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THE INTERNATIONAL LEGAL FRAMEWORK FOR MARITIME SECURITY

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The ISPS Code is implemented through chapter XI-2 Special measures to enhance maritime security in the International Convention for the Safety of Life at Sea (SOLAS). – PowerPoint PPT presentation

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Title: THE INTERNATIONAL LEGAL FRAMEWORK FOR MARITIME SECURITY


1
THE INTERNATIONAL LEGAL FRAMEWORK FOR MARITIME
SECURITY
  • Maritime Security Seminar
  • Karlshamn, Sweden
  • 16-17 October 2007
  • Max Mejia
  • Assistant Professor
  • World Maritime University

2
PIRACY IN ANCIENT HISTORY
King Minos of Crete (2000 BC?)
3
Edward Teach a.k.a. Blackbeard
4
(No Transcript)
5
MODERN PIRACY
6
MODERN PIRACY...from subsistence pirates
7
MODERN PIRACY...to organized syndicates
8
GLOBAL VENTURE
ALONDRA RAINBOW
MEGA RAMA
M/V Alondra Rainbow
M/V Global Venture
M/V Mega Rama
9
Kidnap for ransom
  • K f R
  • Somalia
  • Indonesia (GAM)
  • Philippines (ASG)

10
PIRACY ARMED ROBBERY AGAINST SHIPShow big a
problem is it?
11
PIRACY ARMED ROBBERY AGAINST SHIPSpotential
for violence
12
PIRACY ARMED ROBBERY AGAINST SHIPSgeographical
distribution
13
PIRACY ARMED ROBBERY AGAINST SHIPShow big a
problem is it?
  • Year 2006, worldwide
  • Physical and psychological harm to seafarers
  • 188 taken hostage
  • 15 injured
  • 3 missing
  • 162 ships boarded
  • 7 ships fired upon
  • 14 ships hijacked

14
ECONOMIC CONSEQUENCES
  • US Billions in annual losses for the world
    economy
  • Around US 10 thousand for each days delay in
    port
  • Potential environmental disaster -
    USbillions!!!

15
EXXON VALDEZ
  • initial cleanup over 2.1 billion.
  • settlement of civil charges, 900 million over a
    10-year period
  • settlement of criminal charges, fine of 250
    million.
  • Two "restitution funds" of 50 million each
  • 2.5 billion in punitive damages
  • (awarded 22 Jan 2006)

16
MARITIME TERRORIST ATTACKS
17
October 1985
ACHILLE LAURO
18
USS Cole Attack 12 October 2000
19
Bombing of Our Lady of Mediatrix in Ozamis City
in February 2002.
20
Limburg 6 October 2002
21
Superferry 14explosion26 Feb 04
22
MARITIME TERRORIST ATTACKS
YEAR VESSEL KILLED WOUNDED
2004 Superferry 14 100
2002 Limburg 1
2000 USS Cole 17 37
2000 Our Lady of Mediatrix 40 50
1988 City of Poros 9 98
1985 Achille Lauro 1
1961 Santa Maria 1
23
PIRACY vs TERRORISM
  • PIRACY
  • High probability
  • Low impact
  • Location high seas
  • Motivation private ends, lucri causa
  • TERRORISM
  • Low probability
  • High impact
  • Location anywhere
  • Motivation politic-al ends, coercion

24
other threats to maritime security
  • MARITIME FRAUD
  • DRUG TRAFFICKING
  • REFUGEES AND ILLEGAL IMMIGRANTS
  • ARMS SMUGGLING
  • CRIMINAL SYNDICATES

25
being a stowaway
  • is a crime
  • compromises SAFETY and SECURITY and poses a
    danger to
  • him/herself
  • crew
  • passengers
  • cargo
  • ship

26
Stowawaysfinancial social costspublic sector
(once landed)
  • strain on the public health and welfare system
  • board and accommodation
  • administrative procedures
  • possible rise in illegal activities and
    criminality
  • social tension

27
Stowawaysfinancial social costsprivate sector
(shipping)
  • fines due to stowaways being on board
  • cost of guards
  • ship delays
  • time manpower
  • victualling expenses
  • clean clothing
  • bedding
  • toiletries
  • embassy fees
  • jail detention expenses
  • repatriation flights
  • flights and accommodation
  • ship delays
  • expenses for escorts
  • expenses incurred by agents

28
  • Economic refugees
  • Political asylum seekers
  • Criminals/terrorists

29
Wisteria (2004)
  • Panama-flagged reefer
  • 4 stowaways (Senegalese?) thrown overboard in the
    high seas
  • Chinese crew made clandestine report
  • South Korean captain confessed
  • 5 murder suspects released
  • Spanish court ruled no jurisdiction
  • Flag state to conduct inquiry, take action

30
Wisteria (2004)
  • In the meantime, accused have already left Spain
    for home
  • Court case in Panama?
  • Doubtful
  • Extradition unlikely

31
GIOIA TAURO Container Bob
  • a routine inspection in the Italian Port of Gioia
    Tauro, of a Port of Halifax bound container
    revealed a suspected al-Qaeda terrorist hiding
    inside with
  • valid Canadian passport
  • plans of airports
  • false security passes
  • an aviation mechanic's certificate
  • The container was equipped with a
  • bed toilet
  • heater water supply
  • cell phone satellite phone
  • laptop computer
  • suspect Amid Farid Rizik was arrested
  • but later disappeared after posting bail

32
Human smuggling
  • June, 2000
  • Fujian to Dover
  • 60 Chinese nationals
  • 58 died of suffocation
  • 2 survivors

33
INTERNATIONAL LEGAL FRAMEWORK FOR MARITIME
SECURITY
  • UNCLOS 82 (United Nations)
  • IMO anti-piracy programme (soft law)
  • SUA Convention 1988/2005 (Convention for the
    Suppression of Unlawful Acts against the Safety
    of Maritime Navigation (Rome Convention))
  • SOLAS security amendments 2002
  • (Intl Convention for the Safety of Life at
    Sea,74)
  • IMO goes ashore!

34
UNCLOS PIRACY PROVISIONS
  • Article 100 - Duty to co-operate in the
    repression of piracy
  • Article 101 - Definition of piracy
  • Article 102 - Piracy by a warship, govt ship or
    govt aircraft whose crew has mutinied
  • Article 103 - Definition of a pirate ship or
    aircraft
  • Article 104 - Retention or loss of the
    nationality of a pirate ship or aircraft
  • Article 105 - Seizure of a pirate ship or
    aircraft
  • Article 106 - Liability for seizure without
    adequate grounds
  • Article 107 - Ships and aircraft which are
    entitled to seize on account of piracy
  • Article 110 - Right of visit
  • Article 111 - Right of hot pursuit

35
PIRACY DEFINED
  • UNCLOS Art. 101
  • an illegal act of violence
  • motivated by private gain
  • committed by persons on board a private ship
  • directed against another vessel, or the persons
    and property on board
  • committed on the high seas or outside the
    jurisdiction of any State.

36
UNCLOS PIRACY PROVISIONS
  • Problem areas
  • Location of piratical act

37
AVERAGE DISTANCE OFPIRATICAL ATTACKS
  • Indonesia 11.55 NM from shore
  • Northeast Asia 68 NM from shore
  • South China Sea 94.4 NM from shore

38
UNCLOS PIRACY PROVISIONS
  • Problem areas
  • Location of piratical act
  • Two-ship rule / private ship / pirate ship
  • Private ends

39
AMENDMENTOF UNCLOS?
40
IMO anti-piracy programme
  • Resolution A.545 (13) Measures to Prevent Acts
    of Piracy and Armed Robbery Against Ships 17
    November 1983
  • Submitted by Sweden.
  • Anti-piracy Assembly Resolution urging
    governments concerned to take all measures
    necessary to prevent and suppress acts of piracy
    (in the open sea) and armed robbery (elsewhere)
    against ships.

41
IMO anti-piracy programme
  • MSC 49 (Apr 84) - established piracy armed
    robbery against ships as fixed agenda item

42
IMO anti-piracy programme
  • Resolution A.584 (14) Measures to Prevent
    Unlawful Acts which Threaten the Safety of Ships
    and the Security of Their Passengers and Crews
    20 November 1985
  • Maritime Safety Committee Circular 443 Measures
    to Prevent Unlawful Acts against Passengers and
    Crews onboard Ships 26 September 1986

43
IMO anti-piracy programme
  • Resolution A.683 (17) Prevention and Suppression
    of Acts of Piracy and Armed Robbery against
    Ships 6 November 1991
  • 1992 - Working Group on the Malacca Strait

44
IMO anti-piracy programme
  • Maritime Safety Committee Circular 622 Piracy
    and Armed Robbery Against Ships Recommendations
    to Governments for preventing and suppressing
    acts of piracy and armed robbery against ships
  • Maritime Safety Committee Circular 623
    Piracy... Guidance to shipowners and ship
    operators, shipmasters crews on preventing...

45
IMO anti-piracy programme
  • Resln A.922(22) Code for investigation of piracy
    armed robbery cases 22 January 2002
  • Resln A.923(22) Measures to prevent the
    registration of phantom ships 22 January 2002

46
IMO anti-piracy programme
  • Mission of Experts
  • gt impress upon govt reps the need for action
  • gt motivate political will to act on both the
    national as well as international level
  • Southeast Asia, October 1998
  • Brazil, October 1998
  • Nigeria, , October 1999
  • India, March 2000

47
IMO anti-piracy programme
  • IMO Regional seminar and workshop
  • explain the problem of piracy and armed robbery
  • explain IMOs recommendations on how to deal with
    them
  • Latin America Wider Caribbean, Oct 98
  • East Asian region, February 1999
  • West and Central African countries, Oct 99
  • Indian Ocean countries, March 2000

48
Art. 3 offences
  • SUA - Convention for the Suppression of Unlawful
    Acts against the Safety of Maritime Navigation
    (Rome Convention), 1988
  • Any person commits an offence if that person
    unlawfully and intentionally
  • seizes or exercises control over a ship by force
    or
  • performs an act of violence likely to endanger
    the safe navigation of a ship or

49
  • SUA - Convention for the Suppression of Unlawful
    Acts against the Safety of Maritime Navigation
    (Rome Convention), 1988

(c) destroys/damages a ship and endanger the safe
navigation of that ship or (d) places a device
or substance likely to destroy that ship, or
cause danger to the safe navigation of that ship
or (e) destroys/damages maritime navigational
facilities, if any such act is likely to endanger
the safe navigation of a ship or
50
  • SUA - Convention for the Suppression of Unlawful
    Acts against the Safety of Maritime Navigation
    (Rome Convention), 1988

(f) communicates information which he knows to be
false, thereby endangering the safe navigation of
a ship or (g) injures or kills any person, in
connection with the commission or the attempted
commission of any of the offences set forth in
subparagraphs (a) to (f).
51
PROBLEM AREAS
  • SUA - Convention for the Suppression of Unlawful
    Acts against the Safety of Maritime Navigation
    (Rome Convention), 1988

SUA does not define TERRORISM
52
TERRORISM
"...the unlawful use of force and violence
against persons or property to intimidate or
coerce a government, the civilian population, or
any segment thereof, in furtherance of political
or social objectives"
US Code of Federal Regulations Terrorism(28
C.F.R. Section 0.85)
53
One (wo)mans terrorist is another (wo)mans
freedom fighter
54
One (wo)mans terrorist is another (wo)mans
freedom fighter
55
  • SUA - PROBLEM AREAS
  • Low accession rate by states-parties
  • End of 2001 52 ratifications
  • 2002-2005 141 ratifications (more than 80 of
  • world tonnage)
  • Not all criminal offences are addressed
  • An act, to be unlawful, is contingent upon
  • control being exercised over the ship, or
  • the safe navigation of the ship being endangered

56
9/11 led to SUA revision
  • IMO General Assembly Res. A924(22)
  • SUA amendment began in early 2002
  • Ended in October 2005

57
SUA AMENDMENT
  • Diplomatic conference, IMO, Oct 05
  • The aim of the two draft Protocols is to
    strengthen the SUA treaties in order to provide
    an appropriate response to the increasing risks
    posed to maritime navigation by international
    terrorism
  • Amendments include
  • substantial broadening of the range of offences
    included in Article 3
  • introduction of provisions in Article 8 to allow
    for the boarding of vessels suspected of being
    involved in terrorist activities
  • The Conference considered these amendments as
    well as a number of other, related, issues
    including
  • political offences clause
  • transfer of prisoners clause
  • entry into force criteria

58
SUA 2005 MAIN FEATURES
  • Expanded the definition of OFFENCES (3bis,
    3ter, 3quater)
  • New article 8bis providing for a State Party to
    board a ship flying the flag of another State
    Party

59
SUA AS A TOOL AGAINST PIRACY, ETC
frequency
sophistication level of violence applicability
of SUA Conv
Hijacking(phantom ships)
Petty theft(subsist-ence piracy)
Kidnap for ransom
Clandestine boarding while ship underway
Violent attack while ship underway
COASTAL ZONE HIGH SEAS
60
SOLAS 2002 ISPS CODE
CHAPTER XI Special measures to enhance maritime
safety
CHAPTER V Safety of Navigation
Accelerated deadline for carriage of AIS
CHAPT XI-1 enhance maritime safety
CHAPT XI-2 enhance maritime security
61
SOLAS 2002 ISPS CODE
PART A
  • PART B

62
SOLAS 2002 ISPS Code as tools against piracy
and armed robbery against ships?
  • Exchange of information
  • Risk based decision making
  • Security culture
  • Seafarers
  • Shipping companies
  • Port facilities
  • Governments
  • Ship security alert system
  • Automatic identification system

63
MARITIME SECURITY COMMON INTERNATIONAL LEGAL
FRAMEWORK
  • CRIMINAL
  • UNCLOS
  • SUA
  • REGULATORY
  • ISPS Code

64
PROBLEM AREAS
  • ISPS - International Ship and Port Facility
    Security Code SOLAS amendments, 2002
  1. Misplaced? - security procedural code under a
    substantively safety convention

65
  • Desired effect
  • maritime safety protection against accidents at
    sea that may be caused by substandard ships,
    unqualified crew, or operator error.
  • maritime security protection against terrorist
    attacks, seizure, sabotage, piracy, pilferage,
    and other security incidents

66
PROBLEM AREAS
  • ISPS - International Ship and Port Facility
    Security Code SOLAS amendments, 2002
  1. Misplaced? - security procedural code under a
    substantively safety convention
  2. No clear link between ISPS and SUA (the security
    or criminal law convention)

67
AMENDMENTOF ISPS / SOLAS?
68
THANK YOU!
69
(No Transcript)
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