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LEGAL CHALLENGES IN MARITIME SECURITY
HEIDELBERG PAPERS
Legal Challenges in Maritime Security is part of a series of publications on
oceans law and policy associated with the Center for Oceans Law and Policy,
University of Virginia School of Law. This volume is based on presentations
made May 24-26, 2007 at the Center’s 31st Annual Conference which was
held in Heidelberg, Germany, and co-hosted with the Max Planck Institute
for Comparative Public Law and International Law (Max-Planck-Institut für
ausländisches öffentliches Recht und Völkerrecht) and the Marine Law and
Ocean Policy Centre at the National University of Ireland, Galway.
CENTER FOR OCEANS LAW AND POLICY
LEGAL CHALLENGES IN
MARITIME SECURITY
Edited by
Myron H. Nordquist, Rüdiger Wolfrum,
John Norton Moore and Ronán Long
LEIDEN • BOSTON
2008
This book is printed on acid-free paper.
ISBN 978 90 04 16427 7
Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV
incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff
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Printed in the Netherlands
PREFACE
The 31st Annual Conference sponsored by the Center for Oceans Law
and Policy, University of Virginia School of Law was held May 24-26, 2007 in
Heidelberg, Germany. The other co-sponsors of the Conference were the Marine
Law and Ocean Policy Center, National University of Ireland, Galway and the
Max Planck Institute for Comparative Public Law and International Law,
University of Heidelberg that also hosted the gathering.
Five of the six panels at the Conference convened in the modern meeting
facilities at the Max Planck Institute for Comparative Public Law and
International Law. The last panel on Saturday, however, was held in the
magnificent Great Hall of the medieval University of Heidelberg renowned as an
intellectual center by the 14th Century. All participants were then treated to a
luncheon and tour of the Schwetzingen Castle and its beautiful park. A
memorable reception and gala dinner took place in the main ballroom
overlooking the inner courtyard of the Heidelberg Castle (the story book setting
for the “Student Prince”) erected at the end of the 13th century.
The topic of “Legal Challenges in Maritime Security” was conceived by
Professor Rüdiger Wolfrum who was instrumental in developing the agenda and
in selecting topics and speakers. He was joined in this effort by Dr. Ronán Long
of the Irish Marine Law and Policy Center and by Professor Myron Nordquist of
the Virginia Center for Oceans Law and Policy.
This volume contains not only the written papers presented at the
Heidelberg Conference but also two highly relevant distinguished speaker
lectures recently sponsored by the Virginia Center for Oceans Law and Policy.
The first was based on the Twenty Eighth annual Doherty Lecture on Ocean
Policy that Professor Wolfrum delivered on April 13, 2006 at the Cosmos Club
in Washington, DC. His address, which he updated for this book, is entitled
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Preface
“Fighting Terrorism at Sea: Options and Limitations under International Law.”
As his table of contents indicates, Professor Wolfrum’s lecture is a tour de force
covering the numerous unresolved international law issues that arise in fighting
terrorism on the world’s oceans. The second paper was contributed by Judge
Helmut Tuerk of the International Tribunal for the Law of the Sea (ITLOS)
based on his experience in representing Austria at many negotiations and
meetings. The theme of “Combating Terrorism at Sea: The Suppression of
Unlawful Acts Against the Safety of Maritime Navigation” was covered during
Judge Tuerk’s lecture at the Center for Oceans Law and Policy, University of
Virginia School of Law on October 30, 2007 which was sponsored by the
Alexander S. Onassis Public Benefit Foundation. In his paper, Judge Tuerk
specifically focuses on the implications of the 2005 amendments to the 1988
Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation (SUA Convention).
The next section of this book contains the keynote addresses given at the
Heidelberg Conference. Practical thoughts on the topic of “National and
International Approaches to Maritime Security” were offered by Rear Admiral
Gottfried A.W. Hoch, Deputy Commander in Chief of the German Fleet. As the
opening keynote speaker on Panel I, Admiral Hoch emphasized Germany’s
national outlook. An outline of the German Federal Ministry of Transport views
on “Legal Challenges in Maritime Security” was presented during lunch by
Rudiger Clauß which is followed by an abbreviated edited transcript of questions
and answers after his talk. The last keynote address was given at lunch the next
day by the Head of the Legal Department and Legal Adviser to Germany’s
Foreign Office, Georg Witschel. Director Witschel’s focus was on the broader
international scene, including halting the proliferation of weapons of mass
destruction. He reviews developments in the International Maritime Organization
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Preface
(IMO) and the United Nations Security Council concluding that treaty
instruments are the most appropriate approach for achieving global maritime
security. An edited transcript is included of the lively discussion that followed
Director Witschel’s address.
Professor Wolff Heintschel von Heinnegg and Judge Tullio Treves from
ITLOS led the commentaries on Admiral Hoch’s opening address for Panel I.
Indeed, Professor Heintschel von Heinnegg’s remarks were transposed into a
thoughtful written paper on the topic “Security at Sea: Legal Restraints or Lack
of Political Will?” His forthright outlook is succinctly captured in this quote:
“Thus, the law is being abused as a cheap excuse for passivity while, in reality, it
is a lack of political will and courage that prevents the necessary steps from
being taken.” The edited transcript of the question and answer period during
Panel I appear at the end of Panel I.
Panel II was devoted to the theme of “Cargo, Port and Supply Chain
Security” with Professor Wolfrum serving as Panel Moderator. The next steps in
maritime and port security are outlined in the abstract in the text and
accompanying PowerPoint presentation in the CD provided by Rear Admiral
William Baumgartner, the Head active duty legal officer for the United States
Coast Guard. An ocean carriers’ perspective on maritime security was given by
C. Thomas Burke, Senior Advisor to “K” Line America. Professor Craig H.
Allen, Stockton Professor at the US Naval War College then submitted a
comprehensive written paper on “The International Supply Chain Security
Regime and the Role of Competent International Organizations”. Among the
many important points that Professor Allen makes is that “…a shared interest in
supply chain security does not necessarily lead to shared views on the level of
security needed or how best to reach the desired levels.” Choosing the correct
institutional component for implementation is seen as vital. A number of other
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salient points are reflected in the edited question and answer section in the book
on Panel II.
At the request of the organizers, Commander James Kraska of the US
Joint Chiefs of Staff gave a PowerPoint presentation (included in the
accompanying CD) on the official US rationale for the Iraq intervention. The
edited question and answer period on this presentation makes particularly
thought-provoking reading.
Admiral (Ret.) An Byoung-Tae from South Korea moderated Panel III
on “International Maritime Security Needs and Initiatives”. Captain (USN
retired) J. Ashley Roach, US State Department, provided a fulsome update on the
Proliferation Security Initiative (PSI) and the 2005 Protocol to the SUA
Convention. Captain Roach also describes the US approach to maritime law
enforcement and forecasts an opportunity in 2008 for advancing international
maritime security needs and initiatives. The second speaker on Panel III was
Rear Admiral Cem Gürdeniz who addressed himself to the maritime security
needs and initiatives from a Turkish perspective. The Admiral chose to provide
his abstract and PowerPoint presentation for this book.
The Legal Adviser to the foreign ministry of Iceland, Tomas H. Heidar,
moderated Panel IV on the issue of piracy. The first speaker, Commander James
Kraska, covered US piracy policy as developed in the recently formulated
National Strategy for Maritime Security and the IMO. He outlined seven action
items to implement the new policy which will serve as a focus for enhancing
interagency coordination and for international outreach. The second speaker was
Dr. Samuel Pyeatt Menefee, a long time associate of the Virginia Center, who
provided an historical overview of piracy in the first decade of the 21st Century.
The third presentation was by Professor Alexander S. Skaridov from the Russian
State Admiral Makarov Maritime Academy on the twin topics of the lack of an
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