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Flag State Responsibilities
Much of the breakdown in law and order at sea and potential threats to maritime security can be traced to the fact that some flag States are not discharging their responsibility in accordance with Article 94 of UNCLOS for vessels flying their flags when they commit illegal activities at sea or are used for terrorist purposes or for carrying weapons of mass destruction (WMD) and associated materials.. This is also the case for virtually all categories of maritime crime, but particularly illegal fishing, drug and arms trafficking, offences against the environment and human smuggling. Vessels committing these crimes usually are registered ships under the jurisdiction of a flag State rather than vessels without nationality. A vessel which flies no flag or which uses the flag of two or more States may be assimilated to a ship without nationality and may therefore be detained and investigated by the public ships of other nations on the high seas and presumably, within the exclusive economic zone (EEZ) of other States without the detaining vessels incurring State responsibility12.
Regional protocols on flag State responsibilities might be possible, as well as efforts to encourage regional States to ratify the UN Convention on Conditions for Registration of Ships and the Agreement to Promote Compliance with Conservation and Management Measures by Fishing Vessels on the High Seas. Regional protocols might cover respect for the principle of a "genuine link" between the flag State and ships flying its flag13, and preparedness to grant consent for investigation of vessels suspected of an offence. Several of international conventions provide that States may seek the consent of the flag State to conduct an investigation of a vessel suspected of being engaged in a prohibited activity. This might be when the vessel is located on the high seas, in the EEZ of the investigating State but the offence is one to which EEZ jurisdiction does not apply (e.g. drug smuggling, or trafficking in humans), or in the EEZ of a third State.
In these conventions where permission is sought from the flag State to conduct an investigation, it is normally to be granted expeditiously. While this might appear to be a reasonable requirement, the processes involved might delay or hinder the investigation. It may be possible to facilitate expeditious investigation by way of a series of bilateral treaties or a multilateral treaty under the auspices of the major convention granting States reciprocal rights of investigation automatically without the need to seek permission from the flag State. Such an arrangement requires a high degree of trust between the States involved and may need to be preceded by effective confidence-building measures such as intelligence sharing or joint operations by law enforcement agencies.
This ship boarding issue has arisen with the implementation of the Proliferation Security Initiative (PSI) and its procedures for intercepting vessels at sea suspected of carrying weapons of mass destruction (WMD) or related materials. The arrangement set up by the U.S. seeks to establish a coalition of willing partners to respond to the challenge posed by the proliferation of WMD. As of August 2004, there were fifteen full members (the "core group") of the PSI (Australia, Canada, France, Germany, Italy, Japan, the Netherlands, Norway, Poland, Portugal, Singapore, Spain, Russia, the U.K. and the U.S.)14, although more than sixty countries have signalled their support for the initiative. The PSI involves a set of principles identifying practical steps to interdict shipments of WMD flowing to and from state or non-state actors "of proliferation concern".15 It includes new international agreements that allow the U.S. and its allies to board and search ships suspected of carrying WMD or associated materials. Ship-Boarding agreements have been signed between the U.S. and Liberia, Panama and the Marshall Islands that permit the boarding of ships flying the flag of those countries. Similar agreements are being sought with other major flag States.
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12 UNCLOS Article 92(2). Since the ship is presumed to be a ship without nationality, presumably the nationality of claims rule will not be satisfied and the affected State or States will be unable to maintain a claim in international law.
13 UNCLOS Article 91(1) requires that a genuine link should exist between the flag State and ships granted the right to fly its flag. This was developed to ensure that flag States, particularly those with open registers (i.e. flags of convenience), maintain proper control over the condition and crewing of vessels flying their flags.
14 The Ministry of Foreign Affairs of Japan, "Japan to host the Proliferation Security Initiative Maritime Interdiction Exercise", August 2004,
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15 The Statement of Interdiction Principles for PSI is available on the U.S. Department of State website.
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Capacity Building for the Concept
Increased national and regional capacity to provide ocean security will help in building political and social will, as well as assisting in developing the necessary institutional arrangements and legal frameworks. Against this background, this paper identifies the following capacity needs of regional countries to maintain ocean security and protect the marine environment and resources in a comprehensive manner and to implement the "Securing the Oceans" concept effectively at the national and regional levels:
National
Institutional Arrangements
・Public sector departments and agencies responsible for developing and implementing policy for all dimensions of maritime security and maritime safety with the avoidance of duplication and clear specification of responsibilities
・Maritime security forces and law enforcement agencies (possibly also with capabilities for marine search and rescue)
・Arrangements for the collection, analysis and dissemination of intelligence and for the determination of risk assessments related to maritime security threats
・National (and State or Provincial) Maritime Security Committee or Maritime Security Task Force that brings together policy and operational agencies and intelligence services
- might also be required at a State or Provincial level
- might also have Intelligence and Technology sub-committees
・Information centres (e.g. national focal Points, regional coordinating centres, maritime rescue coordination centres, information sharing centre)
・Arrangements for cooperation between the public and private sectors related to maritime safety and security
Legal Frameworks
・Legislation and regulations for maritime security that should:
- identify entities with the legal authority to carry out investigations, arrests, etc;
- establish jurisdiction over offences to address penalties establishing procedures for national and multilateral cooperation;
- strengthen criminal proceedings and extradition proceedings; and
- strengthen prosecution procedures.
・Memorandums of understanding (MOUs) or other agreements for mutual support and cooperation among maritime safety and security agencies
Resources
・National capabilities (ships, aircraft and systems, perhaps including land-based radars, AIS interrogation systems and surveillance satellites) for maritime surveillance, patrol and response in waters under national jurisdiction, as well as in the approaches to those waters
・Personnel with the appropriate education and training
・New technologies to provide situational awareness in adjacent maritime areas and to improve security in ports
・Financial resources
Regional
Institutional Arrangements
・Identify, strengthen and enhance existing cooperation among national focal points of contact
・Arrangements at a regional and/or sub-regional level for information collection and exchange
・Border control arrangements between neighbouring countries covering common measures with respect to certain activities that might occur at sea within the vicinity of their maritime boundaries and cross those boundaries.
・Heads of Asian Coast Guard Agencies Meetings that build cooperative relations among agencies and share information on maritime security in the Asian region. The "Heads of "Coast Guard Agencies" means "heads or acting-heads" of "authorities responsible for conducting law enforcement activities of anti-piracy and armed robbery against ships and other unlawful acts at sea, including maritime terrorism, when within their charter and/or providing assistance to persons and/or ships in distress at sea as a result of such attacks." 16
・Western Pacific Naval Symposium (WPNS) that brings together the navies of the Western Pacific. The last WPNS was held in Singapore in November 2004 and considered the possibility of regional security exercises.
・The ReCAAP ICS in Singapore will be an important facility for the collection and analysis of data on piracy and armed robbery against ships.
・A monitoring and surveillance regime for building up a regional picture of the incidence of operational ship pollution, as well as the processing of evidence to obtain a successful prosecution.
Legal Frameworks
・Multilateral or bilateral legal arrangements that facilitate apprehension, investigation, hot pursuit, prosecution and extradition, exchange of witnesses, sharing of evidence, inquiry, seizure and forfeiture of the proceeds of maritime crime.
・Maritime boundary agreements - regional States should move expeditiously to resolve existing boundary disputes to ensure that maritime jurisdiction might properly be exercised in the applicable zones. If boundaries cannot be resolved, countries should be prepared to enter into some form of provisional arrangements for maritime security in the disputed area without prejudice to their positions in the boundary negotiations.
・Memorandums of Understanding (MOUs) or other agreements between neighbouring countries covering border controls and coordinated sea patrols. As a further development, neighboring countries might agree to enforcement of each other's laws, rules and regulations in each other's jurisdiction. The Treaty of Niue, for example, provides a reciprocal enforcement regime for Pacific island countries.
・Border control arrangements between neighbouring countries might include the countries agreeing to common measures with respect to certain activities that might occur at sea within the vicinity of their maritime boundaries and cross those boundaries.
・Harmonization as far as possible of national maritime laws and regulations
・Technical cooperation to promote understanding and compliance with international obligations
・Consideration might be given to the conclusion of bilateral protocols between neighbouring countries that are parties to the Convention relating to Intervention on the High Seas in Cases of Oil Pollution Damage to extend the Convention to their EEZs. This would facilitate mitigation of the effects of ship-sourced marine pollution.
・Regional protocols on flag State responsibilities might be possible, as well as efforts to encourage regional States to ratify the UN Convention on Conditions for Registration of Ships. Reciprocal ship boarding aspects might be covered by a series of bilateral treaties or a multilateral treaty under the auspices of the major convention granting States reciprocal rights of investigation automatically without the need to seek permission from the flag State.
・Common agreement on the application of high seas enforcement principles in the EEZ in respect of offences other than those related to resources and the environment.
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16 AMARSECTIVE 2004 adopted at the Heads of Asian Coast Guard Agencies' Meeting on 18 June, 2004 in Tokyo. Heads of Agencies attended from Bangladesh; Brunei; Cambodia; China; Hong Kong, China; India; Indonesia; Japan; Laos; Malaysia; Myanmar; Philippines; Republic of Korea; Singapore; Sri Lanka; Thailand; and Vietnam.
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Resources
・Training Programs - enhanced cooperation and coordination in law enforcement and intelligence sharing with piracy and armed robbery at sea activities and other transnational crimes.
・Potential cooperative activities with combating marine pollution include the development of common operating and reporting procedures, training for enforcement professionals, increasing awareness of legal process and obligations, development of enforcement guidelines and collaborative research to identify high risk areas.
・Procedures for information sharing and dissemination to provide maritime situational awareness at the regional level. Specific areas of cooperation might include:
- An internet-accessible regional data-base of national legislation dealing with maritime security
- A regional register of vessels that transgress national and international laws.
- A web page of information and data related to law and order at sea in the region. This might include, for example, details of cooperative arrangements, status of relevant conventions, etc.
・Procedures for coordinated response at the tactical and operational levels
・Financial resources obtained by loans from international financial institutions and contributions from contracting Governments.
Conclusions
In summary, capacity building to implement the "securing the Oceans" concept involves consideration of the following:
・Institutional Arrangements. At a national level, these comprise appropriate national agencies with established divisions of responsibility between agencies concerned with maritime security, a decision-making architecture and agreed procedures for inter-agency coordination, including command and control, communications, computers, surveillance and intelligence (C4SI). At a bilateral and multilateral level, they include procedures for information sharing, operational coordination and promoting situational awareness.
・Legal Frameworks. National legislation is required that covers threats to maritime security and implements relevant international treaties. At a regional level, maritime laws should be harmonized as far as the different legal systems in the region permit, and consideration might be given to regional and sub-regional agreements to ensure cooperation, including regional protocols that redress current limitations on the regional capability to respond to threats to maritime security.
・Resources. The resources required for maritime security are financial, materiel (ships, aircraft and C4SI systems) and human. Cooperative training and education programs are important devices for developing an environment conducive to cooperation both at the national and regional levels. The lack of financial resources is a major problem with capacity-building and this suggests the need for a concerted approach to international and regional financial institutions.
Many of the elements of capacity identified in this paper, particularly regional requirements, are well beyond what is politically feasible in the region at present. The challenge now is to identify what activities are achievable to help with implementation of the "Securing the Oceans" concept. These activities would seem to lie with lower level "building blocks" to help provide the necessary awareness of maritime security requirements, particularly in the area of training and education that promotes knowledge of the concept. Understanding of key legal regimes should be an important part of this training and education, along with the importance of communications and coordination between different agencies involved with maritime security both at the national and regional levels.
The Outreach Program of the Japan Coast Guard and the work of the Heads of Asian Coast Guard Agencies' Meetings with AMARSECTIVE 2004 and the projected activities of the WPNS are fine examples of achievable outcomes. A next step might be to elevate these outcomes into a higher political framework to ensure there is a level of political will and commitment to the concept of maritime security that is not evident in the region at present. The forums where this might be possible include the ASEAN Regional Forum (ARF), ASEAN Plus Three and APEC although the membership of the latter is fairly wide and the main focus of its activities at present is the direct security of ports, ships and cargo rather than the operational activities envisaged under the "Securing the Oceans" concept. To some extent, there is a separate challenge in bridging these different concepts of maritime security that are found in the various regional forums but are brought together by the concept we are discussing.
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