Faculteit Rechtsgeleerdheid Universiteit Gent Academiejaar

Faculteit Rechtsgeleerdheid

Universiteit Gent

Academiejaar 2009-10

THE ISPS Code and the influence on shipping

Masterproef van de opleiding

„Master in de rechten‟

Ingediend door

Isabelle Meau

(studentennr. 20055810)

(major: nationaal en internationaal publiekrecht)

Promotor: Prof. Dr. Eduard Somers

Commissaris: Jasmine Coppens

Isabelle Meau The ISPS Code and the influence on shipping

Tweede master in de rechten Promotor: Prof. Dr. Eduard Somers

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MASTER DISSERTATION: the ISPS code and the influence on shipping

STRUCTURE

1. TABLE OF CONTENTS

1. TABLE OF CONTENTS

2. FOREWORD

3. LIST OF ABBREVIATIONS

4. BACKGROUND

5. JURIDICAL FRAMEWORK AND ANALYSIS

CHAPTER 1: BEFORE THE ISPS CODE

1. UN ROLE IN MARITIME SECURITY

2. SECURITY RULES

3. OTHER SECURITY RELATED INSTRUMENTS

CHAPTER 2: PREPARATORY STAGE

AMENDMENT TO THE SOLAS CONVENTION

CHAPTER 3: FROM THE ISPS CODE

STRUCTURE OF THE ISPS CODE

PART A: MANDATORY

GENERAL

OBJECTIVES OF THE CODE

FUNCTIONAL REQUIREMENTS

DEFINITIONS

APPLICATION

RESPONSIBILITIES OF THE CONTRACTING

GOVERNMENTS

DECLARATION OF SECURITY

OBLIGATIONS OF THE COMPANY

SHIP SECURITY

SHIP SECURITY ASSESSMENT

SHIP SECURITY PLAN

RECORDS

COMPANY SECURITY OFFICER

SHIP SECURITY OFFICER

TRAINING, DRILLS AND EXERCISES ON SHIP

SECURITY

PORT FACILITY SECURITY

PORT FACILITY SECURITY ASSESSMENT

PORT FACILITY SECURITY PLAN

PORT FACILITY SECURITY OFFICER

TRAINING, DRILLS AND EXERCISES ON PORT

FACILITY SECURITY

VERIFICATION AND CERTIFICATION FOR SHIPS

VERIFICATION

ISSUE OR ENDORSEMENT OF CERTIFICATE

DURATION AND VALIDITY OF CERTIFICATE

INTERIM CERTIFICATION

PART B: RECOMMENDATORY

THE CHANGE SINCE 1 JULY 2004



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CHAPTER 4: COMPARATIVE STUDY ON THE IMPLEMENTATION OF

THE CODE IN DIFFERENT REGIONS

1. IMPLEMENTATION OF THE ISPS CODE IN BELGIUM

2. IMPLEMENTATION OF THE ISPS CODE IN FRENCH PORTS

3. COLOMBIA, CARTAGENA DE INDIAS

4. CANADA AND THE ISPS CODE

CHAPTER 5: INTRODUCTION IN THE EU

CHAPTER 6: OTHER NATIONAL INITIATIVES

1. CONTAINER SECURITY INITIATIVE

2. CUSTOMS-TRADE PARTNERSHIP AGAINST TERRORISM

3. BIO-TERRORISM ACT OF 2002

4. 24-HOUR ADVANCE MANIFEST RULE

5. PROLIFERATION SECURITY INITIATIVE

6. THE INFLUENCE ON SHIPPING

INTRODUCTION

CHAPTER 1: SHIPS AND PORTS

1. SHIPS AND PORTS

2. SECURITY THREAT ASSESSMENTS

CHAPTER 2:LATEST NEWS AND FUTURE

CONTINUOUS SYNOPSIS RECORD

CHAPTER 3: THE COST OF COMPLIANCE WITH THE CODE

1. THE COST OF COMPLIANCE

2. ABOUT THE IMPLEMENTATION OF THE ISPS CODE AND

ADDITIONAL MEASURES

3. HOW TO FINANCE THESE COSTS?

4. WHEN THERE IS PUBLIC INTERVENTION, FUNDING AND

ASSISTANCE

CHAPTER 4: COMPATIBILITY OF MARITIME SECURITY EFFORTS

WITH TRADE RULES AND INTERNATIONAL LAW

CHAPTER 5: APPLICATIONS

PIRACY

HISTORY OF THE LEGAL FRAMEWORK

JURIDICAL ASPECT

QUARTERLY RESEARCH

YEARLY RESEARCH

ATTACKS ON SHIPS OFF THE COAST OF SOMALIA

ANTI-PIRACY SYSTEMS

7. CONCLUSION



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8. ANNEXES

ANNEX I: SECURITY LEVELS

ANNEX II: DEFINITIONS PART A ISPS CODE

ANNEX III: ISPS CODE –RELATED AVERAGE ANNUAL

UNIT COSTS

ANNEX IV: FORM OF THE INTERNATIONAL SHIP

SECURITY CERTIFICATE

ANNEX V: RISK ANALYSE/ REGULATION 725/2004

ANNEX VI: ACTS OF PIRACY AND ARMED ROBBERY

DURING THE FOURTH QUARTER OF 2007

ANNEX VII: ACTS OF PIRACY AND ARMED ROBBERY

DURING THE FOURTH QUARTER OF 2008

ANNEX VIII: REPORTED ACTS OF PIRACY AND ARMED

ROBBERY AGAINST SHIPS REPORTED IN 2007

ANNEX IX: REPORTED ACTS OF PIRACY AND ARMED

ROBBERY AGAINST SHIPS COMMITTED

DURING 2008

ANNEX X: REGIONAL ANALYSIS DURING 2009

ANNEX XI: YEARLY STATISTICS OF INCIDENT SINCE 1984

WORLDWIDE

9. BIBLIOGRAPHY

1. CONVENTIONS

2. CODES

3. BOOKS

4. PERIODICALS

5. INTERNET



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2. FOREWORD

In the last sprint to my master degree of law I have chosen to do my master dissertation with the

department of international public law. I am very grateful to Professor Somers for the possibility that

he has given me to write my master dissertation about the ISPS Code and the influence on shipping.

First of all I want to thank Professor Somers for his enthusiasm concerning the law of the sea which

motivated me to go further into the exploration of shipping. Furthermore I want to thank Jasmine

Coppens for the assistance during the making of my master dissertation and for the encouragements.

By this way I also want to thank some persons for answering my questions concerning difficulties that

occurred during the writing of my paper, and more specifically Guido Van Meel, Captain Alexander

Jackson and Peter Van De Vijver. At last I am also grateful for the encouragements of my parents and

my fiancé during the making of my master dissertation, and a thanks to all others that have made me

carry on.

First of all, I would like to explain why I chose this title of my master dissertation. Because of the fact

that the ISPS Code is developed in order to enhance the maritime security it is rather obvious that the

influence on shipping will be discussed. Since 2004 the contracting Governments to the SOLAS

Convention must comply with this Code, these rules are still very young and therefore an evaluation is

certainly opportune to react to incidents or to problems in the future, and eventually to create

innovative legislation and/or other systems to enhance the maritime security.1

To show why the ISPS Code has been developed, it will be necessary to give a global overview of the

background. This background information will be needed to understand the whole juridical framework

of the Code and will give a greater insight. What has to be done to obtain a certificate in compliance

with the regulation will also be explained, as well as the costs of compliance with the ISPS Code.2 In

my paper a timeline will be given concerning terrorism in the shipping industry, where all important

changes will be reviewed resulting in the amendment of the SOLAS Convention. This part of my

paper will be describing, and also explaining in order to understand the existence of the Code.

Hereafter the structure will be commentated of the mandatory and the recommendatory part.

Further when comparing the differences of the implementation and the use of the ISPS Code, the

intention is to compare a part of the world. This for the reason of enclosing the investigation field,

otherwise the investigation field will be too wide.

The ISPS Code has been developed to stop/prevent terrorism. Terrorism has also different layers, and

one of them has nowadays a big impact on the field of the shipping industries. It is known that piracy

is a big problem for merchant ships, therefore it is opportune to investigate whether the Code has a

positive impact or not.

In my conclusion I will give the analysis of the five year overview of the Code, and an evaluation in

globo.

1 IMO, International Convention for the Safety of Life at Sea (1974), SOLAS : consolidated text of the

International Convention for the Safety of Life at Sea, 1974, and its Protocol of 1978--articles, annex, and

certificates, London: International Maritime Organization, 1992, 543 p 2 UNCTAD/SDTE/TLB/2007/1, 14 March 2007



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OBJECTIVES OF THE MASTER DISSERTATION AND RESEARCH QUESTIONS

The different questions that I want to answer in my paper are:

What is the purpose of the ISPS-code that was amended in the SOLAS Convention?

And what is the cause for the amendment?

Do we have to see the Code as part of a wider strategy?

The code has two parts one mandatory, the other recommendatory, what is the

difference?

Which States have to comply with the requirements of the ISPS Code and to submit

information to IMO?

What is the impact on port facilities and ship operators?

Are there any benefits to the maritime industry by implementing the Code?

Whose function is it to implement the Code?

How does the Code work? And how can the Government assess the threat and

evaluate the risk of a potential unlawful act?

Which kind of security levels do exist? Which counteractions must be undertaken by

the ship or port facilities when threat increases?

How do ships and port facilities have to demonstrate that they are implementing the

procedures of the ISPS Code?

Which requirements must be completed by the Governments?

What do the certificates imply?

What is the Threat & Risk Analysis Matrix?

Does the Code have to be reviewed?

What happens if the governments don‟t use the Code in an appropriate way?

Which organization has the authority to investigate whether the member states live by

the Code?



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Whosoever commands the sea commands the trade; whosoever commands the trade of the world

commands the riches of the world, and consequently the world itself.

--Sir Walter Raleigh, “Historie of the Worlde” (1616)



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3. LIST OF ABBREVIATIONS

EC European Commission

EU European Union

ILO International Labour Organization

IMO International Maritime Organization

ISM International Safety Management Code

ISPS International Code for the Security of Ships and of Port Facilities

MSC Maritime Safety Committee

SOLAS Safety Of Life At Sea Convention

WCO World Customs Organization

IACS International Association of Classification Societies

INTERCARGO International Association of Dry Cargo Ship owners

INTERTANKO International Association of Independent Tanker Owners

IPTA International Parcel Tankers Association

ICCL International Council of Cruise Lines

BIMCO an international shipping association

DIMAR the Maritime Directorate-General

IMDG International Maritime Dangerous Goods

STCW Convention International Convention on Standards of training, Certification and

Watchkeeping for Seafarers

CSR Continuous Synopsis Record

CSO Company Security Officer

SSO Ship Security Officer

SSP Ship Security Plan

TEN-T Trans European Transport – Network

GALILEO

SIT Safe and Secure Intermodal Transport

SIMTAG Safe InterModal Transport Across the Globe

NVOCC non vessel operating common carrier

AMS Automated Manifest System

SCAC Standard Carrier Alpha Code

FAK Freight of All Kinds

STC Said To Contain

C-TPAT Trade Partnership Against Terrorism

CBP Bureau of Customs and Border Protection

CSI Container Security Initiative

WMD Weapons of Mass Destruction

DHS Department of Homeland Security

SSA Ship Security Assessment

SL Security Level

RSO Recognized Security Organization

UNCTAD United Nations Conference on Trade and Development

IRTC International Recognized Transit Corridor

UNCLOS United Nations Convention on the Law of the Sea

VTS Vessel Tracking Systems

DoS Declaration of Security

ASA Alternative Security Arrangement

PF Port Facility

ISPS CODE International Ship and Port Facility Security Code

PFSO Port Facility Security Officer

http://www.imo.org/Newsroom/www.intertanko.com



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PFSP Port Facility Security Plan

PSI Proliferation Security Initiative

MTSA Maritime Transportation Security Act

NSP National Security Policy

IRTC International Recognized Transit Corridor

NATO North Atlantic Treaty Organization

PRC Piracy Reporting Centre

IMB International Maritime Bureau

TFG Transitional Federal Government

ICU Islamic Courts Union

ARS Reliberation of Somalia

4. BACKGROUND

The twenty-second session of the assembly of the IMO agreed unanimously to the development of

new measures concerning the security of ships and of port facilities. A conference of the contracting

governments agreed for the adoption of the international convention for the safety of life at sea „ 74.

(known as the Diplomatic Conference on Maritime Security)

They call it the Conference of the contracting governments when a contracting government requests

the holding of a conference and at least one-third agrees to hold it.

The provisions relating to port facilities should relate solely to the ship/port interface, and not to the

security of port areas.

The implementation of the provisions will require a lot of cooperation between those who are involved

in the circuit of the ship/port facility. If the existing practices and procedures do not provide an

adequate level of security then they have to be revised and changed. It is clear that, with the new rules,

the different parties who are involved in the maritime transport sector have to adapt to it, they have a

bigger responsibility than before.

The ISPS Code recognizes also the Convention on the Facilitation of Maritime Traffic 1965, as

amended; this means that the contracting governments will have to pay due cognisance to the fact that

ship‟s personnel live and work on the vessel and need shore leave.3 In their ship and port facility

security plans the governments will have to foresee that the needed facilities can be reached without a

problem, the personnel must have the possibility to come ashore when there is no danger for reasons

of public health, public safety or public order.

The Diplomatic Conference on Maritime Security has amended the SOLAS Convention 1974. The

Convention has adopted the ISPS Code on the 12th of December 2002 to enhance safety and security at

sea. The decision for the adoption was made in November 2001 by the Maritime Safety

Committee(hereinafter MSC) of the International Maritime Organization(IMO), following the tragic

events of 11th September 2001. The purpose of the development of the Code is to enhance the

maritime security and safety, and avoiding terrorist attacks. The MSC that did the preparation of the

Code established a MSC working group in order to accelerate the adoption of appropriate security

measures. The Diplomatic Conference also added a number of Conference Resolutions. A remark

considering these resolutions is that they are made to highlight the importance of the changes and also

to promote the application of the security rules to ships and port facilities that do not fall in the

application field of the ISPS Code.

3 Convention on the Facilitation of Maritime Traffic, 1965



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These Resolutions cover implementation and revision of the Code, technical co-operation, and co-

operative work with the International Labour Organization4 (ILO) and World Customs

Organization(WCO).5

The Conference agreed that the provisions that should be taken should not include solutions to actual

attacks, or to clear-up activities after such attacks. The ISPS Code has been made to prevent attacks,

and to enhance the safety. During the making of the provisions, care has been taken of the

compatibility with the different Conventions and Codes, such as the International Safety Management

Code(ISM).6

The ISPS Code has two parts, one mandatory and another recommendatory. Part A of the Code to

which reference is made in chapter XI-2 of SOLAS 74 contains mandatory provisions.

In order to give an idea what the purpose is of the Code, part A quotes the following objectives:

There is a need to establish an international framework where the Contracting Governments,

Government agencies, local administrations and the shipping and port industries co-operate. With this

co-operation the Code wants to obtain that security threats are detected and that preventive measures

are taken against security incidents affecting ships or port facilities used in international trade. It is

also needed that the respective roles and responsibilities of the different parties on its own level are

established to ensure maritime security. Further on there must be an efficient exchange of relevant

information concerning the security. Also provisions must be made for a methodology to assess the

security levels and to react by plans and procedures when there is a change of the security level.

The objectives that I mentioned above, can only be achieved when a number of functional non-limited

requirements are fulfilled. In part A of the Code there are also a number of definitions that can only be

interpreted in the mean of this Code. You can find the application of the Code in part A where it is

clear which ships/ ports must live by the Code. Port facilities that are engaged in international voyages

of these ships must apply the ISPS Code.

“It must be mentioned that this Code does not apply to warships, naval auxiliaries or other ships

owned or operated by a Contracting Government and used only on Government non-commercial

service”.7

The provisions represent a significant change in the approach of the international maritime industries

to the issue of security in the maritime transport sector. Contracting Governments will have to co-

operate to implement the provisions.

We should take into account the advice given in part B of the ISPS code when implementing the

security provisions set out in chapter XI-2 of SOLAS 74 and in part A of this Code. The extent to

which the advise applies may vary depending on the nature of the port facility and of the ship, its trade

and/or cargo. In this Code nothing may be interpreted in a manner inconsistent with the respect of

fundamental rights and freedoms as set out in international instruments.

4 The International Labour Organization is a sort international trade union, an agency of the United Nations

aiming the creation of social peace between governments, employers and workers. Remark: the security on the

workplace must be combined with the security rules in the IMO framework. 5 The World Customs Organization consists of more than 150 custom organizations. The WCO works on the

creation of rules concerning the electronic exchange of information which will lead to a better secured transport.

See the website: www.wcoomd.org; J.F. FRITELLI, Port and maritime security: background and issues, New

York : Novinka Books, 2003, p. 60; VESKY J.P., Port and Maritime Security, Nova Publishers, 2008, p. 25 6 F. STROOBANDT, De impact van de ISM code op de veiligheid op zee : de rol van de menselijke factor, Diss.

Master in de maritieme wetenschappen, 2007, 194 p. 7Conference of Contracting Governments to the International Convention for the Safety of Life at Sea, 1974/ 17

December 2002

http://www.wcoomd.org/



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In order to explain the importance of the ISPS Code, it is necessary to know the meaning of it. The

ISPS Code stands for „the International Code for the Security of Ships and of Port Facilities‟.8 The

Code has also an abbreviation „the International Ship and Port Facility Security Code‟, as referred to

in regulation XI-2/1 of SOLAS 74 (hereinafter ISPS Code).

In a world where 90% of the industry is being carried over the water, it is a priority of the

governments to secure the merchant routes. Not only for the safety of the manning on the ships, and

for the business itself, but also for the goods that have to be carried to the people. Terrorism is

nowadays a hot issue all over the world, as well in the aviation sector, on land, as in the merchant

sector.

The objectives of this master dissertation are at first, to show why the Code has been developed;

secondly to check if there are any differences in the use of the Code all over the world; how the

shipping industries must foresee different measures to observe the Code, and if the code has an

appropriate influence on shipping.

8 Conference of Contracting Governments to the International Convention for the Safety of Life at Sea, 1974: 9 -

13 December 2002



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5. JURIDICAL FRAMEWORK AND ANALYSIS

CHAPTER 1: BEFORE THE ISPS CODE

1. THE UN ROLE IN MARITIME SECURITY

The IMO (or the Inter-governmental Maritime Consultative Organization IMCO as it was known

before)is established at a conference held under the auspices of the United Nations in Geneva, by a

Convention of 6 March 1948.9

The purposes of the IMO are “ to improve machinery for co-operation among Governments in the

field of governmental regulation and practices relating to technical matters of all kinds affecting

shipping engaged in international trade; to encourage and facilitate the general adoption of the highest

practicable standards in matters concerning maritime safety, efficiency of navigation and prevention

and control of marine pollution from ships”.10

The IMO is empowered with the legal and

administrative aspects related to these purposes. There was a need for an international agency for

shipping because of the wide range of countries that are involved in maritime industry services.

Shipping is an sich a very dangerous operation, therefore the IMO has the authority to create

international standards to regulate shipping. A common approach is needed so that ships can ply their

trade around the world, and when entering different harbours of different countries they can be

confident that the ships do not place their own safety, security and environmental integrity at an

unreasonable risk. The IMO is the trusted link between all member states, by the international

regulations that become binding rules.

The SOLAS Convention11

that was born after the Titanic disaster of 1912, remains nowadays the most

important Convention that regulates maritime safety. The SOLAS Convention has been regulatory

amended by the IMO,12

and the SOLAS Convention that is referred to today is better known as „the

SOLAS ‟74 as amended‟. The amendment of the SOLAS Convention of 1974 has been different of the

amendments before because of the renewal of the amendment procedure itself.13

From that amendment on the problems could be solved in an acceptable time in order to ameliorate the

international trade by sea. The new procedure works efficient in a way that the amendment is accepted

on a particular date when there are no objections of a particular number of Parties. It is named a tacit

acceptance. The SOLAS Convention of 1974 has often been amended and updated, and new chapters

have been added. 14

9 The magazine of the International Maritime Organization, IMO news: 60 years in the service of shipping, No.

3, 2008, p. 27 10

This is Article 1(a) of the constitutive Convention of the IMO. 11

Convention for the Safety of life at sea 12

Revision of the SOLAS Convention in for example 1948, 1960, 1974, … 13

The tacit acceptance procedure: designed to ensure that changes could be made within a specified and

acceptable short period of time. 14

For example: Management for the Safe Operation of Ships; Safety Measures for High-Speed Craft; Special

Measures to enhance Maritime Safety; Special Measures to enhance Maritime Security



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2. SECURITY RULES

Before 9/11 there were already a lot of rules concerning the maritime safety of ships, but mandatory

rules about the security of ships and harbours came to prominence on the IMO agenda in October

1985. The Italian cruise ship the Achille Lauro15

had been hijacked(one of the first actual terrorist

attacks that has been recorded in modern maritime history16

), and subsequently the IMO adopted

resolution A.584(14)17

on measures to prevent unlawful acts which threaten the safety of ships and the

security of their passengers and crew.18

In 1986 on demand of the United Nations General Assembly

about the problem of terrorism on board ships, and in order to create appropriate measures the IMO

issued MSC/Circ. 443 to prevent unlawful acts against passengers and crew on board ships. This

Circular gives guidelines to governments, port authorities, administrations ship-owners, shipmasters,

and crew of the appropriate measures that can be taken to prevent unlawful acts which may threaten

passengers and crew.

The IMO continued working towards better security regulations and conventions because of the

reports of crew being kidnapped, ships that are kidnapped, run aground or blown up by explosives. It

were the governments of Austria, Egypt and Italy that proposed in November 1986 that IMO should

prepare a Convention on the subject of unlawful acts against the safety maritime navigation “to

provide for a comprehensive suppression of unlawful acts committed against the safety of maritime

navigation which endanger innocent human lives, jeopardize the safety of persons and property,

seriously affect the operation of maritime services and thus are of grave concern to the international

community as a whole”19

.

Two years later in March 1988 on a conference held in Rome, the SUA Convention20

(Suppression of

Unlawful Acts against the Safety of Maritime Navigation) was adopted with a Protocol (Suppression

of Unlawful acts against fixed platforms located on the Continental Shelf), it entered into force the 10th

of March 1992.21

The SUA Convention makes it possible that appropriate measures are taken against persons who

commit unlawful acts against ships, also the seizure of ships by force, committing acts of violence

against persons on board ships, and the placing of devices onboard a ship which can destroy or

damage it. The Contracting Governments are obliged by the Convention to extradite or prosecute the

alleged offenders.

15

J. PANCRACIO, L’affaire de l’Achille Lauro et le droit international, A.F.D.I., 1986, 221-236. This case has

lead to an IMO Convention in order to enclose the qualification field of „piracy‟ : the Convention of Rome 10

March 1988, I.L.M., 1988, 688. The Convention entered into force on 1 March 1992; M. HALBERSTAM,

Terrorism on the high seas: the Achille Lauro and the IMO Convention on Maritime Safety, A.J.I.L. 1988, 143 16

WMU Journal of Maritime Affairs, 2004, Vol. 3, No.2, 123–138 17

Resolution A.584(14): “with great concern the danger to passengers and crews resulting from the increasing

number of incidents involving piracy, armed robbery and other unlawful acts against or on board ships, including

small craft, both at anchor and under way”. 18

P. WENDEL, State responsibility for interferences with the freedom of navigation in the public international

law, Berlin Heidelberg, Springer Verlag, 2007, p. 26 19

www.imo.org : Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation,

1988 20

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, updated and

revised in 2005. 21

D. FREESTONE, The 1988 International Convention for the Suppression of Unlawful Acts Against the Safety

of Maritime Navigation, I.J.E.C.L. 1988, 305-327; G. PLANT, The Convention for the Suppression of Unlawful

Acts Against the Safety of Maritime Navigation, I.C.L.Q., 1990, 27-56

http://www.imo.org/



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3. OTHER SECURITY RELATED

INSTRUMENTS

There are also other security related instruments that the IMO has adopted and that need to be referred

to:

• MSC/Circs. 622 and 623, as revised, on Guidelines for administrations and industry on combating

acts of piracy and armed robbery against ships;

• MSC/Circ.754 on Passenger ferry security, providing recommendations on security measures for

passenger ferries on international voyages shorter than 24 hours, and ports;

• Assembly resolution A.871(20) on Guidelines on the allocation of responsibilities to seek the

successful resolution of stowaway cases; and

• resolution A.872(20) on Guidelines for the prevention and suppression of the smuggling of drugs,

psychotropic substances and precursor chemicals on ships engaged in international maritime traffic.

It was after the terrorist events of 9/11 and other terrorist atrocities all over the world that the IMO

Assembly adopted on the 20th of November 2001 Resolution A.924(22) in order to give a review of

the measures and procedures to prevent acts of terrorism which threaten the security of passengers and

crews and the safety of ships.

In this Resolution they take into account resolution 56/1 of the United Nations General Assembly and

resolution 1368 of the Security Council of 12 September 2001 whereby the terrorist attacks on the

United states are condemned. And also taking into account resolution 1373 of the Security Council

where the international community is called to redouble its efforts to prevent and suppress terrorist

acts, including full implementation of anti-terrorist conventions.22

After that, the IMO adopted maritime security rules in 2002, and these rules entered into force in July

2004(only 18 months after their adoption). It must be mentioned that for the preparation of the security

rules the representatives of pressure groups took part, inclusive the organizations of port authorities,

companies, environmental organisations, organisations for the human rights, etcetera23

. This is an

important step towards the role of the affected parties, because of the fact that their rights are protected

in a way that all parties can participate in the making of the security rules.

The most important measure in enhancing maritime security is the ISPS Code and the amendment to

the SOLAS Convention , and this is also the head issue of this master dissertation. The ISPS Code is

not only a list of physical security measures, but it also contributes to the enhancement of gathering

information that is very useful for all parties in the supply chain.

Other security measures24

that were adopted by the IMO are guidelines for administrations and the

shipping industry on combating acts of piracy and armed robbery against ships; further on

recommendations on security measures for passenger ferries on international voyages shorter than 24

hours, and on security measures for ports.

With this overview it is clear that the events in 2001 have caused the adoption of several new legal

instruments securing the merchant routes.

22

IMO Assembly 22nd Session, Resolution A. 924(22), Agenda item 8, 22 January 2002 23

F. WITLOX, Beveiliging in het vrachtvervoer: mythe, macht of noodzaak?, Garant, 2005, p. 182 24

This list is not limited



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CHAPTER 2: PREPARATORY STAGE

AMENDMENT TO THE SOLAS CONVENTION

The SOLAS Convention „74 was amended on the 12th of December 2002 by a Diplomatic Conference

on Maritime Security in order to enhance the maritime security of ships and of port/ship interfaces.

The amendment contains a new chapter in the Convention especially for maritime security.

Before the amendment, there was already a chapter XI of the SOLAS Convention, but it has been

renumbered in two parts. The chapter XI-1 before known as chapter XI(special measures to enhance

maritime safety) has also been changed, the identification of ships has to be more visible. The

regulation XI-1/3 says that ships should be permanently marked with their identification number in a

visible place on the hull or superstructure. For passenger ships there is another condition the marking

has to be visible from the air on a horizontal surface. Besides that the ships must have their

identification number inside the ship.

Further on, there is a new regulation XI-5 that says that ships must be provided by a Continuous

Synopsis Record(CSR).25

The CSR is very important in a way that it gives historical information about

the ship, for example the name of the ship, the flag state, the identification number, the port of register,

registration date, the name and address of the owner are included in this CSR. The Contracting

governments are strongly urged by the IMO to meet there obligations and to use the format and

guidelines concerning the CSR in resolution A.959(23).26

The new chapter XI-2 of the SOLAS Convention has been made in order to enhance the maritime

security. The new rules are applicable to passenger ships including high-speed passenger craft, cargo

ships (freighters)including high-speed craft of 500 gross tonnage and upwards, on mobile offshore

drilling units27

, and to port facilities serving such ships that take part of international trade. Chapter

XI-2 entered into force on 1 July 2004, as already said before.

It is very important to emphasize that the new chapter enshrines the ISPS Code in regulation XI-2/3.

This has a direct implication, that the countries who are party to the SOLAS Convention have to

implement the ISPS Code in their regulation, and make it applicable to all the parties who are falling

under the prescription of the application.

There are different regulations in this chapter that need to be followed by the contracting governments.

Further on there is regulation 3 in the same chapter XI-2 where the national authorities have to define

the security levels for ships flying there flag. It is the assignment of the national administrations to set

security levels and they have to give the security level information to ships that are entitled to fly their

flag. The ship has the duty within the territory of a contracting government( the state has to be a party

to the SOLAS Convention) when entering a port, or whilst entering a port to comply with the security

level that is required by that contracting government, even when that security level is higher than the

level that the administration has given to that ship.

Other regulations in chapter XI-2 that have to be mentioned are regulation 6,8, and 10. It is regulation

8 that prescripts the installation of a security alarm, parties have a term of two year to comply with

this regulation from 2004 till 2006. First it is necessary to understand how this security alarm works.

When there is an incident on board that has threaten the security or will threaten the security of the

ship, people can activate the system on board of the ship from the bridge and also from minimum one

other place.

25

Resolution A.959(23) 26

I:\MSC\87\4-3.doc, Maritime Safety Committee, measures to enhance maritime security, issue of Continuous

Synopsis Record, 18 February 2010 27

ISPS Code A/3.1.1.



Master dissertation

16

It is clear that the system may not be heard on board of the ship itself, otherwise it will make the

situation only more difficult. When the security alarm is activated a signal will be send to a competent

authority on land, and the signal will identify the ship and give the right coordinates.

It is the captain of the ship that has the one final authority of assessment concerning the security of the

ship on the ground of regulation 8. The owners, third parties or charterers may not give their opinion,

the captain has the final word.

Further on regulation 10 includes the requirements for port facilities. Port authorities have to evaluate

the security in the port facility and also the implementation of security plans in accordance with the

ISPS Code.

The other regulations in chapter XI-2 relate to the announcement of information to IMO, also the

control of ports(measures of inspection, arrests, restrictions of the freedom of movement, and the

deportation of a ship out of a port), the specific responsibilities of ship owners.

There were not only security measures to be fulfilled in the new chapter XI-2 of the Convention, but

chapter V(Safety of navigation) was also modified28

. From then on there is a new timetable to fit the

Automatic Information Systems (AIS), and ships that are obliged to use this system(all ships except

from tankers and passenger ships) must maintain AIS in operation, except when they are covered by

international agreements, rules or standards.29

28

F. WITLOX, Beveiliging in het vrachtvervoer: mythe, macht of noodzaak?, Garant, Antwerpen - Apeldoorn

,2005, p. 72 29

C. GUAN KWA; J.K. SKOGAN, Maritime Security in Southeast Asia, Routledge, 2007, p. 148



Master dissertation

17

CHAPTER 3: FROM THE ISPS CODE

STRUCTURE OF THE ISPS CODE30

PART A of the Code:

General

- Objectives of the ISPS Code

- Functional requirements

Definitions

Application

Responsibilities of Contracting

Governments

Declaration of security

Obligations of the company

Ship security

Ship security assessment

Ship security plan

Records

Company security officer

Ship security officer

Training, drills and exercises on ship

security

Port facility security

Port facility security assessment

Port facility security plan

Port facility security officer

Training, drills and exercises on port

facility security

Verification and certification for ships

o Verifications

o Issue or endorsement of

certificate

o Duration and validity of

certificate

o Interim certification

30

Structure of the ISPS Code, see

SOLAS/CONF.5/34, Annex 1; The International

Ship and Port Facility Security Code, 2003 Edition

PART B of the Code:

Guidance regarding the provisions of chapter

XI-2 of the annex to the SOLAS-Convention

and PART A of this Code.

Introduction

Definitions

Application

Responsibilities of Contracting

Governments

Declaration of security

Obligations of the company

Ship security

Ship security assessment

Ship security plan

Records

Company security officer

Ship security officer

Training, drills and exercises on ship

security

Port facility security




Training, drills and exercises on port

facility security

Verification and certification of ships



Master dissertation

18

PART A: MANDATORY

In this part of my master dissertation it is my intention to give a global overview of the obligations that

are stated in the mandatory part of the ISPS Code. It is relevant for my master dissertation to have

knowledge of the different aspects that shall be implemented by the Contracting Governments in order

to enhance the maritime security. Without obligations set in an international legal framework, it is not

possible to come to an effective procedure to protect the maritime industry. As Part A of the Code is

mandatory, it is necessary to know which actions must be taken by the affected parties. Certainly it is

not that evident to implement all these rules in the same way, there are so many aspects that make that

the implementation is carried out differently. For the Contracting Governments it is a big

responsibility to comply with the Code but when the implementation of the Code is done, it seems to

me that between the Contracting Governments there will be a certainty to trade with reliable partners.

General

Objectives of the ISPS Code31

First of all it will be needed to give a general view of part A of the ISPS Code.32

Part A of the Code is

mandatory for national authorities, port authorities and shipping companies and reference has been

made to this part A in chapter XI-2 of the International Convention for the Safety of Life at Sea, 1974

as amended.

It will become clear why the ISPS Code has such an important place in the field of security, and why

reference has been made in the SOLAS Convention. In the objectives of the Code, more specifically in

part A the following aspects are important.

The establishment of an international framework to detect security threats and take preventive

measures against security incidents that affect ships or port facilities used in international trade.

Analysing the first objective that is stated in part A of the Code it is clear that such security rules are

only mandatory to ships and port facilities that take part of the supply chain in international trade. The

governments of the countries that are member states of the SOLAS Convention are obliged to

implement the new security rules. The governments, ships and port facilities can co-operate to detect

and deter acts which threaten the maritime security.

In a second objective the different roles in enhancing the international trade security by sea are

foreseen: as well the national as the international level is included. The contracting governments, the

government agencies, the local administrations and the shipping and port industries have their own

responsibility in the security chain.

Further there is a need to exchange security-related information, preferably early information so that

efficient actions can be taken when a security threat occurs.

As a fourth objective of the Code a methodology for security assessments is needed, in order to react

in accordance to the security plan and procedure when there is a changing security level. There is a

need for a „port facility security assessment‟.

Finally the Code provides that adequate and proportionate maritime security measures are used. The

meaning of enhancing the security of ships and port facilities is to create a more secure atmosphere

when using the sea for transportation, but this does not imply that disproportionate measures can be

used to attain a certain level of security.

31

For the complete text of the ISPS Code, see SOLAS/CONF.5/34, Annex 1; The International Ship and Port

Facility Security Code, 2003 Edition 32

Regulation 725/2004 (Pb. L 129, 23-91)



Master dissertation

19

In part A of the Code there are five objectives that must be achieved when using the ISPS Code in a

good manner. The one objective will be easier to achieve than the other, at the end of my dissertation

it will be clear what the objectives contain more specifically.

The shipping companies and port industries have the obligation to hire specialised security personnel,

a security officer on the Company level (CSO) better known as the Company Security Officer, and a

Ship Security Officer. Now is the question which assignment they have. They have to maintain the

security and make adapted plans, this by using a Ship Security Assessment (SSA) and individual Ship

Security Plans (SSP).

These mandatory rules are applicable to every ship , and the qualified authority must have knowledge

of it. Complementary to these rules there is an obligation to set security trainings and exercises on a

regular basis.

Functional security requirements

In the Code there are security requirements that have to be fulfilled in order to achieve the objectives,

but the list of objectives in the ISPS Code is not limited. There are some requirements for port

facilities and for ships, that will make it possible for the Contracting Governments to assess the

security threat.

The needed functional security requirements that are stipulated in the ISPS Code, are as following:

With respect to security threats there is a need to gather and assess information, this information must

be exchanged to the appropriate Contracting Government. Further on, maintenance is required of the

communication protocols for the ships and port facilities. Another functional requirement is the

prevention of unauthorized access to ships, port facilities and their restricted areas. As a fourth

requirement unauthorized weapons, incendiary devices and explosives must be prevented on ships or

in port facilities.

When there is a security threat or incident there have to be measures in order to react on it with an

alarm system. And in every situation it is important that there are ship security plans and port facility

security plans, based on security assessment, in order to react on an adequate manner.

As a last functional requirement training, drills and exercises will have to make the personnel of the

ship and the port facilities familiar with the security plans and procedures.

Meaning of the ISPS Code:

The rights and obligations of the parties become clear in the field of securing the supply chain; there

are a lot of rules that need to be fulfilled, and the question is of investment in security outweighs the

many formalities and measures that parties have to take. It is clear that the costs of security investment

are very high, but it creates also a lot of new jobs.

Definitions

All the definitions in the ISPS Code are to be used in its particular manner, unless it is expressly

provided otherwise. The definitions of the important words that are being used in the ISPS Code, and

that are binding as they are situated in Part A of the Code, are laid down in Annex II of this master

dissertation.



Master dissertation

20

Application

Source: H. Dill; W. van Horssen, Beveiliging van havens en terminals, Schip & Werf de zee, September 2003,

p.21

The Code is not applicable to every vessel, therefore there is a clear application field defined in Part

A.3.1. The ships and ports of Contracting Governments to the SOLAS Convention need to apply the

ISPS Code, and also ships arriving in ports of Contracting nations.33

Ships that are engaged on international voyages and that are or passenger ships, including high-speed

passenger crafts; or cargo ships, including high-speed crafts of 500 Gross tonnage and upwards;

mobile offshore drilling units, need to apply the ISPS Code. Furthermore, the port facilities serving

these ships are also obliged to apply the Code.

On the other hand the ships that fall out of the scope of the ISPS Code are warships, naval auxiliaries

or other ships that are owned or operated by any Contracting Government of the SOLAS Convention

and are only used on Government non-commercial service.34

In practice this means that about 55,000

ships and 10,000 to 20,000 port facilities worldwide need to be certified.35

Subsequently Section 3.6 of the Code provides that this Code may not prejudice the rights or

obligations of States under international law.

When implementing the ISPS Code, it is the task of the different parties in the international framework

to detect security threats and take preventive measures against security incidents. Hereunder I will give

a small overview of the different responsibilities.

First of all, there are the Ship Owing Companies. One of the requirements of the individual ship-owing

Companies is the appointment of a Company Security Officer(CSO)36

, furthermore the development

of a Ship Security Plan(SSP) for each vessel, and for each ship the appointment of a Ship Security

Officer(SSO).37

33

E.G. Hinkelman, Dictionary of international trade: handbook of the global trade community, World Trade

Press, California, 2005,p. 600 34

Section 3.3 of the ISPS Code 35

Ibid. note 32, p. 600 36

Ibid. note 32, p. 600 37

IMO, Ship Security Officer, London: International Maritime Organization (IMO), 2003, p. 12



Master dissertation

21

The Ship Security Plan for each vessel must contain the following aspects: a clear statement

considering the ship‟s master overriding authority and responsibility to make different decisions. The

master of the ship may take decisions considering the safety and the security of the ship and also

considering the request of the assistance of the ship company or of any Contracting Government.38

It

is the flag state‟s responsibility to approve Ship Security Plans, and to control the compliance of the

SOLAS Convention and the ISPS Code by audits. But later on in this master dissertation more

explanation concerning this object will be given.

Furthermore also International Ship Security Certificates(ISSC) must be issued by the flag state, and

they have to monitor ownership, classification, and operator information.39

But the flag

states(countries of registry of ships) can appoint recognized security organizations in order to act on its

behalf.

On the side of the Port Authorities, there is a responsibility to create Port Facility Security

Plans(PFSP) and these must be approved by the Contracting Government. In return of the approval,

the Contracting Government needs the report of security related information of the Port Facility.40

Hereunder I will give an overview of the different obligations as stated in the mandatory Part A of the

Code. On my opinion it is necessary to know the obligations under the ISPS Code, only at this way it

will be possible to know what great influence/impact that these security rules have on the global

supply chain and the different parties of it.

Responsibilities of the contracting governments

In Part A. 4. of the ISPS Code, the responsibilities of the Contracting Governments are stated.

They shall set security levels and provide guidance for protection from security incidents.41

When it is

more likely that a security incident occurs, the level will be higher. When setting the appropriate

security level, the following factors must be considered: the degree of credibility of the information,

the degree of the threat information is corroborated, also the degree in which the information is

specific and imminent, and the potential consequences of the security incident.

The Contracting Governments must take a lot of factors into account when setting the right security

level. Besides the Security Level creates a link between the Ship and the Port Facility and therefore the

implementation of appropriate security measures must be fulfilled.

The highest security level is level 3, and when level 3 is set the right instructions must be given and

security related information must be given to the ship and port facilities that may be affected.

The Code provides also a possible delegation of certain security related duties under Chapter XI-2 of

the SOLAS Convention and Part A of the code. Explicitly excluded from delegation to recognized

security organizations are:

The setting of the applicable security level, the approval of a Port Facility Security Assessment(PFSA)

and amendments to an approved assessment, the determination of the port facilities which will be

required to designate a Port Facility Security Officer(PFSO).

38

ICS, Model ship security plan : to assist shipping companies prepare ship security plans that comply with the

IMO International Ship and Port Facility Security (ISPS) Code, London, International Chamber of Shipping,

2003, p. 5 39

X., Guidance for ship operators on the International Maritime Organization (IMO) international ship and

port facility security (ISPS) code, London, International Chamber of Shipping, 2003, 46 p. 40

J.J.F. Forest, Homeland Security: Borders and points of entry, Praeger Security International, Westport, 2006,

p. 401 41

ISPS Code, Part A. 4.1.



Master dissertation

22

Another exclusion from delegation is the approval of a Port Facility Security Plan(PFSP) and

amendments to such a plan. The Contracting Governments themselves must also exercise control and

compliance measures pursuant to regulation XI-2/9. And finally the establishment of requirements for

a Declaration of Security must be done by the Contracting Governments.

Furthermore the Governments shall test the effectiveness of the Port Facility Security Plans(PFSP) and

the amendments to such plans they have approved. And the Contracting Governments shall test the

Ship Security Plans(SSP) which have been approved on their behalf.

Summarizing, we can say that the Contracting Governments have the following responsibilities and

duties: they need to approve the Ship Security Plans, after verification they need to issue the

International Ship Security Certificate, the Port Facility Security Assessments need to be carried out

and being approved, further they need to determine the port facilities that need to designate a port

facility security officer, and they may exercise a control and compliance measures including the

procedures of port state control procedures. Furthermore the Contracting Governments have the

possibility to delegate certain duties to a recognized security organisation as said before.

The Declaration of Security

Further in the Code Part A.5. gives some information concerning the Declaration of Security that must

be given by the Contracting Government and that may not be delegated. The Government must set the

requirements of the Declaration of Security, as already said before, and assess whether such a

Declaration is required. It depends on the risk the ship/port interface or ship to ship activity poses to

the persons, property or the environment.

The ship itself can request the completion of a Declaration of Security in limited cases that are stated

in this Part of the Code. The applicable port facility or ship shall acknowledge requests for the

completion of a Declaration of Security. But the completion must be done by the master or the Ship

Security Officer(SSO) on behalf the ship(s) or if appropriate the Port Facility Security Officer. The

Contracting Government can determine whether another body responsible for shore - side security

must complete such a Declaration in place of the Security officer, on behalf of the Port Facility.

The meaning of a Declaration of Security is that it addresses the security requirements that could be

shared between a port facility and a ship(or between ships), and also the responsibilities for each shall

be stated in it. The Declarations must be kept by the port facilities within the territory of the

Contracting Governments, for a minimum period of time that is specified by them. For ships flying the

flag of administrations, the administrations shall specify the minimum period of time for which

Declarations of Security shall be kept.

As conclusion we can say that the Declaration of Security is a document in which security measures

are agreed between the ship and the port facility.42

And the possibilities of how this declaration can be

used are: firstly when a ship asks for this measures, secondly when the ship handles a higher security

level than the port facility, and thirdly when the competent authority asks for it.

There is another arrangement for terminals that receive ten ships or less annually and that don‟t need a

Port Facility Security Plan. These port facilities need to work with an Alternative Security

Arrangement(ASA) and when a ship wants to enter the port facility, the terminal needs to arrange an

ASA with the competent authority.

42


,2005(Guido Van Meel), p. 149



Master dissertation

23

And for every next visit to the terminal there will be a new Alternative Security Arrangement needed,

in order to react on changes in the security level. Thus an ASA is valid for one specific terminal and

for one visit to it. In this ASA additional security measures will be prescribed for this specific terminal

when there is a visit of a particular ship.43

It must also be mentioned that the competent authority can ask for an ASA to a terminal that has a Port

Facility Security Plan, but these additional security measures must be made in order to have a higher

protection against a ship with a higher risk of security threat.

Obligations of the Company

The Company of the ships have also their obligations in the light of the ISPS Code. In Part A.6. of the

Code the following obligations are stated: the ship security plans must contain a clear statement

concerning the master‟s authority and his responsibility to make decisions with respect to the safety

and security of the ship, and also with respect to the request of assistance of the Company or any

Contracting Government when necessary. Furthermore the Company shall give the necessary support

to the company security officer, the master and the ship security officer, in order to fulfil their duties

and responsibilities in accordance with Chapter XI-2 of the SOLAS Convention and this Part A of the

Code.

The most salient one obligation for the Company is that the vessel being operated by the company

obtain an International Ship Security Certificate from the administration of a flag state or an

appropriate recognised security organisation(such as a classification society, for example Lloyd‟s

Register of Shipping).44

Ship security

One of the duties of ships is to act upon the security levels set by Contracting Governments. As I had

already mentioned there are three security levels to act upon in the ISPS Code, and for each level there

are different measures to take.

In order to identify security incidents and take preventive measures all ships shall carry out some

activities at security level 1 by the ISPS Code Part A.7.2. and taking into account Part B of the Code.

Ships shall carry out the following seven activities when security level 1 is applicable:

On all ships the performance of all ship security duties must be ensured, there must be a control of

access to the ship, the embarkation of persons must be controlled and their effects, in restricted areas

the access must be monitored in order to give access to authorised persons, deck areas and areas

surrounding the ship must be monitored, on the ship there must be supervision of the handling of cargo

and ship‟s store, and finally it has to be ensured that security information is readily available.

When security level 2 is applicable the ships shall take additional security measures that are specified

in the security plan of the ship, and that shall be implemented for each activity detailed in section 7.2.

of the Code. Further on I would like to mention that the guidance given in Part B of the ISPS Code

must be taken into account. When there is a transition to security level 3 of the Code, the ships must

also take additional security measures but more severe measures.

43


,2005, p. 155 44

,Elements of shipping: ship and port security and port state control, p. 215



Master dissertation

24

The ship shall receive the instructions on change of the security level, when there the administration

has set security level 2 or 3. This is the initial phase of the procedure to change in security level. In

section 7.6. of the Code it is further described how to deal with a changing security level for a ship.

Before a ship enters a port or while the ship is in a port within the territory of a Contracting

Government, the ship must receive the instruction that security level 2 or 3 is set.

In reaction to the instruction of the security level, the ship shall initiate the implementation of the

appropriate measures and procedures of the ship security plan and give confirmation to the port facility

officer. When security level 3 is set by the Contracting Government, the ship shall follow the

instructions as set by the Government. When difficulties occur in the implementation of the measures

and procedures the ship shall report it and the port facility security officer and the ship security officer

shall work together in order to keep contact and coordinate the appropriate actions.

It could be that the administration requires, from a ship that wants to fly its flag, that security level 2 or

3 must be set in a port of another Contracting Government. The administration then shall inform the

Contracting Government without delay.

When a ship is required by the Administration to set a higher security level, the ship shall advise the

port facility security officer and the competent authority within whose territory the port facility is

located, and where the ship wants to enter or in which it is already located. This advise of the situation

must be done without delay, because of the fact that the security level on which the ship operates is

higher than the level set for the port it intends to enter or in which it is already located. It is obvious

that the ship security officer and port facility officer will work together to take the appropriate

measures.

On the side of the Contracting Governments there is an obligation to set security levels for ships

operating in their territorial sea or are have the intention to enter the territorial sea. The Contracting

Governments have to give security level information to these ships and they will give advice to the

ships about how to handle. The ships must maintain vigilance and they shall report immediately to

their Administration and any nearby coastal States when there might be information that affects the

maritime security in the area.45

The Contracting Government has also the obligation to advise those

ships of security measures that they should take and also of measures that have been taken by the

Contracting Government itself, taking into account Part B of the Code.

It is clear that there is an interaction between the ship and the port facility of the Contracting

government in whose territorial sea the ship enters. The exchange of information must be considered

as valuable, and only when there is an efficient exchange the different parties affected by the Code can

act in an appropriate way.

Ship Security Assessment

As already mentioned before, the ship security assessment is essential for the process of developing

and updating the ship security plan. It is the task of the Company security officer to ensure that the

persons evaluating the security of a ship are appropriate to do the ship security assessment in

accordance with Part A. section 8 of the Code. Also a recognized security organization may carry out

the ship security assessment of a specific ship, as stated in section 8.3.

The ship security assessment includes first of all an on-scene security survey, but furthermore there are

four other elements to be fulfilled when assessing the security of a ship.

45

ISPS Code, Part A. 7.9.



Master dissertation

25

As a first element, it is important to have knowledge of the existing security measures, procedures and

operations and identify them. Secondly key ship board operations that are important to protect must be

identified and evaluated. Thirdly the possible threats to the key ship board operations must be

identified and also the likelihood of their occurrence, for the reason to establish and prioritise security

measures. At last, the weakness of human factors in the infrastructure, policies and procedures must be

identified.

The Company shall document, review, accept and retain the information considering the ship security

assessment.

Source: Guideline for performing Ship Security Assessment according to the ISPS Code, Norwegian Ship-

owners Association, Version 1, 04-03-03

Ship Security Plan

Each ship that must apply the Code shall carry on board a ship security plan approved by the

Administration, with information about how to react to the three security levels. It is not prohibited for

a recognized security organization to prepare a ship security plan for a specific ship, and the review

and approval of ship security plans, or of amendments entrusted to them by the Administration. It must

be mentioned that in cases of reviewing and approval of such a plan or its amendments, the recognized

security organization may not have been involved in the preparation of the ship security assessment or

of the ship security plan or of the amendments, under review.46

When a ship security plan (or amendments) is submitted to a previously approved plan, for approval

the security assessment must be added on the basis of which the plan(or the amendments) has been

developed. The security plan shall be written in the language or languages of the ship, taking into

account the guidance of Part B of the Code, but a translation in English, French or Spanish is required

when none of these languages is the language of the ship.

The ship security plan, as stated in Part A section 9.4. of the Code, contains a lot of aspects in order to

enhance the ship security.

There are eighteen aspects that must be addressed in the security plan, but I will give a few examples:

The plan deals with measures that are designed to prevent weapons, dangerous substances and devices

intended for use against persons, ships or ports on board the ship.

46

ISPS Code, Part A section 9.2.1.



Master dissertation

26

Besides the restricted areas of the ship shall be identified in the plan and the prevention for

unauthorized access to these areas shall be included. Not only the unauthorized areas must be

protected, but also the ship itself. Therefore, measures for the prevention of unauthorized access shall

be addressed in the security plan. Furthermore Part A section 9.4. of the Code refers also to procedures

for responding to security threats, and procedures about how to respond when the Contracting

Government has given any instruction at security level 3. Procedures about how to evacuate in case of

security threats or breaches of security shall likewise be addressed in the plan. On board the ship the

personnel has security related duties and must fulfil their responsibilities by following the procedures

for auditing security activities and for training, drills and exercises associated with the plan. Also

procedures concerning the interface with port facility security activities, for the periodical review and

update of the plan and the reporting of security incidents are required aspects.

The plan shall also contain the identification of the ship security officer and the company security

officer(including 24-hour contact details). Further in my master dissertation the obligations for the

Company and ship security officer will be discussed, because of their important role.

Not only personnel is needed in order to enhance the maritime security on board ships, but also

security equipment. Security equipment needs to be inspected, tested, calibrated and maintained by

following the procedure and frequency that is part of the security plan. The plan shall also call

attention to the ship security alert system by identifying the locations where activation points are

provided and to its procedures, instructions and guidance on the use of the system.

With this short overview of the aspects that shall be addressed in the ship security plan, it becomes

clear that the ships must fulfil a lot of obligations in order to create a ship security plan in compliance

with the ISPS Code.

It lays in the authority of the administration to determine which changes to an approved ship security

plan or to any security equipment specified in an approved plan shall be implemented with or without

the relevant amendments to the security plan as approved by the administration. The changes to such a

plan should be at least as effective as the measures prescribed in this Part A of the Code and Chapter

XI-2 of the SOLAS Convention.

It must be mentioned that when such an approval is made by the Administration, it should be available

on board the ship and it shall be presented together with the International Ship Security Certificate(or

the Interim International Ship Security Certificate). But when the changes to the plan are only

temporary the ship must not retain the documentation when the original approved measures are

reinstated.

Concerning the conservation of the security plan, the security plan may be kept in electronic format.

But some measures should be taken in order to protect the security plan when the electronic format is

used, prevention of unauthorized deletion, destruction or amendment. In all ways the ship security

plan must be protected from unauthorized access or disclosure. The ship security plan must be

protected because of it high importance for the ship and the interaction with the port interface, because

of the fact that different procedures considering the security of the ship and its procedures are

included.

In normal circumstances the officers (duly) authorized by the Contracting Governments may not

inspect the ship‟s security plan, neither carry out control or compliance measures in accordance with

regulation XI-9 of the SOLAS Convention. Only in the circumstances of section 9.8.1. of the Code

such an officer may have limited access to the ship security plan, some subsections of section 9 is

considered as confidential information and may only be subject to inspection with agreement of the

Contracting Governments.



Master dissertation

27

Records

In the ship security plan there are records addressed that shall be kept on board for a minimum period

that is specified by the Administration, the provisions of regulation XI-2/9.2.3. taking into account.

And because of the fact that the records are part of the ship security plan, all the provisions for the ship

security plan are applicable to it.

Company Security Officer

It is the Company‟s obligation to designate a Company Security Officer(CSO). This Company

Security Officer may act for one or more ships, depending on the number or types of ships the

Company operates. It must be clear for which ships this officer is responsible. In the Code in Part A

section 11.2. there is a non-limited list of responsibilities that a Company Security Officer has,

elsewhere in the Code there are also other responsibilities specified.

The Company Security Officer has the duty to make and update the Ship Security Plans. Besides he

has the responsibility to secure the whole fleet, and the Ship Security Officer has the responsibility to

secure one ship.47

It is plausible that the Company Security Officer has direct contact with the Port

Facility Security Officer, but the Ship Security Officer needs to be warned.


owners Association, Version 1, 04-03-03, p. 8

Ship Security Officer

On each ship there will be a Ship Security Officer(SSO), the duties and responsibilities of this officer

are stated in section 12.2. of the Code in a non-limited list, but also elsewhere in the Code.

Training, drills and exercises on ship security

As well the Company Security Officer, appropriate shore-based personnel, the Ship Security Officer

and shipboard personnel having specific security duties and responsibilities shall know the training,

drills and exercises on ship security and have received training, taking into account the guidance given

in Part B of the Code.48

47


,2005, p. 155 48

X., Requirements for maritime security training : port facility security officers, ship security officers and

company security officers, London, Dept. for Transport, 2003, 2 p.



Master dissertation

28

The drills must be carried out in order to ensure the effective implementation of the ship security plan.

The ship type, the ship personnel changes and the port facilities to be visited and other relevant

circumstances shall have influence on the intervals on which drills must be carried out. Again Part B

must be taken into account. One duty of the Company Security Officer in this area is to ensure, by

participating in exercises at appropriate intervals, the implementation of the ship security plans and the

effective coordination.

Port facility Security

Port facilities are located in the territory of States, when they are located in the territory of Contracting

Governments to the SOLAS Convention they are obliged to act upon the security levels as set by the

Governments. The security measures and procedures must be applied in a manner that there is a

minimum of delay at the port facility and also a minimum of interference with passengers, ships,

ship‟s personnel and visitors, goods and services.

In the port facility they also work with the security levels as stated in the Code.49

There is just like on

the ship security level 1, 2 and 3 to be applicable. At security level 1 there will be some activities to

undertake, also taking into account Part B of the Code, in order to enhance the maritime security in the

port facility and identify security incidents and take preventive measures. All the activities that shall

be carried out are stated in Part A of the Code under section 14.2. When security level 2 is set in place,

additional protective measures must be carried out that are specified in the Port Facility Plan, and for

each activity that is stated in section 14.2. it shall be implemented. Furthermore the guidance given in

Part B of the Code shall be followed.

When there is security level 3 that is set, there will not only be specific protective measures as

specified in the port facility plan, but also port facilities are required50

to respond to and implement

any instructions given by the Contracting Government in whose territory the port facility is located.

When there are difficulties in implementing the requirements of chapter XI-2 or this Part of the Code

or as detailed in the ship security plan, the Port Facility Security Officer and the Ship Security Officer

shall work together and take appropriate actions. Also when security level 3 is set and instructions are

given by the Contracting Government in which territory the port facility is located, the officers must

coordinate the appropriate actions.

When a ship that wants to enter has a higher security level than the level that is applied in the port

facility, the Port Facility Security Officer shall report it to the competent authority and work together

with the Ship Security Officer.


owners Association, Version 1, 04-03-03, p. 7

49

ILO,Security in ports: ILO and IMO code of practice, Geneva: International Labour Office

; London: International Maritime Organization, 2004, p. 12 50

ISPS Code, Part A section 14.4.1.



Master dissertation

29


This is an essential and integral part of the process of developing and updating the Port Facility

Security Plan. But there will be also a report prepared on the completion of the Port Facility Security

Assessment; in order to explain how the assessment is conducted and a description of each

vulnerability found during the process. There will be also in the report a description of counter

measures that could be used to address each vulnerability, and the report shall be protected from

unauthorized access or disclosure.

The Port Facility Security Assessment can be carried out on two manners.

First of all, the Contracting Government, in whose territory the port facility is located, can carry out

the assessment. Secondly there can be a delegation to a recognised security organization by the

Contracting Government to carry out the port facility security assessment. A remark in the last case is

that when this recognised security organization has carried out the assessment, the Contracting

Government shall review and approve for compliance with this section 15 of the Code.

It sounds quite logic that the persons that carry out the assessment have the appropriate skills to

evaluate the security of the port facility according to this section of the Code.

In a changing world like this another necessity is that there shall be a regularly review and updating of

the port facility security assessment, even when there are changing threats or minor changes in the port

facility. But certainly when there is a mayor change that occurs, the security assessment must be

reviewed and updated.

Furthermore the port facility security assessments may cover more than one port facility when the

operator, location, operation, equipment and design of the port facilities are similar, but only on

allowance of the Contracting Government. When such an allowance is done by the Contracting

Government, the International Maritime Organization must be informed of this arrangement.

In order to have a certain similarity in the port facility security assessment, the Contracting

Governments shall comply with section 15.5. of the Code in which mandatory elements for the

assessment are stated.


As stated in the part concerning the port facility security assessment, the assessment is the basis to

come to a Port Facility Security Plan. The port facility security plan must be made for each port

facility and in this plan the three possible security levels are foreseen, in compliance with section 16 of

the Code.

It is the Contracting Government in whose territory the port facility is located that shall approve the

port facility security plan. This port facility security plan shall be developed in the working language

of the port facility and shall address some activities as stated in section 16.3 of the Code. The security

activities must be audited by personnel that is independent of the activities being audited, unless it is

impracticable because of the nature of the port or the size of the port.

When changes occur in the port facility security plan, it is the Contracting Government that shall

determine if the changes to the plan shall be implemented unless the relevant amendments to the plan

are approved by them. The port facility security plan may also be kept in electronic form, just like the

ship security plan it will be protected by following the procedure as stated before. And the port facility

security plan in general will also be protected against unauthorized access or disclosure.



Master dissertation

30

In the part about the port facility security assessment, I have already mentioned that there may be a

coverage of the assessment of more than one port facility, the port facility security plan can also cover

more than one port facility when the same similarities occur. But the International Maritime

Organization must also be informed.


In each port facility there will be a Port Facility Security Officer designated, but one person can be

port facility officer for more port facilities. The duties and responsibilities of this port facility security

officer are stated in the mandatory Part A section 17.2 of the Code but also elsewhere in the Code, and

the necessary support will be given to him.

Training, drills and exercises on port facility security

The port facility security officer will not be the only one that will have had training concerning the

security but also appropriate port facility security personnel.51

This personnel that have specific

security duties and responsibilities as stated in the port facility security plan shall have knowledge of

their expected performances. It is necessary that drills are carried out at appropriate intervals, these

intervals shall be based on the types of operation of the port facility, changes of port facility personnel,

the type of ship that is being served and other relevant circumstances. In this section 18.4 of the Code

another duty of the port facility security officer is to coordinate and implement the port facility

security plan by its own participation in the exercises at appropriate intervals.

Verification and certification for ships

Verifications

In the part concerning the application of the Code there are several ships stated, when a ship falls

within the application field, there are verifications to be done as stated in section 19.1.1 of the Code.

The officers of the administration are authorized to do these verifications, however the administration

may delegate these verifications to a recognized security organization as referred to in regulation XI-

2/1. However this entrusting of the verifications to a recognised security organisation, it is the

Administration that in every case shall guarantee the completeness and efficiency of the verification

and must undertake the necessary arrangements to fulfil the obligation. It must be noticed that after the

verification conform section 19.1.1 that no changes will be allowed in the security system and in any

associated security equipment or the approved ship security plan without the sanction of the

Administration, as stated in section 19.1.4 of the Code.

In section 19.1.1 of the ISPS Code mandatory part, the verifications that must be done for each ship,

are stated.

The first verification is the initial verification, before the ship is put in service or before the certificate

required under section 19.2 is issued for the first time. This verification includes a complete

verification of its security system and associated security equipment covered by chapter XI-2 of the

SOLAS Convention, this Part A of the Code and the ship security plan. The full compliance is the

object of the verification in order to set the ship in satisfactory condition for its duty.

A second verification must be done at intervals that are specified by the Administration, but it may not

exceed more than five years with the exception of section 19.3. This verification of the security system

and associated security equipment has also the same aim as the initial verification, namely to come to

a full compliance and getting the ship ready for duty.

51

M. MCNICHOLAS, Maritime security : an introduction, Amsterdam ; London, Elsevier/Butterworth

Heinemann, 2008, p. 97



Master dissertation

31

Thirdly an intermediate verification will be done conform section 19.1.1.3 of the Code, when there

will be only one intermediate verification it must take place between the second and the third

anniversary date of the certificate.

If necessary by the Administration there can be other additional verifications.

Issue or endorsement of certificate

After the initial or renewal verification process an International Ship Security Certificate(ISSC) will

be given by the Administration or by a recognised security organisation acting on behalf of the

Administration. It is also possible that another Contracting Government does the verifications and that

this Government shall issue or authorise the issue of an International Ship Security Certificate to the

ship conform section 19.2.3. but a copy of the verification report and of the certificate must be as soon

as possible transmitted to the Administration. Important is that the certificate that is issued by another

Contracting Government has the same force as the recognition of the certificate in section 19.2.2.

In the annex of my master dissertation I will give an example of such an International Ship Security

Certificate, and idem as for other documents there will be a translation of the certificate if the language

used is not English, French, or Spanish.

Duration and validity of certificate

I have already mentioned that the International Ship Security Certificate has a maximum duration of

five years. This is an important factor in order to fulfil the obligations stated in the mandatory part of

the Code. Concerning the renewal of the certificate it must be noted that the completion of the renewal

verification must be done three months before the expiry date of the existing certificate, conform

section 19.3.2.2.

It can be that the Administration has issued a certificate for a period of less than five years , then there

is a possibility to extend the validity of the certificate beyond the expiry date to the maximum period

specified in section 19.3.1 but the provisions of the verifications in section 19.1.1 must be applicable

when the certificate is issued for a period of five years. If the case occurs that there is a renewed

verification, but the new certificate has not yet been issued and the expiry date from the existing

certificate has occurred, the Administration or the recognised security organization(acting on behalf

the Administration) may endorse the existing certificate. For a further period which shall not exceed

five months from the expiry date, this certificate shall be accepted as valid.

Interim certification

There can be given an interim certificate when there is a need for a certificate but the normal

International Ship Security Certificate can‟t be given. Normally the Administration that is issuing the

Certificate must be fully satisfied that the ship complies with the requirements of section 19.1

concerning the verification and then a Certificate conform section 19.2 is issued. But in this particular

case, an Interim Certificate conform section 19.4 can be issued when the following aspects are

fulfilled52

:

after the date of 4 July 2004, for the purposes of (1) a ship without a certificate, on delivery or prior to

its entry or re-entry into service; (2) transfer of a ship from the flag of a Contracting Government to

the flag of another Contracting Government; (3) transfer of a ship to the flag of a Contracting

Government from a State which is not a Contracting Government; or (4) when a Company assumes

the responsibility for the operation of a ship not previously operated by that Company. Until the

issuing of the certificate in section 19.2 this Interim International Ship Security Certificate can be

issued, but verification of some aspects in section 19.4.2 stated must be done by the Administration or

the recognised security organisation(on behalf of the Administration).

52

ISPS Code, section 19.4



Master dissertation

32

In Annex IV: the International Ship Security Certificate and also the Interim International Ship

Security Certificate53

PART B: RECOMMENDATORY

In this part of the ISPS Code, it becomes clear how the parties must comply the best with the

mandatory requirements. It must be used as a sort of guidance about how to meet the requirements as

set out in part A of the Code and also when implementing the SOLAS XI-2 regulations. This part B is

not only recommendatory in the E.U., but in the part of the European Union it will become clear that

part B has also mandatory force. (see infra)

The extent to which the guidance applies differs from the type of ship, its cargoes and or passengers

and its trading patterns and also the characteristics of the Port Facilities visited by the ship.54

But also

related to the Port Facilities, it depends on the applicability of these recommendatory rules

THE CHANGE SINCE 1 JULY 2004

Since the ISPS Code, there is a possibility for Contracting Governments to the SOLAS Convention to

exercise control of ships as stated in chapter XI-2 of the SOLAS Convention and the ISPS Code. The

duty of the Government lays in the fact that they have to ensure that there are procedures in place in

the port facility and the waterways in their territory and security measures conform the new rules. The

Contracting Governments to the SOLAS Convention form a security framework in order to detect and

deter acts threatening the maritime security. The reason why the security rules have been implemented

in the SOLAS Convention, is because of the fact that working by this manner goes more quickly than

using other instruments. The importance of such a standardized Code is to have a uniform process.

The threats to the maritime industry are very real and the United Nations play an important role in

setting a security standard, reducing the risks and countering the threats. Further I will discuss the

costs of the implementation of the ISPS Code, but there are also potential commercial benefits to the

maritime industry.55

In the long run it will make that individual ports and the port industry as a whole

that comply with this Code have a cost-benefit because of the fact that they can continue participating

in the global trade. Also the potential economic consequences that can occur when having such a

security incident are for a big part excluded, there are namely security measures to prevent these

incidents and the risk that there is a disruption or port closure smaller.

Another thing that is important is whether the implementation of the ISPS Code is effective.

53

See: Annex IV 54

H. Hesse; N.L. Charalambous,WMU Journal of Maritime Affairs, New Security Measures for the

International Shipping Community ,2004, Vol. 3, No.2, 123–138 55

www.imo.org

http://www.imo.org/



Master dissertation

33

CHAPTER 4: COMPARATIVE STUDY ON THE IMPLEMENTATION OF THE CODE IN

DIFFERENT REGIONS

In the light of the ISPS Code there has been measures taken by different countries all over the World,

because of the fact that there must be an enhancement of the maritime security we must analyse the

measures taken by these countries. It becomes very clear that not every country has the same

development in the implementation of the code. In this master dissertation I will compare a number of

countries in order to give a view what are the problems in the process of implementation, and to know

if there is a difference in parts of the world.

1. IMPLEMENTATION OF THE ISPS CODE IN BELGIUM

The Benelux countries worked intensively together for the implementation of the security plans in

different ports. For example control teams have come together, and there is a good division of the

different duties and responsibilities. Between Belgium and the Netherlands it is known that the

implementation procedure proceeded almost the same and there is an exchange of information of

contact points and procedures56

.

The juridical framework for Belgium is based on the European (Vo.)Regulation 725/2004(see infra),

and Belgium has made a Royal Decree in order to carry out the regulation and whereby a federal

committee for the security of port facilities is called into life .

The federal security committee functions as a central national authority, as referred to in the ISPS

Code for the security of ships and port facilities. It is this federal committee that has the duty and

responsibility to coordinate the security measures for the implementation of the national and

international rules concerning the security of port facilities57

.

Because of the fact that this coordination of the security measures needs a lot of efforts, a permanent

commission of experts is called into life. Every expert has his own specialty. The duties of this

commission is to convert policy advice from the federal committee into feasible guidelines.

The national security committee has several duties to fulfil, a few examples will be given: advising the

competent authorities concerning the applicability of additional measures that will heighten the

security of the port facilities. They will also have the duty to coordinate studies concerning security

problems. And they are the contact point for information concerning the port facility security plans

and maritime security. The federal security committee has the chairmanship of the director-general of

maritime transport. Other members who have the right to vote are the director-general of the crises

centre of the federal governance service of internal affairs, the administrator-general of the FOD

justice, a representative of the FOD finance, administration of customs and excises, a representative of

the ministry of defence, a representative of the FOD of public health, security of the food chain and

environment. There are also other members of the federal security committee that don‟t have the right

to vote: the representative of the districts and a representative of every local committee(Flanders,

Brussels and Wallonia).

56


,2005, p. 182 57

Ibid. p. 144(Guido Van Meel)



Master dissertation

34

In the text concerning the explanation of the ISPS Code, I have already mentioned that there must be

inspections carried out at intervals. The members of the federal committee have the authority to carry

out these inspections in the different port facilities.58

There is not only a federal committee but there are also local committees in every seaport, that has

been founded by the federal committee. In Antwerp, Ghent, Ostend and Seabrugges there are local

committees that have a port captain, the local committees are part of the federal committee. It is the

duty of the local committee to make a list of the port facilities on their territory, and also to control the

authenticity if the information of the received information from the port facilities. When there is no

port captain the chairman will be pointed by the federal committee.

The local committee is responsible for his activities and needs to give accountability to the federal

committee.

In the network of the local committee there are several services that need to fulfil the duties

concerning the security measures. There is the local police, the federal police(police of maritime

affairs), the customs, the security of the State. In the part concerning the federal committee I

mentioned that there are experts for the coordination of the security measures.

The local committee can add some experts to her committee or invoke, and eventually ask the

expertise of the fire department. The security plans will be made adapted to the contingency plan of

the port facilities.

Due to my visit to the Port of Antwerp and my talk with Guido Van Meel59

, I have had the following

experience. I asked how the effects of the implementation of the ISPS Code where positively and

worked, and the answer was that the port of Antwerp had made a lot of progress in the security field.

When visiting the port of Antwerp the following security aspects have become clear: in the port of

Antwerp and in Ostend they work with Alpha Passes. These Alpha Passes have been introduced to

have more certainty, when a person enters a port facility they have to show their pass and also give

their finger print. At this manner it is not likely that someone goes with another person‟s pass in an

area where he may not enter. An amelioration of the situation of before can be experienced. For

example there was person that normally worked in the port of Antwerp, but this person had already

been three months in prison in Spain and a family member just worked with his old pass in the port.

Nowadays such situations are no longer possible, a finger scan prevents this.

It must be noticed that these security measures are not everywhere implemented, and it can be that

such errors can be possible for these ports.

2. IMPLEMENTATION OF THE ISPS CODE IN FRENCH PORTS60

As already discussed above, the ISPS Code must be implemented by the member states of the SOLAS

Convention. Also France is a member state to this Convention. The ISPS Code and the change to the

SOLAS Convention have been integrated in the European Union by Regulation 725/2004, as being

discussed further on.

As an example two different French ports will be compared. The first one is Calais, the first passenger

port of the European Continent with nearly 14 million passenger each year. The second is Marseille,

the first Mediterranean port with combined traffic of 95 million tons of goods.

58

The Belgium federal committee is located in Brussels:

Federal Committee for the security of the port facilities

P/A crisis centre of the ministry

Hertogstraat 53

B-1000 Brussel 59

Visit to the Port of Antwerp, Guido Van Meel, March 2010 60

E. SHAHBAZIAN; G. ROGOVA; M.J. DE WEERT, Harbour Protection through Data Fusion Technologies,

Dordrecht, Springer, p. 13-17



Master dissertation

35

The definition for port facility in France means as well the port facility as the terminal. This is

important for the responsibilities that lay upon the stakeholders, because of the fact that each

stakeholder is responsible for the establishment of a port facility security plan and its implementation.

But the ports belong to the state, and every port will have to establish its own security plan for the

areas not covered by the port facility security plan. There is a total of 360 identified ports in France.

The ISPS Code foresees in different measures that are applicable on ships and ports, and will have a

direct impact on the making of these security plans. For example there is an obligation of access

control, and a prevention of unauthorized weapons.

It is logically that in the port of Calais there will be a control of infiltration of unverified individuals.

The cross-channel facility is almost entirely restricted area. Above that there is a separated control

field for trucks, private cars and loading zones.

This makes clear that in very port facility a specialised security plan is needed, because of the

differences of the ports and their use. An important remark is that France is just like Belgium a

member state of the European Union, and will clearly have more similar national rules than for

example in comparison with a developing country.

CHAPTER 5: INTRODUCTION IN THE EU

The security measures are applicable in a global context, also the European Union has made efforts in

order to implement the new rules and setting an juridical framework for a better security in maritime

transport. Because of the fact that the economic aspect of the maritime transport sector has a great

importance for the entire European Union, it is needed that there is efficient security. The European

Union must pursue that the juridical framework of these security rules doesn‟t violates the freedoms

and privacy of the civilians.61

The security of the maritime transport sector may not have as

consequence that there is a sort of interference in the privacy.

Undiminished the national legislation of the European member states concerning the security and the

measures that can be carried out conform title VI of the Convention of the European Union, common

rules for a communal interpretation, implementation and control of the security requirements adopted

on the 12th of December 2002 by the Diplomatic Conference of the International Maritime

Organization, must be achieved.62

The authority for the implementation must be delegated to the

European Commission in order to determine the measures to carry out the security rules.

The regulation of 31 March 2004 respects the basic laws and the principles that are stated in the

Charter of the European Union.

Regulation 725/2004 of 31 March 2004 integrates the amendments to the SOLAS Convention and also

the ISPS Code in the European Community law as mandatory rules. On the 1st of June 2004 this

Regulation entered into work to enhance the security on sea and in port facilities.63

Besides this, the

normally recommendatory part B of the Code becomes mandatory in the member states of the E.U.

because of the intended uniformity.64

Every member state must have an authority qualified for the maritime security, but besides this

authority there are also inspectors from the port state control who are also qualified to control the

security certificates(see infra).

61

A. LUKAS, Protection without Protectionism, CATA Institute, 8 April 2004 62

G.A.J. Doosje, Veiligheidswetgeving havens, Kluwer bv Deventer, 2009, p. 44 63


,2005, p.175 64

G.A.J. Doosje, Veiligheidswetgeving havens, Kluwer bv Deventer, 2009, p. 44



Master dissertation

36

Furthermore we need to remark that the application of the Regulation is not mandatory for all port

facilities, when there are ports where there is only incidental international traffic of vessels

Contracting Governments can determine on the basis of the security assessment to take alternative

measures to ensure the security of these ports. The member states of the E.U. are obliged to control all

vessels that ask permission to enter a port facility, on the security rules. All member states of the E.U.

must assign a qualified authority for maritime security that coordinates the security measures of the

Regulation, implement them and control the application of it. This authority must require from every

vessel that asks permission to enter the port, information about the security certificate, the security

levels on which it operates and has operated, and every other practical information concerning the

security. There can be exceptions on this rule, for every inter communal or inland sea vessel service,

but when needed information about this security information must be given.65

Attention must be given to ships that travel on internal waters and the port facilities located inland, for

these parties the security must also be enhanced for these parties in the shipping industry and not only

to the international shipping and port facilities.

Furthermore it needs to be taken into account that the security controls must be conducted by the

qualified authorities for maritime security of the member states. But the control of the international

security certificate can also be done by the inspectors of the port state control, as laid down in

Directive 95/21 EG of the Council of 19 June 1995(Port State Control) concerning the compliance of

the international rules in the field of the security of ships, prevention of pollution and from work and

life conditions.66

So when there are different authorities they must complete each other.

Another remark is that the member states of the European Union must foresee in the means and a

national plan for the implementation of Regulation 725/2004, in order to have an earlier

implementation of the security rules stated in Resolution 6 of the Diplomatic conference of the IMO of

the 12th of December 2002. Further on I would like to remark that the efficiency of the implementation

of the security rules of every national system must be inspected by the European Commission.

It was not only a regulation about the security itself that was made, but Regulations 1406/200267

and

724/2004 have given life to a European Agency for maritime security in order to guarantee a high

conformity and efficient level of security at sea and to avoid the pollution by ships. One of the tasks of

this agency is to give technical advice for the implementation of new security measures.

In the European Union there are not only Regulations but also a Port Security Directive that has been

published in 2005 by the European Commission to enhance the common security rules to the outer

perimeters of the port. This implies that the security measures will also reach out of the scope of

Regulation 725/2004. At this manner the effectiveness of the security rules will be higher, because of

the fact that the security measures will also be used in the borders. Member states were obliged to

bring into force the laws, regulations and administrative provisions necessary, by 15 June 2007.

The extension of security to the whole port estate and the establishment of Port Security Committees

are important elements in aiming the targets.68

The meaning of this Directive is to make sure that there

will be an equal treatment of the loads of containers from and to ports in the European Union.

The extension of the security rules to areas that border to the port facility by the Directive have to

contribute that the whole transport chain from ship, trough the interaction between ship and port,

expanded to the whole port infrastructure, till the (hinterland) is secured in the same way.

65

G.A.J. Doosje, Veiligheidswetgeving havens, Kluwer bv Deventer, 2009, p. 45 66

PB L 157 van 7.7.1995, p. 1. Directive last changed by Directive 2002/84/EG of the European parliament and

Council(PB L 324 van 29.11.2002, p. 53 67

Regulation 1406/2002 and Regulation 724/2004 68

Maritime Update, ICTS Europe, autumn 2006, Volume 2, Issue 1



Master dissertation

37

Further there is a need to secure the entire transport supply chain, and therefore there has been a

proposal from the European Commission in February 2006.

In this proposal security standards for transport service providers and the “secure operator” concept

have been introduced.69

The Directive prescribes also inspections in the port by the European

Commission, and there is also a report70

of the European Parliament that says something about the

costs of the security measures. The Parliament says in her Report that there may not be a distortion of

concurrence because of the support for security measures, and there should be a distribution of the

costs between the public authority, port authorities and operators.71

It is needed that the Commission

starts with a study concerning the financing of the security measures, and the Parliament and the

Council must make proposals.

In Conclusion 1999/468/EG of the Council of 28 June 1999 of the decree of the terms for the exercise

of the realising authorities given to the Commission, the required measures are laid down for the

realisation of Regulation 725/2004. It needs to be taken into account that there is a procedure that

foresees in a possible adjustment of part B of the code in order to make the recommendatory

guidelines mandatory.

The Regulation 725/2004 requires a mandatory risk assessment in order to determine the extent to

which the Regulation shall apply to different categories of ships operating domestic services and the

port facilities serving them. Security regimes must be implemented in accordance with the right level

of risk, and compliance is required by 1 July 2007.

By the implementation of the ISPS code in a European Regulation drills and exercises must be

conducted regulatory. The relevant authorities, Company security Officers, and Port Facility Security

Officers must participate in this operation. Ports operating internationally are obliged to fulfil the

requirements; annually there must be exercises, testing communications, resource availability and

response, coordination. It is known that such exercises take a great effort and a significant time,

planning is therefore very important.72

During the exercises people have to learn how they must act

when there is a higher risk, drills and exercises have to be conducted properly and systems and

procedures need to be tested.

Furthermore it is also important to refer to the influence of the national rules of the United States on

the trade in European ports. The Customs-trade Partnership Against Terrorism(C-TPAT), the 24-Hour

Rule and the Container Security Initiative(CSI) have an immediate impact on European ports. As an

example of the impact of the CSI to a European port, we can refer to the port of Rotterdam.73

American customs officers who are stationed in Rotterdam are checking the containers that are going

to the United States, and 24-hours before the leaving of the ship the manifest must be ready.

The CSI initiative has been bilateral arranged between the Netherlands and the United States.74

The

American Officers that are stationed in Rotterdam, can only with the permission of the Dutch Customs

control the containers.

69

Department for transport UK 70

Report J. Hennis-Plasschaert 8th February 2005, Eur. Parl., 2004-2009, Final A6-0031/2005, amendement 4 71

G.A.J. Doosje,Veiligheidswetgeving havens, Kluwer bv Deventer, 2009, p. 46 72

C. Austen, MUSC‟s CEO 73

H. Dill; W. van Horssen, Beveiliging van havens en terminals, Schip & Werf de zee, September 2003, p.21 74

H.H. WILLIS; D.S. ORTIZ, Evaluating the security of the global containerized supply chain, Santa Monica,

Calif.: RAND Corp., 2004, p. 4



Master dissertation

38

On the ground of article 5 of the Convention of the European Union it was possible to take a

communal solution on the base of the principle of subsidiarity. In article 9 of Regulation 725/2004

there is a delegation of the administrative and controlling duties to the European Union.75

This in order

to have a harmonised legislation. The proportionality principle contained in this article 5 makes that

only the measures will be taken that is needed.76

The legislation in the European Union is concerning the maritime security harmonized by Regulation

725/2004. The intention is that the maritime traffic in the European Union advances in a fluent way.

3. COLOMBIA, CARTAGENA DE INDIAS

The third Latin American forum reported to the MSC on Maritime and Port Security.77

The Third

Latin American forum that was held from 28 to 30 September 2009 was organized by the Colombian

Maritime Directorate-General with the support of the Mexico international ISPS Network. The

meaning of this forum is to exchange information and experience concerning the implementation of

the ISPS Code. The reason for this evaluation after five years of implementation stemmed for the

expectations that had arisen. What must be considered was if the existing regulations must be

amended, whether there must be new regulations. Because of the early implementation phase it could

be wise to review the ways in which the Code had been implemented, and wait to draft new

regulations. There were 300 attended participants, from most Latin American countries and the United

states. The main objectives of this maritime and port security forum are: “to identify the state of

development of maritime and port security in the Latin American context, to learn from international

organizations about the future prospects for maritime and port security at the global level, to learn

about best practices, to hear the views of port and ship users regarding the benefits of port and

maritime security, to identify needs for synergy at the regional level during the next implementation

stage of the ISPS Code, to establish basic principles for improving the competencies of those

responsible for security, so as to anticipate the levels of risk that port facilities and ships present as

locations for and targets of terrorism”.78

There were several questions discussed on the forum and in order understand the experiences of the

different participants to this forum I will give an overview.

A first question was if there is a whish on the part of the States for IMO to extend the scope of the

Code. The Member States themselves of the SOLAS Convention must engage in discussions to give a

specific proposal on extending the scope of the ISPS Code, but for so far there has not been a

proposal. Furthermore the Member states must further focus on implementing the ISPS measures,

before the drafting of any amendments. In a number of areas there is still a lot of work to be done, like

for example drills and simulators, the development of the procedures associated with the ship/port

interface, and the appropriate handling of threats such as piracy( a process which has hardly begun to

take shape). As the ship and port facility security is a risk management activity, it would be the most

effective to eliminate the source of the threat and it is the duty of the Government to do so.79

But

reasonably spoken, 100% guarantee of security will never be possible.

75

E. VANHOOYDONK, European Seaports law: the regime of ports and port services and the ports package,

Antwerpen, Maklu, p. 75 76

Bookelements of shipping, p. 45 77

Maritime Safety Committee, Measures to enhance Maritime Security: Report on the third Latin American

Forum, submitted by Colombia , 87th Session, 18 January 2010 78

Maritime Safety Committee, Measures to enhance Maritime Security: Report on the third Latin American

Forum, submitted by Colombia , 87th Session, 18 January 2010, p. 4 79

H. LEGGATE; J. MCCONVILLE; A. MORVILLO, International maritime transport: perspectives, London;

New York, Routledge, 2005, p. 81



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Another question was in what other aspects it is advisable to expand the content of the Code. In the

field of drafting guidelines on the Code‟s application IMO has already made a lot of progress, but the

drafting of guidelines must be further emulated to every state at national level. For example the

sanctioning or penalizing of various non-conformities of the Code is different. The designated

authority of each country, together with representatives of ships, companies, port terminals and other

bodies, must take into account the internal threats that must be tackled and devise measures to prevent

non-compliance with the security regulations.

Next to that, there was a question about what changes or amendments are considered necessary in the

existing text of the Code. In this context it is clear that the emphasis must be placed on the national

context, and not on the situation of the IMO. And in the areas of coastal shipping and the port facilities

that receive it more work has to be done in the field of security.

During this security forum there were questions concerning the threats to maritime and port security.

The threats that were globally and regionally known were: illicit drug trafficking, organized crime,

pollution from multipurpose containers, trafficking of chemical products for use as precursors in

narcotics and psychotropic substances, people-trafficking, terrorism, money-laundering, piracy and

finally stowaways. In this region of the world it is known that the prevalent threat is the trafficking of

psychotropic substances and chemical products.

An important question is whether the threats are growing, knowing that more security measures are

taken. It is clear that it depends on the specific threat. Furthermore ,because of the high security costs

the question rises if there is an added value of the costs made. To the industry the costs add indeed a

value, the parties to this security forum said that “the cost of security must be regarded as added value

that lends assurance tot the process of moving cargo by sea.” There is now a more efficient secure

chain, and products will be delivered on a more competitive basis, as the parties to the security forum

said.

On this moment it can not be said that there is a full compliance of the ISPS Code in this region. But

the full compliance with the ISPS Code is still in development. The Administration and all other

parties with security responsibilities must create the conditions for routine handling. Not everyone can

be entrusted with the task of security officer, therefore it is important to hire people that carry out the

security measures as it is required. For every port it is important to examine the possibilities for

routine handling.

At the end of the security forum in Colombia there were some conclusions to handle with in the future.

The IMO has played a mayor role in implementing the ISPS Code, the distribution of handbooks and

guidelines are one aspect of it. But the designated authorities on the national level must carry on with

the realization of the Code by ensuring that ships and port terminals fulfil their security

responsibilities. Another conclusion is that with the application of the ISPS Code, that the security

threats to ships and port facilities are not ended. But the Code is a very useful tool in preventing and

reacting to threats in some cases. And in this region there is an increase of security threats and in this

view it is important to take security measures as set in the ISPS Code.

Above this all, compliance with the Code can make the difference when it comes to the

competitiveness of the shipping company or the port terminal. The routine procedures that are taken,

are simply conform the security plans of the ship/port interface and indicate the compliance with the

Code.

The security forum in Colombia is a good manner to exchange information about the implementation

of the Code, and is not only good for States, but particularly for the individuals who have to deal with

such security measures. In the future it is recommended to organize more of such meetings in order to

compare the different manners of implementation, also to know how the different parties deal with

some security threats, and to exchange experiences .



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4. CANADA AND THE ISPS CODE

Before the tragic events of 9/11 the Canadian transportation security was basically focused on aviation

security. The reason for the extra efforts in the aviation sector was because of the bombing of Air India

flight 182 off the south coast of Ireland in 1985. This act of terrorism was the most prominent mass

murder in Canadian history(329 persons were lost). Because of the fact that in the Canadian maritime

industry there hadn‟t been such an incident, such security measures as existing in the aviation sector

were not existing for ships.80

But Canada remained a target for drug and human smuggling operations,

as well at the east as at the west coasts of the unprotected coastline.

Concerning the maritime law of Canada, it must be known that there was only a basic federal law

which came into force in the early 1990s. This federal law known as the (MTSA) Maritime

Transportation Security Act, included cruise ship and cruise ship facility security measures.81

The

intention was to do a screening by individuals that came from the government‟s aviation security

branch, those had little knowledge and application of the working of the maritime world. The security

measures were particularly based on the application to the aviation sector, and the maritime security

(marine security in Canada) was limited to the cycling rotation. When in the period between May and

October of each year there were cruise ships visiting Canadian waters, there was only this cycling

rotation security of these ships that visited mainly the three mayor ports of Canada(Halifax, Montreal

and Vancouver). Smaller ports were not that much visited by these cruise ships.

In Canada there is and open and unprotected coastline, and just like this coastline the maritime

security is also not developed. Canada had not had bad experiences with security incidents in its

waters, and that could be seen as a reason for the lack of security rules. Even though it other parts of

the world(troubled waters) there were some notable acts of terrorism, there was a perception that in

Canada there was not such a risk. But the security awareness would quickly change and Canada would

quickly change its maritime security.

The change after the 9/11 events

Noteworthy is the fact that although the act of terrorism had effects on the aviation sector, it was an

industry leader who called for changes in the whole transportation security namely the head of

Hutchison Port Holdings of Hong Kong.82

He realized that if such an act of terror would occur in the

maritime sector that it would have an impact on the global economy.

The Government of Canada also reacted on the attacks on U.S. soil, it re-examined its security strategy

as a whole, and thought how it could combat new developments concerning terrorism and it focused

on domestic security issues that needed to be reviewed.

A first national security policy for Canada would be developed, where also North American defence

arrangements between Canada and the United States would be enhanced. Hereafter Canada Command

was established by the Department of National Defence, which has as duty to deal with as well natural

as man-made disasters effecting Canada. In the United Stated there is the Northern Command and

above that the U.S. Government has created the Department of Homeland Security in order to enhance

the security. In Canada the Department of Public Safety and Emergency Preparedness Canada was

created, but is now called „Public Safety‟.

80

R. HERBERT-BURNS; S. BATEMAN; P. LEHR, Lloyds MIU Handbook, p. 315; P. MOTH, International

ship and port facility security (ISPS) code : a practical guide, Portsmouth, Foreshore Media, 2003, p. 114 81

H.RICHARDSON; P.GORDON; J.MOORE, The economic impacts of terrorist attacks, Cheltenham: Edward

Elgar, 2005, p. 249 82

The world‟s largest independent port operator. See http://www.hph.com/business/ports/ports.htm

http://www.hph.com/business/ports/ports.htm



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This Department gathered together agencies, policing and security services of the Government that

have a security mandate, and they have been put together under one organization except for one. The

Department of Transport retained its security role and didn‟t take part in the government

reorganization.

So beyond the measures to enhance the aviation security, there was an international agreement for the

maritime security that was called into life known as the ISPS Code.83

There was no time for Canada to create a new legal act, and therefore the enabling legislation of the

MTSA would be used in order to implement the ISPS Code. It was a big task because the requirements

would be fulfilled in less than 18 months.

The Department of Transport enjoyed a greater autonomy than some other Departments for

operational decision-making requirements within the region. And Ottawa retained a functional

authority for national consistency. Concerning the national marine security policy, regulatory and

operational policy matters the decision-making would be at national level, but also with regional input

into the process. This implies that the strict operational issues would fall to the regions for the

implementation and the enforcement. But the consequences of this system are that there isn‟t a

national consistency because of the maritime security issues of regional diversity.

On the day that the Code was implemented, the Government of Canada and the departmental officials

were anxious to see the results of the ISPS Code. There were less than 35 marine security inspectors

across Canada and above this they were clustered in larger ports. But the assessment of the compliance

of the Code had to be done in over 400 port facilities, considering that there is a lot of vessel traffic

entering, departing and transiting through Canadian waters it was a big challenge.

The government had the opinion that the port and port facilities were in compliance, but more

attention must been given to the condition of the ships. Therefore solutions were found for the

problem to assess the security.84

A big concern was that, if there were ports not corresponding to the security rules in a way that they

complied with the ISPS Code, was that there could be „port shopping‟ by vessels and this should be

avoided.85

It is essential for Canada and the United States to have consistency in the port and port

facility security framework. Otherwise the vessels would choose to visit the ports that had less

stringent security procedures. Subsequently there would occur a loss of business for some mayor ports,

and this is why such diversity of implementation in the ports should be avoided.

Canada and the United States manage two mayor waterway systems and because of the influence of

the U.S. security position it was also easier for Canada to elevate the application for the achievement

of a better and enhanced North American maritime security framework.

In April 2004 Canada has released its first national security policy ever, and this was two months

before the coming into force of the ISPS Code. In the National Security Policy(NSP) there were

critical security issues, one of them concerns maritime security.

With this example, my intention is to show that some regions in the world had no security measures at

all before the implementation of the Code. Canada has the advantage of being a neighbour of the U.S.

because of the fact that they had already applicable security measures in place.

83

R. HERBERT-BURNS; S. BATEMAN; P. LEHR, Lloyds MIU Handbook, p. 316 84

Bookelements of shipping p. 320 85

R. HERBERT-BURNS; S. BATEMAN; P. LEHR, Lloyds MIU Handbook, p. 321



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CHAPTER 6: OTHER NATIONAL INITIATIVES

1. The Container Security Initiative(CSI)

The United States have created the Container Security Initiative, along with the ISPS Code it has

become one of the most influential maritime security initiatives.86

The CSI was launched in 2002 by

the Bureau of Customs and Border Protection(CBP) that is an agency of the Department of Homeland

Security(DHS). The objective of the CSI is that there is an enhancement of the security when cargo

transport is done with containers that are shipped to the United States. The CSI program includes the

screening of containers that pose a risk for terrorism, and the screening is done by teams of CBP

officers.87

They used to work in consultation with their host nation counterparts. CSI forms

cooperative partnerships between their customs officials and ports all over the world. In exchange for

the permission of the customs officials for their screening in other CSI ports out of the United States,

other CSI countries get the permission to screen cargo in U.S. ports bound for their home countries. In

order to give a better understanding of the CSI the three core elements will be listed:

The first object of CSI is to identify high-risk containers. The CBP, based on advance information and

strategic intelligence, uses automated targeting tools to identify containers when there is a potential

risk for terrorism. Further on, before shipping the containers there is a pre-screen and evaluation of the

containers. The meaning of the screening in this stage of the supply chain is to detect as soon as

possible the threat in the trade of goods. And generally spoken it is in the port of departure that the

containers are pre-screened. Another important element in the CSI is the time-issue. The screening

must be rapidly done, so that the trade doesn‟t undergo an slowing down effect. The screening

technology includes large-scale X-ray and gamma ray machines and radiation detection.

Source: http://www.lanl.gov/orgs/pa/News/072899.html

86

E.J. Lobsinger, Post -9/11 security in a post-WWII world: the question of compatibility of maritime security

efforts with trade rules and international law, Tulane Maritime Law Journal, Winter 2007, p. 32 87

J.A. Bullock; G.D. Haddow; D.P. Coppola, Introduction to homeland security, Elsevier, Oxford, 2006, p. 219

http://www.lanl.gov/orgs/pa/News/072899.html



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How the CBP officials work in practice can be explained like this: first there is a monitoring of the

threat level of the cargo that is originating or transhipped and that is destined for the United States.

The system that is used calls the Automated targeting system(ATS), this is a database that gives an

alert when there is risky cargo. It is one of the most advanced targeting systems in the world.88

When the red flag occurs for risky cargo, the host government officials(that have been alerted by the

CBP officials) have the authority to detain and inspect the containers. Now what are the advantages of

the pre-screening of the cargo before it reaches U.S. ports of entry, or ports of other countries that take

part of the CSI program? Firstly it is obvious that by pre-screening of the cargo there is less chance on

terrorist attacks, it is already to late when containers including materials destined for terrorist attacks

enter the port of arrival. When WMDs are detected before the arrival to the port it is more likely that

there will be less successful attacks. Secondly there will be no bottlenecking in ports of arrival when

pre-screening is done by ports of departure, and ships, ports and the global supply chain will encounter

facilitation of trade.

In the beginning phase it was the objective of the program to bring the 20 mega ports into the security

scheme, nowadays there are already a lot more ports that also use the CSI program. To give an idea in

2008 there were already 50 ports that were using the program, in North and South America, Europe,

Africa, the Middle East and Asia.89

Summarising the CSI we can remember the following:

The container security initiative has been set up by bilateral cooperation agreements by the American

CBP customs in order to counteract the import of MDW(mass destruction weapons), nuclear material,

etcetera.90

This initiative has as meaning to control the goods in the port of export before it enters the

port of import, which has as consequence that there is more time to react on a security threat that aims

the port of import(America). There is still a control of the containers in the port of import, but the

containers that have already been controlled will have less control in comparison with other containers

not following the CSI. This system works with American personnel of the CBP in other ports that do a

risk analysis, and the local personnel does the physical control.91

The difference between the ISPS Code and CSI lays for instance in the fact that CSI is a national

regulatory measure. From that point it has a greater risk of violating international law. More

specifically the participants of international law are obliged to obey to the international treaties and

agreements. For the CSI program the WTO Agreement is very important, because every CSI

government is bound by it but the compliance with the WTO is critical. Nowadays the WTO stands as

the most important system of trade law and it is possibly one of the most effective international legal

regimes. We have to determine whether the CSI program has distorting effects on trade or not, and if

CSI violates the obligations under WTO. If the answer to this question in rather positive, then there

will be no global support for the security measure, by its illegality. In trade relations it is important to

know whether the system that is being used(the national counterterrorism measures) is legal, when

trade litigation increases.

88

Privacy impact assessment, customs and border protection, automated targeting system, November 22, 2006,

http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_cbp_ats.pdf 89

To give an idea of which ports have signed the CSI program in 2002 see annex I 90

F. WITLOX, Beveiliging in het vrachtvervoer: mythe, macht of noodzaak?, Garant, Antwerpen-Apeldoorn

,2005, p.154 91

See: agreement between U.S. and Europe

http://eur-lex.europa.eu/LexUriServ/site/en/oj/2004/l_304/l_30420040930en00340037.pdf

http://ec.europa.eu/taxation_customs/resources/documents/customs/policy_issues/customs_security/normes_wco

_en.pdf

http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_cbp_ats.pdf

http://eur-lex.europa.eu/LexUriServ/site/en/oj/2004/l_304/l_30420040930en00340037.pdf

http://ec.europa.eu/taxation_customs/resources/documents/customs/policy_issues/customs_security/normes_wco_en.pdf

http://ec.europa.eu/taxation_customs/resources/documents/customs/policy_issues/customs_security/normes_wco_en.pdf



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When we assume that there is a trade distorting effect by CSI, and moreover that it has the function of

a nontariff trade barrier against non-CSI partner countries, CSI could still be applied. In article XXI of

the WTO provides that in case of national security there is place for an exception of GATT. But

another rising problem is that there is a lack of adjudicatory interpretation or conclusive litigation.

Among scholars there is a disagreement about article XXI, is the article self-defining or is there a

WTO panel that has the authority to settle article XXI disputes.

2. Customs-Trade Partnership against terrorism(C-TPAT)- Awareness and

prevention92

(U.S. Customs and Border Protection, 16 May 2005)

The C-TPAT differs from the CSI in a way that it aims to protect the whole supply chain.93

This

initiative is also an American one, originating from the Bureau of Customs and Border Protection.

This initiative is voluntary and terminal operators, exporters, importers and companies can take part of

this initiative. First, those who want to take part of this initiative must fill in a questionnaire

concerning their procedures of internal control for the Bureau of Customs and Border Protection.

Furthermore there will be eventually a demand of the customs to take additional control measures and

the firm can be recognized as a „reliable partner‟.94

The system of the C-TPAT makes that there is an

exchange of information on a timely basis between the members and the Duane.

Again the object of this system is to apply a lower control percentage.95

3. Bioterrorism Act of 2002

Concerning the protection of food, the Federal Food & Drug Administration has asked that particular

information of the import of food will be reported before the arrival in the United States.96

This act is

especially applicable to companies and other transporters. Are excluded from this legislation are

container terminals that haven‟t the store features with cold stores, luggage compartments or other

storages where goods are temporary stored. Food producers and storages for food must register with

the FDA and they also need to assign a local responsible in the United States.

4. 24-Hour Advance Manifest Rule (24 Hour Rule)

Another national initiative is the 24-hour rule, this initiative obligates the exporters to the United

States to inform the US Customs about the load when goods come from a European port to the United

States. In this way the security threats are diminished, in a way that more information concerning the

to shipping goods are available.97

92

A.T. COOK, Managing global supply chains : compliance, security, and dealing with terrorism, Auerbach;

London, Taylor & Francis, 2008, p. 9 93


,2005, p.154 94

Y. ALEXANDER; T.B. RICHARDSON, Terror on the high seas: from piracy to strategic challenge,

California, Praeger Security International, p. 592 95

Y.W. YIM, Container Shipping Services and Their Impact on Container Port Competitiveness, Institute of

Transport and Maritime Management Antwerp, University Press Antwerp, 2009, p. 65 96

Website Food and Drug Administration: www.cfsan.fda.gov and www.worldshipping.org 97


,2005, p.174

http://www.cfsan.fda.gov/

http://www.worldshipping.org/



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5. Proliferation Security Initiative(PSI)

The idea origins from the American president Bush on the 31st of May 2003.

98 The objective of the

initiative is to prevent Weapons of mass destruction(WMD) from reaching or leaving actors of

proliferation concern. The adherent countries to this proliferation initiative have grown from 11 to

more than 20. It must be known that most WMD traffic moves by sea, therefore PSI focuses on

interdictions and seizures. This initiative has made progress, but the manner of promotion and

implementation was rather aggressive and that is the reason why there is a lot of controversy in this

field. Some critics have said that it stretches or breaks the fundaments and limits of the existing

international law, they said also that it undermined the UN system. There are countries like China,

India, Indonesia and South Korea that don‟t publicly join the initiative despite U.S. pressure, and

maritime security issues become at this way national concerns. “Jurisdiction is creeping seaward and

perceptions of threat and concepts of sovereignty are diverging, greatly elevating maritime

sensitivities”.99

In order to make this PSI work, it should be necessary to take some actions. It will be

necessary to create a better international framework so that the initiative becomes an effective tool.

The existing international law should be changed, for example existing conventions should be adapted

or new conventions should be developed, etcetera. But in order to do so the countries willing to

perform such interdictions on each other‟s ships and aircraft or in or over their territorial sea should

form a coalition.

When reviewing all these additional security measures coming from the United States there is one

phenomena that comes back, there is a virtual second line of defence built. It is clear that these

measures have an influence outside the country of the United states. The object of such a system is to

stop the security threats before it can enter the United States itself, the enemy can be stopped abroad.

There are controls of the security in transport and load to the United States from Europe, where the

Duane of European countries do the controls.

Further I want to remark that the World Customs Organisation has made a resolution in 2002

concerning the security in the supply chain.100

98

S.D. Murphy, United States Practice in International Law: volume 2; volumes 2002-2004, p.126 99

Ibid. note 69 p. 126 100

World Customs Organisation, Resolution on Security and Facilitation of the International Supply Chain, June

2002



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6. THE INFLUENCE ON SHIPPING

1. Introduction

The SOLAS Convention has 155 contracting parties, and thus they have a legal obligation to comply

with the ISPS Code. And remarkably all the parties signed the amendment of the SOLAS Convention.

The ISPS Code has seen the light in 2004, now 6 years later we will analyse how the shipping industry

reacts and which effect does the Code have on it.

The security rules have a direct influence on the international trade, as well international, in the

European Union, as on the national scene. Moreover it is important to remark that over 98% of the

world‟s international fleet falls within the scope of the ISPS Code, and have to fulfil the mandatory

part.

It is very important to understand the value of the security rules on the different levels, in an overview

it will become clear:

On the international scene, I have already mentioned above that the IMO as organization is a pioneer

to enhance the maritime security. But these measures have operational and commercial consequences.

The manning of the ship and other personnel in the port facilities will all feel the consequences of the

security rules.

Because of the widespread of measures that have to be taken, a delay in the whole supply chain is

inevitably. The loading and unloading, the deployment of personnel on the ship and in the port facility

will be delayed.

Furthermore, I would like to mention that the ISPS Code has a strong interface between the port state

control facility adopted by resolution A.882(21) and the port facility embracing the control and

compliance as set in chapter XI-2 of the SOLAS Convention and the ISPS Code.101

This has as consequence that when a ship proceeds to a port or is at a port of a Contracting

Government to the SOLAS Convention, that the Government has the right102

to exercise control and

compliance measures. When there are reasons to believe that the security of the ship has been

compromised(or the port facilities that have served it), the ship may be subject to port state control

inspections, as well there is a possibility that additional control measures can be exercised. Because of

the ISPS Code, it becomes clear that the port state control becomes more stringent.

Above I have already given the responsibilities that lays upon ships and ports, out of these records the

conclusion is that there is an equal responsibility.

First of all the Contracting Governments have to select the port facilities that will fall under the

regulation, next they will have to appoint and train a PFSO. Besides a PFSA will have to be made and

the government will have to give an agreement, from this point on the PFSP must be produced.103

Implementation of the plan must then be proceeded and afterwards a test must be done. When the

outcome is positive the ports receives a certificate of compliance.

101

Elements of shipping, Ship and Port Security and Port State Control, p. 215 102

Regulation XI-2/9 103

Elements of shipping, p. 216



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CHAPTER 1: SHIPS AND PORTS

1. SHIPS AND PORTS

An important question that must be posed, is what would happen if ships do not comply with the

requirements stated in the ISPS Code, and if they don‟t have a certificate.

When a ship does not fulfil the requirements stated in the Code, it won‟t be issued with an

International Ship Security Certificate or with an Interim International Ship Security Code. Because of

the fact that the Contracting Governments to the SOLAS Convention must comply with the security

rules, it is legally forbidden for ships flying their flag to continue operations until they have been

issued the appropriate certificate conform the ISPS Code and chapter XI-2 of the SOLAS Convention.

Furthermore these ship can be subject to control and compliance measures in a port of another

Contracting Government by authorized officers.

Above that, the ship that doesn‟t has a valid International Ship Security Certificate may be detained in

a port until a valid certificate is issued. The port State can also expel the ship from the port, because of

its sovereignty, it may refuse the entry of the ship into the port, or it may curtail the operations of the

ship. It is clear that ships that don‟t comply with these security rules are banned out of the market in

the shortest possible time. It could be that when a ship that has a valid International Ship Security

Certificate enters a port that doesn‟t comply with the ISPS requirements, with as consequence that it

leads to delays and possible denial to enter another subsequent port. The owners and charterers may

make the decision to instruct ships not to proceed to such port facilities not complying with the ISPS

Code. The non-compliance may have catastrophic consequences on the environment and human life,

and secondly the commercial interests will be damaged of the countries not complying, but above all it

will also have implications on the international trade and the world economy.

The consequences can be far reaching for ships and ports that do not comply with the requirements. At

this view it, the ISPS Code has in this way a good influence concerning the enhancement of security.

It is not that easy as before for the manning with the new security rules, problems concerning the visa

of manning appear(is the nationality of a person a stumbling block to recruit someone considering

security rules?). With the more strict security rules the recruiting(the enrol) and dismissing of the

manning is more difficult, and if a member of the manning of the ship needs medical aid, there will be

extra security on land(ashore) needed. These operational and contractual consequences do not

contribute to the good progress of the shipping industry. These consequences will have a negative

influence on the moral of the manning and the atmosphere in globo. It is a fact that with the extra

security rules that there is an overload of the manning on board, the Code brings extra responsibilities

with it. Logically the captain of the ship needs to take account with the information that is necessary

for the assessment of the security on board. More than before he has the duty to know the obligations

on board, he needs to know who has recruited the manning of the ship, who has the power to take

decisions about the exploitation of the ship, when there are charter parties the captain needs to know

who are the contract parties, etcetera. It will be more difficult to hire personnel, and in general the

whole supply chain will feel the effect of the strict rules.



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Source: European Training Manual for Maritime Security Personnel/ISPS Code, confederation of European

Security Services, 2008, p.12

It is a fact that ports have always had special security concerns, because of the relatively high level of

open border access.104

The legal principle of freedom of the seas, dating back to at least Hugo Grotius,

has long been in tension with the sovereignty of a state in seas adjacent to land and whereby the state

controls the sea traffic for national security and economic benefits. But we have to remark that an

excessive state control makes economic exchange less attractive and can on his time sour the relations

between states.105

A definition of the territorial sea is “ the area of the sea closest and directly in contact with the

coastline of a state, within a range of 3 to 12 miles, and is accepted generally as subject to the

sovereignty of the coastal state”. A coastal state‟s exercise of sovereignty in the territorial sea is, as a

matter of international convention and customary international law, limited by the right of innocent

passage of ships. But the right of innocent passage is not absolute, when there is threat to public order.

It means that also in territorial waters there exists a considerable degree of freedom of passage, and

furthermore ports are gateways between state sovereignty and the free movements of goods and

individuals. The port serves as control point to guard the borders against unwanted trafficking and on

the other hand it serves as traffic point for goods and people. It is for the reason that shipping is

international, that one security threat in one port can no longer be isolated, the ports are a part of the

global trade network. And when there should be a disruption of a megaport by a terrorist attack it

would cripple the global trade flow more than a terrorist attack on an important maritime

chokepoint.106

When there would be a terrorist attack on a megaport, such as a detonation of a bomb

hidden inside in a container, there would enormous costs on the industry. A chain reaction of other

megaports could be the consequence, they should prevent containers coming through their gates by

closing them. The difficulty for ports is that they have a dual function, as already said before, the ports

serve as checkpoint for the distinguishing of legitimate and illegitimate cargo/persons. It is obvious

that terrorist attacks in ports can have mayor consequences on the transport network and further can

have domino-effects on the industry in general, and to people working and living in the port area.107

104



M.S. McDougal; W.T. Burke, the public order of the oceans: A contemporary international law of the sea,

1962, p. 51-53 106



F.WITLOX, Beveiliging in het vrachtvervoer: mythe, macht of noodzaak?, Garant, 2005, p.151



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There is a U.N. report of 2006 where is stated: “Although the new security requirements impose an

additional regulatory burden on all concerned parties, security-driven business practices and

operational procedures have the potential of improving efficiency and trade competitiveness”.108

2. SECURITY THREAT ASSESSMENTS

The assessment of threat depends from one place to another, and when another security level is being

set up, there will be a delay. As I already mentioned before, the security level of the port facility must

be followed by a ship when entering a port. This means that the security level creates a link between

the ship and the port facility. And there can be inspections by the flag state and the services of the port.

The new chapter XI-2 distinguishes 3 security levels(alertness levels); there is a normal, a heightened

and an exceptional level. The first level is the normally operating level of the ship of port facility, at all

times there will be minimum appropriate security measures. When going to the second level, there

must be a heightened risk of a security incident. Besides the normal protective security measures there

will be additional measures that will be maintained for a period of time. The highest security level

refers to a probable or imminent risk of a security incident. This level is exceptional and will only be

maintained for a limited period of time when a security incident is probable or imminent even if it is

not possible to identify the exact target. Before going to the level 3 measures, there need to be credible

information about the probable threat.

It is also important to note that when there are changing security levels, it is possible that the levels

change from level 1 directly to level 3. But likewise it can be that the level changes not directly to

level 3, but with an interval to level 2.

Furthermore it must be noticed that the owner of the ship feels a lot of implications of the Code, but

there are mainly financial consequences. When talking about charter parties there I want to remark that

in the clauses of the contract the following changes must be made: if there is a safe port when entering,

the arrival of the ship, time of demurrage and time of berth, the liability of the owner, risks of war, …

With these examples we can understand that the security rules imply a direct impact on the contractual

relations, and also on the insurances of ships. Besides that the vessel owner and operator have the duty

to ensure that their vessels are physical secure and safe109

.

108

UNCTAD, Maritime Security: Elements of an Analytical Framework for Compliance Measurement and Risk

Assessment 3, 2006; available at http://www.unctad.org/en/doc/sdtetlb20054_en.pdf 109

Guideline for performing Ship Security Assessment according to the ISPS Code, Norwegian Shipowners

Association, Version 1, 04-03-03

http://www.unctad.org/en/doc/sdtetlb20054_en.pdf



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CHAPTER 2: LATEST NEWS AND THE FUTURE

Continuous Synopsis Record110

A first aspect that I will discuss is the evaluation of the Continuous Synopsis Record111

. The CSR have

been issued since 1 July 2004, and we can see that since then there have occurred some problems and

that there has been a reporting to the IMO. Above that there has been an amendment to resolution

A.959(23)(see supra) by resolution MSC.198(80) that has been adopted on 20 May 2005.

In this resolution there has been a change of the guidelines and time schedules to support Contracting

Governments in the practical application and there has been an amendment to the format and

maintenance of the CSR.

The problem with the revised CSR rules in 2005 are, inter alia, the additional administrative work and

also the penalties against vessels. But there are a few issues that I would like to bring forward:

First, the different national CSR forms that are being used, can differ from the prescribed format in the

appendix of resolution A.959(23). The differences can lay in the different numbering or missing

boxes. Another requirement in SOLAS regulation XI-1/5.1. is the language of the CSR in English,

French or Spanish. But the deficiency is that some CSRs have only been issued in the official language

of the flag state but not in the required languages, these CSRs cannot be recognized by Port State

Control. Next there is a problem concerning the correct numbering of CSRs it the case that a flag or

bareboat registration is being changed.

Further on there can be a misdating regarding ship registration, because of the different national

legislation whereby the relevant dates for a vessel may vary. This can cause cases where a vessel has a

period of time no history at all, or where there is an overlap of history. The next issue is that the

original CSR document has to be kept on board the ship and shall be available at all times. But the

problem with regulation XI-1/5.1. is that a clear definition of the modality is missing in it. What is the

original document, is it the electronic copy or a paper copy? The deficiency is that the flag states still

follow their own interpretation. Finally I would like to add that according to resolution MSC.194(80)

there are different interpretations concerning regulation XI-1/5.3 that‟s says that the CSR must contain

the company identification number and the registered owner identification number “ when it is issued

or updated on or after 1 January 2009”.

Port State Control doesn‟t know how to handle with these deficiencies, the PSC misses clear

instructions about how to deal with CSR. They handle it with detention or no action, and when they

undertake actions it could lead to conflicting situations and it may cause legal problems with the

Contracting Governments.

The cause of the many problems in the field of CSR are mainly due to different registration laws and

administrative practice as well as the failure of companies to comply with applicable regulations. It is

clear that companies and Contracting Governments are failing to meet their obligations under the

guidelines issued by IMO.

There are many problems rising in this field, and therefore it is difficult to come to a common

solution; the Committee must find the best feasible solution for all parties, but it won‟t be easy.

110

SOLAS regulation XI-1/5; and resolutions A.959(23), MSC.194(80)

and MSC.198(80) 111

I:\MSC\87\4-3.doc, Maritime Safety Committee, measures to enhance maritime security, issue of Continuous

Synopsis Record, 18 February 2010



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When proposing solutions, it would be good to consider the following:

Proposal of the adoption of security-related training and familiarization training for shore-

based Company personnel and port facility personnel.112

The shipboard and shore-based personnel has the duty the comply with the general requirements of the

ISPS Code concerning the security-related training.113

In Part A of the Code, where the obligatory

requirements are stated are the following sections important: A/13.1, A/13.2, A/13.3, A/18.1 and

A/18.2. Because there is an inconsistency of section A/18.1 of the Code with paragraph B/18.1 it

would be necessary to amend this paragraph.

For all other port facility personnel there is paragraph B/18.3 of the Code with guidelines concerning

security related matters.

Shore leave and access to shore-based seafarers114

Ships‟ crew members115

live and work on the vessel and are entitled to and need shore leave and

access to shore-based seafarers‟ welfare facilities, and the designated authorities and Companies

should pay due cognizance to this when developing ship or port facility security plans. The method for

obligating this in the plans is by strengthening the ISPS Code, the Committee should re-issue also

MSC/Circ.1112 and MSC/Circ.1194.

There should be action taken by the Committee concerning the possibility for seafarers to have access

to the shore by re-issuing one common Circular of the MSC/Circ.1112 and MSC/Circ.1194. Because

of the fact that the seafarers are continuously denied shore leave and it appears to be more common,

there is a change needed. For the well-being of seafarers shore-leave is essential, and certainly for

those who spend many weeks or months at sea. For example the reasons for which the seafarers could

need shore-leave are to access telephones and the internet to have contact with the family, to do

exercises, seek medical and psychological support and if needed to have a break from their work

environment.

The IMO has already made efforts in order to make clear that shore-leave for seafarers should not be

restricted, the only reasons could be when there occurs a risk for public health, public order and public

safety. INTERTANKO and ITF consider the denial for seafarers to shore-leave to be contrary to

international conventions, regulations and standards.

Port States should consider the following:

First of all the applicable IMO Conventions, regulations, standards and circulars governing the

seafarers rights to shore leave. And more specifically Section 3, Paragraph 3.44 of the Convention on

the Facilitation of Maritime Traffic116

(as amended):

"Standard. Foreign crew members shall be allowed ashore by the public authorities while the ship on

which they arrive is in port, provided that the formalities on arrival of the ship have been fulfilled and

the public authorities have no reason to refuse permission to come ashore for reasons of public health,

public safety or public order."

112

ISPS Code; IMDG Code, section 1.4.1; ILO/IMO Code of practice on security in ports, chapter 10;

resolutions MSC.203(81) and MSC.209(81); STCW.6/Circ.9; MSC/Circ.1154; MSC.1/Circ.1188;

MSC.1/Circ.1235; IMO Model courses 3.19, 3.20 and 3.21 113

Maritime Safety Committee, 87th

session, 29 January 2010 114

Maritime Safety Committee, 87th

session, 18 February 2010 115

A 26/INF.4, A 26/6(b)/2, MSC/Circ.1112, MSC.1/Circ.1194, FAL Convention, SOLAS chapter XI-2, MLC

2006 and MSC 76/4/6 116

Convention on the Facilitation on Maritime Traffic, 1965



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Further there is paragraph 11 of the preamble to the International Code for the Security of Ships and

Port Facilities:

"Recognizing that the Convention on the Facilitation of Maritime Traffic, 1965(as amended) ,

provides that foreign crew members shall be allowed ashore by the public authorities while the ship on

which they arrive is in port, provided that the formalities on arrival of the ship have been fulfilled and

the public authorities have no reason to refuse permission to come ashore for reasons of public health,

public safety or public order, Contracting Governments, when approving ship and port facility security

plans, should pay due cognisance to the fact that ship‟s personnel live and work on vessels and need

shore leave and access to shore based seafarer welfare facilities, including medical care."



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CHAPTER 3: THE COST OF COMPLIANCE WITH THE ISPS CODE

In this part of my master dissertation, the costs related to the implementation of the ISPS Code will be

discussed, and also the implementation of the Code.

The costs of the security investments are very high, and many efforts have to be made in order to

comply with the ISPS Code. The costs contain not only investments in materiel(such as fences,

control posts, camera security, etcetera, …), but also in studies, security plans, extra personnel for the

administration and also for the security itself.117

With my presentation above, I have analysed the security rules that relate to the security of ships and

port facilities but none of them has juridical a solution for the finance of the security measures.

In order to avoid distortion of concurrence between ports and terminals there are proposals of several

organizations for the finance of security in ports, and a European juridical framework has been plead

the Economic and Social Committee, the European Parliament, several member states of the E.U. and

pressure groups of the public and private port sector. The object of such a juridical framework should

prevent distortion of concurrence between ports and terminals.

Because of the different degree of government subsidies there can be distortion of the concurrence in

the different countries. Only the differences in responsibility concerning the financing of the security

measures can cause such a distortion. Therefore it is really necessary that a juridical framework will be

accomplished.

The information in this part is based on a Report (in a „cost of compliance study) of UNCTAD (United

Nations Conference on Trade and Development) of the 14th of March 2007‟.

118 But in the E.U. there

has also been a study about the costs of the security measures and the possibility to create a European

juridical framework.119

If there is one thing that is certain, it is the high cost of compliance of these security rules. But how

high the costs really are, can only be assessed by a study based on specific parameters. In order to give

an idea of the height of the costs, UNCTAD has made a study based on questionnaires that have been

send to the affected parties of the ISPS Code. Furthermore there must be remarked that the answers are

based upon questionnaires of ports and governments (the shipping sector not included, because of the

limited response). UNCTAD has received 55 questionnaires from ports of all the regions, mostly from

developed countries, and the following conclusions have been made. It seems that there is full

compliance of the Code, without big difficulties. The mandatory Part A is mostly complied according

to the guidelines in Part B. But in many cases there are also additional measures adopted, enforced by

the government or the industry.

117

See: OECD/OCDE(Maritime Transport Committee), Security in maritime transport: risk factors and

economic impact, July 2003, 59 p.; http://www.oecd.org/dataoecd/ 19/61/18521672. pdf (geraadpleegd op…) 118

United Nations Conference on Trade and Development, Maritime Security: ISPS Code implementation, costs

and related financing, Report by the UNCTAD secretariat, 14 march 2007 119

This research has been asked in the introductory phrase of Regulation no.725/2004

http://www.oecd.org/dataoecd/



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1. The cost of compliance

In order to comply with the new security regime, there are costs to be made. First there are the initial

costs, on average the costs for the equipment are the biggest share in the expenditures followed by the

expenditures for infrastructure. These initial costs fall between US$ 3,000 and 35,000,000.

Subsequently, there are the annual costs where the biggest share of the costs goes to the personnel and

the staff. These costs are approximately estimated between US$ 1,000 and 19,000,000.

Further on, there are the unit costs and averages that are based on a few parameters including the

annual revenues of the ports, cargo throughput, the number of ISPS port facilities, and the ship calls.

The unit costs analyse makes clear that there is a big difference in small and larger ports, the smaller

ports have higher relative costs.

The initially global port related costs are estimated by this report between approximately US$ 1.1

billion and 2.3 billion. Annually it comes at an amount from US$ 0.4 till 0.9 billion.

The equivalent of these costs in maritime freight payments increases about 1% initially and 0.5%

annually of the expenditures.120

Concerning the financing of some ports we can say that there are several responding ports that have

already implemented the cost-recovery schemes or are either planning to implement them.

The ports prefer to let the security charge to the different users of the ports, but mostly the ones that

use the cargo and the containers. However it is still the case that not all the costs can be recovered, like

the initial and annual costs on the security.

From the statement of the responded ports was concluded that several ports had acquired public

funding and assistance. In developed regions it was the case that the assistance also involves that cost-

sharing agreements were prepared and governmental grants. On the other hand it is a fact that in the

developing countries they can only benefit from the technical assistance and from the capacity

building as directed by the international organisations. The perception of the objectives of the ISPS

Code in ports is considered legitimate and the outcome of the report shows a positive impression

concerning the new security regime. What specifically rises to the surface is the increasing awareness,

the streamlined procedures, the standardised risk evaluations and the improved business practices.

What specifically rises to the surface is the increasing awareness, the streamlined procedures, the

standardised risk evaluations and the improved business practices. As opposed to the positive

experiences there are also negative experiences and more specifically about the operational

interferences, but also the cost implications and the required funding bounded with it. There were also

several ports who mentioned increased delays and even so they reported a decrease in competitiveness.

There were also ports that remarked that there was no impact at all in spite of the ISPS code.

Next to the interrogation of the ports, there are the government‟s experiences. All governments that

took part of this questionnaire are all Contracting Governments to the SOLAS Convention.121

In order

to decrease the pressure of work most of the security duties have been transferred to several

Recognized Security Organizations (RSOs). There are 45 answers given by the governments of which

24% is a member state of the UN. All regions except for North America and Oceania are part of the

questionnaires. In order to insure that the ISPS Code would be implemented in the national regulation,

most governments have reported that they have used legislative and regulatory instruments and also

the monitoring of the initial and following compliance.

120

See: UNCTAD‟s Review of Maritime Transport, 2006 (www.unctad.org) for 2004 data on global freights

costs. The 2004 data on international maritime freight costs have been estimated by the UNCTAD secretariat to

amount about 67% of global freight costs. 121

Safety Of Life At Sea Convention, 1974 as amended

http://www.unctad.org/



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Furthermore it became known that, in spite of a few exceptions, the compliance with the ISPS Code

was reached without any difficulties by the respective national ports and the shipping sector.

Nevertheless the majority of the governments made it clear that additional measures were carried out

in order to comply with the ISPS requirements.

Concerning the costs on behalf of the governments, there is an initial cost which lies between US$

13,500 and 50 Million per government. The annual costs were estimated between a US$ 1,500 and a

US$ 27 Million. In spite of the cost-recovery most of the responding governments can‟t recover this

by the use of user fees or charges. Nevertheless the governments prefer to recover their costs from its

fees of the issuing and renewing of the certificates and also for the audits. Another conclusion is that

some of the governments would like to give assistance to the national ports with measures like grants,

cost-sharing arrangements, and also technical assistance.

With a questionnaire of the governments about the impact of the ISPS Code on their land, a positive

feedback was given in a large amount. However some of the governments remark that the high costs

for the implementing and the necessity of additional guidance are negative points of the new

regulation. Nevertheless countries of developing Africa asked for international assistance and

cooperation.

2. About the implementation of the ISPS Code and additional measures.

It is quite remarkable that a huge majority of all ports (93%) report that they fully live by the

requirements of the ISPS Code. The minority (7%) said that they couldn‟t fully live by these

requirements due to the fact that the certification procedure wasn‟t completely in order yet.

The method on which most of the ports ensure the compliance with the mandatory part is by following

the recommendations laid down in Part B.

It is also important to know that on the base of Regulation No. 725/2004 on enhancing ship and Port

Facility Security, that there are also parts in part B of the ISPS Code which are binding for all the

member states. Furthermore it was concluded that 75% of the ports took several supplementary

measures next to the measures obliged by the ISPS Code. This occurred on the base of the national

regulations.

As an example of one of the additional measures under Regulation No. 725/2004 we quote article 3.3

“…decide the extent to which they will apply, by July 2007, the provisions of this Regulation to

different categories of ships operating domestic services other than those referred to in paragraph 2,

their companies and the port facilities serving them. The overall level of security should not be

compromised by such decision”.122

For the ships that are used for internal travels, the member states decide on the base of a risk-analysis

to what extent they can apply this regulation on these ships, as it isn‟t an obligation according to

Regulation No. 725/2004( neither according to the ISPS Code).

For the ships that are used for internal travels, the member states decide on the base of a risk-analysis

to what extent they can apply this regulation on these ships, as it isn‟t an obligation according to

Regulation No. 725/2004( neither according to the ISPS Code).

122

Regulation (EC) No. 725/2004 of the European Parliament and the Council of 31 March 2004 on Enhancing

Ship and Port Facility Security; http://europa.eu.int/eur-lex

http://europa.eu.int/eur-lex



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The supplementary measures are laid down on the base of the additional requirements on behalf of

both the Government(71%) as well of the industry(24%).

Source: United Nations Conference on Trade and Development, Maritime Security: ISPS Code implementation,

costs and related financing, Report by the UNCTAD secretariat, 14 march 2007, p. 12

These requirements lay between an expansion of the ISPS Code to the total port area(66%) and to the

application of the IMO/ILO Code of practice(51%). It is not in all of the cases clear from where these

specific measures are being lead, or more specifically whether they are originating from the

government or either from the industry.

In the extent to which it is already clear that most of the countries are implementing the additional

measures to their Regulation, the ISPS Code can be considered as a minimum standard for security.

Furthermore it is necessary to put the costs straight that come by with the compliance of the ISPS

Code. The questionnaires that were taken in order to investigate the economic implications caused by

the ISPS Code were based on the effects of the ISPS Code on the various accomplished measures of

the port like efficiency, competitiveness, the throughput, the use of information- and communication

technologies, reduced delays, theft and other criminal incidents.

It is remarkable that the average costs are higher in smaller ports than in the bigger ports. What also

plays a part in the cost-balance sheet is particularly the scale economy(example below) , the type and

the structure of the cargo, the throughput and the current security environment which was there before

the ISPS Code was implemented. So the degree of the attendance of security before the

implementation of the Code plays an important part.123

At this rate the smaller ports have a bigger gap to fill in comparison with the bigger ports where there

already was more international traffic and by which an improved security was already provided.

As an example we can quote that there is a big transit area where they already have the acquired

equipment and where they have already implemented measures which can be used for security

purposes although they were originally used for the security requirements or in order to prevent theft.

123

See annex III



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Concerning the factors which are causing the costs there is a brief summary below. At first there are

the initial costs:



This diagram clearly explains that the costs concerning the equipment are the largest cost factor for the

ports(35%), followed by the expenses concerning the infrastructure(26%). These two factors are

followed by the personnel costs(14%) who are involved in order to comply with the requirements of

the ISPS Code and who need to fulfil to the training(8%) and the annual drills in addition to that.

It is also important to remark that with a transition to the security levels 2 and 3 there is an increased

cost than when there is an operation on the regular level 1.

When looking further on to the factors of the costs on a yearly basis there a completely different

conclusion has been come to:



The personnel costs with their 47% of the annual costs for the ports take the lead. These are followed

by the training , the drills and exercises which need to be pursued. Thus from this it can be deduced

that the ISPS Code causes also an extra employment next to its costs.



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3. Now is the question: how to finance these costs?

First of all there are the market-conducted solutions, in which the port users are being taxed in order to

recuperate the costs. The reason for this part in the master dissertation is to show what the possibilities

are to recuperate the initial and annual costs which are related to the implementation of the ISPS Code.

The questionnaires of the several ports also implied whether they have already implemented the cost-

recuperation schedule in their legislation, or if they were planning to implement this kind of schedule

in the near future. Subsequently there was also asked which responsible parties were to fulfil the

implementation and also to illustrate the foundation of the taxes. Finally the expectations concerning

the recuperation of the initial and annual costs were demanded. The majority of the ports don‟t have a

cost-recuperation schedule. However most of the developed countries have already indicated that they

have either the availability or the intention to introduce these schedules. Then there were also ports

(6%) which have already introduced these schedules next to the public support.

The ports in the developing regions, which only have a very limited use of the cost-recovery schedules

on the other hand, will experience difficulties in order to tax their port users. Moreover there has to be

referred to the fact that some of the port-and terminal operators are bound by their leasing contract or

their concession agreement which causes the determination of the responsibility in the price-fixing and

the collective revenues of the port users.

Out of the interrogations it became clear that the ports in general prefer an approach of the taxation in

which several port users bear the costs, but still the preference goes to the taxing of the cargo.



The majority of the ports (61%) gave the information that, with a direct cost-recuperation from the

port users, they didn‟t expect more than half of the ISPS Code related initial costs. The other ports

(31%) expect a cost recovery between the 50% and 80% and only a few ports (8%) expect a full or a

nearly full cost recovery.

If we take a look at the annual costs related to the implementation of the ISPS Code we can conclude

that most of the ports (54%) desire to recover more than half of the costs, though not necessarily the

complete sum. The other 46% of the ports doesn‟t expect to recover more than half of the annual costs.

Out of these conclusions it can be assumed that the expected level of recuperation doesn‟t amount to

more than the half. However it isn‟t even clear how the recovered amounts are going to be divided

between the several stockholders of the port.



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What is important in connection with cost-recovery schedules is if the levies charged in the ports are

proportional to the costs of security and if they are based on clear objective foundations. In here we

can come across the principle of the proportionality test of customary law.

The maritime industry and its users, either shipping Lines or shippers, argue that there has to be a

divided transparency so that the correct security charges can be placed.124

Then again it is quite logic that clarity is necessary concerning the charges, so that if they are levied on

the base of security, they can arise from the services in which the security is enhanced.

4. When there is public intervention: funding and assistance.

In the questionnaires there has been an inquiry if the port industry financed their ISPS Code related

expenses partly with support from the government. Hereby clearness was aimed in the sources, the

type of governmental support and the amount. A minority of the ports (26%), situated in developed

countries (exclusively Africa and Oceania), were given governmental support or were expecting to

receive it. Another part (6%) mentioned that not only they were given or were going to be given

support, but they had also implemented the cost-recovery schedules or were going to implement them.

It was also clear that all of the ports(100%) who had received or who were going to receive

governmental support were in public possession. Grants are the main support of assistance, followed

by governmental cost-sharing agreements.

For example in Canada there is a cost share agreement on a 75-25 basis, where there is a 3 – year

Canadian Marine Security Contribution Program of C$115 million commitment to assist ports and

port facilities with implementing security measures contained in their security plans. Further on there

can be interest free loans given, subsidies and tax credits.

Concerning the sources relating to the support, the main source of the support for the majority of the

ports (82%) is the local or national government. If there are other sources which are providing support

then these are the regional organizations or either the inter-country support. Next to the subsidies, the

technical assistance and capacity buildings are also forms of assistance, provided by international

organizations such as the IMO.

After this analysis we can conclude that not all of the ports have a financial schedule (cost-recovery or

governmental support or assistance) to recover the costs related to the ISPS Code. Those who do have

a financial schedule, have implemented the cost-recovery schedules by either taxing the port users

(37%), or another number of ports by receiving governmental support or assistance (26%) and finally

there are those ports (6%) who received both of them.

It is also important to give a moment‟s thought to the fact that there is an important minority of the

ports that does not have any cost-recuperation schedules or doesn‟t even have the prospect of having

these schedules. From this it is clear that the ports have a different way of financing to recover the

costs related to the ISPS Code.

124

R. Asariotis, Implementation of the ISPS Code: an overview of recent developments, Journal of International

Maritime Law, July-August 2005, pp. 266-287



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In a scheme the following can make the financing of the Code clear:



In the preceding the consequences have been set out concerning the financing of such security

measures, in the following below the impact of the ISPS Code will be clarified on other grounds.

First there is the (indirect) impact on the various working procedures of the ports, secondly there will

be an evaluation given by the ports concerning the entire impact of the ISPS Code.

In the answers concerning the impact on the several working procedures of the ports, the size of the

ports had no impact at all on the answer. The indirect impact of the Code on the working of the ports

was about competitiveness, the efficiency, the production or the processing possibility, the ICTs,

delays, theft and other sorts of criminal activities.



As is to be seen on the diagram, there is an important minority of 37% of the ports that experiences an

increase of competitiveness, on the other hand there is a small 2% of the developing countries which

find that there is a decrease in competitiveness. The orange part illustrates that there is no change at all

experienced of the competitiveness, as is shown by 61% of the ports. There were also several ports

who gave positive comments.

Another conclusion is that with the efficiency, just like the competitiveness, 61% of the ports

experienced that the efficiency remained unchanged. With 37% of the ports there has been an increase

in efficiency, in the course of which some of them gave the factors which contributed to a more

efficient way of working. These factors go among other things with: additional security personnel,

new access control measures at Gates, screening measures, and so on. Working more efficiently under

the influence of the ISPS Code can‟t be ruled out.



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As concerns the throughput 24% of the ports (mainly the small ports from the developing countries)

experience an increase of their production. It is not yet known if this has anything to do with the

implementation of the ISPS Code in their regulation.

Furthermore there is the use of the Information and Communication Technologies(ICT‟s) in which

they aim to use the implementation of various programs in order “to monitor the vessel traffic and the

phasing - out of conventional security for the benefit of the technology – based security or integrated

security”125

. As an example for these ICT‟s solutions there is VTS (Vessel Tracking Systems),

cameras, radios, AIS(Automatic Identification Systems), identity card, electronic mails, …

A next point of particular interest is the delay that could possibly occur with the implementation of the

ISPS Code. An obvious 92% of the ports mean to experience no influence at all on the rate of

working. However there is an 8% of the ports (from which the half are large sized or average sized

ports) of developing regions which experienced an increasing waiting period. In an average sized port

of a developed region there were delays at the gate terminals due to access control protocols.

As concerns the criminality and theft in the ports the following conclusion is at hand. In 62% of the

ports theft has been decreased and the implementation of the Code even caused for a diminishing of

the half of other criminal activities such as fraud and drug trafficking. However not all the ports were

able to bring forward all the data related to the theft and criminal activities, since they had no survey

before and after the implementation of the security measures. Nevertheless reports of the police

officers could still confirm these findings of the ports which had no such survey. The reported reasons

of the decreased criminal activities (between 50% and 95%) were that there has been a tighter access

control and CCTV monitoring(Close Circuit TV).126

Generally, it can be concluded that next to the effect on the security of ports, the ISPS Code also has a

neutral and even a positive influence on other performance indicators. Summarizing it may be said that

the security measures brought along a decrease of the theft and the other criminal activities, and in the

ports an increased efficiency is perceptible. There is also an improved integration of the ICT‟s and the

production hasn‟t diminished. Nevertheless still some of the ports are experiencing a decrease in

competitiveness and delays.

Conclusion: an analysis of the complete impact is acquired in order to come to a general view on the

experiences of the participating ports.



125

United Nations Conference on Trade and Development, Maritime Security: ISPS Code implementation, costs

and related financing, Report by the UNCTAD secretariat, 14 march 2007, p. 25 126

G.TSINKER, Port engineering : planning, construction, maintenance, and security, Hoboken, John

Wiley, 2004, 852 p.



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At last it must be mentioned that 24 % of the ports give a negative report on the impact of the ISPS

Code as a result of the burden it causes on all parties, the high costs to live by the Code and also

because it causes “a huge disruption to normal business.” The large majority of the ports(64%) gave a

positive evaluation, because of the fact that the ISPS Code provides standardized security in all the

facilities under the jurisdiction of the ports. Then there was another 12% which experienced only a

slight impact of the Code, since there had already been taken measures to prevent and diminish the

theft and other criminal activities in the port facilities before the implementation of the ISPS Code.

CHAPTER 4: COMPATIBILITY OF MARITIME SECURITY EFFORTS WITH TRADE RULES

AND INTERNATIONAL LAW

The question that we ask ourselves is how the anti-terrorist measures can coexist with the prevailing

trade standards and the international rules of the law of the sea. The maritime safety precautions play a

vital part in the protection of the trade; containerization of the cargo has made the world economy

extra vulnerable to terrorism. In order to prevent terroristic assaults from happening to the ships the

ISPS Code has been brought to life by the IMO, as the only significant measure ever created by an

international organization. It is necessary to mention that these initiatives attempt to defy the

conventional zero-sum game between the increase in trade and heightened security.

The initiatives are not only meant in order to secure the maritime supply chain but also in order to

increase the volumes of world trade. In this context it is necessary to give a moment‟s thought with the

compatibility of the security rules with the international law, the World Trade Norms and the

Convention on the Law of the Sea. At first the legal affairs which are affected by the ISPS Code will

be investigated. From this research it will be defined that even though the several attempts in order to

protect the supply chain would be compatible with the international law, the proponents of such

measures have to emphasize the compatibility in order to dispel fears of illegality, to maximize the

legal certainty and to eventually gain more trust in order to completely integrate the anti-terroristic

measures in our society and to finally protect the supply chain.

In order to come back to the attacks on the U.S. soil on 9/11; after these attacks another approach has

been put first in order to take care of the security. The U.S. had already some initiatives going on but

now there has been a declaration on international level that there had to be a better awareness in the

international maritime trade.

Because of the more efficient use of a large amount of containers the smuggling of WMD‟s became

even more easy, at this rate it was a small job for the terrorists to camouflage their attacks in an

anonymous container. It is due to their anonymity that these containers are the ultimate means of

transportation for terrorists to smuggle weapons inside the boarders of a certain country.

And because the containerization took care of the development of hubgates, the vulnerability of the

supply chain has been increased because one mere terrorist attack could be enough to completely

knockout the entire industry.

Concerning this subject several initiatives have been taken. These initiatives are known to stand up to

the conventional zero-sum game at which the intensified security measures inevitably decrease the

trade. It is also a fact that the newest maritime security measures bring a bigger transparency along

with them so that there is a big exchange of information. Another concern is that such a strategy

increases the trade in developed countries and in wealthier ports, but on the other hand these security

measures are a disadvantage to the smaller ports and the developing nations. In this respect it is

important to judge the consequences of the adoption of the ISPS Code( and also the initiatives taken

by the U.S.) by the bigger trade nations, because they are very important in other areas of the

international law.



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CHAPTER 5: APPLICATIONS

PIRACY

When people talk about piracy it is definitely not a new phenomenon, nowadays the piracy attacks are

a big problem to the shipping industry. Hereafter I will discuss the reports concerning the number of

attacks of the last three years, and it will become clear that there is an increase.127

Piracy must be seen on the base of customary law as an international crime, whereby those who are

guilty to these crimes must be seen as „hosti humani generis‟(enemy of mankind).128

One of the problems is that there is not a uniform definition, because of the fact that there are different

national opinions and following from that also different national laws.129

The international customary law prescribes piracy as: “ the commitment of violence at sea by a vessel

against another vessel or by rebellious members of the crew or passengers against their own vessel,

with as purpose to have personal advantage”.130

The personal advantage can sometimes be radical, I

would like to cite the Belgium case of the „Sirius‟.131

This ship operating for Greenpeace, acted against

ships dumping oil in the Atlantic ocean which was not prohibited. These ships were stopped in their

activities, and therefore the owner went or the court. In Antwerp the judge said that it was an act

committed on the high seas, and therefore it fell under the jurisdiction of the flag state. Because of the

fact that the ship was registered in the Netherlands, the judge said that he hadn‟t the authority to solve

the case. But in appeal and in Cassation, both of the courts said that the act was conform the definition

of piracy; even the personal aim stated in article 101 of the UNCLOS must be considered as fulfilled.

It was in this view a broad interpretation of the personal aspirations. The act was committed in order to

fulfil the object of Greenpeace, and even though Greenpeace is an association it must be considered as

personal. The opinion of the association is justified by their act, this means according to the court that

they defend their own personal opinion. Even If the opinion is political founded it can be considered as

personnel, when it is not pointed at a state or state regime.132

The conclusion is that the personal

interest can fluctuate.

I also like to remark that every accomplice to an act of piracy is considered to be in the same violation

of international law, and those persons will be equally punished.133

When reviewing the map of the world, the concentration of acts of piracy are clearly in Somalia more

specifically the Gulf of Aden, the West Coast of Africa(Nigeria), and the Indian ocean. Nowadays

there is less activity in Latin America.

The shipping activity in the Gulf of Aden is still high, when the ships should travel by the Cape of

Good Hope it would have an influence on the costs of the shipping industry. The costs of the fuel

would be higher, and the travel time of the ships would be longer, with the consequence that the costs

of the goods would also be higher. When the route would be moved to the Cape of Good Hope it

would be an economic problem because of the additional costs. Therefore a solution must be find for

the future.

127

169 CDS 09 E rev 1, L.JOPLING(General Rapporteur), the Growing threat of piracy to Regional and Global

Security, committee reports, annual session 2009; http://www.nato-pa.int/Default.asp?SHORTCUT=1770 128

E. SOMERS, Inleiding tot het internationaal zeerecht, Wolters Kluwer, België, 2004, p. 270- 274 129

A. MORRISON, A collection of Piracy Laws of Various Countries, A.J.I.L. 1932 (Supp.), 893 130

Ibid. note 105 131

Antwerp 19 July 1985; Cass. 19 December 1986, Pas. 1987, 1, 497. 132

G. STARKLE, Piraterie en haute mer et compétence internationale. A propos de l’arrêt de la Cour D’appel

d’Anvers du 19 juillet 1985, R.D.P. 1987, 735-752 ; G. PLANT, Civilian protest vessels and the Law of The Sea,

N.Y.I.L. 1983, 133-163 ; I. CLINK, Zeeroof in publiek en privaatrecht, T.B.H. 1986, 663-669 133

E. SOMERS, Inleiding tot het internationaal zeerecht, Wolters Kluwer, België, 2004, p. 272

http://www.nato-pa.int/Default.asp?SHORTCUT=1770



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Another problem is that the piracy problem occurs more and more further off the coast, even on 600

miles. And so the range of the piracy has extended. It is an economic, humanitarian and a juridical

problem. The International Chamber of Shipping has also made guidelines on prevention of piracy and

armed robbery for masters and ship security officers, which were updated with the ISPS Code.134

Nowadays in the Gulf of Aden there is a „security corridor‟ for vessel travelling to the west and to the

east, better known as the International Recognized Transit Corridor(IRTC). The vessels travelling in

this corridor are accompanied by warships.

Source : http://www.maritimesecurity.com/images/MSCHOA%20IRTC.jpg

When there are actual attacks to a ship the pirates try to come aboard and shoot. The last years there is

more violence than earlier against the crew members, there is also kidnapping and hostage, and there

are also more people killed since 2005.

History of the legal framework of piracy

At the end of the 1970s and the beginning of the 1980s there was a growing international concern and

awareness because of the increasing number of piracy attacks.135

The has led to the codification of the

legal framework in UNCLOS concerning piracy and this had also as consequence that the international

maritime institutions were adapted. The Piracy Reporting Centre(PRC) in Malaysia has been

established in 1992 by the International Maritime Bureau(IMB), in order to enhance the international

prevention and to understand the scale of the challenge of piracy. There must be noticed that since the

creation of the PRC, there is an overall increase of acts of piracy and armed robbery. Over the past

three years there is a continuing trend of increase, again the primarily factor is the increase off the

coast off Somalia. Concerning the effectiveness of ISPS Code measures on other maritime threats it

must be remarked that, since the new regulatory regime was implemented, the IMB Piracy Reporting

Centre in Kuala Lumpur did not indicate a reduction of piracy or armed robbery at sea. There are

sceptics that do not believe in the effectiveness of the ISPS Code, and this proves that there have not

been sufficient efforts in the integral part of the shipping industry to implement security management.

134

(ISF) International Shipping Federation.; ICS International Chamber of Shipping ,Pirates and armed robbers:

Guidelines on prevention for masters and ship security officers : Expanded and updated to take account of the

IMO International Ship and Port Facility Security (ISPS) Code, London, Marisec Publications, 2004, 4th Ed. 135

B. PARRIT, Violence at sea : a review of terrorism, acts of war, and piracy, and countermeasures to prevent

terrorism, Paris: ICC Pub., 1986, 261 p.

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Further the secretariat of the IMO has had the instruction of the Maritime Safety Committee to issue

monthly reports of incidents of acts of piracy and armed robbery136

against ships. The Secretariat137

has also started, since July 2002, classifying reported incidents of piracy and armed robbery at

sea(international or territorial waters) vis-à-vis acts of armed robbery allegedly committed in port

areas, as well as attempted acts of armed robbery.

When reviewing the evolution of the piracy activity in the Gulf of Aden, in 2007 there was a limited

activity, in 2008 there was already more activity, and in 2009 also a lot of activity even in the Indian

ocean.

Hereunder I will give an overview of a quarterly and a yearly evolution of piracy and armed robbery in

the world, based on the reports of the IMO. It will become clear in these reports, that still a lot needs to

be done in order to decrease the number of incidents.

However my opinion is that even if piracy and armed robbery are combated, it will never be possible

to stop these incidents. It has been from all ages, and as Professor Somers has said during the lessons

of international law of the sea and in a speech, it is the second oldest profession in the world history.138

JURIDICAL ASPECT

Concerning the juridical aspects of piracy, there are some important factors to take into account.

Normally there is freedom of navigation on the high seas as stated in article 87 of the UNCLOS.139

(Hugo De Groot; de mare liberum) On the the sovereignty normally lays with the flag state. But

when the definition of piracy is fulfilled, there is an exception on the exclusive flag state

jurisdiction.140

There are a few crimes in the high seas wherefore there exist universal jurisdiction in

order, one of them lays in article 101 of UNCLOS for acts of piracy.

The prevention and the combating of piracy is directly linked to the security measures that have to be

taken by the ISPS Code.141

But the definition of piracy must be found in the United Nations

Convention of the Law of the Sea.

136

"Armed robbery against ships" is defined in the Code of Practice for the Investigation of the Crimes of Piracy

and Armed Robbery Against Ships (resolution A.1025(26), Annex, paragraph 2.2), as follows:

"Armed robbery against ships" means any of the following acts:

(a) any illegal act of violence or detention or any act of depredation, or threat thereof, other than an act

of piracy, committed for private ends and directed against a ship or against persons or property on

board such a ship, within a State‟s internal waters, archipelagic waters and territorial sea;

(b) any act of inciting or of intentionally facilitating an act described above". 137

MSC 75/24, paragraph 18.41 138

Professor E. SOMERS, Universiteit van Amsterdam, De andere blik: Piraterij, Februari 2010 139

The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised

under the conditions laid down by this Convention and by other rules of international law. It comprises,

inter alia, both for coastal and land-locked States:(a) freedom of navigation; (b) freedom of overflight; (c)

freedom to lay submarine cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and

other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the

conditions laid down in section 2; (f) freedom of scientific research, subject to Parts VI and XIII. 140

D. SEDLAČEK ,Maritimer Terror und Piraterie auf hoher See, Dortmund, Wirtschaftsverlag NW, 2006 141

http://www.imo.org/Facilitation/mainframe.asp?topic_id=362

http://www.imo.org/Facilitation/mainframe.asp?topic_id=362



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In article 101 of the 1982 UNCLOS(United Nation Convention on the Law of the Sea) we find a

definition of piracy:

"Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends142

by

the crew or the passengers of a private ship or a private aircraft, and directed143

:

(i) on the high seas, against another ship or aircraft, or against persons or property on board

such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of

facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in sub-paragraph (a) or (b).144

"

The problem with the acts of piracy is that the act must be committed in the high seas or in a place

outside the jurisdiction of any State, as stated in article 101 of the United Nation Convention on the

Law of the Sea. Further on it must be mentioned that the anti-piracy provisions of UNCLOS also

extends to the exclusive economic zone.145

In these areas mentioned above the definition of piracy

stated in article 101 of the UNCLOS are applicable.

Also the international customary law provides in the conditions to include what piracy is: it must be an

action of violence which is illegal, secondly minimum two ships must be involved, and it must be in a

area beyond the national jurisdiction. An ingredient of the crime of piracy is thus that there are two

vessels required. It must also be mentioned that the act of violence must be committed for private

ends. The private ends clause is maintained in the UNCLOS which means that acts committed for

political ends do not fall under the definition of piracy as stated in article 101 UNCLOS.

Piracy is also defined in Article 15 of the Geneva Convention on the High Seas.146

The common aspect

with the Convention of the UNCLOS is that they are declaratory of customary international law.147

So when there is one of these conditions not fulfilled, there is no act of piracy. For example when

there is a permission to take actions, when the state is at war the illegality becomes legal.

Almost all of the illegal acts in Southeast Asia occur within territorial waters which has some

implications, these acts don‟t fall under the definition of piracy.

And this event will only be classified as an act of piracy when the penal code, of the state under which

jurisdiction this act is falls, criminalizes this it as such.

A general remark to be made is that many states will not take actions in their territorial sea when there

are violent actions. The most of the states that will not take actions haven‟t the means to take action.

But when there is a similar attack in the territorial waters, in a port area or in other areas within the

jurisdiction of a state, the definition of armed robbery must be applied, with different legal aspects as

consequence.148

142

COLOMBOS, 445-446; C. FENWICK, “Piracy in the Caribbean”, A.J.I.L. 1961, 426-428; L.C. GREEN,

“The Santa Maria: Rebels or Pirates?”, B.Y.I.L. 1961, 496-505. 143

See: A. RUBIN, “Is Piracy Illegal?”, A.J.I.L. 1976, 92-95 144

UNCLOS(United Nations Convention on the Law of the Sea) Convention 1982, article 101; Geneva

Convention on the High Seas, 29 April 1958, United Nations Treaty Series, Vol. 450, p. 11, p. 82 145

E. SOMERS, Inleiding tot het internationaal zeerecht, Wolters Kluwer België, 2004, p. 219:

“Notwithstanding the fact that the waters of the Exclusive economic zone do not belong to the high seas, the

freedom of the high seas remains for the EEZ… (art. 58 UNCLOS)”; R. HERBERT-BURNS; S. BATEMAN; P.

LEHR, Lloyd’s MIU handbook of maritime security, Auerbach; London, Taylor & Francis, 2009, p.188 146

Geneva Convention on the High Seas, 29 April 1958, United Nations Treaty Series, Vol. 450, p. 11, p. 82; N.

RONZITTI, Maritime terrorism and international law, Martinus Nijhoff Publishers, 1990, 185 p. 61 147

N. RONZITO, Maritime Terrorism and International Law, Martinus Nijhoff publishers, the Netherlands, p. 1



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And in this context it is very important to know that off the coast of Somalia most of the attacks take

place in the territorial waters, this is the reason why the international community reconsiders the

distinction between the definition of piracy and armed robbery.149

"Armed robbery against ships" is defined in the Code of Practice for the Investigation of the Crimes of

Piracy and Armed Robbery Against Ships (resolution A.1025(26), Annex, paragraph 2.2)150

, as

follows:

"Armed robbery against ships" means any of the following acts:

(a) any illegal act of violence or detention or any act of depredation, or threat thereof, other than

an act of piracy, committed for private ends and directed against a ship or against persons or

property on board such a ship, within a State‟s internal waters, archipelagic waters and

territorial sea;

(b) any act of inciting or of intentionally facilitating an act described above".

As already noticed the vessels have a right of innocent passage in the territorial sea, except for some

reasons as for example treat to public order.

When an acts of piracy occurs in the high seas, or beyond anyone‟s jurisdiction, every state may take

action. The problem when such an act occurs is that there is no uniformity, and in a lot of countries

there were for a long time no rules at all.

For example for Belgium, there is the law of 30 December 2009 that is called into life in order to fight

against acts of piracy.151

Important is the link with the jurisdiction on the high seas. The commanders

of the ships who are authorized to take measures under this law are stated in article 5, and the code of

penal law in Belgium has been adapted in article 137, §2, 6° with the words: “according as the acts of

piracy as meant in article 3 of the law of 30 December 2009 concerning the fight against piracy at

sea”.

Quarterly research

On the website of the IMO there are monthly reports, but also summaries of the reports quarterly and

yearly.

In the reports of the IMO there was a summary of the reported incidents of piracy from 30 September

2007 till the end of December 2007.152

The affected areas were the South China Sea(once again),

Malacca Strait, East Africa, the Indian Ocean, South America, West Africa, Arabian Sea, the

Mediterranean Sea, the Persian Gulf, And the North Atlantic Ocean. The total number of acts of piracy

or acts of armed robbery against ships that were reported to the IMO till then were 4,515. In the fourth

quarter of 2007 there were 69 registrations of the 4,515.153

148

D.S. BIST, Safety and security at sea: a guide to safer voyages, Oxford; Boston: Butterworth-Heinemann,

2000, p. 215 149

Pirates & armed robbers : guidelines on prevention for masters and ship security officers : expanded and

updated to take account of the IMO International Ship and Port Facility Security (ISPS) Code, London, ICS/ISF,

2004 150

Resolution A.1025(26), Annex, paragraph 2.2 151

Law concerning the fight against piracy at sea, 30 December 2009 152

MSC.4/Circ.114, 28 January 2008 153

See Annex VI map of total attacks in the period 30 September 2007-December 2007



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Further I followed the activities and in a report of the IMO of the 9th of April 2009(the fourth quarterly

report of 2009 ) the following findings were done.154

From October till December 2008 there were 91

acts occurred during this period, and in total there were 4,821 registered acts to the IMO which is an

increase of 306 acts(in comparison with 2007) of piracy or armed robbery against ships. The areas in

which there were attacks to ships differs from the areas that were stipulated for the last quarter of

2007. Attacks in the South China Sea, East Africa, the Indian Ocean, South Africa, the Caribbean155

Ocean, the Pacific Ocean, and the Atlantic Ocean were registered.

But there were no incidents reported in the Mediterranean Sea, the Malacca Strait, Arabian Sea,

Persian Gulf nor in the North Atlantic Ocean. 156

This above is to give an idea of the last quarter of the year 2007 and 2008, it is clear that there is an

increase of attacks in the year 2008.

Yearly reports

When reviewing the yearly summaries of the reports, the following must be concluded.

The annual report of 2007 says that there was an increase of acts of piracy or armed robbery against

ships, in comparison with 2006.157

The most affected areas in 2007 were the Far East, and more

specifically the South China Sea and the Malacca Strait, West Africa, South America and the

Caribbean, the Indian Ocean and East Africa. There was an increase in comparison with 2006 in the

South China Sea, in West and East Africa and a decrease of activity in the other regions consisting of

the Malacca Strait, South America, the Caribbean and the Indian Ocean.

Another remark is that most of the attacks worldwide had occurred or had been attempted in the

Coastal States‟ territorial waters while the ships were at anchor or berthed. Concerning the violence

used, it must be mentioned that the crew was attacked by groups from five to ten people carrying

knives or weapons.158

There is in global an increase of the attacks or attempts in the year 2007.

For the year 2008 the following has happened.159

Over the figure for 2007 there has been an increase in 2008 from 8.5% and this means that there were

306 attacks or attempts of attacks. Again the Far East was one of the most affected areas together with

East Africa. In particular the South China Sea, West Africa, South America, the Caribbean and the

Indian Ocean are the most affected areas. There was only an increase in the South China Sea and in

East Africa. Further on there was the same occurrence of attacks in the territorial waters of the Coastal

States as in 2007, and also for the violence to the crew members.160

In the year 2009 the reported incidents to IMO had again increased with 24.6%, in comparison with

the reported incidents or attempts in the year 2008. The same most affected areas of the year 2008

were in 2009 again affected; this means that the Far East and East Africa were affected. In the South

China Sea, the Indian Ocean and in the Malacca Strait the were the same number of reported attacks as

in 2008.161

In East Africa, South America and the Caribbean there was an increase and in West Africa

there was a decrease. The occurrence of attacks worldwide were not mainly in territorial waters of the

Coastal States, as in 2007 and 2008, but they occurred in the international waters.

154

MSC.4/Circ.132, 9 April 2009 155

As reported to MSC 76 (MSC 76/23, paragraph 16.2), the geographically large South American and

Caribbean region has been subdivided into three regions: South America (Atlantic), South America

(Pacific) and the Caribbean. This change is reflected in all relevant reports issued as of 1 January 2003. 156

See Annex VII map of total attacks in the period 30 September 2008-December 2008 157

MSC.4/Circ.115, 10 April 2008 158

See Annex VIII 159

MSC.4/Circ.133, 19 March 2009 160

See Annex IX 161

MSC.4/Circ.152, 29 March 2010



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This is due to the increase of incidents off the coast of Somalia. But in other parts of the world(except

for the Coast of Somalia) the territorial waters of Coastal States were affected.162

For an overview of the evolution concerning the number of attacks since 1984 till 2009 see Annex

XI.163

The conclusion when looking at the statistics is that there is a total increase since the year 2006

due to the fact that the coast of Somalia has been more dangerous for such incidents than before.

Source : http://www.maritimesecurity.com

For the year 2010 there are also monthly reports but evidently there is not yet a general view for the

whole year. In the monthly reports of January and February 2010 there was an increase of (19 + 14=

33) 33 acts or attempts since December 2009 which brings the total number of reported incidents since

1984 on 5,257.

ATTACKS ON SHIPS OFF THE COAST OF SOMALIA

In order to understand why there is such an increase of piracy off the coast of Somalia, the political

situation in Somalia must be mentioned.

In the country there is an extremely volatile political and security environment, this since the collapse

of Siad Barre‟s rule in 1991. There was no central authority operating in an effective way, and since

2004 there is an international recognised Transitional Federal Government(TFG) but it controls only

parts of the country. The difficulties lay in the fact that there are numerous armed opposition groups in

Somalia. In 2006 there was the overthrown of the TFG by the Islamic Courts Union(ICU) which was

supported by radical Islamist militia groups. But the TFG was back after a few months because of the

aid by Ethiopian forces and foreign backing; the consequence of the intervention by the Ethiopian

forces was that the ICU was hit hard. The problem was that its remnants formed afterwards new

opposition movements. Then the Alliance for the Reliberation of Somalia(ARS) joined the other

radical movements and these form the strongest armed opposition to the TFG nowadays. It is due to

the weakness of the rule of law and the central institutions that criminal organisations can operate

throughout the country.

In global the reporting of incidents of piracy only increases, mainly due to the number of attacks off

the Coast of Somalia. The deterioration of the security situation off the coast of Somalia and in the

Gulf of Aden are at the heart of the problem.

162

See Annex X 163

See Annex XI

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Because of the fact that the number of attacks has increased off the coast of Somalia, there must be a

re-evaluation of the nature of piracy and the scale of the threat. It is reasonable that the international

response to piracy will also change by the explosion of the attacks. The attacks of pirates in the region

of Somalia are more audacious than before, and more sophisticated in a way that the materials used

can cause more danger and is more specialised. As an example of the pirates‟ audacity we can think

about the attacks to private sailing ships, and the deliveries of humanitarian assistance in 2008.

Earlier the situation had to be considered as a regional problem, but because of the escalation of the

attacks there is a need for an international response.164

As well the representatives of the shipping community, the governments as the international

institutions must be involved in solving the problem. There is a large coalition of nations and

multinational formation in the region of the gulf of Aden and the Somali Basin, which shows the

response of the international community. The European Union and the NATO(North Atlantic Treaty

Organization) are now playing a mayor role in fighting piracy, and they deploy their operations in

these regions.

What I strongly want to remark is that there is a failing of the international legal framework regarding

the fact that the definition of piracy is superseded. But also the shortcoming of the existing

mechanisms for the arrest and the prosecution of the pirates does not work appropriate.

Concerning the attacks off the coast of Somalia, there is an IMO initiative that has resulted in 2005 in

the adoption of Resolution on Piracy and Armed robbery against ships in waters off the coast of

Somalia.165

In the Resolution all acts of piracy and armed robbery against ships are condemned and the

resolution appeals to all parties which may, within the provisions of international law, give assistance

or take action. This in order to terminate these acts and attempts of these acts. In this resolution a

remark is made that the abandoned and hijacked ships must immediately be released and that no harm

to seafarers must be caused. The IMO Secretary-General Efthimios E. Mitropoulos has also been

requested to continue monitoring the situation and to reporting to the IMO Council when there are

developments. Furthermore co-operation must be maintained with the United Nations Monitoring

Group on Somalia.166

In the future there must also be taken into account the outcome of the seminars

on piracy and armed robbery against ships and maritime security, as being held for example in Sana‟s,

Yemen from 9 to 13 April 2005. These experiences can be useful for the further deployment and

evolution concerning legislation and measures to be taken.

In the Resolution A.979(24) the attention also goes to the sovereignty, sovereign rights, jurisdiction

and territorial integrity of Somalia and to the relevant provisions under international law(UNCLOS).

There was a request to the Transitional Federal Government of Somalia to bring the resolution to the

attention of the Transitional Federal Assembly in order to prevent and suppress these acts. Above that

there is a big concern about the delivery of food aid brought to the attention by the IMO Assembly, in

order to ameliorate the health and the well-being of the Somali people.

Another remark is that off the Horn of Africa the acts of piracy are a still increasing threat, and the

question must be posed on how to find a solution. When taking a look at the inland problems is

becomes quickly clear that there is more than only a „problem at sea‟, the cause of the increase of

attacks can lay in the instable political situation.

164

169 CDS 09 E rev 1, L.JOPLING(General Rapporteur), the Growing threat of piracy to Regional and Global

Security, committee reports, annual session 2009 165

Resolution A.979(24), adopted on 23 November 2005, Piracy and armed robbery against ships in waters off

the coast of Somalia 166

United Nations Security Council, 10 March 2010, Piracy and armed robbery at sea, p. 36;

www.un.org/sc/committees/751/mongroup.shtml

http://www.un.org/sc/committees/751/mongroup.shtml



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There are socio-economic drivers of piracy, but also the fishing communities can experience

grievances against foreign vessels exploring the Somali marine resources. The United Nations

Monitoring Group on Somalia says that there is no doubt they have consequences on the piracy

phenomenon.

My opinion concerning attacks of pirates and armed robbery attacks off the coast of Somalia is that

indeed there needs to be an inland change in order to make Somalia a more stable state. The

consequence will be that the acts of piracy and armed robbery will decrease, when the governments

and shipping companies work together.

ANTI-PIRACY SYSTEMS167

The pirates use more specialised methods and equipment, they don‟t use only knives and little

weapons as before but also modern technology(including GPS and satellite phones) and sophisticated

weapons. An example of these weapons are the Man Portable Air Defence Systems(MANPADs) and

the Rocket Propelled Grenades(RPGs).

Source: MANPADshttp://www.defenseindustrydaily.com/images/ORD_SAM_RBS-70_Australia_Naval_lg.jpg

The radar also plays a role in the implementation of the ISPS Code. The implementation of ISPS code

calls for improved detection of small craft in littoral waters. The use of radar sensors is a primary tool

in detection of small unfriendly vessels. In most cases the high quality radar data may be the only

source of information indicating the position and movements of vessels posing security threats. A

careful choice of radar parameters is very important for the detection and discrimination of small

targets.168

167

http://www.cargosecurityinternational.com/_dataimages/IMBannual.pdf 168

V. Stoiljkovic, Radar detection of small targets, Easat, Port Technology International, Stoke-on-trent, U.K.

http://www.defenseindustrydaily.com/images/ORD_SAM_RBS-70_Australia_Naval_lg.jpg

http://www.cargosecurityinternational.com/_dataimages/IMBannual.pdf



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7. CONCLUSION:

I will strongly recommend that there is a need for some changes concerning piracy. The legal

definition of piracy as stated by the Geneva Convention and the UNCLOS must be reviewed, and

made clearer in order to have a better juridical framework to built on in the future.169

The exchange of

information between nations and vessels must be enhanced, but also there must be a possibility that if

acts of armed robbery occur in the territorial sea, that other nations can cooperate or even take action

against pirates when there is a danger that particular actions will be undertaken against flag states of

other vessels. Additionally there must also be paid attention to the fact that insurances covering the

interests of crew members in the event of such piracy or armed robbery attacks should be made

obligatory by the IMO because of the fact that there is an increase of these acts. The ISPS Code has

made that there is a better threat information system also concerning piracy attacks, and have laid a

greater responsibility upon flag states(for instance the security level system).

With these new rules in the transport sector, specialization thrusts itself in the field of advocacy,

insurance, jurists, practitioners. When issuing these rules it is important that clear and efficient rules

are created, so that there is no discussion for different interpretations and the object is obvious.

The implications of the security measures are not little, the international trade has now less freedom

because of the strict control and also because detailed information is given to enhance the security. It

is not only the government that makes the investments, it is necessary that the private sector also

makes investments. When overseeing the different implications of the ISPS Code, as well the

advantages as the disadvantages it becomes clear that the operation ability of the transport sector has

diminished. With this master dissertation I just wanted to make attention to the fact that the opinions

are very divided, some say that the Code delays enormously the supply chain, because of the many

formalities. When there was in the past a visit in a port in Antwerp for example, the formalities were

not like they are today. Nowadays the name all students must be announced before the visit to the port

terminal, and when they finally come to the port there is first an identification of the visitors by ID.

When a person doesn‟t have his/her ID with him/her then this person can‟t have access to the port

facility. The ISPS code brings with it a lot of formalities.

And others say that the Code has a lot of advantages on the field of security and that the

Code makes the international transport sector more secure and better. It is obvious that here and there,

there are still gaps in the rules, and it is by working all together and regularly come together in

conferences for the evaluation of the positive right that the rules will become more enclosing and up to

date. Further on it is also important to pay attention to the fact that the ISPS Code can only give

security in its own scope. When there are actions taken that form crimes against humanity, we need to

seek the solution in other rules. A warship doesn‟t fall in the application of the Code, there are

different rules for such a ship. We can think on the USS Cole and the Limburg, we can see that when a

ship like the Limburg is being attacked at sea it is difficult to avoid it. Is the ISPS Code enough to

counterattack the terrorist attacks? Must there be more measures, or do we have to search for a

solution elsewhere?

The ISPS Code is at least obligatory, and on several points of public order. This means that

exonerations or limitations of liability can‟t be contracted because of the mandatory aspect. When

there is violation of such a norm, it will be automatically a fault between the parties, or when a third

party can prove the causal link between the damage and the violation then the liability is inevitable and

definite. After the inquiry in the port of Antwerp about the effectiveness of the ISPS Code, the

conclusion has been stated that the security measures have a positive influence on shipping.170

But still a lot of work needs to be done for the harmonized implementation of the ISPS Code in the

world, and there must be a permanent evaluation when the Code is being used. Only at this manner the

ever-changing world of maritime industry will be as high as possible protected from security incidents.

169

Transport Committee, Parliament: House of Commons, Great Britain, Piracy: eight report of session 2005-

06, Parliamentary Copyright House of Commons, 2006, p. 43 170

Visit to the Port of Antwerp, Guido Van Meel, March 2010



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8. ANNEXES:

ANNEX I

Who has signed up to CSI?

Ports of Halifax, Montreal and Vancouver - March 2002;

Port of Singapore - June 2002;

Port of Rotterdam, Netherlands - June 2002;

Port of Antwerp, Belgium - June 2002;

Port of Le Havre and Hamburg, France - June 2002;

Ports of Bremerhaven, Germany - August 2002;

Hong Kong - September 2002 (in principle);

Ports of Yokohama, Tokyo, Kobe and Nagoya - September 2002 (in principle);

All PRC Ports - October 2002 (in principle);

All Italian Ports - November 2002;

All English Ports - December 2002; and

All Spanish Ports - January 2003.



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ANNEX II

Definitions of Part A of the ISPS Code171

:

Convention means the International Convention for the Safety of Life at Sea, 1974 as

amended.

Regulation means a regulation of the Convention.

Chapter means a chapter of the Convention.

Ship Security Plan means a plan developed to ensure the application of measures on

board the ship designed to protect persons on board, cargo, cargo transport units,

ship‟s stores or the ship from the risks of a security incident.

Port Facility Security Plan means a plan developed to ensure the application of

measures designed to protect the port facility and ships, persons, cargo, cargo

transport units and ship‟s stores within the port facility from risks of a security

incident.

Ship Security Officer the person on board the ship, accountable to the master,

designated by the Company as responsible for the security of the ship, including

implementation and maintenance of the ship security plan and for liaison with the

company security officer and port facility security officers.

Company Security Officer means the person designated by the Company for

ensuring that a ship security assessment is carried out; that a ship security plan is

developed, submitted for approval, and thereafter implemented and maintained for

liaison with port facility security officers and the ship security officer.

Port Facility Security Officer means the person designated as responsible for the

development, implementation, revision and maintenance of the port facility security

plan and for liaison with the ship security officers and company security officers.

Security Level 1 means the level for which minimum appropriate protective security

measures shall be maintained at all times.

Security Level 2 means the level for which appropriate additional protective security

measures shall be maintained for a period of time as a result of a heightened risk of a

security incident.

Security Level 3 means the level for which further specific protective measures shall

be maintained for a limited period of time when a security incident is probable or

imminent, although it may not be possible to identify the specific target.

Ship: the term “ship”, when used in this Code, includes mobile offshore drilling units

and high-speed craft as defined in regulation XI-2/1.

Contracting Government: the term “Contracting Government” in connection with

any reference to a port facility, when used in sections 14 to 18, includes a reference to

the “Designated Authority”.

Terms not otherwise defined in this part shall have the same meaning as the meaning

attributed to them in chapters I and XI-2.

171

ISPS Code, Part A.2.



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ANNEX III

*Als een voorbeeld van de effecten door een verschillende schaaleconomie:

EFFECTS OF

ECONOMIES

OF SCALE

ANNUAL COSTS ANNUAL CARGO THROUGHPUT(TONNES)

UNIT

COST(US $)

PORT 1 296,000 1,400,000 $0.21

PORT 2 19,000,000 152,000,000 $0.13



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*Comments made by some respondent ports to the questionnaire of UNCTAD:

- "Provided a means to standardize security at all facilities under [the] port's jurisdiction".

- "ISPS has introduced a structural change in security management in ports. It can be said

without doubt that the average level of security in the port of [ ] has been raised as a direct

result of ISPS. Port facilities have been faced with extra costs, both initial and structural. In

most cases, these costs are not compensated for by recovery measures. Never are they

compensated by funding. Port security should not be a means of competition between ports.It is

of the utmost importance that supra-national bodies like the EU and IMO perform compliance

audits. ISPS is only the first step in securing maritime transport and logistics. […]In all

concepts trade facilitation is seen as the main incentive instead of international legislation".

- "There has been a reluctance to change, but gradually the situation has improved and nearly

all port users are security conscious. The rate of crime and other offences has been reduced

considerably, thus making [ ] a more secure port".

- "The port [ ] was already equipped against theft before the implementation of the ISPS Code

such as cameras, agents controlling access, patrols, fences, etc. Thus, at the moment, the

impact of the ISPS Code is limited".

- Etcetera…



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ANNEX IV:

Form of the International Ship Security Certificate

INTERNATIONAL SHIP SECURITY CERTIFICATE

(official seal) (State)

Certificate Number

Issued under the provisions of the

INTERNATIONAL CODE FOR THE SECURITY OF SHIPS AND OF PORT FACILITIES

(ISPS CODE)

Under the authority of the Government of _________________________________________

(name of State)

by ___________________________________________________________________

(persons or organization authorized)

Name of ship :........................

Distinctive number or letters :...........................

Port of registry :........................

Type of ship :........................

Gross tonnage :........................

IMO Number :..........................

Name and address of the Company :..........................

THIS IS TO CERTIFY:

1 that the security system and any associated security equipment of the ship has been verified in

accordance with section 19.1 of part A of the ISPS Code;

2 that the verification showed that the security system and any associated security

equipment of the ship is in all respects satisfactory and that the ship complies with the applicable

requirements of chapter XI-2 of the Convention and part A of the ISPS Code;

3 that the ship is provided with an approved Ship Security Plan.

Date of initial / renewal verification on which this certificate is based ..............

This Certificate is valid until ............................

subject to verifications in accordance with section 19.1.1 of part A of the ISPS Code.

Issued at ..................

(place of issue of the Certificate)

Date of issue .......... ......................(signature of the duly authorized

official issuing the Certificate)

(Seal or stamp of issuing authority, as appropriate)



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ANNEX V

Voor gebruik van de TOOLKIT

RISICO ANALYSE

(NAAM HAVENFACILITEIT + KAAINUMMERS)

Inleiding

(Ver. 725/2004 deel A/15.2)

Het Federaal Comité voor de Beveiliging van havenfaciliteiten later gewijzigd als Nationale

Autoriteit voor Maritieme Beveiliging heeft het gebruik van de toolkit goedgekeurd.

De 4 Vlaamse havens (Antwerpen, Gent, Zeebrugge en Oostende) hebben de toolkit

aangeschaft. De toolkit is een webbased computerprogramma dat ontwikkeld werd door

KPMG Qubus en AON Risk Consultants bv. Het programma doet een risico analyse

gebaseerd op de ISPS-code en genereert na implementatie een actieplan en vervolgens een

Port Facility Security Plan.

Door de Nationale Autoriteit voor Maritieme Beveiliging werden bijkomend sjablonen (zie

bijlage) goedgekeurd die zijn aangepast naar elk type van terminal teneinde toe te laten dat

de Port Facility Security Officers uniforme procedures uitwerken.

Voor gebruik van de ISPS MASTER

RISICO ANALYSE


Inleiding

(Ver. 725/2004 deel A/15.2)

De Nationale Autoriteit voor Maritieme Beveiliging heeft het gebruik van de ISPS MASTER

goedgekeurd.

De ISPS MASTER is een computerprogramma dat ontwikkeld werd door het LCMB

Zeebrugge. Het programma doet een risico analyse gebaseerd op de ISPS-code en

genereert na implementatie een actieplan en vervolgens een Port Facility Security Plan.




Voor de anderen

RISICO ANALYSE


Inleiding

(Ver. 725/2004 deel A/15.2)

De Risico Analyse, opgesteld ten behoeve van de beveiliging van de havenfaciliteit, werd

uitgevoerd volgens een, in de praktijk, beproefde methodiek.

De resultaten van de uitgevoerde Risico Analyse werden door het Lokaal Comité voor

Maritieme Beveiliging afgetoetst aan de vereisten, gesteld door de verordening EG

725/2004.

Een gemotiveerd advies aangaande de Risico Analyse werd overgemaakt aan de Nationale

Autoriteit voor Maritieme Beveiliging.






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Annex VI



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Annex VII



Master dissertation

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Annex VIII



Master dissertation

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Annex IX



Master dissertation

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Annex X



Master dissertation

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Annex XI



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9. BIBLIOGRAPHY

SOURCES:

1. CONVENTIONS

Convention for the Safety of Life at sea,(SOLAS 1974)

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, updated

and revised in 2005

Convention on the Facilitation of Maritime Traffic, 1965

2. CODES

International Ship & Port Facility Security Code(ISPS) 2002

International Safety Management Code(ISM) 2002

3. BOOKS

ALEXANDER Y.; RICHARDSON T.B., Terror on the high seas: from piracy to strategic challenge,

California, Praeger Security International, 639 p.

BIST D.S., Safety and security at sea: a guide to safer voyages, Oxford; Boston: Butterworth-

Heinemann, 2000, 262 p.

BRAGDON C.R., Transportation Security, Burlington, Butterworth-Heinemann Elsevier, 423 p. p.177

CHALK P., The maritime dimension of international security : terrorism, piracy, and challenges for

the United States, Santa Monica, CA : RAND, 2008, 59 p. (nog nakijken)

COOK A.T., Managing global supply chains : compliance, security, and dealing with terrorism,

Auerbach; London, Taylor & Francis, 2008, 198 p.

DE BACKER E., Scheepvaartbeveiliging na 11 september: de mogelijkheden van de ISPS-code in

Europa, plaats, uitgever, 2004, thesis …p.

FRITELLI J.F., Port and maritime security: background and issues, New York : Novinka Books,

2003, 96 p.

GUAN KWA C.; SKOGAN J.K., Maritime Security in Southeast Asia, Routledge, 2007, 224 p.

HERBERT-BURNS R.; BATEMAN S.; LEHR P., Lloyd’s MIU handbook of maritime security,

Auerbach; London, Taylor & Francis, 2009, 368 p.

ICS, Model ship security plan : to assist shipping companies prepare ship security plans that comply

with the IMO International Ship and Port Facility Security (ISPS) Code, London, International

Chamber of Shipping, 2003, 80 p.

ILO, Security in ports: ILO and IMO code of practice, Geneva: International Labour Office

; London: International Maritime Organization, 2004, 44 p.

IMO, Ship Security Officer, London: International Maritime Organization (IMO), 2003, 69 p.



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IMO, International Convention for the Safety of Life at Sea (1974), SOLAS : consolidated text of the

International Convention for the Safety of Life at Sea, 1974, and its Protocol of 1978--articles, annex,

and certificates, London: International Maritime Organization, 1992, 543 p.

ISF International Shipping Federation.; ICS International Chamber of Shipping , Pirates and armed

robbers: Guidelines on prevention for masters and ship security officers : Expanded and updated to

take account of the IMO International Ship and Port Facility Security (ISPS) Code, London : Marisec

Publications, 2004, 4th Ed.

KLEIN N.; MOSSOP J.; ROTHWELL D., Maritime security : international law and policy

perspectives from Australia and New Zealand, New York: Routledge, 2009

LEGGATE H.; MCCONVILLE J.; MORVILLO A., International maritime transport : perspectives,

London; New York: Routledge, 2005, 304 p.

LEHR P., Violence at sea: piracy in the age of global terrorism, New York, Routledge, 2007, 274 p.

kijken p 166 en verder

LLOYD‟S MIU Lloyd's Marine Intelligence Unit., Lloyd's List Ports of the World 2008 : 3 Vols.,

London: Lloyd's MIU, 2007

MCNICHOLAS M., Maritime security : an introduction, Amsterdam ; London : Elsevier/Butterworth

Heinemann, 2008, 447 p.

MOTH P. ,International ship and port facility security (ISPS) code : a practical guide, Portsmouth,

Foreshore Media, 2003, 142 p.

PARRIT B., Violence at sea : a review of terrorism, acts of war, and piracy, and countermeasures to

prevent terrorism, Paris: ICC Pub., 1986, 261 p.

Pirates & armed robbers : guidelines on prevention for masters and ship security officers : expanded

and updated to take account of the IMO International Ship and Port Facility Security (ISPS) Code,

London, ICS/ISF, 2004, 28 p.

RICHARDSON H.; GORDON P.; MOORE II J., The economic impacts of terrorist attacks,

Cheltenham: Edward Elgar, 2005, 315 p.

RONZITTI N., Maritime terrorism and international law, Martinus Nijhoff Publishers, 1990, 185 p.

SEDLAČEK D. ,Maritimer Terror und Piraterie auf hoher See, Dortmund, Wirtschaftsverlag NW,

2006 ,282 p.

SHAHBAZIAN E.; ROGOVA G.; DE WEERT M.J., Harbour Protection through Data Fusion

Technologies,

SOMERS E., Inleiding tot het internationaal zeerecht, Wolters Kluwer, België, 2004, p. 219

STROOBANDT F., De impact van de ISM code op de veiligheid op zee : de rol van de menselijke

factor, Diss. Master in de maritieme wetenschappen, 2007, 194 p.

TSINKER G., Port engineering : planning, construction, maintenance, and security, Hoboken, John

Wiley, 2004, 881 p.



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VANHOOYDONK E., European Seaports law: the regime of ports and port services and the ports

package, Antwerpen, Maklu, 542 p.

VESKY J.P., Port and Maritime Security, Nova Publishers, 2008, 70 p.

WENDEL P., State responsibility for interferences with the freedom of navigation in the

public international law, Berlin Heidelberg, Springer Verlag, 2007, 288 p.

WILLIS H.H.; ORTIZ D.S., Evaluating the security of the global containerized supply chain, Santa

Monica, Calif.: RAND Corp., 2004, 31 p.

WITLOX F., Beveiliging in het vrachtvervoer: mythe, macht of noodzaak?, Garant, 2005, 200 p.

X., Guidance for ship operators on the International Maritime Organization (IMO) international ship

and port facility security (ISPS) code, London, International Chamber of Shipping, 2003, 46 p.

X., Requirements for maritime security training : port facility security officers, ship security officers

and company security officers, London, Dept. for Transport, 2003, 2 p.

YIM Y.W., Container Shipping Services and Their Impact on Container Port Competitiveness,

Institute of Transport and Maritime Management Antwerp, University Press Antwerp, 2009, 536 p.

4. RESOLUTIONS

ABOUT PIRACY:

A.461(XI) Barratry and unlawful seizure of ships and their cargoes (1979) (superseded)

A.504(XII) Barratry and unlawful seizure of ships and their cargoes and other forms of maritime fraud

(1981) (superseded)

A.545 (XIII) Measures to prevent and suppress piracy and armed robbery against ships (1983)

A. 683 (17) Prevention and suppression of acts of piracy and armed robbery against ships (1991)

A.738 (18) Measures to prevent and suppress piracy and armed robbery against ships (1993)

A 922(22) Code of practice for the investigation of the crimes of piracy and armed robbery

against ships (2001)

A.1002(25) Piracy and armed robbery against ships in waters off the coast of Somalia. Adopted on 29

November 2007



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5. INTERNET

http://www.imo.org

http://www.havenvanantwerpen.be/portal/page/portal/POA_NL/Havenhandboek/Veiligheid/ISPS

http://www.g4s.be/nl/news/persberichten/mrt-2004---group-4-training-organiseert-opleiding-voor-

port-facility-security-officer-pfso-in-het-kader-van-isps-normen-.html

http://www.segumar.com/ISPS%20Code.htm

http://www.imo.org/Newsroom/mainframe.asp?topic_id=892%20

http://www.tc.gc.ca/MarineSecurity/Regulatory/isps/menu.htm

http://nl.wikipedia.org/wiki/ISPS-code

http://www.tis-gdv.de/tis/tagungen/workshop/inhalt11.htm

http://www.havendenhelder.nl/get_page.asp?v1=isps_code.pdf&v2=3

http://www.isps-code-security-seals.com/

http://www.lr.org/Industries/Marine/Standards/Codes/ISPS.htm

http://www2.imo.org/ISPSCode/ISPSInformation.aspx

http://gisis.imo.org/Public/

http://www.hrs.gr/isps.htm

http://www.int-marconsult.com/ISPS_Code.pdf

http://int-marconsult.com/Inmarsat-IspsCode.htm

http://www.infrastructure.gov.au/transport/security/maritime/isps/index.aspx

http://www.bosch.nl/content/language1/html/1812.htm

http://extranet.be.sgs.com/sgs/trainings.nsf/859c2d0b755068f14125689d00387896/f8c0ecf7053b760c

c12573a60046d8d5/$FILE/Maritieme%20Veiligheid%20_ISPS_.pdf

http://www.espo.be/downloads/archive/ae2aa318-a682-48ca-85ad-c6e9b1ab5425.pdf

http://www.unitel.com/solas.htm

http://www.nyconsul.com/the_isps_code.htm

http://www.coess.org/pdf/COESS-ISPSmanual.pdf

https://homeport.uscg.mil/mycg/portal/ep/channelView.do?channelId=-

24885&channelPage=%252Fep%252Fchannel%252Fdefault.jsp&pageTypeId=13489

http://www.vpa.org.vn/english/isps/index.jsp

http://www.bl.uk

http://www.maritime-database.com/

http://www.nato.int

http://www.nationalacademies.org

http://www.eubusiness.com/

http://www.joc.com

http://www.icc-

ccs.org/index.php?option=com_fabrik&view=visualization&controller=visualization.googlemap&Ite

mid=219

http://www.secure-marine.com/

http://www.shiploc.com/

http://www.imo.org/

http://www.havenvanantwerpen.be/portal/page/portal/POA_NL/Havenhandboek/Veiligheid/ISPS

http://www.g4s.be/nl/news/persberichten/mrt-2004---group-4-training-organiseert-opleiding-voor-port-facility-security-officer-pfso-in-het-kader-van-isps-normen-.html

http://www.g4s.be/nl/news/persberichten/mrt-2004---group-4-training-organiseert-opleiding-voor-port-facility-security-officer-pfso-in-het-kader-van-isps-normen-.html

http://www.segumar.com/ISPS%20Code.htm

http://www.imo.org/Newsroom/mainframe.asp?topic_id=892%20

http://www.tc.gc.ca/MarineSecurity/Regulatory/isps/menu.htm

http://nl.wikipedia.org/wiki/ISPS-code

http://www.tis-gdv.de/tis/tagungen/workshop/inhalt11.htm

http://www.havendenhelder.nl/get_page.asp?v1=isps_code.pdf&v2=3

http://www.isps-code-security-seals.com/

http://www.lr.org/Industries/Marine/Standards/Codes/ISPS.htm

http://www2.imo.org/ISPSCode/ISPSInformation.aspx

http://gisis.imo.org/Public/

http://www.hrs.gr/isps.htm

http://www.int-marconsult.com/ISPS_Code.pdf

http://int-marconsult.com/Inmarsat-IspsCode.htm

http://www.infrastructure.gov.au/transport/security/maritime/isps/index.aspx

http://www.bosch.nl/content/language1/html/1812.htm

http://extranet.be.sgs.com/sgs/trainings.nsf/859c2d0b755068f14125689d00387896/f8c0ecf7053b760cc12573a60046d8d5/$FILE/Maritieme%20Veiligheid%20_ISPS_.pdf

http://extranet.be.sgs.com/sgs/trainings.nsf/859c2d0b755068f14125689d00387896/f8c0ecf7053b760cc12573a60046d8d5/$FILE/Maritieme%20Veiligheid%20_ISPS_.pdf

http://www.espo.be/downloads/archive/ae2aa318-a682-48ca-85ad-c6e9b1ab5425.pdf

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http://www.secure-marine.com/

http://www.shiploc.com/



Master dissertation

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6. PERIODICALS

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Journal, winter 2007

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X., Clock is ticking for ISPS compliance, Tradewinds, March 2003, p 38

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intelligence report, 30 May 2002, pp 1-3

X., Scary security - Owners face frightening figures, Fairplay, March 2003, pp 16-17

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p. 3

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Documents

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