The third in a series of papers providing an overview of topical shipping issues. Future articles will cover seafarer ID, immigration issues in the Mediterranean and e-navigation.
There may be a perception – albeit a rather alarming prospect – that the use of armed guards is becoming accepted and institutionalised, and that the carriage of weapons and guards on international trading vessels is now considered the norm. This would misrepresent a complex situation and, as the threat of piracy at least off or originating in Somalia continues to decline and calls are being heard for the wider deployment of guards, it is timely to review the issues the use of armed guards raises, how the issues have been addressed, and to offer a prognosis.
Industry observers will recall the announcement by the Prime Minister, David Cameron, to allow the use of armed guards on UK ships when it was made in October 2011. The announcement marked a change in UK policy and was made in response specifically to the then clearly evident and apparently intractable threat Somali piracy was causing to innocent international trading vessels transiting key trade routes through the Gulf of Aden. At that point, and somewhat tentatively many ships had resorted to carrying guards to provide another layer of defence in addition to the physical self-protection measures the shipping industry had developed, known as Best Management Practices (BMPs). There is little doubt that the use of guards increased the resilience of ships to attack. Their use proved to be a game changer and the effect armed guards had on the ability of pirates to achieve a successful attack was immediately apparent. Statistics show 440 attacks, 49 hijacks (2010), 151 attacks, 25 hijacks (2011), 24 attacks, 6 hijacks (2012), declining to no hijacks (2013 & 2014).
The forward contained in the UK Guidance published in 2011 stated the full context in which the use of armed guards was permitted:
‘The UK Government recognises that the engagement of armed guards is an option to protect human life on board UK registered ships from the threat of piracy, but only in exceptional circumstances and where it is lawful to do so’.
The exceptional circumstances briefly being in the High Risk Area (HRA) in the north Indian Ocean, in addition to the full use of Best Management practices, and where risk assessment indicates their carriage reduces the risk to human life on board.
The above conditions provided a geographical limit to the area where guards were to be used, the requirement to provide other lesser but additional forms of protection and justified such exceptional measures in order that their use would better protect human life. The guidance highlighted but neatly side-stepped the legal issues created by the carriage of weapons and guards on civilian ships and identified several contentious issues which still have not been fully resolved today.
The shipping industry and maritime administrations recognised both the effectiveness of armed guards and the dilemmas raised by their use and The Maritime Safety Committee, of the IMO (September 2011 & May 2012), determined it would be useful to place, in a single reference document, (MSC.1/Circ.1444) a summary of all advice issued in addition to the steps to be considered when using privately contracted security personnel, subject to their national laws issued for the benefit of Flag states (MSC.1 Circ 1406/Rev2). Opinions and national laws varied widely.
All administrations recognised that significant work was required to resolve issues nationally and to the satisfaction of the international community and the approval of IMO. Flag Administrations mindful of the clear advice given by IMO were under an obligation to establish a national position on armed guards. Gradually an international picture emerged of how guards were being viewed by individual states. National policies were being explained and it became apparent that those policies varied on a scale of non-permissive at one end to fully permissive at the opposite end. The non-permissive camp included Japan, Greece and Germany; the neutrals, Bahamas, Bermuda, Malta, Marshall Islands and Panama; the qualified neutrals who reported that carriage of guards was not administratively authorised, France, Cyprus, Belgium, Netherlands. At the other end of the scale the permissive states included UK, US and Liberia.
It was apparent that more work was urgently required to create an international regime for the continuing use of armed guards but that IMO was not best suited to lead on this subject or complete this work, given the wide disparity in national positions and the complexity of the legal and specialist often non-maritime issues which were being raised. At this stage, it was fortunate that IMO had a precedent for delegating technical work to the International Standards Organisation. It was readily agreed in late 2011 that ISO should lead the development of an international standard and work was started on ISO 28007, to provide ‘Guidelines for Private Maritime Security Companies (PMSC) providing privately contracted armed security personnel (PCASP) on-board ships. The ISO/PAS 28007 was subsequently published in December 2012 and it is now expected that the trial phase of the ISO standard will be completed within two years and a full standard published in 2016.
ISO 28007 provides a comprehensive and widely supported framework for the use of armed guards and is regulated by means of independent third party accreditation. In the UK this is provided by the United Kingdom Accreditation Service (UKAS) with certification being conducted by approved Certification Bodies (CBs). During 2014 four CBs were accredited and they in turn have certified almost 50 individual PMSCs. Other national arrangements for accreditation exist and are being developed although the take up of overseas accreditation is proceeding at a much slower rate.
At the same time the regulatory landscape is being changed by the introduction of ISO 28007 closer oversight of operational issues has revealed a number of challenging areas in respect to the ongoing use of armed guards. In particular the certification process has shown difficulties concerning:
- Licensing and control of weapons and ammunition to comply with national requirements.
- Weapons and ammunition supplied by third parties using floating armouries.
- Training, qualifications and records of operatives.
- Compliance with Human Rights and the International Code of Conduct.
- Composition of the minimum effective size of a shipboard team.
- Areas and regions where the deployment and use of armed guards is acceptable to both Flag and Coastal State authorities.
Considerable progress has been made towards a comprehensive regime for the employment of armed guards on ships but several aspects concerning their use remain contentious. Regional differences in approach are clearly evident and some are difficult to reconcile. It is fully recognised that armed guards have a vital role to continue to play in maintaining the ‘status quo’ for the time being, deterring pirate attacks in the Gulf of Aden. In time we may well find that the political appetite supporting their use in other regions reduces. Some sense the balance may even now be shifting towards a more circumspect and considered approach to the use of armed guards on civilian ships despite the effectiveness they have demonstrated in the Indian Ocean since 2008.