In July, the law was amended to specify, among other things, the use of Armed Forces to defend critical infrastructure at sea, such as the Baltic Pipe. Considering the incident with the Balticconnector gas pipeline, it is worth exploring what the military can actually do to protect facilities at sea – writes Marcin Karwowski, editor at BiznesAlert.pl.
The Polish Navy. Picture by Wikimedia Commons
According to the amendments of July 2023 to the laws regulating the protection of maritime and air borders, the Polish military will be able to conduct its activities. But what exactly are they? Two pieces of legislation have changed significantly:
– Act on the Protection of Shipping and Seaports of 4 September 2008;
– Act on State Border Protection of 12 October 1990.
To a lesser extent, other legal acts have also been amended, such as the Border Guard Act of 12 October 1990.
The key to understanding the changes is the term “marine areas”. The maritime areas of the Republic of Poland consist of internal sea waters, territorial seas, an adjacent zone and an exclusive economic zone. Internal waters are all kinds of bays, inlets and in some cases lakes. These waters are located between the land and the territorial sea, and the latter reaches 12 nautical miles (22,224 kilometers) from the baseline of the sea. Both of these areas are considered the territory of the state. In the coastal zone Poland may, among other things, act to prevent trespassing on its territory, and to prosecute, detain and punish the perpetrators of the crimes listed in the law. The exclusive economic zone extends beyond the territorial sea and its scope has been established on the basis of international agreements. Within this area, Poland has the right to decide on the exploitation of natural resources, has the obligation to protect them, but foreign countries can enjoy the freedom of navigation and passage, and lay submarine cables and pipelines. These issues are regulated by the Act on Maritime Areas of the Republic of Poland and Maritime Administration of 21 May 1991.
Protect the sea
The law that was extensively amended in July is the Act on the Protection of Shipping and Seaports of September 4, 2008. It lays down rules for the protection of ships, port facilities, but also the Baltic Pipe, the LNG terminal in Świnoujście, facilities, equipment and installations providing access to the port and artificial islands, structures and equipment intended for operation in the exclusive economic zone.
The director of the maritime authority concerned may, within their administrative scope, issue instructions to any ship. Within the framework of those powers, the director may order a vessel to leave a port or to go to a specified position at sea, prohibit it from leaving or entering a port, suspend all ship – to – harbor facility or ship-to-ship operations and prohibit it from berthing at a port facility.
The above-mentioned law changed the powers of the Minister of National Defense and thus the Armed Forces. The military may spring into action if there is a terrorist threat to the above-mentioned facilities from a ship or a floating vessel. However, it is crucial to note that first the forces and resources of the Border Guard and the police must be deemed insufficient. Only then can the Armed Forces be used.
Why is it so important? A significant part of these facilities is located on the territorial sea or even internal waters, i.e. the territory of the Polish state. On the territory of the Republic of Poland, threats should be combated by services subordinate to the Ministry of Internal Affairs, such as the Border Guard and the police. The law allows the use of the military, a force whose action on the territory of the country in peacetime is severely limited. But the military can be used, for example, when supporting rescue operations or combating various types of crisis situations. However, returning to the law itself, the army can be used if the following conditions are met:
– there is a terrorist threat against the mentioned facilities involving a ship or a floating vessel;
– the resources available to the Border Guard and the police are insufficient.
What is a terrorist act? This is an action aimed at seriously intimidating many people, forcing authorities to take or abandon a given action, or causing serious disturbances in the functioning of the political system or the economy of Poland. If these conditions are met, the units and divisions of the Armed Forces and the means at their disposal, including means of direct coercion, weapons and other weapons, may be used.
Another reason, more intuitive, for the use of the military is the threat to these facilities resulting from the action of ships or floating vessels of foreign states.
In both cases, terrorism as well as an attack by a hostile fleet, the use of Armed Forces is limited by specific rules. First of all, it is considered a final measure. It is crucial to minimize the risk to the life or health of bystanders, but it is also necessary to take into account the least possible damage to the persons against whom the actions are taken and limit the damage to the ship. An injunction to be mindful about the attackers may be outrageous, but it is lifted when such an action may cause harm to bystanders. Especially when it can harm a hostage or a victim of an attack. In addition, the injunction may be disregarded if there is a reasonable suspicion that an explosive device is on board or the ship is to be used as a means of a terrorist attack (e.g. by seizing another ship or vessel).
In summary, according to the amendment to the law, the military can be used in the event of a terrorist incident when other means are insufficient. The priority is to protect human health and life, especially bystanders and hostages, and only then terrorists. Thus, the military will not use missiles to shoot down any potentially hostile vessel. But there is a legal basis that allows the use of such measures or less drastic ones such as detachments or subdivisions of individual types of armed forces.
Let’s monitor the sky
Border violations are regulated by the State Border Act of 12 October 1990. The rules in the law apply to maritime and air borders as well. According to the said legal act, an aircraft that has violated the state border may be called by the air traffic management authority to leave the airspace of the Republic of Poland, change direction or flight altitude, land at the indicated airport or perform other actions to stop disturbing the airspace of the Republic of Poland. In case it does not comply with these commands, the ship can be intercepted by a military aircraft of either Poland or a NATO member state. The first step is to establish radio and visual communication and guide the intruder or force a landing. When an aircraft continues to disobey a military aircraft can warn it with warning shots and then destroy it. All warning procedures may be omitted if an intruder makes an armed attack on the territory of Poland, maneuvers to a position suitable for attack or performs a reconnaissance flight in order to enable an attack. This is important in the context of protecting critical infrastructure, as the air border may be violated from the sea.
What about drones? The same law grants the right to destroy, immobilize or take control of an unmanned aircraft that has crossed an air border. The forces and means at the disposal of the Armed Forces may be used for this purpose.
A helpful army
What do all these changes mean in a nutshell? The military has not taken over the competence of other services in the field of securing the country’s maritime areas. The amendments make it possible for the army to cooperate and assist in meeting very specific and serious conditions. The priority is to protect the life and health of citizens, both hostages and employees of key facilities. The forces and means must be adapted to the danger, so as not to endanger the innocent.
For example, if terrorists hijack a passenger ship and try to destroy the Baltic Pipe gas pipeline from its deck, the military can be used. The lives and health of hostages will be a priority in this case, so such a vessel would not be sunk and the efforts would most likely be carried out using the FORMOZA military unit. If there were no passengers on the ship, and the threat of destruction of the pipeline would exclude other possibilities, the military has the right to sink such a unit.