5th International Forum on Maritime and Port Security

ISPS Forum 2011

5th International Forum on Maritime and Port Security
ISPS Forum 2011
9.15a.m., 31 October 2011 Lima, Peru
Opening remarks by E.E. Mitropoulos, Secretary-General, IMO
Minister of Defence, Excellencies, Commander in Chief of the Peruvian Navy, General Director of the Coastguard and Captaincies of Peru, Admirals, Representatives of authorities of the host country and other countries, Vice-President of WMU, Distinguished participants, Media representatives, Ladies and gentlemen,
I am delighted to be visiting Peru since yesterday and I thank the Government and, in particular, the Ministry of Defence, the Peruvian Navy and Coast Guard for the kind invitation to me to come over and assist in this forum and for their generous hospitality.  I have been asked to combine into one the two speeches I had prepared in London and so I will come straight to the point.
In the past decade, our understanding of the scale on which human life can be affected by transport-related incidents has been dramatically increased. If the horrendous terrorist attacks in the United States ten years ago opened the eyes of the world to how vulnerable transport systems can be, the piracy epidemic off the coast of Somalia and in the western Indian Ocean has made it startlingly clear that we now have to deal, on a regular basis, with occurrences that are not accidents, but deliberate acts of a kind few of us could previously have imagined.
As is clearly reflected in the theme of this forum, in the maritime world the ship-port interface is one of the crucial pivot-points on which effective security depends. The challenge facing both the shipping and port communities is to ensure that the interests of security, throughout the supply chain, are served without unduly impeding the flow of cargo and commerce.
From IMO’s perspective, maritime security has, for a long time, been an important element in the Organization’s wide and multi-faceted responsibilities. But these days, by necessity rather than choice, it occupies, together with other forms of unlawful acts committed at sea, a pre-eminent position on our agenda.
When IMO was established in 1948, it was unthinkable, by any stretch of the imagination on the part of the founding fathers, that, 60 odd years later, the Organization would direct its attention and spend its precious time and limited resources in dealing with unlawful acts at sea.  And, yet, this has become the reality, starting in the late 1970s, when the Organization was forced, owing to political problems in eastern Mediterranean, to consider cases of barratry, unlawful seizure of ships and their cargoes and other forms of maritime fraud; moving on to consider piracy and armed robbery against ships in 1982; terrorism threatening shipping in 1985/88; and illicit drug trafficking, stowaway cases and illegal migrants moving by sea over the last two decades. 
Of all these, terrorism at sea would, by its own nature and consequences, emerge as the most frightening, rendering maritime security a topic that is, understandably, infused with a great deal of sensitivity – both operational and political. But the overriding need to maintain the uninterrupted flow of international seaborne trade cannot be ignored, which is why I take every opportunity to raise awareness of the importance and significance of shipping to world trade, and the economic chaos that would be caused if the global supply chain were to be interrupted because of attacks against ships, ports, offshore terminals or other marine facilities. 
While it is clear to us now that maritime and port security are international issues with global dimensions, that was not always the case. Indeed, the 9/11 attacks of 2001 prompted a root and branch review of the international regulatory framework surrounding them. The result has been a series of far-reaching measures adopted by IMO.
For example, a new chapter in the SOLAS Convention on Special measures to enhance maritime security introducing the International Ship and Port Facility Security Code was adopted in December 2002, only 15 months after the 9/11 attacks and entered into force in 2004, only 18 months after its adoption; the ILO/IMO Code of Practice on Security in Ports, which complements the provisions of the ISPS Code with respect to security of the wider port area, was approved in 2004; and, in 2005, new protocols were adopted that significantly expanded the range of crimes covered by the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, and its related instrument covering fixed platforms located on the continental shelf, which both entered into force last year, allowing, for the first time, ships to be boarded, with the consent of the flag State, on the high seas by crews of third party vessels.
When addressing the first-ever Conference of African Ministers of Transport responsible for maritime affairs, held in Abuja, Nigeria, in February 2007, I said: “I am concerned about the reported limited response of certain Governments to their obligations under the SOLAS Convention and the ISPS Code.  I consider the muted argument “Terrorists will not attack our ports – why should they?” as short-sighted, one that shows complacency that we all will live to regret.  Terrorists may not attack your ports, but they may attack ships (passenger or cruise ships or ships carrying dangerous goods) while in your ports or offshore terminals because they want to harm the State whose flag such ships fly.  Or, they may, through lax measures in your port facilities, infiltrate foreign flag ships to conceal on board either weapons of mass destruction, or substances for the manufacturing of nuclear, biological or chemical weapons, with which to carry out attacks on third countries – not to mention the damage to your tourism if a terrorist attack takes place in one of your national ports; or to your country’s foreign trade if facilities in your national ports subject to the ISPS Code have been assessed as, or are suspected of being, non-compliant; or the damage to your relations with the country that suffers a terrorist incident the origins of which may be traced to one of your national ports.” Unquote.  I would repeat the same words today to anyone, who is prepared to listen.
In essence, ensuring the security of ships and port facilities is a risk management activity.
The ISPS Code enshrines the important principle that, to determine what security measures are appropriate, an assessment of the risks must be made in each particular case. It provides a universally recognized method for doing this, enabling Governments to offset changes in threat with changes in vulnerability for ships and port facilities through determination of appropriate security levels and corresponding security measures.
The Code represents a cornerstone of the international framework through which Governments, ships and port facilities can co-operate to detect and deter acts that threaten security in the maritime transport sector.
Turning now to piracy, which will be a strong theme running through this forum, this has clearly become so complex and entrenched that it is beyond the capability of any one entity alone to deal with it effectively. The United Nations, Governments acting collectively or individually, political and defence alliances, military forces, shipping companies, ship operators, ships’ crews, among others, all have a crucial part to play if shipping is to be rid of this crime and the integrity of strategically important shipping lanes maintained.
What is needed is a collective effort – which explains why IMO chose “Piracy: Orchestrating the response” as its theme for World Maritime Day 2011.
A recent report has put the annual cost of piracy to the world economy between 7 and 12 billion US dollars.
Shocking though this is, it is the human cost that is far worse and should concern us above all else. Many seafarers today go about their daily business in ships sheathed in razor wire, in a state of constant wariness as they run the gauntlet of pirate gangs. Most, thankfully, sail undisturbed by pirates into more hospitable waters, but others are far less fortunate. A single seafarer captured and held against his or her will is a seafarer too many. This is a tragic situation for them and their families, and one from which we can take no comfort whatsoever.
It is crucial that the political will among those Governments that have the potential to make a difference is translated into action in a manner that matches their political ambition and which the severity of the issue demands.
Resources (in the form of naval vessels and military aircraft) being made available; legislation to ensure that pirates do not escape prosecution being expeditiously adopted and rigorously enacted; and strongly recommending that ships flying their flag comply, while sailing through piracy-infested areas, with the best management practices and, when transiting the Gulf of Aden, keep within the internationally recommended corridor – all these should be high on the agenda of, and acted upon by, Governments and all other entities affected by piracy.
Of course, much has already been done to counter the threat, as you will hear during the course of this forum. But much more is still required. The capture, prosecution and punishment of all those involved in piracy; the tracing of ransom money; and the confiscation of proceeds of crime derived from hijacked ships all need to be further addressed if the ultimate goal of consigning piracy to the realms of history is to be achieved.
But let me be a little bit more specific about piracy, starting with its legal definition.
According to article 101 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), “piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(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).”
Thus, according to international law, any illegal acts of violence and detention, which are committed within a State’s territorial waters are not defined as piracy. Technically, if an attack occurs within the territorial jurisdiction of a State, the event is only classified as piracy if that nation’s penal code criminalizes it as such. IMO defines any unlawful act of violence or detention or any act of depredation directed against a ship or against persons or property on board such a ship at anchor, off ports or, when underway, through a coastal State’s territorial waters as armed robbery against ships. Hence our very widespread use of the phrase “piracy AND armed robbery against ships.” So, while the two may be very similar, in strict legal terms there is a distinction.
The UNCLOS provisions on piracy reflect customary international law and set out the framework for the general crime by defining it in some detail, establishing the right of any State to seize pirates and pirate ships and determine the penalties to be imposed on individual pirates and the action to be taken with regard to the seized property; and providing the universal jurisdiction for States to prosecute cases of piracy.
But, for UNCLOS to be effective, States must enact appropriate domestic legislation to implement its provisions concerning piracy. Last week, the UN Security Council adopted resolution 2015, which, among other things, strongly urges States that have not already done so to criminalize piracy under their domestic law and calls for further consideration of a proposal calling for the establishment of specialized anti-piracy courts in Somalia and other States in the region.
In unanimously adopting the resolution, the Security Council requested the Secretary-General, in conjunction with the United Nations Office on Drugs and Crime (UNODC) and the United Nations Development Programme (UNDP), to further consult with Somalia and regional States on the kind of international assistance required to help make such courts operational, as well as the procedural arrangements required for the transfer of apprehended pirates.
Recognizing that any increase in prosecution capacity must necessarily be accompanied by a related increase in prison capacity, the Security Council called upon both Somali authorities, and international partners, to support the construction and responsible operation of prisons in Somalia, in accordance with international law.
IMO has already been playing a part in helping these aims be achieved. Signatory States to the IMO-developed Djibouti Code of Conduct concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden (and there are already 18 such States) are committed to review their national legislation with a view to ensuring that national laws criminalize piracy and armed robbery against ships, and adequate guidelines for the exercise of jurisdiction, conduct of investigations, and prosecutions of alleged offenders, are in place.
In adding its contribution to the fight against piracy, the Legal Committee of IMO has agreed that:
• States should have in place a comprehensive legal regime to prosecute pirates, consistent with international law;
• national-based solutions in the region, coupled with capacity building in the countries  involved, was most desirable; and
• the enhancement of UN assistance to build the capacity of regional States to prosecute and imprison pirates was the preferred solution.
I mentioned before that the escalation of the piracy problem, since 2005, has prompted IMO to choose, as the World Maritime Day theme for 2011, ‘Piracy: Orchestrating the response’.  Several of the measures being pursued by IMO to tackle piracy – in particular, off the coast of Somalia – are not, strictly speaking, regulatory in nature but have more to do with establishing capacity within the afflicted region to deal with the situation, and promoting good practice among shipowners, ship operators and Governments.
In devising an action plan to deal with the thorny issue that piracy off Somalia has become, we drew heavily on the Organization’s considerable experience and success in tackling piracy in other parts of the world – most notably in the Straits of Malacca and Singapore, and in the South China Sea.
The action plan has focused on the achievement of six main objectives:
• one, to increase pressure at the political level to secure the release of all hostages being held by pirates;
• two, to review and improve the relevant IMO guidelines to Administrations and seafarers, and promote compliance with industry best management practices and the recommended preventive, evasive and defensive measures ships should follow;
• three, to promote greater levels of support from, and coordination with, navies;
• four, to promote anti-piracy coordination and co-operation procedures between and among States, regions, organizations and industry;
• five, to assist States to build capacity in piracy-infested regions of the world (and elsewhere) to deter, interdict and bring to justice those who commit acts of piracy and armed robbery against ships; and
• six, to provide care for those attacked or hijacked by pirates, and for their families.
Everyone who studies the Somali piracy case comes easily to the conclusion that its overall solution does not lie at sea but ashore, once conditions for a stable Somalia have been fulfilled and a functioning Government is in place with adequate resources to patrol the coastal areas from which the pirates operate and into which they bring the ships they hijack pending negotiations on the ransom money they will accept in order to release them.
That is work the United Nations has undertaken during recent years and which is being progressed at an ever-increasing rate.
In orchestrating a convincing response to the Somali issue, we are seeking solutions in three distinct time horizons.  In the immediate term, our aim is to contain piracy, thwart pirate attacks and punish those responsible for such attacks; in the mid-term, our strategy is to undermine organized crime gangs that plan and mastermind pirate operations and make it harder for them to engage in, and conduct, such operations; while the long term solution should be for the international community to help the people of Somalia to rebuild their country, including establishing law and order conditions such that crime will no longer be a preferred option for several of them.
While this strategic approach to the Somali issue may look sensible, more pressing, for the time being, are the issues surrounding the ability of ships to sail through areas where there is a real, and ever-present threat of a pirate attack.
Here IMO is working in 3 distinct areas:
• How ships should protect themselves (self-defence);
• How ships might, if required, use external defence forces to protect them; and
• How the region might be better prepared to protect its own trade, including through assisting navies from countries outside it to protect international shipping routes adjacent to its coasts.
The enhancement of ships’ protection by the contracting of private armed security personnel is an issue more complex than that of self-defence, which, after all, is effectively regulated by the SOLAS Convention and the ISPS Code. But let me make it clear from the start: IMO does not endorse the arming of merchant ships in any form. It could not, however, ignore the growing desire, in some parts of the industry, to create additional layers of security through contracting private armed security personnel.
To address the issue, the MSC, at its spring session of this year, developed a set of guidelines designed to enable flag States, and ship operators, to make a balanced and careful choice about whether private armed security was the right way forward and, if so, what might reasonably be expected from security companies established to supply “armed guards”. These initial guidelines were broad-brush and have, since, been further refined by an intersessional meeting of the MSC, in September, which produced a series of recommendations to be taken into account by Governments when deciding on ad hoc measures and when developing policies relating to the employment of private armed security personnel on board ships in the high-risk areas.
While measures to protect ships are clearly important, the key of any long-term solution to the problem must lie in enhancing the ability of the States in the region around Somalia to deal with the menace of piracy themselves. That is why IMO is keenly engaged in assisting them to build capacity, the cornerstone of our efforts in this respect being the Djibouti Code of Conduct, the signatory States of which have pledged to co-operate in a range of ways, such as the investigation, arrest and prosecution of pirates; the interdiction and seizure of suspect ships; the rescue of ships, persons and property subject to piracy and armed robbery, and the facilitation of proper care, treatment and repatriation of piracy victims. They have also agreed to participate in shared operations and to exchange information, both among themselves and with navies from countries outside the region.
Much of the work on the establishment of legal frameworks and securing prosecutions in the north-eastern African region, as called for in Article 11 of the Djibouti Code of Conduct, is being carried out by the United Nations Office on Drugs and Crime (UNODC), with support from both IMO and the Contact Group on Piracy off the Coast of Somalia.  
Ladies and gentlemen,
Some success in thwarting pirate attacks can already be claimed, as can be seen from the falling percentage of attacks that prove successful and the decrease in the numbers of ships and seafarers in the hands of pirates.
Nevertheless, as the statistics so bleakly indicate, piracy and armed robbery against ships remain real and ever-present dangers to those who use the seas for peaceful purposes. The fact that a large number of persons suspected of piracy have had to be released without facing justice serves only to undermine the international community’s anti-piracy efforts. But it also serves to strengthen our determination to help create the necessary conditions, which will ensure that pirates can be, and are, brought to account.
So long as pirates continue harassing shipping, hijacking ships and seafarers, we are neither proud of, nor content with, the results achieved so far. While Somali piracy has much of our attention at present, we are also very aware of the increase in piracy and armed robbery in west Africa. We need to learn our lessons, and develop our successes in a joint manner to combat all these threats to the security of maritime trade and the livelihoods and, more importantly in the scope of activities and objectives of IMO, the well-being of seafarers.
In the meantime, our thoughts and prayers are with those seafarers, who, at present, are in the hands of pirates.  May they all be released unharmed and returned to their families soon.
In highlighting and promoting the need for the development of a universal security consciousness (both in terms of protecting shipping against terrorist attacks and in terms of keeping pirates at bay), this forum is recognition of the fact that maritime security is a global concern and, as such, it requires global attention and global solutions. I commend the agencies of the Government of Peru, who have joined together to organize such an important event to which I wish every success.  Let us all consciously undertake to strengthen our collective resolve to ensure that the shipping and port industries remain as secure as they ought to be, and that the appalling and costly crime-wave of piracy is consigned to history – where it belongs.
Ladies and gentlemen, thank you.