Since our inception as a nation, America has had a special relationship with the concept of maritime neutrality

Time for a Course Change: Maritime Neutrality in the War on Terror

Frank F. Megna

Since our founding, the United States has traditionally been an aggressive supporter of maritime neutrality. From the War of 1812 to the modern day, America has shown that it is willing to fight for the idea of free trade on the high seas. However, the war on terror has presented a new twist on an old relationship. The threat of the use of weapons of mass destruction, and the impracticalities of security in an age of containerization presents a significant threat to domestic security. The same commercial container vessels that deliver our TVs, DVDs and CDs may also be carrying WMDs, and worse, may not even know it. The United States must amend its concept of maritime neutrality so that any merchant vessel that is carrying arms or other war material to be used against the United States should be considered an enemy vessel as defined by international law. This should be the case even if the ship owners and operators are not aware that they are carrying contraband.

The Containerization Revolution and its Unexpected Results

Containerization of cargo changed completely the way the world traded. Where before the process of loading and unloading a ship’s cargo took weeks and used sometimes dozens of longshoremen, pre-packing cargo into containers vessels reduced turn-around times and labor costs dramatically, which in turn lowered transport costs for products to a fraction of the previous prices. While containerization helped goods be delivered faster and cheaper, it also created unforeseen security threats. First, the cargo could no longer be inspected before loading. Containers are almost always packed prior to delivery to the vessel, and the only record of their contents is what they claim to the carrier on the cargo manifest. With vessels capable of carrying thousands of containers, and with sometimes hundreds of boxes being on and off loaded in a port at rates of forty an hour, individual inspections of boxes filled to capacity with cargo is almost impossible.[1] Although new technologies are being developed and implemented to help detect radiological and chemical contraband, in addition to other new port security techniques, the U.S. is effectively unable monitor what comes into the nation.

Current Understandings of Maritime Neutrality

Formalized in 1994, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea is the most modern document on how war at sea is to be fought.[2] Although not a legally binding document itself, it is a restatement of previous agreements along with some modernization. The three excerpts contained below will clearly show the ambiguities in the law regarding containerized vessels and the laws governing armed conflict.

Differences between enemy and neutral merchant vessels

First, what is a neutral? According to the San Remo manual a neutral vessel is any ship from a nation not party to a conflict. A merchant vessel is any vessel that is not a warship, auxiliary, or other government vessel that is engaged in commercial or private use.[3]

In many ways enemy and neutral merchant vessels are treated similarly by the San Remo Manual. Enemy merchant vessels can only be attacked if by their destruction or capture a definite military advantage is gained. Engaging in regular trade is allowed; in so far it does not directly benefit one of the belligerents. Under paragraph 60 of the Manual, activities that can render a merchant vessel a military objective include engaging in belligerent acts on behalf of the enemy or otherwise making an effective contribution to military action.[4]

Actions that can be taken against neutral vessels can be found in paragraph 67, namely that these vessels are not to be attacked unless:

(A) They are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warring they clearly resist visit, search or capture;

(B) Engage in belligerent acts on behalf of the enemy;

(F) Otherwise make an effective contribution to the enemy’s military action. Unless circumstances do not permit, they are to be given a warning, so that they can re-route, off-load, or take other precautions.[5]

Neutral and Enemy Character

The value of a neutral flag can be found in paragraph 113, which states that flying the flag of a neutral party is prima facie evidence of its neutral character. However, while a ships registry can determine neutrality, it is not the only factor. Under paragraph 117, “character can be determined by registration, ownership, charter, or other criteria.”[6]

Search and Visit

A relevant consideration under the law is the right to Search and Visit. Belligerent warships have the right to visit and search merchant vessels when there are reasonable grounds for capture. If accomplishing this at sea is to be deemed impossible or unsafe, the vessel may be diverted to an appropriate area or port.[7]

Although these are concepts that are seemingly logical, they failed to account for the problems presented by containerization, the almost universal way cargo is moved today.

Problems Within the San Remo Framework

I feel containerization creates a problem for the San Remo Manual framework on three levels. Search and visit is virtually impossible on a vessel carrying thousands of containers. Even if the exact whereabouts of the suspect container is known, it may be unreachable. To bring the questionable vessel into a port could play right into the belligerent’s hands since almost all container ports are near to large population centers. Therefore, there is no practical test to determine the difference between a neutral and belligerent container vessel.

Engaging in belligerent acts on behalf of the enemy is grounds to render a merchant vessel a military objective.[8] However, what defines “on behalf?” Most shipping lines have little idea who their current customers are, let alone what their intentions are. If their intentions are to commit a terrorist act, does the vessel become a military objective?

If enemy character can be determined by more than just the flag of the vessel, as shown earlier, then carrying even one container of contraband goods that was chartered to the vessel in question make that containership an enemy vessel. With little in the way of inspection prior to loading, the crew and the shipping company could very well be an enemy merchant vessel and not even know it. However, the vessel may still be carrying contraband or contributing to an enemy’s military action. The San Remo manual, again the leading source for law regarding conflicts at sea, makes no distinction between knowledge or ignorance of a vessel’s cargo by its crew and owner. Determinations of enemy or neutral status should be made solely on what the vessel is carrying.

Recommendations

Neutrality on the high seas cannot exist in its present from due to the impracticalities presented by containerization. If a law cannot be enforced effectively, then it ceases being a law. In order to effectively intercept contraband on the high seas we must amend how neutrality is universally determined. Making a vessel’s flag prima facie evidence of neutrality neglects the current state of today’s maritime industry, where a vessel, its crew and its cargo can all have different countries of origin. Cargo, rather than a vessel’s registry, should determine a ship’s status under the law. Search and Visit should be amended to allow for inspections by an international body at ports of loading. Although inspections by U.S. Customs officials are now being done overseas already, this amendment would give them greater power to investigate suspicious cargoes, help break down power struggles with local authorities, and open up ports that do not allow international inspectors.

Similarly, shipping lines must be held accountable for their actions. Any use of a shipping company’s vessel for terrorist attack should mean that the carrier will be held liable for the damage inflicted.

Although laws themselves will not stop terrorists from attempting to harm innocents, they do send a message. By making changes to the laws of armed conflict we would be sending a clear message to the maritime industry: you are responsible for the actions of your customers, whomever they may be. We live in an era of asymmetrical warfare, in which sovereign nations are increasingly under attack not from other nation-states, but rather groups that have no sovereignty and who do not fight conventionally. We too must fight asymmetrically, and weave economic, political and legal weapons into our arsenal. If we cannot with certainty prevent these groups from obtaining weapons of mass destruction militarily, then we should make an attempt to use international law to cut their main supply line and attack route: the sea. By acknowledging the threat posed by containerships and re-evaluating their status under the law, we can ensure safe, free trade for all maritime nations.

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