By Simon O. Williams, LLM
Law of the sea mechanisms, specifically the 1982 United Nations Convention on the Law of the Sea (UNCLOS), provide an engaging starting point for regulatory analysis of private maritime security. Although it is not the only relevant legal instrument in existence, the Convention is the most pertinent, setting the backdrop for oceans management and providing the broadest foundation for uniform governance.
UNCLOS is often regarded as a framework convention: It sets up institutions and balances the rights and obligations of states with the interests of the international community. It is supplemented by other conventions and protocols.
Yet UNCLOS does much more than simply set up broad frameworks. It also specifies detailed nautical-mile limits for maritime zones and establishes “rules of the road” for oceans management and operations at sea. UNCLOS also contains a brief, but specific, security component that addresses key tenets of responding to maritime threats.
In today’s international security paradigm, the applicability of the UNCLOS framework with regard to maritime security is often called into question. Why? Because traditional state-on-state warfare is being replaced by two opposing groups of non-state actors, embodying threats to both maritime security and the protectors of international shipping commerce.
UNCLOS provides two specific regimes which are fundamental to maritime security and order on the seas: the regime of consecutive maritime zones, and the jurisdictional trinity of flag, coastal and port state control. In fact, UNCLOS is the only international convention which stipulates a framework for state jurisdiction in maritime spaces.
UNCLOS sections the oceans, splitting marine areas into five main zones, each with a different legal status: Internal Waters, Territorial Sea, Contiguous Zone, Exclusive Economic Zone (EEZ) and the High Seas. It provides the backbone for offshore governance by coastal states and those navigating the oceans. It not only zones coastal states’ offshore areas but provides specific guidance for states’ rights and responsibilities in the five concentric zones.
1. Internal Waters
Internal Waters include littoral areas such as ports, rivers, inlets and other marine spaces landward of the baseline (low-water line) where the port state has jurisdiction to enforce domestic regulations. Enforcement measures can be taken for violations of static standards while in port as well as for violations that occurred within the coastal state’s maritime zones and beyond. However, foreign vessels are not usually held to non-maritime or security port state laws so long as the activities conducted are not detrimental to the peace and security of the locale.
In the maritime security context, however, a coastal state can prevent privately contracted armed security personnel (PCASP) from entering its ports and internal waters if carriage of weapons is forbidden in national legislation. Moreover, once entering a port PCASP (and the vessel which they are aboard) can be held accountable for other violations that took place at sea if (a) they in some way impacted the port state or (b) for other reasons with the permission of the flag state.
2. Territorial Sea
In the Territorial Sea, a coastal state has unlimited jurisdiction over all (including foreign) activities unless restrictions are imposed by law. All coastal states have the right to a territorial sea extending 12 nautical miles from the baseline.
In the maritime security context, it remains debated as to whether the coastal state can set and enforce laws to restrict movement of PCASP, forbid maritime security operations (including making illegal the carriage or discharge of weapons) within the territorial sea, or if enacting such legislation would be prejudicial to general freedom of navigation and the regime of innocent passage.
3. Contiguous Zone
The Contiguous Zone is an intermediary zone between the territorial sea and the high seas extending enforcement jurisdiction of the coastal state to a maximum of 24 nautical miles from baselines for the purposes of preventing or punishing violations of customs, fiscal, immigration or sanitary (and thus residual national security) legislation.
In the maritime security context, this can certainly include monitoring any activities which can result in armed violence or weapons import into the state. Therefore the coastal state can take measures to prevent or regulate armed maritime security activities out to 24 nautical miles under the reasoning that it is undertaking customs enforcement operations to prevent movement of arms into its waters/ports.
4. Exclusive Economic Zone (EEZ)
The EEZ is another intermediary zone, lying between the territorial sea (12 nautical miles) and the high seas to the maximum extent of 200 nautical miles. Although high seas freedoms concerning general navigation principles remain in place, in this zone the coastal state retains exclusive sovereignty over exploring, exploiting and conserving all natural resources. The coastal state therefore can take action to prevent infringement by third parties of its economic assets in this area including, inter alia, fishing, bio-prospecting and wind-farming.
In order to safeguard these rights, the coastal state may take necessary measures including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the international laws and regulations.
5. High Seas
The High Seas, which lie beyond 200 nautical miles from shore, are to be open and freely available to everyone, governed by the principle of equal rights for all. In agreeing to UNCLOS, all state parties acknowledged that the oceans are for peaceful purposes as the Convention’s aim was to maintain peace, justice and progress for all people of the world. On the High Seas, no state can act or interfere with justified and equal interests of other states.
The Convention establishes freedom of activity in six spheres: Navigation, Overflight, Laying of cables and pipelines, Artificial islands and installations, Fishing, Marine scientific research.
Freedom of navigation is of utmost importance for all, and maritime security activities can be considered part of navigational activities as they protect vessels from interference by third parties.
Problems with the Zone Structure
Understanding the geographic location of attacks on maritime assets not only assists in developing appropriate maritime security strategies for PCASP and ensure compliance but also assists legal scholars in assessing the congruence of international legal frameworks governing threat response measures.
As evidenced in the above chart from UNOSAT’s Global Report on Maritime Piracy, pirate attacks in the Indian Ocean region are most frequent on the High Seas, beyond coastal state jurisdiction. Because UNCLOS classifies piracy as offenses committed specifically on the High Seas, this leaves open a huge gap — piracy-like threats in maritime zones within a coastal state’s jurisdiction.
In order to rectify this missing designation, the IMO’s Maritime Security Committee has introduced a separate term, “armed robbery against ships,” to address such crimes occurring within a coastal state’s jurisdiction (i.e., territorial and internal waters). This term is defined as “any illegal act of violence or detention or any act of depredation, or threat thereof, other than an act of piracy, committed for private ends and directed against a ship or against persons or property on board such a ship, within a State’s internal waters, archipelagic waters and territorial sea.” Coastal states are encouraged to include this definition and designate such action as a crime in their domestic legislation.
Thus the combined wording, “piracy and armed robbery against ships,” has become a catch-all phrase for piratical acts conducted anywhere in the world, increasing the legal latitude countries have to pursue remedies for maritime security threats and transgressions wherever they may take place. – MarEx
Simon O. Williams is Director of Tactique Ltd, a Washington DC-based consultancy on maritime security and environmental affairs. This is the second in a series of articles on maritime security operations and the Law of the Sea.
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.
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