Maritime piracy, PCASPs, PMSCs, international law, UNCLOS
This article discusses the use of PCASPs as an alternative or additional layer of protection on board ships in the fight against maritime piracy and armed robbery at sea from an international law perspective based on legal positivism. A concern is that clear-cut, international legal rules are missing on PCASPs. A particular concern is the use of force by PCASPs.
The IMO, the shipping- and PMSC industry have had to resort to soft law instruments and self-regulations. The perceived lack of legal rules concerning PCASPs and PMSCs has resulted in a lot of criticism. But does international law on maritime piracy need to develop binding international legal rules’ that are directly applicable to PCASPs? My findings are that the existing legal framework, in the Law of the Sea, SOLAS Convention, customary international law on self-defence together with the non-binding IMO guidelines and the shipping industry’s and PMSC’s self-regulations, as implemented by national laws, gives the necessary framework to adequately address the issue of PCASPs as protection against maritime piracy.
The article describes maritime piracy, piracy hotspots and how intervention against piracy differs according to regions. It analyses the current legal framework on maritime piracy and armed robbery at sea in UNCLOS and the SUA Convention, flag-state jurisdiction and national laws. It defines “soft law” and goes through regulations on PCASPs from the Montreux Document and ICoC to regulations that directly address the use of PCASPs on board ships, as the IMO Guidelines, ISO Standards, the industries standard agreements and Guidance on the use of force
Download Full Text Here
Barry Hart Dubner & Claudia Pastorius, On the Effectiveness of Private Security Guards on Board Merchant Ships off the Coast of Somalia - Where Is the Piracy; What Are the Legal Ramifications, N.C.J. Int'l L. & Com. Reg., Vol.39, (2014), p.1029, 1040.
Birgit Feldtmann, On-board Protection of Merchant Vessels from the Perspective of International Law, Erasmus Law Review, No.4, (2018), pp.209, 212, Srilatha Vallabu. Privately Contracted Armed Security Personnel in Indian Ocean Region, Patrick Chaumette (ed.) ESPACES MARINS: SURVEILLANCE ET PRÉVENTION DES TRAFICS ILLICITES EN MER, Gomylex, (2016), pp.265-279.
These abbreviations are used by IMO and ISO, see e.g., ISO/PAS 28007-1:2015, 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) — Part 1. The abbrevation “PSCs” is used in the International Code of Conduct for Private Security Service Providers (IcoC) from 2010, however it is applicable only to land based PCASPs. Also, to avoid confusion, it should be noted that in other literature “PMSC” may be an abbreviation for private military and security companies (PMSC)
Theodore T. Richard, Reconsidering the Letter of Marque: Utilizing Private Security Provider against Piracy, Public Contract Law Journal, Vol.39: 3 (2010): pp.411-464.
James Kraska; Brian Wilson, Piracy Repression, Partnering and the Law, Journal of Maritime Law and Commerce, Vol. 40:1 (2009), pp. 43-58, p.54.
UNCLOS Article 100, cited infra.
Partnering is particularly vital against piracy because most of the ocean's surface is not under state jurisdiction, and no single nation has the naval capability to effectively patrol the vast areas affected by piracy,” writes, James Kraska, Brian Wilson, Piracy Repression, Partnering and the Law, Journal of
Maritime Law and Commerce, Vol.40:1 (2009), p.43, 48.
Robert McLaughlin, Reinforcing the Law of the Sea Convention of 1982 Through Clarification and Implementation, Ocean & Coastal L.J., Vol.25 (2020), pp.130,131.
Martin Ratcovich, International Law and the Rescue of Refugees at Sea, Stockholm University Press, 2019, p.55.
Cuong Manh Nguyen, Tien Quoc Le, Impact of Piracy on Maritime Transport and Technical Solutions for Prevention, International Journal of Civil Engineering and Technology, Vol. 10(01), (2019), p.958.
See e.g. UNSC Res. 2500 (Dec.2019), that notes the complex relationship between illegal and unregulated fishing and piracy in its preamble.
Alejandro Guzmán Woodroffe, Caribbean Piracy, a Disney Fantasy or a Real Threat? The Maritime Executive, 07-29-2019, [https://www.maritime-executive.com/blog/pirates-of-the-caribbean-a-disney-fantasy-or-a-real-threat].
Peter Lehr, Pirates - A New History, from Vikings to Somali Raiders, Yale University Press, 2019.
For the latest example, see UNSC Res. 2500 (Dec.2019), that writes in its preamble:” Emphasizing that peace and stability within Somalia, the strengthening of State institutions, economic and social development, and respect for human rights and the rule of law are necessary to create the conditions for a durable eradication of piracy and armed robbery at sea off the coast of Somalia.”
Cuong Manh Nguyen, Tien Quoc, supra, at p.961.
Maritime Piracy, Chapter 9, UNODC Report 2009, pp.193-200 [https://www.unodc.org/documents/data-and-analysis/tocta/9.Maritime_piracy.pdf].
With piracy and armed robbery emerging as persistent threats in the Western Indian Ocean, the Gulf of Guinea and South East Asia, ships are encouraged to report to the centres overseeing the Voluntary Reporting Areas (VRAS) to ensure that the military and law enforcement forces are aware of the vessels’ intended sea passages and their vulnerability to an attack.
The IMB’s Piracy Reporting Centre (PRC) recorded 98 incidents of piracy and armed robbery in the first half of 2020, up from 78 in Q2 2019, see Crew kidnappings surge in seas off West Africa, ICC Commercial Crime Service, A Specialized Division of the International Chamber of Commerce, [https://www.icc-ccs.org/index.php/1293-crew-kidnappings-surge-in-seas-off-west-africa-imb-reports].
BIMCO, ICS, IGP&I Clubs, INTERTANKO and OCIMF, BMP5 - Best Management Practices to Deter Piracy and Enhance Maritime Security in the Red Sea, Gulf of Aden, Indian Ocean and Arabian Sea, (2018).
See infra on piracy in the Gulf of Guinea.
BIMCO, ICS, IFSMA, IGP&I, INTERTANKO, INTERCARGO, INTERMANAGER, OCIMF, Global Counter Piracy Guidance for Companies, Masters and Seafarers, Witherby publishing Group (2018).
Dryad 2019 Maritime Security Report [https://dryadglobal.com/2019-annual-maritime-security-incident-report/].
UNSC Res. 1844 refers to Chapter VII in the UN-Charter: "Determining that the incidents of piracy and armed robbery against vessels in the territorial waters of Somalia and the high seas off the coast of Somalia exacerbate the situation in Somalia which continues to constitute a threat to international peace and security in the region”, a phrase repeated in subsequent UNSC resolutions, see e.g. UNSC Res.2077 (2012), 2500 (Dec.2019).
See also UNSC Resolution 2020 (2011).
Yaron Gottlieb, The Security Council’s Maritime Piracy Resolutions: A Critical Assessment, 24 Minn. J. Int'l L. no.1, 2015, pp.1-72, p. 55.
The resolution: "Commending the efforts of flag States for taking appropriate measures to permit vessels sailing under their flag transiting the High Risk Area to embark vessel protection detachments and privately contracted armed security personnel, and encouraging States to regulate such activities in accordance with applicable international law and permit charters to favour arrangements that make use of such measures." The UNSC reiterated this position in Resolution 2125 (2013), which cites the use of PCASP’s a couple of times.
See UNSC Res. 2500 (Dec.2019), para.26:” (d)eveloping regulations for the use of privately contracted armed security personnel (PCASP) on board ships, aimed at preventing and suppressing piracy off the coast of Somalia, through a consultative process, including through the IMO and ISO;”
The Covid-19 pandemic is having an effect, as countries like Somalia where already socio-political conditions and economic dislocation have paved way for piracy. E.g. in May 2020, two pirate skiffs attacked a tanker vessel in the Gulf of Aden, until they were pushed back by the ship’s PCASPs.
International Maritime Bureau (IMB) cited in Marine Insurance P&I Club News, Piracy and Security News 06/11/2019.[https://www.hellenicshippingnews.com/gulf-of-guinea-worlds-most-dangerous-piracy-hotspot/].
Guidelines for Owners, Operators and master’s for protection against piracy and armed robbery in the Gulf of Guinea region (Version 3, June 2018), Annex 3, reprinted in MSC.1/Circ.1601 (8 Dec. 2018).
Olivia Konotey-Ahulu, Pirates Now Prefer Human Hostages Over Ships And Cargo, Dryad Global, Jan. 11, 2020, [https://dryadglobal.com/pirates-now-prefer-human-hostages-over-ships-and-cargo/]. The London School of Economics indicates that the cost of piracy to the shipping industry and end consumers is as much as $3.3bn, What’s the cost of piracy in West African waters? Aljazeera News, 03-08-2019,
Jose Manuel Sobrino Heredia, Piracy, Spanish Yearbook of International Law, Vol. 21 (2017), pp.397, 402.
Ogunnubi, Onapajo, & Isike, A., Failing Regional Power? Nigeria’s International Status in the Age of Boko Haram, Politikon South African Journal of Political Studies, Vol. 44(1), Dec. 2016, p.1-20.
Hugo Decis, Gulf of Guinea: stepping up to the maritime-security challenge? ISS Org. Military Balance Blog, 17 Apr.2020 [https://www.iiss.org/blogs/military-balance/2020/04/gulf-of-guinea-maritime-security-challenges].
See SC Res. 2018 (2011), and 2039 (2012).
See UNSC Res.2039 (2012), and S/PRST/2016/4 (2016). Violent attacks against ships and their crews have risen in 2020, up 20 attacks since 2019 in the first quarter of the year, IBM Reports, see [https://iccwbo.org/media-wall/news-speeches/crew-kidnappings-surge-inseas-off-west-africa-imb-reports/]
Guidelines for Owners, Operators and Masters’ for protection against piracy and armed robbery in the Gulf of Guinea region (Version 3, June 2018), Annex 3, reprinted in MSC.1/Circ.1601 (8 Dec. 2018).
Global Counter Piracy Guidance for Companies, Masters and Seafarers, as set out in annex 1, in MSC.1/Circ.1601 (8 Dec. 2018), para.8.7.
Piracy incidents in Asian waters in the first six months of 2020 was almost double, Report by the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), July 2020.
Report by the RECAAP Information Sharing Centre for the Ninth Meeting of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea,
ReCAAP Information Sharing Center, Homepage, [https://www.recaap.org/piracy_definitions_and_actions].
Hadyu Ikrami,, Sulu-Sulawesi Seas Patrol: Lessons from the Malacca Straits Patrol and Other Similar Cooperative Frameworks, The International Journal of Marine and Coastal Law, Vol.33:4 (2018), pp.799–826, p.805.
Huang Yao, Universal Jurisdiction over Piracy and East Asian Practice, Chinese Journal of International Law Vol. 11 (2012), pp. 623-656.
Safety at Sea Report, (2018), [https://safety4sea.com/wp-content/uploads/2019/06/OEF-Stable-Seas-The-state-of-maritime-piracy-2018-2019_06.pdf].
Hadyu Ikrami supra, p. 826.
Ibid., at p.808-09.
Report examining the maritime security and governance in the Bay of Bengal, Stable Seas, 2020 [https://safety4sea.com/bay-of-bengal-can-achieve-sustainable-maritime-security-by-setting-priorities-report-says/]
Rajni Gamage, Maritime security governance prospects in the Bay of Bengal, RSIS, East Asia Forum,(17 Feb. 2017) [https://www.eastasiaforum.org/2017/02/17/maritime-security-governance-prospects-in-the-bay-of-bengal/].
Piracy Attacks Increase in Q1 2020, Homeland Security Today, (Apr.14. 2020), [https://www.hstoday.us/subject-matter-areas/transportation/piracy-attacks-increase-in-q1-2020/].
High Number of Piracy Attacks Reported in the Gulf of Mexico, Sadety4sea Security, 24/04/2020, [https://safety4sea.com/high-number-of-piracy-attacks-reported-in-the-gulf-of-mexico/?], The State of Maritime Piracy 2018- Assessing the Human Cost, Report by Safety4sea, 2018, [https://safety4sea.com/wp-content/uploads/2019/06/OEF-Stable-Seas-The-state-of-maritime-piracy-2018-2019_06.pdf]
James Kraska, Raul Pedrozo, International Maritime Security Law, Martinus Nijhoff Publishers, (2013), p.658.
Such as the Maritime Security Operative (MSO) qualification 8269, based on the international standard for Private Maritime Security Companies (PMSCs): ISO28007 [Guidelines for PMSCs providing privately contracted armed security personnel (PCASP) on board ships] offered. National law can require certificates of proficiency, like the STCW Certificate of Proficiency (CoP) in Designated Security Duties (DSD) is a statutory requirement.
See Uniformity of Regulations, infra in Part 2 of this Article.
Joakim Berndtsson & Åse Gilje Østensen (2015) The Scandinavian Approach to Private Maritime Security—A Regulatory Façade? Ocean Development & International Law, Vol.46:2, pp. 138, 146.
James Brown, Pirates and Privateers: Managing the Indian Ocean’s Private Security Boom, Lowy Institute Analysis (2012), pp.1, 11.
Joakim Berndtsson, Exploring PSC-military relations: Swedish officers and the private security sector in peace operations, Cooperation and Conflict, Vol. 48:4 (2013), pp. 484-501.
Peter Singer, Corporate Warriors, 2nd Ed.(2008), Cornell University Press, p.251, James Brown, Pirates and Privateers: Managing the Indian Ocean’s Private Security Boom, Lowy Institute Analysis (2012), PCA Case No. 2015-28, An Arbitral tribunal Constituted under Annex VII to the 1982 United Nations Law of the Sea, The Italian Republic - v. – the Republic of India - concerning - The “ENRICA LEXIE” Incident, Award, 21 May 2020.
Brown, supra, p. 8.
Captain George Livingstone, The Chennai Six – Justice for Crew of M/V Seaman Guard Ohio, Sep. 7, 2017, GCaptain, [https://gcaptain.com/chennai-six-justice-crew-mv-seaman-guard-ohio/], The forgotten ‘Indian 12’ on Seaman Guard Ohio, the Hindu, 16 Dec. 2017 , [https://www.thehindu.com/news/national/the-forgotten-indian-12-on-seaman-guard-ohio/article21823331.ece], see infra in Part 2 of this article..
Myrto Vasili, Private Armed Guards as Seafarers under the Maritime Labour Convention 2006, Journal of International Maritime Law, Vol.23, (2017), p.37.
William MacLachlan, Elinor Dautlich, Eleanor Ayres, Treatment of PCASPs under the Maritime Labour Convention, (July 2014), HFW Briefings, [Https://Www.Hfw.Com/Treatment-Of-Pcasp-Under-The-Maritime-Labour-Convention-July-2014].
United Nations Convention on the Law of the Sea (UNCLOS), Dec. 10, 1982, in force in 1994, Art.101, number of parties 168 (as of Apr. 2020), available at: [https://www.refworld.org/docid/3dd8fd1b4.html]; United Nations Convention on the High Seas, Apr. 29, 1958, 450 U.N.T.S. 82, Art.15, 101. The Convention is still in force and has 63 parties., See Robert McLaughlin, Reinforcing the Law of the Sea Convention of 1982 Through Clarification and Implementation, Ocean & Coastal L.J., Vol.25, 2020, p.130, Omer F. Direk, Martin D. A. Hamilton, Karen S. Openshaw & Patrick C. R. Terry, Somalia and the Problem of Piracy in International Law, Rev. Int'l L. & Pol. , Vol. 6 (2010), p. 115, p.128. See also US case law, United States v. Abdi Wali Dire, 680 F.3d 446, 449, 2012 U.S. App. LEXIS 10371, *1, 2012 AMC 1217, 2012 WL 1860992, where the court finds that the definition of general piracy under modern customary international law is reflected in the U.N. Convention on the Law of the Sea, in Art.101. See also; United States v. Hasan, 747 F. Supp. 2d 599, 2010 U.S. Dist. LEXIS 115746, 2010 AMC 2705, United States v. Beyle, 782 F.3d 159, 2015 U.S. App. LEXIS 5406, 2015 AMC 1099.
M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, Law and Contemporary Problems, Vol.59: 4 (1996), pp. 63-74, 68. The ICJ affirmed the existence of jus cogens, in Armed Activities on the Territory of the Congo (New Application; 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports (2006), p..31, §. 64, see also, Ion Diaconu, Jus Cogens - Developments in International Law, Romanian Journal of International Law, Vol. 16 (2016), pp.36, 40.
For a definition of jus cogens norms see the Vienna Convention on the Law of Treaties, from 1969, Art.53.
Barcelona Traction, Light and Power Company, Limited, arrêt, C.I.J. Recueil 1970, p. 3. Eugene Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation, Harv. Int'l L.J. Vol.45, (2004), pp. 183, 190.
Michael Byers, Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules, Nordic Journal of International Law, Vol. 66, no. 2-3 (1997): pp.211-240, 211.
Lassa Oppenheim, International Law, 1908, (Sir Robert Jennings, QC & Sir Arthur Watts, KCMG QC, eds., 9th ed. 1992), para. § 272.
Armed Activities on the Territory of the Congo (New Application:2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p,32, §. 64, East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29.
Ashley Roach, Countering Piracy off Somalia: International Law and International Institutes, Am. J. Int'l L. Vol.104 (2010), p. 397, Grace Rodden & James III Walsh, Legal Issues of Private Armed Security on Commercial Ships, Fed. Law., Vol.58, (2011), p.30, 31.
Martin Ratcovich, (2019), supra, p.50.
PCA Case No. 2015-28, An Arbitral tribunal Constituted under Annex VII to the 1982 United Nations Law of the Sea, The Italian Republic - v. – the Republic of India - concerning - The “ENRICA LEXIE” Incident, Award, 21 May 2020.
UNCLOS has been ratified or acceded to by 168 parties, which makes it one of the most widely accepted international conventions.
A definition of “territorial waters” is provided by Article 3 in UNCLOS: “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.”
Ibid., In UNCLOS Art.47 Archipelagic States have a right to archipelagic baselines drawn from their utmost points of their outermost islands and drying reefs: “An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.”
IMO Circular letter concerning information and guidance on elements of international law relating to piracy, Piracy: elements of national legislation pursuant to the United Nations Convention on the Law of the Sea, 1982, the United Nations Division for Ocean Affairs and the Law of the Sea, Legal Committee, 98th session Agenda item 8, (18 Feb. 2011).
“[The UNCLOS] superseded any historic rights, or other sovereign rights or jurisdiction, in excess of the limits imposed therein”, ” citation from The South China Sea Arbitration Award of 12 July 2016, PCA Case Nº 2013-19, the PCA Findings in B).
Enrica Lexie, PCA Case No. 2015-28, Awards (2020), supra, para.1076 and 1077.
IMO Resolution A.1025(26) (Annex, paragraph 2.2), on IMO's Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery (18 Jan.2010). Siti Noor Malia Putri, Archipelagic State Responsibility on Armed Robbery at Sea, Indonesian Journal of International Law, Vol. 14:4 (2017), pp. 477-496.
Military and Paramilitary Activities in and Against Nicaragua Judgment of 27 June 1986, I.C.J. Rep. 14 (1986), p. 251, at para. 212-13: “The basic legal concept of State sovereignty in customary international law, expressed in, inter alia, Article 2. paragraph 1, of the United Nations Charter, extends to the internal waters and territorial sea of every State and to the air space above its territory.”
See UNCLOS Arts. 17-18.
Sean Watts; Theodore Richard, Baseline Territorial Sovereignty and Cyberspace, Lewis & Clark Law Review 22: 3 (2018), pp. 771, 814.
See M/V Seaman Guard Ohio case, supra at note lxvi. The case is reviewed in upcoming Part 2 of this article.
Jan Arno Hessbruegge, Human Rights and Personal Self-Defense in International Law, OUP, (2017), p.257, see infra on self-defense.
Michael H. Passman, Protections Afforded to Captured Pirates Under the Law of War and
International Law, Tul. Mar. L.J., Vol. 33 (2008), p.1, 12.
Enrica Lexie, PCA Case No. 2015-28, Awards (2020), supra, para.527.
Michael J. Struett, Mark T. Nance, Diane Armstrong, Navigating the Maritime Piracy Regime Complex, Global Governance, Vol. 19:1 (2013), pp. 93-104, 96.
Partnering is particularly vital against piracy because most of the ocean's surface is not under state jurisdiction, and no single nation has the naval capability to effectively patrol the vast areas affected by piracy,” as noted by, James Kraska; Brian Wilson, Piracy Repression, Partnering and the Law, Journal of
Maritime Law and Commerce, Vol. 40:1 (Jan. 2009), pp. 43-58, 48.
International Law Commission, “Articles Concerning the Law of the Sea with Commentaries” in Yearbook of the International Law Commission, Vol. II, (1956), p. 265, 282 (commentary to Article 38, para. 2).
Enrica Lexie, PCA Case No. 2015-28, Awards (2020), supra, para.723.
Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1678 U.N.T.S. 221, 271, I.L.M. 668 (1988), entered into force March 1, 1992. It has today 166 parties.
Andrew L. Liput, An Analysis of the Achille Lauro Affair: Towards an Effective and Legal Method of Bringing International Terrorists to Justice, Fordham International Law Journal, Vol.9:2, (1985), pp.328. The Palestine Liberation Front (PLO) hijacked an Italian liner, the Achille Lauro, during a Mediterranean cruise and took more than 400 passengers and crew members hostages. The US military intervened. After the incident, it forced an Egyptian Aircraft with the PLO terrorists on-board to land in Italy at a NATO-airbase, to bring them back to the United States to stand trial for their hijacking. However, the Italian authorities intervened and took the Palestinians in Italian custody for trial in Italy.
The US is not a party to the UNCLOS, but recognizes that its provisions on piracy are a codification of customary international law giving rise to universal jurisdiction, see; United States v. Beyle, 782 F.3d 159, 167, 2015 U.S. App. LEXIS 5406, *18, 2015 AMC 1099, United States v. Abdi Wali Dire, 680 F.3d 446, 449, 2012 U.S. App. LEXIS 10371, *1, 2012 AMC 1217, 2012 WL 1860992; United States v. Hasan, 747 F. Supp. 2d 599, 2010 U.S. Dist. LEXIS 115746, 2010 AMC 2705.
“The US recognized that international law, specifically the 1982 Law of the Sea Convention did not find a seizure of a ship for political purposes to be considered an act of piracy”, according to Liput, supra, at 330.
Kraska and Wilson, supra, at p.57.
J. Ashley Roach, Countering Piracy off Somalia: International Law and International Institutes, AJIL, Vol. 104:3 (2010), pp. 397-416, 399.
Struett, Nance, Armstrong, 2013, supra, p.96.
The International Convention Against the Taking of Hostages, 1979, U.N.T.S, Vol 1316, p.205; The Convention has today 176 parties.
Blumenau, Bernhard, The United Nations and Terrorism.Germany Multilateralism, and Antiterrorism Efforts in the 1970s, Basingstoke: Palgrave MacMillan (2014), pp.197,208.
Mellon, Bergen, Sterman, (2017), supra, p.6.
See part 2 of this article.
Ratcovich, supra, p.48.
Dubner, Pastorius, supra, pp.1030, 1040.
See Enrica Lexie case, supra, para.1074.
Ilja Van Hespen, Protecting Merchant Ships from Maritime Piracy by Privately Contracted Armed Security Personnel:A Comparative Analysis of Flag State Legislation and Port and Coastal State Requirements, Journal of Maritime Law & Commerce, Vol. 45:3, (2014), pp.361, 379f.
Nigel D. White, Due Diligence Obligations of Conduct: Developing a Responsibility Regime for PMSCs, Crim. Just. Ethics, Vol.31 (2012), p.234.
Private Security Companies Lack Oversight and Regulation - UN Working Group, U.N. NEWS CTR. (Mar. 10, 2008), [http://www.un.org/apps/news/story.asp?NewslD=25924].
Christine M. Chinkin, The challenge of soft law: development and change in international law, ICLQ, Vol.38 (1989), pp.850-866; W. Michael Reisman, The conception and functions of soft law in international politics, in Emmanuel G. Bello & Prince Bola A. Ajibola, SAN (eds.), Essays in honour of Judge Taslim Olawale Elias, Martinus Nijhoff, Dordrecht, (1992), vol. I, 135-144.
Chinkin, supra, p. 850.
Jan Klabbers, The Redundancy of Soft Law, Nordic Journal of International Law, Vol. 65:2 (1996), pp. 167-182, 168.
Anna di Robilant, Genealogies of Soft Law, American Journal of Comparative Law, Vol. 54:3 (2006), pp.499-554, 500.
Francis Snyder, The effectiveness of European community law: Institutions, processes, tools and techniques, Modern Law Review, Vol. 56 (1) (1993), p. 19, quoted in Filippo M. Zerilli, The rule of soft law: An introduction, Journal of Global and Historical Anthropology, Vol. 56 (2010), pp. 3, 10.
See e.g. Prosper Weil, Towards Relative Normativity in International Law? Am. J. Int' L., Vol.77, (1983), pp. 413 442, 414, Jan Klabbers, The Undesirability of Soft Law, Nordic J. Int'l L., Vol.67 (1998), p.381.
Timothy Meyer, Soft Law as Delegation, Fordham International Law Journal, Vol. 32: 3 (2009), pp. 888-942, 890.
Simon O. Williams, Soft-Law Guidelines for Maritime Security Compliance, THE MARITIME EXECUTIVE, 02-15-2015, [https://www.maritime-executive.com/features/soft-law-guidelines-for-maritime-security-compliance]
See supra at Flag State Jurisdiction and National Laws Governing the Use of PCASPs.
Andrew T. Guzman; Timothy L. Meyer, International Soft Law, Journal of Legal Analysis, Vol. 2:1 (2010): p.171.
Simon O. Williams, (2015), supra.
Dinah L. Shelton, Soft Law, Routledge Handbook of International Law, ed. David Armstrong, Routledge Press, (2009), pp.68-69:
Montreux Document: On pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict, Montreux, 17 Sep. 2008, Preface p.3. 56 states support the Montreux Document as of August 2020.
It is aimed as a restatement of existing international law, during armed conflict to provide states with good practices to promote compliance with humanitarian and human rights law, see the Montreux Document, Preface para. 2.
Nigel D. White, Sorcha MacLeod, EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility, EJIL, Vol. 19:5, (2008), p.965.
Art.5 in the Preface of the Montreux Document provides; "[t]hat existing obligations and good practices may also be instructive for post-conflict situations and for other, comparable situations”, Alexander McKinnon, Maritime Piracy: A Hong Kong Perspective, Hong Kong Law Journal , Vol. 41: 3 (2012): pp. 635, 653.
IMO, Piracy and Armed Robbery Against Ships: the need for more proactive protective measures submitted by the Bahamas and the Marshall Islands, MSC 89/18/7, (8 Mar. 2011), para 10.1; IMO, Piracy and Armed Robbery Against Ships: International Code of Conduct for Private Security Service Providers (ICoC) submitted by Cook Islands, MSC 89/18/1, (7 Mar. 2011), para 2.
It is currently signed by over 700 companies from 70 countries, [see https://www.raid-uk.org/content/pmsc-code-conduct-icoc].
Berenike Prem, Private Military and Security Companies as Legitimate Governors – From Barricades to Boardrooms, Routledge (2020), p.155.
Anna Petrig, The Use of Force and Firearms by Private Maritime Security Companies against Suspected Pirates, Int'l & Comp. L.Q. Vol. 62 (2013), pp.667, 674.
Peter Cook, Dealing with Criticism, SAMI Bulletin, (2014),
Sami Briefing Document, ICoC, 1/2010. The SAMI also participated in a maritime security industry pan statement supporting the applicability of the ICoC standards, Industry Statement, 9th nov.2010.
Felicity Attard, IMO's Contribution to International Law Regulating Maritime Security, J. Mar. L. & Com. Vol. 45, (2014), p.479, 544.
BIMCO, ICS, IFSMA, IGP&I, INTERTANKO, INTERCARGO, INTERMANAGER, OCIMF, Global Counter Piracy Guidance for Companies, Masters and Seafarers, reprinted in IMO, MSC.1/Circ.1601 (8 Dec.2018) Annex 1, Witherby Publishing Group (June 2018), BIMCO, ICS, IGP&I Clubs, INTERTANKO and OCIMF, BMP5- Best Management Practices to Deter Piracy and Enhance Maritime Security in the Red Sea, Gulf of Aden, Indian Ocean and Arabian Sea”, (June 2018), reprinted in IMO, MSC.1/Circ.1601 (8 Dec.2018), Annex 2.
The Annex 3, Guidelines for Owners, Operators, and master’s for protection against piracy and armed robbery in the Gulf of Guinea region (Version 3, June 2018).
BMP 5 is cited in S/RES/1976 (2011), and in the latest S/RES/2500 (2019) on Somalia.
International Piracy and Armed Robbery at Sea Security Inquiry Report, Australian Government Office of the Inspector of Transport Security, (Apr. 2010).
GCPG 1, para.7.15. The BMP 5, in Annex 2.
See ISO Homepage on 28 000:2007, Specification for security management systems for the supply chain,
UKAS Guidance for Certification Bodies Certifying Private Maritime Security Companies against ISO 28000/ISO 28007-1:2015, (2 Dec. 2019)
GUARDCON Explanatory Note, p. 1.
Guidance on RUF by BIMCO for Privately Contracted Armed Security Personnel (PCASP) in Defence of a Merchant Vessel (MV), [https://www.ukpandi.com/-/media/files/imports/13108/circulars/8491---bimco-guidance-on-the-rules-for-the-use-of-force.pdf] See GUARDCON Explanatory Note, p.2.