US Mulls Sanctions on Yemen Over Red Sea Attacks

The US Federal Maritime Commission (FMC) is considering what retaliatory measures, if any, it can take against Yemen for the attacks on shipping from its shores.

This month, the FMC conducted a hearing for supply chain stakeholders to discuss how shipping conditions in the Red Sea have impacted them.

During the session, commissioner Carl Bentzel said: “The attacks on US-flagged and all international shipping in the Red Sea are clear violations of the international law of the sea, and the attacks emanating from Yemen are violations of Article 17 ‘provisions protecting innocent passage of merchant shipping, even in time of war’. Article 34, ‘the regime of passage through straits’, is also being violated.

“We are hearing of the spread of piracy and other actors contemplating similar attacks on merchant shipping… It is a clear violation of international law, and it will have global implications.”

Accordingly, Mr Bentzel revealed, he is evaluating application of section 19 of the US Merchant Marine Act 1920, or the Foreign Shipping Practices Act.

If it is formally determined that actions from Yemen cause “unfavourable conditions to shipping in the foreign commerce”, these measures would target vessels operating under a Yemen flag.

“Yemen could be the target nation for failure to adequately protect the right of innocent passage through its territorial waters,” said Mr Bentzel.

Mr Bentzel said: “The FMC can close US port access to the flag vessels of any nation, issue penalties of up to $1m per voyage, or take any other appropriate measures to meet or adjust to conditions unfavourable to shipping in the foreign trade.

“In taking such actions we can utilise the enforcement powers of other federal agencies authorised under statute, if necessary,” he added.

Yemen has only around 30 flagged vessels and Mr Bentzel acknowledged that there might be little of value to target.

However, he added: “I happen to think that the international economic value alone of the freedom of navigation and protection of innocent passage is such an essential element to international law, that this alone it qualifies for investigation before even getting into the consideration of penalties for potential violations of the statute.”

The next stage will see the FMC proceed to an investigatory phase under a majority vote. After that, staff would examine whether governmental actions, government inaction or the practices of foreign carriers created “unfavourable conditions” to shipping in US foreign trade.

“After the investigation, the commission would have to consider whether sanctions were necessary and appropriate,” said Mr Bentzel.

Proceedings under the Foreign Shipping Practices Act are limited to 120 days, but could be extended up to 210 days if further information was proposed. Section 19 proceedings are not confined to any time limitation.

Mr Bentzel said he was still assessing whether the FMC is legally authorised to proceed to an investigation under either statute.

He explained: “Because of the general level of regional instability there could be challenges to the application of the law, however, I believe that the international importance of protection of navigational freedom provides an overriding impetus to evaluate a potential investigation.”

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