The ISPS Code

The horrific images of the September 11, 2001 attack in the United States is often what comes into mind when we talk about terrorism.  It has shown that no state in the world is impervious to terrorism and that any mode of transportation can be used to carry out terrorism and can be facilitated anywhere.  The 9/11 attack and other incident in the maritime environment such as the hijacking of Achille Lauro prompted the International Maritime Organization (IMO) to moved swiftly to close the perceived security gaps in maritime security.  Several conventions have been crafted and signed and other countries have unilaterally introduced laws to protect their ports and ships such as the Maritime Transportation Security Act (MTSA) of 2002 in the United States.  But one international convention that touted to address maritime security concerns is the International Ship and Port Facility Security (ISPS) code.  At the wake of proliferation of terrorism attacks, it is the most important security initiative on a global context which mostly affects worldwide maritime industry and other connected industries.

The ISPS code implementation just like any other international conventions has its own obstacles to hurdle and this particular code was more susceptible to failure due to several factors including the hasty crafting and implementation, willingness of contracting government and shipping companies to implement it due to the cost associated including business and financial consequences on delays in transportation and route deviations.

The ISPS code, whatever flaws it may have, arguably improved the global maritime security environment.   At the outset, there are logical factors for some observers to predict that the ISPS code will fail to meet its objectives.  However, these factors dwindle in value when life and livelihood of a lot of people are at stake and the economic well-being of the whole world relies in the security of the seaborne trade. 

This paper will discuss several topics relating to the implementation of the ISPS code.  It shall begin with the discussion on the purpose or objectives of the code followed by explaining how the code achieve its objectives by implementing several security systems under its framework both for port facilities and ships under SOLAS, and lastly the obstacles that the code faced during the initial face of its implementation and success it achieved by presenting several data. 

The purpose of the Code

The purpose of the ISPS code is to secure vital infrastructures and facilities which includes ships and port against maritime security threats and take pre-emptive measure to prevent incidents such as terrorism or piracy or using these facilities especially the ships to carry out terrorist attacks.  It also aims to lessen vulnerability of such facilities and increase consciousness of the maritime world on the risk of maritime threats through cooperation among contracting governments, government agencies, local administrations and the shipping industry.  With the code, it enables government to declare threat levels depending on the level of security risks in the ships and port facilities through a standardized framework in evaluating security risks.

Realizing how different every port and ships there is in existence, the code does not prescribe a one size fits all policy. That is why, one of the most important provisions under the code is the assessment or evaluation prior determining the actual security requirements of ships or port facilities.  The framework also encourages information sharing among the contracting states and ships which can be a valuable tool in supressing or preventing illegal acts at sea.

Achieving the objectives

The ISPS code imposes the measure through a risk management perspective.  It does not impose out rightly security measures for ships and ports but it needs assessment first prior determining necessary security requirements.  The contracting government will be responsible for the assessment of their ships and port and must set minimum functioning security standards.  It is mainly divided in two parts, Part A which is compulsory while Part B are recommended measures.  The code shall be only applied to ships conducting international voyages with 500 gross tonnage and above and port facilities that serves these ships. 

      Under this code, there shall be three levels of security which can be established depending on the security risk.  The level of security starts with level 1 which sets out minimum level of security that should be maintained always while the level 2 is when there is an increase in the threat level but this can be only maintained in a limited time. Level 3 is when security breaches are probable or imminent and similarly it can only be maintained in a limited time.  Under the code contracting government is the only entity that can raise or lower threat levels in their respective domain. 

      Another feature of the code is the setting up of security officers to be delegated for security management of ships and port facilities.  For example, for shipping companies, there needs to be appointed a Company Security Officer (CSO) responsible for evaluation and ensure that a Ship Security Plan (SSP) is developed by the Ship Security Officer (SSO) which is also an appointed personality in each individual ship.  While in port facilities, similar appointment shall be made for a Port Facility Security Officer (PFSO) who will be responsible for the development and implementation of Port Facility Security Plan (PFSP).  However, the Assessment for the port facilities shall be carried out by the contracting government while the ships shall be issued an International Ship Security Certificate (ISSC) upon compliance of security requirements.  The code also requires training and drills for the personnel to ensure validity and compliance of the PFSP and SSP.

With these new requirements under the ISPS code, it is no doubt that implementing such requirements will improve the security of port facilities and ships. We can see that these scheme follows a proactive principle of addressing maritime security threats rather than being reactive to situations.  It will certainly help to raise the level of awareness of every people involve in maritime trade about security especially when it comes to terrorism, piracy, and other security threats.   

Obstacles and success of ISPS code

There were doubts during the implementation of the code after its introduction on July 1, 2004 due to several factors that seems to be obstacles to improve maritime security in the global environment.  One of these factors is the initial cost of complying to the measures which involved investment of both port facilities and ships in equipment and maintenance.  New equipment needs to be purchased such as security scanning machines, biometrics access, employing armed guards, computer softwares, and training. 

In a Malaysian study about the cost of complying to the ISPS code requirements, it was reported that major ports spent an average of RM 1.8 million while minor ports spent an average of RM 1.0 million.  While shipping companies in Malaysia have reportedly spent an average of RM 34, 982.05 for establishing SSO, SSA, and SSP as required by the code and an additional RM 18,664.20 for each ship added to comply with ISPS code.  Additionally, large investment has to be made for trainings which cost an average of RM 110,174.00, physical cost of RM 30,173.68, and RM14,743.14 for cost of consultancy for each shipping company. 

There were also concerns on the capacity of contracting governments to implement the code such as Pacific Island countries’ lacking human and financial resources to conduct PFSA and development of PFSP.  While there were also concerns on the enthusiasm of developing countries to implement the code since largely it is seen to cater for the interest of the United States and major Western Powers.  These developing countries would rather allocate their resources on more pressing issues at home such as economic development and social services than spending it to comply with the requirements of the code.

However, even with these doubts on the implementation of the code, an analysis of the port state controls databases of major regional maritime administrations and Memorandum of Understanding (MOUs) on Port State Controls (PSC) suggests that the code has been successfully implemented with such a short period of time.  The statistics of ships being detained on security grounds in relation to the ISPS code on the different maritime administration revealed that there is a widespread compliance in the code.  In the period from 1 July 2004 up to the 2^nd quarter of 2005, there has been only 259 ships detained due to security related deficiencies out of 2,511 detention due to different violations or representing only a 10.3% of overall detentions. 

Although the ISPS code, like any other international law, does not have enforcement mechanism and will rely solely on the flag states’ willingness to comply with it.  It has seen to be astoundingly accepted by most of the member states.  This is due to the fact, that the US and other major powers who has the largest stake in countering terrorism have used its influence and economic leverage to convince states to comply with the new code.  The United States and major Western Powers are undoubtedly one of the biggest importer and exporter in the global scale, and almost all countries in the world wants a slice of the potential market they can offer.  In 2016 alone, the US have imported $2.2 Trillion, suffice it to say it is the largest importer of products in the whole world.  This massive economy coupled with domestic measures against terrorism compelled other flag states to comply with the code.  The introduction of several laws and programs in the wake of 9/11 in the US, affected countries that regularly conducts seaborne trade in the United States.  The passing of the Maritime Trade Security Act (MTSA) of the US in 2002 which incorporated most compulsory and recommendatory provisions have given the US relevant agencies to compel other flag states to comply with the code or risk disallowing access to US port and lose considerable market.

Conclusion

            The ISPS code have successfully improved the maritime security in the global scale notwithstanding the obstacles it had faced in its implementation.  The security of the global maritime trade where most of the countries rely on their economic well-being is far more important than the cost of its implementation. 

            The purpose of the code which is mainly improving maritime security is achieved through establishment of a framework which is flexible enough to accommodate individual peculiarities of port facilities and ships of contracting states.  It also approaches security in a risk management perspective wherein determination of requirements can only be done through evaluation and assessment of the environment.  The establishment of ISPS code framework, such as the security assessment of ships and ports, the requirements it had laid out for the employment of CSO, SSO, and the development of PFSP and SSO had all contributed to the improvement of individual state’s awareness and security which in turn contributed to the overall improvement of global maritime security. 

The US, which is the main proponent of such measure, and other major western powers, although have seen to be exercising its economic power over smaller and developing states, should be credited for this success.   Smaller and other developing states may not share the same concerns with the US and major western powers when it comes to concerns of terrorism, however, the imposition of such measure through voluntary means from contracting government should bring more advantages to the overall security of the maritime industry.