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Buky, Mike --- "Maritime Terrorism: The Threat from Small Vessels" [2007] MarStudies 34; (2007) 157 Maritime Studies 1

• Maritime Terrorism:The Threat from Small Vessels
• Abstract
• Small Boat Threats
• Incrementalism
• Australian Policy for the Small Boat Threat
• Risk Reduction Strategies
• AIS Security Strategy
• Regulation and Federal Challenges
• ENDNOTES
• Commentary
• From Mr Lachlan Payne, Chief Executive of the Australian Shipowners Association
• From Mr Llew Russell, Chief Executive Officer of Shipping Australia

Maritime Terrorism: The Threat from Small Vessels

Mike Buky^[1]

Abstract

A terrorist attack on a merchant ship or port containing a ‘high consequence’ cargo would have untold human and economic consequences to Australia. The failure to regulate or monitor the small vessels that would probably be involved in an attack requires recognition and action. Incremental counter-terrorist policies are not able to provide the required level of security. Passive monitoring with existing AIS technology is a feasible and cost-effective solution to improving port and coastal security. Jurisdictional and regulative problems could be simplified with federal responsibility for all registered vessels.

Increased awareness of vulnerabilities in maritime security post-9/11 has led to new measures such as the International Ship and Port Facilities Security (ISPS) Code for the international regulation of SOLAS-compliant vessels. In Australia, the ISPS Code and other security measures have been implemented through the Maritime Transport and Offshore Facilities Security Act (MTOFSA). These measures have resulted in substantial improvements to the maritime security environment. However, for a number of reasons Australia, along with all but one other state, has failed to address a major weakness in the security regime – the potential terrorist threat from small vessels^[2].

This article argues that there are several reasons for this failure. The first reason is the lack of recognition of the possibly devastating human and economic consequences of a successful attack. Another reason is the difficulty associated with establishing a comprehensive and cost-effective regime for small boat regulation. A third reason is the jurisdictional conflicts and legislative difficulties within a federal system that hinder regulation. These reasons are discussed within the context of reactive incrementalism from both the terrorist and counter-terrorist aspect. This article further argues that the ubiquitous small boat presents a potential threat to maritime security globally and to Australian security specifically. However, analysis of the threat is not only absent from academic literature, but also from Australian Government material in the public domain. Government inaction regarding the threat has left vulnerable maritime infrastructure exposed with potentially serious consequences.

It is worth considering the possible human and economic consequences of a successful attack on a vessel or port storage facilities near a major city. If the cargo of a liquefied natural gas (LNG), chemical or crude oil tanker were dispersed, let alone detonated, the economic ramifications would be profound. Drawing upon the US example, Carafano’s assertion that

even a large-scale disaster involving thousands of lives and billions of dollars in damage is unlikely to have long-term negative consequences for the U.S. economy^[3]

is open to question. For instance, Greenberg et al. assert that

[t]he economic consequences associated with any maritime assault that shuts down operations at a major U.S. port could be severe.^[4]

A port security ‘war game’ in 2002 estimated that a nine-day shutdown of all American ports after a terrorist incident would cost $74 billion^[5] while the Brookings Institution estimated that a successful attack with a nuclear, biological or chemical explosion (NBC) weapon could amount to $1.3 trillion in lost trade alone.^[6]

Consequential damage due to loss in confidence, stock market reversals and insurance claims would magnify the cost considerably. Such an attack would threaten the economic strength of any state. The total value of Australian exports for the year ending September 2006 was $152 billion of which 99.9 per cent of the tonnage was carried by ship.^[7]

Any interruption to this trade could have a crippling effect on the Australian economy. In Australia, an LNG or NBC explosion in a major city port would cause not only severe economic consequences nationally but could also create an economic ripple effect regionally. Such an event could also have strategic implications by causing regional instability.

Risk analysis assists in determining the need for more extensive measures to protect maritime infrastructure. Bergin and Bateman identify the need for risk assessment in order to recognise security issues concerning small commercial and recreational vessels, as opposed to their regulation.^[8] However, risk analysis according to Fig. 1 indicates that if it is accepted that consequences of an attack could be ‘major’ or ‘catastrophic’, even if the likelihood of an attack is ‘unlikely’ or ‘rare’, the risk remains ‘high’ or ‘extreme’.

This risk has implications for the current security environment which centres on the two main antagonists: those proposing to commit, and those attempting to prevent, terrorist acts. Both antagonists are engaged in outwitting the other. To this end, both are developing tactics to carry out their operations successfully and to prevent the other from being effective. To further these goals, technology, tactics and policy are evolving incrementally with the counter-terrorist forces being mainly reactive. As the threat of attack increases, so do the possible consequences of a successful attack. As the consequences increase, risk analysis determines that prevention becomes even more important. The complex maritime environment provides great potential in the global terrorist theatre of operations. The sheer number of small boats and the ease with which they can be refitted and deployed provide ideal terrorist transport, weapons and delivery systems.

Small Boat Threats

The use of small vessels by non-state actors for offensive purposes is a relatively recent occurrence. One way of identifying the potential for small vessels to engage in terrorist attacks is to assess those that have already taken place. Several commentators have pointed to the Liberation Tigers of Tamil Eelam (LTTE) as an example of a terrorist group able to maximise their maritime effectiveness with small vessels as their predominant platform. Gunaratna’s suggestion pre-9/11 that the LTTE provide an ‘early example of emerging trends and patterns in maritime terrorism’ requires consideration.^[9] Richardson cites a total of 155 attacks by the LTTE up to 1998. This means that they had conducted three times as many suicide attacks as all other terrorist groups worldwide.^[10] Chalk asserts that the LTTE have 3,000 trained fighters, 30 per cent of whom are women, and over 100 surface and sub-surface vessels. The Sea Tigers sub-group have been active since the 1980s and along with the Black Tigers, who are responsible for suicide operations, are by far the world’s pre-eminent maritime terrorist operators. Gunaratna states that the Sea Tigers have 12 sections and offer the greatest non-state maritime threat in the world.^[11] Chalk notes that since 1990, the Sea Tigers have carried out over 40 sea-based attacks against the Sri Lankan Navy.^[12]

As well as having sunk the Sri Lankan Navy’s largest warship, the Sagarawardana, and captured its commander, the Sea Tigers have also disabled nearly half of the navy’s coastal patrol vessels.^[13] Richardson states that the Sri Lankan Government has lost ‘at least a dozen ships’ to explosive-laden high-speed small boats deployed by the Sea Tigers.^[14] With their astonishing success, the Sea Tigers provide an organisational, tactical and operational model for other actors who may wish to emulate their actions.

It is probable that the tactic of deploying explosive-laden small boats was adopted and refined by al Qaeda when considering their suicide attacks against the USS Cole in 2000 and the MV Limburg in 2002. The detonation of a ‘half-ton C4 platter charge’ against the hull of the Cole killed 17 sailors and nearly sank the vessel while the Limburg attack killed one crew member and started a potentially devastating fire.^[15]

Although not sophisticated, this tactic proved to be extremely effective. Naval tactics had not envisaged this type of attack and vessels were not equipped to counter such a threat from close quarters, especially if fast moving. From intelligence gathered by several agencies, there is little doubt that al Qaeda has targeted, and continues to target, naval and commercial shipping. Richardson asserts that a dozen maritime attacks by al Qaeda on naval and commercial vessels have been prevented since 9/11.^[16] Jemaah Islamiyah’s (JI) links to al Qaeda have enabled it to plan its own maritime attacks. When the Singapore Government dismantled a JI network in December 2001, it discovered plans for suicide attacks on US warships intending to visit the island.^[17] The planning showed substantial sophistication with detailed reconnaissance of the geography and water patrols as well as understanding of the use of radar shadows. JI’s tactics showed remarkable similarity to those of the LTTE suggesting an indirect transfer of their tactics. The terrorist use of modern technology is an added concern.

Incrementalism

A component of asymmetric warfare is the incremental use of technology and innovation by both counter-terrorist and terrorist operatives. As one avenue for attack closes, the terrorist is obliged to find alternative means and targets. Hoffman notes this with IRA attacks during the ‘troubles’. When the British military detected a new technology for explosive detonation, they immediately enacted counter-measures. These measures were then countered by the IRA who subsequently developed new devices, frequently managing to stay a step ahead of the army.^[18] Lest it be thought that the IRA were in any way amateurish, their devices and detonators received begrudged admiration from those intent on their interdiction. A staff officer from the British army’s 321 Explosive and Ordnance Disposal Company commented, ‘[w]e are dealing with the first division … We have a great deal of respect for their skills’.^[19] It is of concern that innovation and new technologies are now shared more easily and rapidly than ever before through globalised communications.

Incrementalism applies not only to the terrorist who is attempting to evade new security methods but also to government policy, legislation and counter-terrorism. Bateman et al. propose that the Australian Government approach to maritime enforcement and compliance may be termed ‘crisis-driven incrementalism’.^[20] It is suggested that the term would be apt for government reaction to maritime terrorism and even for terrorism in general. The reactive and incremental nature of anti-terrorist legislation and counter-terrorism provisions can be demonstrated by current policies and procedures. The restrictions on liquids in aircraft passengers’ hand luggage stem directly from the alleged plot of August 2006 in the UK to make explosives aboard by combining liquid components. Innovation by terrorists is a form of incrementalism that is driven by the ‘crisis’ of communications being intercepted or devices being detected or jammed before their detonation. It thus appears that both sides are engaged in incremental changes to their methods, policies and tactics. These incremental changes suggest that any method may be used to escalate damage and casualties, as well as their prevention. In an interview with Zhongguo Qingnian Bao, the daily journal of the Chinese People’s Liberation Army’s youth league, Qiao pointed out that, ‘the first rule of unrestricted warfare is that there are no rules, with nothing forbidden’.^[21] This reinforces the view of the unlimited destructive aspirations of the terrorist philosophy whilst governments are obliged to observe many restrictions. Consequently, governments who need to placate a public that is resistant to draconian security measures may be outflanked by terrorists who have few, if any, compunctions.

Incrementalism can also be applied to the munitions and tactics deployed. The terrorist use of small vessels fitted with innovative weapons and technology could represent an incremental change in tactics with far-reaching consequences. Innovation can result from the revival of old technologies to enable major incremental changes. For instance, an Improvised Explosive Device (IED) is a weapon that relies solely on explosives, but without a directional component. However, a shaped charge uses a smaller amount of explosive while its force is directed to great effect. Shaped charges are not a recent innovation. Munro’s discovery of the shaped charge effect in the 1880s entailed its use in both surface and sub-surface demolition work as well as in munitions such as the modern TOW anti-tank missile. The platter charge that proved to be highly effective in the Cole attack is an unsophisticated form of shaped charge that focuses and directs the explosion. The Explosively Formed Penetrator (EFP) is a refinement of the shaped charge. The principle behind the EFP is the use of a relatively small explosive charge in a steel cylinder closed at one end and with a machined concave copper cap pressed into the open end. When detonated, a slug of molten copper is expelled at high velocity towards the target. This slug is able to penetrate the depleted uranium armour used by the 60-ton Abrams tank.

EFPs are currently being used to great effect against all US armoured vehicles in Iraq. Their migration to other spheres of terrorist operation is a probability with a potentially wide range of applications. The potential use of EFPs mounted on small craft would present a substantial threat in the maritime environment. For example, their deployment on jet skis that are capable of 40 knots would present a threat of unimaginable magnitude. It is therefore essential to evaluate the vulnerability of targets to such devices and, above all, those that have the highest consequential damage potential. An EFP deployed against a LNG tanker could cause devastating consequences although the escaping supercooled gas would need separate ignition. Shore-side facilities, where LNG is stored in a gaseous state, are even more vulnerable. Deployed against a crude oil tanker, an EFP could ignite the cargo, cause the vessel to founder and initiate a costly pollution event. As the US military acknowledges that terrorist attacks will continue by diverse actors against state interests globally for the foreseeable future,^[22] it is probable that terrorists will develop further devices that are deployed in new ways and to great effect in all spheres of operation.

Australian Policy for the Small Boat Threat

Although it is likely that small boats will be used in a terrorist attack, whether on a ship underway, in port or on port storage facilities, Cosetino is one of the few authors who mentions the use of small vessels in this role. He defines the threat as

fast inshore attack craft … normally approaching solo but sometimes in ‘swarms’, these craft may not have the capability to sink a warship … but they can effectively disable a vessel.^[23]

This reference applies more to the LTTE model of small boat terrorist attack as opposed to a single boat targeting a specific vessel as occurred with the USS Cole and the Limburg. Nevertheless, the possibility of several small boats attacking simultaneously cannot be dismissed. An earlier government document issued by the Australian Department of Transport and Regional Services had, however, shown awareness of the small boat threat. The aim of the 2003 Maritime Risk Context Statement (MRCS) 2003 was to

provide the maritime industry sector with information on the maritime strategic risk context and the current security environment in Australia.^[24]

Admitting that the main terrorist threat to Australia came from al Qaeda and JI, the MRCS stated that

[c]ruise ships, ferries, cargo vessels and oil and gas tankers in port could be subject to water-side, suicide attacks in the style of the USS Cole and MV Limburg i.e. with small boats loaded with explosives.^[25]

and

[w]hile past actions cannot be taken as a guide to future attacks in relation to maritime attacks there has been a greater focus by al-Qa’ida [sic] on the oil industry and naval targets using small, explosive-laden boats.^[26]

Despite acknowledgement of the small boat threat by the department concerned with vessel and port security, the government did not proceed with any regulation or legislation for their control. Analysis of the small boat threat is also absent from the literature.

There is also an admission, but no action, regarding the probable location of a maritime attack. Citing the Cole and Limburg attacks in a July 2004 White Paper, the Australian Government admitted that ‘most attacks occur (or are planned) in coastal waters’.^[27] This is a pragmatic evaluation from a number of aspects. The ability to refit a small boat covertly, the proximity to target, reconnaissance, planning adaptability as well as minimising navigational variables during operations are all facilitated by performing coastal attacks. If it is accepted that small vessels would be the main delivery system in a sea-based attack within coastal or internal waterways, the government statement has implications regarding the need to act against the threat.

Although there is evidence of Australian Government awareness of the threat from foreign small vessels entering the territorial sea, there is no evidence that they have adequately recognised the threat from domestic small vessels. If this threat is acknowledged, it may entail a reappraisal of surveillance capabilities within the territorial sea, and especially near shipping routes and major ports. It can be further suggested that if this potential security threat is accepted, resources may need to be targeted closer to shore where such attacks are likely to take place. The current protective regime appears to emphasise patrolling further offshore, however, there is a dearth of naval resources available for coastal water patrols. If it is considered more probable that an attack will occur in the approaches to, or near, a port where small craft proliferate, it is important to consider what protective action might be proposed.

The requirement for facilities for the preparation of a vessel and crew for an attack also requires consideration by the government. Refitting a small boat with the latest technology does not pose serious obstacles. Radar, Global Positioning System (GPS), satellite communication and navigational systems can all be purchased through mail order. Installation and operation require little specialised knowledge, and at any rate, modern electronics are increasingly intuitive. Nevertheless, piloting a small boat even in coastal waters requires maritime awareness, skills and knowledge. Operating navigational and communications devices on a moving platform is not for the uninitiated. It must therefore be expected that terrorist operatives would have to undergo a degree of training to become proficient in the simultaneous handling of boats, navigational hardware and weapons. This has security implications regarding the need for, and detection of, an organisational structure for vessel and crew deployment.

Risk Reduction Strategies

Whether en route to a port or in transit along the coast, large vessels remain highly vulnerable to attack. From a counter-terrorism perspective, defending large, slow-moving commercial ships that have a reduced ability to manoeuvre against one or more small vessels is highly problematic. Raymond points out that,

tankers which lumber along at 11 knots are easy prey to smaller boats with outboard motors that can travel up to three times faster.^[28]

To improve vessel security, the State of Tasmania has implemented a permanent ‘50m exclusion zone around passenger ships, warships and tankers’ whether underway or berthed in the port of Hobart.^[29]

Although the port of Brisbane may implement exclusion zones, these depend on the type of vessel and cargo, its status (whether it is berthed or under way) and current security alerts.^[30] The port of Melbourne enforces ‘waterside restricted zones’ for some piers and docks while Sydney cites restricted zones around cruise ships and tankers only while berthed.^[31]

These examples illustrate the uneven nature of security enforcement in a federal system although each port will require special consideration. The departure of HMAS Sydney from Garden Island naval base in 2003 for the Middle East demonstrated a large vessel’s vulnerability while transitting confined waters. Protesters in inflatables attached themselves to the bow and stern of the Sydney thus confirming the ability of small vessels to ‘attack’ a heavily guarded naval vessel.^[32]

Despite both Sydney and Melbourne experiencing a high level of large and, above all, small vessel movements, they have not implemented any permanent exclusion zones for vessels underway. It is questionable how effective such zones would be owing to the difficulty of enforcement in high density traffic areas.

The effectiveness of even larger exclusion zones is problematic. Under MTOFSA all offshore installations have a 500m radius exclusion zone. However, it is questionable whether this would give sufficient time for the detection and interception of a vessel intent on attack. Similarly, if this exclusion zone were implemented for large vessels underway, it would provide little protection from a determined attacker. Evasive or other measures are virtually impossible in the 50-second transit time to its target that a small vessel travelling at 20 knots would require. It would appear that there are few measures that a large vessel can take even with a broader exclusion zone and a longer warning. Defending a large vessel against an attacker in a small vessel is thus exceedingly difficult.

The first problem to investigate is the feasibility of security monitoring for small vessels. It is assumed by the government that the attack would occur in the territorial sea, or most likely, within coastal or internal waters.^[33] These areas not only enable easy access for potential terrorists but also offer the opportunity for greater consequential loss. The scope of the problem is substantial. In Queensland alone, there were 203,636 registered recreational vessels in October 2006 of which only 57 vessels were over 25m.^[34] These vessels are required to carry their registration number on their hull and comply with state requirements regarding the carrying of safety equipment. Their operators also require a licence if the engine size exceeds 6 hp. However, there are no security requirements for using a recreational vessel. No vessel log is required to be maintained by the owner or operator, and there is no requirement for the notification of vessel departure or arrival. Requiring vessel operators to complete these formalities would be highly unpopular, unnecessarily onerous and bureaucratically expensive methods of vessel monitoring. It would also most probably incur a high default rate as well as requiring extensive enforcement. Clearly, this is not a practical method for ensuring small vessel security.

Another possible means of risk reduction is the use of patrols and escorts for high risk vessels when approaching port and while docked. In the US, ‘LNG tankers are escorted into port and guarded’ and cruise ships require water patrols while alongside.^[35] Even with 24-hour patrols afloat, it is difficult to prevent a small high speed vessel from entering a port area, nor will these measures prevent a determined attacker. However, the presence of patrol vessels may increase the level of security, especially when used with the identification technology discussed below. There is also a substantial cost and resource component. The protection of ports, internal waterways and adjacent coastal waters where attacks are more likely to occur would entail a large deployment of resources over a vast area. As cargo ships may arrive or depart at any time, patrolling would need to be on a permanent basis. Hence, securing these areas would remain a resource-intensive and expensive operation. This article suggests that the use of passive monitoring would offer a more cost-effective as well as a more comprehensive security regime. Although patrol vessels would still be needed to interdict unidentified vessels and maintain security, the automatic monitoring and identification of vessels would enable improved targeting and response. Preventing an attacker from approaching its target thus becomes not only more feasible but also more effective. It is further proposed that monitoring and identifying small vessels are essential elements in improving vessel and port security.

AIS Security Strategy

Monitoring is achievable through the automatic transmission of each vessel’s unique identification code, position and other data with Automatic Identification System (AIS). The data can be transmitted by VHF to shore then relayed through a GSM/GPRS^[36] link to a control centre. If out of VHF range, the data can be transmitted through a satellite link. Real time data could be made available to all agencies ashore and afloat thus enabling immediate identification and interdiction of non-compliant vessels. Detecting vessels before they approach a potential target is an important element of this proposed change in tactics. An extension of the current requirement for all SOLAS vessels to carry AIS to all vessels over a certain horsepower would be a cost effective method of accomplishing this. As AIS is currently unencrypted, the substantial information it transmits is available to anyone with the readily available receiver and software. However, with a software patch enabling 128-bit encryption, this problem can be fixed. The ramifications of this modification and the wider use of AIS would be global hence obtaining international agreement for such a modification would be difficult, but not impossible. Although other electronic monitoring systems for vessels at sea offer more functions such as email, they are all more expensive to install and operate. As the major concerns revolve around the security regime in coastal waters and the 12nm territorial sea, AIS, with a line of sight range similar to that of VHF, is a cost- and operationally-effective method for vessel monitoring. Currently the UK is testing a cut-down version of AIS for small vessels called Class B AIS (B-AIS). This would be cheaper than the full version, but still provide the necessary tracking information.

The feasibility of comprehensive vessel monitoring in harbour approaches, harbours and ports is demonstrated by the Singaporean example. In 2006, the port of Singapore implemented a Harbour Craft Transponder System (HARTS) that is similar to B-AIS. This requires all non-SOLAS Singaporean-registered vessels to switch on HARTS whilst underway in the port area.^[37]

HARTS is a self-contained ‘black box’ that fixes the vessel position using GPS then transmits computed data such as course and speed as well as vessel ID using a GSM/GPRS link. After an initial subsidised and trial period, from June 2006 vessel owners were required to install HARTS at a cost of $720 plus an annual fee of $96. The onboard HARTS unit also includes a ‘Panic Button’ so that the vessel operator can alert the shore in the event of a security threat or emergency. HARTS gives the port authorities a real time display with data for compliant vessels. Vessels not complying are identified through a radar overlay. As HARTS is not encoded, the improper use of HARTS transmissions is a concern, however, terrorist targets are the large vessels whose AIS systems are anyway accessible. HARTS seems an ideal system for coastal and port small vessel monitoring with non-compliant vessels identified through radar.

In order to adopt the optimum monitoring system, several factors require consideration. Whatever system is adopted, the tracking data would need to be available to all agencies nationwide. This would be facilitated using a standardised system that can be easily integrated. Even though it may be difficult to achieve, it would be beneficial if the monitoring system complied with an international standard that can be adopted globally. Until that time, B-AIS may be considered as an acceptable intermediate step. The Australian Government can offer leadership on this issue. It can, for example, require all Australian-registered vessels with engines over a certain horsepower to operate B-AIS while underway. This would permit their identification at a distance of 30 or more nautical miles, depending on antenna height and reception conditions. Vessels identified on radar that were not transmitting a B-AIS signal would be immediately investigated by small local patrol boats. Even if there are difficulties in processing, and responding to, a potential mass of data, it is still of benefit to acquire the data for later analysis. After an introductory and education period, operating a vessel in specific locations without B-AIS would be an offence.

Starting in major ports and extending along the adjacent coastline, B-AIS and radar monitoring could be established. The monitoring would overlap so as to provide continuous coverage of adjacent waters. The more extensive the coverage of B-AIS and radar, the more warning would exist for non-compliant craft. This would provide an improved level of security for all ports as well as an improved overall security environment. The initial expense for the construction of B-AIS and radar towers would be substantial and their ongoing maintenance costs may be high. However, this expense would be substantially less than the cost of a comprehensive naval presence. Furthermore, a permanent naval presence afloat is not cost- efficient when considering that a majority of the patrolling is routine and repetitive. This activity can be best performed electronically, automatically and remotely.

The fitting of B-AIS to all Australian-registered small vessels would enable their identification and tracking whenever underway in range of a tower. If out of range, the data is automatically stored for later transmission. Existing coastal GSM/GPRS towers that provide mobile telephone coverage would also be able to relay B-AIS data. The construction of further towers would thus have the dual purpose of providing improved security through B-AIS data acquisition and increased mobile coverage for local communities. An extended B-AIS/radar coastal tower network would provide improved identification of all vessels in, and even beyond, territorial waters. It is evident that not all small vessels would need to fit B-AIS. Only vessels over a certain engine power would be required to comply. This could be the same figure that requires an operator’s license which in Queensland is 6 hp.

A recent development indicates that the installation of shore-based AIS receivers may become redundant. In 2004, Norwegian students launched a one kilo geostationary ‘nano-satellite’, nCube, to monitor ship and reindeer movements on Norwegian territory using AIS transmissions. The received data is relayed to a ground station from where it can be retransmitted.^[38]

Using either nano-satellites or piggy-backing onto existing satellites, AIS could evolve into a world-wide network for the monitoring of all vessels globally without the need for shore-based receivers.

Owing to the vast number of small vessels globally, many in developing countries, it cannot be anticipated that there will be uniform implementation of B-AIS. However, a state could make it a requirement for all nationally registered vessels to have the equipment installed. Thus, Australia could implement an effective monitoring system for all State and Australian-registered vessels throughout its approximate 11 million square kilometre Exclusive Economic Zone (EEZ) around the mainland and its offshore territories including the Australian Antarctic territory.^[39]

The nature of the system, especially if deployed using satellites, would also permit Australian authorities to monitor B-AIS-equipped vessels entering its EEZ as well as the movement of compliant vessels globally. The implementation of such a global system would require substantial international cooperation through the International Maritime Organisation (IMO). To enable international agreement a lengthy time lag must be anticipated, however, a satellite-based identification system would appear to be the most practical in cost and implementation.

Regulation and Federal Challenges

Until recently, the potential threat from small boats has been almost totally ignored within literature in the public domain. Several sources indicated in this paper acknowledge small boats as the means by which maritime attacks may be initiated, however, no proposals have been suggested for their regulation. A recent paper on the potential small boat threat in the US specifically recommends that

the Administration should not impose significant new regulatory restrictions on the operation and licensing of small boats and small boat operators.^[40]

Instead, it recommends an enhancement of the general maritime security regime as well as the looser concept of ‘situational awareness’. This is a surprising viewpoint, especially as Carafano asserts that,

[p]ost-9/11 security initiatives have only marginally improved the U.S. capacity to deal with the small-boat threat.^[41]

The paper’s thrust is away from small vessels and towards a rationalisation of agencies involved in maritime security. This may be a pragmatic viewpoint from the short-term economic aspect as no extra funding is proposed to deal with the threat. However, it is harder to justify from a security aspect as no changes in the regime are proposed. This paper has done little, if anything, to give greater understanding of, and address, the small boat security issue.

The problems cited by Carafano regarding small boat regulation under a federal system in the US are similar to those in Australia. Since small boats are subject to State control in both countries, a national method for their regulation becomes problematic although under s.51 ss.6 of the Australian Constitution,^[42] the government could implement national control. In Australia, States have jurisdiction up to 3nm offshore, however, the preamble to the Crimes at Sea Act 1979 (amended 2000) states that the criminal law of each State applies to waters extending 12nm from the Territorial Sea Baseline (TSB).^[43] Nevertheless, in the second edition of the National Counter-Terrorism Plan, the Commonwealth states unequivocally that it has

direct responsibility for offshore maritime counter-terrorism prevention and response … seaward of the territorial sea baseline.

It adds that even in the internal waters (that is, to landward of the TSB) of a State which

… may be subject to formal agreements between the Australian Government and the relevant jurisdiction,

the Australian Government assumes ‘responsibility’ and ‘response’ for these areas.^[44] While the Commonwealth has assumed responsibility in the territorial sea and internal waters for ‘maritime counter-terrorism prevention and response’,^[45] the Crimes at Sea Act 1979 leaves the question of jurisdiction for specific offences somewhat confused. Although the States and Territories appear prepared to accept the loss of their jurisdiction in this area owing to the possible overwhelming nature of an incident, these jurisdictional anomalies could limit both the effective response to a terrorist attack and the prosecution of the perpetrators. Even if the Commonwealth maintains responsibility, it should be noted that the most likely first responders would be State agencies such as the Water Police and other emergency services. If the Commonwealth should assume overall responsibility for all vessels there would also be the vexed question of loss of income from vessel and operator licensing. An added complication is current State control over fisheries and the non-mandatory jurisdiction of the IMO over fishing vessels. These grey areas present substantial difficulties in administering and conducting a national vessel security regime.

In order for a national maritime security regime for small vessels to be effective, the States and the Commonwealth would need to come to an agreement for their regulation. This comes at a time when the Commonwealth is attempting to exert its influence over a number of areas that are currently under State and Territory control. Workplace reforms, the Murray Darling basin water rights and Aboriginal health as well as maritime security are all areas of increasing Federal control. This increasing control is looked upon with suspicion by the States, especially where there is a potential loss of revenue. However, maritime security is an area where the States may be prepared to yield much of their control. State first responders would need to be thoroughly integrated into a federal framework to enable a harmonised incident response. The substantial cost of comprehensive vessel security monitoring and interdiction as well as the implementation of a coordinated and unified national policy and response to incidents indicate the possible tolerance of a federal regime. Apart from industrial relations, States appear willing to accept greater Commonwealth control as long as there is compensation for any loss of revenue.

The Australian Government and the literature acknowledge the role of small boats in terrorist attacks, however, there is an unwillingness to legislate and regulate their security. An important element of this failure is owing to the substantial expenditure for infrastructure and personnel involved in compliance. Although regulation of small boats would be a politically unpopular move with the boating community, a more acceptable climate for legislative change would occur if there were a terrorist attack on a port or shipping under Australian jurisdiction. The reactive approach that has been evident since 9/11 would probably result in policy incrementalism driven by this particular crisis. However, such policies take many years to implement fully. This is demonstrated in the Maritime Transport and Offshore Facilities Security Act 2003 that took several years to enact and is undergoing continual amendment. The maritime threat environment presents diverse, complex and multi-layered problems that are not amenable to standard contingency and policy planning. Policy in such a complicated area as maritime security necessarily involves a lead-time of several years. It has to be considered that after a terrorist attack, there would be a long period without adequate security monitoring. The cost of stop-gap measures, along with the cost of a potential attack should encourage consideration of security infrastructure for all vessels before a potentially disastrous attack occurs.

This article has argued that for a number of reasons the Australian Government has failed to act regarding the potential terrorist threat from small vessels. Given Australia’s dependence on maritime trade and the possible consequences of an attack, this failure is surprising. The jurisdictional anomalies between the Commonwealth and the States that could impede an effective response to a terrorist incident are a major hurdle that needs to be overcome. It has been demonstrated that the technological complexities in implementing a policy of small vessel regulation can be overcome with modifications to an existing system. After successful implementation, this system could provide a global example in the provision of an improved maritime security regime.

In May 2007, terrorism specialist Bruce Hoffman visited Australia to teach counter-terrorism agencies how to defend against suicide attacks, stating that, ‘police must prepare for all possible threats’ for the approaching APEC summit.^[46] NSW Police Minister David Campbell confirmed that, ‘we must always be prepared for the worst, which we hope will not occur’.^[47] It is argued that the same approach is required for the threat from maritime terrorism. This article has argued that the current protective regime, with an emphasis on the threat from small vessels, is inadequate. Although it is impossible to provide total security in any situation, the current maritime security regime can be substantially improved.

ENDNOTES

Commentary

In response to an invitation from the Managing Editor of Maritime Studies, Mr Lachlan Payne, Chief Executive of the Australian Shipowners Association, and Mr Llew Russell, Chief Executive Officer of Shipping Australia, have provided the following comments on this paper.

From Mr Lachlan Payne, Chief Executive of the Australian Shipowners Association

The Buky paper raises a number of issues that are familiar to Australian shipowners. Judged against security threats to other modes of transport, shipping is probably less exposed than aircraft, trucks or trains to terrorist threat.

There is already a requirement for some ships to be attended by patrolling craft when alongside but this measure is not regarded as likely to be effective if a determined small-boat terrorist attack were undertaken.

A ship navigating in confined waters or at sea is defenceless against any form of military-style attack. The ability of pirates to board ships in some waterways is evidence of the real risk to ships from those that might mean them or their crews or cargoes harm.

The concern of shipowners is the protection of the ship, its crew and cargo against unauthorised interference. But the ship operator can really only take steps from within the ship to provide protection. Protection from without is more likely the responsibility of law enforcement agencies such as state police forces.

Shipowners comply with ISPS Code requirements. Ships have their own security plans. Ships’ personnel are subject to visa requirements and/or background checking when obtaining Maritime Security Identity Cards in the case of persons working in Australian regulated ships.

Shipowners have been advised that the threat of terrorist attack is likely to be greatest when the result of an attack is of high visibility and high damage to personnel and property. Thus ships are regarded as being relatively safe once at sea but perhaps less safe when in port approaches and precincts.

It is apparent that aircraft on final approach and just after take-off from airports are vulnerable to attack from public spaces adjacent to airports. Road trucks and rail wagons loaded with dangerous and hazardous freight routinely move through unsecured urban places. We are not aware of security measures put in place whilst, for example, road tankers deliver LPG to suburban service stations.

Is any background checking undertaken in the case of persons employed to drive LPG road tankers? Possibly not.

It is difficult to envisage a mechanism that would allow either one or a number of small craft which might be in close company with a ship in a port environment to be intercepted or destroyed if the impression is formed that such small craft mean to do the ship harm. How authorities, even if they could take action, would be able to be certain that such craft are not innocent pleasure craft prior to destroying them and their passengers is not clear.

Similarly it is difficult to see how surveillance and timely interception could be achieved to protect aircraft, road trucks and trains from parties determined to use such aircraft, vehicles or trains as some sort of target.

Australian ship-operating entities take all precautions available to them to minimise all risk factors to which their operations are subject and that they can sensibly address. There are externalities that they cannot address and which may be perceived as community issues.

From Mr Llew Russell, Chief Executive Officer of Shipping Australia

This article is a thought provoking one and, in my view, is recommended reading for all those interested in maritime security. Nevertheless, I do feel that there are a few inaccuracies in the scene setting section of the paper and I also question whether having identified the problem, Mike fails to address some of the issues associated with his possible solution.

The Australian Government cleverly required ports and port facilities to undertake threat assessments in each of their ports and to develop security plans to meet those threats which subsequently had to be approved by the Department under the original Maritime Transport Security Act, 2003. The threat of attack from small vessels was well recognised but the difficulty remains how to meet that threat. Contrary to what is said in the paper, there are exclusion zones in most ports around vessels, particularly those considered to be of higher risk and I would have thought that the level of compliance tends to be directly correlated with the level of risk. I would be the first to admit, that painting slogans on the sides of coal carriers at Newcastle, for example, does not give one confidence that these exclusion zones are being strictly enforced. It is not only Hobart that has patrol vessels and I am aware that other ports do as well even if on a random patrolling basis which, in itself, can be very effective as an anti-terrorist measure.

As a side issue, I think Mike’s comments on incrementalism are very relevant and I understand that the Office of Transport Security is now seeking a broader, outcome-focused regulatory regime that will step beyond that issue of incrementalism.

Having adequately identified the threat, the question of fitting B-AIS to all Australian registrable vessels of a certain engine power poses a number of problems, which in my view, are not adequately addressed in the paper. For example, who would collect and analyse the data and how quickly could they respond to what appeared to be vessels that may be posing a potential threat.

Perhaps in the current situation, more closely monitoring the registration of new and second-hand small vessels and keeping relevant databases may assist in intelligence gathering but again there is substantial cost to these types of initiatives. One important side benefit of the fitting of B-AIS to small vessels would, however be an improved safety situation, particularly for fishing vessels and their interaction with large ships who are fitted with AIS. This would considerably enhance the radar capability of large vessels moving in confined areas and emphasising the safety benefits could make the whole system more viable in terms of what Mike would see as enhancing our anti-terrorist measures. Overall a good contribution to an important and ongoing debate.

^[1] Mike Buky is an Honours graduand at the University of the Sunshine Coast. He sailed to Australia from the UK on a 36-foot cutter, en route teaching carpentry and navigation in Tonga. The intention is to write a doctoral thesis on security issues related to non-SOLAS vessels.

^[2] Reference to ‘small vessels’ concerns floating craft of less than 25 metres in overall length that are motor powered.

^[3] J Carafano, ‘Small Boats, Big Worries: Thwarting Terrorist Attacks from the Sea’, Heritage Foundation, p. 3, http://www.heritage.org/Research/HomelandDefense/ upload/bg_2041.pdf.

^[4] M Greenberg, P Chalk, H Willis, I Khilko & D Ortiz, Maritime Terrorism Risk and Liability, RAND Center for Terrorism Risk Management Policy, Santa Monica CA, 2006, p. xix, http://www.rand.org/pubs/ monographs/2006/RAND_MG520.sum.pdf.

^[5] All amounts are in Australian dollars.

^[6] J Bouchard, ‘New Strategies to protect America: Safer Ports for a More Secure Economy’, Center for American Progress, 2005, p. 5, http://www. americanprogress.org/kf/port_security.pdf.

^[7] Australian Bureau of Statistics, ‘International Trade in Goods and Services’, Sep 2006, http://www.ausstats. abs.gov.au/ausstats/subscriber.nsf/0/ED66CE254E86E3D8CA257219001A7B89/$File/53680_sep%202006.pdf; W Truss, ‘Address To The Shipping Australia Limited Luncheon IMO World Maritime Day’, 2005, http://www.ministers.dotars.gov.au/wtr/speeches/2005/WS12_2005.htm.

^[8] A Bergin & S Bateman, Future unknown: The terrorist threat to Australian maritime security, The Australian Strategic Policy Institute, Barton ACT, 2005, p. 72.

^[9] R Gunaratna, ‘Trends in Maritime Terrorism – The Sri Lankan Case’, Lanka Outlook, vol. 4, 1998 in C Raymond, ‘Maritime Terrorism in Southeast Asia: A Risk Assessment’, Terrorism and Political Violence, vol. 18, no. 2, 2006, pp. 239-257.

^[10] 155 attacks as against 50 worldwide including those by Hamas, Hezbollah, the PKK and the Sikh Babbar Khalsa. M Richardson, A Time Bomb for Global Trade, Institute of Southeast Asian Studies, Singapore, 2004, p. 25.

^[11] Sea Battle Regiments; Underwater Demolition Teams; Sea Tiger Strike Groups; Marine Engineering and Boat Building; Radar and Telecommunications Unit; Marine Weapons Armoury and Dump Ground; Maritime School and Academy; Recruiting section; Political, Finance and Propaganda; Exclusive Economic Zone-Marine Logistics Support Team; Recce Team and Intelligence Section; Welfare Section; and the Registry. R Gunaratna, ‘The asymmetric threat from maritime terrorism’, Janes Navy International, vol. 106, no. 8, 2001, pp. 24-29.

^[12] P Chalk, ‘Threats to the Maritime Environment: Piracy and Terrorism’, RAND Stakeholder Consultation, Ispra, Italy, 28-30 October 2002, p. 12, http://www. rand.org/randeurope/about/news/seacurity/piracyterrorism.chalk.pdf.

^[13] C Rodeman, ‘In Search of an Operational Doctrine for Maritime Counterterrorism’, Naval War College, Newport, 2003, p. 8.

^[14] Richardson, op. cit., p. 24; T Campbell & R Burns, ‘Terrorist Use of Commercial Shipping and Response: Leveraging Intelligence to Protect Ports and Seaways’ in R Gunaratna (ed.), Combating Terrorism, Marshall Cavendish International (Singapore) Private Limited, 2005, p. 163.

^[15] U.S. Army Training and Doctrine Command, A Military Guide to Terrorism in the Twenty-First Century, Version 3, 2005, pp. C-1, C-2, http://www.fas.org/irp/threat/terrorism/guide.pdf.

^[16] Richardson, op. cit., p. 23.

^[17] ibid.

^[18] B Hoffman, Inside Terrorism, Columbia University Press, New York, 1998, pp. 180-182.

^[19] E Gorman, ‘Bomb Disposers Mark 21 Years in Ulster’, The Times (London), 7 November 1992 in Hoffman, op. cit., p. 182.

^[20] S Bateman, A Bergin, M Tsamenyi & D Woolner, ‘Integrated Maritime Enforcement and Compliance in Australia’ in D Rothwell & D VanderZwaag (eds), Towards Principled Oceans Governance – Australian and Canadian approaches and challenges, Routledge, Abingdon, 2006, pp. 119-142.

^[21] L Qiao & X Wang, Unrestricted Warfare, PLA Literature and Arts Publishing House: Beijing, 1999, p. x.

^[22] U.S. Army Training and Doctrine Command, op. cit., pp. 5-6.

^[23] M Cosetino, ‘Defeating Terrorism from the Sea’, United States Naval Institute. Proceedings, vol. 130, no. 12, December 2004, pp. 53-55.

^[24] Department of Transport and Regional Services, ‘The Maritime Risk Context Statement’ December 2003, p. 3, http://www.dotars.gov.au/transport/security/maritime/ doc/Final_Maritime_Risk_Context_Statement.doc.

^[25] ibid., p. 9.

^[26] ibid., p. 10.

^[27] Australian Government, Transnational Terrorism: The Threat to Australia, Commonwealth of Australia, 2004, p. 15.

^[28] Raymond, op. cit., p. 244.

^[29] Marine and Safety Tasmania, ‘New Security Requirements for Ships and Ports in Tasmania’, 5 July 2007, http://www.mast.tas.gov.au/domino/mast/ newweb.nsf/v-content/5069452A688A4133CA256EC C00206341.

^[30] Pers. comm., Brisbane Port Security, 15 November 2007.

^[31] Victorian Notices To Mariners, 2005, http:// www.portofmelbourne.com/global/docs/13t-05pmc.pdf; Pers. comm., R. Heath, Navigation Services Manager, 15 November 2007.

^[32] AAP, ‘Protesters stop HMAS Sydney leaving harbour’, Sydney Morning Herald, 8 April 2003, http://www.smh.com.au/articles/2003/04/08/1049567651003.html.

^[33] See footnote 24.

^[34] Data provided by Maritime Safety Queensland in November 2006.

^[35] Carafano, op. cit., p. 5.

^[36] Global System for Mobile Communications/General Packet Radio Service.

^[37] Singapore Maritime and Port Authority, ‘Harts Frequently Asked Questions’, http://www.mpa.gov.sg/ portdevelopment/pdfs/harts.pdf.

^[38] Norwegian University of Life Sciences, ‘The Norwegian student satellite’, 1 March 2007, http://www.umb.no/5248.

^[39] Prime Minister’s Science and Engineering Council, ‘Australia’s Ocean Age: Science & Technology for Managing our Ocean Territory’, 8 December 1995, http://www.dest.gov.au/archive/Science/pmsec/nla/ocs/ocean1.html.

^[40] Carafano, op. cit., p. 7.

^[41] ibid., p. 4.

^[42] Part V – Powers of the Parliament, s.51 ‘The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … ss.6 The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth’.

^[43] Crimes at Sea Act 2000, Notes, Preamble.

^[44] Attorney-General’s Department, National Counter-Terrorism Plan, 2^nd edn, Commonwealth of Australia, 2005, p. 3.5.

^[45] ibid.

^[46] N O’Brien, ‘APEC warning: prepare for anything’, The Australian, 22 May 2007, p. 6.

^[47] ibid.