1.2 PMSC Anti-piracy Services: The Controversy
Surrounding Their Engagement
PMSCs engaged in providing anti-piracy measures possess a transnational and
institutionalised nature, distinct from the general private security industry on
land.
27 Unlike general privatisation of security on land, the engagement of PMSCs
by merchant vessels for protection against the threat of piracy and armed robbery at
sea more often than not triggers the laws of a plurality of states with an interest in the
vessel.
28 Commercial related operations at sea occur within the unique nature of
ocean-based territories to which the United Nations Convention on the Law of the
Sea (UNCLOS) ascribes certain jurisdictional rights. The flag state exercises jurisdiction over, and is responsible for, the protection of a vessel bearing its nationality.
29 This jurisdiction extends to regulating issues relating to the use of privately
contracted armed security personnel (PCASPs) on board the vessel.
30 The same
vessel may be subject to the laws of individual countries in the specific territorial and
contiguous zone in which they operate.
31 In some cases, the laws of a third state,
such as the country of incorporation of the PMSC, the nationality of the PMSC
employee, the place of incorporation of the shipping company and the home state
(s) of the merchant crew may also be relevant in the case of a dispute or a violation of
rights.
32
While the demand for private maritime security services is not a purely modern
phenomenon,
33 they have received heightened global attention since their involvement as a market response to curbing violence at sea.
34 As in the case of privatised
27 Liss (2015), p. 87. For instance, the guidelines for applying risk-based quality management
systems to PMSCs (ISO 28007) provide for sector-specific recommendations, which may be the
basis for certification. There are expectations from relevant international organisations, states, and
even clients that security personnel of companies acquires some form of security certification
specific to the maritime subsector.
28 Parsons (2010), p. 178.
29 UNCLOS Article 94; Liss (2013), p. 201; Petrig (2013), p. 676; Liss (2015), p. 89.
30 M/V Saiga (No.2) (Saint Vincent and the Grenadines v. Guinea) merits (1999) 4 ITLOS Rep
132, 105. Although reference was made to persons generally, a broad interpretation of persons
would include PMSC personnel present on the vessel. See also Barnes (2015), p. 314.
31 UNCLOS Article 2, 21, 25 and 33.
32 Petrig (2013), p. 677.
33 Apart from the seventeenth-century privateers policing the high seas under the authority of
European governments, the subsequent establishment of the International Ship and Port Security
(ISPS) Code provided room for the expansion of PMSC services. See Harrelson (2010),
pp. 296–297 (asserting that use of PMSC within the maritime domain is not a new phenomenon);
Cullen (2012), pp. 26–28; Liss (2013), p. 198; Liss (2015), p. 85.
34 Various categorization of the types of services PMSCs offer exists. Liss (2015), pp. 87–88.
Contrast with the categorization in Struwe (2012), pp. 590–595. Struwe categorises the services into
four main groups—security intelligence, security services, crisis response and intervention on land.
This chapter adopts Liss’s options of classification-active and passive services or land and sea-based
services. Apart from the simplicity, Liss’ categorization options offer a more encompassing
180
O. A. Eruaga
Surrounding Their Engagement
PMSCs engaged in providing anti-piracy measures possess a transnational and
institutionalised nature, distinct from the general private security industry on
land.
27 Unlike general privatisation of security on land, the engagement of PMSCs
by merchant vessels for protection against the threat of piracy and armed robbery at
sea more often than not triggers the laws of a plurality of states with an interest in the
vessel.
28 Commercial related operations at sea occur within the unique nature of
ocean-based territories to which the United Nations Convention on the Law of the
Sea (UNCLOS) ascribes certain jurisdictional rights. The flag state exercises jurisdiction over, and is responsible for, the protection of a vessel bearing its nationality.
29 This jurisdiction extends to regulating issues relating to the use of privately
contracted armed security personnel (PCASPs) on board the vessel.
30 The same
vessel may be subject to the laws of individual countries in the specific territorial and
contiguous zone in which they operate.
31 In some cases, the laws of a third state,
such as the country of incorporation of the PMSC, the nationality of the PMSC
employee, the place of incorporation of the shipping company and the home state
(s) of the merchant crew may also be relevant in the case of a dispute or a violation of
rights.
32
While the demand for private maritime security services is not a purely modern
phenomenon,
33 they have received heightened global attention since their involvement as a market response to curbing violence at sea.
34 As in the case of privatised
27 Liss (2015), p. 87. For instance, the guidelines for applying risk-based quality management
systems to PMSCs (ISO 28007) provide for sector-specific recommendations, which may be the
basis for certification. There are expectations from relevant international organisations, states, and
even clients that security personnel of companies acquires some form of security certification
specific to the maritime subsector.
28 Parsons (2010), p. 178.
29 UNCLOS Article 94; Liss (2013), p. 201; Petrig (2013), p. 676; Liss (2015), p. 89.
30 M/V Saiga (No.2) (Saint Vincent and the Grenadines v. Guinea) merits (1999) 4 ITLOS Rep
132, 105. Although reference was made to persons generally, a broad interpretation of persons
would include PMSC personnel present on the vessel. See also Barnes (2015), p. 314.
31 UNCLOS Article 2, 21, 25 and 33.
32 Petrig (2013), p. 677.
33 Apart from the seventeenth-century privateers policing the high seas under the authority of
European governments, the subsequent establishment of the International Ship and Port Security
(ISPS) Code provided room for the expansion of PMSC services. See Harrelson (2010),
pp. 296–297 (asserting that use of PMSC within the maritime domain is not a new phenomenon);
Cullen (2012), pp. 26–28; Liss (2013), p. 198; Liss (2015), p. 85.
34 Various categorization of the types of services PMSCs offer exists. Liss (2015), pp. 87–88.
Contrast with the categorization in Struwe (2012), pp. 590–595. Struwe categorises the services into
four main groups—security intelligence, security services, crisis response and intervention on land.
This chapter adopts Liss’s options of classification-active and passive services or land and sea-based
services. Apart from the simplicity, Liss’ categorization options offer a more encompassing
180
O. A. Eruaga