3. Regional Level
Many of the issues challenging safe, secure and sustainable Governance of the seas occur on a global scale. As globalization relentlessly pushes forward and the electronic revolution shows no sign of abatement, it is only normal that criminal activities follow suit: the globalization of shipping, the ⟩virtualization= of financial markets, the ⟩transnationalization= of crime, and etc. are all symptoms of this condition.
From pollution control to cooperative scientific research, the international community has come to recognize that it is on a regional level that many initiatives of Governance must take place. The UNEP Regional Seas Program was perhaps on of the pioneers of this philosophy and its approach has subsequently been adopted by many regional bodies attempting to survey, monitor and control ocean activities such as shipping standards (Port State Control), sustainable development (Barcelona Convention System), and narcotics interdiction (Organization of American States).
However, current trends in the ⟩regional approach= all seem to lack one of the most fundamental aspects of Governance: regional implementation mechanisms. Regional “Programs of Action” and “Protocols” abound, institutional bodies have been created and these have effectively integrated many of the constituents of the ocean community (e.g. the Mediterranean Commission for Sustainable Development). However, all of these instruments of Governance have neglected to provide for the integration of surveillance, monitoring and control measure across all ocean sectors within regions!
This lacuna provides ample opportunity for illicit undertakings to go undetected and unpunished as the weakest members of the region are targeted at the expense of the collective. These symptoms are abundant in many regions, as substandard ships serve maritime routes where coastal states lack inspection capacities; human cargo is smuggled to remote coastlines where national authorities have no surveillance infrastructure; and narcotics transit and are transshipped in the waters of nations who do not posses the minimum means necessary to detect and interdict such activities... and these examples are only a small sampling of the epidemic.
Regional instability may also result from such situations as the more powerful states of the region act unilaterally, and sometimes extraterritorially, in order to protect what is believed to be their national interests.73 Recognizing the dangers of such actions, certain regions have attempted to provide frameworks, in the form of multilateral accords and MOU=s which establish multilateral surveillance, monitoring and control activities and reaffirm the sovereignty of the state over its zones of maritime jurisdiction and the ships flying its flag.74
It is clear that these initiative are much needed and will serve not only reduce unilateral or extraterritorial activities, but they will also help the regions develop a common understanding of the problems and perhaps implement solutions jointly. However these regional initiatives are limited in their application as they often only prescribe that states should cooperate to find common solutions. Once again, the majority of the responsibility and associated costs of implementation are left up to each individual nation.
Perhaps, in certain regions, the use of multilateral regional Coast Guards could be provide efficient and effective compliance and enforcement activities. This option is currently being examined in both academic and political circles and has recently gained considerable support.75 A discussion model for a Regional Coast Guard is also currently being developed by the International Ocean Institute and a draft of Protocol is included below for illustrative and discussion purposes.
Draft Protocol for the Creation and Operation of a Regional Coast Guard
PREAMBLE
The Contracting Parties to the present Protocol,
Being Parties to the Convention __________________ and _____________________,
Taking into account the Protocols related to the Convention _____________________,
Bearing in mind the relevant provisions of the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982, as well as all other legal instruments relevant to the suppression of crime at sea,
Recalling the relevant provisions of the United Nations Single Convention on Narcotic Drugs, 1961; United Nations Convention on Psychotropic Substances 1971; and the United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988,
Noting with interest the relevant provisions of the United Nations Convention against Transnational Organized Crime which was adopted by the General Assembly at its Millennium meeting in November 2000,
Emphasizing the universal and unified character of the United Nations Convention on the Law of the Sea and its fundamental importance for the maintenance and strengthening of international peace and security, as well as for the sustainable use and development of the seas and oceans of their resources,
Noting that Principle 25 of the Rio Declaration (1992) upholds that. “Peace, development and environmental protection are interdependent and indivisible;” that peace and human security must be founded on sustainable development; that sustainable development must be founded on peace and human security; and that both human security and sustainable development must be based on equity,
Recognizing that the illegal activities in the marine areas are on the rise and their consequences represent a serious danger to the environment and to the sustainable development of the Region,
Desirous of protecting and preserving the seas and peoples of the Region from deleterious socio-economic and environmental affects,
Aware of the differences in levels of development among the coastal States, and taking account of the economic and social imperatives of the developing countries,
Acknowledging that the main emphasis during the coming decades will be on consolidation, implementation and enforcement of the vast juridical legacy of the past decades,
Have agreed as follows:
SECTION I - GENERAL PROVISIONS
Article 1 USE OF TERMS
For the purposes of this Protocol:
(a) “Convention” means the _________________________;
(b) “Protocol” means the ____________________________;
(c) “Parties” means the contracting parties to this Protocol;
(d) “The Action Plan” means ______________________________;
(e) “Organization” means _________________________________;
(f) “Assets” means personnel, platforms, and other equipment as well as financial requirements for the effective implementation of the MED Protocols or any other mandate of the Regional Mediterranean Coastguard pursuant to Section II of the protocol;
(m) “The Protocol Area” means the area to which this Protocol applies as defined in Article 2 of the Protocol;
(o) “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;
(p) “Monitoring” means the systematic observation of a specific condition, activity or event of interest;
(q) “Control” means the executive enforcement act which renders effective the rule of law;
Article 2 GEOGRAPHICAL COVERAGE
1. The area to which this Protocol applies shall be:
(a) The maritime waters of the Region proper, bound by ____________________; and including the continental shelf and the seabed and its subsoil;
(b) Waters, including the seabed and its subsoil, on the landward side of the baselines from which the breadth of the territorial sea is measured and extending, in the case of watercourses, up to the freshwater limit.
2. Any Party may also include in the Protocol area wetlands or coastal areas of its territory.
3. Nothing in this Protocol, nor any act adopted on the basis of this Protocol, shall prejudice the rights and obligations of any Party.
Article 3 GENERAL UNDERTAKINGS
1. The Parties shall take all appropriate measures to prevent, abate and combat illegal activities and environmental degradation in the Protocol Area by establishing a Regional Coast Guard (RCG).
2. The Parties shall mandate the RCG to fulfill, within the Protocol Area, Surveillance, Monitoring and Control functions as required for the effective implementation of its mandate as defined in SECTION II of the Protocol.
3. The Parties shall contribute to the operational, personnel and financial assets of the RCG in accordance with Article 10 of the Protocol.
4. The Parties shall, as soon as possible, endeavor to harmonize their laws and regulations with the international rules, standards and recommended practices and procedures.
SECTION II - THE MANDATE OF THE REGIONAL COAST GUARD
Article 4 PRIMARY MANDATE
1. The activities of the RCG shall include, inter alia, the Surveillance, Monitoring and Control functions required to effectively implement its mandate as outlined in the Mandate Annex.
2. The implementation of all Regional multilateral Treaties and Agreements applicable to sections of the Protocol Area shall also be enforced by the RCG. The Contracting Parties may agree, by way of a diplomatic conference, to enforce such legislation in the entire Protocol Area.
3. The United Nations Convention on the Law of the Sea, the sea-related parts of the UNCED Conventions, Agreements and Programmes, as well as the relevant provisions of the United Nations Single Convention on Narcotic Drugs, 1961; the United Nations Convention on Psychotropic Substances 1971; the United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988; and the United Nations Convention against Transnational Organized Crime.
4. All relevant International Laws, as well as IMO Regulations and Standards as adopted by the Parties and approved by the meeting of Contracting Parties, shall be enforced by the RCG within the Protocol Area.
5. Furthermore, the RCG shall:
(a) Develop and implement, in conjunction with the competent national authorities of the Contracting Parties, Contingency Planning as deemed necessary by the Meeting of Contracting Parties. This may be achieved through the establishment of a standing Special Committee on Contingency Planning;
(b) Pay particular attention to the requirements of Marin Protected Areas, as outlined in the provisions of the [applicable Regional Seas Program];
(c) Serve as the Regional focal point for the gathering and dissemination of information relating to, inter alia, the safety of life at sea, marine emergencies, and illegal activities;
(d) Serve as an implementation agency for regional Capacity Building in the fields of, inter alia, general maritime Surveillance, Monitoring and Control, contingency planning, response to marine emergencies, humanitarian assistance, interdiction of illegal activity; all in conformity with a generally accepted Regional standards, practices and procedures;
6. Pursuant Article 11 of the Protocol, the mandate of the RCG may be altered, expanded or otherwise modified by a three quarters majority vote of the Meeting of Contracting Parties. Any such modifications will take the form of an amendment to the Mandate Annex of the Protocol.
SECTION III - ORGANIZATIONAL STRUCTURE
Article 5 THE MEETING OF THE CONTRACTING PARTIES
1. The Contracting Parties shall hold ordinary meetings once every year and extraordinary meetings at any other time deemed necessary, upon the request of the Tasking Commission or a Contracting Party which is supported by at least two other Contracting Parties. Parties should include Secretaries of their Navies and/or Coastguards in the delegations to these sessions.
2. It shall be the function of the meetings of the Contracting Parties to determine the policies and activities of the RCG.
3. Furthermore, the meetings of the Contracting Parties shall, inter alia:
(a) Consider the Tasking Commission=s Strategic Plan and Yearly Requirement Report, and to evaluate if these reports satisfy the current mandate of the RCG;
(b) Negotiate, amongst the Parties, the appropriate level and type of contributions to be made for the prescribed period pursuant Article 10 of the Protocol;
(c) Receive and evaluate any proposed contributions put forth by non-Party entities and to forward to the Tasking Commission such proposals for evaluation and eventual inclusion in the Yearly Requirement Report;
(d) Consider the Advisory Resolutions put forth by the Advisory Council pursuant to Article 8(2) and Article 8(3) of the Protocol;
(e) Keep under review the implementation of this Protocol and to consider the efficacy of the measures adopted and the advisability of any other measures, in particular in the form of annexes and appendices;
(f) Establish criteria and formulate international rules, standards and recommended practices and procedures in whatever form the Contracting Parties may agree;
(g) Facilitate the implementation of the policies and the achievement of the objectives outlined in Article 3 of the Protocol, in particular the harmonization of national legislations within the Region as well as generally accepted international law;
(h) Revise and amend the Protocol and its Annexes pursuant to Article 11 of the Protocol;
(i) Approve the Programme Budget;
(j) Discharge such other functions as may be appropriate for the application of this Protocol to Special Commissions pursuant to Article 9 of the Protocol.
4. In-between sessions, the Bureau shall be responsible for carrying out policies and activities.
Article 6 THE TASKING COMMISSION
1. The Parties shall appoint a Tasking Commission of 8 members, chosen on the basis of their personal capacity and their experience in broad maritime security duties, and observing the principle of equitable geographic distribution.
2. The Chairman of the Tasking Commission shall be the Staff Commander of the Regional Coastguard.
3. The mandate of the Tasking Commission shall be:
(a) The coordination and execution of all activities of the RCG in accordance with the requirements set forth in SECTION III of the Protocol;
(b) The preparation and presentation to the Bureau on a yearly basis, the Yearly Requirement Report which will outline the corresponding tasking requirements of the RCG;
(c) The preparation and presentation to the Bureau, on a quarterly basis, of the Strategic Plan which will outline and justify current mission priorities for the Protocol Area;
(d) The consideration of proposals by non-Party entities to contribute to the RCG;
(e) To discharge such other functions as may be appropriate for the application of this Protocol to Special Commissions pursuant to Article 9 of the Protocol.
4. Ordinary meetings of the Tasking Commission shall be monthly and extraordinary meetings may be called at by the simultaneous request of three members.
5. The Tasking Commission shall be serviced by a Regional Activity Centre (RAC) to be established in __________________________.
Article 7 THE REGIONAL ACTIVITY CENTRE
1. The RCG Activity Center shall be composed of representatives of the Contracting parties elected by meetings of the Meetings of the Contracting parties. In electing the members of the Bureau, the Meetings of the Contracting Parties shall observe the principle of equitable geographical distribution.
2. The principle functions of the Activity Center shall be to service the Meeting of the Contracting Parties and the Tasking Commission pursuant Article 5(4) and Article 6(5) of the Protocol.
3. The terms and conditions upon which the RCG Activity Center shall operate shall be set in the Rules of Procedure adopted by the meetings of the Contracting Parties and annexed to the Protocol.
Article 8 THE ADVISORY COUNCIL
1. The Advisory council shall be composed of:
(a) The Regional Commission on Sustainable Development;76
(b) Non-State entities who hold a direct interest in the implementation of the RCG's mandate and who contribute to the assets of the RCG pursuant Article 10(4) of the Protocol.
2. The Advisory Council may adopt, by simple majority, Advisory Resolutions on all matters relevant to the policies and activities of the RCG.
3. The Advisory Resolutions will be considered by the Meeting of Contracting Parties pursuant Article 5(3)(d).
4. The sessions of the Advisory Council shall immediately follow the regular sessions of the MCSD.
Article 9 SPECIAL COMMISSIONS
1. Special Commissions may be created by the Meeting of Contracting Parties or by the Tasking Commission to consider any issues which may require special attention.
2. The Commissions can be of two types:
(a) Special Standing Commission: Which can be proposed by the Meeting of Contracting Parties and/or the Tasking Commission and must be approved by a two-thirds majority vote by the Meeting of Contracting Parties. The mandates of these Commission shall be annexed to the Protocol;
(b) Ordinary Special Commission: These ad hoc Commissions can be proposed by the Meeting of Contracting Parties and/or the Tasking Commission and must be approved by a simple majority vote taken only by the proposing body. The mandates of these Commissions shall be in the form of a circular to be distributed to all the Parties and Advisory Council members.
3. The Special Commissions will report directly to the proponing body.
Article 10 CONTRIBUTION TO RCG REQUIREMENTS
1. The Yearly Requirement Report, drafted by the Tasking Commission pursuant Article6(3)(b) of the Protocol, and approved by the Meeting of Contracting Parties pursuant Article 5(3)(a) of the Protocol, shall enumerate the anticipated RCG requirements for the upcoming year.
2. The Contracting Parties will be invited to contribute assets in order to meet the requirements outlined by the Yearly Requirement Report.
3. Minimum yearly contributions by Parties shall be negotiated annually, in consultation with the Tasking Commission, during Meetings of the Contracting Parties.
4. Non-State entities may contribute to the RCG requirements by making available assets, even on an ad hoc basis, but must be willing to relinquish at least operational command if not control. In so doing, representatives of these entities are entitled to become members to the Advisory Council.
Article 11 AMENDMENTS TO THE PROTOCOL AND ANNEXES
1. Any Contracting Party to this Protocol may propose amendments to the Protocol. Amendments shall be adopted by a diplomatic conference which shall be convened by the Bureau at the request of two thirds of the Contracting Parties.
2. Any Contracting Party to this Protocol may propose amendments to any Annex. Such amendments shall be adopted by a diplomatic conference which shall be convened by the Bureau at the request of two thirds of the Contracting Parties to the Annex concerned.
3. Amendments to this Protocol shall be adopted by a three-fourths majority vote of the Contracting Parties to the Protocol which are represented at the diplomatic conference and shall be submitted by the Depositary for acceptance by all Contracting Parties to the Protocol. Amendments to any Annex shall be adopted by a three-fourths majority vote of the Contracting Parties to such annex which are represented at the diplomatic conference and shall be submitted by the Depositary for acceptance by all Contracting Parties to such Annex.
4. Acceptance of amendments shall be notified to the Depositary in writing. Amendments adopted in accordance with paragraph 3 of this article shall enter into force between Contracting Parties having accepted such amendments on the thirtieth day following the receipt by the Depositary of notification of their acceptance by at least three fourths of the Contracting Parties to this Protocol or to the Annex concerned, as the case may be.
5. After the entry into force of an amendment to this Protocol or to an Annex, any new Contracting Party to this Protocol or such Annex shall become a Contracting Party to the instrument as amended.
Article 12 STANDARDS
It is understood that all management and operational standards utilized by the RCG shall be those most widely accepted and utilized.
Article 13 MUTUAL INFORMATION
The Parties shall inform one another directly or through the Bureau of measures taken, of results achieved and, if the case arises, of difficulties encountered in the application of this Protocol. Procedures for the collection and submission of such information shall be determined at the meetings of the Contracting Parties.
Article 14 PEACEFUL SETTLEMENT OF DISPUTES
1. Any dispute arising from the interpretation or implementation of this Protocol is subject to mandatory peaceful settlement in accordance with Part XV of the United Nations Convention on the Law of the Sea and the relevant Annexes.
2. Attention is drawn to the options for Arbitration or Special Arbitration which may be particularly applicable in a regional Mediterranean context.
Article 15 FINAL CLAUSE
1. This Protocol shall be open for signature in ________ from ________ to ________, by any State invited to the Conference on the Creation and Operation of a Regional Coast Guard. It shall also be open, within the same dates, for signature by the [relevant Regional Intergovernmental Organizations] of which at least one member is a coastal State of the Protocol Area and which exercises competence in fields covered by Article 3 of this Protocol.
2. This Protocol shall be subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Government of _________, which will assume the functions of Depositary.
3. As from ________________, this Protocol shall be open for accession by the States and Intergovernmental Organizations referred to in paragraph 1 above.
4. This Protocol shall enter into force on the thirtieth day following the date of deposit of at least five instruments of ratification, acceptance or approval of, or accession to, the Protocol by the Parties referred to in paragraph 1 of this Article.
IN WITNESS WHEREOF the undersigned, being duly authorized, have signed this Protocol.
4. Global Level
It is necessary for the international community to have a global forum within which common problems are discussed and solutions are found. Furthermore, although these solutions are often only implemented at the Regional, National and Local levels, they must be harmonized at the global level so as to be truly effective. This approach is of particular importance to the interdiction of the illicit use of the seas, as transnational criminal activities are highly adaptable and will quickly modify their modus operandi to take advantage of a weakness in interdiction strategies at all levels and in all regions.
The importance of a global strategy is particularly well exemplified in interdiction efforts aimed at the trafficking of narcotics and humans by sea as well as that of combating substandard shipping.
In the first case, the illicit use of legitimate maritime transport as a vehicle to traffic narcotics and humans is increasingly being undertaken by transnational criminal organizations. The entities behave very much like multinational corporations and are characterized by complex production, transportation and distribution networks which are all supported by the latest information technologies.77 In other words, the international community is faced with an often very dynamic and intelligent supranational actor who possesses enormous technical and financial means.
Thus it is only through collective action that these transnational criminal organizations can be confronted. A global multidimensional approach must be elaborated and implemented effectively at all levels in such a manner that no one region or nation can serve as a refuge or staging post for illicit activities: wherever substandard ships operate, they should be intercepted, whenever illegal dumping occurs it must be detected, however illicit cargos are being taken to markets, they will be intercepted and trafficking networks shut down.
Although enforcement action at a global level is difficult to envision, such regional actions must be enabled through effective global harmonization of laws, policies, procedures, the standardization of information collection and exchange, the provision for proceedings transfers and global admissibility of evidence, etc. For without global consensus and harmonized approaches, systems of Governance will be undermined as the legal and institutional components of the systems will not be supported by effective means of implementation.
