Maritime Law and International Port Security - Essay Example

Introduction The mankind since olden times connected its vital interests with the sea. These interests are determined by needs of the s for protection of their sovereignty and territorial integrity, development of navigation, investigation and extraction of alive and material resources, arrangement of separate elements of ocean infrastructure, protection and preservation of ocean environment and natural resources, carrying out of scientific researches, and also use of the sea as area of the international cooperation. However sea is used not only for the good of the commonwealth. On the sea may be carried on various unlawful acts representing the threat to radical interests of the states. In the theory of international law and practical activities for a designation of these acts the term "a crime of the international character" is often used. The piracy and the armed robbery of ships belong to such crimes at sea. Last years the international terrorism has left the national frameworks and has turned into a problem of a world scale, becoming one of the most dangerous and unpredictable criminal actions. Sea objects often become the targets of terrorist organizations for putting pressure upon the governments of various countries. Though in the issue these actions do not lead to achievement of results desirable by terrorists, all of them involve people's sufferings, and even worst human victims, and cause a significant material damage. Piracy is unlawful actions against navigation in the waters outside of national jurisdiction of this or that country. It belongs to one of the most ancient threats to the vital interests of the states, representing now real danger to navigation and, first of all, to the rights of each person to life, to freedom, and to inviolability. Modern piracy is a child of criminal organizations. Some kind of trans-national corporations, which are engaged in traffic of drugs, weapon, contraband, now come into operation on the sea. The first one of their revenues is a piracy in traditional sense of the word. The second and, perhaps, more essential is the fulfilment of orders of big business. It is generally known that monopolies wage cruel war with each other. And frequently monopolists in order to overcome the competitor, to get ahead of it, to make it weaker by causing some material damage recourse to services of pirates. Making illegal actions, criminals not only abduct some material values, but also use power that cause damage to people's health and even murders. Actions of terrorists, which aspire to reach their purposes, at the expense of life of harmless people are similar. In order to have a possibility to struggle the terrorist and pirates attacks and to ensure secure maritime operations both at the sea and ashore it has been worked out the International Ship and Port Facility Security Code. Let us make analysis of the Code and its implementation. ISPS Code and its Implementation What is ISPS Code From the beginning of the 1980s the problem of safety at sea has become a subject of constant attention of the international governmental and nongovernmental organizations. As it was mentioned above the only way to get a result in the battle with various unlawful acts at sea is to combine the efforts of both governmental and nongovernmental organizations of all states. First of all let us consider overview of the notification obligations of ISPs and network operators in selected EU countries made by Patrick Camerer Cuss (2007). He provided the analysis of Security breaches in different EU countries. The UK When must you disclose To whom must you disclose Does National Law state what "appropriate Security Measures" are Response of the Member State to the Commission's Proposal When "there remains a significant risk to the security of the public electronic communications service". Privacy and Electronic Communications Regulations Guidance from the Information Commissioner's office suggests that ISP and Network Operators should disclose to the subscriber not to all users of the service. There is currently no obligation to disclose to the Information Commissioner's office. No. The UK government argued that appropriate levels of security can be achieved through co-operation with industry and by educating end-users. Furthermore the UK argued that the obligation to notify customers of security breaches should only be in relation to security breaches that result in personal data being disclosed. Spain When must you disclose To whom must you disclose Does National Law state what "appropriate Security Measures" are Response of the Member State to the Commission's Proposal If a particular risk arises threatening the security of the public network of electronic communications, the operator exploiting such network or providing the electronic communications service shall inform its customers about the risk and the measures that should be implemented. Article 34 of the Telecommunications Act To customers. However, the legislation does not specify if "customers" mean all the customers of these operators or only those customers affected by the risk. Yes, there are different security measures depending on what the data is. All data files must implement a basic level of security measures which, among other things must include the adoption of a "Security Document" that contains a summary of all the applicable security measures. Other types of data have more stringent measures, which may include an audit of compliance with the Security Document. For data files that contain information that is sensitive personal data, that information should be encrypted. Spain affirmed that the most important objective of the new legal framework is to try to ensure effective protection of consumers and also to ensure access to essential services. Additionally Spain considers that it is important to increase the transparency between operators and consumers, and also to specify the security measures that operators shall implement in order to improve the current situation. Italy When must you disclose To whom must you disclose Does National Law state what "appropriate Security Measures" are Response of the Member State to the Commission's Proposal Where there is a particular risk of a breach of network security. Section 32 (3) of the Data Protection Code Subscribers and, if possible, users Additionally where the risk lies outside the scope of the standard technological measures set out in the Data Protection Code, you must also inform the Italian Data Protection Authority and the Authority for Communication Safeguards. Yes. Annex B to the Italian Data Protection Code sets out minimum security measures These include having an up to date security document, and ensuring that there are procedures for protecting the security of the data. In some cases encryption is necessary. The Italian Data Protection Authority has not commented on the Commission's proposal Sweden When must you disclose To whom must you disclose Does National Law state what "appropriate Security Measures" are Response of the Member State to the Commission's Proposal Where there is a particular risk of inadequate protection of the data processed. Section 4 - Swedish Electronic Communications Act Subscribers No The Swedish government's view is that rather than drafting additional principles on the protection of personal data, the operators and ISPs should be required to ensure security and confidentiality on a general level. The government went further to say that the notification requirement should not be limited to integrity-related incidents, but should also include an obligation to provide information about important service outages and other interruptions. Regarding the requirement to notify the national regulatory authority, the Swedish government's view is that only serious incidents should be reported The Netherlands When must you disclose To whom must you disclose Does National Law state what "appropriate Security Measures" are Response of the Member State to the Commission's Proposal When there are "special risks" to the security of their data. Special risks are those risks that fall outside the remit of the provider's duty to protect their subscribers Dutch Telecommunications Act Subscribers No The Dutch government agrees that there should be notification to both clients and to the national regulatory authorities after all security breaches. The national security advisors can then in turn inform the general public. The Dutch government's view is that it is not always appropriate to notify security breaches to all. Germany When must you disclose To whom must you disclose Does National Law state what "appropriate Security Measures" are Response of the Member State to the Commission's Proposal When there remains a particular risk to the network security Section 93 (2) of the Telecommunications Act Subscribers (not all users of the service) No The German response to the Commission's proposal is not yet publicly available. France When must you disclose To whom must you disclose Does National Law state what "appropriate Security Measures" are Response of the Member State to the Commission's Proposal Where there is a particular risk of breach of the security of the public communications network French Postal and Electronic Communications Code Subscribers (it is unclear whether this includes all users of the service). No The French authorities welcomed the comments of the commission. Its view was that it is essential for appropriate national authorities to be able to decide additional measures, particularly on the basis of the level of risk. France believes that liability in the event of an infringement of security obligations should remain a national law issue. It is rather important to note, that the problem of piracy, as a rule, is considered together with the problem of the armed robbery of the ships, which are carried out within the borderlines of internal waters and the territorial waters of states. Necessity of complex consideration of these crimes and struggle against them is caused, first of all, by the fact that for criminals there is no essential difference where they make attacks on vessels: in the high sea, in the territorial sea or in internal waters of a state. Terrorism, piracy, armed robbery and other unlawful actions directed against the safety of navigation, not always occur within the limits of water area. Very often they take place or anyway have the beginning within the limits of water area of port. Therefore actions on safety of navigation should be considered together with safety of port facilities. Struggle against criminality on the sea in view of its specificity and complexity cannot be a prerogative of any separate state body. It should be carried out only by their close cooperation, and by interaction with similar state bodies of the foreign states. Nowadays the International Maritime Organization (IMO) plays the main coordinating role in this process. The system of measures on safety of ships and ports is created on the basis of the International Convention for the Safety of Life at Sea 1974 (SOLAS-74) with amendments, the International Ship and Port Facility Security Code (ISPS Code) and IMO recommendations. Its fundamental objective is to ensure the safety of life and health of passengers, crewmembers, and also the safety of ships, port facilities, and their personnel. The significant role in creation of this system belongs to IMO and especially to its Maritime Safety Committee (MSC). The Committee constantly generalizes the cases of piracy, armed robberies and other illegal actions on the sea, arranges seminars and practical trainings. One of results of this work is circular letters, which contain recommendations on counteraction to such illegal actions. After the tragically events on September 11, 2001 in the USA it has became obvious that recommendations are not enough. At the 22nd session of IMO Assembly in November 2001 the Resolution .924(22), which ascertain the necessity of the development of new measures concerning the protection of ships and port facilities has been unanimously accepted. Chapter XI-2 of SOLAS-74 and the ISPS Code have become the culmination moment of intensive and near work of the IMO Maritime Safety Committee and its working group. In December 2002 the Conference of SOLAS Contracting Governments on Maritime Security, organised in London, has approved both these documents. The statements of these documents have entered into force new safety standards for the objects of sea transport, which participate in the international sea transportations. According to Soyer (2005, p.63), the main objective of the Code is to provide a standardised, consistent framework for evaluating risk and detecting security threats affecting ships and port facilities used in the international trade. To this end, ship-owning companies, contacting states, post facilities and their administrations and flag states have been places under various obligations by the ISPS Code. The minimal requirements of functional safety established by ISPS Code for ships, which implementation affords ground for getting the certificate of the international standard, include the presence of: Approved by the representative authority Ship Security Plan, Trained in appropriate way the responsible person onboard of a vessel and the responsible person in staff of the company, Necessary security equipment. For port facilities they provide the presence of estimation of security, the security plan of the object, the responsible person, and the equipment able to provide safety. In port facility and ship security plans should be touched upon the issues of monitoring and control of access to ships, actions of crew, passengers, visitors, sellers, experts on repair, the personnel of port facilities, etc., conditions of cargo and maintenance of availability of communication facilities in case of danger. The ISPS Code is applied to: Passenger ships, including high-speed, Cargo ships, including high-speed vessels, with gross tonnage 500 metric tons and more, Mobile offshore drilling units; Port facilities providing services to such ships. ISPS Code Implementation in UK 95 % of UK import/export trade is carried by sea. That is why in order to ensure constant economic growth it is necessary to provide an open and secure line of sea commerce in UK. In total, there are more than 650 ports in the UK for which statutory harbour authority powers have been granted, of which 120 are commercially active. The UK ports industry is the largest in Europe in terms of freight tonnage, handling a total of 573 million tonnes of foreign and domestic traffic in 2004. UK undertakes the all-round measures directed on practical realization of the ISPS requirements. Department for Transport coordinates this work by means of Transport Security Directorate and Maritime and Coastguard Agency, which are responsible throughout the UK for implementing the Government's maritime safety policy. Department for Transport is the UK's Designated Authority, it is charged with delivering and maintaining compliance with the Code. Department for Transport's Transport Security Directorate (TRANSEC) is responsible for: Implementation of security measures in ports; Implementation of security measures for passenger ships; AMSA compliance for passenger ships and ports; MCA has been delegated tasks: Implementation of security measures for cargo ships Issuing International Ship Security Certificates for Commercial shipping Undertaking PSC inspections of foreign vessels Receive security information from inbound ships (under discussion) Communicating security levels to ships. Carrying out the duties, the Maritime and Coastguard Agency realizes the system of measures directed on: Development of corresponding national normative base, Organization and carrying out of arrangements towards the evaluation of security of ships and port facilities, the development and approval of their security plans, the delivery of appropriate International Certificates, Working out and efficient functioning of system of training experts in the field of security, Interaction with IMO, etc. In the initial stage of ISPS Code implementation it has been necessary to analyse the volume of work and to check quantity of the objects, which have operated under new international standards. It has been worked out the necessary package of normative documents. UK Maritime and Coastguard Agency today has the necessary set of the documents explaining the procedures of getting of all necessary certificates for ships and post facilities. Time frameworks of the international certification and frequency of ships and port facilities inspections are determined by the section 19 of the obligatory part 'A' and the section 16 of the part 'B' of ISPS Code. Each vessel, to which ISPS Code is applied, is a subject to initial inspection before a ship enters in exploitation or before the certificate is issued for the first time, for renewal of the certificate through certain periods of time, and also if necessary for any other additional inspections. The Maritime and Coastguard Agency conduct inspections of port facilities as for the conformity to the international and national requirements on security, makes enumeration of the port facilities having approved security plans and Acts testifying the conformity of port facilities, for the subsequent notification of the International Maritime Organization. The subsequent measures on inspection and terms of their performance are stated in the Act of inspection. According to the rule 9 of chapter XI-2 of the Convention each ship at staying in the port of foreign country, the member of the contract is a subject of control by the officials properly authorized by the government of this country. Such control should be limited by checking of availability on board of the ship of the valid International Ship Security Certificate, which has been issued on the basis of part 'A' of ISPS Code. If the certificate is valid and there are no obvious grounds to believe, that the vessel does not carry out the established requirements, it should be accepted. If such grounds are available or if the International Ship Security Certificate is not shown on demand, the object of control will get the appropriate sanctions, such as inspection, ship's departure delay, restriction of operations, etc. With the aim of definition of national approaches to the implementation of the international security requirements United Kingdom has taken part in the international meetings and seminars, in particular, in work of IMO Assembly, session of Group of antiterrorist actions of G8. It have been conducted a lot of working meetings with representatives of USA Coast Guard, transport police of Germany, sea administrations of Denmark, France, Turkey and other countries. Now mutually advantageous cooperation continues. With a view of providing the maximal openness and simplicity of access to the information on activity of Maritime and Coastguard Agency has been created the Internet site (http://www.mcga.gov.uk), on which necessary information concerning performance of the international requirements on security of ships and port facilities is provided. The ISPS and its Impact on National Law The ISPS Code was given direct legal effect in the UK by the adoption of EC Regulation 725/2004 on enhancing ship and port facility security, by all Member States of the European Union on 31st March 2004. The Regulation entered into force on 19th May and applied from 1st July 2004. According to Select Committee on Transport, "In addition the UK developed secondary legislation to create offences and penalties in the Ship and Port Facility (Security) Regulations 2004 which came into force on 1st July 2004. The ISPS implementation process was communicated to industry and other Government stakeholders by TRANSEC and MCA at regular intervals". The ISPS Code has two parts. Part A contains the mandatory obligations of relevant parties, i.e. ship owning companies, contracting states and port facility administrations. Part B contains guidance notes explaining how Part A should be implemented and operated. It should be mentioned that there are some differences in implementation of ISPS Code in different countries with respect to national law. The US incorporated the ISPS Code into the national law, and made both parts of the Code mandatory. The European Parliament passed EC Regulation No. 725/2004, which called for the adoption of the whole of Part A and the mandatory adoption of certain provisions of Part B by July 2004. In the UK "implementation of the IMO requirements will form part of the National Maritime Security Programme (NMSP) that will bring together the IMO requirements and the UK's existing maritime security regime to provide a comprehensive protective security regime for UK ships and ports. The NMSP will also consider those ships and ports not covered by a mandatory security regime" (Dean, 2003). According to Tang (2006), one of the major international marine centres, the UK implemented the ISPS Code into English law by the Ship and Port Facility (Security) Regulations 2004 (SI 2004/1495). Let us consider some specifics of legal implementation of the ISPS Code. Under common law, if a vessel is ordered to a port that does not allow loading or discharging without a local Government permit and which could result in the vessel being confiscated if it entered the port, that port has been held to be an unsafe port [Ogden v. Graham (1861) 1 B & S 773]. The ship owner is entitled to refuse charterer's order in going to an unsafe port. Under the ISPS Code, if the charterer has nominated a single port only in the charter party, then the carrier may be liable for misrepresenting that the vessel had the necessary ISPS compliance to allow entry. "However, the legal implication would be different if the charterer had nominated one port out of a range of ports. Such a nomination could be invalid because the charterer could exercise his right of making an alternative (valid) nomination" (Tang, 2006). The legal ground to order an alternative valid nomination could be found in Olivebank A/S v. Dansk Svovlsyre Fabrik [(1919) 2 KB 162], here Bankes LJ made the following observation on pages 166 to 167: "the nomination of 0Aalborg as the port of discharge, when it was perfectly well known that the ship could not proceed there because of the restriction on the carriage of nitrates from the UK to Denmark, was in truth and in fact no exercise of the option at all. It was merely a nugatory nomination and which could not possibly be acted upon. I have come to the conclusion that, under the circumstances existing at the time when Springbank arrived at Falmouth, and was entitled to orders, it was the duty of the defendants to give her orders, within the limits of the ports mentioned in the charter party, to go some port to which she could proceed within a reasonable time." It should be stated that the Heads of the organizations, which operated at the territory of seaports, and ship owners according to the UK legislation bear the responsibility for duly the appropriate material support and financing of all necessary security measures. Among the main obligation of the ship-owing companies set by the ISPS Code we may observe the following: Make sure that each of it vessels carry on board Ship Security Plan approved by the relevant administration1. Appoint a Ship Security Officer for each of its vessels2. Designate a Company Security Officer for every vessel it owns3. Retain a vast amount of records relating to: training, drills, and exercises; security threats and incidents; breaches of security; periodic review of each ship security assessment, etc4. According to Dean (2003), "English Courts will now be more inclined to hold a carrier or port authority has a greater responsibility to detect the contents of containers carried in their ship or passing through their terminal. If they fail to establish a proper system for checking and there is an incident involving a terrorist packed cargo, the carrier and/or the terminal are more likely to be held liable". Speaking at a seminar to discuss the legal implications of the International Ship and Port Facility Security Code Mr Dean said: "Using ISM as an example since the events of September 11, and following the implementation of the ISPS Code, there is a real possibility that the English courts will now be more inclined to hold that a carrier or port authority has a greater responsibility to detect the contents of containers carried in their ship or passing through their terminal". Other provisions of UK in order to make its ports and ships more secure It should be mentioned the ISPS Code is not the only document that is focused on the security issues for UK Maritime system. There are some other provisions the UK has considered in order to make its ports and ships more secure. For a long time the UK Department for Transport and its predecessors have made a lot of efforts in order to struggle the attacks of pirates and terrorists. Before the Foreign and Commonwealth Office (FCO) has been responsible for the dealing with the issues of piracy. In 2004 the responsibility has passed to the Department of Transport (DfT). From that moment the FCO was responsible for the international issue, and the Department for Transport was leading on the defensive measures for the UK shipping. The Department for Transport in cooperation with the Foreign and Commonwealth Office and the Ministry of Defence has worked out the Strategy of fighting against piracy, which has been agreed with Alistair Darling and Jack Straw and presented to International Maritime Organisation. Later on the Department of Transport has updated and amended the UK's official guidance titled "Measures to counter piracy, armed robbery, and other acts of violence against merchant shipping", published by the Maritime and the Coastguard Agency as Maritime Guidance Note 298. It observes the world areas where the cases of piracy has been mostly occurred and lists the tactics usually used by pirates on attacking the ships. Moreover the Note gives recommendations about the actions that may be taken in order to prevent an attack and the actions that should be taken in case pirates already board the ship. The revised Note takes into account the changes resulting from the implementation of the International Ship and Port Facility Security Code, which is the new international maritime security framework, and it contains the latest information that Government has available on piracy. Nowadays the Department for Transport researches and evaluates new technologies in partnership with the Home Office that an improve detection capabilities, enhance protective ship security and defensive measures in the even of an attack and allow rapid and accurate reporting of piracy attacks. According to Dunwoody (2006), over the past seven years UK Government has made a lot of actions to combat the piracy: Participated in several IMO regional Missions and Seminars in "piracy hotspots" presenting UK Government actions and chairing working groups and syndicates. Provided UK financial support for the IMO programme of Missions and Seminars, including funding of participation of two Metropolian Police officers with expertise in investigating act of piracy and more recently to conduct a feasibility study to develop an integrated coastguard for West and Central Africa. The Department for Transport and Metropolian Police prepared a draft Code of Practice on investigation of acts of piracy and armed robbery at sea. Moreover the UK prepares a Code of practice for the registration of "phantom" ships. These codes were adopted by the IMO General Assembly and have been issued as Circulars to all IMO member states. Conclusion After the certain period of "work" of SOLAS-74, the main IMO instrument, in the navigable industry experts have tried to evaluate the benefits of the Code and existing failures of its implementation. It has be conducted the extensive questioning of the various companies, firms, and organizations participating in sea transport turnover, and the analysis of the received answers and opinions. On the basis of the received data substantiated conclusions about the contribution to safety of navigation, which has been brought by the Code, the ways of further perfection of the document, the increase of efficiency of its implementation ashore and on aboard ships have been made. The received results have been generalized in the book 'The Cracking Code " (Anderson, 2003). The similar research has been recently conduced by the international organization International Transport Workers' Federation concerning IMO document put into operation from the 1st July 2004, the ISPS Code. Corresponding questionnaires have been dispatched in January 2005 to International Transport Workers' Federation inspectors (127 persons) and in 230 trade-union organizations, members of International Transport Workers' Federation, which represent about 700,000 seamen, port workers, employees of transport service agencies. It has been received 58 filled questionnaires. The opinion concerning the efficiency of ISPS Code has been expressed by representatives of sea trade unions of the Great Britain, China, Belgium, Malta, Brazil, the USA, Spain, India, etc. It can be stated, that the received questionnaires represent opinion of approximately 165 thousand seamen. The analysis the sent in International Transport Workers' Federation responses testifies, that implementation of the ISPS Code in practice of navigation has brought for seafarers: Increase of pressure of work; Increase of the responsibility; Absence of corresponding increase of salary; Inadequate training; Restriction in coming ashore in ports; Problems in getting of the US visa; Difficulties in visiting ships by representatives of trade unions and charitable organizations. About 58 % of respondents have not received the sanction to go ashore in ports of the USA, Northern Europe, Taiwan, etc. More than 62 % of the persons, who have sent answers, consider that training of ship officers on security is insufficient and does not correspond to the requirements of practice. The implementation of ISPS Code has not led to increase of quantity of crew though the work pressure and requirements to people onboard have essentially increased. Practical application of the Code causes many questions: for example, how to identify the terrorist or how to act in case the armed people (security guards) enter onboard of the ship and refuse to show the documents to the watchman at the gangway Apparently, introduction of ISPS Code has caused many the negative aspects. And how about positive ones It has appeared that there are also positive opinions. 59 % of respondents consider that the Code has raised security onboard ships and in ports. Such encouraging conclusion is accompanied by the comment that after implementation of the ISPS Code the quantity of armed attacks has decreased. International Transport Workers' Federation report comes to the end with an appeal to the states of flag and to ship owners to put more efforts (and financing) for the ship personnel training and decrease of risk of attacks of ships and port facilities. Today everyone understands that it is necessary to resist to the threat of terrorism and other unlawful acts at sea. The acceptance of new international standards of safety is caused by vital necessity. Expenses of the navigable and stevedore companies are inevitable, however in comparison with existing world tariffs are not so big and with usury are pay off by means of incomes received from participation in the international transportations. The losses from terrorist attacks and other unlawful acts may be much more great. References: Anderson, P. (2003) Cracking the Code - The Relevance of the ISM Code and its Impact on Shipping Practices. WMU JOURNAL OF MARITIME AFFAIRS. 2004, VOL 3; NUMB 1, p. 103-205 Cuss, Patrick Camerer (2007, February, 7). Security breaches: overview of the notification obligations of ISPs and network operators in selected EU countries. Bird & Bird, Retrieved March 21, 2007, from http://www.twobirds.com/english/about/about.cfm Dean, Paul (2003, September, 11). The Unexpected Legal Implications of the ISPS Code. Holman Fenwick & Willan, London, Retrieved March, 23, 2007, from http://www.hfw.com/l3/new/fnewl3c.html Dunwoody, Gwyneth (2006). Piracy: eighth report of session 2005-06 report, together with formal minutes, oral and written evidence. Great Britain Parliament House of Commons Transport Committee: Stationery Office. International Convention for the Safety of Life at Sea "SOLAS" 1974 International Ship and Port Facility Code. Soyer, Baris (2005). Warranties in Marine Insurance. London: Routledge Cavendish. Tang, Owen (2006, August, 16). Legal implications of the ISPS Code on marine insurance. tdctrade.com, from http://previewhongkong.tdctrade.com/content.aspxdata=hk_content_en&contentid=666116&src=HK_BuNeTr&w_sid=194&w_pid=644&w_nid=10027&w_cid=666116&w_idt=1900-01-01&w_oid=111 Read More