UNCLOS makes it clear that flag state jurisdiction does not preclude a coastal or
port state from also exercising jurisdiction over the vessel in territorial seas or in
port.
49 In the context of maritime security and the use of PMSCs, coastal state
jurisdiction is particularly relevant from two perspectives. Ordinarily a vessel enjoys
the right of innocent passage.
50 However, if the vessel conducts activities in violation of the peace and good order within a territorial sea of a coastal state, such a
vessel is subject to its criminal jurisdiction.
51 Furthermore, the piracy-like threat of
armed robbery against ships, occurs within a state’s internal, archipelagic waters and
territorial sea.
52 This places obligation for security within that maritime space on the
state that lays claim to it. Hence, even where a flag state allows the use and regulate
the employment of PMSCs, coastal state regulation within its territorial waters are
also very relevant on how PMSCs are able to perform the protection of vessels.
The questions of whether the presence of armed guards as well as their equipment
within the territorial waters of a state is prejudicial to the peace and good order or a
challenge the authority of a coastal state to provide security remains unsettled.
53 A
lack of uniformity as to the interpretation of this query still prevails within the global
maritime community.
2.1.1.2 Convention for the Suppression of Unlawful Acts Against the Safety
of Maritime Navigation and Its Protocol
The Suppression of Unlawful Acts (SUA) and its Protocols form part of the basis for
security response beyond UNCLOS in contracting state parties, especially for other
forms of unlawful maritime acts that compromise the safety of navigation, not
contemplated by UNCLOS.
54 The amendment of the original Convention and its
Protocol took place following the 9/11 terrorist attack. The Protocol of 2005 to the
Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms
Located in the Continental Shelf (SUA 2005), expanded considerably several provisions of the original treaty including the definition of offences covered by the
Convention,
55 the master’s duties
56 and when a state may board a foreign vessel.
57
49 Petrig (2016a), p. 7; UNCLOS Articles 9, 27 and 218 which provide instances where a coastal or
port state may invoke its jurisdiction on a vessel not flying its flag. Art.2 emphasises the subjectivity
of coastal state sovereignty in territorial waters to international law.
50 UNCLOS Article 17.
51 UNCLOS, Article 19(1).
52 IMO, Resolution A 26/Res.1025.
53 Vijayan (2014), p. 26; Petrig (2013), pp. 681–683.
54 Menefee (2013), p. 211. For a background and an in-depth critique of SUA and its 2005 protocol,
see Mejia and Mukherjee (2006), pp. 170–191.
55 SUA 2005, Art. 3, 3bis, 3ter and 3 quarter.
56 SUA 2005, Art. 8(1).
57 SUA 2005, Art. 8bis(4).
Private Maritime Security Companies Within the International Legal. . .
183
port state from also exercising jurisdiction over the vessel in territorial seas or in
port.
49 In the context of maritime security and the use of PMSCs, coastal state
jurisdiction is particularly relevant from two perspectives. Ordinarily a vessel enjoys
the right of innocent passage.
50 However, if the vessel conducts activities in violation of the peace and good order within a territorial sea of a coastal state, such a
vessel is subject to its criminal jurisdiction.
51 Furthermore, the piracy-like threat of
armed robbery against ships, occurs within a state’s internal, archipelagic waters and
territorial sea.
52 This places obligation for security within that maritime space on the
state that lays claim to it. Hence, even where a flag state allows the use and regulate
the employment of PMSCs, coastal state regulation within its territorial waters are
also very relevant on how PMSCs are able to perform the protection of vessels.
The questions of whether the presence of armed guards as well as their equipment
within the territorial waters of a state is prejudicial to the peace and good order or a
challenge the authority of a coastal state to provide security remains unsettled.
53 A
lack of uniformity as to the interpretation of this query still prevails within the global
maritime community.
2.1.1.2 Convention for the Suppression of Unlawful Acts Against the Safety
of Maritime Navigation and Its Protocol
The Suppression of Unlawful Acts (SUA) and its Protocols form part of the basis for
security response beyond UNCLOS in contracting state parties, especially for other
forms of unlawful maritime acts that compromise the safety of navigation, not
contemplated by UNCLOS.
54 The amendment of the original Convention and its
Protocol took place following the 9/11 terrorist attack. The Protocol of 2005 to the
Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms
Located in the Continental Shelf (SUA 2005), expanded considerably several provisions of the original treaty including the definition of offences covered by the
Convention,
55 the master’s duties
56 and when a state may board a foreign vessel.
57
49 Petrig (2016a), p. 7; UNCLOS Articles 9, 27 and 218 which provide instances where a coastal or
port state may invoke its jurisdiction on a vessel not flying its flag. Art.2 emphasises the subjectivity
of coastal state sovereignty in territorial waters to international law.
50 UNCLOS Article 17.
51 UNCLOS, Article 19(1).
52 IMO, Resolution A 26/Res.1025.
53 Vijayan (2014), p. 26; Petrig (2013), pp. 681–683.
54 Menefee (2013), p. 211. For a background and an in-depth critique of SUA and its 2005 protocol,
see Mejia and Mukherjee (2006), pp. 170–191.
55 SUA 2005, Art. 3, 3bis, 3ter and 3 quarter.
56 SUA 2005, Art. 8(1).
57 SUA 2005, Art. 8bis(4).
Private Maritime Security Companies Within the International Legal. . .
183