International Legal Framework Governing Maritime Security
By Simon O. Williams, LLM
The United Nations Convention on the Law of the Sea (UNCLOS) was ahead of its time. It pre-empted environmental protection and low-intensity conflict paradigm shifts of the late 1990s by already encompassing many new security challenges at the time of its codification in 1982. These included environmental security, illegal immigration, human trafficking and piracy. This allowed UNCLOS to remain relatively flexible and current with international security concepts.
But are additional instruments needed to support UNCLOS in order to provide sufficient legal basis to meet and regulate contemporary security responses at sea?
The global character of shipping requires global regulation, and UNCLOS is not alone in this endeavor. There is not simply one international treaty on maritime security law. While UNCLOS includes several articles regulating state responses against piracy (Articles 100 to 107 and 110), the Convention provides no foundation or guidance for private efforts in combating piracy. Instead, there are many fragmented treaties, conventions, legal principles and soft law instruments that supplement UNCLOS.
Although UNCLOS sets the static legal framework of maritime zones and jurisdiction, the convention is silent in regard to specific non-state actions for countering piracy. Instead, a kaleidoscope of overlapping, confusing, and occasionally conflicting international and domestic policies, practices and laws has emerged in an attempt to tame this often considered unwieldy industry.
UNCLOS is static in order to provide a stable legal platform but must also be dynamic to adapt to changes and developments in the international law arena. It is a framework convention and therefore sets the playing field and rules-of-the-game for interaction between other instruments.
Suppression of Unlawful Acts
The Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) Convention and Protocol was designed to fill voids in international law necessary to combat other threats to human life and security of navigation and commerce at sea not fully prescribed under UNCLOS. It requires states to pass legislation making unlawful piratical and terrorist acts against navigation serious criminal offenses under their national laws. The SUA framework came in two waves.
(1) SUA Framework 1988
First was the 1988 Convention and Protocol. Under this legislation, states have an obligation to establish jurisdiction to extradite or prosecute violators even if the alleged offenses were committed outside their physical territory.
Unlike the UNCLOS definition of piracy, which only applies on the high seas and therefore only allows security responses on the high seas, the SUA framework criminalizes piracy-like offenses against vessels which have journeyed out of the territorial sea or are scheduled to transit beyond the territorial sea. Yet a major gap in the 1988 SUA framework is that it only granted flag states the necessary jurisdiction to respond to threats against vessels that flew their particular flag.
(2) SUA Framework 2005
In 2005 the 1988 SUA Convention and Protocol were amended to become the 2005 SUA Convention and the 2005 SUA Protocol. The 2005 SUA framework contains three new categories of offenses.
Using a ship as a weapon or as a means for committing terrorist acts.
Proliferation of weapons of mass destruction (WMD) on the high seas.
Transporting a person alleged to have committed an offense under other UN anti-terrorism conventions.
In addition, the 2005 SUA framework broadened state jurisdiction to include not only the flag state but also third states. Thus, the SUA frameworks further the extent of criminalizing acts against navigation beyond UNCLOS, increasing states’ legal latitude to prevent attacks and pursue violators in maritime zones shoreside of the High Seas. Examining the SUA framework from the broadest perspective, it is evident that it provides an agreement condemning maritime threats, acknowledging that countermeasures must be taken in shoreward maritime zones, including but not exclusively limited to private shipborne responses to threat mitigation. Standards and guidelines for private responses have been created via the necessary channels in IMO such as SOLAS, described below, as well as in soft law implemented by the industry.
The Safety of Life at Sea (SOLAS) Convention, first developed to increase safety aboard ocean-going vessels after the Titanic disaster, has grown since 1914 into the most thorough of all marine safety conventions. Its main purpose is to establish minimum standards for the construction, equipment and operation of ships, compatible with their safety. It is enforced by flag states and port state control measures.
In relation to private maritime security, a main legal conundrum with SOLAS is whether employing armed security on board a vessel can deprive the ship’s Master of their overall responsibility to control all actions aboard their vessel, as required by SOLAS. If so, this would be in contradiction of SOLAS Reg 34-1 and Reg 8, Chapter XI-2.
Many coastal states have taken additional steps to clarify the relationship between Master and privately contracted armed security personnel (PCASP), amending national legislation to reaffirm the Master’s overall authority to authorize PCASP targeting, deployment and target engagement (specifically, weapons discharge of any-kind). In an effort to resolve this dispute, the largest international shipping association, the Baltic International Maritime Council (BIMCO), has released a commercial contract template, GUARDCON, which establishes this clear line of superiority with the ship’s Master remaining in command at all times.
Despite the superiority of the Master being reaffirmed in SOLAS, by flag states, and even in many industry contracts between PCASP and shipowners/operators, many security providers affirm that in certain grave life-or-death situations, they would disobey a Master’s call to stand down under their individual right to self-defense should they believe their life or the life of crew-members to be in danger.
GUARDCON aims to accommodate this extenuating circumstance, acting as a contract between PCASP and the Master to break this link in the chain-of-command, freeing PCASP to act at will, without the Master’s orders, and outside the conventional SOLAS protocols, indemnifying the Master of much of the responsibility for PCASP actions.
SOLAS allows port states to prevent ships from sailing when serious deficiencies are found that may pose a danger to persons, property, or the environment. This can be extended to implementation of maritime security procedures within SOLAS and its family of regulations (ISPS, ISM, etc.) if PCASP, their behavior, or their equipment seem to be substandard and as a result pose a danger to those aboard the vessel or the general public.
U.N. Firearms Protocol
In addition to the Law of the Sea framework, maritime security providers must also navigate the complex international legal regime of the U.N. Firearms Protocol, a legally binding agreement which entered into force in 2005, currently signed by 109 states plus the European Union, to ensure armed security provider, or those importing/transporting weapons, carry the required port and transit state permits.
This UN regulation suggests not only seeking pre-embarkation permission from the Flag State but also from all countries through which PCASP will transit. The Protocol sets the regulations for firearms transport. PCASP must be careful and take the necessary precautions to ensure their carriage of weapons systems is rightly permitted and does not qualify as illicit trafficking. According to the Protocol:
“Illicit trafficking” shall mean the import, export, acquisition, sale, delivery, movement or transfer of firearms, their parts and components and ammunition from or across the territory of one State Party to that of another State Party if any one of the States Parties concerned does not authorize it in accordance with the terms of this Protocol”
The Protocol, however, prescribes the option for establishing a simplified system for temporary import and exports between states, as follows.
“States Parties may adopt simplified procedures for the temporary import and export and the transit of firearms, their parts and components and ammunition for verifiable lawful purposes such as hunting, sport shooting, evaluation, exhibitions or repairs.”
Some states have taken advantage of this clause to establish systems for transiting PCASP and military Vessel Protection Details (VPDs). Spain, for example, has made an agreement with the Seychelles to allow simplified transit procedures for its VPDs to board Spanish-flagged fishing vessels in Seychelles territorial waters and EEZ.
Making this matter more complicated in recent years, floating armories have emerged as offshore supply stores delivering weapons and crews to client vessels, circumventing port and coastal state regulations and bypassing the need for import/export compliance. Of course, this has opened a Pandora’s box in terms of unaccounted-for firearms. In other circumstances, PCASP have jettisoned weapons into the sea after completing missions in order to sidestep import/export regulations reaffirmed in the Protocol.
The Principle of Self-Defense
Of primary importance to the legal reasoning behind the private use of force at sea in counter-piracy is the principle of Self-Defense. According to the International Group of P&I Clubs:
“Customary international law, among other legal authorities, provides that the use of force is restricted to cases of necessity or self-defence, i.e. cases in which there is no other way out and in which the requirements of necessity, reasonableness and proportionality are observed in connection with the use of force. Such customary international law is binding […] The use of force by private security guards must therefore be based on the general, internationally accepted principles of self-defence.”
This was reaffirmed by the International Court of Justice (ICJ) in the Oil Platforms case, which stated that Iran had the right to protect its offshore installations against threats to their infrastructure.
Moreover, individual guards or any persons aboard a vessel, for that matter, have the right to self-defense of their person. This is a fundamental human right. If pirates or other assailants are directing weapons’ fire in their direction, for example, and they believe their lives to be in grave danger, the same right of self-defense for vessels applies at the personal level.
Doctrine of Necessity
After being discussed for decades in international law circles, the Doctrine of Necessity was finally incorporated into the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts.
Article 25 of this document provides that an otherwise illegal act, such as using force to neutralize a terrorist or pirate attack at sea, can be justified if it meets two criteria.
The act was the only means of safeguarding an essential interest of the state against a grave and imminent peril.
The act did not seriously impair an essential interest of the state toward which the obligation existed.
Such activities could be justified on the basis that the ramifications of such an attack would be severe, with imminent loss of life, and also possible irreversible damage to the environment (i.e., attack on a tanker or offshore drillship resulting in a possible oil spill).
In such situations, minor interferences with navigation such as allowing PCASP to engage and disable an approaching vessel, or as a last resort neutralize attacking individuals, would be considered relatively minor when compared with the grave destruction or loss of life which could result from a successful attack. – MarEx
Simon O. Williams, BA, LLM is Director of Tactique Ltd, a Washington DC-based consultancy on maritime security and environmental affairs. This is the fifth 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.
Please click HERE to download a PDF version of this article.
The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.