THE LEGAL FRAMEWORK ISSUES OF PMSC: INDONESIAN PRACTICE

A form of private security contractor exists for maritime security called Private Maritime Security Company (PMSC). PMSCs are not abundant in maritime law scholarly discourse. This underappreciation happens despite the importance of PMSC in Malacca Strait that conducts its services in the jurisdiction of the three littoral states of Indonesia, Malaysia, and Singapore. Hence, this research article will find out the legal frameworks of the PMSC industry both in the international regime and Indonesian regime and the legality of PMSC business in Indonesia. The method used in this research is normative legal research method with statute approach, historical approach, conceptual approach, and comparative approach with sources from secondary sources which include but are not limited to primary legal sources and secondary legal sources. The result from this research highlights the existence of an international non-binding legal framework for PMSC and a legal framework for PMSC in Indonesia. However, there are legal problems concerning the status of passage and PMSC compliance with domestic laws. A recommendation for a legally binding multilateral treaty about PMSC would be a start to increase the legal certainty of PMSC business internationally. At the same time, a domestic regulation in Indonesia that has specific scope in PMSC would allow PMSC business to be better regulated and grown in Indonesia as a legitimate sector.


A. Introduction
Private Maritime Security Companies (PMSC) is a reemerging phenomenon in dealing with maritime security threats.They came into prominence because of risks present in the maritime industry in commercial shipping from pirates and other criminals, especially in dangerous areas such as the Gulf of Aden and the Malacca Strait. 1 The threats to commercial shipping and the development of the Blue Economy gave rise to the growth of the maritime security industry in the foreseeable future. 2 The current PMSC sector contains several legal issues caused by lacuna despite its increasingly important role in the Blue Economy, which includes but not limited to the absence of their status and specific code of conduct compared to Private Military Companies (PMC). 3This section will discuss the brief introduction of maritime security and the issues that arise with maritime security companies' existence and growth, with particular attention to the Malacca Strait and intersections between Indonesia's regulations and The United Nations Convention on the Law of the Sea (UNCLOS 1982) clauses on transit passage and innocent passage.
Maritime security must shift from traditional notions of naval power and armed competition to a more comprehensive approach after the Brundtland Report 1987 to pursue sustainable development goals. 4The Brundtland Report generally discusses both sustainability and long-term environmental issues. 5

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One such case about sustainability is that security policy must transcend 'traditional emphasis on military power and armed competition.' 6According to Elisabeth Mann Borgese, a more comprehensive approach entails a security policy at a higher level that must be grounded locally where potential troublemakers live, are educated, and work. 7This is realized by maritime security actors in measures to help the implementation of aid programs for local communities to deter Illegal Unreported and Unregulated (IUU) fishing, 8 and the role of maritime security actors as a constabulary force to protect the ocean environment. 9Furthermore, a comprehensive approach also touched the classical threat of maritime security which is piracy by employing cooperative measures against Somalian pirates consisting of coordination with local coastguards and constabulary units. 10fore elaborating further, it is essential to note that PMC and PMSC are not necessarily the same.Aliya Brown states that PMC is a security service provider for military and security functions. 11Another definition by Spicer, the former head of Sandline International, clarifies PMC as corporate bodies with business in providing military skills to legitimate government. 12Other descriptions are more classifying.Schwartz divides PMC into two categories: armed service and unarmed service. 13In comparison, Singer divides PMC into three categories: military providers of armed security, military consulting Future" (New York: Oxford University Press, 1987), 5, https://sustainabledevelopment.un.org/ content/documents/5987our-common-future.pdf.-8476-2020-11-3-61-77.13 Nebolsina, 63.  firms in advisory and training services, and military support firms doing non-lethal aid and assistance. 14Meanwhile, PMSC is a term for PMC which protects ships, according to Leung. 15 Vijaya Singh Gautam and Vijay Mishra also possess a similar position, and they further argue PMSC classification as 'other members' regarding the applicability of International Humanitarian Law towards PMSC. 16Therefore, all PMSCs are PMC, but not all PMC are PMSC.
Nowadays, the maritime security function is no longer held exclusively by states because there are now maritime security companies that fill the demand.These maritime security companies conduct protections for vulnerable ships and anti-piracy repression measures, and their offered services are not confined to a mere ship guard. 17Thus, such companies gave rise to legal questions, both international and domestic, as they often conduct services not in armed conflict.
There is no legally binding international legal framework regulating the use of private maritime security companies, aside from those few from mostly voluntary guidelines and recommendations. 18Previous attempts in formulating international convention about private security companies (including PMSC) failed because of issues on state monopoly on the use of force, despite PMSC growing industries in recent decades. 19ong such issues are the use of force threshold during the present and imminent attack.Clause 6(a)(iii) of the Baltic and International Maritime Council (BIMCO) GUARDCON standard contract for PMSC services obliges PMSC contractors to monitor 'suspicious vessels or craft during the transit,'  Bouchez and Kaijen, 196.
but there is no threshold on what constitutes the necessity of the use of force from such monitoring activities. 20While there is an occasion where the ship successfully evaded the attack, such as the Strait of Hormuz case, a misjudgment in Enrica Lexie case where two Italian guards shot an innocent fisherman off the Indian coast serves as a stark reminder of the need for a threshold. 21other issue is regarding the application of the use of force between extreme cases and proportional reasonability.In a typical balanced scenario such as the Gulf of Oman case, 'gradual' steps before using force such as evasion attempts followed by return fire measure has successfully deterred pirates from boarding the vessel. 22However, in cases such as the Nigeria oil platform siege and attack towards SP Brussels where pirates came heavily armed and successfully boarded the ship, it is unrealistic to ask the PMSC to follow a gradual threshold in such events. 23ile some states regulate PMSC under their domestic legal framework, including but not limited to the United States, United Kingdom, Croatia, India, Italy, and Norway, 24 Indonesia does not have domestic regulations on PMSC.
Therefore, PMSC conforms to the laws of their flag state in operating within Indonesian waters in the Malacca Strait.This law unconformity is not solely Indonesia's problem, as Singapore and Malaysia have similar issues.Aside from the three countries' strict firearms law, Singapore does not allow PMSC to operate in its territorial waters, while both Indonesia and Malaysia tolerate the activities of PMSC through dubious 'permissions' after their activities became publicly known in 2005. 25om the introduction, there is a question of whether the PMSC legal framework is adequate.The article will answer the question by examining 20 Bouchez and Kaijen, 206.21 Ahmad, "Maritime Piracy Operations: Some Legal Issues," 64-65; Bouchez and Kaijen, The Future of the Law of the Sea, 206-7.22 Bouchez and Kaijen, The Future of the Law of the Sea, 207.23 Bouchez and Kaijen, 208.24 Bouchez and Kaijen, 199-200.25   26 Among the first to use them are the British.They hired the British East India Company to run their private warship to protect British trade routes from rival states and pirates in 1612. 27om the late 18 th to early 19 th century, PMSC which is also known as "private anti-piracy navies", 28 became more popular with figures such as William Kidd, Sir Francis Drake, and Lord Cochrane chartered by their sovereign countries to conduct privateering, authorized by Letter of Marque.
The Letter of Marque authorization allows individuals to lead ships to protect state trade routes and recover their treasure should they come across a pirate ship. 29Thankfully, this practice is unsustainable because some men are prosecuted because they attack their state trade routes, such as William Kidd, and fall to oblivion by the late 19 th century. 30The downfall of PMSC in the   Both regulations are about provisions for companies that wish to hire armed guards to ship to and from high-risk areas. 51The rules clarified command responsibility, which was previously unclear between ship's master and shipowner, demands on weapon storage, oversight by the Norwegian Maritime Authority (NMA) in approval for using PMSC, and the use of force as a last resort in legal provision. 52At the same time, the Norwegian guideline set a distance of 2000 meters as a minimum distance for PMSC to determine if an object is a threat. 53Unfortunately, the laws did not make procedural requirements to select PMSC as approval requirements by the NMA, and the lack of report transparency by the PMSC unless there is an incident. 54aly by their Regulation on the employment of contractors on board Italian-flagged ships sailing in international waters under piracy risk of 2013 allows proportional use of force for self-defense conduct by PMSC, using the self-defense threshold inside the Italian general criminal law. 55The provision is an implementing regulation that enables the hiring of PMSC from EU states and is subject to approval by the interior ministry. 56The law authorized lethal 48 Bouchez and Kaijen, 206.49 force only after the master of the vessel who holds the PMSC weapons in a storage order it to happen and after exhausting all non-lethal deterrence. 57dia regulates PMSC in Guidelines on Deployment of Armed Security Guards on Merchant Ships.The guideline obliges all reasonable steps to avoid using force and that the use of force may only happen after an imminent danger exists. 58The guideline also orders any ship passing through Indian EEZ or Indian Search and Rescue Region with armed persons and deadly arms and ammunition to report to the Indian Navy and Indian Coast Guard. 59 comparison, Croatia has the Croatian Ordinance on the requirements for legal persons providing the services of boarding armed escort on Croatianflagged vessels.This ordinance is similar to Italian law.The master of the vessel held final authority in determining the use of force, and the threshold of self-defense is subject to Croatian general criminal law. 60e UK through their Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend against the Threat of Piracy in Exceptional Circumstances recognizes the master of the vessel's overall authority, similarly to Italian and Croatian regulations, setting a threshold over the use of force, but allows pre-emptive strike if the attack from a hostile power is imminent. 61e guide also obliges PMSC personnel to understand port state and coastal state laws and any firearms and other security equipment requirements. 62nally, the USA has the Port Security Advisory (3-09)  of the vessel's overall authority. 64It provides a threshold for the use of force when the attacker possesses means such as climbing gear, weapons, and taking the opportunity to accost the ship. 65Aside from the guidelines, the USA also obliges armed PMSC to obey the U.S. Gun Control Act, the National Firearms Act, and the International Traffic in Arms Regulations (ITAR). 66like these countries, Indonesia currently does not have regulations on PMSC.This vacuum happens despite having PMSCs in the form of foreign companies, PMSCs linked to the Indonesia National Armed Forces (TNI) apparatus, and PMSCs set up by former members of TNI, but the national companies only provide services nationally and in short term assignments. 67is vacuum happens despite the importance of Malacca Strait.
Annually, Malacca Strait hosts 50% of the world's oil tanker traffic, 40% of the world's seaborne commerce and is recognized by the USA as a vital strategic interest because it connects Japan (an ally to the USA) to its Middle East energy suppliers. 68Aside from its significance, Malacca Strait is famous for its greater vulnerability because of its narrowness.The narrowness of Malacca Strait increase the chance for accidents even as the ships slow down because they are easier to be targeted by pirates and other criminals and increase environmental damage due to the combination of narrowness and traffic volumes. 69e current framework on PMSC in Indonesia's jurisdiction is that of 'understanding,' where PMSC cooperates and receives assistance from local authorities without a clear regulatory basis. 70There is no specific national maritime security legal instrument in Indonesia yet. 71The government also 64 Bouchez and Kaijen, 199 alleges that PMSCs are illegally operating in Indonesia since their companies are from foreign countries and imply the government's inability to control the sea, challenging state sovereignty. 72It is unfortunate that instead of being a building block for a regulatory framework, PMSC is seen as a hindrance to interstate regional cooperation because of the issue of legality. 73nsidering that the PMSC industry would see significant growth in the coming years, it is paramount for Indonesia to support their potential rather than shunning it as Indonesia has done so far. 74Indonesia needs to address the status issue of foreign PMSCs whether it needs to be subjected to provisions of 'transit passage' or 'innocent passage.'Furthermore, activities of PMSC need legal boundaries or at least guidelines that can be adapted from the current understanding between PMSCs and local authorities so the PMSC sector in Indonesia could grow.

C. The Roles of Maritime Security Companies in Malacca Strait
This section will elaborate on various activities conducted by PMSC in Malacca Strait and their impact on the Blue Economy, including the maritime shipping industry and PMSC as a sector.This section will also highlight issues such as the use of firearms by the PMSC, the unclear legal status of PMSC as a sector in Indonesia, and the question of whether PMSC abroad in Malacca Strait would be subject to provisions of 'transit passage' or 'innocent' passage under UNCLOS.
PMSC plays a role in tackling four main issues in Malacca Strait: piracy, armed robbery, environmental effects associated with the shipping industry, and the threat of terrorism. 75From the four issues, it is terrorism that stands as an emerging and increasingly important problem since the 9/11 Terrorist damaging hotel owners 1.5 million united states dollars, the Nagasaki Spirit oil spill in 1993, and the Evoikos incident in 1997 caused around 1.5 million in united states dollars and 1.5-million-pound sterling, respectively. 90xt on matters of terrorism, it is not defined under UNCLOS 1982.
However, according to Council for Security Cooperation in the Asia Pacific (CSCAP), terrorism in maritime context is undertaking of terrorist activities '... (1) within the maritime environment, (2) using or against vessels or fixed platforms at Sea or in port, or against any one of their passengers or personnel, (3)

against coastal facilities or settlements, including tourist resorts, port areas, and port towns or cities.' 91
There has yet to be a successful terrorist attack in Malacca Strait.However, there is a correlation between pirate and terrorism cases in Indonesia.Research by Regan in 2018 has shown that increasing rates of terrorism corresponds with the increasing rates of maritime piracy. 92The supporting factor to the rise of terrorism is weak state institutions enforcing their policies, making it easy for a terrorist to get their fund sources. 93Indonesia needs to strengthen its government institution, increase its naval presence in Malacca Strait, and craft policies to prevent possible armament materials from falling to pirates and terrorist hands.Institution strengthening measures would reduce the frequency of piracy cases and, in turn, have a correlative effect on terrorist attacks in Indonesia. 94SC plays a two-fold role in mitigating the four issues above.First, as both security and business actors.Second, as influencers of public perceptions and government policies.
For the role of security and business actors, PMSCs increase naval presence in the Malacca Strait as law enforcers.A lucrative trade in the 90 Rusli, 81-82.91 Malacca Strait since piracy continuously increases from 8 attacks in 2018 to 30 attacks in 2019 in a place where 100.000 vessels carrying a third of the world's trade goods pass annually. 95PMSCs contribute to securing business investments and becoming a business sector themselves. 96Potential victims hire PMSCs to provide passive and active security services. 97Active security services include actual protection for the client's ships delivered either by stationing armed guards in the client's vessels or by escort ships that follow the client's ships. 98Their role is so effective that no ship with armed PMSCs personnel onboard is a victim of a hijacking so far. 99deed, despite their setbacks, PMSCs could provide effective and affordable solutions for maritime security.They could tailor a deal with ship owners to match each need of protection and cooperate with insurance companies for better risk mitigation and insurance coverage. 100In contrast, the Indonesian Navy's current state is old, underfunded, full of equipment shortage issues, and scattered bases resulting in inadequate coverage and communication. 101wever, issues did arise about PMSCs as PMSCs carried lethal and non-lethal armaments to pursue their active services; this becomes an issue when they are entering different jurisdictions. 102Furthermore, PMSCs themselves can become criminal actors and abuse their legally grey area in extracting concessions from their clients, such as prolonging conflicts, overbidding, and taking mineral and other natural resources concessions in Malacca Strait. 103Furthermore, the presence of armed PMSCs personnel on board would increase the potential of violence, a predicament against states' public interest. 104For example, 4 PMSC personnel should have fired warning shots against suspicious boats in the MV Avocet incident.Still, they fired at the ship because of an overreaction, resulting in the ship crashing to MV Avocet because the driver had been injured or killed. 105anwhile, in pursuing their role as an influencer in public perceptions and government decision-making policies, PMSCs conduct passive security services, including risk assessment for ships in charting their ways against pirate-risk areas and training ship crews. 106Still, risk assessments later become accessible for public consumption.At the same time, reports and statements, on the other hand, are technically non-commercial, and such materials are often publicized in the mainstream media to shape public perceptions and government decision-making. 107t even this passive security action's role to the public and government by PMSCs can be problematic.Actual reports sourced by mainstream media from the PMSCs are costly and dubious in their objectivity, making it hard and somewhat unreliable for the public and interested parties to consume. 108e same is true for PMSCs risk assessment, which has critics for its business interests.
For example, back in 2005-Joint War Committee (JWC) lists Malacca Strait as 'Hull War, Strikes, Terrorism and Related Perils Listed Areas' based on the assessment from a London-based PMSC: Aegis Defence Services Ltd. 109 This designation justifies ship insurers to raise their premiums, thus significantly affecting the maritime industry in the Malacca Strait area. 110The JWC report receives critics from three littoral states of Indonesia, Malaysia, and Singapore because of questionable research methods by not differentiating maritime security threats and the lack of source variety used by JWC to justify its classification. 111e role of PMSCs in environmental protection is considered an element under the scope of maritime security. 112This role is not a traditional sector under PMSCs work, but rather this sector is affected by PMSCs activities in Malacca Strait.For example, the private security company G4S which conducts PMSC activities publishes a corporate social responsibility report explaining their practice that respects human rights and the environment. 113fortunately, there is not much information about whether other PMSCs have the same environmental stance due to the lack of reports.
From their roles, there is a question regarding the legal framework of PMSCs in Indonesia.Although there is an 'understanding' regarding the PMSCs business model, the regulations regarding PMSCs activities remain unclear under Indonesian law.This unclear regulation status placed PMSCs under grey areas as a business sector in Indonesia and makes it confusing for Indonesian institutions to respond to the PMSC companies.Local authorities even deny that PMSCs services are legal. 114Moreover, besides the lack of potential exploration, the PMSCs are unmotivated to conduct themselves according to the law due to their potential to become criminal actors and abuse their legally grey area. 115It is currently more effortless for them to pay local officials to get dubious permits rather than asking questions on the proper way to conduct business in Indonesia. 116donesia is not alone in institutional control over PMSCs.Malaysia faces a similar problem where PMSCs operating in its waters do not use proper procedures in applying for a permit in conformity with national arms control policies. 117However, there is a case where Malaysia took a complete step in cooperating with PMSC when Malaysian local law enforcement worked together with PMSCs personnel in safeguarding a tanker ship. 118ide from management issues, PMSCs also possess technical issues about their armaments.Indonesia has one of the strictest gun laws, but PMSCs possess lethal armaments in conducting their services.It is known that PMSCs can rent armaments from local agencies, 119 but this gave rise to an issue under the law of the Sea regarding the status of the passage of these armed PMSC and the legality of their armaments under Indonesian law.

D. The Practice of Private Maritime Security Companies in Indonesia
This section will answer the issues of PMSC in Malacca Strait highlighted in the previous section to find out the legality of the PMSC industry in Indonesia.This section will refer towards both UNCLOS provisions relevant to maritime security, such as sections regarding innocent passage and transit Degrading the Sovereign Rights of Indonesia and Malaysia," 469.116 Liss, "The Privatisation of Maritime Security in Southeast Asia: The Impact on Regional Security Cooperation," 203.117 Liss, 203.118 Liss, 203.119 Liss, 203.120 Sciascia, "Monitoring the Border: Indonesian Port Security and the Role of Private Actors," 168.
Naturally, ships crossing through international straits are under the  Rights in a Fragile Environment," 230-31.142 White et al., 231.but its draft has remained a guideline ever since. 143To bring legitimacy for a legally binding framework, Indonesia needs to curry its foreign partners, especially the littoral states around Malacca Strait and inter-regional partners' support.
For Indonesia, a start could be done by exploiting current 'understanding' practices between PMSCs and local law enforcement to build a legally binding framework.It is essential to either increase the police funding to increase the effectiveness of the legal framework or to reallocate the responsibilities to other government institutions.This measure will be beneficial in reducing abusive conduct by PMSC in Malacca Strait and raising the service standard of the PMSC industry.Furthermore, a specific legally binding framework of regulations about PMSC would encourage private actors to enter the PMSC market in Indonesia.This solution could reduce issues in Malacca Strait, especially piracy, by clarifying PMSCs' rights and obligations using IMSA as a regulatory body.
when a suspicious vessel has weapons and boarding equipment, the PMSC already exhausting non-violent means, and provides warning shots.48Unlike the international regulatory framework, several countries already regulate the use of PMSC either directly or as the same entity as their landbased counterpart in the form of regulations or guidelines.Countries such as Norway have rules on PMSC in the form of amendments to Arms Regulation 904/2009 and Ship Security Regulation 972/2004 in 2011,49  and Norwegian Provisional Guidelines Use of Armed Guards on Board Norwegian Ships.50 passage, and Indonesian provisions such as Law No. 27/2007 jo Law No. 1/2014 on the management of Coastal Area and Small Islands regarding coastal area responsibility distribution for local and central government, 120 Law No. 32/2014 on Sea, Head of National Police Regulation No. 4/2020 on Private Security, and Head of National Police Regulation No. 11/2017 on Permit, Oversight, and Control of Non-Organic Firearms of the National Army/National Police of Indonesia and Security Equipment Categorized as Firearms for Other Police Functions.
U N I V E R S I T A S G A D J A H M A D A Malacca Strait, it is known that PMSCs operating in littoral states (including Indonesia) around Malacca Strait are bearing armaments in conducting their services.A legality issue arises in this whether their armaments and activities are legal in Indonesia.Law No. 27/2007 jo Law No. 1/2014 on the management of Coastal Area and Small Islands divides responsibilities of Indonesia's coastal areas.The central government is responsible for the security of the coastal regions from 0 to 200 nautical miles, the provincial government is responsible from 0 to 12 nautical miles, and the Kabupaten is responsible from 0 to 4 nautical miles. 130he manifestation of security of coastal regions is also under the scope of protection of the Indonesian Maritime Security Agency (IMSA) under Articles 61 and 62 of Law No. 32/2014 on Sea, where IMSA has the authority to issue regulations. 131However, IMSA roles, except for the regulatory function, overlaps with the Indonesian Navy function, causing inefficiency and ineffectiveness to Indonesian maritime security. 132PMSCs do not have a law that regulates it in Indonesia despite agencies issuing dubious permissions in Malacca Strait.However, there are regulations about private security contractors as a whole under The National Police Regulation No. 18/2006 on Training and the Curriculum of Private Security Guards, 133 aside from the National Police Regulation No. 4/2020 on Private Security and Head of National Police Regulation No. 11/2017 on Permit, Oversight, and Control of Non-Organic Firearms of the National Army/ National Police of Indonesia and Security Equipment Categorized as Firearms for Other Police Functions.PMSCs under the National Police Regulation No. 4/2020 must possess an operational license or SIO, the same license as other private security.According to Article 8 of the regulation a quo, there are two types of SIO: SIO 130 Sciascia, "Monitoring the Border: Indonesian Port Security and the Role of Private Actors," 168.131 "Undang-Undang Republik Indonesia Nomor 32 Tahun 2014 Tentang Kelautan" (n.d.).132 Muhamad Arif and Yandry Kurniawan, "Strategic Culture and Indonesian Maritime Security," Asia and the Pacific Policy Studies 5, no. 1 (2018): 78, https://doi.org/10.1002/app5.203.133 Nigel D. White et al., "Blurring Public and Private Security in Indonesia: Corporate Interests and Human Rights in a Fragile Environment," Netherlands International Law Review 65, no. 2 (July 21, 2018): 230, https://doi.org/10.1007/s40802-018-0107-8. M I M B A R H U K U M U N I V E R S I T A S G A D J A H M A D A local private security is in direct regulation by Indonesian law.However, current rules are too general for PMSC due to the lack of use of force threshold, provisions on foreign PMSC, and the role of the master of the vessel present in other countries. 140Furthermore, corruption regarding permissions relating to private security is still rife due to the lack of National Police institutional capacity and resources and the endemic corruption problem in Indonesia. 141These problems are hampering efforts to regulate the private security sector. 142Especially that even now, Indonesia has yet to be an effort to at least issue guidelines to PMSCs in their role as security actors in Indonesian territory as a measure to aid local law enforcement in solving issues in Malacca Strait.A solution to this problem could be present by leveraging the IMSA institution as a regulatory body for PMSC, similar to the Norwegian example, which could bound PMSC foreign and local that passes through Malacca Strait in a certain standard.E. Conclusion It is conclusive that PMSCs have both domestic and international legal frameworks and thus are legal in Indonesia because they are under Police regulations as part of private security providers.However, there is an insufficient legal framework regarding PMSC in Law of the Sea and Indonesia, despite increasing piracy attempts in recent years, illicit activities of PMSCs, and the strategic role of the Malacca Strait.Countries should start formulating a legally binding framework to bind PMSCs accountability under international law.A framework of multilateral treaties about PMSC activities similar to ReCAAP would do well in boosting littoral states' confidence in PMSCs as both security and economic actor, thus taking advantage of PMSCs' demands to boost the local security industry.However, multilateral treaties could be challenging, India has proposed an international framework regarding PMSCs and floating armories in 2016, 140 Bouchez and Kaijen, The Future of the Law of the Sea, 199-200; Vijayan, "The Use of Armed Forces on Merchant Vessels without Strict Rules for the Use of Force," 24-28.141 White et al., "Blurring Public and Private Security in Indonesia: Corporate Interests and Human 6 World Commission on Environment and Development (ed), 239-40.7 Werle et al., The Future of Ocean Governance and Capacity Development, 413.8 Voyer et al., "Maritime Security and the Blue Economy: Intersections and Interdependencies in the Indian Ocean." 9 Voyer et al. 10 Voyer et al.; Christian Bueger and Timothy Edmunds, "Beyond Seablindness: A New Agenda for Maritime Security Studies," International Affairs 93, no.6 (2017): 1293-1311, https://doi.

Private Maritime Security Industry Under Existing International Legal
Carolin Liss, "The Privatisation of Maritime Security in Southeast Asia: The Impact on Regional The Privatisation of Maritime Security-Maritime Security in Southeast Asia : Between a Rock and a Hard Place"(Perth, 2007), 15; Liss, "The Privatisation of Maritime Security in Southeast Asia: The Impact on Regional Security Cooperation," 202.Law (IHL).36On the applicability of the Montreux Document to PMSC, there is a position such as by Marin and others declaring the Montreux Document to be irrelevant in the maritime sector.37But others, such as Vijaya Singh Gautam, Vijay Mishra, and Anna Petrig, disagree because the Maritime Working Group adapts the Montreux Documents applicability to naval practice. 38The Montreux Document 2008 became the basis of The International Code of Conduct for Private Security Service Providers (ICOC) in 2010, aiming to establish independent oversight to private security contractors.9_9.37 Bouchez and Kaijen, The Future of the Law of the Sea, 193.38 Anna Petrig, "Looking at the Montreux Document from a Maritime Perspective," Maritime Safety and Security Law Journal 2016, no. 2 (2016): 1-3, http://www.marsafelawjournal.org/wpcontent/uploads/2016/10/Issue2_PETRIG_Article.pdf;Singh Gautam and Mishra, "Revisiting the Legal Framework for Private Military and Security Contractors: Maritime Perspective," 173.39 Kraska, "International and Comparative Regulation of Private Maritime Security Companies 34 Liss, "The Privatisation of Maritime Security in Southeast Asia: The Impact on Regional Security Cooperation," 202.35 JamesKraska, "International andComparative Regulation of Private Maritime Security Companies Employed in Counter-Piracy," in Modern Piracy (Edward Elgar Publishing, 2013), 223-24, https://doi.org/10.4337/9781849804936.00019.Humanitarian 39 Specific instruments for PMSC began in development in 2009, with the International Maritime Organization (IMO) and the Contact Group on Piracy off the Coast of Somalia (CGPCS) as the primary actors in developing and coordinating more effective anti-piracy measures. 40Another soft law guideline is the 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF).The rules set a threshold for conducting deterrence measures and when using force becomes permissible.Rule 100 emphasizes the importance of PMSC in advising the ship's master on the invocation of the use of force, Rule 101 provides methods of deterrence without the use of firearms such as brandishing weapons, Rule 102 on warning shots, and Rule 103 regulates the use of force. 41Aside from soft law guidelines, the development of the PMSC regulatory 36 "The Montreux Document on Private Military and Security Companies Ref. 0996," ICRC Resource Center § (2008), 9-10, https://shop.icrc.org/the-montreux-document-on-privatemilitary-and-security-companies-pdf-en;Ian Ralby, "What Went Wrong When Regulating Private Maritime Security Companies," in Operational Law in International Straits and Current Maritime Security Challenges (Springer, 2018), 164, https://doi.org/10.1007/978-3-319-72718-Employed in Counter-Piracy," 224-25.40 Kraska, 226.41 100 Series (ed), "The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF)" (n.d.), 5-6, https://www.humanrightsatsea.org/wp-content/uploads/2015/04/20130503-100_Series_Rules_for_the_Use_of_Force.pdf.
framework further relies upon standardization instead of binding law.This trend has shown since 2011 when IMO accepted the Security Association for the Maritime Industry (SAMI) Accreditation Programmed for PMSC, which PMSC can earn through national or third-party certification bodies.42Unfortunately,unless industry standard is a requirement before PMSC could operate in a state, 43 its influence as a driving force for more comprehensive regulation is ineffective.
SAMI is an industry association for maritime security companies responsible for maintaining its quality.A decisive role of SAMI is its inclusion in the drafting of the naval security standard of ISO/PAS 28007 that ascertains the credibility and professionalism of PMSC by risk-reducing measures.44However,because of its success in maintaining the quality of PMSC and reduced piracy threat, resulting in a trend of consolidations among PMSCs and SAMI membership decreased to the point of SAMI voluntary liquidation in 2016.45Presently,PMSCstandardaccreditationusesISO/PAS 28007 from third-party certification bodies, including but not limited to LQRA and MSS Global.46Anotherrelevantindustrystandard is the International Association of Maritime Security Professionals (IAMSP) 2011-01-UOF-001 v2.0 standard, also known as the IAMSP Rules.47Unlike the ISO standard, which focuses on risk-reduction measures, the IAMSP Rules focus on risk assessment before using force.PMSC with IAMSP Rules accreditation could only use force 46 LRQA (ed), "ISO 28007 CERTIFICATION SERVICES," LQRA, 2021, https://www.lrqa.com/en/iso-28007/certification/; MSS Global (ed), "Security Services Certification ISO 18788, PSC-1, ISO 28000 & ISO 28007," MSS Global, 2021, https://www.mssglobal.com/security-servicescertification.47 Bouchez and Kaijen, The Future of the Law of the Sea, 205.
Åsne Kalland Aarstad, "Who Governs Norwegian Maritime Security?Public Facilitation of Private Security in a Fragmented Security Environment," Cooperation and Conflict 52, no. 2 (2017): 269-70, https://doi.org/10.1177/0010836716652425.50 Bouchez and Kaijen, The Future of the Law of the Sea, 199-200.51 Aarstad, "Who Governs Norwegian Maritime Security?Public Facilitation of Private Security in a Fragmented Security Environment," 269.52 Aarstad, 269.53 Bouchez and Kaijen, The Future of the Law of the Sea, 200.54 Aarstad, "Who Governs Norwegian Maritime Security?Public Facilitation of Private Security in a Fragmented Security Environment," 270.55 Bouchez and Kaijen, The Future of the Law of the Sea, 200.56 Giorgia Bevilacqua, "Armed On-Board Protection of Italian Ships: From an Apparent Hybrid M Guidance on Self-Defense or Defense of Others by U.S. Flagged Commercial Vessels Operating in High-Risk Waters. 63ike UK regulation, the guidance recognizes the master Model to a Regulated Rise of Private Contractors," ed.Michiel van der Wolf, Erasmus Law Review 11, no. 4 (December 2018): 254, https://doi.org/10.5553/ELR.000108.57Bevilacqua, 254-55.58Bouchez and Kaijen, The Future of the Law of the Sea, 200.59Sony Vijayan, "The Use of Armed Forces on Merchant Vessels without Strict Rules for the Use of Force," Journal of Maritime Law and Commerce 45, no. 1 (2014): 27, https://heinonlineorg.ezproxy.ugm.ac.id/HOL/Page?public=true&handle=hein.journals/jmlc45&div=5&start_ page=15&collection=journals&set_as_cursor=0&men_tab=srchresults.60 Bouchez and Kaijen, The Future of the Law of the Sea, 199.61 Bouchez and Kaijen, 199.62 Vijayan, "The Use of Armed Forces on Merchant Vessels without Strict Rules for the Use of Force," 27. 63 Bouchez and Kaijen, The Future of the Law of theSea, 199-200.
. 65 Bouchez and Kaijen, 199 66 Vijayan, "The Use of Armed Forces on Merchant Vessels without Strict Rules for the Use of Force," 27. 67 Alban Sciascia, "Monitoring the Border: Indonesian Port Security and the Role of Private Actors," Contemporary Southeast Asia 35, no. 2 (2013): 177-79, https://doi.org/10.1355/cs35-2b.68 Alice D. Ba, "Governing the Safety and Security of the Malacca Strait: The Nippon Foundation between States and Industry," Journal of Contemporary Asia 48, no. 2 (2018): 256, https://doi.org/10.1080/00472336.2017.1407956.69 Ba, 256.70 Liss, "The Privatisation of Maritime Security in Southeast Asia: The Impact on Regional Security Cooperation," 204.71 Dhiana Puspitawati, "Urgent Need for National Maritime Security Arrangement in Indonesia: The Privatisation of Maritime Security in Southeast Asia: The Impact on Regional Security Cooperation," 204.74 Voyer et al., "Maritime Security and the Blue Economy: Intersections and Interdependencies in the Indian Ocean."75 Ba, "Governing the Safety and Security of the Malacca Strait: The Nippon Foundation between States and Industry," 255-56.
attempting to board a ship with the intent to commit theft or any other crime and with the attempt or capability to use in the furtherance of that act.'79Thisdefinitionhassimilaritieswithan armed robbery at Sea under Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ship in Asia (ReCAAP) Article 1(2).a.Tt classifies armed robbery as an illegal act of violence detention and depredation against ships, which is still within a country's jurisdiction.80Thesimilaritiesbetweensuch definitions are still under matter of scholarly debate.81Piracy in Malacca Strait is a long issue in Indonesia, even before the 83 Mengjie Jin et al., "Marine Piracy Prediction and Prevention: Policy Implications," Marine Policy 108, no.July (October 2019): 2, https://doi.org/10.1016/j.marpol.2019.103528. 87Environmental effects in Malacca Strait are not a neglected sector by the PMSC, and it is just as crucial as other hostile issues.Such is the importance that member states to the UNCLOS, particularly Indonesia, Malaysia, and Singapore, could justify the closure of Malacca Strait if the passage of ships caused significant damage to the environment of Malacca Strait under Article 88 Mohd Hazmi Bin Mohd Rusli, "Protecting Vital Sea Lines of Communication: A Study of the Proposed Designation of the Straits of Malacca and Singapore as a Particularly Sensitive Sea Area," Ocean & Coastal Management 57, (March 2012): 81, https://doi.org/10.1016/j.ocecoaman.2011.12.003.89 Rusli, 81.
Joses Yau and Meng Wee, "Maritime Terrorism Threat in Southeast," Pointer Journal of the Malaysia, and Singapore, a question arises whether the Malacca Strait is territorial water of the littoral states in question or whether the Malacca Strait is an international strait.If the Malacca Strait is territorial waters, ships in Malacca Strait are subject to the innocent passage under Article 19 of UNCLOS 1982.A problem might arise as PMSCs presence in the Innocent The United Nations Convention on the Law of the Sea." 123 Mineau, "Pirates, Blackwater and Maritime Security: The Rise of Private Navies in Response to Modern Piracy," 76-77.124 Mineau, 76. 125 Sindhura Natesha Polepalli, "Floating Armories and Privately Contracted Armed Security Personnel on Board Ships: Balancing Coastal State Security Concerns Against Navigational The answer to this predicament exists in Article 37 and Article 38.1.of UNCLOS 1982 regarding the scope of transit passage.Article 37 states, 'This The Malacca Strait is still under the 'Transit Passage' regime because Malacca Strait and Singapore Strait are still considered one strait and fit the scope definition under the 'Transit Passage' regime. 127This regime could change if a new interpretation declares Malacca Strait and Singapore Strait are treated as two different straits. 128This change would result in the non-suspension of innocent passage, allowing Malaysia and Indonesia to impose more shipping control mechanisms over vessels sailing in Maizatun binti Mustafa, and Wan Izatul Asma binti Wan Talaat, "Replacing the Transit Passage Regime with Freedom of Navigation in the Strait of Malacca: A Case Study with Special Reference to the Korea Strait," Ocean and Coastal Management 78, (June 2013): 26, https://doi.org/10.1016/j.ocecoaman.2013.03.003.128 Rusli, "The Application of Transit Passage Regime in Straits Used for International Navigation: A Study of the Straits of Malacca and Singapore," 556-57.129 Rusli, 558.