A STUDY ON PORT SECURITY MANAGEMENT IN NIGERIA

A STUDY ON PORT SECURITY MANAGEMENT IN NIGERIA

 

CHAPTER 1: BACKGROUND TO THE DEVELOPMENT OF MARITIME SECURITY IN TERMS OF THE INTERNATIONAL SHIP AND PORT FACILITY SECURITY (ISPS) CODE

  1.1              Introduction

This chapter provides the background knowledge on the development of the ISPS Code from an international, a regional and thereafter a South African perspective. There is a brief layout of South African legislation relevant to maritime security as well as the current status of its main commercial ports.

1.2              International Perspective on Maritime Security

 The first modern instance of vessel hijacking that attracted international attention was the seizure of the Portuguese passenger liner Santa Maria in January 1961.¹Then in 1985, the hijacking of the cruise ship Achille Lauro²resulted in the development of the Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation (the SUA Convention).

Maritime security drastically evolved due to the catastrophic events of 11 September 2001(9/11), when a sequence of synchronised terrorist attacks were made in the United States of America, specifically on the World Trade Centre and the Pentagon by the extremist Islamic terrorist group al-Qaeda. This unprecedented and catastrophic incident of terrorism shocked the world, but importantly drew the attention of the international maritime security authorities to the vulnerabilities of seaports to acts of terrorism and other criminal threats.

1 L Joubert ‘The extent of maritime terrorism and piracy: a comparative analysis’ (2013) Journal of Military Studies Vol 41, No 1 pp111-137 at 118. Colonel Galvao and a group of 24 Portuguese insurgents hijacked the Santa Maria. The Colonel and his insurgents planned on overthrowing the government of Portugal (the Salazar regime) with the intention to sail the vessel to Angola. An officer was killed and a crew member was injured. There was difficulty in handling this case as it could not be defined as piracy since it was of a political nature.

2 On 7 October 1985, the Italian MS Achille Lauro liner was hijacked while sailing from Alexandria to Ashdod, Israel by four men from the Palestine Liberation Front (PLF). This incident was recorded in history as one of the

first terrorist acts. JPB Coelho African Approaches to Maritime Security: Southern Africa (2013) and D C Turack ‘Maritime Terrorism and International Law’ (1992) 41 (2) The International and Comparative Law Quarterly 490 FES Peace and Security Series 12: 5. The SUA Convention was intended to ensure that responsible authorities extradites or prosecutes persons responsible for committing terrorist acts atsea.

The United Nations General Assembly convened an emergency session on 12 September 2001 aimed at condemning the 9/11 attacks on the United States of America and adopting resolutions to enhance global maritime security.³ A delegation from South Africa  was present during this session.⁴Thereafter, there were various platforms in which engagements occurred in relation to the discussions of methods to enhance maritime security. It was decided that the best method for the enhancement of worldwide maritime security was to develop it at an international level.⁵

The International Convention for the Safety of Life at Sea (1974) is one of the most significant international maritime agreements relating to security and safety. This Convention was first adapted in 1914 in reaction to the Titanic disaster then a second adaptation in 1929, third adaptation in 1948, fourth adaptation in 1960 and finally the fifth and current adaptation in 1974. SOLAS has been amended on numerous occasions in order to meet the maritime industry needs and is currently named SOLAS 1974, as amended.⁶After the tragic incident of the 9/11 attacks, this significant Convention was again amended to include the International and Port Facility Security (ISPS) Code by the International Maritime Organisation (IMO), which took the lead in formulating numerous security related recommendations and Conventions by engaging states in discussions to develop international conventions designed to enhance international maritime security.⁷

These new provisions in the SOLAS, 1974 as amended and the inclusion of the International Ship and Port Facility Security Code (ISPS) were adopted during a Diplomatic Conference on Maritime Security in December 2002 in London.⁸ This new security regime for the protection of both merchant ships and seaports was implemented on 01 July 2004⁹and was

3D L Bryant ‘Historical and Legal Aspects of Maritime Security’ 17 U.S.F Maritime Law Journal (1) 2004- 2005 at10.

4General Assembly Press Release GA/9903, United Nations, Opening its Fifty-Sixth Session, ‘General Assembly Condemns Heinous Acts of Terrorism Perpetuated in Host City and Washington’ 2001 available at http://www.un.org/News/Press/docs/2001/ga9903.doc.htm(accessed on 19 May2015).

5T J Schoenbaum and J C Langston ‘An All Hands Evolution: Port Security in the Wake of September 11th’ 2002-2003 77 Tulane Law Review at 1345.

6           History       and       Background       of       the       SOLAS        Convention       1974       is        available       at: http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/International-Convention-for-the-Safety-of-Life-at-Sea-(SOLAS),-1974.aspx(accessed on 23 January2015).

7R Balkin ‘The International Maritime Organisation and Maritime Security’ 2006 Tulane Maritime Law Journal 30 at 3.

8 ‘Conference of Contracting Governments to the International Convention for the Safety of Life at Sea 1974’ (2002) available at www.un.org.

9The IMO website have numerous documents on the topic of Maritime Security ‘Maritime Security and Piracy’ available at http://www.imo.org/ourwork/security/Pages/MaritimeSecurity.aspx (accessed on 23 April 2015).

effective in 147 States. Currently these new security measures apply to 162 Member States of SOLAS that are contracted to comply with the requirements set out in the ISPS Code.¹⁰At  the Intersessional Working Group Conference on Maritime Security during 9-13 September 2002, the ISPS Code was described as an establishment of a worldwide framework that encompasses the co-operation between various key role-players such as contracting governments, government agencies, local administrations, shipping and port industries for the purposes of firstly, detecting security threats and secondly, ensuring that preventative measures are taken against security incidents that impact on ship and portfacilities.¹¹

The ISPS Code is in essence a framework of maritime security measures designed to improve port facilities and ships security.¹²This Code contains detailed and comprehensive security- related requirements for governments, shipping companies and port authorities. It is further divided into two parts, namely,

• Part A: Comprises of certain obligatory provisions, reference of which is also made in chapter XI-2 of SOLAS, 1974 as amended. This part creates the new global structure of measures to improve maritime security. This is achieved by ships and port facilities working jointly for the purpose of detecting and thereafter deterring security threats in the maritime transportsector.¹³
• Part B: This section fleshes out the contents of Part A and is non-mandatory but recommendatory.14However, some countries are considering making Part B mandatory whilst other countries like the USA have already made Part B ¹⁵ Korea¹⁶, the European Parliament and the Council of the European Union¹⁷have made some provisions of Part B mandatory in their nationallegislations.

10 Ibid.

11 Press Release IMO, ‘Maritime Security Measures Take Shape at IMO’ (2002) available at http://www.imo.org/blast/mainframe.asp?topic_id=583&doc_id=2435(accessed on 20 May 2015).

12 Maritime Port Authority of Singapore ‘Port Security: ISPS Code’ available at www.mpa.gov.sg(accessed on 06 February 2015).

13 Part A of the ISPS Code s1, 1.1 – Guidance regarding the provisions of Chapter XI-2 of the Annex to the International Convention for the Safety of Life at Sea, 1974 as amended and Part A of this Code.

14Transnet National Port Authority ‘A World Class Port Security Service’ (2007) available: http://www.transnetnationalportsauthority.net/DoingBusinesswithUs/Pages/Security.aspx (accessed on 17 February 2015).

15Most provisions of Part B of the ISPS Code are enforced in the United States Maritime Transport Security Act

of 2002 Q van der Merwe, ‘ISPS Code- Maritime Security’ (2003) available: http://ports.co.za/legalnews/article_2003_08_15_1144.html(accessed on 18 February 2015).

1.3              Regional Perspective on Maritime Security

 The Southern African Development Community (SADC) is utilised as a driving force for economic integration in Southern Africa since its existence in the year 1980. The SADC Treaty, specifically Article 5 provides objectives to realise integrated economic security within the region, of most relevance is the objective to promote and defend peace and security.¹⁸

In Angola, Luanda, during 2011, the Heads of State signed the SADC Maritime Security Strategy. South Africa together with Tanzania and Mozambique have been in collaboration on a number of maritime security related projects including maritime security and anti-piracy operations in the Indian Ocean, which is of vital importance as it is the earth’s third-largest ocean and transports half of the world’s trade inoil.¹⁹

The SADC Maritime Security Strategy is progressing well as a number of countries at the 20^th Standing Maritime Committee meeting in Lusaka, Zambia during 4-5 April 2014 have signed cooperation agreements thatinclude:

• The establishment of Maritime Domain Awareness Centres (MDACs) in Mozambique and Tanzania which are to be connected with those in Cape Town and Durban.
• Co-operational framework signed between Botswana, Lesotho, Zambia, Zimbabwe andMalawi.
• A memorandum of understanding between South Africa, Angola and Namibia on maritime cooperation aimed at addressing maritime security on the WestCoast.²⁰

J Jibkwon ‘Progress and Challenges: Ten years after the ISPS Code’ (2013) World Maritime University, Sweden 20 available at http://dlib.wmu.se/jspui/bitstream/123456789/836/1/77473.pdf (accessed on 27 May 2015).

17 C Pohlit ‘New Developments in Maritime Security and the Impact on International Shipping’ Dissertation submitted at University of Cape Town 26, available at http://uctscholar.uct.ac.za/PDF/1373_Pohlit.pdf

(accessed on 28 April 2015). Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on Enhancing Ship and Port Facility Security.

18 KJ Watson ‘Promoting the Creation of an integrated Maritime Security Capability on the Southern African Coast’ (2011) Conference.

19L Louw-Vaudran ‘What does ensuring SADC’s maritime security mean for South Africa?’ (2014) availableat

http://www.issafrica.org/iss-today/what-does-ensuring-sadcs-maritime-security-mean-for-south-africa

(accessed on 03 May 2015).

20Ibid.

1.4              South African Maritime Legislative Framework

 In South Africa, the following legislation plays a significant role in ensuring maritime security:

• The Constitution of South Africa Act 108 of 1996, which is the supreme law of South Africa and provides the legal foundation for the existence of the Republic and which all laws in the Republic have to be in linewith.
• The National Ports Act 12 of 2005, which provides for the establishment of the National Ports Authority and the Ports Regulator as well as to provide for the administration of certain ports by the National Ports Authority. In addition, the essential objective of this Act is to promote the development of an effective and productive port industry in South Africa that is capable of contributing to the economic growth and development of our country.²¹
• The Merchant Shipping (Maritime Security) Regulations, 2004 derived from the Merchant Shipping Act of 1951. The objectives of the Regulations include the implementation of the ISPS Code in order for South Africa to comply with its international obligations under Chapter XI-2 of the Safety Convention.

1.5              South African Maritime Interest

 Due to South Africa’s internal race policies, the United Nations actively promoted the exclusion of South Africa from international conventions and encouraged boycotts against  thecountry.

After a long struggle for freedom, South Africa finally unlocked itself internationally after it held its first democratic elections in April 1994, only then was South Africa exposed to global trends.²²

Its maritime zones, spreading out to the edge of the continental shelf, including the exclusive economic zone, encompass an area of over 1 million square

21 National Ports Act 12 of 2005, Section 2 Objectives at 10.

22A Minnaar ‘Border Control and Regionalism, The Case of South Africa’ (2001) 10 (2) African Security Review.

kilometres.²³ This massive ocean domain is potentially rich in natural resources, and environmentally of significant global importance.²⁴

International trade is essential for many African economies and over 90% of Africa’sexports

andimportstakeplaceatsea.25Theportsthereforeplayanextremelyimportantroleinthe

economics of the country. The international community looks to South Africa to be a leader in cultivating change and progress, not just in Southern Africa, but in the entire continent as well.

South Africa currently identifies itself as an essential component of the African continent and as a result comprehends its national interest as being fundamentally connected to Africa’s maritime security. In order to maintain international standards, South Africa, being a signatory to the IMO, has ratified the ISPS Code. The following are some reasons for ratifying the ISPSCode:

• Vessels visiting ports that are non-compliant with the ISPS Code could be viewed as a security risk and could be turned away at ports that are compliant to theCode.²⁶
• A ship may be declared unsafe for visiting a port that is non-compliant with the ISPS Code, which would result in it losing its insurance cover and would expose it to third partyclaims.²⁷
• Furthermore, failure of a port to comply with the ISPS Code may constitute prima facie proof of negligence, which would result in a charterer having recourse to sue the port.²⁸
• Non-compliance with the ISPS Code may result in ship operators avoiding that port in an effort to avoid experiencingdelays.

23 M Siko ‘South Africa’s Maritime Interests and Responsibilities’ (1996) at 5 African Security Review.

24C Forrest ‘The Balancing of Maritime Interests in the Southern African Oceans in Light of the New International Maritime Security Regime’ (2008) 41 (1) The Comparative and International Law Journal of Southern Africa at 6.

25 ‘Africa’s ports vital for world trade’ (2015) available at www.itonline.co.za (accessed on 13 April 2015).

26Q van der Merwe ‘ISPS Code- Maritime Security’ (2003) available: http://ports.co.za/legalnews/article_2003_08_15_1144.html (accessed on 18 February 2015).

27            N        Karigithu        ‘Port        Security        –        The        ISPS        Code’        (2008)        available   at

www.pmaesa.org/media/…/Kenya_Maritime_Authority_Djibouti_2008atSlide23,(accessedon04April2015).

28Ibid.

The ISPS Code has been implemented in South Africa through the Merchant Shipping (Maritime Security) Regulations, 2004, which is provided for in the Merchant Shipping Act

57 of 1951.²⁹ The National Department of Transport is the selected custodian for implementing the ISPS Code as per the National Ports Act 12 of 2005.³⁰

The Department of Transport as custodian, developed methods to encourage maritime transport and as such, allocated the operational aspects of maritime transport responsibilities to various government agencies such as the South African Maritime Safety Authority (SAMSA), Transnet National Ports Authority (TNPA), Transnet Port Terminal (TPT) and the South African Ports Regulator.³¹

1.6              Status of Commercial Ports inSA

Transnet National Ports Authority is in terms of section 3(1) of the National Ports Act, 2005 (Act No. 12 of 2005), a port authority which owns, manages, controls and administers all ports within the Republic to ensure their efficient and economic functioning. South Africa has eight commercial ports that are all managed by TNPA. Maritime security plans are in place at these ports and implemented by the relevant port facilities and service providers.³² The  TNPA succeeded in certifying South Africa’s eight major ports as compliant with the ISPS Code at a cost of over R200million.³³

South Africa’s eight main commercial ports are:

• RichardsBay
• Durban
• EastLondon
• PortElizabeth
• MosselBay
• CapeTown
• Saldanha Bay
• Ngqura

29 Forrest op cit n 24 at 11.

30Transnet National Port Authority op cit n 14.

31Draft South African Maritime Transport Policy (2008).

32Transnet National Ports Authority Presentation op cit n 14 at slide 6.

33Forrest op cit n 24.

South Africa acknowledges that neglecting maritime security can result in a loss of economic prospects as well as grave economic threats,³⁴so it is making a concerted effort in ensuring that it complies with international standards, as well as ensuring that all role-players have a common understanding on the implementation of such regulations. This is evident in a number of documents/notices that are in place to ensure compliance as well as an understanding of the ISPS Code and other relevant International Maritime Security Codes and Regulations:

• TNPA has issued an ISPS Vessel Clearance Procedure, Policy Number: SMP 3/2010 with the objective of ensuring that all the ports falling within the jurisdiction of the TNPA adhere to the same procedures when dealing with maritime security regulated vessels intending to call in any of these ports. (See Annexure1).
• SAMSA Marine Notice 12 of 2008, the Merchant Shipping (Maritime Security) Regulations, 2004 provides guidance to the maritime industry on the application of the Merchant Shipping (Maritime Security) Regulations, 2004 and the ISPS Code (See Annexure 2). Specific guidance is provided on various maritime security related mattersincluding:
  • Certification of South AfricanShips
  • Security Level in South African TerritorialWaters
  • PortSecurity
• SAMSA Marine Notice No. 20 of 2014; Unlawful Interference with Maritime Transport – Stowaways, SOLAS Chapter XI-2 Maritime Security (See Annexure 3). This notice informs all ship owners, masters and agents on maritime security regulations related to thefollowing:
  • SOLAS Chapter XI-2: Special Measures to Enhance MaritimeSecurity.
  • ISPS Code, Part B, item 8: Ship SecurityAssessment
  • ISPS Code, Part B, item 9: Ship SecurityPlan
• SAMSA Marine Notice 5 of 2015, Procedures to be followed for Bulk Cargo Shipment which are not listed in the International Maritime Solid Bulk CargoesCode.

34JPB Coelho ‘African Approaches to Maritime Security: Southern Africa’ (2013) 12 FES Peace and Security at 5.

This notice clears the confusion within the shipping industry on the statutory procedures of compliance for the shipment of solid bulk cargoes which are not listed in the International Maritime Solid Bulk Cargoes Code (Code published by the IMO) (See Annexure4).

1.7              Conclusion

The development of the ISPS Code has resulted in an international consensus on the methodology of securing the maritime environment; this methodology is that of compliance with the regulation of the ISPS Code. In addition, market forces and economic factors will also play a role in ensuring compliance with the ISPS Code.³⁵ With the increasing number of contracting states to the SOLAS, it is inevitable that these new security measures, as part of the ISPS Code will soon be embodied in most of the maritime communities’ national legislations, as all those involved in the maritime industry strive to protect trade at sea and be recognised as complying with international conventions.

South Africa is at an advanced stage of implementation and compliance with the ISPS Code as it has already created its domestic legislation. The Merchant Shipping Regulations 2004 embodies the critical provisions of the ISPS Code and more importantly, all of South Africa’s commercial ports are compliant to the provisions of the ISPS Code. Furthermore, South Africa’s participation in international forums, reaffirms its intention of ensuring that its levels of maritime security compliance standards are of an international level and this is maintained. South Africa actively participates in various forums focusing on the enhancement of maritime security, such as the International Labour Organisation (ILO), Abuja Memorandum of Understanding on Port State Control, Southern African Transport Co-ordinating Committee (SATCC), International Maritime Organization (IMO) and the Indian Ocean Memorandum of Understanding (IOMOU) on Port State Control.³⁶

36Draft South African Maritime Transport Policy (2008) Section 1 at 7.35 International Maritime Organization IMO: ‘ISPS Code and Maritime Security’ available at www.imo.org/Newsroom/mainframe.asp?topic_id=897(accessed on 26 April 2015).

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