By maritime Compliance and Enforcement measures we mean actions which seek to implement policy whose aims are to maintain maritime security, hence, seek to reserve the oceans for peaceful uses and ensure that these uses can be undertaken in a safe and sustainable manner.

　

　Maritime security should no longer be considered a subsection of military security or strategic security. It must be recognized that the fundamental security requirements of individuals, as well as the collective, lie not only in the elimination of the use of force by states and individuals, but also in the sustainable existence of Humanity.

　

　The Rio Declaration cannot be any clearer in this regard as it upholds that “peace, development and environmental protection are interdependent and indivisible.”⁶⁰

　

　As outlined in the previous sections of this paper, security within the oceans is not only a wishful thought, it is increasingly being accepted as a fundamental obligation of States under international law. Furthermore, one can observe a recent development of positive international law which grants states considerable responsibilities, indeed obligations, to render secure their areas of maritime jurisdiction and, occasionally, beyond. Perhaps this trend marks the beginning of the international community's recognition that it must work towards ensuring that the legitimate uses of the seas should not only be carried out in a safe and sustainable manner but must also be freed from the deleterious effects of the global activities of transnational criminal organizations.

　

　The implementation, or enforcement, aspect of Ocean Governance draws on many principles which are emulated by UNCLOS as well as the UNCED Process. By virtue of their comprehensiveness these sources are incontestably the most important bodies of international law. IMO has long been working in an attempt to make the seas a safer place and to ensure that maritime commerce not only operates with due regard to the well being of individuals and cargo, but also the natural environment.⁶¹ More specialized international accords have also been elaborated which take aim at criminal undertakings that make use of ocean space and legitimate oceanic activities to bring illicit cargo to underground markets worldwide.⁶² These illicit shipments consist of every imaginable and unimaginable cargo.⁶³

　

　However, two categories of illicit cargo are of particular relevance as they represent the largest threat to the safe conduct of shipping and the socio-economic well-being of the international community. These cargos are narcotics and humans.

　

Although it may seem clear that one cannot speak of Ocean Governance without properly addressing the necessity to implement the legal framework and institutional undertakings previously described, such discussion rarely takes place. Furthermore, these tools of implementation, if not lacking all together, are all too often limited to national initiatives which emerge from a sectoral approaches thus neglecting the golden rule of the oceans: all aspects of ocean space are interrelated and should be considered as a whole.

　

　A holistic approach to achieving compliance and carrying out enforcement operations within the seas must be integrative and implemented at all levels of Governance: the Local Level, the National Level, the Regional Level and the Global Level:

　

　

Within the science of criminology, there exists a well-established correlation between dis-empowered and marginalized individuals and their actions which are often X out of necessity and perhaps contempt - not in conformity with social norms. This has led social scientists to conclude that the nature of a decision making system within society should be, as much as possible, inclusive in order to reflect the needs and beliefs of its constituents. In the context of Governance, this philosophy goes far beyond contemporary democratic institutions.

　

　The very definition of “Governance,” as outlined in the first pages of this paper, implies that all “stake holders” be involved in the manner in which ocean affairs are governed. However, the local level, where the individual occupies such an important and often independent role, is not traditionally associated with models of enforcement, particularly not executive enforcement.

　

　As previously discussed, the role of individuals at this level is increasingly being recognized and incorporated into the institutional aspect of Governance through community-based co-management.⁶⁴ This vertical and horizontal integration must not only occur at the institutional level, but also at the legal as well as the implementation levels. Furthermore, it is important to establish the various groupings within communities as they may not always be rooted in geography, but may also exist in the context of occupations, religions, etc, and who not be organized and represented.⁶⁵

　

　The only law is and enforceable law, and communities as well as individuals play a significant role in ensuring that a law is enforceable through its active participation in both the derivation of law and in its application.

　

　In the case of deriving law, it is clear that the appropriate constituents, individually or represented through NGO=s and interest groups, can contribute to the development of fair and equitable rules and regulations which will be consistent with the context within which they are applied. If this integration is achieved, marginalization will be minimized thus resulting in an increase in compliant behavior (compliance). Compliance can be further reinforced through numerous strategies which may vary in the level of state and community involvement, and include, inter alia, education, training, codes of conduct, self regulation, inspections, all of which come together to form a compliance and enforcement matrix.⁶⁶

　

　Communities and individuals should also be included in the application of law, including surveillance, monitoring and control aspects of enforcement activities. In this context, surveillance means the detection and notification of any state of condition, activity or event of interest within an area of interest over a period of time; monitoring means the systematic observation of a specific condition, activity or event of interest; and control means the executive enforcement act which renders effective the rule of law.

　

　Individuals who are not agents of the state, may be in a position to actively and passively contribute to these operations as they are intimately involved in the activities of the communities and thus are able to observe the occurrence of illicit acts with relative ease. Through the participation of such individuals, a network of surveillance may be established which will act as a detection and notification system for the state agents.⁶⁷ Such networks may be formal, such as “Coast Watch” and “Citizen Patrol” programs, and function as auxiliaries to state agencies as their involvement may extend to monitoring activities and, in some instances, they may be competent in providing support of control operations. Informal contributions most often manifest themselves in the form of anonymous reporting of observed illicit of potentially illicit activities.⁶⁸

　

　Thus, through the effective involvement of constituents in the formulation and implementation of law and policy the state will be able to increase the level of compliance within the maritime sectors and thus decrease the need for executive enforcement operations which bare such a high economic and human cost.

　

　

The strategies described above can only be effectively implemented if they are guided and enabled by an overarching national Governance structure which is inclusive and truly integrated.

　

　The two largest barriers to effective enforcement action undertaken by national authorities are the lack of resources made available to enforcement agencies and the lack of cooperation between these agencies. These barriers are particularly evident in the realm of interdiction of illicit maritime activities such as the trafficking of humans and narcotics, piracy and armed robbery at sea, and marine pollution.⁶⁹

　

　It is perhaps the first two categories of illicit activities which represent the largest threat to maritime security as these transcend all maritime sectors and are increasing at an alarming rate in their frequency and distribution.⁷⁰ None the less, it is important to note that a state, as a subject of international law, has an obligation to enforce all provisions of customary international law as well as those of all Treaties, Conventions and Accords it is a party to. This responsibility places an colossal burden on states, particularly LDC=s and SIDS, who may not even posses the resources to effectively exercise surveillance in their zones of maritime jurisdiction let alone determine the outer limits of their continental shelf.

　

　Even within nations who possess potentially adequate levels of human and financial resources, the responsibility of enforcement of laws, regulations and standards usually falls within the jurisdiction of many ministries and agencies, most of which operate in a sectoral and competitive manner. For example, the implementation of various IMO Convention provisions, such as the inspection of vessels party to a Regional Port State Control System, may fall under the mandate of the Ministry of Transport. However, within the same nation, these officials, who may visit many ships for the purpose of inspections, are not habilitated to detect suspicious activities and circumstances which may indicate illicit cargo or acts. Furthermore, and sadly, it is often noted that the enforcement officials of one agency, although aware of illicit activities which they are not mandated to interdict, will not report these activities to their counterparts in the appropriate Agency. This lack of cooperation often stems from longstanding rivalries between various government ministries who are all eager to justify their importance, at the expense of others, as they all compete for a portion of the shrinking government budget.

　

　Lack of cooperation does not always characterize relations between government departments. On the contrary, in some cases, although cooperation may be range from infrequent to occasional, it can be very fruitful. Indeed, in an effort to rationalize national operational assets, various nations have mandated certain well-endowed ministries to support the activities of less equipped ministries.

　

　A example of this policy is exemplified by the increasing use of military assets in the support of constabulary operations such as fisheries patrols or environmental monitoring. Such operations are usually executed according to strict guidelines which are set forth in the form of an interagency memorandum of understanding (MOU) which stipulates operational procedures and command structures. For example, the Ministry responsible for the management of living resources within the nation's waters may not possess the necessary vessels to execute fisheries patrols within the EEZ. However, the nation's Ministry of Defense may be well equipped to do so and could thus provide a manned vessel for fisheries patrol which would embark a fisheries officer to engage in EEZ patrols. Furthermore, while in the off shore this vessel may also be habilitated to respond to Safety of Life at Sea as well as marine pollution incidents which the state must react to, if not out of self interest, then by treaty obligation under IMO Conventions.

　

　Private sector participation should also be a component of maritime compliance and enforcement activities, for not only are their interests most directly threatened by illicit activities, but they are often possess the necessary resources and management structures to implement surveillance and monitoring programs efficiently. Public-Private Sector cooperative arrangements also arise out of necessity, as is the case in the shipping industry, where the transport of cargo is transnational and extremely time sensitive. Comprehensive customs inspections carried out on vessels as well as their cargo may impede the ability of the shipping industry deliver to markets in a timely manner thus resulting in enormous loss of revenues. Equally important, and perhaps acting against effective inspections, is the structure of the global transportation network which allows for ships to be rerouted quickly and efficiently in an attempt to minimize costs and thus resulting in the loss of revenue for a port or even a nation if it is deemed to represent a “high transaction cost.”⁷¹ It is therefore in the interest of both the state and the private sector to include the private sector in Governance structures which should be able to find integrated cooperative arrangements in order to lower “transaction costs” without compromising the effective enforcement of maritime policy.⁷²

　

　Although the use of non-constabulary assets to support enforcement actions at sea has been widely debated, the motivations of the private sector are often dubious, and community level involvement in Governance can be very difficult, it is incontestable that these entities are often the only ones who possess the necessary knowledge and resources to effectively reinforce the limited capabilities of the State. Governance structures should thus seek to include these sectors as much as possible. Such inclusion could perhaps be achieved through the establishment of a maritime advisory board with a membership which would include representatives from all ministries responsible for implementing ocean policy as well as non-governmental “stake-holder” representatives. This body could collectively assess the various threats to ocean security which exist within each of their areas of marine activity and propose to the government integrated approaches with which these threats could be addressed.