Legal Implications of PMSCs in EEZ and Contingous zones

1. 1. LEGAL IMPLICATIONS OF USE OF PRIVATE MILITARY/MARITIME SECURITY

COMPANIES (PMSCS1/2) IN ECONOMIC EXCLUSIVE ZONES AND CONTIGUOUS ZONES
Helen Tung Barrister, One Temple Avenue Chambers PhD Candidate, University of Greenwich,
May 2014 1
2. 2. QUESTIONS 1. What is the definition of EEZ? 2. What is the definition of Contiguous zone? 3.
What is PMSCs1/2 + PCASP1 ? 4. What governs PMSCs? (i) Montreux Document; (ii) ICoC; (iii)
PSC1; (iv) ISO 20078. 5. What is the relationship b/w PMSC and coast guard? 6. Implications in
transfer of weapons/equipment? 2
3. 3. 1. WHAT IS THE DEFINITION OF EEZ? 3
4. 4. 1. WHAT IS THE DEFINITION OF EEZ? 4
5. 5. 1. WHAT IS THE DEFINITION OF EEZ? EEZ UN Convention on Law of the Sea Rights
over maritime resources, water & wind From baseline 200 nautical miles Part V, Article 55 of the
Convention states: Specific legal regime of the exclusive economic zone. The exclusive economic
zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime
established in this Part, under which the rights and jurisdiction of the coastal State and the rights and
freedoms of other States are governed by the relevant provisions of this Convention. 5
geography.about.com
6. 6. 1. WHAT IS THE DEFINITION OF EEZ? 6 geography.about.com Source of conflict: - Cod
Wars: UK v Iceland - Svalbard archipelago: Norway v Russia - South China Sea/ Spratly Islands -
Beauford Sea (oil reserves): US v Canada - claims for Tromelin: Mauritius v (1) France and (2) UK -
EEZ overlap: Cyprus v Turkey
7. 7. 1. WHAT IS THE DEFINITION OF EEZ? Article 60- Artificial islands, installations and
structures in the exclusive economic zone 1. In the exclusive economic zone, the coastal State shall
have the exclusive right to construct and to authorize and regulate the construction, operation and use
of: (a) artificial islands; (b) installations and structures for the purposes provided for in article 56 and
other economic purposes; (c) installations and structures which may interfere with the exercise of the
rights of the coastal State in the zone. 2. The coastal State shall have exclusive jurisdiction over
such artificial islands, installations and structures, including jurisdiction with regard to customs,
fiscal, health, safety and immigration laws and regulations. 5. The breadth of the safety zones shall
be determined by the coastal State, taking into account applicable international standards. Such zones
shall be designed to ensure that they are reasonably related to the nature and function of the artificial
islands, installations or structures, and shall not exceed a distance of 500 metres around them,
measured from each point of their outer edge, except as authorized by generally accepted
international standards or as recommended by the competent international organization. Due notice
shall be given of the extent of safety zones. 6. All ships must respect these safety zones and shall
comply with generally accepted international standards regarding navigation in the vicinity of
artificial islands, installations, structures and safety zones. 7
8. 8. 1. WHAT IS THE DEFINITION OF EEZ? Article73 Enforcement of laws and regulations of
the coastal State 1. The coastal State may, in the exercise of its sovereign rights to explore, exploit,
conserve and manage the living resources in the exclusive economic zone, take such measures,
including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure
compliance with the laws and regulations adopted by it in conformity with this Convention. 2.
Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or
other security. 3. Coastal State penalties for violations of fisheries laws and regulations in the
exclusive economic zone may not include imprisonment, in the absence of agreements to the
contrary by the States concerned, or any other form of corporal punishment. 4. In cases of arrest or
detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate
channels, of the action taken and of any penalties subsequently imposed. 8
9. 9. 2. WHAT IS THE DEFINITION OF CONTIGUOUS ZONE? 9
10. 10. 2. WHAT IS THE DEFINITION OF CONTIGUOUS ZONE? 10 SECTION 1. GENERAL
PROVISIONS Article2 Legal status of the territorial sea, of the air space over the territorial sea and
of its bed and subsoil 1. The sovereignty of a coastal State extends, beyond its land territory and
 internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of
sea, described as the territorial sea. 2. This sovereignty extends to the air space over the territorial sea
as well as to its bed and subsoil. 3. The sovereignty over the territorial sea is exercised subject to this
Convention and to other rules of international law.
11. 11. 2. WHAT IS THE DEFINITION OF CONTIGUOUS ZONE? 11 Article8 Internal waters 1.
Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form
part of the internal waters of the State. 2. Where the establishment of a straight baseline in
accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas
which had not previously been considered as such, a right of innocent passage as provided in this
Convention shall exist in those waters. Article12 Roadsteads Roadsteads which are normally used for
the loading, unloading and anchoring of ships, and which would otherwise be situated wholly or
partly outside the outer limit of the territorial sea, are included in the territorial sea.
12. 12. 2. WHAT IS THE DEFINITION OF CONTIGUOUS ZONE? 12 SECTION 3. Article17 &
Right of innocent passage Article18 Meaning of passage 1. (a) traversing that sea ..outside internal
waters; or (b) proceeding to or from internal waters or a call at such roadstead or port facility. 2.
Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but
only in so far as the same are incidental to ordinary navigation or are rendered necessary by force
majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or
distress. Article20 Submarines and other underwater vehicles In the territorial sea, submarines and
other underwater vehicles are required to navigate on the surface and to show their flag.
13. 13. 2. WHAT IS THE DEFINITION OF CONTIGUOUS ZONE? 13 Article19 Meaning of innocent
passage 1. Not prejudicial to the peace, good order or security of the coastal State. 2. Passage of a
foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal
State if in the territorial sea it engages in any of the following activities: (a) threat /use of force; (b)
any exercise or practice with weapons of any kind; (c) collecting information to the prejudice of the
defence or security of the coastal State; (d) any act of propaganda , (e) the launching, landing or
taking on board of any aircraft; (f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal,
immigration or sanitary laws and regulations of the coastal State; (h) any act of wilful and serious
pollution contrary to this Convention; (i) any fishing activities; (j) the carrying out of research or
survey activities; (k) interfering with any systems of communication or any other facilities or
installations of the coastal State; (l) any other activity not having a direct bearing on passage.
14. 14. 2. WHAT IS THE DEFINITION OF CONTIGUOUS ZONE? 14 Article21 Laws and regulations
of the coastal State relating to innocent passage 1. The coastal State may adopt laws and regulations,
in conformity with the provisions of this Convention and other rules of international law, relating to
innocent passage through the territorial sea, in respect of all or any of the following: (a) the safety of
navigation and the regulation of maritime traffic; (b) the protection of navigational aids and facilities
and other facilities or installations; (c) the protection of cables and pipelines; (d) the conservation of
the living resources of the sea; (e) the prevention of infringement of the fisheries laws and
regulations of the coastal State; (f) the preservation of the environment of the coastal State and the
prevention, reduction and control of pollution thereof; (g) marine scientific research and
hydrographic surveys; (h) the prevention of infringement of the customs, fiscal, immigration or
sanitary laws and regulations of the coastal State.
15. 15. 2. WHAT IS THE DEFINITION OF CONTIGUOUS ZONE? 15 2. Such laws and regulations
shall not apply to the design, construction, manning or equipment of foreign ships unless they are
giving effect to generally accepted international rules or standards. 3. The coastal State shall give due
publicity to all such laws and regulations. 4. Foreign ships exercising the right of innocent passage
through the territorial sea shall comply with all such laws and regulations and all generally accepted
international regulations relating to the prevention of collisions at sea.
16. 16. 3. WHAT IS PMSCS1/2? Private Military Security Companies (PMSC1) Private Maritime
Security Companies (PMSC2) Private Contract Armed Security Personnel (PCASP 1) 16
17. 17. 4. WHAT GOVERNS PMSCS? (I) MONTREUX DOCUMENT
http://www.imo.org/OurWork/Security/PiracyArmedRobbery/ Guidance/Documents/MSC.1-
Circ.1443.pdf PMSC1 17 September 2008 Good practice Respect for International humanitarian
 law Part 1: Contracting States, Territorial States and Home States Conduct of private person
Responsibilities of PMSCs and personnel Part 2: regulating PMSCs, weapons and armed services
17
18. 18. 4. WHAT GOVERNS PMSCS? (I) MONTREUX DOCUMENT; Joint doc 1. Afghanistan 2.
Angola 3. Australia 4. Austria 5. Canada 6. China 7. France 8. Germany 9. Iraq 10. Poland 11. Sierra
Leone 12. South Africa 13. Sweden 14. Switzerland 15. United Kingdom 16. Ukraine 17. United
States of America 18 18. Former Yugoslav Republic of Macedonia (3 February 2009) 19. Ecuador
(12 February 2009) 20. Albania (17 February 2009) 21. Netherlands (20 February 2009) 22. Bosnia
and Herzegovina (9 March 2009) 23. Greece (13 March 2009) 24. Portugal (27 March 2009) 25.
Chile (06 Avril 2009) 26. Uruguay (22 Avril 2009) 27. Liechtenstein (27 Avril 2009) 28. Qatar (30
Avril 2009) 29. Jordan (18 May 2009) 30. Spain (20 May 2009) 31. Italy (15 June 2009) 32. Uganda
(23.07.2009) 33. Cyprus (29.09.2009) 34. Georgia (22.10.2009) 35. Denmark (09.08.2010) 36.
Hungary (01.02.2011) 37. Costa Rica (25.10.2011) 38. Finland (25.11.2011) 39. Belgium
(28.02.2012) 40. Norway (08.06.2012) 41. Lithuania (13.06.2012) 42. Slovenia (24.07.2012) 43.
Iceland (22.10.2012) 44. Bulgaria (08.01.2013) 45. Kuwait (02.05.2013) 46. Croatia (22.05.2013)
47. New Zealand (14.10.2013) 48. Czech Republic (14.11.2013) 49. Luxembourg (27.11.2013) 50.
Japan (6.2.2014)
19. 19. 4. WHAT GOVERNS PMSCS? (I) MONTREUX DOCUMENT; Swiss Fed Gov & Int.
Committee of the Red Cross Not legally binding Contracting States: obligations that personnel
understand obligations Take measures to suppress violations of international humanitarian law
(IHL) Geneva Conventions Obligation to investigate & punish 19
20. 20. 4. WHAT GOVERNS PMSCS? (I) MONTREUX DOCUMENT; Territorial states:
Disseminate text of Geneva Conventions Preventive measures against violations of IHL
Investigate and prosecute Home States: As above All other States: as above, Int. Criminal
Tribunal 20
21. 21. 4. WHAT GOVERNS PMSCS? (I) MONTREUX DOCUMENT; PMSC and personnel
Comply with IHL and human rights law & national applicable law e.g immigration & labour Part
II: 1. services 2. selection & contracting 3. Criteria & selection 4. Terms of contract 5.
Monitoring compliance and ensuring accountability 21
22. 22. 4. WHAT GOVERNS PMSCS? (I) MONTREUX DOCUMENT; B. Good practices for
territorial state procedures Criteria Terms of authorisation Rules on the provision of services
Art. 43 use of force and firearms a) only in self-defence or defence of third persons; B) reporting
to and cooperation with competent authorities in the case of use of force and firearms 22
23. 23. 4. WHAT GOVERNS PMSCS? (I) MONTREUX DOCUMENT; 44. To have in place
appropriate rules on the possession of weapons by PMSCs and their personnel ,such as: a) limiting
the types and quantity of weapons and ammunition that a PMSC may import, possess or acquire; b)
requiring the registration of weapons, including their serial number and calibre, and ammunition,
with a competent authority; c) requiring PMSC personnel to obtain an authorization to carry weapons
that is shown upon demand; d) limiting the number of employees allowed to carry weapons in a
specific context or area; e) requiring the storage of weapons and ammunition in a secure and safe
facility when personnel are off duty; f) requiring that PMSC personnel carry authorized weapons
only while on duty; g) controlling the further possession and use of weapons and ammunition after
an assignment is completed, including return to point of origin or other proper disposal of weapons
and ammunition. * No specific reference to EEZ or Contiguous zone, safe for compliance with IHL/
International law 23
24. 24. 4. WHAT GOVERNS PMSCS? (II) ICOC; International Code of Conduct for Private Security
Service Providers 9 November 2010 15 pages Definitions- guard & protect Stakeholders work
to national standards 24
25. 25. 4. WHAT GOVERNS PMSCS? (II) ICOC Use of Force 30. Signatory Companies will require
their Personnel to take all reasonable steps to avoid the use of force. If force is used, it shall be in a
manner consistent with applicable law. In no case shall the use of force exceed what is strictly
necessary, and should be proportionate to the threat and appropriate to the situation. 31. Signatory
Companies will require that their Personnel not use firearms against persons except in self-defence or
 defence of others against the imminent threat of death or serious injury, or to prevent the perpetration
of a particularly serious crime involving grave threat to life. 32. To the extent that Personnel are
formally authorized to assist in the exercise of a state's law enforcement authority, Signatory
Companies will require that their use of force or weapons will comply with all national and
international obligations applicable to regular law enforcement officials of that state and, as a
minimum, with the standards expressed in the United Nations Basic Principles on the Use of Force
and Firearms by Law Enforcement Officials (1990). 25
26. 26. 4. WHAT GOVERNS PMSCS? (II) ICOC Prohibitions Torture, Cruel, Inhuman or degrading
Treatment, Art. 34 Sexual Abuse, Art. 38 Human Trafficking, Art. 39 Prohibition of Slavery &
Forced labour, Art. 40 Child labour, Art. 41 Vetting & selection, Art. 45 - 51 26
27. 27. 4. WHAT GOVERNS PMSCS? (II) ICOC Management of Weapons 56. Signatory Companies
will acquire and maintain authorizations for the possession and use of any weapons and ammunition
required by applicable law. 57. Signatory Companies will neither, and will require that their
Personnel do not, possess nor use weapons or ammunition which are illegal under any applicable
law. Signatory Companies will not, and will require that their Personnel not, engage in any illegal
weapons transfers and will conduct any weapons transactions in accordance with applicable laws and
UN Security Council requirements, including sanctions. Weapons and ammunition will not be
altered in any way that contravenes applicable national or international law. 58. Signatory Company
policies or procedures for management of weapons and ammunitions should include: a) secure
storage; b) controls over their issue; c) records regarding to whom and when weapons are issued; d)
identification and accounting of all ammunition; and e) verifiable and proper disposal. 27
28. 28. 4. WHAT GOVERNS PMSCS? (II) ICOC Meeting Liabilities 69. Signatory Companies will
ensure that they have sufficient financial capacity in place at all times to meet reasonably anticipated
commercial liabilities for damages to any person in respect of personal injury, death or damage to
property. Sufficient financial capacity may be met by customer commitments, adequate insurance
coverage, (such as by employers liability and public liability coverage appropriately sized for the
scale and scope of operations of the Signatory Company) or self insurance/retention. Where it is not
possible to obtain suitable insurance cover, the Signatory Company will make alternative
arrangements to ensure that it is able to meet such liabilities. Q. What insurance companies would
cover this? 28
29. 29. 4. WHAT GOVERNS PMSCS? (II) ICOC Oversight - Association for the International Code of
Conduct for Private Security Service Providers in Sept 2013 - 1 August 2013 708 members - UK
contributed 300,000 funding 29
30. 30. 4. WHAT GOVERNS PMSCS? (III) PSC1 Management System for Quality of Private Security
Company Operations (ANSI/ASIS PSC1- 2012) ASIS Standards and Guidelines ASIS
International Standards & Guidelines Commission March 5, 2012, American National Standards
Institute ASIS (38,000 members) 120 pages Plan-Do-Check-Action 30
31. 31. 4. WHAT GOVERNS PMSCS? (III) PSC1 Risk factors Planning legal, regulatory & other
requirements Art. 9.2.5 Procurement and Management of Weapons, Hazardous Materials and
Munition a) compliance with registrations, certificates & permits; b) acquisition; c) secure storage; d)
controls, ID, use, maintenance, return & loss; e) records whom & when weapons issued f) ID and
account for all ammunition & weapons g) proper disposal with verification 31
32. 32. 4. WHAT GOVERNS PMSCS? (III) PSC1 9.3 Competence & training e) The use of weapons
and force that is reasonably necessary, proportional, and lawful A.9.5.2 Procurement and
management of weapons, hazardous materials and munitions A.9.5.3 Rule for Use of Force & Use of
Force training 32
33. 33. 4. WHAT GOVERNS PMSCS? (IV) ISO 20078 ISO/PAS 28007:2012 Ships and marine
technology - Guidelines for Private Maritime Security Companies (PMSC) providing privately
contracted armed security personnel (PCASP) on board ships (and pro forma contract). Benefits of
ISO/PAS 28007 credibility Best Practice Reduced costs LT 33
34. 34. 5. WHAT IS THE RELATIONSHIP B/W PMSC AND COAST GUARD? Section 912 of the
2010 Coast Guard Authorization Act (Public Law 111-281): an owner, operator, time charterer,
master, mariner, or individual who uses force or authorizes the use of force to defend a vessel of the
United States against an act of piracy shall not be liable for monetary damages for any injury or
 death caused by such force to any person engaging in an act of piracy if such force was in
accordance with standard rules for the use of force in self-defense of vessels prescribed by the
Secretary. (emphasis added) (PSA 3-09) provides guidance on self- defense and references High
Risk Waters 34
35. 35. 5. WHAT IS THE RELATIONSHIP B/W PMSC AND COAST GUARD? Arms on Board
Japan: Security on Board= prohibited Possession of weapons = prohibited Prohibition Japanese
Firearms and Swords Control Law Use of PMSCs1/2? UK: not restrictions re PMSCs on board
Possessions controlled y UK firearms legislation Carriage of weapons = contravention under
current laws Acknowledgement of PMSCs Ref: http://www.ukpandi.com/fileadmin/uploads/uk-
pi/Documents/Piracy/privatearmedguardsflagstateregs.pdf 35
36. 36. 5. WHAT IS THE RELATIONSHIP B/W PMSC AND COAST GUARD? IHL UK context
firearms act Issue of legitimacy? 6. Implications in transfer of weapons/equipment? National
legislation Recognition Legal/illegal 36
37. 37. 5. WHAT IS THE RELATIONSHIP B/W PMSC AND COAST GUARD? Scenario: 2.
Unmanned Vehicle Control by Navy; collision or death? Responsibility? Consequences? 2.
Unmanned vehicle sub-contracted? Control subcontracted; collision or death? Responsibility?
Consequences? 37