Acts against the Safety of Maritime Navigation (SUA) and its Protocol
40 and the
International Convention for the Safety of Life at Sea (SOLAS), chapters V, and
XI-2.
41 These conventions are also important to privatisation of security. The UN
Firearms Protocol,
42 is also significant as the use of firearms for vessel protection is a
crucial, albeit, controversial aspect of the service provided by PMSCs. In addition to
these Conventions, the IMO has issued several guidelines to complement the
international security framework with respect to PMSC engagement.
2.1.1.1 UNCLOS
UNCLOS, as the overarching legal framework for the international governance of
the seas provides a stating point to consider the regulatory structure for PMSCs.
Notably, the Convention while providing clearly for government response, is silent
on the involvement of non-state actors in providing private services against security
threats.
43 This is essentially because the use of PMSC services such as PCASPs and
escort vessels carrying armed security is a post UNCLOS development.
44 However
the Convention remains very relevant to the threat response measures and activities
of PMSCs in vessel protection for two principal reasons.
45 First, the absence of
reference to private actors does not preclude the general principles of self defence, a
recognised philosophy of major world legal systems.
46 Persons on board a vessel
have a right to defend their person through proportionate response to mitigate a
threat. Additionally, as mentioned earlier, UNCLOS details the rights of states over
vessels within the various maritime zones. These provisions on the rights of states
contain significant aspects on engagement of PMSCs. For instance, a broad construction of flag state jurisdiction
47 implies specific regulation that the engagement
of PMSCS on board vessels is within the rights of the flag state.
48 While the right to
regulate is clear, how a flag state enforces the regulation of PMSCs remains a
challenge as most activities of the PMSCs take place at sea, away from the view
of the state.
40 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation
(SUA), signed on 10 March 1988 in Rome. Entered into force on 1 March 1992.
41 See Mukherjee and Mejia (2004), pp. 147–157; Mejia and Mukherjee (2006), p. 173.
42 United Nations Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their
Parts and Components and Ammunition (Firearms Protocol), Signed on 11 July 2001 in New York.
Entered into Force on 5 July 2004.
43 Kraska (2015), p. 179.
44 Ibid.
45 UNCLOS, Articles 21, 92, 94.
46 Kopel et al. (2007), pp. 129–130.
47 UNCLOS, Article 94(2); Barnes (2015), p. 314.
48 M/V Saiga (No.2) (Saint Vincent and the Grenadines v. Guinea) merits (1999) 4 ITLOS Rep
132, 105. References were made to persons generally because the ship is regarded as a unit for the
purpose of flag state exercising (protective) jurisdiction.
182
O. A. Eruaga
40 and the
International Convention for the Safety of Life at Sea (SOLAS), chapters V, and
XI-2.
41 These conventions are also important to privatisation of security. The UN
Firearms Protocol,
42 is also significant as the use of firearms for vessel protection is a
crucial, albeit, controversial aspect of the service provided by PMSCs. In addition to
these Conventions, the IMO has issued several guidelines to complement the
international security framework with respect to PMSC engagement.
2.1.1.1 UNCLOS
UNCLOS, as the overarching legal framework for the international governance of
the seas provides a stating point to consider the regulatory structure for PMSCs.
Notably, the Convention while providing clearly for government response, is silent
on the involvement of non-state actors in providing private services against security
threats.
43 This is essentially because the use of PMSC services such as PCASPs and
escort vessels carrying armed security is a post UNCLOS development.
44 However
the Convention remains very relevant to the threat response measures and activities
of PMSCs in vessel protection for two principal reasons.
45 First, the absence of
reference to private actors does not preclude the general principles of self defence, a
recognised philosophy of major world legal systems.
46 Persons on board a vessel
have a right to defend their person through proportionate response to mitigate a
threat. Additionally, as mentioned earlier, UNCLOS details the rights of states over
vessels within the various maritime zones. These provisions on the rights of states
contain significant aspects on engagement of PMSCs. For instance, a broad construction of flag state jurisdiction
47 implies specific regulation that the engagement
of PMSCS on board vessels is within the rights of the flag state.
48 While the right to
regulate is clear, how a flag state enforces the regulation of PMSCs remains a
challenge as most activities of the PMSCs take place at sea, away from the view
of the state.
40 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation
(SUA), signed on 10 March 1988 in Rome. Entered into force on 1 March 1992.
41 See Mukherjee and Mejia (2004), pp. 147–157; Mejia and Mukherjee (2006), p. 173.
42 United Nations Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their
Parts and Components and Ammunition (Firearms Protocol), Signed on 11 July 2001 in New York.
Entered into Force on 5 July 2004.
43 Kraska (2015), p. 179.
44 Ibid.
45 UNCLOS, Articles 21, 92, 94.
46 Kopel et al. (2007), pp. 129–130.
47 UNCLOS, Article 94(2); Barnes (2015), p. 314.
48 M/V Saiga (No.2) (Saint Vincent and the Grenadines v. Guinea) merits (1999) 4 ITLOS Rep
132, 105. References were made to persons generally because the ship is regarded as a unit for the
purpose of flag state exercising (protective) jurisdiction.
182
O. A. Eruaga