This document is a summary of maritime security developments. It is
provided for general information purposes only, is not legal advice and
does not constitute the offering of legal consultation services. It should
not be used as a primary legal resource.
rules. Second, Enforcement Jurisdiction, or the
The Corbett Centre for Maritime Policy Studies
Defence Studies Department
Joint Services Command and Staff College
Shrivenham, Swindon SN6 8LA
Phone Number: 01793 788195
Email: [email protected]
power to apply rules, monitor compliance, conduct
inspections, and make arrests. Third, there is
Adjudicative Jurisdiction; this is the power to
undertake court proceedings after enforcement.
State Jurisdiction over Privately Contracted
Armed Security Personnel at Sea
These three types of jurisdiction apply to states and
can fall into both Territorial and extra-territorial
By Simon O. Williams, BA, LLM
jurisdiction. Territory refers to the domain over
which
December 2014
a
state
maintains
power
(generally
physical/political borders). To act outside those
Various manifestations of state jurisdiction can be
limits and exercise extra-territorial jurisdiction, an
rendered from the United Nations Convention on
actor needs justification, which is based on the
the Law of the Sea (UNCLOS) and international
following principles:
law broadly.
UNCLOS
is
often
regarded
a
framework
convention; it sets up institutions, balances rights,
Active Personality / Nationality (i.e. flag state
jurisdiction, wherever one is, subject to laws)
-
Universality (i.e. universal jurisdiction over
obligations, and interests of states in different
piracy to protect the common good from
capacities with interests of the international
dangers against all)
community. UNCLOS provides specific regimes
-
Treaty, whatever rationale.
which are fundamental to maritime security,
namely the regime of consecutive maritime zones
As
and the jurisdiction trinity of flag, coastal, and port
concurrent jurisdiction exists. For example, vessels
state control. In fact, UNCLOS is the only
have nationality of one state, fishing agreement of
international
another state, crew from five states, subject to
convention
which
stipulates
a
framework for state jurisdiction in maritime
the
aforementioned
principles
overlap,
international treaties, etc.)
spaces.
In the maritime, specifically private maritime
Three main types of jurisdiction activities exist,
security context, six or more states may have
combined with three categories of maritime states
jurisdiction
which can have jurisdiction. First there is
activities at any given time; the flag state of the
Prescriptive Jurisdiction, or the power to make
merchant ship, the state where the shipping
www.tactique.org
[email protected]
over
private
Page 1 of 5
maritime
security
This document is a summary of maritime security developments. It is
provided for general information purposes only, is not legal advice and
does not constitute the offering of legal consultation services. It should
not be used as a primary legal resource.
company is registered, the home state or states of
registration, effective jurisdiction and control over
the merchant crew, the state where the private
vessels including inspection, detention, and arrest
security company is registered, the home states of
as necessary, as well as ensuring vessel conformity
the individual security guards, and the coastal state
to generally accepted international rules and
whose waters they transit or ports they enter. Thus
standards (GAIRS).
oversight of private maritime security operations
becomes confusing as state jurisdiction is unclear
or blurred, and occasionally the states involved
In the context of flag states, GAIRS are the
mandatory minimum standards, and flag states can,
at will, establish more stringent requirements
may tiff to avoid responsibility and jurisdiction.
aboard their vessels. In the case of maritime
The UNCLOS maritime zone system channels
security, many states can and do establish stricter
three types of maritime states: Coastal States, Port
measures for vetting, employing, operating, and
States, and Flag States.
reporting of Privately Contracted Armed Security
Personnel (PCASP), as well as the carriage of
Flag State Jurisdiction
weapons, than is mandated by the IMO or
Flag State refers to the country where a vessel is
registered.
This
country
has
extra-territorial
jurisdiction over its vessels sailing anywhere in the
world by virtue of the nationality principle. Every
state has the right to sail ships under its flag and
thus
participate
However,
this
in
international
right
comes
navigation.
with
certain
responsibilities. Flag states are responsible for
enforcing international obligations everywhere and
exclusively on high seas over their vessels. This is
derived from Article 94 of UNCLOS which
stipulates that “every state shall effectively
exercise
its
jurisdiction
and
control
in
administrative, technical, and social matters over
ships flying its flag.” Flag State Jurisdiction
typically
includes
management
www.tactique.org
of
vessel
recommended by the international community.
Flag state maritime security regulations, however,
generally only cover issues such as the types of
weapon systems that can be brought onboard by
PCASP, how many guards can be embarked,
certification
requirements
and
background
credentials for embarked PCASP, and in some
circumstances application procedures to gain Flag
State approval for taking a security detail onboard.
However, these flag-state restrictions do not
address other pertinent issues such as embark and
disembark
procedures
for
PCASP,
which
frequently take place in other countries beside the
Flag State, Rules for the Use of Force, oversight
and reporting protocols, and code of conduct.
Moreover for many Flag States, a licensing system
[email protected]
Page 2 of 5
This document is a summary of maritime security developments. It is
provided for general information purposes only, is not legal advice and
does not constitute the offering of legal consultation services. It should
not be used as a primary legal resource.
for PCASP or anti-piracy teams is non-existent.
The flag state is also the only state, in addition to
Effective jurisdiction, control, and enforcement of
the state where an individual is a national, which
Flag State regulations upon PCASP is frequently
can institute proceedings against a person who is
impossible because operations often take place
alleged to have conducted a violation at sea. This
vast distances away from the ship’s country of
is according to Article 97 (1) of UNCLOS. This
registration and shielded from the eyes of
Article was created for general investigation and
observers. As many vessels are registered in open
prosecution for duty misconduct aboard a vessel,
registries or flag of convenience states which
such as causing a collision. However, it can
maintain little tangible oversight over their vessels,
arguably be relevant in the case of PCASP
verification,
inclusive of activities to mitigate a potential pirate
let
alone
inspection,
is
near
impossible.
or terrorist attack, loss of life, or any firearms
discharge, perhaps even resulting in the wrongful
This is best depicted in the flag of convenience and
open
registry
complicates
system
jurisdiction,
which
exponentially
accountability,
and
oversight. Ship-owners can simply change vessel
registration from one open registry to another,
which changes the nationality (and therefore Flag
death of a third party. On the other hand, it could
exclude any deliberate use of force on high seas as
collision implies accidental incident, and even
further can be argued that a death by shooting off
the vessel does not necessarily interfere with
navigation.
State Jurisdiction) of the vessel in order to place it
under a jurisdiction with greater or lesser leniency
Nonetheless, as Italian Prime Minister, H.E. Mario
in accountability and oversight for PCASP
Monti, stated to the UN General Assembly, 26
management depending on their wishes. For
September 2012, “international efforts to protect
example, a ship-owner with a tanker flagged in
sea lanes and fight piracy can be effective only if
Japan, a country with arguably the most stringent
all nations cooperate in good faith, according to
legislation on this matter, who desires more
the established rules of the international customary
flexibility, can simply reflag to a state that is not
law
willing or able to exercise jurisdiction and control,
protecting the jurisdiction of the flag state in
in order to ease regulations aboard his/her vessel.
international waters.”
and
UN
conventions,
including
those
This is similarly done to dodge taxes, fees, and
crew treatment, as well as avoid flag state imposed
pollution control measures.
Flag states, are required to adopt laws to ensure
international regulations are applied and enforced
upon vessels which fly its flag. Flag states are to
www.tactique.org
[email protected]
Page 3 of 5
This document is a summary of maritime security developments. It is
provided for general information purposes only, is not legal advice and
does not constitute the offering of legal consultation services. It should
not be used as a primary legal resource.
take appropriate measures to ensure that vessels
by coastal states toward vessels in their maritime
flying their flag are prohibited from sailing unless
zones, specifically in their territorial sea.
they can proceed to sea in compliance with
GAIRS. Furthermore, they are tasked under
customary international law and directly under
UNCLOS
with
investigating
and
punishing
violations aboard their vessels irrespective of
UNCLOS stipulates the measures a coastal state
can take to ensure peace and good-order in their
territorial sea. Carriage of arms and PCASP in fire
positions can arguably be threatening to peace and
good-order, and may also run contrary to customs
where the infraction took place.
regimes regarding importation of arms, should the
Flag states may, however, delegate some authority
PCASP have intent to embark or disembark with
to classification societies to inspect vessels and
weapons within/from the coastal state’s ports (sans
issue certificates to vessel/crew, or similarly to
licenses). Such a provision provides the coastal
port or other states to inspect their vessels when
state necessary latitude to take measures to
geographically displaced. This is crucial because
investigate or prevent such an occurrence.
the flag state may be very remote from its vessel,
UNCLOS is careful to prevent creeping coastal
whereas a coastal (or even port) state may be
state jurisdiction over violations which have
closer, and the vessel will eventually make call at
occurred prior to the ship entering the territorial
port, where the port state can make inspection on
sea from a foreign port, granted it is in transit and
behalf of the flag state.
not entering the coastal state’s internal waters or
ports.
Coastal State Jurisdiction
In order for a coastal state to enforce further
There is no prohibition of concurrent jurisdiction
under UNCLOS, and vessels therefore can be
subject to the jurisdiction of states besides the flag
state in certain circumstances, such as entering
their maritime zones and ports.
control beyond the territorial sea, into the
Exclusive Economic Zone (EEZ), they must
contact the subject vessel’s flag state to fulfill flag
state obligations, or develop and exercise port state
jurisdiction. Eventually, the ship will have to call
at a port. National legislation criminalizing
The prescriptive power of coastal states can be
seen as a way to control the condition of ships
navigating lawfully in their territorial seas.
UNCLOS lays down rules for enforcement powers
www.tactique.org
transport of firearms, PCASP violations, or
agreements with other port states upholding related
legislation can then provide port state jurisdiction
to enforce compliance as described below.
[email protected]
Page 4 of 5
This document is a summary of maritime security developments. It is
provided for general information purposes only, is not legal advice and
does not constitute the offering of legal consultation services. It should
not be used as a primary legal resource.
to inspect and control vessels, by undertaking
Port State Jurisdiction
investigations or verification of vessels calling at
Port state jurisdiction is not covered by UNCLOS
directly, but UNCLOS provisions confirm this
practice, indicative of residual jurisdiction in
relation to port-state-control. This is especially
important in the private maritime security context.
their port to ensure complicity with international
obligations or standards. In event of transgressions,
violators can be forced to pay reparations to the
port state, refit, reform, arrest, or even blacklist
their vessels.
If understanding flag state jurisdiction on the high
seas and coastal state jurisdiction in the territorial
Generally, the port state control arrangement is the
sea are both challenging, then what happens when
epitome
a ship-borne security team heads to port? A myriad
violators irrespective of a vessel’s flag as it will
of national rules and regulations then come into
eventually need to make berth to unload cargo.
force regarding the disembarkation of personnel,
Port state control violation inspections are most
equipment (especially weapons), etc., creating
frequently targeted for pollution matters, however,
even more mayhem in the legal machinery.
there have been numerous investigations and
for
investigating
and
apprehending
vessel arrests in recent years due the proliferation
Although each port state has its individual traits
with regard to legislation governing the carriage or
off/loading of weapons in their ports, there are a
number of issues remaining common to all, most
notably
the
prevention
of
undocumented
immigration and proliferation of small arms and
light weapons (SALW) that could result from
of small arms for defensive purposes and armed
maritime security teams on-board in violation of
the port-state’s domestic legislation. This is
indicative of port-state-control crack-downs on
maritime security operations, to push for better
standards, compliance, or keep unwanted PCASP
activities in their maritime zones at bay.
disembarkation of PCASP in their ports.
This assessment was produced by Simon O. Williams, BA,
In an effort to enhance broader security issues,
LLM from Tactique Ltd. Team Tactique remains available for
especially good governance, anti-trafficking, anti-
contact at [email protected] should there be queries
corruption, and counter- SALW proliferation, Port
regarding this subject or related compliance matters.
States take measures to prevent unwanted vessels,
including those with armed security teams from
entering and disembarking at their ports. Port State
Control compliments the obligation of flag states
www.tactique.org
[email protected]
Page 5 of 5