𝐀𝐮𝐭𝐡𝐨𝐫 - 𝐒𝐚𝐡𝐢𝐥 𝐕𝐚𝐫𝐬𝐡𝐧𝐞𝐲 , 𝐅𝐚𝐜𝐮𝐥𝐭𝐲 𝐨𝐟 𝐋𝐚𝐰 , 𝐉𝐌𝐈 𝐔𝐧𝐢𝐯𝐞𝐫𝐬𝐢𝐭𝐲 , 𝐃𝐞𝐥𝐡𝐢
For the transportation of bulk cargos for trade across the world, shipping and logistics companies plays a vital role and being an international industry it needs an effective way for its operations, which can only be done by standards and regulations implemented on an International basis. In 1958, United Nations established a specialized agency for regulating the matters concerning to shipping named as Inter-Governmental Maritime Consultative Organization, later renamed as International Maritime Organization (hereinafter called “IMO”) in 1982, headquartered in London. It was set up as a global authority operative for the matters concerning safety, security and environment. So the principal authority in the International maritime safety regime and its policy making is the IMO. It also put efforts in bridging the gaps between development of new standards and implementation of existing standard by developing a scientific temperament to cope up with safety and security issues. In addition to it, many treaties and conventions were organised and set up other committees under it in order to enforce the maritime safety regulations. And since 1959, about 50 international conventions and protocols and more than 800 codes and guidelines are being adopted for IMO in relation to its subject matter. The scope of obligations protects almost all the technical and operational aspects affecting maritime safety and security, including different facets such as navigation, radio communication, search and rescue, port controlling and various training and certification programmes, enhancement of safety and traffic control. Even the organization is capable of managing both legal and administrative matters. Security as a matter of concern, IMO in 1960, adopts a new version of International Convention for the Safety of life at Sea (hereinafter called “SOLAS”) the most important treaty among all for safety matters. The International Safety Management Code (hereinafter referred to as the "ISM") is considered one of the instruments that will maximize safety for ships accredited to comply with it. The International Association for Classification of Societies (hereinafter "IACS") is expected to play a pivotal role in this respect. IACS is important, parallel to the IMO, in enhancing safety standards.
Collectively, the maritime safety means anti-terrorist security to all human activities being realized at sea and the security of ships and port facilities from piracy, as well as prevention of ships and transported goods from being used by terrorists for spreading the terrorist assets and preventing other activities like trafficking, smuggling etc.. So, the term ‘management of the maritime safety means to take measures for policy making whose main objective is to ensure the proper level of maritime security of all human maritime activities performed at sea.
Major Issues affecting security :
There are a number of challenges which are being confronted by several countries across the world. These challenges make necessary implementation of safety and security guidelines and to take certain measures which are essential for the protection of the interest against the detrimental activities which are carried out in sea.
•Piracy and armed robbery against ships .
Albeit, piracy is the best known and perhaps the only crime in customary international law upon which uniform jurisdiction was universally understood, there was no standardized definition of piracy under customary laws. Brierly stated, "there is still no completely accurate description for international piracy, however it is the essence of a piratical act to be an act of terrorism, perpetrated at sea or at any level directly associated to the sea, by persons not behaving under the appropriate authority. In a landmark English decision of In re Piracy Jure Gentium, the court endorsed the nearest definition where it says “piracy is any armed violence at sea which not a lawful act of war.” A pirate is deemed, as hostis humani generis means, ‘enemy of mankind’ and he is deemed so because he is engaging in hostilities against both the subjects and property of any or all states, without regard to any right or duty or presence of public authority. And thereby, the military of various states operating in the international water bodies are found to be watchful of any occurrence of piracy and to take adequate measures to protect merchant shipping.
•Smuggling and drug trafficking :
Several countries are significantly impacted by illicit drug smuggling by ships or other floating vessels as well as by cigarette smuggling, alcohol etc. Trafficking of Persons, especially Women and Children is also one of the serious crime which is required to be prevented. There are currently a few international conventions aiming for successive measures to be implemented by member states in the war against illicit drug smuggling and high seas trafficking: the UN Convention on the Law of the Sea, 1998 (hereinafter called “UNCLOS”) against illicit traffic in narcotic drugs and psychotropic substances and the Council of Europe Agreement of 31st January, 1995 on illicit traffic by sea, implementing Article 17 of the 1998 UNCLOS. Member States must work cooperatively and offer mutual assistance to each other, with a commitment of preventing and detecting infractions of Community customs provisions. And a strong surveillance and vessel tracking system around the sensitive sea areas can be effective for states.
Terrorism is a complex phenomenon which includes aggression and military actions which depends upon different factors like economic, political, cultural, ideological, motivational, and social-psychological etc. There are number of terrorist activities like hijacking or damaging of ships, attack on tanks; sinking boats are the incidents which are the problem to be deal by IMO to prevent its occurrence. The 2005 Protocol on the Suppression of Unlawful Act (hereinafter referred to as "SUA") and the Sea Convention seeks to augment the international response to the widespread availability of Mass Destruction Weapons (hereinafter referred to as "WMD"). The SUA Convention would criminalize WMD’s unauthorized shipping, the use of a ship as a warhead, and terrorist transport infrastructure. Nevertheless, unavailability of standardized rules and regulations in all the states was a major issue, as many states did not have adequate legislation in their domestic laws, eventually; this contributes to this convention's poor performance.
Proactive Policy Making :
The policies which are framed by IMO in the pursuance of maritime safety and security are purported to be proactive rather than being reactive to the issues. By identifying the circumstances which are affecting the safety, it swiftly takes every possible regulatory action to prevent the crime unlike reacting without being active over it. Sometimes determining the factors of an event involve a careful analysis which take time or may even remain unknown forever. However, with the availability of systematic tools and scientific approach and incorporating them in proactive policy making, it can be ascertained up to a certain extent. Despite of proactive policy goals, some of the recent activities on maritime safety has been driven by major maritime disasters like, the fire on board of the Scandinavian State in 1990, sinking of Estonia in 1994 etc., which took hundreds of lives. Likewise, it can be seen that the significant policies that are ultimately implemented correctly identifies and assesses the most essential factors that contribute of such fatalities, and is formulated in such a manner as to avoid the reappearance of such factors. But still, how much these advantages would come at would remain largely unanswered. Hence, it is to understand that proactive policies are only preventive measures which are deliberately chosen and often designed to prevent a concern, problem, or emergency from occurring and hence, these policies can be more challenging and so it’s difficult politically to get lawmakers to spend money and resources to a problem that has not yet occurred.
In general, it is to consider that the International Law of the sea which is generally accepted as safety records of maritime is still developing and have certain shortcomings on grounds which need to be more precise in order to investigate more efficiently in its concerning issues. The use of scientific methods in recent times has huge impact on security but still not significantly developed. However, the Convention of SUA for the Safety of Maritime Navigation is further an important step in this process. A collective effort is required by all the states by making certain laws adherent to guidelines of the conventions, especially those states with long coastlines must take necessary steps by improving surveillance and military for vigilance. Likewise, operational functionalities must be perpetually under review to ensure that shipping operations must comply with the greatest conceivable preventive safety, security and anti-pollution regulations. Maritime safety and maritime security are two essential concepts and should not be viewed exclusively as fundamentally defensive, because they require a comprehensive engagement with increasing threats and thus require responsive approaches based on proper empirical experience with a thorough assessment of all policies.
i) Introduction to IMO, http://www.imo.org/en/About/Pages/
ii) "H.N. Psaraftis, Maritime safety. To be or not to be proactive, 1 WMU J Marit Affairs, 3162002
iii) Robert R. Wilson, The Law of Nations- By J. L. Brierly, 23 AMERICAN J.I.L., 4784791929
iv) (1934) App. Cas. 586, 598.
v) Maritime crime and piracy, https://www.unodc.org/unodc/en/piracy/index.html
vi) A. Cassese, Terrorism is also disrupting some crucial legal categories of international law, European J. of International Law, 1259932001
vii) M.L. Campanella, Proactive Policy-making: The new role of the state, Government and Opposition, 26 I.N. on Comparative Politics, 4804991991