THE INTERNATIONAL LEGAL FRAMEWORK FOR MARITIME SECURITY

THE INTERNATIONAL LEGAL FRAMEWORK FOR MARITIME SECURITY

THE INTERNATIONAL LEGAL FRAMEWORK FOR MARITIME SECURITY

Maritime Security SeminarKarlshamn, Sweden16-17 October 2007

Max MejiaAssistant Professor

World Maritime University

Maritime Security SeminarKarlshamn, Sweden16-17 October 2007

Max MejiaAssistant Professor

World Maritime University

m. mejia - maritime security seminar, bth, karlshamn, 16 october 2007m. mejia - maritime security seminar, bth, karlshamn, 16 october 2007

PIRACY IN ANCIENT HISTORY

King Minos of Crete (2000 BC?)


Edward Teach a.k.a. Blackbeard


MODERN PIRACY

MODERN PIRACY...from “subsistence

pirates”


MODERN PIRACY...to “organized

syndicates”

M/V Alondra Rainbow

ALONDRA RAINBOWGLOBAL VENTURE

M/V Global VentureM/V Mega Rama

MEGA RAMA


Kidnap for ransomKidnap for ransom

K f R• Somalia• Indonesia (GAM)• Philippines (ASG)

PIRACY & ARMED ROBBERY AGAINST SHIPShow big a problem is it?

0

50

100

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250300

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400

450

500

1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006

actual and attempted attacks

PIRACY & ARMED ROBBERY AGAINST SHIPSpotential for violence

0

20

40

60

80

100

120

140

160

1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006

Pirates with guns Pirates with knives

PIRACY & ARMED ROBBERY AGAINST SHIPSgeographical distribution

122

80

3625

13

88

6153

29

8

0

20

40

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120

140

Ea & SE Asia Africa/Red Sea IndianSubcontinent

Americas Rest of the world

2005

2006


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

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

PIRACY & ARMED ROBBERY AGAINST SHIPShow big a problem is it?


ECONOMIC CONSEQUENCESECONOMIC CONSEQUENCES

• US$ Billions in annual losses for the world economy

• Around US$ 10 thousand for each day’s delay in port

• Potential environmental disaster - US$$$billions!!!

• US$ Billions in annual losses for the world economy

• Around US$ 10 thousand for each day’s delay in port

• Potential environmental disaster - US$$$billions!!!


EXXON VALDEZEXXON 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)

• 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)


MARITIME TERRORIST ATTACKSMARITIME TERRORIST ATTACKS

October 1985October 1985

ACHILLE LAURO

USS Cole AttackUSS Cole Attack12 October 200012 October 2000


Bombing of Our Lady of Mediatrix in Ozamis City in February 2002.Bombing of Our Lady of Mediatrix in Ozamis City in February 2002.

Limburg 6 October 2002

Limburg 6 October 2002

Superferry 14

explosion26 Feb 04

Superferry 14

explosion26 Feb 04


MARITIME TERRORIST ATTACKSMARITIME 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


PIRACY vs TERRORISMPIRACY vs TERRORISM

PIRACY• High probability

• Low impact• Location: high seas

• Motivation: private ends, lucri causa

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

TERRORISM• Low probability• High impact• Location: anywhere

• Motivation: politic-al ends, coercion


• MARITIME FRAUD• DRUG TRAFFICKING• REFUGEES AND ILLEGAL IMMIGRANTS

• ARMS SMUGGLING• CRIMINAL SYNDICATES

• MARITIME FRAUD• DRUG TRAFFICKING• REFUGEES AND ILLEGAL IMMIGRANTS

• ARMS SMUGGLING• CRIMINAL SYNDICATES

other threats to maritime security

other threats to maritime security


being a stowaway…being a stowaway…

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

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


Stowawaysfinancial & social costspublic sector (once landed)

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

– strain on the public health and welfare system

– board and accommodation– administrative procedures– possible rise in illegal activities and criminality

– social tension


• fines due to stowaways being on board

• cost of guards• ship delays• time & manpower• victualling expenses

• clean clothing• bedding

• 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

• toiletries• embassy fees• jail detention expenses

• repatriation flights• flights and accommodation

• ship delays• expenses for escorts• expenses incurred by agents

Stowawaysfinancial & social costsprivate sector (shipping)

Stowawaysfinancial & social costsprivate sector (shipping)


•Economic refugees•Political asylum seekers

•Criminals/terrorists


Wisteria (2004)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

• 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


Wisteria (2004)Wisteria (2004)

• In the meantime, accused have already left Spain for home

• Court case in Panama?– Doubtful– Extradition unlikely

• In the meantime, accused have already left Spain for home

• Court case in Panama?– Doubtful– Extradition unlikely


GIOIA TAURO “Container Bob”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

• 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


• June, 2000• Fujian to Dover• 60 Chinese nationals

– 58 died of suffocation

– 2 survivors

Human smugglingHuman smuggling


INTERNATIONAL LEGAL FRAMEWORK FOR MARITIME SECURITYINTERNATIONAL 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(Int’l Convention for the Safety of Life at Sea,’74)IMO goes ashore!

• 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(Int’l Convention for the Safety of Life at Sea,’74)IMO goes ashore!


UNCLOS PIRACY PROVISIONSUNCLOS PIRACY PROVISIONS

Article 100 - Duty to co-operate in the repression of piracy

Article 101 - Definition of piracyArticle 102 - Piracy by a warship, gov’t ship or gov’t

aircraft whose crew has mutiniedArticle 103 - Definition of a pirate ship or aircraftArticle 104 - Retention or loss of the nationality of a

pirate ship or aircraftArticle 105 - Seizure of a pirate ship or aircraftArticle 106 - Liability for seizure without adequate

groundsArticle 107 - Ships and aircraft which are entitled to

seize on account of piracyArticle 110 - Right of visitArticle 111 - Right of hot pursuit

Article 100 - Duty to co-operate in the repression of piracy

Article 101 - Definition of piracyArticle 102 - Piracy by a warship, gov’t ship or gov’t

aircraft whose crew has mutiniedArticle 103 - Definition of a pirate ship or aircraftArticle 104 - Retention or loss of the nationality of a

pirate ship or aircraftArticle 105 - Seizure of a pirate ship or aircraftArticle 106 - Liability for seizure without adequate

groundsArticle 107 - Ships and aircraft which are entitled to

seize on account of piracyArticle 110 - Right of visitArticle 111 - Right of hot pursuit


PIRACY DEFINEDPIRACY DEFINED

UNCLOS Art. 1011. an illegal act of violence2. motivated by private gain3. committed by persons on board a

private ship4. directed against another vessel, or

the persons and property on board5. committed on the high seas or outside

the jurisdiction of any State.

UNCLOS Art. 1011. an illegal act of violence2. motivated by private gain3. committed by persons on board a

private ship4. directed against another vessel, or

the persons and property on board5. committed on the high seas or outside

the jurisdiction of any State.



Problem areas

1. Location of piratical act

Problem areas

1. Location of piratical act


AVERAGE DISTANCE OFPIRATICAL ATTACKSAVERAGE DISTANCE OFPIRATICAL ATTACKS

• Indonesia – 11.55 NM from shore

• Northeast Asia – 68 NM from shore

• South China Sea – 94.4 NM from shore

• Indonesia – 11.55 NM from shore

• Northeast Asia – 68 NM from shore

• South China Sea – 94.4 NM from shore



Problem areas

1. Location of piratical act2. Two-ship rule / private ship

/ pirate ship3. Private ends

Problem areas

1. Location of piratical act2. Two-ship rule / private ship

/ pirate ship3. Private ends


AMENDMENTOF UNCLOS?AMENDMENTOF UNCLOS?


IMO anti-piracy programmeIMO 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.

• 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.


• MSC 49 (Apr 84) - established “piracy & armed robbery against ships” as fixed agenda item

• MSC 49 (Apr 84) - established “piracy & armed robbery against ships” as fixed agenda item

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

• 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



• 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

• 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




• 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...”

• 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...”




• 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

• 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




• Mission of Experts> impress upon govt reps the need for action> motivate political will to act on both the national as well as international level

• Mission of Experts> impress upon govt reps the need for action> 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



• IMO Regional seminar and workshop– explain the problem of piracy and armed robbery

– explain IMO’s recommendations on how to deal with them

• IMO Regional seminar and workshop– explain the problem of piracy and armed robbery

– explain IMO’s 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



Art. 3 offencesArt. 3 offences

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


1. Any person commits an offence if that person unlawfully and intentionally:

(a)seizes or exercises control over a ship by force; or

(b)performs an act of violence likely to endanger the safe navigation of a ship; or




(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




(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).


PROBLEM AREASPROBLEM AREAS



SUA does not define TERRORISM


TERRORISMTERRORISM

"...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)


One (wo)man’s terrorist is another (wo)man’s freedom fighter…


One (wo)man’s terrorist is another (wo)man’s freedom fighter…


SUA - PROBLEM AREASSUA - PROBLEM AREAS

• Low accession rate by states-parties– End of 2001 52 ratifications– 2002-2005141 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


“9/11” led to SUA revision“9/11” led to SUA revision

• IMO General Assembly Res. A924(22)

• SUA amendment began in early 2002

• Ended in October 2005

• IMO General Assembly Res. A924(22)

• SUA amendment began in early 2002

• Ended in October 2005


SUA AMENDMENTSUA 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

• 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


SUA 2005: MAIN FEATURESSUA 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

• 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


Hijacking(phantom

ships)

Petty theft(subsist-ence piracy)

Kidnap for ransom

Clandestine boarding while ship underway

Violent attack while ship underway

frequencysophistication;

level of violence;applicability of SUA Conv

COASTAL ZONE HIGH SEAS

SUA AS A TOOL AGAINST PIRACY, ETCSUA AS A TOOL AGAINST PIRACY, ETC


SOLAS 2002 + ISPS CODESOLAS 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


SOLAS 2002 + ISPS CODESOLAS 2002 + ISPS CODE

PART B

PART A


SOLAS 2002 + ISPS Code as tools against piracy and armed robbery against ships?

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

• Exchange of information• Risk based decision making• Security culture

– Seafarers– Shipping companies– Port facilities– Governments

• Ship security alert system• Automatic identification system


•CRIMINAL–UNCLOS–SUA

•CRIMINAL–UNCLOS–SUA

•REGULATORY–ISPS Code

•REGULATORY–ISPS Code

MARITIME SECURITY: COMMON INTERNATIONAL LEGAL FRAMEWORKMARITIME SECURITY: COMMON

INTERNATIONAL LEGAL FRAMEWORK



ISPS - International Ship and Port Facility Security Code + SOLAS amendments, 2002


1. Misplaced? - security procedural code under a substantively safety convention


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

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





1. Misplaced? - security procedural code under a substantively safety convention

2. No clear link between ISPS and SUA (the security or criminal law convention)


AMENDMENTOF ISPS / SOLAS?

AMENDMENTOF ISPS / SOLAS?


THANK YOU!

ANNUAL STOWAWAY STATISTICS (IMO) 2001-2005

254 265

185153

96

583 574

481

304

209

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Documents

THE INTERNATIONAL LEGAL FRAMEWORK FOR MARITIME SECURITY