From Interstate - Journal of International Affairs VOL. 2013/2014 NO. 1
International Cooperation in Combating Threats to Maritime Security: Global Maritime Security and International Law
IN THIS ARTICLE
It may be said that a cooperative international law based on a community of interests has developed in the field of crime prevention and punishment.
IT is important to note th at the duty to cooperate, despite at times having been called a fundamental principle of international law2 has not been adequately defined.3 An expansive interpretation would be 'the duty to reach an agreement', which would thus be breached if states fail to agree on a matter.4 A more restrictive interpretation would limit this du ty to the obligation to negotiate an agreement in good faith.5
Regardless of this debate, there is certainly evidence of some kind of duty to cooper ate under international law. Two of the purposes of the United Nations (UN ) mentioned in The Charter are to maintain international peace and security through collective action, and to achieve international cooperation in solving problems of an economic, social, cultural, or humanitarian character.6 A 1970 UN General Assembly resolution recommends the codification of the duty to cooperate in accordance with the Charter and goes on to specify that this includes cooperation in the maintenance of international peace and security.7 Since then, several Security Council Resolutions have imposed duties to cooperate in the fight against global terrorism and Weapons of Mass Destruction (WMD) proliferation,8 supporting the hypothesis of a more general duty to cooperate in the field of global security.
No one can deny that in the light of the jurisdictional difficulties caused by the different maritime zones and the alrnost intrinsically transnational character of maritime threats, there is a pressing need for an extensive form of cooperation in this field.9 However, has this need led to a duty to cooperate that goes beyond the doctrine of good faith? This piece will look for evidence of such a duty in the different international law instruments dealing with the most urgent threats to maritime security today.
2. Threats to Maritime Security
2.1 Port Security
Ports are essential to the world economy as well as the national economy of states due to increased global trade. Simultaneously , however , seaports are regarded as vulnerable to threats due to the huge amount of incoming traffic that they need to control International cooperation and coordination is crucial to ensure security in port areas. Globalisation has made information exchange easier and this facilitates increased cooperation between states. The information-based society also has its negative sides. Terrorists and smugglers can receive information more freely, which entails a system to protect delicate information.
After the September 11th attacks, the United States initiated a revision of the international instruments available to fight threats against port security.10 In January 2002 the International Maritime Organization (IMO) assembly adopted a resolution11 requesting a review of the different instruments with the aim of increasing maritime security. Amendments were made to the Safety Of Life at Sea (SOLAS) convention, including the introduction of a new chapter XI-2, with the purpose of detecting and taking preventive measures against threats to maritime security. Ports and ships used for international trade were specifically affected.12 Furthermore, the International Ship and Port Facility Security (ISPS) Code13 was implemented through the amendments of the SOLAS convention to increase the international cooperation within an international framework realising, among other things, an increased exchange of intelligence information and standardising methods and technical requirements for ships.14 The international cooperation has afforded better knowledge about threatening situations at sea before ships reach ports, making it possible to prevent threats to a wider extent Not only has the possibility to prevent crimes increased, the focus on security in ports has also intensified. For example, every contracting party to the SOLAS convention now has an obligation to conduct measures to ensure security in the ports, including ensuring security around critical infrastructure and structures or areas which would cause loss of life or great economic losses if damaged.15
However, the cooperation framework under the ISPS code can be criticised for not taking developing countries ' needs into account The maritime threats against developing countries have a different character. The in-port security is in many ways more lax, which makes these ports more exposed to thefts and similar kinds of threats against maritime security. In the long run, this makes ports in developing countries less desirable for international trade, which in turn could limit development in these countries.
There have been other initiatives for increasing port security. The Container Security Initiative (CSI) for instance, is a US-led initiative focused on freight containers. The system prevents maritime threats through screening of containers in the port of departure. Information about the goods carried by the ship can consequently be acknowledged before reaching the port of destination, often an American port, and be granted entrance into the state of destination more quickly. The system is reciprocal but is mainly used to ensure security in American ports.16
It can be said that the ISPS code validates Reydam's statement of a cooperative international law developing as far as port security is concerned. As shown, there has been development in this area over the recent years. Preventing threats to port security is important and international cooperation has proven to be vital. The current system is not perfect, there are many deficiencies, which, among other things, the critique against the ISPS code obviously shows. Furthermore, the CSI programme is far from perfect in its ambition to prevent threats to port security. It would be desirable if more states used the system, making it a sincerely reciprocal system. Although the current framework for preventing threats to port security is far from perfect, it creates possibilities for increased international cooperation .
2.2 Drug Smuggling
Drug smuggling via the sea is one of the principal ways in which criminal groups traffic drugs. Since this criminal activity has emerged, its complexity and capacity has continued to expand. resulting with difficulties in controlling the smuggling of illegal substances. The smuggling operation is efficient and very well organised. It is estimated that large numbers of containers carry drugs every year and are transported on container vessels.17 This shows there is a problem with identifying containers carrying drugs, and consequently preventing the passage of illicit substances. The unauthorized trade of drugs has led to the consent that international cooperation is needed to combat this crime. The UN Convention18 Against the Illicit Traffic of Narcotic Drugs and Psychotropic Substances is a major source of law preventing drug smuggling. The purpose of the convention appears in article 2, promoting cooperation among parties so that they may address the var ious aspects of illicit traffic more effectively. The scope of this cooperation is defined in article 17, emphasising cooperation to the fullest extent possible in order to suppress illicit traffic by sea. The article was implemented in an agreement by the Council of European Union19 in 2005. In addition to the Convention there are various resolutions and circulars by the IMO focusing on the threat of drug smuggling. Furthermore there are regional agreements with the aim of preventing the smuggling of drugs, for example the Caribbean Regional Maritime Agreement based on the Vienna Convention. The agreements cover ship-riding, ship-boarding, pursuit and the cooperation on maritime enforcement. This development has unfortunately not progressed in the same way in South East Asia.20 Yet, it can be concluded that cooperation in the field of drug smuggling and international law based on the community of interests to combat the threat has indeed developed.
2.3 Migrant Smuggling
In The Tampa incident, a ship flying under the Norwegian flag rescued 438 irregular immigrants in the Indian Ocean in 2001.21 The ship was refused entry into Australian territorial waters, despite the migrants ' needs. This triggered a diplomatic dispute between Australia and Norway. The captain of the Norwegian ship proceeded to enter Australian waters. Eventually, the asylum seekers were taken to various islands instead of Australia, where their refugee status was assessed. The difficult situation that arose regarding the disembarkation of the rescued persons clearly demonstrates the difference in character the transnational crime of migrant smuggling has compared to other crimes. When states are using interception as a means of averting threats, human rights cannot be ignored International law requires that this specific threat is dealt with in accordance with the human rights regime regardless of the status of these persons.
The United Nations Convention on the Law of the Sea22 does not address the threat of migrant smuggling in any specific way, besides being a reason for regarding the passing of a vessel as non-innocent, thus giving the coastal state the right to refuse the entry of the vessel into territorial waters.23 It is also possible for a state to regulate the innocent passage of a vessel to prevent the infringement of the state's immigration laws.24
The smuggling protocol, supplementing the UN Convention Against Transnational Crime, is specifically aimed at combating migrant smuggling with regards to the protection of the people subject to the crime, rather than focusing on state security.25 The crime is defined in article 3 a) as;
'the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident'
The smuggled persons are not themselves criminalised unless they took part in the smuggling.26 All state parties are obliged to criminalise the offence under national law.27 The protocol recognizes the transnational nature of the crime as well as the link to organized criminal groups.28 Trafficking is a crime that in some cases overlaps with migrant smuggling as it includes the transport of persons which can include illegal entry.29
The duty to rescue a vessel in distress is an individual obligation of the ship-master imposed by international law.30The International Convention on Maritime Search and Rescue31 provides for a framework in which rescue operations must be coordinated when a vessel is in distress.32 V\Then the vessel in question carries irregular migrants with the aim of crossing borders, the rescue operation is complicated by states ' unwillingness to allow disembarkation of the rescued persons in their territory. The duty of coordination, noted above, also includes the requirement of dis-embarkation to a place of safety for those rescued.33 There is no obligation of the SAR state responsible for the coordination of the rescue operation to disembark the persons rescued. However, the SAR state has a primary responsibility to make sure that a place of safety is provided, and when states fail to cooperate, the SAR state often ends up disembarking.
Interdiction at sea of vessels carrying irregular immigrants is within the rights of the sovereign state according to the United Nations- Conventions on the Law of the Sea (UNCLOS). This has, however, been criticized because there is a potential violation of human rights when this is done without determining the status of the persons onboard the vessels. According to the principle of non-refoulement stated in article 33(1) the Refugee Convention, no state is-allowed to return a person with refugee status to a territory where they would face persecution.34
2.3.1 International Cooperation to Combat Migrant Smuggling
The state s- targeted by migrant smugglers as the destination of embarkation want to avert this threat;35 therefore interdiction often occurs in the high seas. The arrest and prosecution of the perpetrators is consequently reserved for the flag state of the vessel as it has exclusive jurisdiction. It must be determined that the vessel is lacking nationality , or can be assimilated as to lacking nationality in order for the coastal state to exercise jurisdiction. The smuggling protocol provides for the mechanism to request confirmation by the flag state of the nationality of the vessel, as well as receiving authorization to take 'appropriate measures' if it is suspected that the vessel is engaged in migrant smuggling.36 The claimed flag state must respond expediently, but if no response or authorization is received the coastal state cannot act. Bilateral treaties can be used to facilitate the arrest of the smugglers- as in the case with the US and the Bahamas where international cooperation can be more effective.37
The fact that both Australia and the US are still using interdiction/interception as- a tool to avert the threat of migrant smuggling38 demonstrates the lack of international cooperation needed to ensure that the smugglers are being held responsible. Despite this, the safety of migrants and human rights must be adhered to. Australia has-, through legislation, made it impossible for people coming by sea to certain islands within Australian territory to make asylum claims in the same way as people arriving in other ways to the mainland.
Italy's agreement with Libya concluded in 2008 is an example of international cooperation to avert the "threat" of migrant smuggling without an extensive regard to human rights.39 The Italian state justifies its actions of turning around boats coming from Libya, without determining the status of the passengers, with state sovereignty and security, thus ignoring the critique that the substance of the agreement violates human rights . The situation with Italy and Libya is an example of externalization of Italian borders- as some asylum claims can be made in Lampedusa. In this way the state of Italy actually exercises jurisdictional control in areas where it does not have jurisdictional responsibilities.
2.3.2 Cooperation Within the European Union
The EU has acceded the UN Convention Against Transnational Organized Crime and its protocols and the smuggling protocol consequently requires the member states to ratify it.40 The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX)41 has the power to perform border checks and surveillance within the common internal borders established by the Schengen Agreement, including sea fronts.42 The operations shall according to the regulation respect the international law of the sea as well as the non-refoulement obligation.43 The European Commission has also acknowledged the need for cooperation between member states in regards to the disembarkation of rescued immigrants and respecting human rights when intercepting vessels.44 Due to the Dublin Regulation the member state which is the first point of entry for an irregular migrant is responsible for processing any asylum claim.45 This taken together with the sharing of information under the Schengen Agreement has led to the situation where immigrants continuing through Europe are sent back to the state where the external border was crossed, and countries such as Poland, Hungary, Italy and Greece end up facing the pressure of migrant smuggling themselves.46
Some trends of non-cooperation and focus on state sovereignty have survived in this area. If states do not cooperate effectively in the procedure of finding a safe place to disembark rescued persons, individual shipmasters might ignore their duty to rescue.47Continued on Next Page »