MERCHANT SHIPPING AND THE WAR AT SEA IN THE MIDDLE EAST AND THE HORN OF AFRICA

The 30th anniversary of the entry into force of the United Nations Convention on the Law of the Sea (UNCLOS) is taking place this year in the midst of conflicts in the Middle East and the Horn of Africa that are seriously undermining the main purpose of this mega-treaty, namely “to promote the peaceful uses of the sea and oceans” through a comprehensive set of rules aimed at ensuring, amongst many other things, the security of international commercial navigation.

The seeds of the present crisis were sown by a civil war that broke out in Somalia in the early 1990’s. By 2008 Somali-originated piracy (frequently related to terrorism) had become rampant in the Gulf of Aden and the entrance to the Red Sea through the Bab-el-Mandeb Strait. In response a military status-quo evolved from a remedy against piracy and common crime and became a potential source of conflicts engaging the United States, China, Russia, regional actors and their proxies.

In 2014 came the Yemeni civil war and the Houthi movement´s domination of the South East coast of the Red Sea adjacent to Bab-el-Mandel. This was a domination that Iran sought to exploit in furtherance of a cat-and-mouse conflict with its Sunni Arab and Western enemies. The Houthis and Iran’s Islamic Republic had long been in sympathy. For Iran the opportunity of contributing to the disruption of trade along a route of vital importance to the health of hostile Western economies was irresistible.

A perfect storm (still in full force and with no end in sight) was unleashed when, in reaction to the ongoing Israeli military operation in Gaza, the Houthis decided to target any ship linked to Israel, “in solidarity with the Palestinian people.” Here the sky was the limit, because links of this type can be established in many ways, on account of the distinct features of international shipping. A ship doesn´t need to be registered in Israel or to fly the Israeli flag to be a target, since open registry systems allow shipowners to access registration, flagging, and chartering in accordance with the laws of a variety of countries.  Indeed, it is often difficult to trace Israeli ownership of cargo, or whether cargo is, or not, bound to Israel. In any case, no legal nuances are likely to be used successfully enough to counteract effectively the Houthi movement´s goal of  asserting its control over the Red Sea’s South East coast in pursuit of the beliefs and aims stated in its official slogan: “God is the Greatest. Death to America. Death to Israel. A curse upon the Jews. Victory to Islam.”

A fateful date for the shipping industry fell on 19 November 2023, when the Galaxy Leader, a Bahamian-flagged ro-ro cargo ship with a registered owner in the Isle of Man, chartered by a Japanese company, and reportedly owned in part by an Israeli national, was hijacked by the Houthis and forced to sail with its crew to the port of Hodeidah. The captors immediately announced that both would be held until Israel stopped its punitive aggression against the Palestinians in Gaza. No amount of exhortations or admonitions from the Security Council or UN member states has so far succeeded in obtaining the release of ship or crew.

In March 2024, three crew members were killed and several wounded during an attack on the Barbados-flagged MV True Confidence 50 miles from the port of Aden.

Amongst the incidents which could potentially lead to significant environmental damage, mention should be made of the sinking of the Rubymar (a cargo ship registered in Belize) in the Bab-el-Mandel Strait and, in August, the attack on the Greek-flagged tanker Sounion. The latter was carrying 150,000 tonnes of crude oil, namely four times the amount carried by the Exxon Valdez. Only by the middle of September did the Houthis allow the towing of the tanker away from the Yemeni Coast as part of the salvage operation to prevent a catastrophic oil spill.

Houthi attacks on merchant ships in the Red Sea and the Gulf of Aden surpassed 100 by early September 2024. A similar number of naval confrontations have taken place since the launching of two anti-Houthi naval operations, the US-led Operation Prosperity Guardian in December 2023, and EUNAVFOR Operation Aspides in February 2024. Given the support that Iran has been providing to the Houthis, these incidents should be seen as complementing those carried out by Iran’s Islamic Revolutionary Guard Corps (IRGC) in the Gulf of Oman, the Straits of Hormuz and the Persian Gulf in response to Western sanctions on Iran’s oil exports.

The overall result is a zone of conflict where the Houthis and Iran have succeeded in ensuring a state of severe disruption of trade routes vital for the Western economies. More than 50 percent of global trade using the Red Sea has now been re-routed in order to avoid threats to seafarers and ships. As a result, traffic passing through the Suez Canal has dropped by more than 40 percent. Diversions around the Cape of Good Hope not only add days to normal passage and delays in the delivery of goods, but also have caused substantial increases in CO2 emissions, in port congestion and in port duties in South Africa.  Moreover, war-risks insurance premiums have risen dramatically. Between January and February 2024, for example, they soared from one to two percent of a ship’s value.

Towards the end of August, the Houthis issued a professionally-made video showing the then still ongoing fires on the decks of Sounion and Israel expanded its military campaign to include a major incursion into the West Bank. Additionally, both sides have performed the ritual of reciprocal drone strikes, reciprocally hitting targets in Israel and the Yemeni territory controlled by the Houthies.

Unlike in the case of piracy during the first decade of this century, the Security Council has been unable to adopt unanimous resolutions to ensure the protection of merchant shipping in the Red Sea.  “Normalization in the Red Sea is impossible without stabilization in the Palestinian-Israeli conflict zone” proclaimed the Russian Federation in announcing its abstention in the case of Resolution UNSC 2722 (24) which condemns the continued Houthi attacks on merchant and commercial vessels and restates a previous call for the release of the Galaxy Leader and her crew. Echoing the absence of superpower consensus elsewhere the Russian Federation condemned “the aggressive actions of the United States coalition or missile strikes targeting a sovereign country.”  

In explaining its own abstention China condemned “the military actions of certain countries against Yemen” and characterized the current tensions in the Red Sea as a consequence of the Gaza conflict, which requires an immediate and lasting ceasefire. Algeria also linked its abstention to the need to achieve an immediate and permanent ceasefire in Gaza and sought to exclude extra-regional powers by calling for a “Yemeni-led, Yemeni-owned peace process.”

In the field, there seems to be little hope, at least for the moment, of persuading the belligerents to opt for negotiation. The Houthis and Iran have no obvious incentive to negotiate as long as Israel is allowed to ignore calls for a ceasefire in Gaza and Iran remains subject to the “maximum pressure” that followed US withdrawal from the JCPOA nuclear agreement with which Iran had been complying.  And blockades, sanctions, and trade embargoes will remain ineffective tools in the hands of third parties unable to agree on a wider political framework.

Aptly characterized as a “Constitution for the Oceans,” UNCLOS took 10 years to negotiate (1973 to 1982). It was a negotiation which in spite of the geopolitical strains typical of that period, succeeded as a consensual effort to create the conditions needed to avoid disrupting activities as crucial to the welfare of all as international maritime trade. It remains to be seen whether a similar consensus can be restored in an era where the balance of power that was a feature of the Cold War seems to be floundering in the troubled waters of hegemonic ambitions devoid of foresight or restraint.