Peter Hinchliffe – International Chamber of Shipping
EU SEMINAR ON MEASURES TO ENHANCE MARITIME SECURITY – LEGAL AND PRACTICAL ASPECTS
VIEWS FROM THE SHIPPING INDUSTRY ON THREATS TO MARITIME SECURITY
Thank you for the opportunity to address you today on maritime security as seen from the international shipping industry.
Those of you that have heard me or my colleagues speak before will be familiar with our mantra of ‘global regulation for a global industry’. It doesn’t matter whether the subject is air emissions, ballast water, ship construction or maritime security. Quite simply when you are regulating a unique global industry that trades across all of the world’s time zones, all of the world’s languages, political spheres of influence and jurisdictions, it can only do so with the required efficiency when based upon a level platform of international regulation. It only makes for inefficiency, increased expense and confusion if the rules applicable to the ship change with every port and every coastal jurisdiction. Thanks to the efficiency and spirit of compromise in the International Maritime Organization for the most part we have that level platform of international regulation – but not entirely.
I am going to use this opportunity to briefly review the international regulation applicable in the case of maritime security and then use the problem of Somali piracy as a case study to underline my points.
The top of the pyramid in terms of international maritime law is the UN Convention on the Law of the Sea (UNCLOS). This remarkable treaty crystallises the long held traditional view that the high seas belong to no jurisdiction but that States have obligations to maintain them for peaceful purpose and to safeguard the merchant ships that carry the world’s trading goods.
The IMO itself has its foundation in a separate convention but essentially all of the IMO’s many instruments provide the detail that support the principles enshrined in UNCLOS.
After the terrible events of 9/11 in the United States, the IMO member States were quick to accede to US proposals to set new standards for maritime security; and so was the shipping industry. Very quickly the ISPS Code and its supporting regulation in SOLAS was conceived, adopted and became enforceable. But the industry had one serious reservation; the new maritime security regulation seemed to us to be almost exclusively focussed on preventing ships from being used as weapons rather than protecting the ship from attack regardless of the motivation.
In spite of this reservation, we have to be pleased that an effective regime is in place to ensure that ships conduct risk assessments and are certified compliant with ISPS. I invite you to note that from the outset of the ISPS drafting discussion, the industry argued that it had applicability on board ships regardless of the motivation of the attacker – be that political, terrorist, pirate, armed robbery, petty crime or even stowaway.
The SUA Convention and its protocols aim to ensure that appropriate action is taken against persons committing unlawful acts against ships and their passengers and crew. These include the seizure of ships by force; acts of violence against persons on board ships; and the placing of devices on board a ship which are likely to destroy or damage it. Additional offences aimed at combating terrorism were introduced by the 2005 Protocols. The SUA Convention obliges Contracting Governments either to extradite or to prosecute alleged offenders. Please remember this last point for I will return to it later. 156 States have signed the original SUA Convention but only 9 its 2005 protocols.
The Protocols provide safeguards for the lawful boarding of ships that we believe are essential. When countries embark on bilateral security arrangements, of which the Proliferation Security Initiative (PSI) is the most worrisome, these safeguards and some of the UNCLOS principles are undermined. In fact it could be argued that the PSI arrangements have been at the root of the singular failure of so many States to sign the 2005 SUA protocol.
So in maritime security terms, we have the foundations of international legislation in place. The foundation would be secure if more States ratified the original conventions and, equally important, ensured that their national legislation was amended to achieve full compliance with their obligations. But nevertheless the tools are in place and as a result ships have become more aware of security issues, of their own vulnerability and are therefore, de facto, more secure.
I think that the key components of a good secure ship are the Company Security Officer, the Ship Security Officer, the Risk Assessment and the Ship Security Plan. Implicit in this is the need to engage with the flag State to be kept advised of the security state required in various parts of the world and the obligation to inform the flag State of any security incident. Far too many flag States have abrogated their responsibility to receive Ship Security Alerts to the Company. This fact alone has been the cause of slow response times to recent piracy attacks on ships.
Mercifully terrorist attacks on ships are relatively rare; so rare in fact that we can recall the names of the ships involved – the Achille Lauro and the Limburg being the classic examples.
With that background I am going to turn to my case study of piracy in the waters off Somalia. Who here can recall the names of the 300 or so ships attacked off Somalia this year alone or even the names of the 32 ships hijacked this year by Somali piracy. How many can envisage the faces of the 532 crew who have been held hostage this year alone.
Eight ships and 78 crew are currently held hostage.
Back in the spring of 2008 when the constant but low level frequency of piracy in the Gulf of Aden erupted into a torrent of forceful attacks, the shipping industry found it impossible to get the immediate attention of the world’s governments. The United States – with an anti-terrorist maritime force already operating in the Arabian Gulf, Gulf of Aden and western Indian Ocean – was not prepared to be distracted by the need to restore law and order and to protect merchant seafarers in the Gulf of Aden. In the face of the clear obligations under UNCLOS – to which the USA is not a party but declares that it follows the principles – the USA publicly invited the merchant mariners to arm themselves. The industry therefore turned to the press to raise awareness of piracy into the public conscience – this was most effective and soon had the attention of governments. In fairness to Europe, I think that the announcement of the historic first European maritime force happened so quickly that it must have been underway even as we started our press campaign. The entry of Europe into the maritime scene as a force to be reckoned with was a remarkable turning point in the battle against piracy. This was the instigator for the deployment of warships from so many other countries around the world – countries that had a clear idea of the importance of maritime trade and strategic sea lanes to their own economic well being.
I will not dwell on this but today we have a significant deployment of warships from a host of countries – too numerous to name all of them – not under a unified command structure but coordinated in the innovative Shared Awareness and De-confliction arrangement co-chaired by EUNAVFOR and the United States. The shipping industry takes every opportunity to declare its debt of gratitude to those military forces that are deployed off Somalia to such good effect and I repeat those thanks now.
Political engagement led quickly to military engagement – I think that most countries engaged in this process have come to understand that like other international ‘peacekeeping’ forces this is an involvement that may very well endure for many years.
However therein lies our problem.
What has gone wrong? What is missing from the current arrangement? Why do we even need to contemplate keeping warships off the Somali coast for years to come?
Firstly many tried to draw parallels between the repression of piracy in the MalaccaStrait and the need to eradicate piracy off Somalia. It is a completely different case – in the MalaccaStrait we have seen fruitful and effective cooperation between the governments of Indonesia, Malaysia and Singapore in terms of joint patrols and joint agreements to make piracy unsustainable in the region. In the case of Somalia there is no effective legitimate government with sufficient control to impose law and order. Entirely different approaches are needed.
In the context of international law we see maritime powers fulfilling their obligations to keep the sea lanes open and to defend the passage of world trade. They have been greatly assisted in this duty by several UN Security Council resolutions – two particular outcomes should be underlined – the establishment of the International Contact Group is a very good thing and the extension of high seas rules into Somali territorial waters is essential.
The military deployments, the international coordination and the current force levels are probably as good as they are ever going to get. And yet the rate of pirate attacks continues to increase, the ratio of successful hijacks is mercifully lower but there seems to be an international malaise. There is a fatalistic acceptance that there is a certain level of piracy that is deemed inevitable. Not in my book!
Deterrence is quite simply failing. One reason for this is the inability of the international community to demonstrate a single-minded dedication to arresting and prosecuting alleged pirates and then incarcerating those found guilty. This needs to be done on a grand scale if its deterrent effect is to be widely felt ashore in Somalia. Why is this not being done? Firstly despite ratifications of UNCLOS and the SUA Convention many States lack the domestic legislation to prosecute an act of piracy. You will recall the obligation on State parties to SUA to extradite and prosecute offenders and the UNCLOS obligation to repress piracy.
Secondly whilst the bilateral arrangements with neighbouring States, notably Kenya, to undertake prosecutions are laudable, they are not producing a significant deterrent effect. What is required is the prosecution of large numbers of suspected pirates and, when proven guilty, meaningful incarceration. The use of an anti-piracy tribunal must be considered with much greater urgency; if established within an existing international court it can be done quickly and at no great cost. The enforcement of sentence is a much more difficult practical problem but surely capable of resolution given the political will to do so.
Today, warships are interdicting piracy attacks, confiscating arms and allowing the pirates to return safely to the Somali shore – this is not deterrence, this is a challenge to continue to conduct acts of piracy. These are not appropriate actions in the 21st century to counter what is by any measure a state of lawlessness.
Funding is an issue. The IMO has set up the Djibouti Code of Conduct Trust Fund to assist with capacity building in the region and this contains a very significant Japanese financial contribution; the International Contact Group is in the process of establishing a trust fund principally aimed at bearing the cost of prosecutions. Why are countries so slow to come forward with funds to assist these two entirely sensible measures? The bulk of the world’s tonnage is flagged in countries that have no maritime military forces; these countries are direct beneficiaries of the shipping industry and the trust funds that have been established are meaningful ways to repress piracy for those without the military power for more overt action.
The industry has an obligation to preserve its own safety within the framework of international law. Just like any citizen on any street, ships must do what they can in terms of self defense. In the case of ships this means preparation, awareness and passive self-defensive measures to prevent pirates getting on board. These include aggressive manoeuvring, the placing of obstacles to hinder illegal boarding and a determination not to be boarded in the face of a hail of bullets and rocket propelled grenades from increasingly desperate pirate gangs. Industry has produced a set of dedicated guidance for ships passing within 600 mils or so of the Somali coast – this document is known as the Best Management Practice (BMP for short). We believe that we have managed to place this document on all of the ships within the membership of recognised international organisations. We need the help and support of the world’s flag States to ensure that all of their ships operate in accordance with this guidance. Guidance incidentally that is periodically updated to keep pace with changing pirate tactics. If all flag States operated in support of the guidance produced by IMO and industry and applied the ISPS Code strictly then ships would be better equipped to prevent boardings.
In one of the IMO guidance documents, flag States are requested to report the findings of investigations into attacks – successful or not – to IMO. Not one flag State has done this. It is our view that a thorough review of the lessons learned to date, engaging all stakeholders, would reveal the path for a new strategic direction. If we as a global society do not eradicate the business of piracy we run the very real risk of proliferation in other areas of the world and a further downward spiral into lawlessness.
These risks to the lives of the innocent seafarers who carry the raw materials and finished goods of world trade, to the vital sea lanes and to the very integrity of world trade, are simply unacceptable.
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