Armed Guards on Board, A controversial policy of marine industry: The current status and the regulative perspective
by Andreas Giakoumelos*
Hearing the word “pirates” someone may bring in his mind the picture of Johnny Depp in the popular movie “The pirates of the Caribbean”, an illustration which does not reflect the reality. Nowadays, piracy presents a very different face and constitutes a major threat for the market of shipping industry. During the last year a significant decrease of the number of piracy incidents has been observed. Among to many reasons, the use of armed guards on board is regarded as one of the most crucial. Notwithstanding, this practice is open to question and this article sets out to describe the reality and analyze the current regulation.
The dramatic boom of hijackings from 2009 to 2011 was followed by an unexpected fall of their number. According to the International Maritime Bureau, a body that fights maritime crime, the record of hijackings in 2012 was 71 in contrast to 219 in 2010 and 236 in 2011. The reasons of this change can be found in the strict implementation of the Best Management Practice (known as BMP), the better co-ordination between the naval task-forces of States and the use of armed guards on board. Today, more than 35% of vessels carry armed guards, as more and more shipowners hire them from private security companies in order to protect their vessels while passing the “pirate-infested” waters, especially off the Gulf of Aden and South Africa.
This practice is a new one as the international maritime institutions, maritime industry representatives and governments used to oppose to the armament of merchant ships. Thus, an increasing number of flag States are in the process of allowing the use of armed guards. Greece, for example, which has previously prohibited the use of armed guards on ships, has in November 2011 introduced a new law that allows up to six armed guards to work on a Greek flagged ship. However, the law still needs to be ratified by the Greek Parliament. Other countries that had no clear guidelines in place have already sanctioned the employment of armed private security personnel. In the UK, for instance, where the armament of ships was strongly discouraged in the past, a new legislation that UK flagged vessels can be licensed to carry armed guards was approved by the government in October 2011.
Indeed, the increase of financial losses as ransom and the risk of human lives as hostages led to a shift of the stance of shipping industry. As a result, the potential victims-shipowners prefer paying for additional protection of their vessels taking into account the fact that until now no vessel has been hijacked with armed guards on board. So, they employee armed guards-who most of them are ex members of navy force- to be on board of the protected vessel and/or on an escort vessel accompanying it. In a real scenario of pirates’ attack they start with warming shots, after they fire at the attacking boat’s engine, before finally turning their sights on the pirates.
In spite the fact that the armed guards’ solution against piracy has started to be supported, its legal framework is not simple and the regulation is scant. On the international level, no binding regulation exists that specifically addresses the employment of private armed guards on board vessels. Regarding the International Maritime Organisation (IMO) has not provided a standardized convention. Instead, the IMO’s Maritime Safety Committee recommended in December 2008 that flag states should work with ship-owners to design policies for the employment of armed personnel on board. In May 2011, the IMO confirmed the crucial role of flag State’s regulation in its interim recommendations for flag states, ship-owners, ship operators, and shipmasters. Specifically, each flag State has to decide individually whether or not armed guards are allowed on board. If they are permitted, it is up to flag State to determine the conditions under which authorization will be granted.
Nevertheless the lack of existing binding regulation, BIMCO moved to an innovation in the shipping industry concerning the agreement for security services, creating the GUARDCON. It is a standard form contract between the owners of the vessel and the security contractors and aims to set minimum requirements to the use of armed guards on board. For example, it imposes that no less than four guards should be on board and provides guidelines for the Rules for the Use of Force (“RUF”) by defining that lethal force is only used as a last resort and is proportionate to the threat. Also, it refers to the master’s authority in case of use of force. At this point, it is worthy to be mentioned that this issue is one of the most debatable regarding the use of armed guards on board, since it causes concerns and contradictions regarding SOLAS (Article 34.1). Under this provision, the master cannot be restricted to decide on an incident which is related with safety of life and the protection of marine environment. Another difficult aspect to be resolved is the armed escort ships which cross different jurisdictions where weapons on board are not allowed. At the same time, it is necessary to take into consideration the definition of innocent passage given in article19 of the United Nation Convention on Law of the Sea.
Overall, the use of armed guards on board has gained general acceptance across the industry, even though some countries still not permit them. The failure of international regulatory bodies, such as IMO, to establish binding regulations is a problematic reality which has to be faced with seriousness and determination. It becomes more and more essential the creation of secure and well-defined framework for the use of armed guards, as different legal issues arise and there is not a fixed way of resolution. Apart from the regulative perspective of the topic, it has to be stated that it is too early to declare a victory against piracy. There is no time for complacency, since pirates’ threat remains out there-in a less degree but ready to come back again in a more dangerous face with different tactics and weapons.
*Andreas Giakoumelos has graduated from the Law School of Democritus University of Thrace , Greece in 2011. He is curently a postgraduate student of University of Southampton studying Maritime Law (LLM). He has worked in a law firm in Athens as trainee and as assistant of the legal manager in a shipping firm in Piraeus. He has published articles in the magazine of the Law Society of Southampton University and he is very interested in writing for hot issues of the maritime industry such as piracy, new Conventions (MLC 2006) and others.