Article by Mark Kmelisch
The proliferation of the Private Maritime Security Company (PMSC) in the merchant maritime domain has been succeeded by substantial measures toward greater regulation, providing detailed provisions regulating the operation of PMSCs and deployment of Privately Contracted Armed Security Personnel (PCASP) on board merchant ships transiting the Gulf of Aden. However, discrepancies regarding flag state accreditation of PMSCs remain the biggest concern regarding flag state regulation and consequently the biggest threat to the regulated employment of PMSCs.
THE CONTEXT – A REMINDER OF THE RAVAGES OF PIRACY
Annually, it is estimated that the Gulf of Aden is transited by approximately 22 000 ships, carrying eight per cent of the world’s trade, and twelve percent of the total volume of oil transported by sea.1¬†Due to the Gulf of Aden’s strategic importance in international sea trade, together with its geographical confines resulting in dense traffic, the region has historically been prone to piracy.2
However, from 2006 onwards pirate attacks in the Gulf of Aden ‘developed from a common domestic nuisance, aimed mainly at illegal fishing vessels, into a sophisticated and well-organized industry’.3¬†During 2009, this led to, what could be termed the high noon of Somali piracy: 217 attacks, the hijacking of 47 ships and 867 crewmembers.4¬†However, on the contrary, piracy incidents in the Gulf of Aden rapidly decreased during 2012 where 75 incidents of piracy and 14 hijackings were reported.5
Although there has been a drastic decline of piracy incidents in the Gulf of Aden, the threat of Somali piracy will continue to exist as long as a number of economic and socio-political factors prevail, widely believed to have been brought about by Somalia’s terminal unrest following the collapse of Siad Barre’s authoritarian regime in 1991, overfishing by foreign ships and dumping of toxic waste.6¬†The absence of governmental oversight, together with the longest coastline in Africa and no effective coastal security has enabled Somali pirates to launch successful attacks on ships transiting one of the world’s most important shipping routes.7
Somali pirates are notoriously heavily armed, utilize sophisticated technology such as satellite phones and GPS navigation systems and are aided by strategically-placed informants in London and Dubai who provide details on targeted ship, routes and cargo.8 The pirates, together with their weaponry which includes rocket-propelled grenades and Kalashnikov assault rifles, operate high-powered speedboats, frequently launched from a mother ship.9
EMERGENCE OF PRIVATE MARITIME SECURITY COMPANIES AND INTERNATIONAL REGULATION
The emergence of PMSCs in the merchant maritime domain in response to piracy has given rise to unique challenges, both operational and contractual, necessitating the need for PMSC specific regulation, opposed to the adoption of general private security regulatory measures. The extent of the current demand for PMSCs is illustrated when considering that toward the end of 2011, an estimated 50 percent of merchant ships transiting the Gulf of Aden were employing PMSCs, with an average cost of US$50 000.00 per PMSC team.10 The political and security transition influenced by the post-Cold war environment facilitated the major downsizing of armies, leaving an abundance of military professionals from the Soviet Union, the USA and Great Britain available for employment.11
The outsourcing of military services is well known, with Private Military Companies (PMCs), previously known as mercenaries, having been involved in conflicts around the world.12¬†Today Private Security Companies (PSCs) are employed throughout Africa and the Middle East by governments, the U.N., humanitarian NGO’s and multinational corporations.13¬†The nature and conduct of PSCs involved in Iraq and Afghanistan gave rise to a number of questions regarding their transparency and operations, fueling the debate as to whether the provision of military services should remain within the control of governments, opposed to being vested in the profit driven private sector.14
Given the complexities arising from member states’ divergent views on the topic of armed guards, the IMO’s involvement in implementing guidance and recommendations has been commendable and evidently beneficial to many sectors of the maritime industry, particularly flag states and shipowners. However, guidelines and recommendations are not law, and ships, according to Article 92 of The United Nations Law of the Sea Convention (UNCLOS),15¬†are subject to the exclusive jurisdiction of their flag state on the high seas.16
The implementation of the IMO’s interim guidance to PMSCs has assisted in the development of an international standard and certification process for PMSCs, culminating in the International Standards Organisation Publicly Available Specification 28007 (ISO/PAS 28007). The result of the ISO/PAS 28007 is a set of guidelines containing ‘sector-specific recommendations which companies can implement to demonstrate that they provide PCASP on board ships’ to an internationally agreed standard.17¬†The ISO/PAS 28007 addresses a number of components regulating the deployment of PCASP on merchant ships, including, competence; responsibilities; financial stability; insurance; licensing of firearms; vetting of security personnel; guidance on the rules for the use of force; and command and control of security personnel.
The ISO/PAS 28007, as the international standard, establishes a set of conformance criteria that PMSCs need to comply with in order to be certified. The criterion covers an extensive list from operational to head office procedures and protocols.18 Secondly, in order to establish whether the PMSC has complied with the requisite criteria, the PMSC is audited and inspected by accredited inspectors, known as Certification Bodies. However, before a Certification Body can be appointed for ISO/PAS 28007 inspections to certify compliance by PMSCs, it must attain national accreditation, which in the United Kingdom, residence to the largest number of PMSCs, is verified by the UK Accreditation Service.
The absence of a standardized and enforceable regulatory framework governing PMSCs and PCASP in the maritime domain has left a considerable part of armed maritime security regulation in the domain of flag states. Flag state law and regulation on the employment and management of PCASP varies substantially and ranges from permissive and clear rules to total prohibition of deployment of PCASP on board merchant ships. In some flag states, such as Liberia, shipowners are responsible to verify PMSC credentials. Thus shipowners of Liberian registered ships are free to contract with PMSCs of varying standards, provided that the PMSC provides the Registry with their operational procedures, which are not required to adhere to any formal standard.
THE IMPORTANCE OF FLAG STATE ACCREDITATION PROCESSES
Accreditation processes not only ensure that PMSCs can adequately perform the task they are contracted to perform, but further ensure that flag states are able to exercise oversight and hold PMSCs accountable. This measure of regulation is conferred upon the flag state through its ability to suspend a PMSCs operating license or prohibit a particular PMSC from operating on that flag state’s ships should its PASP act unlawfully or fail to abide by national regulation, and is aided by oversight mechanisms such as master and owner reports, submitted to a registry at completion of the voyage.
Notwithstanding the implementation of substantial regulatory measures by the majority of flag states, it is suggested that registries ensure regulatory measures are enforced through the establishment of stringent national accreditation processes or the insistence that owners contract with PMSCs that are ISO/PAS 28007 accredited. The importance of stringent accreditation is emphasized when considering that ships with embarked PCASP are operating on the High seas and foreign territorial waters, great distances from their country of registration, rendering the oversight of PCASP conduct and enforcement of regulatory provisions difficult for flag states.19
Footnotes
1.Geib & Petrig Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (2011) 6.
2.Geib & Petrig op cit note 1 at 6-7.
3.Ibid.
4.International Chamber of Commerce – International Maritime Bureau Piracy and Armed Robbery against Ships, Annual Report 1 January to 31 December 2009 at 25.
5.International Chamber of Commerce op cit note 4 at 24.
6.Geib & Petrig op cit note 1 at 9.
7.Jill Harrelson ‘Blackbeard meets Blackwater: An analysis of International Conventions that address piracy and the use of private security companies to protect the shipping industry’ (2010) 25¬†American University International Law Review¬†283 at 289.
8.Theodore T. Richard ‘Reconsidering the letter of marque: Utilizing private security providers against piracy’ (2010) 39¬†Public Contract Law Journal¬†411 at 418.
9.Richard op cit note 8 at 419.
10Alice Priddy & Stuart Casey-Maslen ‘Counter-piracy operations by private maritime security contractors: Key legal issues and challenges’ (2012) 10¬†Journal of International Criminal Justice¬†839 at 841
11.Carolin Liss ‘Losing control? The privatisation of anti-piracy services in Southeast Asia’ (2009) 63:3¬†Australian Journal of International Affairs390 at 391.
12.Ibid.
13.Ibid.
14.Carolin Liss ‘Privatising anti-piracy services in strategically important waterways: Risks, challenges and benefits’.¬†Discussion Paper E-09-003at5, available at¬†http://www.pp.u-tokyo.ac.jp,¬†accessed on 28 May 2013.
15.United Nations Convention on the Law of the Sea, 1982.
16.K Mohandas ‘Armed guards on merchant ships ‚Äì a necessary evil?’¬†The Hindu Business Line¬†8 July 2012.
17.ISO ‘Ships and Marine Technology ‚Äì Guidelines for Private Maritime Security Companies (PMSC) Providing Privately Contracted Armed Security Personnel (PCASP) on Board Ships’,¬†ISO/PAS 28007, 15 December 2012.
18.Ibid.
19. Carolin Liss ‘Regulating private military and security companies at sea: New developments and challenges’ at 1, available athttp://www.counterpiracy.ae/upload/Briefing/Carolin%20Liss-Essay-Eng-2.pdf¬†,¬†accessed on 11 June 2013.
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