Seminar on Measures to Enhance Maritime Security

Brussels, 19-20 Nov 2009

Threats to Maritime SecurityRobert Beckman

Director, Center for International Law

2

Definition of Maritime Security

“Maritime Security” does not have a precise definition, and it seems to mean different things to different people

Maritime Security seems to have slightly different meanings when viewed in the context of traditional threats and non-traditional threats

When we speak of traditional threats to maritime security, we usually think of threats which increase the likelihood of confrontations between the naval forces of states

3

Traditional Threats

Traditional threats to maritime security include:

1. Assertive actions in defence of sovereignty claims over disputed off-shore islands or in defence of disputed maritime boundaries

2. Incidents at sea between a naval power asserting what it believes is its right under UNCLOS to conduct surveys or military activities in the EEZ, and a coastal state which believes it has a right under UNCLOS to regulate such activity

4

Potential “traditional threat”

The extended continental shelf submissions made in May 2009 by States in Southeast Asia and East Asia, and the official protests made by other States to those submissions

The submissions and protests laid bare the competing sovereignty claims to islands in the South China Sea which have not been discussed openly for several years

If not handled with prudence and caution, the extended shelf submissions could pose a threat to maritime security in the region

5

Non-Traditional ThreatsNon-traditional threats to maritime security

consist of threats to international commercial shipping, including ships, ports and other facilities

It could also include threats to off-shore installations and submarine cables

In my view it would not include threats to the “maritime domain”, such as IUU fishing and climate change

In my view regional cooperation would be easier if a narrower definition were adopted

6

IMO Measures on Maritime Security

• The definition I have proposed covers the measures taken by the IMO in 2002 to enhance maritime security, including the ISPS Code on ship and port security

• The definition I have proposed is consistent with the Batam Joint Statement of the 4th Tripartite Ministerial Meeting of the Littoral States on the Straits of Malacca and Singapore

• The definition is also consistent with the national measures taken by many States to enhance maritime security

7

Non-Traditional Threats

1. Piracy on the high seas or in the EEZ

2. Armed robbery against ships in ports, territorial sea or archipelagic waters

3. Hijacking of ships, usually for ransom

4. Hostage-taking - crew members for ransom

5. Maritime Terrorism – intentional destruction of ships, port facilities, navigational facilities or off-shore facilities

6. Transport of terrorists by sea

7. Proliferation of WMD by sea

8

Threats not “international crimes”

• Armed robbery against ships in port

• Armed robbery against ships in territorial sea or archipelagic waters that does not involve - 1. Seizing or exercising control of a ship by force of

threat of force (1988 SUA)

2. Act of violence against person on the ship that is likely to endanger safe navigation (1988 SUA)

3. Taking crew members hostage (1979 Hostages)• These threats should be handled by ensuring that

coastal States have capacity to secure their waters

9

Threats that are “International Crimes”

• Piracy - 1982 UNCLOS

• Hijacking of ships, violence against crew, and destruction of ships & navigational facilities - 1988 SUA

• Taking crew hostage - 1979 Hostages

• Using ship as weapon, transport of terrorists and transport of WMD by sea - 2005 SUA Protocol

• Any of above if an activity by international organized crime – 2000 TAC

10

2005 SUA Protocol

1. The 2005 SUA Protocol adds new offences to those in 1988 SUA in light of the threat of maritime terrorism and the proliferation of WMD by sea

2. The 2005 SUA Protocol includes provisions to expedite the boarding of suspect ships, but only on the high seas or in the EEZ, and only with the express consent of the flag State

3. States should give a high priority to ratifying and implementing the 2005 SUA Protocol

11

Unregulated threat – Submarine Cables

1. Most states rely on submarine cables for 95% to 99% of their international telecommunications

2. However, the intentional destruction of submarine cables in areas beyond the limits of the territorial sea :

• Is not an offence under any international convention

• May not be a criminal offence under the national laws of any state

3. A new “counter terrorism” convention is needed to protect submarine cables

12

Other Conventions as tools to enhance maritime security

1. Almost every instance of “Somali piracy” is an offence under 1988 SUA and 1979 Hostages as well as piracy under UNCLOS

2. Under 1988 SUA and 1979 Hostages, States Parties have jurisdiction over any alleged offenders (including accomplices) who are “present in their territory”

3. States parties have an obligation to take the alleged offenders into custody, and to either extradite or prosecute them

13

Transnational Organized Crime

1. Threats to maritime security which involve the hijacking of ships and/or the taking of crew members hostage for ransom almost always involve transnational organized crime

2. The 2000 TAC and any regional agreements on transnational organized crime should be used to combat such activities

3. 2000 TAC would enable States to pursue accomplices and trace money-laundering outside of Somalia

14

Problem of National Implementation

1. Many States have either not ratified or not implemented the provisions in the various conventions

2. Although all States have the right to seize pirates on the high seas and prosecute them, the legislation in many States does not give their navies the right to arrest the pirates or their courts the right to prosecute them

3. The various conventions cannot be effective in dealing with the threats unless all States in a region effectively implement them

15

Conclusions1. Somalia could serve as a “precedent” to

threaten maritime security in other regions, especially the taking of crew members hostage

2. States must be ready to deal with threats to maritime security by ratifying and effectively implementing all of the relevant conventions

3. A new convention is required to protect submarine cables

4. Regional and sub-regional agreements should supplement global conventions to ensure effective cooperation

16

Thanks for Your Attention

Prof Robert Beckman

Director, Centre for International Law, NUS

Email: cildir@nus.edu.sgWebsite: www.cil.edu.sg