demonstrates the increasing use of hybrid naval warfare techniques. Yet the acceptance of a new legal concept of hybrid conflict that falls between the fields of naval warfare and peacetime law enforcement could further complicate the already difficult assessment of the legality of the aggressor’s actions in the so-called grey area. A distinct legal framework for hybrid naval warfare would arguably create further legal ambiguity, rather than help solving current problems in distinguishing the law of peace from the laws of naval warfare. Hence, it might contribute to the aims of states that employ practices of maritime hybrid warfare.

States may wait for international judicial bodies to establish solid case law on differences between military and law enforcement operations in the context of hybrid conflict, including in the current proceedings on the Kerch Strait incident of November 2018. At the same time, states should revise their domestic legal acts where necessary for ensuring that the key provisions on declaring a state of emergency or war and maintaining order in the maritime domain are sufficiently flexible for responding to the dynamic challenges of hybrid warfare.

Dr. Alexander Lott is a postdoctoral fellow at the Norwegian Centre for the Law of the Sea at the University of Tromsø, the Arctic University of Norway. He is also a Lecturer of Administrative Law at the University of Tartu, Estonia.

References

1. F. G. Hoffman. Conflict in the 21^st Century: The Rise of Hybrid Wars. Arlington 2007, p. 29.

2. C. Kremidas-Courtney. Countering Hybrid Threats in the Maritime Environment. – Center for International Military Security, 11.06.2018.

3. See also S. Haines. War at sea: Nineteenth-century laws for twenty-first century wars? – 98 International Review of the Red Cross 2016(2), pp. 419, 443-444.

4. C. Callaghan, R. Schroeder, W. Porter. Mapping Gray Maritime Networks for Hybrid Warfare. Center for International Maritime Security, 01.07.2020.

5. J. Niinistö. Itämeren geostrateginen merkitys kasvussa. Centrum Balticum, 02.03.2017.

6. UN Conference on Trade and Development. 2019 e-Handbook of Statistics. United Nations 2019.

7. Council of the European Union. European Union Maritime Security Strategy. Brussels 2014, pp. 6-7.

8. See, e.g. J. Stavridis. Maritime Hybrid Warfare is Coming. – 142 US Naval Institute Proceedings 2016(12).

9. Z. Keyuan. Navigation in the South China Sea: Why Still an Issue? – 32 The International Journal of Marine and Coastal Law 2017(2), p. 244.

10. HELCOM. Ensuring safe shipping in the Baltic. Helsinki 2009, p. 2.

11. Ministry of Defence. Future Security Challenges in the Baltic Sea Region: A study for the Swedish Armed Forces by the Development, Concepts and Doctrine Centre. Shrivenham 2015, p. 4.

12. G. Kuczyński. Nord Stream 2: A Trap for Ukraine. The Warsaw Institute Review, 10.02.2019.

13. M. Papatulica. Black Sea area at the crossroad of the biggest global energy players’ interests. The impact on Romania. – 22 Procedia Economics and Finance 2015, pp. 475, 478.

14. P. Nobakht. Why Does the Strait of Hormuz Matter? BBC News, 11.06.2019.

15. See Stavridis, supra n 8.

16. See J. Kraska. The Kerch Strait Incident: Law of the Sea or Law of Naval Warfare? EJIL: Talk!, 03.12.2018.

17. L. J. Morris et al. Gaining Competitive Advantage in the Gray Zone: Response Options for Coercive Aggression below the Threshold of Major War. The RAND Corporation, Santa Monica 2019, p. 92.

18. Keyuan, supra n 9, p. 245.

19. See further A. Lott. Le régime légal de la partie septentrionale de la mer Baltique dans le contexte des récents développements de sécurité. – Stratégique 2019(1-2), pp. 255-272.

20. C. S. Chivvis. Understanding Russian “Hybrid Warfare” and What Can be Done About It. The RAND Corporation, Santa Monica 2017, p. 7.

21. See V. Lauri. Salmistul toimub brittide meredessant. ERR Uudised, 29.06.2019. See also D. Cavegn. UK planning landing operations exercise in Estonia in summer 2019. ERR News, 09.12.2018.

22. Niinistö, supra n 5. R. Uosokainen. Puolustusministeri Niinistö: Demilitarisoituna Ahvenanmaa muodostaa sotilaallisen tyhjiön. Yle Uutiset, 17.10.2016.

23. P. R. Mansoor. Introduction: Hybrid Warfare in History, in W. Murray, P. R. Mansoor (eds.). Hybrid Warfare: Fighting Complex Opponents from the Ancient World to the Present. New York: Cambridge University Press 2012, p. 1.

24. International Tribunal for the Law of the Sea. Order: Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), 25.05.2019, para. 66.

25. United Nations Convention on the Law of the Sea. Montego Bay 10.12.1982, e.i.f. 16.11.1994.

26. Annex VII Arbitral Tribunal. Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. Russia). Case No. 2019-28.

Featured Image: Kerch Strait Bridge (Wikimedia Commons)

Ocean Governance Topic Week

By Jessica K. Simonds

Seafarers engage in various security practices while transiting the Straits of Hormuz, Bab Al-Mandeb, the Gulf of Aden, and the broader Indian Ocean. How have these practices developed to identify and communicate emerging maritime threats based on how seafarer feedback has been incorporated within strategies that counter piracy? These developments will be understood by drawing on original interview material from the author’s PhD thesis, which featured interactions with seafarers from all ranks of the merchant navy bridge team as well as senior representatives from the protection and indemnity and traditional maritime insurance world.

Maritime governance is a fluid and dynamic process and is open to active development when responding to threats, new and old,  that are prominent hinderances to merchant shipping. The reorientation of this process, from a regime that was constructed to deter Somali-based piracy, is evident in the mechanisms of information sharing and the related dissemination platforms. New threats such as the Houthi rebel insurgency as well as the shift toward identifying unidentified attackers are embedded within literature that  has been developed by the conglomerate of industry actors (such as the Best Management Practice series), as well as the experiences of seafarers who have transited the aptly named High Risk Area (HRA) within the last two years.

Attempting to define an approach to the topic of ocean governance is as broad as addressing the web of interactions that underpin terrestrial global governance. The seas are providing a dynamic and volumetric geography featuring many layers, such as the liquidity of the sea with its own natural resources and politics. The ocean landscape also hosts micro-societies, constituting communities of seafarers aboard vessels that represent mobile beacons of sovereignty. Although this seemingly leaves nothing more than tracks in the sea, through the translation of laws and norms ships are where politics happens as global maritime regimes are legitimized through practice.

The shore-based construction of maritime governance encompasses the formal and informal, structured and temporary, state, non-state, industrial, research, and military interactions. International political regimes have been constructed to preserve these layers. Drawing on the seas as a resource that furthers the goals of land-based civilizations, regimes such as the United Nations Convention on the Law of the Sea (UNCLOS) divides maritime territory as corresponsive to these layers. These include access to the seabed, exclusive rights to marine resources such as fishing stocks and oil, and the implementation of structures such as wind turbines, to name a few.

Normative approaches to ocean governance are important because it sets a frame of reference for shore-based entities to consolidate maritime crimes into a recognizable and translatable legal and policy framework. Yet, it also informs daily practice onboard merchant vessels through structures of routine as set out by frameworks such as the International Ship and Port Security (ISPS) Code and the International Safety Management (ISM) Code. In the effort to counter Somali-based piracy and armed robbery from 2009 to the present day, the Head of Marine Underwriting at Lloyd’s Market Association – Neil Roberts – asserts that it involves the construction of a three-legged stool consistent of “naval missions, communication structures …and vessel-based security strategies.”

This framework has been credited with the successful decline in successful hijackings. Naval missions such as the EU’s Naval Force’s (EUNAVFOR) Operation Atlanta  and the  U.S.-led Combined Maritime Forces (CMF) have patrolled the area since late 2008 (NATO’s Operation Ocean Shield was terminated in December 2016) and have contributed to the deterrence and disruption of piracy, forming one of these legs. Yet the Nautical Institute asserts that it would require “83 helicopter-equipped vessels to provide an effective one-hour response, when most vessels are only able to request help with a 10-minute warning,” reflecting the interdependence of the three-legged approach. Therefore, the practical performance of working with the sea and making critical decisions at the frontline of deterring piracy becomes the responsibility of the seafarers and sailors themselves, who must transform their vessels into a site of defense. This is embedded into practice through implementing practices into the Ship’s Security Plan (SSP) and resonate through seafarer experiences of crossing the “imagined line in the sea” where danger may lie ahead.

Transforming the vessel into a counter-piracy asset is based on the master’s engagement and translation of best management practices (BMP) as well as vessel-specific guidance; working with Privately Contracted Armed Security Personnel (PCASPS) as well as engaging with live information through mechanisms such as email, VHF radio, and MARSAT. Both traditional and mutual P&I insurers consider engagement with BMP as the “very minimum” (Kendall-Marsden, Personal Correspondence, 2018) that they expect seafarers and shipowners to exercise in demonstrating that they have acted with due diligence and prudence in the event of a successful hijacking. Therefore, reflection of how practices have been undertaken is an important element of a claim investigation that can then be used to revise prescribed advice and is one method of feeding back from land to sea.

Methods in which seafarers are given awareness of BMP and the practices it prescribes is through their translation by the master. This reflects the space of transformation for the social as well as physical preparation of a vessel in transit of the HRA. Enhanced watch schedules, re-purposing sub-deck enclaves into citadels, locking doors to ensure single points of entry ,as well as behavioural advice in several stages of a hijacking are just a small representation of the practices that seafarers engage with in complying with BMP. These guidelines have become more specific in both their operational requirements as each edition is released.

Two cadets (who wish to remain anonymous) who trained with Maersk, experienced transit through the HRA in late 2018 and reflected on their experiences of performing BMP. Through participating in multiple drills with the private security team that was deployed on their vessel,  as well as through being tasked with the dressing of the deck with razor wire – each cadet was offered the opportunity to reflect on their performance to officers of a higher rank. These opportunities to engage arise from formal platforms such as meetings as well as informal interactions such as passing comments on shifts and small talk. These opportunities also included platforms for suggesting additional measures they have identified while carrying out the drill that may enhance the vessels robustness against a piratical boarding. One cadet explains that a fellow cadet “suggested greasing poles around the deck” which was then included in their task schedule for the following day. The second cadet explains that he “overheard a naval vessel request information from another vessel as to whether they were carrying private security on VHF Channel 16.” VHF Channel 16 is accessible for anyone with the equipment to pick up a VHF signal, including pirates who could render a vessel vulnerable once they are aware of its security detail. The cadet mentioned this to the master of the vessel who then made contact with MSCHOA to request that naval missions do not request such information via such a public forum.

Drawing expertise from crews is not a process that happens exclusively at sea and confined to the sociology of the vessel, nor is it a formally structured process. The experiences of both master mariners and P&I representatives reflects the dynamism of formal and informal structures of communication from sea to land. As one example of how seafarer knowledge is incorporated in developing best practices and developing the emergence of a broader security regime. This again characterizes ocean governance as a dynamic and rhythmic process that is in a constant state of development open to reorientation and new directions.

Captain Joshi, an experienced master mariner, states that there is enormous value in holding meetings with the crew prior to entering the HRA. Explaining that the rationale for this is not only based on educating them on their roles and responsibilities in transforming the vessel, but in “gathering ideas to feed back to the shipping company – of which his previous company [that he wishes not to be mentioned] offered incentives and competitions for innovative ideas.” The next stage in this chain of communication is supported by Timothy Howse, Vice President for Industry Liaison at Gard P&I Club. Howse explains that best practices as well as accidents are fed back to shipping companies and then to P&I Clubs based on their relevance to diminishing the liability of the shipowner in a particular event. He uses the example of a chef cutting their finger on a knife, where methods pertaining to safety of knife handling or storage may be sought through circulars that can then be fed back to other shipowners and safety can therefore develop based on collective knowledge and sharing of best practices. The same method of communication can be said for developing P&I expertise on the effectiveness of counter-piracy practices, whilst also considering how they relate to how safe they are for  crew to implement.

The value of gathering seafarer expertise pertaining to the operational aspect of maritime governance, especially in security governance, is evident in both the release of the latest edition of the Best Management Practices (BMP5) and the experiences of the two cadets and a second officer in late 2018. BMP5 was released in 2018, seven years following the release of BMP4, and where BMP4 is credited as the most successful version of the series due to the large decline in successful piratical hijackings in the period it covered. The release of BMP5 reflects a turning point in how the seafarer is reimagined in a post-piratical reconfiguration of governance. Firstly, the change in title to generally “Enhance Maritime Security” alongside  the deterrence of piracy signals a broader security remit. Secondly, the content of BMP5 includes a multitude of interwoven additional security measures to address additional risks such as that from “water borne improvised explosive devices (WBEID’s), sea mines and anti-ship missiles,” and within the practices that were developed for the purposes of counterpiracy.

These measures draw on the seafarer as a surveillance agent in capturing information of new measures that are emerging. In their consideration of new measures was the Houthi rebel threat off the coast of Yemen and the Bab al-Mandeb. This is evidenced through including explicit instruction in the reporting of suspicious behaviours to the UKMTO in annexes C&D. These annexes draw on the seafarers’ expertise in recognizing behaviors that are not necessarily normal seafaring practice and therefore allows shore-based actors to learn and respond to new threats that they may have not yet have identified based on a communication structure that has evolved beyond piracy. Thirdly, the language in BMP5 has purposely moved beyond piracy and focuses more on “attackers” and “potential attackers.” Supported by a senior executive at the International Group of P&I (IGP&I) Clubs, the vision for BMP5 is to develop to include broader threats and may evolve to include “cyber threats and migration,” amongst anything else that may become relevant. The purpose for seeking new areas to address is to seek a new purpose for the actors who have constructed the practices, many of which “have built livelihoods around the business of counter piracy,” and is evident in the experiences of seafarers who have performed BMP5.

Officer Wolckzo is a second officer who works onboard tramp vessels, and her role primarily surrounds the planning of the vessel’s passage. This involves deep engagement with navigational instruments and technologies. With little warning as to the determination of her route, engagement with BMP and the HRA can often come last minute. Whilst in transit in late 2018, she was navigating east from the south coast of Sri Lanka and had to rely on a “luckily” solid internet connection to download charts such as the Q6099 Maritime Security Chart depicting the HRA as well as engage with MARSAT to learn of the security environment they would be transiting. At the last minute her vessel took on a security team of four Greek PCASPs and underwent drills and training in performing BMP. Yet – in her experience, the performance of BMP was to serve a dual purpose. Firstly, to meet company and insurance requirements pertaining to protecting the vessel against piracy, but secondly, and practically, to protect the vessel against the use of “Houthi drone vessels in the Bab-Al-Mandeb.” This experience is mirrored by one of the two cadets previously discussed, who claimed that the performance of BMP for piracy seemed very monotonous and rehearsed, whereas the  threat of the “rebels and rockets” was perceived as far more of a threat based on the “sporadic and  indiscriminate nature” and is what motivated adherence to BMP on board his vessel.

Conclusion

In summary, the role of the seafarer in contributing to counter-piracy practice is evident in the gathering of specialized and technical expertise from the merchant vessel. The production of new documents, practices, and procedures that encompass a broader and open direction for managing security reflects that this aspect of maritime governance is rhythmic and dynamic, and where vessel-based knowledge is translated to shore and then translated back again in the form of prescribed best practices. The result of which is an evolution in the role of the seafarer based on the recognized value of their experience in the development of counter-piracy resources such as BMP. The seafarer is now considered both a surveillance agent in the identification of new practices whilst simultaneously retaining the role as an agent in the performance and transformation of a vessel in countering piracy. Based on this argument, the release of BMP6, whenever that may be, promises the inclusion of information and expertise gathered from seafarers. Drawing on the formal and informal platforms seafarers have encountered in the author’s research, this may be through engagement with the annexes C&D in BMP5, as well as informal and momentary engagements with shore-based actors to identify not only new threats, but novel methods of deterrence that will enhance ocean governance.

Jessica Simonds is a third-year International Studies PhD candidate at the School of History, Anthropology, Philosophy and Politics at Queen’s University Belfast, Northern Ireland. She holds an M.A. in Violence, Terrorism and Security and a B.A. in International Politics and Conflict Studies. This work draws on original fieldwork for her PhD thesis as well as part of the concluding arguments regarding the reorientation of maritime security in the Indian Ocean and going beyond piracy. Previously accepted opportunities to present this fieldwork have included conferences with the British International Studies Association (BISA) workshop on the sea (2018), the European International Studies Association workshops and annual conference (2019) and the annual conference of the International Studies Association (2020 – cancelled).

Resources and References

Anon A (2018) Interviewed by Simonds, J.K (11 December 2018)

Anon B (2019) Interviewed by Simonds, J.K (8 January 2019)

Anon C (2018) Interviewed by Simonds, J.K (28 September 2018)

BMP5. (2018). BMP5 – Best Management Practices to Deter Piracy and Enhance Maritime Security in the Red Sea, Gulf of Aden, Indian Ocean and Arabian Sea. (5th ed.). Edinburgh: Witherby Publishing Group.https://doi.org/https://safety4sea.com/wp-content/uploads/2018/06/Intercargo-Best-Management-Practices-to-Deter-Piracy-and-Enhance-Maritime-Security-in-the-Red-Sea-Gulf-of-Aden-Indian-Ocean-and-Arabian-Sea-2018_06.pdf

Benton, L. (2014). A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (2nd ed.). New York, NY: Cambridge University Press

Elden, S. (2013). The Birth of Territory (1st ed.). London: The University of Chicago Press.

Howse, T (2018) Interviewed by Simonds, J.K (24 September 2018)

Jones, S. (2013). Maritime Security Handbook: Coping With Piracy (1st ed.). London: The Nautical Institute.

Joshi, R (2019) Interviewed by Simonds J.K (4 February 2019)

Kendall-Marsden, S (2018) Interviewed by Simonds, J.K (24 September 2018)

Lefebvre, H. (2017). Rhythmanalysis : space, time, and everyday life. London ; New York: Bloomsbury Academic, An Imprint Of Bloomsbury Publishing Pic.

Lefebvre, H. and Nicholson-Smith, D. (2009). The production of space. Malden, Ma ; Oxford: Blackwell.

Roberts, N (2020) Interviewed by Simonds, J.K (2 April 2020)

Ryan, B.J. (2015). Security spheres: A phenomenology of maritime spatial practices. Security Dialogue, 46(6), pp.568–584.

Steinberg, P., & Peters, K. (2015). Wet ontologies, fluid spaces: Giving depth to volume through oceanic thinking. Environment and Planning D: Society and Space, 33(2), 247–264.

Wolckzo, M (2019) Interviewed by Simonds, J.K (9 March 2019)

Featured Image: Maersk Londrina container ship (Wikimedia commons)

Ocean Governance Topic Week

By Michael van Ginkel

Introduction

Sprawling archipelagos and limited government resources make comprehensive maritime domain awareness (MDA) challenging in the Sulu and Celebes Seas. To improve their information gathering capabilities, Malaysia, Indonesia, and the Philippines have invested in advanced geospatial data acquisition technologies like unmanned aerial vehicles (UAV) and satellites. Integrating the resulting datasets into existing databases for an aggregate analysis greatly enhances regional MDA. Incorporating geospatial information provides authorities with a deeper understanding of the Sulu and Celebes Seas’ physical environment and how maleficent actors like insurgent groups, human smugglers, and arms traffickers threaten security. These information assets assist law enforcement agencies in prioritizing the deployment of their limited maritime assets and are some of the more critical capabilities in the regional toolkit for ocean governance.

The Sulu and Celebes Seas

The Sulu and Celebes seas are an important geographical area within Southeast Asia. From an international perspective, a significant amount of all commerce traded between Australia and East Asia is shipped through the area. Locally, the seas form a tri-border area heavily used by the Philippines, Malaysia, and Indonesia for littoral trade. The biodiverse marine environment, combined with a significant reliance on fisheries production by littoral countries, also elevates the area’s importance. As pointed out in the Stable Seas: Sulu and Celebes Seas maritime security report, however, the complex political and geographic environment creates substantial difficulties for law enforcement agencies attempting to monitor the Sulu and Celebes Seas for maritime crime. Faced with kidnapping operations of armed militant groups like Abu Sayaff and illegal, unreported, and unregistered fishing violations by both local fishermen and foreign fishing companies, the three littoral countries have begun relying more on advanced geospatial technologies to enhance their maritime domain awareness. The multi-pronged approach to intelligence gathering allows for more informed responses to the wide range of maritime threats present in the region.

Unmanned Aerial Vehicles

UAVs offer a flexible and cost-effective method of gathering geospatial data. Flying at an altitude of around 400 feet creates high-resolution orthophotography and aerial mapping. Law enforcement agencies also find the UAVs’ ability to provide real-time information and track moving objects highly useful in dealing with dynamic security environments. The countries in this region began developing early versions of UAVs for maritime intelligence, surveillance, and reconnaissance operations in the early 2000s. Indonesia, for instance, began a government-funded program for UAV development in 2004 in order to monitor nontraditional threats like illegal, unregistered, and unreported fishing, as well as trafficking and smuggling.

As technological advances made it easier to access high-quality UAVs, demand rose accordingly. Most recently, the United States Department of Defense provided Vietnam, Indonesia, the Philippines, and Malaysia with a total of 34 Insitu ScanEagle drones to improve their MDA. Their growing popularity is reflected in the global market for UAVs, which Acumen Research and Consulting estimates will achieve a worth of roughly $48.8 billion by 2026. Collecting geospatial data through UAVs has created the opportunity for agencies to expand surveillance coverage of specific areas of interest indicated in intelligence reporting. Increased geospatial surveillance of the Sulu archipelago, for instance, could corroborate reports of Abu Sayyaf insurgent activity on the islands before troops are mobilized for a ground search. 

Satellites 

Satellites provide comprehensive coverage of extensive areas on a consistent basis. Satellites have proven to be an asset through their ability to pierce cloud cover and provide regular region-wide updates across the complex terrain of the Sulu and Celebes Seas. The tropical climate and atmospheric conditions of the tri-border area make satellites all the more useful for regional geospatial data collection.

In September 2018, the Philippines signed an agreement for access to data from the NovaSAR-1 satellite. Equipped with a synthetic-aperture radar (SAR), the NovaSAR-1 can systematically identify vessels and aquaculture systems in Philippine waters. SAR datasets have increasingly been used to identify the location of ships based on their outline, which has proven advantageous in tracking vessels that have turned off their Automatic Identification System transponders. Similarly, Indonesia built its indigenous satellite capabilities through the National Institute of Aeronautics and Space (LAPAN). After collaboratively launching the LAPAN-A1 microsatellite with India, Indonesia created and launched the LAPAN-A2 and LAPAN-A3. The earth observation satellites expand the country’s MDA by incorporating AIS and providing video surveillance. The successful use of microsatellites in Indonesia convinced the government to invest in creating an orbital rocket with the capacity to launch a satellite into low Earth orbit by 2040.

Dataset Integration

Systems designed to integrate geospatial datasets into existing databanks allow experts to conduct a holistic analysis. Overlapping means of ship identification through a combination of AIS and low Earth orbit satellites like SAR provides a system of checks and balances. Merging geospatial data with non-sensor data like human and open-source intelligence means all available information can be comprehensively analyzed for threats. Algorithms tapping into artificial intelligence can then predict imminent illegal or illicit maritime activity by observing real-time data trends.

Algorithm parameters and situational context provided by human experts ensure the analysis is issue-specific and generates actionable results. Within the Sulu and Celebes region, for example, traditional migration patterns between Mindanao in the Philippines and Sabah in Malaysia can confound AI attempts to reliably identify human trafficking and drug smuggling without human guidance.

Conclusion

Innovative means of collecting geospatial datasets allow maritime law enforcement agencies to more comprehensively monitor the maritime domain. When integrated with non-sensor forms of intelligence, geospatial information obtained by UAVs and radar can greatly expand regional coverage. The resulting data analysis conducted through artificial intelligence and system experts then informs governments on illicit and illegal activity. Within the Sulu and Celebes seas, geospatial coverage has reduced the strain placed on limited maritime resources. The bird’s-eye view of open waters, archipelagos, and coastlines means Malaysia, Indonesia, and the Philippines can appropriately allocate law enforcement assets to best counter illicit activity. Given the complex security environment of the Sulu and Celebes seas, the ability to make decisions based on reliable intelligence will significantly impact the success rate of law enforcement operations.