It is essential to recognize that Floating Armouries (FAs) are fundamentally vessels and are thus subject to a vast array of national and international laws governing maritime operations. In this analysis, we will focus primarily on FAs functioning as merchant vessels, excluding state-owned warships with specific immunities. State-owned FAs fall outside the scope of this examination.
An important legal consideration for Floating Armouries (FAs) is the issue of innocent passage through territorial seas. According to UNCLOS article 18, passage through territorial seas, including anchoring for navigation or distress, can be deemed innocent or not. However, differing opinions among states arise when vessels with weapons onboard are involved, especially if these weapons are not part of the sealed cargo. While some states allow the carriage of arms, others view armed transit as a threat to the peace, order, and security of coastal states, making it non-innocent under UNCLOS article 19. This lack of consensus could lead to FAs being detained under UNCLOS article 27, as what may seem like innocent passage to them could be perceived as a disturbance to the peace and order of the territorial sea by coastal states.
Floating Armouries (FAs) typically operate beyond the territorial sea and contiguous zone, falling under the exclusive jurisdiction of flag States governing vessels flying their flag on the high seas. This authority extends to activities within the exclusive economic zone that do not fall under the coastal State's jurisdiction as outlined in Part V of UNCLOS. The laws of the flag state play a crucial role in regulating the behaviour of FA vessels. It is worth noting that articles 58(2) and 88 of UNCLOS underscore the principle that "The high seas shall be reserved for peaceful purposes," providing a backdrop against which FA operations are assessed.
PORT STATE JURISDICTION
The port state holds the authority to conduct investigations and enforce actions in accordance with national laws and UNCLOS regulations. It has the power to address violations of international or national laws within its territorial waters, ongoing infractions originating in international waters, extraterritorial actions under bilateral agreements, and pollution violations as outlined in UNCLOS article 218. Port state authorities are responsible for handling these matters effectively.
ENFORCEMENT JURISDICTION
Enforcing law enforcement jurisdiction over Floating Armouries (FAs) follows standard procedures applied to any vessel. Whether there are suspicions of illicit trafficking, environmental violations, or other legal concerns, the same rules apply to FAs as they do to other vessels. Additionally, port and coastal states have the authority to take legal action against the vessel itself, not just the individuals onboard, in line with UNCLOS regulations. National laws dictate how weapons and other equipment onboard are treated, potentially as part of the vessel's cargo or as vessel accessories subject to legal action.
An essential aspect of enforcing jurisdiction over FA operations is by holding individuals and companies accountable for their compliance with regulations. States can exercise personal jurisdiction over their nationals or companies registered within their territory to ensure adherence to specific requirements for using FAs. Furthermore, existing long-arm laws may also come into play, allowing the prosecution of individuals working on FAs for possessing prohibited weapons, even outside the state's territorial jurisdiction, if necessary.
Enforcement within the Exclusive Economic Zone (EEZ) presents a unique set of challenges. While some state laws may allow for specific actions against the vessel itself, even if a Floating Armoury (FA) operates beyond the territorial sea, the focus often shifts to supply, bunkering, and fuelling operations. As FAs require constant refuelling and resupplying, the intricate relationship between land-based operations and maritime activities can potentially grant jurisdiction to states under liability theories. In certain scenarios, the fuelling vessels might be perceived as engaging in illicit activities with the FA vessels on the high seas. The International Tribunal for the Law of the Sea (ITLOS) case involving the M/V VIRGINIA G2* highlighted the regulatory authority of coastal states to oversee refuelling activities at sea, particularly when linked to illegal fishing practices. However, enforcement actions must be justified to address noncompliance effectively and deter future unlawful activities.
Under the regulations set forth by the Safety of Life at Sea (SOLAS) Convention, all vessels exceeding 500 gross tons that fly a flag must comply with the International Safety Management (ISM) Code. This code dictates that vessels must possess a procedural manual detailing operations for both standard and emergency situations. Due to the distinct operations of Floating Armouries (FAs), their procedural manuals differ significantly from those of conventional vessels, addressing both routine and crisis scenarios. The evaluation of the manual's effectiveness ultimately falls under the jurisdiction of the flag state administration, with varying criteria and standards across different flag states currently in place.
The ISPS Code, a vital aspect of the SOLAS Convention, mandates that all vessels flying a flag and exceeding 500 gross tons adhere to its regulations. Established in response to the tragic events of September 11, 2001, the primary objective of the ISPS Code, as detailed in article 1.2, is to detect security threats and implement proactive measures to protect ships and port facilities engaged in global trade. Compliance involves conducting a thorough assessment of ship security, creating a comprehensive security plan, appointing a dedicated security officer, and providing continuous training, drills, and exercises in security protocols. While evaluating Floating Armouries (FAs) for ISPS compliance may require a different approach than standard merchant vessels, the ultimate assessment falls under the responsibility of the flag state and can vary significantly.
Floating Armouries (FAs) operate as private vessels within the parameters of existing regulations. However, under certain circumstances, private vessels, including FAs, may be deemed military targets, even if they maintain their status as merchant ships under UNCLOS. The evolving interpretation of maritime law has seen commercial vessels, especially those carrying cargo that funds warfare, being susceptible to attacks akin to warships. This raises the legal argument that should an FA provide support to a state actor or its proxy in direct combat or hybrid warfare, it could potentially be considered a legitimate military target.
The term "floating armoury" itself implies that Floating Armouries (FAs) are primarily equipped with armouries, with their floating nature being secondary to their purpose. However, when considering the legal aspects surrounding FAs, it is essential to envision how a law enforcement officer would encounter such a vessel. Typically found on the water, often in the high seas, maritime law takes precedence, as FAs are fundamentally classified as merchant ships under UNCLOS. The presence of an armory onboard is secondary to their classification as vessels under international maritime law. Therefore, examining the legal framework surrounding the armory and the weapons on an FA is within the context of maritime law.
In recent years, states have collaborated to address the risks associated with small arms and light weapons through various instruments, whether binding or non-binding. While the operations of FAs involve the international movement of weapons, the jurisdictional aspects of maritime law regulate their activities through flag, port, and coastal state laws, as well as long-arm laws that may apply to specific nationals. As a result, there is currently no international oversight mechanism for monitoring the weapons entering and leaving FAs.
The following section will offer an extensive overview of the essential international instruments governing the weapons and armoury present on Floating Armouries (FAs).
Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects
The UN Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects (PoA) of 2001 is a nonbinding framework for controlling global illicit trade in the sort of weapons that have become a major source of insecurity since the end of the Cold War. Though not binding on states, the POA does include political commitments to address stockpiling and management of weapons, international transfers of weapons and illicit trafficking among other matters. Perhaps most significantly, it commits states to work together regionally and globally to address concerns relating to small arms and light weapons. Article 28, for example, calls upon states “To encourage, where needed, regional and sub-regional action on illicit trade in small arms and light weapons in all its aspects in order to, as appropriate, introduce, adhere, implement or strengthen relevant laws, regulations and administrative procedures.” Furthermore, at the global level, article 39 encourages coming to common understanding of and position on issues relating to small arms and light weapons. Article 36 further requires traceability for weapons.
Embargoes and Sanctions
The PoA in article 32 mentions cooperation to ensure the effective implementation of arms embargoes. The legal application of embargoes in the FA context, however, is complex. Given that the personnel involved are from a range of nationalities, the flag states involved vary, and given that an FA may traverse a coastal state’s territorial sea or call at a port, there are a number of ways in which an FA’s operation could encounter an arms embargo. Since most embargoes are ad hoc on a state-by-state basis, however, any analysis of them would be similarly state- specific and, as a practical matter, likely specific to the individuals involved more so than the FA’s operations overall. Some Security Council derived embargoes, however, may be more generally applicable.
The Arms Trade Treaty
The Arms Trade Treaty (ATT), adopted through UNGA Resolution 67/234 B on April 2, 2013, and documented as UN Doc A/RES/67/234 B, represents a groundbreaking international tool for enhancing global arms control efforts. Coming into effect in December 2014, the ATT serves as a crucial complement to the PoA, aiming to establish and uphold the highest international standards for regulating the trade of conventional arms while combatting illicit trafficking and preventing diversion. Despite ongoing debates over its application in the maritime realm, provisions concerning transfer, brokering, and trans-shipment could potentially be extended to maritime operations. The intricate dynamics between coastal state jurisdiction and flag jurisdiction add complexity to the discussion, with differing perspectives on the ATT's maritime relevance.
Notably, the ATT includes a provision exempting the international movement of conventional arms by a State Party for its own use, provided the arms remain under the state's ownership. This exception highlights the potential scenarios where a state or its surrogate may utilize a Floating Armoury (FA) for various purposes without falling under the purview of the ATT, as long as ownership is retained. Articles 3, 4, and 5 emphasize the need for states to establish robust national control systems over ammunition, parts, and conventional arms, underscoring the treaty's commitment to effective regulation. Compliance with these provisions requires flagged vessels, including FAs, to integrate into their respective flag states' control mechanisms to ensure adherence to the ATT's mandates. Failure to do so could result in violations of the treaty by the flag state, underscoring the importance of aligning FA operations with international arms control standards.
*The M/V ‘Virginia G’ Case, Panama v Guinea-Bissau, Procedural Order, ITLOS Case No 19, ICGJ 453 (ITLOS 2012), 6th November 2012, International Tribunal for the Law of the Sea