Criminality at Sea: Identifying Legal Frameworks and Normative Gaps. Marsafenet Final Conference, Rome, 10 March 2016 Dr. iur. Anna Petrig, LL.M.

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1 Criminality at Sea: Identifying Legal Frameworks and Normative Gaps Marsafenet Final Conference, Rome, 10 March 2016 Dr. iur. Anna Petrig, LL.M.

2 Public and private responses to criminality at sea Identifying legal framework Legal framework for preventing and suppressing criminality at sea complex, sometimes ambiguous, state of flux challenge identify applicable and relevant rules understand their scope and content in maritime context Stocktaking important understand where legal uncertainty detect normative gaps Marsafenet Working Group 3 endeavoured in such stocktaking: piracy and migration at sea presentation of some results: concentration on private responses Marsafenet - Final Conference, Rome, 10 March 2016 Dr. iur. Anna Petrig 2

3 Detection of normative gaps Deprivation of liberty by shipmaster, crew, PMSC personnel Legal framework on use of PMSC to protect ships plethora of soft law instruments various states adopted laws Phases covered by legal instruments pre-transit: e.g. licensing of PMSC, selection of personnel, training in-transit phase: arms on board, relationship master-pmsc incident phase (criminal attack is warded off) mainly: use of force silence: situation where suspect is overpowered Deprivation of liberty by shipmaster, crew, PMSC personnel soft law is mute flag state law: rarely complete and/or explicit Marsafenet - Final Conference, Rome, 10 March 2016 Dr. iur. Anna Petrig 3

4 Detection of normative gaps Deprivation of liberty by shipmaster, crew, PMSC personnel Marsafent Guidance covering deprivation of liberty by shipmaster, crew, PMSC personnel two fundamental rules deprivation of liberty only with authorization respect of (fundamental principles of relevant) human rights law Flag state law: two main approaches re deprivation of liberty inquiry into law of top 30 flag states two broad categories: shipmaster, crew, PMSC personnel have law enforcement powers: arrest detention have NO law enforcement powers: private arrest detention Marsafenet - Final Conference, Rome, 10 March 2016 Dr. iur. Anna Petrig 4

5 Detection of normative gaps Deprivation of liberty by shipmaster, crew, PMSC personnel Actors have law enforcement powers: arrest and detention rule only state authorities possess law enforcement powers deprivation of liberty = arrest detention exception private persons vested with law enforcement powers can arrest and detain shipmaster: in some jurisdictions crew, PMSC personnel: generally not human rights apply Marsafenet - Final Conference, Rome, 10 March 2016 Dr. iur. Anna Petrig 5

6 Detection of normative gaps Deprivation of liberty by shipmaster, crew, PMSC personnel Actors have NO law enforcement powers: private arrest detention private arrest and detention authorized by explicit rule on self-help general norm shipmaster-specific norm PMSC personnel-specific norm implicit component of self-defence implicit component of rules on private surrender domestic: e.g. USA international: e.g. Art. 8 SUA Convention application of fundamental principles of relevant human rights law Marsafenet - Final Conference, Rome, 10 March 2016 Dr. iur. Anna Petrig 6

7 Legal uncertainty Montreux Document on use of PMSCs Legal uncertainty regarding application of norm in maritime context main reason: norm drafted with a view to apply on dry land example: Montreux Document state s international obligations / good practices regarding PMSCs drafted with a view to apply to land-based operations today: private security at sea = one of prime markets discussion on pertinence for maritime operations starts only now Applying Montreux Document to maritime operations? brings up various interpretative issues example: meaning of three-fold structure of addressees Territorial, Contracting, Home State states easily pinpointed at land more challenging exercise at sea Marsafenet - Final Conference, Rome, 10 March 2016 Dr. iur. Anna Petrig 7

8 Legal uncertainty Montreux Document Territorial State definition: state on whose territory PMSCs operate notion of territory geographical concept: portion of land? jurisdiction? state under whose jurisdiction PMSCs operate if territory = jurisdiction: which state has jurisdiction? high seas: flag state territorial waters: concurrent jurisdiction with coastal and port state in situations of concurrent jurisdiction: obligations of Territorial State: incumbent on flag, coastal and/or port state? law of the sea rules allocating jurisdiction must be respected examples Marsafenet - Final Conference, Rome, 10 March 2016 Dr. iur. Anna Petrig 8

9 Legal uncertainty Montreux Document Territorial State (2) example: possession of weapons Montreux Document requires Territorial State to regulate issue law of the sea: allocation of competences? flag state: obligation to effectively exercise legislative jurisdiction coastal state: limited competence to legislate on innocent passage obligation of Montreux Document must be refined / clarified example: criminal jurisdiction over offences by PMSC Montreux Document requires Territorial States to establish jurisdiction law of the sea: allocation of competences? limits coastal state s competence to enforce criminal law (Art. 27 UNCLOS) limits port state s criminal jurisdiction (customary / comity) obligation of Montreux Document must be refined / clarified Marsafenet - Final Conference, Rome, 10 March 2016 Dr. iur. Anna Petrig 9

10 Legal uncertainty Montreux Document Contracting State definition: states that directly contract for the services of PMSCs underlying assumption: state contracts PMSCs maritime context only exceptionally states hire PMSCs general rule: private entities (ship owner, ship charterer, ) implications for concept of Contracting State? obligations mainly about enacting and enforcing rules functions incumbent on states, not private entities need to customize concept of Contracting State Marsafenet - Final Conference, Rome, 10 March 2016 Dr. iur. Anna Petrig 10

11 Legal uncertainty Montreux Document Contracting State (2) Ways to customize concept of Contracting State for maritime operations? state of nationality of contracting private entity? corporate responsibility to respect human rights Contracting State = contracting business entity? duty to adopt policies and processes and apply them private pendant to obligation to enact and enforce rules? Overall: legal uncertainty re application of Montreux Document at sea Marsafenet - Final Conference, Rome, 10 March 2016 Dr. iur. Anna Petrig 11

12 Public and private responses to criminality at sea Identifying legal framework - conclusions Differentiated answers are needed broad call for new law and institutions is not helpful stocktaking of existing law: identify normative gaps and legal uncertainties differentiated answers for law and policy makers Need for generally applicable rules discussion / development of legal framework: tailored to specific criminal threats need to develop generally applicable rules criminal threats: evolve in unforeseeable ways phenomenon-tailored regulation fighting last war proliferation of instruments fragmentation of law Marsafenet - Final Conference, Rome, 10 March 2016 Dr. iur. Anna Petrig 12

13 Public and private responses to criminality at sea Identifying legal framework - conclusions Consolidating and refining existing law consolidate maritime-specific law refine rules drafted for land operations cooperation and coordination institutional interests of relevant actors? Marsafenet - Final Conference, Rome, 10 March 2016 Dr. iur. Anna Petrig 13

14 Many thanks! Anna Petrig, University of Basel/CH

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