The legal regime of port security : the position in Nigeria and Malaysia

Abstract

By the 1923 Convention and Statute on International Maritime Ports, foreign flagged ships have the right to navigate waters and enter port states but the port states enjoy the power to set conditions for the accessibility of its ports. The issue of access to ports of other states by foreign flagged vessels has been a subject of controversy. Although, the right of access is usually granted by treaty between states. A more accepted view is that the states are entitled to prescribe and enforce circumstances for port entry. This research investigates the general principles of international law and the availability of the Nigerian and Malaysian legal regulations concerning the right of foreign ships access to their ports. The research was carried out through quantitative and qualitative research methodologies as data were obtained from existing literature and the scheduled interviews, representing the primary and secondary sources. At the end of this research, it was discovered that the international instruments which granted right of access to foreign flagged vessels is ineffective because port states grant access to foreign vessels that meet their conditions. However, Nigeria and Malaysia as port states lack specific laws stipulating conditions for their right to deny the right of access to ships. A responsible and responsive nation monitors the movement of people, goods, substances, etc through its ports, airports and road to forestall ingress of substances that can disturb peace and order of its territory. In order to achieve this objective, states have joined the committee of nations and have ratified and domesticated conventions to fight unlawful ingress or importation of arms. An example of the convention so ratified is the 1923 Convention and Statute on International Regime of Maritime Ports which addresses the issue of access to port states. TheInternational Maritime Organisation (IMO) also addressed the issue of maritime security under the umbrella of its Maritime Safety Committee since 1980s. Despite the ratification of the IMO conventions in Nigeria and Malaysia, the problems of importation of arms and unlawful and deliberate attack still persist at ports and seas thereby threatening the economic fortune, peace, good order and security of the nations. Indeed, the rate of trans-boundary maritime security threats confronting Nigeria today raises legal issues, starting with the most fundamental question as to what law applies, inefficiency of maritime security enforcement agencies, corruption which paves ways for non-implementation of the legal framework, privatisation of maritime security surveillance to cronies to mention but a few. This research is significant because it identifies and argues that states’ responsibility is more than ratifying or incorporating international conventions into national law, hence implementation of the legal regulations on access to ports of foreign flagged vessels by port states will be a strong panacea to combating the perpetrators of trans-boundary maritime crimes, as after all the perpetrators of maritime crimes usually find their ways through the ports. The privileges of the sea which culminated into ports should be a blessing and not a curse.