Attacks on Shipping
The attacks on shipping herald in a new period of instability on the world’s oceans. Attacks over the past few months by Houthi rebels against commercial shipping started this cycle but the recent seizure of the MV Aries illustrates a number of problematic issues.
Location
The attack on the MSC Aries occurred in International Waters. This becomes problematic given that it is questionable if the Iranian forces would have had any legal basis for boarding and taking control of the ship. Directing the ship out of international waters and back into Iranian territorial waters also raises a number of questions.
These restrictions are enshrined in the United Nations Convention on the Law of the Sea (UNCLOS). While this Convention is largely accepted as the de facto law of the sea, Iran signed (but is not indicating as ratifying the Convention) but Israel does not appear on the list of signatories or countries that have either signed or ratified it (it is listed as having an objection).
Piracy? Not Sure About that One…
Piracy, as defined in UNCLOS Article 101, has a key statement that makes it difficult to apply in this context. The act must be “committed for private ends by the crew or passengers of a private ship or a private aircraft.” It’s pretty clear when combining the video and the publicly-released statements that this is not the case. Given that the aircraft was a military helicopter, we might reach out to UNCLOS Article 102 to see if there were indications that the government aircraft’s crew had mutinied. The statements made by Iran would make this position difficult, if not impossible, to prove.
Similarly, the statements made indicate that it was seized due to its association with Israel. There were no indications in the statements released that Iran considered the ship to have been engaged in piracy. There’s no reason to even pursue this line of thinking so we can take Article 105 off the table.
In brief, the claim of piracy would be a hard sell. While I am not a maritime law expert, I don’t need to be when reading the text of UNCLOS. The gaps are sufficiently clear when taking a basic, literal approach to the text.
Hot Pursuit
This is another hard sell, if it can be sold at all. The right of hot pursuit (UNCLOS Article 111) has to begin when the vessel is within “the internal waters, the archipelagic waters, the territorial sea, or the contiguous zone of the pursuing State, and may only be continued…if the pursuit has not been interrupted.” Again, this would be a hard sell.
Our Outcome
The seizure and removal of the MSC Aries to Iranian territorial waters creates a problem for more than a few countries. This include the flag under which is it registered (Portugal -International Shipping Register of Madeira), the states associated with the citizenship of the various crew members, and so on.
This could also raise issues with various international organizations, ranging from those associated lobbying for seafarer rights up to and including organizations such as the International Labour Organization.
What is clear is that this seizure is almost certainly to be challenged as a “seizure without adequate grounds” under Article 106, invoking a degree of liability for the seizure. What that liability is would have to be worked out by the international courts and those with the appropriate background in maritime law.
From the Security Perspective
The security profession tends to rely upon the good conduct and intention of states. This act calls that trust into question. We saw a similar attack carried out (i.e., using helicopters and rappelling onto the deck) when the Galaxy Leader was attacked on 19 November 2023. That attack, given it was carried out by non-state actors and such may fall closer to the definitions of piracy (the maritime lawyers and courts can decide that). This attack, however, is fundamentally different in that it did not involve a third party, it was carried out by Iranian forces.
Private security forces are generally not equipped to take on state actors. Attacks by pirate groups and such are one thing, but taking on the navies or armed forces of nation states is quite another.
This invokes the question of where an appropriate response lies. Is it with the naval forces in the area? Potentially but would this lead to an escalation of tensions and activities that would become even less palatable to those attempting to transit the waters for legitimate commercial purposes? Does it belong in the realm of diplomacy but, given what we are seeing, what are the realistic chances of success?
Does this create a situation where direct escorting of vessels is the only option with the escorting vessels essentially creating an exclusion zone around clusters of ships and preventing the movement of aircraft towards those vessels? Again, we are left with the question of what happens should the aircraft simply ignore the instructions of the escorting vessel. In all cases, what we can say is that this turn of events has simply increased tensions and further destabilized a region, an action that should certainly not go unnoticed by those organizations that seek to protect the legitimate use of the sea.