Maritime security – implementing the ISPS Code

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Transportation Secretary Arthur Tugade issued Department Order (DO) 2017-008 last June 5, directing the Philippine Coast Guard (PCG) “to take over the security supervision of ports, and shipping, whether public or private, including the egress and ingress to all waterways.”

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The PCG was instructed to control movement of all vessels in seaports and harbors; designate security zones for maritime security purposes; enforce ports and ships identification system; regulate access to ports, vessels and waterfront facilities; inspect cargoes to prevent the transport of contrabands; and to set and enforce appropriate security levels in all ports in Mindanao, pursuant to the provisions of the International Ship and Port Facility Security (ISPS) Code.

DO 2017-008 supersedes Marina Advisory 2017-13 of May 25 issued by Administrator Marcial Amaro in response to President Rodrigo Duterte’s declaration placing all of Mindanao under martial law. The issuance of DO 2017-008 is in keeping with the mandate granted to the Secretary of Transportation by Executive Order 197 issued by President Benigno Aquino III on February 4, 2016 “Designating the Secretary of Transportation as the Authority Responsible for the Security of Sea Transport and Maritime Infrastructure in the Country, and for other Purposes.” A reading of EO 197 shows a clear intent to amend EO 311 issued on April 26, 2004 by President Gloria Arroyo “Designating the Office for Transport Security as the Singular Authority Responsible for the Security of the Transportation Systems of the Country, Expanding its Powers and Functions as an Attached Agency under Department of Transportation and Communications.”

Prior to the issuance of DO 2017-008, Marina and PPA has been given the task of implementing the ISPS Code. To remove ambiguity, the ISPS Code covers ships engaged in international voyages and ports that cater to these ships. The Code was formulated and adopted by the International Maritime Organization (IMO) soon after the New York Twin Towers terrorist attacks. Realizing the vulnerability of ships and port facilities, IMO put together guidelines that will help Member States detect and deter possible use of these maritime assets as destructive weapons or transporting terrorists or weapons. Ships and ports could also be direct targets in mounting an attack.

As in most multilateral maritime agreements, the ISPS Code provisions are not self-executory specially in regard to defining prohibited acts, allocation of accountability, and sanctions for non-compliance. Translating the Code into national regulations becomes even more important where government certification of compliance is required. Thus, President Arroyo issued EO 311 in 2004, which tasked the Office of Transportation Security (OTS) of ensuring the implementation of the ISPS Code and to formulate and develop a National Security Program for Sea Transport and Maritime Infrastructure.

There is nothing that prevents a Member State from adopting and implementing the provisions of the ISPS Code in domestic shipping. However, absent specific mention of applicability to domestic shipping, it is logical to construe that EO 311 and EO 197 when referring to ISPS Code speak of ships (Philippine-flagged and those registered in foreign jurisdiction) engaged in international voyages.

To date, there is no Marina Memorandum Circular or similar issuance to implement the ISPS Code in domestic shipping. While it can be argued that the ISPS Code provides the guidance for implementation, the provisions thereof need further amplification specially as the intention of the Code is to cover ships engaged in international voyages and the circumstances in the domestic trade may substantially differ in terms of fleet size, tonnage and types.

Nationwide application of DO 2017-008

Terror threats span the whole archipelago and ships that could be used to transport terrorists and weapons easily move around. If there is an attempt to spread fear and violence, it is sensible to assume that terrorists will target assets and infrastructures considered vulnerable. These include ships and port facilities, as seen on February 27, 2004, when an hour after Superferry 14 left Manila bound for Cagayan de Oro an explosion happened caused by a TNT bomb. The terror attack claimed ninety-four lives with twenty-four passengers still unaccounted for. It may serve to remind us that the protection of ships and port facilities is one of the primary objectives of the ISPS Code.

Philippine-flagged ships engaged in domestic trade may call on ports in Luzon and the Visayas where terrorists could embark or load weapons bound for Mindanao or vice versa. It is not a remote possibility for terrorists from Mindanao to travel to Luzon or the Visayas islands to sow violence. In these instances, the security of the ship would have been compromised.

Implementation of the ISPS Code in domestic shipping carries the presumption that all Philippine-flagged ships trading in domestic routes are operating under security level 1. If therefore ports in Mindanao are at security level 3, then there is need to change the security level on ships calling on such ports to the higher level. An increase in the security level of ships will mean that the additional security measures laid down in the Ship Security Plan shall be implemented.

It may help taking note that on May 11, 2016, OTS came up with a list of ISPS-compliant domestic trading ships totaling 335 while the non-compliant ships numbered 825, meaning there are more ships which do not comply with maritime security requirements. The lists were drawn up a year ago and hopefully, updated lists will show more ships shifting to the compliant roster.

Implement with caution

Per DO 2017-008 PCG has been assigned the task of setting the security level on ships and at port facilities. This means that depending on the level of security, ships and port facilities have to implement the measures as laid down in their respective ship security plan and port facility security plan. Putting up measures to control access to ships and ports and installing physical barriers, adequate lighting and communication facilities are but some of such measures which even in times when there is no threat of a terror attack, should be in place and regularly monitored by the concerned government agencies.

It is important to remember that the ISPS Code does not contemplate response to terrorist attacks. This is the reason why consultations must be conducted among concerned government agencies, including but not limited to those involved in law enforcement and armed services, trade, industry and tourism. A heightened alert level set on commercial and trade assets such as merchant ships and ports may impact on the operational efficiency of ships and ports, ship-port interface arrangements and ultimately on the country’s trade movements. Rather, implementing the ISPS Code requires focused attention for what it intends to achieve – to detect and deter access of terrorists to maritime assets and infrastructure.

Confronted with real issues of terrorism, government must review and assess the effectiveness of the current maritime security policies. We should take cue from the many cases of terror attacks on maritime assets not only to inflict the greatest harm and damage to people, and property, but also to immobilize States and governments.

Government should not remain complacent; citing adherence to the provisions of the ISPS Code is not enough. There is much that needs to be done to ensure it works.

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