Prevention of Maritime Terrorism: The Container Security Initiative

The United States has shifted away from reactive counterterrorism law enforcement methods towards more proactive techniques to fight international terrorism. This shift is a result of the changing nature of the terrorist threat overseas, against which the US has now employed preventative diplomatic, economic, military, and legal strategies. The Container Security Initiative ("CSI") is a Bureau of Customs and Border Protection ("US Customs")1 program designed to prevent containerized shipping-the primary means of transporting goods in global trade-from being exploited by terrorists.2 CSI is an excellent illustration of contemporary evolving preventative legal strategies in the international arena. Under CSI, US Customs has entered into bilateral agreements with foreign governments to identify high-risk cargo containers and prescreen those containers for terrorist weapons at the port of departure instead of at the port of arrival.3 This Development addresses the changing nature of international terrorism, specifically in the context of maritime activity, and its impact on law enforcement agencies and other nontraditional antiterrorism actors such as the maritime shipping industry. The focus of this Development is on the rationales underlying the formation of CSI, its evolving status in international law, and the criticisms leveled against it. More specifically, Part III examines CSI's potential infringement upon traditional notions of sovereignty and implications for global trade. I. MARITIME TERRORISM AND SECURITY Historically, international law on piracy and maritime terrorism was reactive, as opposed to preventative, in nature. In the past, the focus in the international community in this area was limited to the exertion of jurisdiction once a terrorist attack had occurred. The 1985 hijacking of the Achille Lauro, for example, drew worldwide attention to the issue and prompted the International Maritime Organization ("IMO") to respond with the Convention and Protocol from the International Conference on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation ("SUA Convention").4 The Convention defines seven different types of offenses and seeks to ensure that states will either prosecute or extradite those responsible for terrorist acts at sea.5 In defining maritime terrorism for prevention purposes, one activity of great concern is another suicide bombing carried out via vessels filled with explosives, such as the attack on the USS Cole. That particular maritime attack killed seventeen and wounded thirty-nine American sailors during a prearranged fuel stop in the Yemenese port of Aden on October 12, 2000.6 Similarly, in October 2002, a small fishing craft packed with explosives rammed into the French supertanker Limburg twelve miles off the coast of Yemen. That blast ripped a hole in the supertanker, crippling the ship, and causing a fire and the release of 50,000 barrels of crude oil into the sea, as well as the death of a crew member and the injury of twelve others.7 The impact and costs of these types of attacks must be considered not only in terms of human lives and injuries, but also in terms of the dire political, economic, and strategic consequences for American vessels in international waters, particularly the Persian Gulf and the Red Sea, which carry approximately one-third of all global trade in oil. The sophisticated structure of international terrorist organizations such as al Qaeda compound the challenges faced by states in identifying and classifying different forms of maritime terrorism. For example, there are growing concerns over reports of al Qaeda's involvement in piracy against ships carrying radioactive materials in the Malacca Straits.8 What distinguishes this form of piracy as a terrorist act is the presence of hazardous materials, which can be used to build weapons of mass destruction. The current international conventions on piracy, addressing only jurisdiction and prosecution, fail to address prevention and concerns over the possible uses and conveyance of the hijacked cargo. …