State Jurisdiction Over PCASP
Legal frameworks governing private security at sea.
Maritime Security: State Jurisdiction Over PCASP
By Simon O. Williams, LLM
Various types of state jurisdiction can be enforced under the United Nations Convention on the Law of the Sea (UNCLOS) and international law broadly.
UNCLOS itself is often regarded as a framework convention: It sets up institutions and balances the rights and interests of states with the interests of the international community. UNCLOS provides specific regimes, which are fundamental to maritime security, namely 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.
Three main types of jurisdictional activity exist, combined with three categories of maritime states that can have jurisdiction:
Prescriptive Jurisdiction or the power to make rules.
Enforcement Jurisdiction or the power to apply rules, monitor compliance, conduct inspections and make arrests.
Adjudicative Jurisdiction or the power to undertake court proceedings after enforcement.
These three types of jurisdiction apply to states and can fall into both territorial and extra-territorial jurisdiction. Territorial refers to the domain over which a state maintains power (generally its physical borders). To act outside those limits and exercise extra-territorial jurisdiction, an actor needs justification, which is based on the following principles:
Active Personality/Nationality (i.e., Flag State jurisdiction or wherever one is subject to laws)
Universality (i.e., universal jurisdiction over piracy to protect the common good from danger)
Treaty, where applicable.
When the aforementioned principles overlap, concurrent jurisdiction exists. For example, vessels have nationality in one state, fishing agreements in another state, crew from five states, and are subject to international treaties, etc.
In the private maritime security context, six or more states may have jurisdiction at any given time: the Flag State of the merchant ship, the state where the shipping company is registered, the home state or states of the merchant crew, the state where the private security company is registered, the home states of the individual security guards, and the coastal states whose waters the vessel transits or ports it enters. Thus oversight of private maritime security operations becomes confusing as state jurisdiction is unclear or blurred, and occasionally the states involved may tiff to avoid responsibility and jurisdiction.
The UNCLOS maritime zone system channels three types of maritime states: Coastal States, Port States and Flag States.
To continue reading, please click here.