2.1.2 Municipal Regulation as Part of the International Legal
Framework
The nature of maritime trade, arising from the multi-jurisdictional character of the
maritime domain supports a consideration of municipal law of states as contributing
to the development of the international legal framework for the engagement of
PMSCs. Main stream international law theorists assert that laws made by states are
not eligible for consideration under international law unless they form part of
customary international law (general principles recognised by civilised nations).
96
Their assertion stems from viewing international law as a simple legal order with
well defined boundaries between international and domestic law. Yet, we see that
sometimes, national legal phenomena in the form of policies, directives and even
legislation (such as in this context, the regulation of PMSCs), interact with and
sometimes shape frontiers beyond the state in question, somewhat blurring the
traditional view of a distinct division between the international and the domestic.
97
Legal phenomena with such extraterritorial influence rather than being classified as
domestic should be considered as transnational in nature.
98 This forms the basis for
discussing state regulation as an important factor in governing PMSC engagement.
Regulating the PMSC sea-based activities by state level is currently at the stage of
states sculpturing solutions to suit their specific interests.
99 The capacities that
maritime stakeholders demand of their respective jurisdiction remain paramount
determinants in how states choose to regulate. Thus flag states in trying to ensure
the protection of their vessels, appear to be more willing to enact law and policies
that allow the use of PMSCs on board.
100 United States,
101 United Kingdom,
102
Germany,
103 Republic of Marshall Islands,
104 Japan,
105 and Belgium
106 are among
96 Statute of the International Court of Justice Article 38.
97 Reimann (2004), p. 407.
98 Menkel-Meadow (2011), p. 104.
99 Bürgin and Schneider (2015), p. 131.
100 Van Hespen (2014), p. 367.
101 Maritime Security Directive (MARSEC) 104-6. This Directive undergone seven revisions since
it was issued in February 2006; National Defence Authorization Act 2010, section 3506. For a
detailed discussion on the US approach, see De Nevers (2015), pp. 154–159.
102 Department of transport (2013), version 1.2; Department for Trade (2017) Open General Trade
Control Licence (specifically applicable to use of arms in waters off the coast of Somalia only).
103 Federal Office of Economics and Export Control (BAFA) (2014) Licensing of Security Companies on Board Ocean-Going Vessel; Federal Office of Economics and Export Control (BAFA)
(2014) Licence under the Weapons Act.
104 Marine Notice 2-011-39 (Rev.Aug/2016).
105 Act on Special Measures Concerning the Guarding of Japanese Ships in Pirate-Infested Waters
(2013).
106 An Act respecting various measures relating to the fight against maritime piracy (2013) Loi
portant diverses mesures relatives à la lutte contre la piraterie maritime; Belgium, Royal Decree
amending the Royal Decree of 11 February 2013 laying down maritime zones for the use of private
Private Maritime Security Companies Within the International Legal. . .
189
Framework
The nature of maritime trade, arising from the multi-jurisdictional character of the
maritime domain supports a consideration of municipal law of states as contributing
to the development of the international legal framework for the engagement of
PMSCs. Main stream international law theorists assert that laws made by states are
not eligible for consideration under international law unless they form part of
customary international law (general principles recognised by civilised nations).
96
Their assertion stems from viewing international law as a simple legal order with
well defined boundaries between international and domestic law. Yet, we see that
sometimes, national legal phenomena in the form of policies, directives and even
legislation (such as in this context, the regulation of PMSCs), interact with and
sometimes shape frontiers beyond the state in question, somewhat blurring the
traditional view of a distinct division between the international and the domestic.
97
Legal phenomena with such extraterritorial influence rather than being classified as
domestic should be considered as transnational in nature.
98 This forms the basis for
discussing state regulation as an important factor in governing PMSC engagement.
Regulating the PMSC sea-based activities by state level is currently at the stage of
states sculpturing solutions to suit their specific interests.
99 The capacities that
maritime stakeholders demand of their respective jurisdiction remain paramount
determinants in how states choose to regulate. Thus flag states in trying to ensure
the protection of their vessels, appear to be more willing to enact law and policies
that allow the use of PMSCs on board.
100 United States,
101 United Kingdom,
102
Germany,
103 Republic of Marshall Islands,
104 Japan,
105 and Belgium
106 are among
96 Statute of the International Court of Justice Article 38.
97 Reimann (2004), p. 407.
98 Menkel-Meadow (2011), p. 104.
99 Bürgin and Schneider (2015), p. 131.
100 Van Hespen (2014), p. 367.
101 Maritime Security Directive (MARSEC) 104-6. This Directive undergone seven revisions since
it was issued in February 2006; National Defence Authorization Act 2010, section 3506. For a
detailed discussion on the US approach, see De Nevers (2015), pp. 154–159.
102 Department of transport (2013), version 1.2; Department for Trade (2017) Open General Trade
Control Licence (specifically applicable to use of arms in waters off the coast of Somalia only).
103 Federal Office of Economics and Export Control (BAFA) (2014) Licensing of Security Companies on Board Ocean-Going Vessel; Federal Office of Economics and Export Control (BAFA)
(2014) Licence under the Weapons Act.
104 Marine Notice 2-011-39 (Rev.Aug/2016).
105 Act on Special Measures Concerning the Guarding of Japanese Ships in Pirate-Infested Waters
(2013).
106 An Act respecting various measures relating to the fight against maritime piracy (2013) Loi
portant diverses mesures relatives à la lutte contre la piraterie maritime; Belgium, Royal Decree
amending the Royal Decree of 11 February 2013 laying down maritime zones for the use of private
Private Maritime Security Companies Within the International Legal. . .
189