Legal Due Diligence in Private Security Operations
The spirit of #BLUESecurity demonstrates the respect for Indvidual’s rights in a complex environment of international legal regimes. The constant instability caused by piracy and threats of violence on shipping routes prudent security management and a solid legal awareness to be able to react to changing security situations. The complex interplay of different legal systems […]Justice Dilemma at Sea: The Statutory Gap of Exercising Jurisdiction on Non-Government Ships
The Cambridge International Law Journal published Philippe HERMES’s uncomplicated introduction to a critical topic. He presented these legal considerations at the panel session on international maritime law at the 81st Biennial Conference of the International Law Association 2024, held in Athens, Greece.
Debates on exercising jurisdiction in the maritime domain take place under the heading of “maritime security” and focus primarily on legal discussions on freedom of navigation and defence against targeted offences against the legal order by third parties. Piracy, ship kidnapping and other armed attacks at sea. It concerns human trafficking, drug and weapons smuggling. Illegal fishing and the legal hurdles for boarding ships under foreign jurisdiction or embarking private maritime security providers. Not to forget migration affairs and environmental challenges. However, these debates do not address issues of protecting the rule of law at sea in the absence of public law enforcement agencies (LEA). Not to mention the constraints on upholding and respecting the flag state’s jurisdiction and principles of fair trial at sea.
Coast guards or other LEAs are authorised by public mandate to enforce law and order. They protect individual human rights and the underlying national jurisdiction at sea. Whilst this authorisation is a fundamental pillar of a fair trial and human rights, most players in the maritime domain are non-state actors without the privilege of being authorised to use force. This aspect and the role of protecting a jurisdiction, of preventing judicial violations of human rights and of compliance with rule of law standards on non-government ships are neglected.
The regulation, legislation and jurisdiction of law enforcement rights aare internal affairs of a state. They are the core affair of the judiciary branch. Yet the different reachability and availability of LEA between land and sea implies a reflection from international law perspective: Law enforcement officials on land are in relatively close proximity to the scene of a crime or other unlawful act. This allows to control investigations and to ensure the principles of fair trial. In contrast, the long distances on the high seas and the absence of LEA make it necessary to determine the responsibility and authorisations for the protection of jurisdiction on non-government ships.
In his paper, Philippe examines whether, and to what extent, the legislation to enforce a jurisdiction is a matter of human rights and concerns maritime security. How states exercise their policing jurisdiction at sea in light of rule of law standards. International conventions on safety, security, and the suppression of unlawful acts at sea are introduced. Exemplary national legislation on the rights of force at sea are presented and discussed in grammatical, systemic, historical, and teleological interpretation.
He discusses whether established international conventions are sufficient to require states to review their existing legislation. The Fair Trial deserves regulations for the private sector and maritime industry that reflect standards of human rights at sea.
Over the last century, a master’s authority and powers democratised itself. The examination and discussion of the limits and constraints of law enforcement at sea in the absence of LEA seems long overdue.
