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.

These three types of jurisdiction apply to states and

can fall into both Territorial and extra-territorial
State Jurisdiction over Privately Contracted jurisdiction. Territory refers to the domain over
Armed Security Personnel at Sea
which a state maintains power (generally
By Simon O. Williams, BA, LLM physical/political borders). To act outside those
limits and exercise extra-territorial jurisdiction, an
December 2014
actor needs justification, which is based on the
following principles:

Various manifestations of state jurisdiction can be - Active Personality / Nationality (i.e. flag state

rendered from the United Nations Convention on jurisdiction, wherever one is, subject to laws)

the Law of the Sea (UNCLOS) and international - Universality (i.e. universal jurisdiction over

law broadly. piracy to protect the common good from

dangers against all)
UNCLOS is often regarded a framework - Treaty, whatever rationale.
convention; it sets up institutions, balances rights,
obligations, and interests of states in different As the aforementioned principles overlap,

capacities with interests of the international concurrent jurisdiction exists. For example, vessels

community. UNCLOS provides specific regimes have nationality of one state, fishing agreement of

which are fundamental to maritime security, another state, crew from five states, subject to

namely the regime of consecutive maritime zones international treaties, etc.)

and the jurisdiction trinity of flag, coastal, and port

In the maritime, specifically private maritime
state control. In fact, UNCLOS is the only
security context, six or more states may have
international convention which stipulates a
jurisdiction over private maritime security
framework for state jurisdiction in maritime
activities at any given time; the flag state of the
spaces.
merchant ship, the state where the shipping

Three main types of jurisdiction activities exist, company is registered, the home state or states of

combined with three categories of maritime states the merchant crew, the state where the private

which can have jurisdiction. First there is security company is registered, the home states of

Prescriptive Jurisdiction, or the power to make the individual security guards, and the coastal state

rules. Second, Enforcement Jurisdiction, or the whose waters they transit or ports they enter. Thus

power to apply rules, monitor compliance, conduct oversight of private maritime security operations

inspections, and make arrests. Third, there is becomes confusing as state jurisdiction is unclear

Adjudicative Jurisdiction; this is the power to or blurred, and occasionally the states involved

undertake court proceedings after enforcement. may tiff to avoid responsibility and jurisdiction.

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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.

The UNCLOS maritime zone system channels weapons, than is mandated by the IMO or
three types of maritime states: Coastal States, Port recommended by the international community.
States, and Flag States.
Flag state maritime security regulations, however,
Flag State Jurisdiction generally only cover issues such as the types of
weapon systems that can be brought onboard by
Flag State refers to the country where a vessel is
PCASP, how many guards can be embarked,
registered. This country has extra-territorial
certification requirements and background
jurisdiction over its vessels sailing anywhere in the
credentials for embarked PCASP, and in some
world by virtue of the nationality principle. Every
circumstances application procedures to gain Flag
state has the right to sail ships under its flag and
State approval for taking a security detail onboard.
thus participate in international navigation.
However, these flag-state restrictions do not
However, this right comes with certain
address other pertinent issues such as embark and
responsibilities. Flag states are responsible for
disembark procedures for PCASP, which
enforcing international obligations everywhere and
frequently take place in other countries beside the
exclusively on high seas over their vessels. This is
Flag State, Rules for the Use of Force, oversight
derived from Article 94 of UNCLOS which
and reporting protocols, and code of conduct.
stipulates that “every state shall effectively
Moreover for many Flag States, a licensing system
exercise its jurisdiction and control in
for PCASP or anti-piracy teams is non-existent.
administrative, technical, and social matters over
Effective jurisdiction, control, and enforcement of
ships flying its flag.” Flag State Jurisdiction
Flag State regulations upon PCASP is frequently
typically includes management of vessel
impossible because operations often take place
registration, effective jurisdiction and control over
vast distances away from the ship’s country of
vessels including inspection, detention, and arrest
registration and shielded from the eyes of
as necessary, as well as ensuring vessel conformity
observers. As many vessels are registered in open
to generally accepted international rules and
registries or flag of convenience states which
standards (GAIRS).
maintain little tangible oversight over their vessels,
verification, let alone inspection, is near
In the context of flag states, GAIRS are the
impossible.
mandatory minimum standards, and flag states can,
at will, establish more stringent requirements
This is best depicted in the flag of convenience and
aboard their vessels. In the case of maritime
open registry system which exponentially
security, many states can and do establish stricter
complicates jurisdiction, accountability, and
measures for vetting, employing, operating, and
oversight. Ship-owners can simply change vessel
reporting of Privately Contracted Armed Security
registration from one open registry to another,
Personnel (PCASP), as well as the carriage of
which changes the nationality (and therefore Flag

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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.

State Jurisdiction) of the vessel in order to place it sea lanes and fight piracy can be effective only if
under a jurisdiction with greater or lesser leniency all nations cooperate in good faith, according to
in accountability and oversight for PCASP the established rules of the international customary
management depending on their wishes. For law and UN conventions, including those
example, a ship-owner with a tanker flagged in protecting the jurisdiction of the flag state in
Japan, a country with arguably the most stringent international waters.”
legislation on this matter, who desires more
Flag states, are required to adopt laws to ensure
flexibility, can simply reflag to a state that is not
international regulations are applied and enforced
willing or able to exercise jurisdiction and control,
upon vessels which fly its flag. Flag states are to
in order to ease regulations aboard his/her vessel.
take appropriate measures to ensure that vessels
This is similarly done to dodge taxes, fees, and
flying their flag are prohibited from sailing unless
crew treatment, as well as avoid flag state imposed
they can proceed to sea in compliance with
pollution control measures.
GAIRS. Furthermore, they are tasked under
The flag state is also the only state, in addition to customary international law and directly under
the state where an individual is a national, which UNCLOS with investigating and punishing
can institute proceedings against a person who is violations aboard their vessels irrespective of
alleged to have conducted a violation at sea. This where the infraction took place.
is according to Article 97 (1) of UNCLOS. This
Flag states may, however, delegate some authority
Article was created for general investigation and
to classification societies to inspect vessels and
prosecution for duty misconduct aboard a vessel,
issue certificates to vessel/crew, or similarly to
such as causing a collision. However, it can
port or other states to inspect their vessels when
arguably be relevant in the case of PCASP
geographically displaced. This is crucial because
inclusive of activities to mitigate a potential pirate
the flag state may be very remote from its vessel,
or terrorist attack, loss of life, or any firearms
whereas a coastal (or even port) state may be
discharge, perhaps even resulting in the wrongful
closer, and the vessel will eventually make call at
death of a third party. On the other hand, it could
port, where the port state can make inspection on
exclude any deliberate use of force on high seas as
behalf of the flag state.
collision implies accidental incident, and even
further can be argued that a death by shooting off
Coastal State Jurisdiction
the vessel does not necessarily interfere with
navigation. There is no prohibition of concurrent jurisdiction
under UNCLOS, and vessels therefore can be
Nonetheless, as Italian Prime Minister, H.E. Mario
subject to the jurisdiction of states besides the flag
Monti, stated to the UN General Assembly, 26
September 2012, “international efforts to protect

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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.

state in certain circumstances, such as entering agreements with other port states upholding related
their maritime zones and ports. legislation can then provide port state jurisdiction
to enforce compliance as described below.
The prescriptive power of coastal states can be
Port State Jurisdiction
seen as a way to control the condition of ships
navigating lawfully in their territorial seas.
Port state jurisdiction is not covered by UNCLOS
UNCLOS lays down rules for enforcement powers
directly, but UNCLOS provisions confirm this
by coastal states toward vessels in their maritime
practice, indicative of residual jurisdiction in
zones, specifically in their territorial sea.
relation to port-state-control. This is especially
important in the private maritime security context.
UNCLOS stipulates the measures a coastal state
If understanding flag state jurisdiction on the high
can take to ensure peace and good-order in their
seas and coastal state jurisdiction in the territorial
territorial sea. Carriage of arms and PCASP in fire
sea are both challenging, then what happens when
positions can arguably be threatening to peace and
a ship-borne security team heads to port? A myriad
good-order, and may also run contrary to customs
of national rules and regulations then come into
regimes regarding importation of arms, should the
force regarding the disembarkation of personnel,
PCASP have intent to embark or disembark with
equipment (especially weapons), etc., creating
weapons within/from the coastal state’s ports (sans
even more mayhem in the legal machinery.
licenses). Such a provision provides the coastal
state necessary latitude to take measures to
Although each port state has its individual traits
investigate or prevent such an occurrence.
with regard to legislation governing the carriage or
UNCLOS is careful to prevent creeping coastal
off/loading of weapons in their ports, there are a
state jurisdiction over violations which have
number of issues remaining common to all, most
occurred prior to the ship entering the territorial
notably the prevention of undocumented
sea from a foreign port, granted it is in transit and
immigration and proliferation of small arms and
not entering the coastal state’s internal waters or
light weapons (SALW) that could result from
ports.
disembarkation of PCASP in their ports.

In order for a coastal state to enforce further

In an effort to enhance broader security issues,
control beyond the territorial sea, into the
especially good governance, anti-trafficking, anti-
Exclusive Economic Zone (EEZ), they must
corruption, and counter- SALW proliferation, Port
contact the subject vessel’s flag state to fulfill flag
States take measures to prevent unwanted vessels,
state obligations, or develop and exercise port state
including those with armed security teams from
jurisdiction. Eventually, the ship will have to call
entering and disembarking at their ports. Port State
at a port. National legislation criminalizing
Control compliments the obligation of flag states
transport of firearms, PCASP violations, or

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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.

to inspect and control vessels, by undertaking

investigations or verification of vessels calling at
their port to ensure complicity with international
obligations or standards. In event of transgressions,
violators can be forced to pay reparations to the
port state, refit, reform, arrest, or even blacklist
their vessels.

Generally, the port state control arrangement is the

epitome for investigating and apprehending
violators irrespective of a vessel’s flag as it will
eventually need to make berth to unload cargo.
Port state control violation inspections are most
frequently targeted for pollution matters, however,
there have been numerous investigations and
vessel arrests in recent years due the proliferation
of small arms for defensive purposes and armed
maritime security teams on-board in violation of
the port-state’s domestic legislation. This is
indicative of port-state-control crack-downs on
maritime security operations, to push for better
standards, compliance, or keep unwanted PCASP
activities in their maritime zones at bay.

This assessment was produced by Simon O. Williams, BA,

LLM from Tactique Ltd. Team Tactique remains available for
contact at info@tactique.org should there be queries
regarding this subject or related compliance matters.

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