This idea has gained currency since the rash of pirate attacks in 2008 caused the international community to rush a flotilla of naval ships into the waters off the Horn of Africa in an effort to protect international shipping passing through the Gulf of Aden.
But that has hardly stopped the attacks. The pirates have proved resilient and adaptable and more brazen. Pirates launched 47 attacks in the region off the east coast of Somalia, which the Navy calls the Somali basin, in the first four months of this year, up from 37 during the same period last year, according to U.S. 5th Fleet statistics.
According to the International Maritime Bureau Piracy Reporting Centre there were more hijacked vessels and hostages taken in 2008 than in any other year since the PRC began reporting on worldwide piracy statistics in 1992.
And everyone recognizes that the regular naval ships are not going to stay there. The bottom line is that it is not cost effective. Sending billions of dollars worth of warships to chase a ship worth $1,000 is a losing proposition. Today, there is an average of about 25 naval ships patrolling the area.
Even with the increased presence of the coalition warships the U.S. Navy admits that the limited coalition fleet can only patrol a small percentage of the 2.5 million square miles of waters off the Horn of Africa.
Deploying armed guards aboard ships is not without its critics, including many shipping companies themselves. And the record of armed guards, thus far, is mixed. But the idea itself is hardly new. As I noted in 2008 private security contractors have been working the maritime beat for many years now, and not just off Africa. In fact, centuries ago the East India Company employed private convoys to protect its ships from pirates.
While it remains to be seen if the pirates themselves care about facing private security contractors (PSC) it certainly seems to be grabbing the attention of lawyers. Two recent law journal articles address the issue from opposing viewpoints.
First up is Jill Harrelson, who graduates this month with a J.D. from American University, Washington College of Law . She wrote an article titled “Blackbeard Meets Blackwater: An Analysis of International Conventions that Address Piracy and the Use of Private Security Companies to Protect the Shipping Industry” in the current issue of the American University International Law Review.
She acknowledges that private security companies can legally provide armed guards to the shipping industry. American private security companies sailing under the American flag are allowed to have armed guards aboard vessels. In addition, these companies will not run into legal problems in Somalia’s territorial seas because there is no functioning government in Somalia. As long as the companies are in compliance with the laws of every other territorial sea through which they travel to reach the Gulf of Aden, it is legal for private security companies to provide armed guards.
But she notes that private security companies must abide by the laws of all territorial seas through which they travel. In addition, these companies must always comply with the laws of the vessel’s flag state. Therefore, even if a ship’s flag state allows for armed guards, vessels will encounter problems when navigating through numerous territorial seas.
For example, problems will potentially arise when a ship travels through territorial seas that do not allow armed guards or which have stringent gun control laws. Ships are not capable of easily removing prohibited weapons when travelling by sea.
She concludes that::