Marine Security and Shipping Law

Vikum de Abrew
LL.M (Colombo), LL.M (International Maritime Law Institute ,Malta)
Senior State Counsel
Lecturer Sri Lanka Law College
 Maritime Security
There are a number of clearly identifiable criminal
acts that threaten maritime peace and security. It can
be categorized asare
There follows
a number of clearly identifiable
(a) transnational organised crime i.e illicit traffic in
narcotics, arms and weapons, and persons;
 (b) terrorism; and
(c) piracy and armed robbery at sea.
Piracy and Armed Robbery
at Sea
 The universal crime of piracy is a very old one. Historically, areas such
as the Caribbean and the Mediterranean were rife with pirate attacks
on merchant ships. Piracy is regarded as a jus cogens crime,(i.e crime
against humanity) Pirates are considered as “hostis generis” ( enemies
of all mankind),
 There are areas that have been identified as hotspots. The main areas
are the South China Sea, the Strait of Malacca, West Africa and
Somalia.
 The commission of an act of piracy necessarily involves the attack
being launched from another ship on the High Seas and the attack
must be launched for private ends.
Armed robbery is defined as “any unlawful act of
violence or detention or any act of depredation, or
threat thereof, other than an act of “piracy”, directed
against a ship or against persons or property on board
such ship, within a State’s jurisdiction.”
There is no requirement for the involvement of at least
two ships or any limitations in respect of the
motivation behind armed attacks.
Piracy-Provisions
under UNCLOS

UNCLOS provides that all States have an obligation to

cooperate to the fullest possible extent in the repression of
piracy (Article 100) and have universal jurisdiction on the
high seas to seize pirate ships and aircrafts under the
control of pirates (S.S Lotus 1927 PCIJ ) . Article 110, allows
States to exercise a right of visit of suspected ships.
These provisions should be read together with Article
58(2) of UNCLOS. Articles 100-107 are applicable to EEZ.
 Article 101 of the UNCLOS defines piracy as
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
subparagraph (a) or (b).
 According to this provision in the LOS Convention, there are three
main conditions that must be met before an incident can be
characterized as an act of piracy:
 1) It has to be determined whether the act occurred on the high seas or
outside the jurisdiction of all states,
 2) The aggressors must have attacked the vessel from another vessel
and
 3) “private ends” must have been the sole motivation
Any State may seize a pirate ship on the high seas and
arrest persons and seize the property on board. They
can be charged by the courts of the state which
carried out the seizure. (Art 105)
Seizures may only be carried out by the warships or
military aircrafts. (Art 107). Capture may occur in
other circumstances as a consequence of acts of self-
defence by an intended victim of piratical action.
Piracy Act No 9 of 2001
 AN ACT TO PROVIDE FOR THE SUPPRESSION OF PIRACY IN SRI
LANKA ,AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL
THERTO
 Administration of the Act- The Sri Lanka Ports is Authority in consultation
with the Director of Merchant Shipping shall be responsible for coordinating
all measures for the suppression of piracy in Sri Lanka and for monitoring the
implementation of such measures.
Terrorism

The hijacking of the Italian cruise ship Achille Lauro,

in October 1985, marked one of the first actual
terrorist acts recorded in maritime history. Following
that incident, the International Maritime
organization adopted resolution A.584(14) on
Measures to Prevent unlawful acts which threaten the
safety of ships and the security of their passengers and
crew.
Achille Lauro Incident in 1985

Four heavily armed Palestinian terrorists (PLF) hijacked

the Italian cruise ship Achille Lauro, carrying more than
400 passengers and crew, off Egypt. The hijackers
demanded the government of Israel to release 50
Palestinian political prisoners. The terrorists killed a
disabled American tourist, 69-year-old Leon Klinghoffer,
and threw his body overboard with his wheelchair. After a
two-day drama, the hijackers surrendered in exchange for a
pledge of safe passage.
But when an Egyptian jet tried to fly the hijackers , U.S.
Navy F-14 fighters intercepted it and forced it to land in
Sicily. The terrorists were taken into custody by Italian
authorities.

Pursuant to the Achille Lauro incident the IMO continued

working towards the development and adoption of
conventions and security regulations and adopted, in
March 1988, the Convention for the Suppression of
Unlawful Acts against the Safety of Maritime
Navigation (SUA).
SUA Convention
The SUA Convention ensures that appropriate action
is taken against persons committing unlawful acts
against ships, including the seizure of ships by force;
acts of violence against persons on board ships; and
the placing of devices onboard a ship which are likely
to destroy or damage it.
SUA is a genuine anti- terrorism convention
According to Article 3 para 1 of SUA
Any person commits an offence if that person unlawfully and intentionally:
 (a) seizes or exercises control over a ship by force or threat thereof or any other
form of intimidation; or
 (b) performs an act of violence against a person on board a ship if that act is
likely to endanger the safe navigation of that ship; or
 (c) destroys a ship or causes damage to a ship or to its cargo which is likely to
endanger the safe navigation of that ship; or
 (d) places or causes to be placed on a ship, by any means whatsoever, a device
or substance which is likely to destroy that ship, or cause damage to that ship or
its cargo which endangers or is likely to endanger the safe navigation of that
ship; or
 (e) destroys or seriously damages maritime navigational facilities or seriously
interferes with their operation, if any such act is likely to endanger the safe
 navigation of a ship; or
 (f) communicates information which he knows to be false, thereby
endangering the safe navigation of a ship; or
 (g) injures or kills any person, in connection with the commission or the
attempted commission of any of the offences set forth in subparagraphs (a) to
(f)
Art 3 bis
 “Any person commits an offence within the meaning of this Convention if that
person unlawfully and intentionally:
 (a) when the purpose of the act, by its nature or context, is to intimidate a
population, or to compel a government or an international organization to do
or to abstain from doing any act:
 (i) uses against or on a ship or discharging from a ship any explosive, radioactive
material or BCN167 weapon and other nuclear explosive devices – in a manner that
causes or is likely to cause death or serious injury or damage;
 (ii) discharges, from a ship, oil, liquefied natural gas, or other hazardous or noxious
substance, in such quantity or concentration that causes or is likely to cause death or
serious injury or damage;
 (iii) uses a ship in a manner that causes death or serious injury or damage; or

 (iv) threatens to commit any of these offences ”

Article 6
 1. Each State Party shall take measures as may be necessary to establish its
jurisdiction over the offences set forth in article 3 when the offence is
committed:
(a) Against or on board a ship flying the flag of the State at the time the offence
is committed; or
(b) in the territory of that State, including its territorial sea; or
(c) by a national of that State.
 2. A State Party may also establish its jurisdiction over any such offence when:
(a) it is committed by a stateless person whose habitual residence is in
that State; or
(b) during its commission a national of that State is seized, threatened,
injured or killed; or
(c) it is committed in an attempt to compel that State to do or abstain
from doing any act.
According to the SUA “definition”, piracy is not limited
to criminal actions on the high seas but also focuses on
criminal actions during international transits, in ports,
coastal zones or territorial waters.
SUA does not make any distinction between private,
commercial or political motivations.
Article 3 does not refer to any jurisdictional limitation
the SUA Convention is applicable to ships on an
international voyage operating or scheduled to operate
seaward of any state’s territorial waters.
( Unlike UNCLOS, the SUA Convention encompasses
criminal actions committed during international
transit, in ports, coastal zones or territorial waters. )
“extradite or prosecute”
provision
“The State Party in the territory of which the offender
or the alleged offender is found shall, in cases to which
Article 6 applies, if it does not extradite him, be
obliged, without exception whatsoever and whether or
not the offence was committed in its territory, to
submit the case without delay to its competent
authorities for the purpose of prosecution, in
accordance with the laws of that State. Those
authorities shall take their decision in the same
manner as in the case of any other offence of a grave
nature under the law of the State”
Suppression Of Unlawful Acts Against The Safety Of
Maritime Navigation Act No 42 of 2000
ISPS Code
The terrorist attacks in the United States put
in doubt the vulnerability of ships and ports
around the world. The new regulatory regime was
introduced and entered into force on 1 July 2004 .
These new requirements represent the co-operation
between Contracting Governments, Government
agencies, local administrations and shipping and port
industries to assess security threats and take
preventive measures against security incidents
affecting ships or port facilities used by international
sea borne trade.
The objectives of the ISPS Code are to establish an
international framework-involving co-operation
between contracting States, Government agencies,
local administrations and the shipping and port
industries to detect or assess security threats and take
preventive measures against security incidents
affecting ships or port facilities used in international
trade
APPLICATION OF ISPS CODE
 The ISPS Code shall apply to the following type of
ships on International Voyages and Port Facilities
serving such ships:-
1. Passengers ships irrespective of size,
2. Cargo ships of 500 Gross Tonnage and above not
on International voyage.
3. All ships of 300 Gross Tonnage on International
voyages
4. Port facility serving ships on International
voyages.
5. Mobile off-shore Drilling Units.
Part A of the ISPS Code defines three Security Levels
for international use.
These are:
Security Level 1 - normal, the level at which ships and
port facilities normally operate.
Security Level 2 - heightened, the level applying for as
long as there is a heightened risk of a security
incident.
Security Level 3 - exceptional, the level applying for
the period of time when there is the probable or
imminent risk of a security incident.
A ship is required to act upon the security levels set by
Contracting Governments. Masters of all ships are
required to change to Security Level 2 or 3.
For ships the framework includes requirements for:
Ship security plans
Ship security officers
Company security officers
Certain onboard equipment
For port facilities, the requirements include:
Port facility security plans
Port facility security officers
Certain security equipment
In addition the requirements for ships and for port
facilities include:
Monitoring and controlling access
Monitoring the activities of people and cargo
Ensuring security communications are readily available
Shipping Law
Maritime Law means the entire body of laws,
concepts and processes relating to navigation,
ocean commerce and the use of marine resources.

Shipping law means the law relating to the

owning and managing ships, port operations, crew
employment or other shipping activities.

Admiralty Law is narrower than Maritime Law in the sense

that it is the private law of navigation and shipping.
This Refers mostly to the law practiced by Admiralty Courts
in common law States.
Shipping Law will be discussed along with the role of
the Director General.
Thank you