Assessment InformationSubject CodeEAP1000.docx

Assessment Information
Subject Code:
EAP1000
Subject Name:
Business communication
Assessment Title:
Communication analysis
Weighting:
30%
Total Marks:
100
Due Date:
Week 6 – 5pm AEST, 1 May
.
Assessment Description
Length: 1000 words
Description: This assessment requires you to analyse two
communication incidents in terms of the communication
process.
Incident 1: Describe a communication incident that was very
frustrating to you, focussing on the communication behaviours

of the parties. This should be an incident which you think can
be analysed in terms of the communication process. Write a 150
word description of the incident and then analyse the reasons
that this communication incident was difficult. You may
describe the role of the sender, encoding of the message, choice
of channel, decoding by receiver, any barriers to successful
communication. You should also consider the opportunities for
feedback. You should use the theoretical information from
Eunson and other communication texts to analyse the situation.
Describe any strategies you or the other/s involved in the
communication incident used to try to overcome the barriers.
Incident 2: Repeat the exercise but, this time, relate a positive,
successful communication incident.
Summary: Compare the two incidents and provide reasons that
one event was positive and the other difficult.
You should reference a minimum of 3 texts in the assignment.
Ensure that you correctly reference the sources in terms of the
referencing guide on the portal.
Feedback: Comments and a mark will be returned to you within
two weeks of submission.
.
.
.
.
.
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(
Assessment
Information
)
Assessment Marking Rubric
Criteria
HD (High Distinction)
85%-100%
DN (Distinction)
75%-84%
CR (Credit)
74%-65%
P (Pass)
50%-64%
NN (Fail)
0%-49%
Score
Description of communication events
30%
· Memorably presents the experiences with extensive, relevant
detail
· Presents the experiences through use of concrete, sensory
language, quotations, and narrative accounts that effectively use
dialogue, action, and pacing.
· Includes factors relating to multiple communication topics eg
communication models, nonverbal communication, interpersonal

communication, intercultural communication.
· Clearly and comprehensively presents the experiences using
extended detail
· Presents the experiences through use of concrete language,
quotations, and accounts that effectively use dialogue and
action.
· Includes factors relating to several communication topics eg
communication models, nonverbal communication, interpersonal
communication, intercultural communication.
· Clearly presents the experiences for the reflection using good
level of detail
· Presents the experiences through use of variety of language
tools.
· Includes factors relating to some communication topics eg
communication models, nonverbal communica-tion,
interpersonal communica-tion, intercultural communica-tion.
· Adequately presents the experiences for the reflection using
reasonable level of detail.
· Presents the experiences through use of basic language tools.
Includes factors relating to at least one communication topic eg
communication models, nonverbal communica-tion,
interpersonal communication, intercultural communication.
· Does not use adequate level of detail in descriptions of
experiences.
· Language is basic and description does not lend itself to
reflection in terms of communication topics.
Analysis and comparison of communication events
50%
· Response demonstrates an in-depth reflection on, and
personaliza-tion of, the theories, concepts, and/or strategies
presented in the course materials to date.
· Viewpoints and interpretations are insightful and well
supported.
· Clear, detailed and appropriate examples are provided, as

applicable.
· Response shows substantial evidence of synthesis of ideas
presented and insights gained throughout the entire course.
Viewpoints and interpretations are and well supported.
· Clear, detailed examples are provided, as applicable.
· Response demonstrates a general reflection on, and
personaliza-tion of, the theories, concepts, and/or strategies
· Viewpoints and interpretations are supported.
· Appropriate examples are provided, as applicable.
· Response demonstrates some reflection on, and
personalization of, the theories, concepts, and/or strategies
· Viewpoints and interpretations are supported with flawed
arguments.
· Examples, when applicable, are not provided or are irrelevant.
· Response demonstrates a lack of reflection on, or personaliza-
tion of, the theories, concepts, and/or strategies presented in the
course materials to date.
· Viewpoints and interpretations are missing, inappropriate,
and/or unsupported.
· Examples, when applicable, are not provided
Language and presentation
20%
· Sentences and paragraphs are well structured and clear.
· Vocabulary is professional, appropriate and extensive
· Grammar, spelling and punctuation are flawless.
· Document professionally presented in terms of KBS guidelines
· Intext referencing and reference list format correct
· Sentences and paragraphs are well structured and clear with
minor exceptions.
· Vocabulary is professional and appropriate.

· Grammar, spelling and punctuation are good.
· . Document professionally presented in terms of KBS
guidelines
· Intext referencing and reference list format correct with minor
exceptions.
· Sentences and paragraphs are mainly well structured
· Vocabulary is comprehend-sive
· Few errors in grammar, spelling and punctuation
with few exceptions
· Intext referencing and reference list format correct with some
errors
· Sentences and paragraphs are readable but with grammatical
errors
· Vocabulary is limited.
with significant exceptions
· Intext referencing and reference list format contains
significant errors
· Meaning is often unclear
· Comments are poorly structured
· Many grammatical, vocabulary and spelling errors
· Document poorly presented and many aspects do not comply
with KBS guidelines
· Intext referencing and reference list format mainly incorrect
·
Comments:
Assignment Mark/Grade:
Total score

Reproduced with permission of the copyright owner. Further
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2011-2012 U.S. Maritime Legislative Developments
Papavizas, Constantine G;Kiern, Lawrence I
Journal of Maritime Law and Commerce; Jul 2013; 44, 3;
ProQuest Research Library
pg. 347

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Defense & Security Analysis
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Canadian Maritime Hubris: The Absence of a
Future Maritime Security Strategy (FMSS)
David Mugridge a
a Center for Foreign Policy Studies , Dalhousie University ,
Halifax, Nova Scotia,
Canada
Published online: 05 Mar 2010.

To cite this article: David Mugridge (2010) Canadian Maritime
Hubris: The Absence of a Future Maritime Security
Strategy (FMSS), Defense & Security Analysis, 26:1, 107-115,
DOI: 10.1080/14751791003658610
To link to this article:
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INTRODUCTION
Canada, by its very geographical, economic and historic nature,
is a maritime nation.1
Her dependence upon the global economy and need to increase
the deterrent capabil-
ity of the Canadian Navy, Coast Guard, CSIS, CBSA and RCMP
to further the cause
of national security, warrants the development of a meaningful
FMSS. Like many of its
allied peer states, Canada has seemingly failed to take the
opportunity to shake off the
shackles of Cold War thought by articulating a new strategy for
the current security
environment. With NATO and her allies predominantly focused
upon the land war in
Afghanistan, the world’s oceans now offer non-state terrorists
and transnational
criminals a benign environment in which to operate. Yet the
USA and Australia have
recently highlighted the impact of maritime crime and terrorism
to national security
and have redirected their maritime forces to address these new
threats.
Is there value in Canada following suit and developing a more
comprehensive

FMSS? This Fresh Perspective will attempt to explore the need
for a maritime security
strategy for the post-9/11 world and then through an objective
review of current
arrangements propose the elements which would see all military
and constabulary arms
contribute more effectively to Canada’s 3-D (Defence,
Diplomacy and Development)
national security policy.2 What emerges indicates that an FMSS
requires a greater
degree of collaborative working, intelligence-sharing and multi-
agency inter-operabil-
ity than is currently the case. It will look to recent foreign
examples that recognized the
need for unequivocal strategic redirection in the face of today’s
irregular threats.
Defense & Security Analysis Vol. 26, No. 1, pp. 107–115,
March 2010
Fresh Perspective
Canadian Maritime Hubris:The
Absence of a Future Maritime
Security Strategy (FMSS)
David Mugridge
Center for Foreign Policy Studies, Dalhousie University,
Halifax, Nova Scotia, Canada
ISSN 1475-1798 print; 1475-1801 online/10/010107-09 © 2010
Taylor & Francis 107
DOI: 10.1080/14751791003658610
26.1 Master.qxp:D&SA 13/2/10 10:09 Page 107
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THE ROOTS OF TODAY’S PROBLEM – HISTORIC
CANADIAN SEA-POWER
Despite recent changes, Canada’s current conception of
maritime security suffers from
a dichotomy, the product of its maritime and political history.3
Maritime security has
become a victim of endless debate over whether it should be
based upon the tenets of a
military or constabulary role. Neither role completely satisfies

Canada’s security
requirements. It illustrates the legacy of a navy obsessed by
escort numbers for foreign
“blue-water” operations and misemployed in home waters rather
than the skill base of
its personnel or its lack of real contribution to joint operations.4
Add to this, Coast
Guard and Federal Police Services that regard inter-operability
with their naval col-
leagues as professional heresy and the situation requires further
attention.
Contemporary threats to national security demand an end to
stovepipe “either/or”
choices, instead they warrant a means of integrating both
traditional international blue
water sea-power and domestic constabulary action into one
credible comprehensive
deterrent capability.
THE MISPLACED PEACE DIVIDEND
As its membership of the G8 and NATO suggests, Canada is a
wealthy nation, which
takes its national security commitments seriously. Like all
western democracies, there
has been considerable public pressure applied to security
budgets to reap the full peace
dividend following the end of the Cold War. So having
recognized the resource limita-
tions imposed upon maritime security, could an integrated
strategy deliver a more
cost-effective solution to future security challenges? The
answer will depend on how
much unnecessary duplication is identified and what co-
operative inter-agency work
can be achieved within existing financial constraints. What can

be argued is that more
effective deterrence can be achieved from the existing security
budget than is the case
currently.
WHY ADOPT AN FMSS?
The global economy is predominantly a maritime phenomenon
in which the life-blood
of commerce is merchant shipping.5 A key factor is that unless
they can freely use the
world’s oceans then any interference becomes costly, irksome
and potentially damaging
to the globalized trading system.6 Like all maritime nations,
Canada’s vital economic
interests are best served by stability and freedom in oceanic
trade. Since the end of the
Cold War the upsurge in piracy and organized crime has seen
these oceans become yet
more hazardous.
IS AN FMSS NECESSARY?
Current security challenges and our reliance upon maritime
trade all indicate why a
new strategy, as opposed to ad hoc arrangements, is necessary
to provide a counter to
maritime terrorism and organized crime.
108 • DAV I D MU G R I D G E
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Maltz defined strategy:
As the science or art of combining and employing the means of
war in designing,
planning, and directing large military movements and operations
in support of
Grand-Strategy or Policy.7
National security is an aspect of political leadership, perhaps
the most demanding of
those relationships that exist between society and its chosen
government. It demands
vision and clarity from those who govern and a disciplined

respect by those who execute
it. It is the process by which those charged with society’s
security discharge their
political masters’ policy objectives. So, by definition, is the
absence of strategy a political
failure both of elected politicians and their senior security
staff? Within the maritime
domain this failure has led to “sea-blindness” developing
throughout important
sections of Canadian society and marks a clear break in
Clausewitz’s trinity.8
THE NATURE OF THE THREAT HAS CHANGED
Few commentators would argue the threats of organized crime
and terrorism have not
catapulted maritime security into the public arena; a situation
which illustrates an inter-
national failure in the management of maritime security.
Unfortunately it has coincided
with NATO’s re-adaptation of the Nineteenth Century’s “Great
Game”,9 so the very
generals and politicians who previously dismissed maritime
security as an irrelevance
now disingenuously argue that the security resource pot is near
empty because one
further push in Afghanistan could quell the Taliban. It is little
wonder events in India,
Somalia, Nigeria and Indonesia have created an uneasy
international cadre of politi-
cians and their senior military advisers. Whether or not failing
maritime security is a
significant threat or a spasmodic irritation, most experts agree it
is far from being just a
naval or constabulary problem. Instead it demands a multi-
agency response born of

united and co-ordinated government.10
MARITIME TERRORISM – AN ATROCITY
WAITING TO HAPPEN
The escalating tide of contemporary maritime terrorism has
been deemed irrelevant by
the land-centric proponents of engaging a stateless enemy in a
distant war. These
campaigns have not robbed terrorists of initiative nor have they
lessened their ability to
fight the “infidels”. Since 9/11, events in the UK and Spain
have provided apposite
examples in states being stung once the hornets’ nest of
“franchise terrorism” has been
stirred. Many terrorist groups have proven their ability to
launch attacks within the
maritime domain, with recent events in Mumbai showing the
relative ease with which
terrorists can deliver their particular brand of violence from the
sea.11
Although not probable, the possibility of a maritime-based
terrorist attack on North
America can only be discounted by the naive or the innocent.
An atrocity orchestrated
from the sea has the potential for an even bigger disruption of
global commerce or a
greater physical impact than the events of 9/11. With many
academic commentators
CA N A D I A N MA R I T I M E HU B R I S • 109
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openly discussing the apocalyptic combination of non-state
terrorists, coastal centers of
population and a dirty bomb, who could discount that the
preferred delivery vehicle,
will be a vessel?12
ORGANIZED CRIME - PIRACY AND SMUGGLING
The sheer scale and diversity of organized criminal activity
within the maritime domain
is impossible to quantify as it is terrorism’s publicity-adverse

sibling. There are many
positive aspects of globalization that have allowed organized
crime to flourish and
expand at a pace similar to legitimate world trade. Murphy
argued activities such as
piracy should be seen as examples of organized crime.13 As
crime becomes more sophis-
ticated, so the need to become more organized grows, as does
the necessity to corrupt
officialdom or to operate within failed states in a manner
similar to their terrorist
brethren. Williams saw the realities of the modern world:
globalization, failed or failing
states, internet and international finance all contributing to the
rise of organized crime
by providing additional tools for them to challenge the power of
the nation state and
international law.14
MARITIME TERRORISM AND ORGANIZED CRIME –
COLLABORATION, CO-OPERATION OR NEXUS
Murphy saw problems in using the word “nexus” when
discussing the realities of the
relationship between terrorists and criminals.15 Like so many
contemporary journalis-
tic terms, it is evocative and superficial, yet in its way it has
focused considerable
academic scrutiny upon these evil twins of the maritime domain.
Irrespective of
whether their relationship is one of collaboration, co-operation
or co-ordination, unless
the international community can act in concert then the
practitioners of terror and
crime will benefit from the division that exists at both national
and international levels.

The irony that those who threaten maritime security
unashamedly operate together for
mutual benefit is a lesson for the many disparate agencies
ranged against them. This in
turn demonstrates the philosophical journey the international
community has to
undertake if it is to adopt the necessarily comprehensive
approach required to succeed
against those who threaten our security.
WHAT TO DO – OR WHAT NOT TO DO?
There is now considerable evidence that within the international
community there are
states that are aware of the real threats to maritime security and
those who consider it
an irrelevant sideshow to the real fight in the Afghan mountains
or streets of Iraq. As
Haydon and others wrote over a decade ago, the maritime
domain is too important to
look after itself.16 It is appropriate to examine the work of
those nations who are in
the process of change, perhaps illustrating the very process
which Canada should
undertake if she is to deliver a more effective response to the
current strategic environ-
ment.
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THE UNITED STATES OF AMERICA
The recently published US maritime strategy – A Co-operative
Strategy for 21st Century
Seapower – is an authoritative and comprehensive review of a
national response to the
potential issues surrounding maritime security. It articulates the
need for change given
that the previous maritime strategy pre-dated the fall of the
Berlin Wall and reflected
the bipolar world of the Cold War. As a policy document, it
links the US Navy, Marine
Corps and Coast Guard into a symbiotic relationship which
provides a multi-layered

defense of the US homeland. It has identified the types of
missions required to preserve
peace and good order in the support of global prosperity as well
as provide a framework
for international collaboration. It is through this collective
activity that national and
international objectives to counter the threats of WMD
proliferation, smuggling, piracy
and terrorism will be dealt with.
AUSTRALIA
The Australian Defence White Paper (2009) is perhaps one of
the clearest national
statements outlining the need for a comprehensive maritime
security strategy. The real
significance for Canada is the apparent similarities in security
strategy requirements
and current activities of the two countries. In fact, it can be
argued that Australia is
perhaps the closest peer state to Canada in its security
requirements. The paper is
focused upon joint operations but identifies the need for a
significant upgrade in the
national approach to maritime security, with considerable
emphasis placed upon co-
ordination of all aspects of government to deliver national
security:
The Australian Defence Force (ADF) should have a force
structure that will
provide a credible deterrent and a capacity to protect Australia
and our interests.
This leads many to argue that defense should be considered in a
whole-of-govern-
ment security context that includes aid programs and diplomacy,

and contributions
by non-government organisations.17
This is perhaps the least ambiguous articulation by a foreign
state of the 3-D trinity,
which Canada developed for its national security model, but in
this instance there will
be real investment in the maritime and amphibious capabilities
required to deliver it.
Australian national security and its maritime sub-set are very
much whole-government
products.
UNITED KINGDOM
Given the success of both Australia and the USA in bringing
together the disparate
organizations charged with delivering maritime security, the UK
offers a disappointing
example of a resource-based turf war which heightens inter-
service rivalries ahead of
expected security spending cuts. Here single service rhetoric
conspicuously fails to
deliver a viable approach to maritime security. As Houlberg
wrote in 2007, it is this
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long-standing failure of government to respond appropriately
that illustrates just how
far the UK security culture has to go before real progress can be
made:
UK maritime homeland security is inadequate to meet this
threat, despite an
already considerable RN contribution. It consists of a patchwork
of disjointed
organisations that are under-resourced and ineffectively
coordinated so that a
maritime terrorist attack is no longer a matter of “if” but
“when”.18
According to the House of Commons Defence Select
Committee’s Report (2009), the

Future Maritime Operational Concept (2007) and Future Naval
Operational Concept
(2008) have contributed little to the effective security of the
UK. The Committee called
for “a more pro-active approach to maritime security through
the development of a
deterrent capability to ward off attacks on civilian targets”.19 It
was highly critical of
Ministers that there was “no single organisation with overall
responsibility for the
security of Britain’s coastal waters”.20 These apposite rebukes
condemn the pervasive
myopic culture across Whitehall Departments.
FMSS FOR CANADA
Canada has achieved far more in recognizing the real nature and
complexity of
maritime security than many other western states. In the
absence of a US or Australian
document which provides the under-pinning philosophy behind
national maritime
security, Transport Canada has become the lead government
department for co-ordi-
nating government activity. Their understanding of the issue is
concisely recorded
within Kinney’s recent contribution to Canadian Naval
Review:21 “Marine Security in
Canada is a complex, multi-faceted activity that has taken a
renewed sense of purpose
in recent years to address new threats in an evolving security
environment.”22 It is clear
that Canada has responded well to the stimulus of 9/11 by
initiating a number of
measures to ensure compliance with ISPS Code (2002) and has
established a cross-

government working group to co-ordinate federal marine
security issues. Here is the
defensive architecture being put in place to address many of the
likely security issues
which may affect the Canadian homeland, but there others that
need to be addressed.
The failure of the JSS project, lack of amphibious capability,
incoherent naval or coast
guard tasking23 and wider organizational interaction24 all leave
questions as to how
effective these current arrangements are in the face of today’s
strategic environment.
QUESTIONS OUTSTANDING
1. How influential is the Inter-departmental Marine Security
Working Group in
shaping “planned” or “reactive” foreign deployments of major
navy and coast
guard units?
2. Which government departments collectively establish the
strategic priorities for
intelligence gathering, defense diplomacy and international
development oppor-
tunities for deployed navy and coast guard units?
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3. Which government departments are consulted and approve
deployed Canadian
Force Rules of Engagement, Mission Objectives or Strategic
Effects?
4. How do the current intelligence sharing arrangements
between those government
departments involved in maritime security transcend national
and international
caveats?
5. What level of operational command and/or control do the
Marine Security Oper-
ations Centres have over Federal Government assets involved in
delivering

Canadian maritime security?
WHAT WOULD A DRAFT FMSS FOR CANADA CONTAIN?
Like both the US and Australia, any future strategy would
require a security review
leading to multi-agency agreement and a joint vision of the
future. The mechanics
would have to transcend all areas of operations, dictate future
operational direction and
in turn monitor a more comprehensive approach to maritime
security. It would:
• Provide for a layered defense of Canada and its international
interests.
• Review current force structure and look for a future coherent
balance of maritime
forces that can undertake a full suite of missions both
domestically and interna-
tionally.
• Capacity build through domestic and foreign training
initiatives, bilateral/inter-
national agreements to counter international threats to maritime
security.
• Recognize and co-ordinate maritime security as a sub-set of 3-
D approach to
delivering national security.
• Regularly review future activities of those who threaten
maritime security and
amend national strategy accordingly.
• Consult with and educate Canadians as to the importance of

maritime security.
• Establish a series of national partnerships with relevant non-
governmental bodies
and organizations to achieve national support for maritime
security policies.
• Look to enshrine humanitarian and disaster relief within the
mission sets of all
deployable naval and coast guard units.
• Enforce and uphold International Law.
• Maintain sufficient high readiness Navy and Coast Guard
vessels to respond to
emergent foreign threats or events.
CONCLUSION
The government must have an overall plan. This plan must
cover not just the
security measures and military operations. It must include all
political, social,
economic, administration, police and other measures which have
a bearing.25
Twenty years after the fall of the Berlin Wall, Canada faces a
much-changed strategic
environment. The conventional military and nuclear threats of
the Soviet Bloc have
receded only to be replaced by the disparate and asymmetric.26
These have been
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fashioned by the end of the bi-polar Cold War, global financial
crises and the concur-
rent rise of non-state terrorism and organized crime. Canada’s
response to this security
dilemma has been to focus upon coalition based land-centered
operations, the mainte-
nance of a blue water approach to naval matters,27 the
establishment of cross
government working groups28 and a conservative application of
international law.29

Despite the co-ordinating work of Transport Canada, there is
credible evidence to
suggest that Canadian maritime security lacks the necessary
financial and political
resources to further develop effective offensive or defensive
multi-agency coherence as
a counter to today’s threats. It is now time for Canada to
respond with a FMSS, which
fully integrates national government and delivers effective
maritime security for the
twenty-first century in a manner similar to that of Australia and
USA. Their approaches
recognize the importance of maritime forces to a 3-D security
policy. Unfortunately
this is merely advocated but not politically resourced in Canada.
It would be a timely
exercise to acquaint politicians with the functional trinity of
maritime forces: diplo-
matic, military and constabulary.30
Ottawa must look to remedy the failure of JSS, the absence of
an amphibious capa-
bility, the Coast guard’s lack of armed enforcement capability
and a strengthening of
the joint ethos amongst all contributors to maritime security. An
immediate national
review of security is required so when Canada pulls back from
combat operations in
Afghanistan in 2011, she will be ready to face today’s security
challenges not those of
the Cold War or costly wars of occupation.
NOTES
1. Bullock, Chris, A Canadian Naval Strategy for the 21st
Century:Constabulary Force or Interna-

tional Player? Ottawa: Conference of Defence Associations
Institute, 2000 p. 1.
2. Sloan, Elinor, Security and Defence in the Terrorist Era,
Montreal: McGill-Queen’s University
Press, 2005, p. 141.
3. Hansen, Kenneth, The Canadian Conception of Sea Power,
Halifax: CFPS, 2008.
4. Lack of JSS and Amphibious capability.
5. Peter Haydon et al. (eds) The Changing Strategic Importance
of International Shipping, Centre
for Foreign Policy Studies, Dalhousie University, Halifax,
Canada, 1997, p xiii.
6. USN Maritime Strategy Fact-sheet, 2007.
7. Maltz, Richard, The Epistemology of Strategy, Carlisle, PA:
US Army War College, 2009, p. 10.
8. The People, their Government and their Military.
9. Ewence, Martin, “Today’s Great Game: What is the Royal
Navy Doing in High Asia?”,
Naval Review, February 2009, Cricklewood: Rustin Clark, pp.
23–25.
10. Lehr, Peter and Lehmann, Hendrick, “Somalia: Pirates’ New
Paradise”, in Peter Lehr,
Violence at Sea, London: Routledge, 2007, pp.17–20.
11. Sloggett, Dave, “The Lessons of Mumbai for the Maritime
Defence of the United
Kingdom”, Naval Review, February 2009, Cricklewood: Rustin
Clark, 2009, pp. 7–12.
12. Avis, Peter, Comparing National Security Approaches to
Maritime Security in the Post 9/11 Era.

Halifax: CFPS, 2005, p. 7.
13. Murphy, Martin, Small Boats, Weak States, Dirty Money,
New York: Columbia University
Press, 2009, p. 5.
14. Williams, Phil, “Terrorism and Trans-national Crime: A
Global Perspective”, in Charters
and Walker, After 9/11:Terrorism and Crime in a Globalized
World, Halifax: CFPS, 2005, p. 22.
15. Murphy, Martin, op.cit., p. 380.
16. Peter Haydon et al., op.cit., p. xiv.
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17. Government of Australia, Defence White Paper, Canberra,
Ministry of Defence, 2009, p. 18.
18. Houlberg, Kenneth, Does the Threat from International
Terrorism Require the Royal Navy to
Contribute More to UK Homeland Security and, if so, Would
This Require a Change of Strategy?
Shrivenham: UKDA, 2007, p. 1.
19. UK House of Commons Defence Select Committee Report,
May 2009, p. 19.
20. Ibid., p. 17.
21. Kinney, Laureen, “Canada’s Maritime Security”, Canadian
Naval Review, Winter 2009,
Halifax: CFPS 2009, pp. 15–19.
22. Ibid., p. 15.
23. Frigates undertaking fishery protection patrols and CG
vessels that lack any enforcement or
intelligence-gathering capability
24. CG vessels that lack any enforcement or intelligence-
gathering capability.
25. Thompson, Robert, Defeating Communist Insurgency,
London: Chatto and Windus, 1966,
p. 55.
26. Ritchie, Chris, in Jack McCaffrie, Positioning Navies for the
Future, Canberra: Australia Sea

Power Centre, 2004, pp. 18–19.
27. Bullock, Chris, A Canadian Naval Strategy for the 21st
Century:Constabulary Force or Interna-
tional Player? Ottawa: Conference of Defence Associations
Institute, 2000, p. 5.
28. Kinney, Laureen, op.cit, p. 16.
29. Koring, Paul, “International Maritime Obligations”, in
Globe & Mail, 1 May 2009.
30. Speller, Ian, “Naval Warfare”, in Understanding Modern
Warfare, Cambridge: Cambridge
University Press, 2008, p. 170.
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Chapter 14
‘Terrorism’ as a Central Theme
in the Evolution of Maritime Operations
Law Since 11 September 2011
Rob McLaughlin
Contents
14.1
Introduction............................................................................
....................................... 391
14.2 Terrorism from the Sea
...............................................................................................
. 393
14.2.1 Threats
...............................................................................................
.............. 393
14.2.2 Some Legal Responses
................................................................................... 394
14.3 Terrorism at Sea
...............................................................................................
............ 397
14.3.1 Threats
...............................................................................................
.............. 397
................................................................................... 397
14.4 Terrorism Supported from the Sea
.............................................................................. 399
14.4.1 Threats

...............................................................................................
.............. 399
................................................................................... 400
14.5 Terrorist Groups as Subjects Within the Law of Naval
Warfare............................... 403
14.6 Conclusion
...............................................................................................
..................... 405
References..............................................................................
.................................................. 406
14.1 Introduction
As DP O’Connell noted in a seminal 1970 article (‘International
Law of
Contemporary Naval Operations’1) and in his equally seminal
1975 book The
Influence of Law on Sea Power, maritime operations law is a
constantly evolving
discipline in both theory and practice—with law often lagging
practice by a
noticeable margin.One consequence of the (then) ‘Dreadnought
era’ focus of much
of the law of naval warfare was that ‘[I]f international law
appears to the naval officer
R. McLaughlin (&)
Australian National University, Canberra, ACT, Australia
e-mail: [email protected]
1 O’Connell 1970.
M.N. Schmitt and L. Arimatsu (eds.), Yearbook of International
Humanitarian Law
Volume 14, 2011, DOI: 10.1007/978-90-6704-855-2_14,

� T.M.C. ASSER PRESS, The Hague, The Netherlands, and the
authors 2012
391
a tangle of uncertainties in which he is likely to be ensnared,
the technology of naval
warfare induces in the legal theorists perplexity and dismay’.2
However, for all of the
sometimes haphazard and ‘catch-up’ nature of the relationship
between law and
practice in maritime operations, there are clearly a number of
fundamental, norma-
tive, defining themes which have tended to play the dominant
role in shaping and
informing the evolution of maritime operations law over the last
several decades (or,
indeed, centuries). Pinpointing which themes come within this
category is of course a
matter for debate, but it would seem reasonably safe to assert
that an indication as to
their form and colour is evident in paradigmatic themes such as
resource exploitation,
maritime claims, technological advance, and freedom of
navigation.
Periodically, however, a less traditional maritime theme
achieves temporarily
heightened influence over this process of evolution. I believe
that the decade since
11 September 2001 is such a period—one in which the theme of
‘terrorism’ has
played a significant and overt shaping and influencing role
within this evolution.

This is not to say that this decade’s preoccupation with
‘terrorism law’ is something
unique to the maritime operations sphere, for clearly, terrorism
has functioned as a
paradigm-defining factor in relation to a very broad legal
spectrum—aviation,
technology proliferation, and finance to cite but three. Nor is it
to say that the more
traditionally dominant themes have not also influenced
evolution—indeed, the
ROKS Cheonan incident,3 and ongoing tensions related to
resource security and
maritime claims in the East China and South China Sea areas,4
are stark reminders
of the continuing claim of these long-term fundamental themes
to normative
influence. But it is very clear that the issue of terrorism has
noticeably agitated the
direction and development of maritime operations law over this
last decade—or
certainly as compared to its more staccato claim to influence
within the maritime
domain over the last 60 years as a whole.5
My aim in this short article is to briefly examine the ways in
which I believe this
focus upon terrorism has influenced, or is beginning to
influence, the development of
maritime operations law. To do this, I shall focus upon four
sub-themes within the
overall terrorism chapeau: terrorism from the sea; terrorism at
sea; terrorism
supported from the sea; and terrorist groups as subjects within
the Law of Naval
Warfare. Within each of the first three sections, I will briefly
outline some examples

of the types of threats emanating from this particular
manifestation of terrorism, and
then offer a short account of some (but by no means all) of the
legal responses
prompted by these threats. In relation to the last sub-theme, I
will make some general
comments only, as I believe that critical aspects of this debate
are still in their infancy,
making it difficult (at this stage) to sensibly point to a trending
legal response.
2 O’Connell 1975, at p. xiii.
3 See, Joint Civilian-Military Investigation Group 2010.
4 Such as the ongoing dispute between China and Japan over
fisheries enforcement in the
Senkaku Islands region—see, for example, the September 2010
incident reported in The
Guardian 2010.
5 See, for example, Greenberg et al. 2006.
392 R. McLaughlin
14.2 Terrorism from the Sea
14.2.1 Threats
Terrorism from the sea is not a post-11 September 2001
phenomenon. The threat of
terrorism from the sea is anchored in the simple fact that it has
long been, and in
many aspects still is, relatively easy to gain access to a State
from the sea, or to
import prohibited material (such as weapons or explosives) via
the sea. Port,

passenger, cargo, and container security is much improved over
the last decade, but
the ability to secrete material amongst bulk cargoes, and the
ease of approach and
access to ports or other landing points enjoyed by shipping, still
far exceeds that
available to aviation or land transport. Indeed, in many
advanced ports, it is still the
case that less than ten per cent of containers are examined upon
unload—for
example, by x-ray or opening and physical inspection. Terrorist
threats from the sea
include use of vessels as obstacles (e.g. sinking a vessel in a
port chokepoint); as a
kinetic force (such as a ram) to damage other vessels or port
infrastructure; as (less
achievably) ‘floating bombs’ aimed at igniting a flammable
cargo; or as transport
systems for other forms of explosive cargo (e.g. a ‘dirty bomb’
secreted within a
shipping container).6 Another manifestation of this phenomenon
is shipborne
improvised explosive devices used against stationary or
navigationally constrained
ships in port areas—the seminal example being the attack on
USS Cole in Aden
Harbour (Yemen) on 12 October 2000.7
A second—intricately related—type of threat posed by terrorism
from the sea
relates to the often porous nature of maritime borders and entry
points. The
Mumbai terrorist attack in November 2008, for example, was
perpetrated by ter-
rorists who entered Mumbai from the sea, utilising small
dinghies to land from a

mothership.8 But again, this is a revived, as opposed to a new,
threat: A decade
prior to the Mumbai attacks, 150 Sri Lankan Tamil Tiger
fighters conducted a
sea-borne landing in the Maldives (in November 1988), defeated
the local militia,
6 See, for example: US Department of Homeland Security—
Policy 2004; US General
Accounting Office—Reports 2002; US General Accounting
Office—Testimony 2002; US
Government Accountability Office 2010; Fritelli 2003, 2005;
Forbes 2003, pp. 27–28 (noting that
it is no simple task to explode an LNG tanker, or to fire an oil
cargo); Allison 2001; The
Economist 2001; Council on Foreign Relations 2006; Schoen
2004; Richardson 2004; McNaught
2005.
7 US Department of Defence 2001.
8 Rahman 2008: ‘Eyewitnesses have provided accounts of how
the gunmen involved in
yesterday’s Mumbai massacre landed undetected in the heart of
the port city’s bustling downtown
area. At least some of the terrorists, said to be in their early
twenties and armed with AK-47
assault rifles and hand grenades, landed on the coast of
Mumbai’s commercial and entertainment
neighbourhood in light and fast Gemini boats, powered by small
outboard motors. These
inflatable dinghies, according to Indian navy sources quoted by
the Headlines Today TV news
channel, were launched from a larger vessel, the MV Alfa,
which arrived near Mumbai sometime
yesterday and anchored offshore a distance from India’s
financial capital.’

14 ‘Terrorism’ as a Central Theme in the Evolution of Maritime
Operations 393
and fled only after the Government of Maldives urgently sought,
and gained,
intervention by Indian forces (Operation Cactus).9
Legal responses to the threat of terrorism from the sea have, in
my view, been the
most comprehensive and definitive sphere of advance in relation
to terrorism and
maritime operations law. The first, and primary, legal response
has been the
International Ship and Port Facility Security (ISPS) Code,
negotiated under the
auspices of the International Maritime Organisation (IMO). The
IMO has long
made the linkage between the ISPS Code and the terrorist
attacks of 11 September
2001 explicit: ‘The International Ship and Port Facility Security
Code (ISPS
Code—adopted 12 December 2002) is a comprehensive set of
measures to
enhance the security of ships and port facilities, developed in
response to the
perceived threats to ships and port facilities in the wake of the
9/11 attacks in the
United States’.10 The ISPS Code suite of measures
(implemented as Chapter XI-2
of the SOLAS Convention 1974) are squarely aimed at
enhancing port security,
gathering and sharing information at an early stage—or at least

early enough,
hopefully, to allow for planning and response prior to a threat
vessel entering
port—and responding in a co-ordinated manner to security
threats once threat
vessels, cargoes, or people do enter a port. The Australian
Maritime Transport and
Offshore Facilities Security Act (2003) (as one example of
national responses to
and implementation of the ISPS Code) is explicit as to the
priority for ensuring an
adequate legal response to terrorism from the sea: s:3(4)
provides that
The maritime security outcomes [expected of the Act] are as
follows:
(a) Australia’s obligations under Chapter XI 2 of the SOLAS
Convention and the
ISPS Code, including those with regard to the rights, freedoms
and welfare of
seafarers, are met;
(b) the vulnerability to terrorist attack of Australian ships, ports
and other ships
within Australia, and offshore facilities is reduced without
undue disruption to
trade;
(c) the risk that maritime transport or offshore facilities are
used to facilitate
terrorist or other unlawful activities is reduced;
(d) security information is communicated effectively among
maritime industry
participants and government agencies with security

responsibilities for mari-
time transport and offshore facilities.
9 Sakhuja 2002, at p. 3. On Operation Cactus, see, for example,
Indian Navy (1988); Rakshak
(2011).
10 At
http://www.imo.org/OurWork/Security/Instruments/Pages/ISPS
Code.aspx. For a general
background to, and analysis of, the key elements of the ISPS
Code, see for example, Australian
Government—Department of Infrastructure and Transport 2010.
394 R. McLaughlin
http://www.imo.org/OurWork/Security/Instruments/Pages/ISPS
Code.aspx
Domestic implementation of the ISPS Code has been relatively
high on the
agenda of the Proliferation Security Initiative (PSI) (which has
sponsored infor-
mation sharing and capability development in the area) and has
dovetailed closely
with the associated Container Security Initiative (CSI).11
The ISPS Code has also generated or enhanced a range of
subsidiary or related
maritime security threat monitoring and assessment tools—from
the Vessel Long
Range Identification and Tracking System (LRIT),12 through to
Australia’s own
initially controversial declaration in December 2004 of an
‘Australian Maritime
Identification System’ (AMIS)—originally described as a

‘Maritime Identification
Zone’.13 The initial proclamation of the AMIS offers a case
study in the potential
for unwitting conceptual over-reach and associated
misunderstanding when
dealing with the highly sensitive juncture between port state
security, terrorism,
and perceived intrusions upon both High Seas freedoms and
States’ rights in
EEZs. The initial confusion as to whether the Australian
government had claimed
an authority to interdict, for the purposes of identification, out
to 1000 nautical
miles from the Australian coast, was quickly clarified: As Klein
records, the
furore surrounding the initial MIZ/AMIS announcement quickly
led to ‘Australia
reformulat[ing] the AMIS so that ships [would] now be
requested to provide
information on a wholly voluntary basis and the AMIS [would]
be based on
cooperative international arrangements, particularly with
neighbouring states’.14
Additionally, questions as to the legal capacity of Australia (or
any State) to
assert a right to collect information from vessels whilst
transiting through other
States’ EEZs remain.15 In my view, this nascent trend in
terrorism-focussed,
security-based outreach into international waters runs the risk
of re-invigorating
and re-casting ongoing debates as to the balances struck
between coastal state
security and freedom of navigation. It also presages a
significant additional

complication in so far as traditional proponents for freedom of
navigation (and
against the extension of additional security authorisations into
international
waters) may undermine the integrity of their long-held and
principled positions
by advocating such extensions in relation to the highly abused
and contextually
amorphous concept of terrorism.
A second legal response to the threat of terrorism from the
sea—evident
most particularly in evolving national legal regimes—has been
to address the
11 See, for example, Bateman 2007, at pp. 241–258.
12 See, for example, IMO Circular, Guidance on the
Implementation of the LRIT System,
MSC.1/Circ. 1256 (5 June 2008) available at
http://www.infrastructure.gov.au/transport/security/
maritime/isps/circulars/pdf/1256.pdf (Last Accessed 30
December 2011).
13 John Howard, Prime Minister of Australia, ‘Strengthening
Offshore Maritime Security’ (Press
Release, 15 December 2004) reported by the ABC at McGrath
2004.
14 See, for example, Klein 2006.
15 Rothwell and Stephens 2010, at p. 96.
Operations 395
http://www.infrastructure.gov.au/transport/security/maritime/isp
s/circulars/pdf/1256.pdf
s/circulars/pdf/1256.pdf

challenge of force protection for warships in ports, or whilst
transiting in the
navigationally confined waters that generally attend entry and
exit from ports
and anchorages.16 A perhaps little noticed, but increasingly
important, legal
response to this challenge is the concept of Controlled Access
Zones (CAZ).
Such zones—in essence bubbles of waterspace and airspace
surrounding a
warship alongside, at anchor, or on transit into/out of port, from
which unau-
thorised vessels and aircraft are excluded—have been brought
into effect, or are
being considered, by a number of States. This is, in my view, a
sound, sensible,
and contextually sensitive response to the almost overwhelming
attraction of a
navigationally constrained warship as a target for terrorist
attack. There are, of
course, challenges: How big is the CAZ; how much interference
with other
shipping in a busy port is warranted; is there some built in
discretion for the
warship to threat assess and allow close transits, and so on. But
each of these
practical concerns is manageable. What is of greater concern—
not because it is
inherently problematic from either a legal or operational
perspective, but because
it will require much greater patience and precision in
negotiation and explanation
(given existing sensitivities regarding any perceived
infringement of coastal State

Territorial Sea sovereignty and High Seas freedoms)—is the
transformation of
extensive CAZs into permanent exclusion zones around
warships underway. The
US, for example, has extended authority for such security zones
into their
EEZ,17 and a number of States claim the right to declare
‘warning zones’ around
warships on the High Seas—ostensibly to discourage approach
so as to de-clutter
the surface and air picture in order to simplify the threat
assessment process. But
there is a fine line to be trod between such ubiquitous ‘warning
zones’, and more
geographically and jurisdictionally constrained CAZs or
security zones.18 The
negotiating history of the INCSEA agreement perhaps offers
some insight into
the difficulties that will attend any attempt to universalise this
particular force
protection measure.
16 For examples, see: (Canada) Order Designating Controlled
Access Zones (Halifax, Esquimalt
and Nanoose Harbours) 19 December 2002 at
http://gazette.gc.ca/archives/p1/2003/2003-01-11/
html/notice-avis-eng.html#i7; (Australia) Maritime Transport
and Offshore Facilities Security
Act 2003 (Commonwealth) available at
http://www.comlaw.gov.au/Details/C2011C00831, and
accompanying Maritime Transport and Offshore Facilities
Security Regulations 2003 (Com-
monwealth), available at
http://www.comlaw.gov.au/Details/F2005C00624; Explanatory
State-
ment to the Maritime Transport Security Regulations 2003

(Commonwealth) at http://
www.austlii.edu.au/au/legis/cth/num_reg_es/mtsr20032003n366
481.html; (US) Maritime Trans-
portation Security Act 2002, sec 101 ‘findings’: ‘(7) Ports are
often very open and exposed and
are susceptible to large scale acts of terrorism that could cause
a large loss of life or economic
disruption’, available at
http://www.tsa.gov/assets/pdf/MTSA.pdf.
17 Jacques et al. 2006, at Chap. 1.
18 Jacques et al. 2006, at Chaps. 1 and 2.
396 R. McLaughlin
http://gazette.gc.ca/archives/p1/2003/2003-01-11/html/notice-
avis-eng.html#i7
http://gazette.gc.ca/archives/p1/2003/2003-01-11/html/notice-
avis-eng.html#i7
http://www.comlaw.gov.au/Details/C2011C00831
http://www.comlaw.gov.au/Details/F2005C00624
http://www.austlii.edu.au/au/legis/cth/num_reg_es/mtsr2003200
3n366481.html
http://www.austlii.edu.au/au/legis/cth/num_reg_es/mtsr2003200
3n366481.html
http://www.tsa.gov/assets/pdf/MTSA.pdf
http://dx.doi.org/10.1007/978-90-6704-855-2_1
http://dx.doi.org/10.1007/978-90-6704-855-2_1
http://dx.doi.org/10.1007/978-90-6704-855-2_2
14.3 Terrorism at Sea
14.3.1 Threats
Threats encompassed within the concept of ‘terrorism at sea’
include acts similar

to those noted above in relation to terrorism from the sea—
shipborne IEDs,
ramming vessels, shooting at or into vessels, and so on. But
they also include acts
such as taking control a vessel from within (a Suppression of
Unlawful Activities
at Sea Convention (SUA) offence) or from another vessel (a
SUA and/or piracy
offence), for terrorism related purposes that do not necessarily
involve using the
ship as a weapon or a weapons platform. An example of the
former is the 24 April
2004 shipborne IED attacks on Multinational Force (MNF)
warships protecting oil
platforms in the Iraqi Territorial Sea, which resulted in the
deaths of two US Navy
Sailors and a US Coast Guardsman.19 Examples of the latter
include the ‘pirate
attack’ on the Dewi Madrim, in 2003 (reportedly involving
‘terrorists learning how
to drive a ship’, and kidnapping the ship’s officers ‘in an effort
to acquire expertise
on conducting a maritime attack’20) and, of course, the Achille
Lauro incident
(itself one of the catalysts for the negotiation of the 1988 SUA).
There are a range of legal responses which trace some
provenance from the threat
of terrorism at sea. I will focus upon two representative
responses—one which I
believe was, in legal terms, highly questionable and which did
not appear to
advance much beyond some initial discussion; the other a more
logical, and legally

sound, proposal. The first and more questionable ‘legal’
solution, which circulated
in the earlier part of the decade, was to resurrect a form of
‘privateering’—to
authorise Private Military and Security Companies (PMSC) to
conduct counter-
terrorism at sea, leaving expensive ‘high-end’ equipped navies
free to concentrate
upon their core role of traditional warfighting.21 Nicholas
Gvosdev and Anthony
Cipriano, for example, proposed that in the light of terrorist
activity at sea
Given the limits on the time and resources of U.S. intelligence
agencies, Congress should
revisit the power granted to it by Article I, Section 8 of the U.S.
Constitution to ‘grant
letters of marque and reprisal, and make rules concerning
captures on land and water.’ In
other words, it is time to consider reviving privateering—for
21st-century conditions.’22
19 See, for example, Stephenson 2004; US Department of the
Navy 2004.
20 World Net Daily 2004.
21 See, for example, Sechrest 2001.
22 Gvosdev and Cipriano 2002.
Operations 397
Rightly, in my view, this proposal did not appear to garner
widespread support
at the time. Counter-terrorism at sea is, in certain select

circumstances, a war-
fighting task for navies (and coast guards to the extent that they
can become
combatants in accordance with LOAC), or it is a law
enforcement operation for
navies, coast guards, and maritime police forces. It is not a task
for privateering.
Customary International Law (drawing force from the 1856
Paris Declaration
Respecting Maritime Law) certainly regards privateering as an
unlawful trade for
any mariner. Additionally, the development and domestication
of associated
international law since 1856 (such as in the fields of human
rights, use of force in
maritime law enforcement, and international criminal law)
further assures that a
revival of privateering as a legitimate and lawful trade is
unrealisable. What is
interesting about the future of this issue, however, is the
inevitable—but mis-
leading—correlations it seems to suggest in relation to PMSC
ship protection
teams as a response to piracy, and the debate over CIA
management and au-
thorisation of combat operations in the form of UAV strikes on
targets ashore.
Neither constitutes privateering, and neither should be
employed by analogy to
support any argument for its revival.
The second response—more substantial, useful, and legally
sound—was the
2005 SUA Protocols in relation to terrorist offences and
proliferation-related
transport offences for ships, and for fixed platforms located on

the continental
shelf.23 The 2005 ship protocol in particular is clearly a child
of four related
concerns which became more prominent after 11 September
2001—two as to
scope, two as to functional operation. The scope-broadening
requirements
involved amending the SUA to more explicitly anticipate use of
ships by terrorists
as weapons or means of transport; and to take into account the
potential exploi-
tation of shipping to transport proliferation-controlled materials
which could be
used in terrorist threats or attacks. The animating operational
concerns were the
need to broaden the SUA’s scope from its focus on ‘prosecute
or extradite’ after
the event—so as to enter more fully into the field of prevention
(beyond the
original SUA exhortation to information sharing and general co-
operation); and to
build into that preventive approach a formalised (and thus
legally supported)
process acknowledging and facilitating preventive boarding
operations. The 2005
SUA Protocol remains only narrowly signed and even more
narrowly ratified
(having come into force on 28 July 2010 after ratification by
Nauru). But its
importance and value as a legal response to terrorism at sea lay
less in this statistic
than in the fact that it was drafted and settled in the first place.
This Protocol
emerged from very broad, detailed negotiations within the IMO
Legal Committee,
during which the overwhelming majority of States agreed that

there was some
23 See generally
http://www.imo.org/About/Conventions/ListOfConventions/Pag
es/SUA-
Treaties.aspx. For the text of the two 2005 Protocols (the
Protocol on ships amending the
SUA itself, and the Protocol on fixed platforms amending the
original 1988 Protocol to the SUA
concerning fixed platforms located on the continental shelf), see
https://imo.amsa.gov.au/public/
2005/sua-final-act.htm. For the consolidated text of the SUA
and Protocol, see https://www.
unodc.org/tldb/pdf/Convention&Protocol%20Maritime%20Navi
gation%20EN.pdf.
398 R. McLaughlin
es/SUA-Treaties.aspx
es/SUA-Treaties.aspx
https://imo.amsa.gov.au/public/2005/sua-final-act.htm
https://imo.amsa.gov.au/public/2005/sua-final-act.htm
https://www.unodc.org/tldb/pdf/Convention&Protocol%20Mariti
me%20Navigation%20EN.pdf
https://www.unodc.org/tldb/pdf/Convention&Protocol%20Mariti
me%20Navigation%20EN.pdf
need to deal with gaps in the international legal regime relating
to terrorism at
sea—even if they were not ultimately able to carry this broad
consensus across into
a more widely ratified instrument. Regardless of its ratification
status, discussions

of the law applicable to terrorism at sea no longer take place
without at least some
analysis of the 2005 SUA Protocol, and thus of its underpinning
propositions and
its fundamental negotiating assumptions.
14.4 Terrorism Supported from the Sea
14.4.1 Threats
At first glance, distilling the influence of terrorism on maritime
operations law
over the last decade into a sub-theme of ‘terrorism supported
from the sea’ may
appear to give unwarranted prominence to a minor and
essentially unrelated threat.
However, it is worth briefly noting three indicative examples of
this form of threat
which clearly tie it into the broader narrative of terrorism and
maritime operations
law since 11 September 2001. The first in time was the threat of
proliferation by
sea as a mechanism for terrorist groups to acquire WMD, their
precursor materials,
or certain types of delivery systems. This threat underpinned a
series of counter-
proliferation interdictions at sea—most notably the So San
interdiction on 9
December 2002 by the Spanish warship Navarra.24 Such
interdictions are neither
rare nor routine—the BBC China in October 2003, is a further
example. Nor have
they been limited to WMD proliferation concerns—the January
2002 Israeli
interdiction of a shipment of conventional weapons, in Karine-
A, which were

assessed to be bound for Hamas,25 for example. But each
generally shares with the
So San interdiction a degree of imprecision in attribution and
clear jurisdictional
mandate. This is not, however, to read down the impact which
proliferation by sea,
and the potential for such materials to fall into the hands of
terrorist groups, has
had upon conceptualising and advancing maritime operations
law since 2001.
Indeed, then US President George W. Bush indicated in his 31
May 2003 ‘Krakow
speech’—considered the genesis of the Proliferation Security
Initiative (PSI)—that
The greatest threat to peace is the spread of nuclear, chemical
and biological weapons.
And we must work together to stop proliferation. The countries
of the G-8 committed last
year to aiding Russia and others in securing and eliminating
deadly weapons that remain
from the Soviet era…. When weapons of mass destruction or
their components are in
transit, we must have the means and authority to seize them. So
today I announce a new
effort to fight proliferation called the Proliferation Security
Initiative. The United States
and a number of our close allies, including Poland, have begun
working on new agree-
ments to search planes and ships carrying suspect cargo and to
seize illegal weapons or
24 See, for example, Guilfoyle 2005.
25 See, for example, Office of the Coordinator for Counter
Terrorism Report 2002.

Operations 399
missile technologies. Over time, we will extend this partnership
as broadly as possible to
keep the world’s most destructive weapons away from our
shores and out of the hands of
our common enemies.26
The second aspect of terrorism supported from the sea was the
alleged existence
of an Al Qaeda ‘phantom fleet’ which provided equipment
transport, funds gen-
eration, and platforms for terrorist acts.27 This threat, if it was
ever a significant
one, appeared to have been localised to the early part of the
decade.
It is, however, a third aspect of this relationship—the potential
(either realised,
or still only latent) for a linkage between piracy, and acts
committed at sea by
terrorist groups as a source of funds generation for terrorism
ashore—that has
become the more (most?) important question in relation to
terrorism supported
from the sea. This linkage is not unique to its current focal
point of piracy off the
coast of Somalia and Al Shabaab in Somalia. Indeed Singapore
warned of similar
links between South East Asian pirate groups and Jemaah
Islamiyah in 2004.28 Gal
Luft and Anne Korin, writing in Foreign Affairs in 2004, argued
that

Most disturbingly, the scourges of piracy and terrorism are
increasingly intertwined:
piracy on the high seas is becoming a key tactic of terrorist
groups. Unlike the pirates of
old, whose sole objective was quick commercial gain, many of
today’s pirates are mari-
time terrorists with an ideological bent and a broad political
agenda. This nexus of piracy
and terrorism is especially dangerous for energy markets: most
of the world’s oil and gas
is shipped through the world’s most piracy-infested waters.29
Clearly, however, the current typology of this threat involves
the actual, or
anticipated, conduct of piracy by Al Shabaab affiliated Somalis,
with a view to Al
Shabaab profiting from ransoms and dedicating that income to
financing other
terrorist activities.30
In my view, the legal response to an actual or potential piracy-
terrorism linkage
has taken two distinct forms. The first form of response—prior
to the emergence of
the Somali piracy issue as a specific concern—was informed by
a general (and,
I believe, misguided) desire to leverage the law of piracy in
order to exploit its
26 The text of the ‘Krakow speech’ is available at
http://www.freerepublic.com/focus/f-news/
920882/posts.
27 See, for example, Bright et al 2001.

28 This was the view of then Singapore Minister for Security,
Tony Tan, 8 June 2004, as reported
in World Net Daily 2004.
29 See Luft and Korin 2004.
30 See, for example, UN SC, Report of the Special Adviser to
the Secretary-General on Legal
Issues Related to Piracy off the Coast of Somalia (the ‘Lang
Report), UN DOC S/2011/30, 25
January 2011, para 24 available at
http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-
6D27-4E9C-8CD3-
CF6E4FF96FF9%7D/Somalia%20S%202011%2030.pdf.
400 R. McLaughlin
http://www.freerepublic.com/focus/f-news/920882/posts
http://www.freerepublic.com/focus/f-news/920882/posts
6D27-4E9C-8CD3-
CF6E4FF96FF9%7D/Somalia%20S%202011%2030.pdf
6D27-4E9C-8CD3-
CF6E4FF96FF9%7D/Somalia%20S%202011%2030.pdf
attendant universal jurisdiction in dealing with terrorism. A
number of commen-
tators have argued that the best way to deal with the scourges of
piracy and
maritime terrorism is to ‘couple’ them and treat them
similarly.31 Tina Garmon
was explicit (and in my view very honest) in her advocacy as to
the reason this
would be attractive to some:
A reconciliation between conceptions of piracy and terrorism

would enable more effective
prevention and punishment of such acts. Under customary
international law, piracy incurs
greater jurisdiction. As the primary distinction between piracy
and terrorism is a private
versus a political motive, erasing the distinction would enable
greater enforcement.32
My concern with this approach is two-fold. First, whilst many
of the practical
measures used to combat piracy and maritime terrorism are
similar,33 there
remains a degree of definitional (and thus jurisdictional)
uncertainty surrounding
whether terrorism at sea (or at least that involving two ships)
can be seamlessly
collapsed into the concept of piracy.
In some cases…in the charged political atmosphere, the mass
media and governments
have blurred the line between piracy and acts of terrorism. Such
acts can appear similar,
but it is important to understand that piracy and terrorism have
different causes, objectives
and tactics… Terrorism is distinct from piracy in a
straightforward manner. Piracy is a
crime motivated by greed, and thus predicated on immediate
financial gain. Terrorism is
motivated by political goals beyond the immediate act of
attacking or hijacking a maritime
target. The motivating factor for terrorists is generally political
ideology stemming from
perceived injustices, both historical and contemporary.34
Some analysts also draw a distinction between ‘private ends’
encompassing

‘personally motivated hatred or sheer vengeance’ and
‘politically motivated
acts’—with Judge Jose Luis Jesus of the International Tribunal
for the Law of the
Sea arguing that the ‘adoption of the SUA Convention’ has
rendered it ‘a lost
cause to continue insisting on considering such a politically-
motivated act as
piracy’.35 I am not as convinced of a clear, legally definable,
separation between a
‘private gain’ motivation for piracy and an ‘ideological’
motivation for maritime
terrorism. Sooner rather than later, however, piracy-maritime
terrorism linkages
off the Horn of Africa, off central West Africa, and in South-
East Asia, will force
deeper analysis of this question. But this specific concern,
and—if we seek general
coherence within international law—its analysis, must keep one
eye upon analo-
gous debates. Thus any resolution of this maritime specific
question will need to
exhibit some consistency with outcomes from the analogous
current debate
regarding the implications of a complex web of motivations and
consequences
evident in the spiralling ‘drug war’ in Mexico upon the
applicability of NIAC
LOAC in that conflict context.
31 Ong 2004.
32 Garmon 2002, at p. 275.
33 Jesus 2003, at p. 371.
34 Young and Valencia 2003.
35 Jesus 2003, at pp. 377–378.

Operations 401
My second concern with any general and unmediated attempt to
collapse
maritime terrorism as a whole into piracy is one of legal and
ethical hazard, in that
there are clear indications that the international community is
not currently in a
position to endorse any broad extension of universal jurisdiction
to terrorism as a
crime generally. The fact that there is at least one separate and
discrete instrument
which deals explicitly with terrorism at sea (the 2005 SUA
Protocol—which
clearly does not anticipate traditional universal jurisdiction),
coupled with the fact
that there is no agreement on the application of universal
jurisdiction to terrorism
in other spheres of activity (save where the actual conduct
constitutes certain war
crimes or crimes against humanity), clearly indicates that
terrorism is not currently
considered to be a crime of universal jurisdiction. To collapse
maritime terrorism
into the concept of piracy in order to achieve precisely this
consequence is
(currently, at any rate) a highly contentious legal option.
The legal relationship between piracy and terrorism in terms of
piracy being
used to support terrorism, however, is of a different and more
defined character
than the broader debate over coupling the two concepts. This is

a legal debate
which is yet to be fully worked through—its practical
importance hinging upon
that moment when a clear linkage between piracy and terrorist
financing is proved
(most foreseeably in the Somalia context). At that point, any
legal response will
need to engage with the inter-relationship between laws which
do not generally
prohibit paying ransoms to pirates, and laws which generally do
prohibit providing
funds to terrorist groups. This is a much narrower, more
nuanced, more practical,
and more legitimate legal response to the piracy-terrorism nexus
than any broad
attempt to collapse one into the other in order to achieve a
universal jurisdictional
reach into terrorism—a step which the international community
has not yet
concluded to be appropriate or warranted.
The most significant response, in the last decade, to the
terrorism-linked issue
of proliferation by sea has been the PSI.36 The PSI is not
formally a legal response
to the issue of proliferation support, via the sea, to terrorist
groups—but it is a
process with both maritime and legal dimensions, and thus
requires attention.
Originally established as an operationally focussed forum with a
core membership
of 11 likeminded States, the PSI as a process now claims more
than 80 State
interlocutors. The core of the PSI is the Statement of
Interdiction Principles, which
clearly indicates that PSI related activities are to be conducted

‘to the extent
[States’] national legal authorities permit and consistent with
their obligations
under international law and frameworks’.37 The PSI operates as
a mechanism for
information sharing, capacity building, issue identification, and
agenda setting, and
has arguably been very successful—although deep suspicions
remain, in some
quarters, as to the validity of some PSI aims and processes. In
its infancy, however,
there was real potential for the PSI to have morphed into a
narrow, very limited,
36 See generally: Byers 2004; Song 2004; Ahlstrom 2005; Kaye
2005, 2007; Belcher 2011, at
pp. 3–4; Klein 2011, at pp. 193–210.
37 See US Department of State 2003.
402 R. McLaughlin
and highly contested process. This is because the original Bush
Administration
vision appears to have been to push the boundaries of legal
authority beyond where
most of their core interlocutor States were comfortable. As was
reported in the
aftermath of the October 2003 London PSI meeting,
Still, Undersecretary of State for Arms Control and
International Security John Bolton
holds out the hope that the initiative will lead countries to act
more aggressively within
current law and, in effect, change it. In comments published

Oct. 21 by The Wall Street
Journal, Bolton said, ‘As state practice changes, customary
international law changes.’38
Had the US maintained this push to stretch the law relating to
WMD inter-
diction at sea beyond its generally accepted boundaries—in an
attempt to create
new state practice and thus CIL—it is doubtful that the other ten
core States could
or would have maintained as proactive an engagement with PSI
as they ultimately
did. It was only when the US vision for the PSI was scaled back
to generally
accord with their core interlocutors’ understanding of the
relevant law that it was
able to shift aim and focus more directly upon the less
contentious and more
readily achievable aspects of the PSI endeavour—such as
encouraging and facil-
itating implementation of existing law, and identifying issues
for further legal
development (a process which gave much impetus to the
negotiation of the 2005
SUA Protocols).
14.5 Terrorist Groups as Subjects Within the Law
of Naval Warfare
A final aspect of the last decade’s preoccupation with terrorism,
including ter-
rorism at sea, requires some mention. This is the as yet
unresolved, and very
fraught, issue of terrorist groups as subjects within the Law of
Naval Warfare
(LoNW). Clearly, many of the same themes, pressures, and

debates that have
influenced advances in understanding the status of terrorist
groups within LOAC—
most particularly in terms of Organised Armed Groups (OAG)—
are at play when
seeking to understand the relationship between LoNW and
terrorist groups.
However, the nature of the maritime domain and some unique
features of maritime
operations law do illuminate a number of peculiarities. Some of
the issues that fall
under this chapeau are, I believe, relatively uncontroversial. I
think it unconten-
tious, for example, that a State may impose a blockade (or a
visit and search
regime) against territory substantially controlled by a terrorist
group which is also
an OAG engaged in an armed conflict with that State—the
Lebanon blockade in
2006,39 and the Gaza blockade, are indicative, if imperfect and
unsettled,
examples.
38 Arms Control Association 2003.
39 See, for example, BBC News 2006.
Operations 403
Beyond this ray of clarity, however, lays a larger realm of
opacity—some
aspects of which have (re)arisen for further analysis. What can
become difficult in
such contexts, for example, is determining the status of people

in interdicted
vessels. With great respect to the Turkel Commission, I remain
troubled by the
finding that the ‘hard core’ of IHH activists resisting IDF
boardings during the
Mavi Marmara/‘Gaza Freedom Flotilla’ interdiction on 31 May
2010, were tar-
getable under LOAC as civilians taking a direct part in
hostilities (in the ‘land-
based’ LOAC sense).40 Crews of neutral merchant vessels
which ‘intentionally and
clearly refuse to stop, or intentionally and clearly resist visit,
search or cap-
ture’41—a clearly analogous situation—do not become civilians
taking a direct
part in hostilities in this sense. Indeed the actions of the crew,
whilst they may
render their vessel liable to attack, do not change their status
once apprehended:
They may be released or (because their vessel has engaged in
acts of hostility) they
are entitled to PW status42 and should not be treated as other
civilians taking a
direct part in hostilities may be treated (that is, as criminals).
On this issue, I am
thus not as convinced as the Turkel Commission that the law is
as clear cut as the
Report seems to indicate. But I certainly agree that as a general
matter of law,
Israel could impose a blockade against territory controlled by an
OAG—which
includes the terrorist elements of Hamas—with which it was
engaged in an armed
conflict (be it IAC or NIAC). Of course, the ultimate lawfulness
of the detailed
implementation of any such blockade remains a separate

assessment which can
only be addressed on a case-by case basis.
Another issue upon which there has been hitherto little analysis
concerns the
access (or otherwise) of terrorist groups which are also OAGs
engaged in a NIAC,
to the LoNW, and the views of States as to whether the
maritime conduct of such
OAGs ought to be measured against the standards of LONW—
much as States
measure the conduct of OAGs such as the Taleban against NIAC
LOAC. Maritime
action by OAGs is not new. In the Sri Lankan context, the
Liberation Tigers of
Tamil Eelam (LTTE)—clearly both a terrorist group and an
OAG engaged in a
NIAC—conducted a number of maritime attacks against Sri
Lankan Naval vessels.
Clearly, States should hold the conduct of OAGs/terrorist
groups accountable
against LoNW in such situations—just as States do for
OAGs/terrorist groups in
relation to LOAC ashore. But opportunistic attacks—such as
those by the LTTE
upon MV Cordiality in September 1997, and MV Princess Kash
in August 199843—
present more problematic cases. These attacks—depending upon
one’s perspective
of the terrorist purpose versus private gain debate—may be
most directly charac-
terisable as simple piracy. But if we expect maritime OAGs to
follow LoNW just
as we expect land based OAGs to follow LOAC (the
fundamental targeting
rules are almost identical in both domains), the uncomfortable

question becomes:
40 The Turkel Commission 2011, paras 187–201.
41 Doswald-Beck et al. 1995, Rule 67(a).
42 For example, Doswald-Beck, Rule 166(c) and commentary
para 166.4.
43 Sakhuja 2002, at pp. 2–3.
404 R. McLaughlin
Should we hold maritime OAGs, which are also terrorist groups,
to account against
all of LoNW—including, for example, rules on visit and search
and blockade?
Intuitively, I think this cannot be the case—surely the proper
legal criteria against
which to assess such acts is simple criminality (standfast,
perhaps, the unique
situation of formally recognised belligerency). Just as States
require an OAG to act
in accordance with LOAC (and thus not attack civilians, for
example), but retain
the option to prosecute OAG members for attacks upon
combatants, in the maritime
domain it is entirely congruous to hold OAGs to account against
the LoNW (on
visit and search, for example), whilst also retaining the option
to prosecute OAG
members for piracy. But the issue clearly requires sustained
analysis in order that
States do not inadvertently undermine the overall integrity of
their position on the
balance to be struck between demanding LOAC compliance by
OAGs/terrorist

groups engaged in armed conflicts, and maintaining the right to
characterise all
such conduct—including LOAC compliant conduct—as
remaining fundamentally
criminal in character.
14.6 Conclusion
It is, ultimately, no surprise that a decade long preoccupation
with terrorism in its
many dimensions has also influenced the focus and direction of
maritime opera-
tions law. In this short piece, I have attempted to describe some
ways in which
concerns with terrorism rose to become primary animating
factors in the devel-
opment of maritime operations law after 11 September 2001.
My list is far from
exhaustive, but is, I hope, illustrative and indicative. All that
remains, therefore, is
to be frank about what I believe has been the underlying thread
animating these
developments. In my view, that thread is this: That the past
decade has seen a
perceptible cooling of passions and a reassertion of ‘balance’
within the maritime
operations law domain—most particularly through a reversion
to traditional norm
creation mechanisms, and the weight given to the enduring
concerns of freedom of
navigation. In the raw first years after the atrocities of 11
September 2001, some
States—the US, certainly, but others also—ran the risk (in their
haste to achieve
results) of trampling upon long held articles of faith in maritime
operations law—

most particularly the sanctity of ships’ flags (evident still, I
believe, in the ‘mas-
ter’s consent’ debate), and the need to constantly assert freedom
of navigation in
the face of encroaching and expanding claims to ‘security’
jurisdictions over
oceanspace and security-based jurisdictions for boarding on the
High Seas. The
initially divided vision of the core PSI States as to the purpose
and methods of that
activity, attempts to collapse the concept of maritime terrorism
into piracy as a
means of backdoor access to universal jurisdiction over
terrorists, and the assertion
of expanding security based jurisdictions over EEZs, were
examples of urgent,
passionate, but—in terms of prior State practice and assertion—
to some extent
unprincipled departures from previously accepted norms.
However the latter part
of the decade—perhaps from 2004 onwards—witnessed the
beginnings of a
Operations 405
sustained return to relative normalcy and continuity. Any
assessment as to why
this re-balancing occurred is invariably subjective. It may have
been that this
return to the norm was born of a principled reassertion of
traditional long-term
views on the balances of interest implicit in maritime operations
law. It may have

been driven by a realist recognition that short-term departure
from long held
principles was giving succour to, and generating propaganda
for, long term pro-
ponents of the ‘other sides’ of these debates. It may have simply
been attributable
to a pragmatic concession that there was not sufficient
international weight behind
any push to radically and rapidly evolve maritime operations
law. Or it might
equally have been underpinned by a re-emerging appreciation
that the traditional
methods (such as negotiating the 2005 SUA Protocols) could
still deliver useful
and relevant outcomes—even if more slowly than desired. I
suspect the answer
lays in a combination of all of these, and other, possible
explanations. What is
clear, however, is that the last decade’s preoccupation with
terrorism as a matter of
maritime operational concern has indeed influenced the
development of maritime
operations law. What remains to be seen is whether ‘terrorism’
now joins that
select group of issues which could be said to be constant themes
underpinning the
evolution of maritime operations law, or fades once more to
become an issue of
important, but secondary, concern.
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