12-10-2022

In the last week of September, Europe was rocked by the leaks on the Nordstream 1 and 2 pipelines in the Baltic Sea (De Standaard 27/09/2022 1). These pipelines (until now particularly Nordstream 1) play a vital role in the gas supply of Germany and the European economy. The serious concern all over Europe about the incident, in which sabotage is suspected, only highlights the importance of these pipelines. As the pipeline was sabotaged after months of escalating tensions with Russia, the question arises to what extent other critical infrastructure is safe from such actions, and not only on a European scale but also in our own maritime front yard.

The Belgian part of the North Sea contains more and more infrastructure crucial to our economy and our energy supply. We think primarily of offshore wind farms, of course, but there is also a lot of crucial infrastructure (such as data cables) underneath the water surface that is vulnerable and worth protecting. Over the last years, suspicious activities were observed around such data cables by foreign powers, not only in our waters but also in those of neighbouring countries (Friesch Dagblad 4/10/2021²). This is more than concerning: on the one hand, there is the risk that a foreign power listens in on communications passing through these cables, but on the other hand, sabotage and interruption of communications cannot be ruled out either. The development of underwater drones makes it even more important, that in addition to security above water, we are also able to monitor below the surface. Infrastructure deployed for maritime security must also remain operational.

Currently, however, the legal framework for this task, contained in the Belgian Shipping Code, is inadequate. The current security framework so far only focuses on the Belgian ports.

However, this will change on 1 January 2023. On 14/07/2022, the Belgian Chamber of Representatives adopted a law amending the Belgian Shipping Code on maritime security. The main novelties in this law, as far as maritime security is concerned, include a further implementation and transposition of the ISPS Regulation and the European Port Security Directive; the expansion of the definition of "unauthorised action"; the inclusion in the security assessment of the risks of interference by foreign powers in the framework of public or private cooperation; standards on security; the establishment of a new electronic platform and, finally, the security of the Belgian part of the North Sea itself.

The provisions on security of the North Sea are inserted into the Shipping Code in art. 2.5.2.63 et seq. The legislator recognises that all fixed structures in North Sea are at risk, and according to this article they must be subject to a security assessment. This is carried out by the operator of the infrastructure as well as the Belgian Maritime Security Centre (Maritiem Informatie Kruispunt, MIK). Security assessments will be carried out at least every five years, to check whether there are changes in the situation that require adjustments. It is noteworthy that such security assessments, in line with already existing port security assessments, are co-authored by private parties, who naturally have an economic interest in a well-developed protection plan for their infrastructure.

Based on the security assessment, the National Authority for Maritime Security (Nationale Autoriteit voor Maritieme Beveiliging, NAMB) decides whether or not a security plan has to be issued, which is also valid for five years. As part of this plan, the NAMB may issue instructions that will be binding after confirmation by the Government.

In securing the North Sea, the so-called Belgian Mathematical Model for the North Sea (BMM) which is part of the Royal Belgian Institute of Natural Sciences will also play a role. The BMM aircraft that currently already conduct scientific and patrol flights over the sea will also be used to help achieve security in the North Sea. The Belgian Marine will also be given the explicit power to divert ships that threaten public security or for which there are well-founded suspicions that they are involved in espionage or sabotage, to a Belgian port for further investigations.

The fate that has befallen Nordstream should therefore be made considerably more difficult for the infrastructure in the Belgian North Sea from 2023 onwards, through a compulsory five-yearly thorough risk analysis and thorough monitoring by a large consortium of authorities. It remains to be seen, however, whether bold actions such as those that have occurred recently will not lead to additional European initiatives, which will mean that the new maritime safety law, which is due to come into force shortly, will have to be updated again.

1 Alles wijst op sabotage bij gasexplosies Baltische Zee, maar door wie? | De Standaard

² Russische onderzeeërs snuffelen rond in Noordzee: belangstelling voor datakabels is een 'potentiële dreiging', zegt ministerie van Defensie - Friesch Dagblad

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