Lloyd's Maritime and Commercial Law Quarterly
Potential legal ramifications of the International Ship and Port Facility Security (ISPS) Code on Maritime Law
Bariş Soyer * and Richard Williams **
The main response of the shipping sector to the tragic events of 11 September 2001 was the development of the ISPS Code, a regulatory framework designed to detect and eliminate security threats affecting ships and port facilities used in international trade, which came into force on 1 July 2004. Despite carrying notions of public law, it is inevitable that the Code will change the way in which commerce is conducted simply because of the fact that it imposes several obligations on leading players in international trade. The main objective of this article is to consider potential implications of the ISPS Code on certain aspects of maritime law. The authors’ intention is to analyse the impact of ISPS-related contractual clauses, which have already been developed by the market, and to make predictions as to how the Code might affect the existing legal rules and principles in the years to come.
I. BACKGROUND TO THE ISPS CODE
The security risk faced by the maritime domain is not a recent phenomenon. The vulnerability inherent in the operational dynamics of the maritime industry has made the sector a potential target for criminals1
and terrorists2
for many years. Following the terrorist attack on the World Trade Centre in New York on 11 September 2001, the maritime industry, like others, has put the security issue at the top of its agenda. Just over a year later, the fast-boat suicide attack on the French-flagged VLCC Limburg
in October 2002 was a timely reminder of the magnitude of the security threat facing the maritime industry in the new millennium.
The United States (US) was the first country to take unilateral action designed to protect the maritime industry against terrorist acts and the use of ships as implements of such attacks. To this end, a wide range of security initiatives were adopted by the US
* Senior Lecturer in Law, Member of the Institute of International Shipping and Trade Law, University of Wales, Swansea
** Solicitor, Visiting Professor of Law, Member of the Institute of International Shipping and Trade Law, University of Wales, Swansea
1. Currently piracy is a serious problem in certain parts of the world, such as South East Asia, the Indian sub-continent, Africa, the Red Sea, South and Central America and the Caribbean Waters.
2. The hijacking of the Italian cruise ship Achille Lauro
in October 1985 by four heavily armed terrorists, who demanded the release of 50 Palestinian prisoners kept by Israeli authorities, is an example demonstrating the magnitude of the potential terrorist threat in the shipping sector.
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