This just in – Just in time for our 8th Annual Port & Maritime Security 2011 Conference.
MAYBE two tides are turning.
Piracy seems to be declining – depending on the scale one uses for calculating. One would be fatuous to think armed guards are responsible simply because another tide is turning.
Some flag state’s policies on armed guards seem to be on a trickling flood.
These are no spring tides. Neither the tepid utterances of the International Maritime Organization nor the acts of states flagging most ships are realistic. Without the blessings of good laws the situation with owners has reached the tipping point.
The speed of commerce has exceeded the speed of thought of bureaucrats and legislators.
Estimates vary as to how many vessels are carrying armed guards off east Africa.
Some sources place the proportion as great as 40%; others have lesser fractions.
It appears though that either with occasional, quite mild flag-state grudging approvals or ostrich-like hiding, vessels are carrying armed guards.
Those which carry them report no hijackings and few incidents.
Why the lack of flag-state enthusiasm? There is a pervasive fear that there will be an erosion of the monopoly on violence states enjoy.
States exist to control.
The situation now is uncertain and therefore difficult to control. Hence, the conservatism, scuttlebutt, rumour and fear-mongering of loosing cowboys, gun slinging buckaroos and latter-day Rambo types going berserk on our ships.
The matter also has some basis in legal theory. The armed guards remain private and liable.
Such laws create a special class of private actors and foster private behaviours which may or may not be under the control of governments and therefore the rule of law.
But the fact of greater import is that governments refuse to place regular military persons aboard private ships to defend them.
Those kinds of guards are immune if acting within their scope of duties.
Part of the refusal is political and lies in the nature of vessels which are not extraterritorial possessions but extraterritorial private chattels usually owned by those not of the flag state.
States are in the dilemma of protecting property of those not its citizens with public monies or of performing traditional flagstate duties of protection.
The states’ dilemma therefore become the owners’ dilemma of great magnitude.
It almost dictates self-help.
Neither are the cowboys and buckaroos thoughts unfounded.
There have been abuses of the private system and there will continue to be abuses until that endeavour cleans up.
However, unless flag states make clear and unambiguous rules of law to regulate armed guards, the invitation for deviate behaviour is open to the aggressive class.
This further means that the order of the armed guards remains with their company managements with little binding government guidance.
This is a tricky and untenable proposition which will in the end fail.
In such situations states have a record of tending to overreact and harshly so.
They go against the easy targets – owners, masters and guards whom they can reach.
Pirates are hard to reach, especially when dead.
Some commentators have noted that owners are hiring mercenaries.