The Threat From The Sea

What does the law of the sea have to do with defending ourselves from terrorism? One heck of a lot.

Regular readers of Amygdala know I'm a big fan of William Langewiesches.

Here Jonathan Raban has a lovely long piece examining Langewiesches' new book, The Outlaw Sea: A World of Freedom, Chaos, and Crime.

It's a terrfic read, starting out with the tale of the Mignonette in 1884, and the ensuing cannibalism trial, and its effect upon law of the sea.

Fresh from reporting on chaos at the site of the Twin Towers in American Ground, William Langewiesche has taken on the rampant legal chaos of the sea in the twenty-first century. The Outlaw Sea is in part a sequence of lucid and often thrilling stories about recent founderings, groundings, and acts of piracy. It is also an unsettling appraisal of the laws, treaties, conventions, traditions, and organizations which, meant to regulate the sea, succeed largely in creating myriad loopholes for ingenious rogues to exploit. According to Langewiesche, the watery seven tenths of the globe are littered with some 143,000 ships: most sail under "flags of convenience," registered in such countries as the island state of Tuvalu in the Pacific; many are dangerous rustbuckets, nearly all are undermanned, with crews on third-world wages. The owners of these vessels, hidden behind multiple fronts and shell companies, are hard—and sometimes impossible—to trace. Though there now exists an International Law of the Sea (still not ratified by the US) and its enforcing body, the International Maritime Organization, the best efforts to police the sea have so far proved alarmingly ineffective. Meanwhile, as Langewiesche dryly notes, Osama bin Laden and his associates "are in the shipping business," with a considerable fleet of elderly freighters. The whereabouts and identities of these much-sought-after ships are unknown: in the way of the sea, their present names, and the flags they now sail under, are buried so deep in an ocean of misleading paperwork that they are beyond discovery. The flag of convenience—that flimsiest of legal fictions—bears much of the blame for the lawless state of the sea.

Langewiesche cites the case of the Erika, an aging tanker, registered in Malta, that broke in two off the Brittany coast while it was transporting 22,000 tons of oil from Dunkirk to Livorno in Italy, coating miles of French beaches in black sludge. The captain claimed "that he himself had no idea who the owners were"; his only dealings had been with a management company in Ravenna, Panship Management & Services:

Panship worked for the ship's registered owner, Tevere Shipping of Valletta, Malta, which in turn was held by two other companies, Agosta Investments and Financiers Shipping, both of 80 Broad Street, Monrovia, Liberia. Somehow in the constellation of names behind this single ship there appeared to be still other companies —in Switzerland, the Bahamas, Panama, and England. There were various banks too, including one in Scotland and a Swiss branch of France's Credit Agricole. After a month of trying to follow these connections, the official French inquiry admitted defeat.

Eventually the shipping newspaper Lloyd's List traced ownership of the Erika to a cheerful Italian named Giuseppe Savarese who professed to be "bemused" by the hue and cry, and boasted of the excellent condition of the ship at the time she broke up at sea.

After September 11 the Bush administration made the US Coast Guard a branch of the Department of Homeland Security, and since then American efforts to regulate shipping bound for US ports have taken on an air of panicked urgency. So far, though, these efforts have produced little more than piles of new forms for captains to fill in, along with airy assurances that all will soon be well:

There is unembarrassed talk in Washington of a future under control, in which sailors will undergo meaningful background checks and will be supplied with unforgeable, biometrically verifiable IDs by honest, appropriately equipped, and cooperative governments. Panama, for instance, will vouch for the integrity of, say, an Indonesian deckhand working on a ship operated by a Cayman Island company on behalf of an anonymous Greek. This is a vision so disconnected from reality that it might raise questions about the sanity of the United States.

In Rotterdam, Langewiesche spoke to a Dutch maritime official who had watched the recently introduced American system of preinspection of containers before they are craned aboard:

"Look, if you want to send a bomb through, it's so simple! The chances of it being filtered out are almost nil!" He was not being critical so much as flatly descriptive. As a believer in good government, but long exposed to the chaos of the ocean, he seemed to have learned the hard lesson that government tools might simply not apply.

Even now, it is said that only 2 percent of containers have their contents inspected before they are shipped, and that is probably an optimistic estimate. A more thorough and time-consuming system of inspection would threaten to bring international trade to a standstill, and would in any case be unlikely to deter a terrorist bent on shipping, say, two flat sheets of the plastic explosive Semtex with a radiological or biological payload. A single ship can carry up to 4,000 containers, while the average container has a capacity of 2,720 cubic feet—a vast space in which to secrete an object as compact as a dirty bomb would probably be. The port cities of the United States have good reason to feel uneasy. On July 1, the federal government's long-trumpeted Operation Safe Commerce came into force, and of the 265 ships arriving from abroad in US ports that day, six foreign-flagged vessels were denied entry by the Coast Guard because their paperwork was not in order. Tom Ridge has described the new measures as "creating a culture of security in ports around the world," but their real impact is more frankly characterized by William Langewiesche:

The only sure effect of the new regulations is that legitimate operators, who do not pose a threat, will comply. But it is likely that terrorists will comply as well, and that, like many shipowners today, they will evade detection not by ducking procedures and regulations, but by using them to hide. This would be very easy to do. Paradoxically, when a ship approaching US shores does not comply, it will be because it is a bumbler, and therefore almost by definition innocent.

Asymmetric or "fourth-generation" warfare pits a nation-state against an enemy who is everywhere and nowhere; who has no flag, no uniformed army, no capital city, no ascertainable geography. For such an enemy, the sea is the friendliest place on earth, the natural habitat of the stateless terrorist. Its legal ambiguities suit him perfectly; it offers secrecy, anonymity, and the ability to change identity at will; it is one enormous hiding place. The lax internationalism of the ocean might have been expressly designed to accommodate the kind of loose, far-flung, fugitive, paranational organization that may now confront us. The rusty cargo ship is a potential weapon that could deliver death on a considerably greater scale than September 11 —and the chances of a ship reaching the heart of its chosen target city without being detected are so high that they hardly bear thinking about.

Or, sooner, rather than later, we'll regret it, and I only hope we'll live to regret it.

Gary Farber's home blog is Amygdala.