Tesi etd-05292018-161000
Link copiato negli appunti
Tipo di tesi
Perfezionamento
Autore
STERZI, FRANCESCA
URN
etd-05292018-161000
Titolo
Counter-Piracy between public and private solutions: legal perspectives on the emergence of contracted maritime security practices
Settore scientifico disciplinare
IUS/13
Corso di studi
SCIENZE POLITICHE - Politics, Human Rights and Sustainability
Commissione
relatore Prof. DE GUTTRY, ANDREAS M.T.
Parole chiave
- contracted maritime security
- counter-piracy
- Gulf of Guinea
- International Maritime Organization (IMO)
- Maritime piracy
- maritime security
- naval missions
- private maritime security companies
- Somalia
- Southeast Asia
Data inizio appello
10/07/2018;
Disponibilità
completa
Riassunto analitico
Generally perceived as an issue of the past and, at most, as good material for movies and novels, modern piracy and armed robbery at sea have, on the contrary, shown the fragility of the balance between security and freedom of navigation, and between local/regional dynamics and the globalized economy. Moreover, the deficiencies of the customary regime enshrined in the United Nations Convention on the Law of the Sea have emerged, demonstrating the friction between a century-old conception of piracy and the contemporary complexity of interests, legalities and tactics involved. With more than ninety percent of global goods still carried by sea, the return of the “enemies of mankind” has posed a variety of questions by which the international community in the globalized era has been caught unprepared. Similarly, the prevention and repression of acts of depredation occurring in territorial waters – so called armed robbery at sea - is strictly dependent upon the uneven policing and enforcing capacities of coastal and littoral states.
It is within the tension between the international normative framework, particularly the rules pertaining to the repression of piracy, which is attributed exclusively to public means, and the many forms that maritime predation assumes regardless of its formal qualification as either piracy or armed robbery at sea, that contracted maritime security practices have found favourable conditions to develop and consolidate, creating a new set of counter-piracy solutions. Notwithstanding the difficulty of providing an all-encompassing definition and the continuing evolution of the phenomenon, contracted anti-piracy services are characterized by the presence of a contractual relationship between the shipowner and a private or public entity for the provision of security-related services.
This research explores the operational and legal challenges of various forms of contracted anti-piracy armed services, following the distinction between contracted governmental services and contracted private security. By starting from reviewing the modern piratical phenomenon and the plethora of counter-measures, this work aims at providing a complete factual and legal picture of the recourse to contracted anti-piracy services in general and, specifically, of the employment of embarked armed personnel on merchant ships, either in the form of uniformed personnel (Vessel Protection Detachments – VPDs), or private contractors (Privately Contracted Armed Security Personnel - PCASP), which are currently the most common practices authorized by flag states. Both solutions entail specific legalities pertaining to multiple and concurrent jurisdictions (flag, coastal, and port states), the carriage of firearms and the use of force at sea, and the role of other non-state actors, such as the master of the ship. Furthermore, in the case of PCASP, the involvement of private security providers poses specific questions regarding their selection and accountability.
Through the assessment and comparison of national practices and legislations, as well as of various multi-stakeholders’ governance initiatives (including industry’s self-regulatory instruments, the research concludes that contracted anti-piracy services are becoming an established practice of the counter-piracy toolset. The general tendency of flag states to authorize private security companies to provide shipowners with armed protection is indicative of a new adjustment of private-public relations within the realm of maritime security. Effective regulation of private maritime security providers requires a multi-layered approach involving international standard-setting, robust national legislation, and industry self-regulation. The value of soft-law in this endeavor should not be underestimated and should rather be promoted in virtue of the long and uncertain gestation of an international binding instrument applicable to the provision of security services by corporate entities, which should also address the peculiarity of the maritime domain, hence the need to look at private security from a maritime perspective specifically.
It is within the tension between the international normative framework, particularly the rules pertaining to the repression of piracy, which is attributed exclusively to public means, and the many forms that maritime predation assumes regardless of its formal qualification as either piracy or armed robbery at sea, that contracted maritime security practices have found favourable conditions to develop and consolidate, creating a new set of counter-piracy solutions. Notwithstanding the difficulty of providing an all-encompassing definition and the continuing evolution of the phenomenon, contracted anti-piracy services are characterized by the presence of a contractual relationship between the shipowner and a private or public entity for the provision of security-related services.
This research explores the operational and legal challenges of various forms of contracted anti-piracy armed services, following the distinction between contracted governmental services and contracted private security. By starting from reviewing the modern piratical phenomenon and the plethora of counter-measures, this work aims at providing a complete factual and legal picture of the recourse to contracted anti-piracy services in general and, specifically, of the employment of embarked armed personnel on merchant ships, either in the form of uniformed personnel (Vessel Protection Detachments – VPDs), or private contractors (Privately Contracted Armed Security Personnel - PCASP), which are currently the most common practices authorized by flag states. Both solutions entail specific legalities pertaining to multiple and concurrent jurisdictions (flag, coastal, and port states), the carriage of firearms and the use of force at sea, and the role of other non-state actors, such as the master of the ship. Furthermore, in the case of PCASP, the involvement of private security providers poses specific questions regarding their selection and accountability.
Through the assessment and comparison of national practices and legislations, as well as of various multi-stakeholders’ governance initiatives (including industry’s self-regulatory instruments, the research concludes that contracted anti-piracy services are becoming an established practice of the counter-piracy toolset. The general tendency of flag states to authorize private security companies to provide shipowners with armed protection is indicative of a new adjustment of private-public relations within the realm of maritime security. Effective regulation of private maritime security providers requires a multi-layered approach involving international standard-setting, robust national legislation, and industry self-regulation. The value of soft-law in this endeavor should not be underestimated and should rather be promoted in virtue of the long and uncertain gestation of an international binding instrument applicable to the provision of security services by corporate entities, which should also address the peculiarity of the maritime domain, hence the need to look at private security from a maritime perspective specifically.
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