The globalisation of the economy modifies substantially the relations between maritime actors, whether public or private. This reveals a disconnection between the global dimension of the economic and financial flows and the dominant state nature of the legal norms. The setting up of the mechanisms is then not only the result of a unilateral action by States: it has to be integrated into a multi-stakeholder and dialogue process with both third state and economic actors. The resurgence of acts of piracy or armed robbery in the Gulf of Aden and in the Gulf of Guinea constitutes a striking example that illustrates two major points.
First of all, to fight the phenomenon in an efficient manner, States are not anymore in capacity to determine unilaterally the legal framework of their interventions. Secondly, this legal framework has to be determined with regard to private actors, whose actions impact the content of the norms. From this perspective, maritime piracy, irrespective of the location, leads to a global recomposition of world trade and benefits accruing to coastal populations. Nevertheless pirates, actors of the maritime transport and States adapt their practices, dynamics and strategies, which rely on political, cultural or social local aspects. During this short presentation, differences between Gulf of Guinea and Gulf of Aden have to be presented.
Differences between Golf Guinea and the Gulf of Aden
Geo-strategically speaking, the two maritime regions present different interests. Contrary to the Gulf of Aden, which is a very important maritime transit area, the Gulf of Guinea constitutes the starting point of energy flows, mainly petrol and gas exported to Europe, the United States or China. Being the seventh largest oil reserve and the ninth gas reserve in the world, the Gulf of Guinea is a region of strategic importance, representing for example 15% of the US oil imports.
Maritime transit is not as intense as in the Malacca or Bab el Mandeb Straits but the Gulf of Guinea reports important industrial activities linked to oil and gas exploitation that require stable and predictable supplies. Securing maritime transit in this area arises thus mainly from the necessity and political will to secure the western energy supply and imports.
Politically speaking, the Gulf of Aden is characterised by the fact that Somalia is recognised as a failed State and cannot secure alone its own territorial waters. On the contrary, coastal states of the Gulf of Guinea have the capacity to ensure maritime security in their waters, especially for Nigeria and Cameroon. Even though corruption and kidnappings are a common practice in Nigeria, this latter is not a failing state. Third states are thus not entitled by any international convention or resolution to act within waters under jurisdiction of these coastal states.
The very forms of piracy differ from region to region. While Somali pirates target principally ships transiting off the coasts to divert goods or kidnap crews, the attacks in the Gulf of Guinea target supply vessels or ships carrying petrochemical goods. Besides, while it does exist a real economic system based on ransoms off the Coast of Somalia, attacks in the Gulf of Guinea rarely result in kidnapping crews for ransoms. The absence of a so-called lawless zone in West Africa prevents from hiding ships during negotiation of a ransom. However attacks are increasingly violent and demands more radical. Oil and gas are a source of substantial incomes for West Africa States but local populations of the Niger Delta contest the dividing up as they suffer harmful effects air and water pollution) generated by the operating activities. This explains why oil industry is targeted by groups, that are more or less politicised, as for example the Movement for the Emancipation of the Niger Delta (MEND). In Somalia the situation is different as the societal organisation is based on a clan structure.
The IMB annual piracy report estimates 264 attacks for year 2013 and 297 in 2012 representing a decrease of 11%. Off the coast of Somalia, one can observe a spectacular drop of the number of attacks, with only 15 attacks in 2013 compared with 49 in 2012. West Africa still remains a very dangerous area with 51 attacks (including 31 attributed to Nigerian pirates) compared with 27 in 2012. Far from being eradicated, the persistence of the phenomena and its development question the necessity of a new assessment of the governance of the maritime traffic in a global way. The drop of the number of attacks in East Africa may lead to consider the opportunity to duplicate the developed initiatives for West Africa. Nevertheless, such a transposition might be impossible with regard to the social and political context of this region and places where are committed the attacks.
Privatization of the maritime security: employment of armed guards on board
Private actors play now a key role in the contemporary national, regional state initiatives as well as in the shipowners’ strategies. Because of their involvement in a fight, whose framework is originally exclusively dedicated to State entities, those private actors contribute in a very collaborative way to the implementation of national and regional policies to fight piracy. Shipowners’ actions reveal so well their will to secure their transiting ships that their measures make them socially responsible. Private security companies, offering their services, more and more approach them, which is not without raising national and international legal issues.
Employment of armed guards on board by States as for example the United States, Spain or the United Kingdom offer new perspective with regard to the necessary framework of the fight against piracy. When allowing employment of such private services, one could consider that a State exempts itself from responsibility to protect the ships flying its flag. International law provides indeed for general obligation to protect registered ships. This obligation follows two principles: ensure security and safety of the ship and deter potential harmful effects to third States and their registered ships. Both physical and legal persons are associated to the State action at sea: part XI of the Montego Bay Convention provides for their participation to exploration, use and exploitation of the seabed beyond national jurisdiction. Along with the State responsibility to protect, shipowners have also an obligation to adopt any appropriate measures to ensure the safety of its crews and to protect their health, which is necessarily linked to the employer’s obligation to provide safety to its employees.
It follows that both States and shipowners have the primary duty and obligation to ensure the safety and security of the ship and the crew. The fight against piracy constitutes then a very interesting laboratory for the study of the articulation between cumulative safety and security obligations. The diversification of armed means and the structured organisation of pirate activities seem indeed to require a strengthening of protective measures adopted by the shipowners. Two kinds of measures are adopted to ensure the safety of the goods and the security of the crew: passive and active actions are then available, depending on the flag of State, which determines the legal possibility to hire private security guards and/or to have military personnel on board.
Following the 11 September 2001 attacks, the ISPS Code has been adopted, which constitute an international procedure to secure port facilities and ships. As such, every ship must have security plan with measures dedicated to minimise ship vulnerability and to enhance its safety. This plan details the different means, identification of the assembly areas, location of the Ship Security Alert System (SSAS) « button » or even the description of any measures in case of threat.
As actors of the maritime economy, shipowners have been looking for being actors of the security of the transiting goods, ships and crews. They contributed then to the elaboration of the Best Management Practices (BMPs). These practical measures, called passive protective measures, vary in nature: The passive measures include barbed wire, wire netting, armor plating, bridge deck transformed in a fortress or inaccessible engine room. Those solutions could be and are very easily used by ships transiting through Gulf of Guinea.
The active measures deal with the crew training, reports to centers of operation, communication or the use of the internationally recommended transit corridor that has been set up off the Horn of Africa. They also concern measures that can be ensured by Vessel Protection Detachment. Some States, as France or Belgium, provide military personnel that are paid by shipowners (including costs of transporting of staffs and weapons, payment of premiums etc…). However, time delay is not always compatible with commercial imperatives. Enlargement of the risks areas complicates the equation, as boarding and disembarking of the security crews require new and different location (India, East Africa etc…). Moreover, this mechanism is only available for the Gulf of Aden, which forces shipowners to consider private solutions for their ships transiting in other dangerous areas, as the Gulf of Guinea for example.
Besides, even for the transit in the Gulf of Aden, shipowners consider more and more seriously private solutions, contrary to former political position both of States and shipowners. Some legal national schemes frame now employment of private security guards on board, following the model of UNHCR convention project on military societies, IMO circulars or ISO guide. Private security companies are more and more numerous, proposing extremely various services: risks assessment, coastal, port or military personnel training etc… Morevover, some insurance companies reduce premiums for shipowners if they accept to externalize the ship security. It is estimated that some 40 to 50% of the ships transiting through the Gulf of Aden have such private security crews on board.
Some States (Indonesia, Malaysia or Singapore for example) forbid employment of such private guards on board of ships transiting their territorial waters. Ships found to be contravening this interdiction would be in breach of national laws on weapons’ import and might be qualified as terrorists. These national laws might be regarded as contrary to art. 19 of the Montego Bay Convention about the right of innocent passage. This would lead to a conflict between territorial jurisdiction of the coastal State and the personal competence conferred by the Law of Flag State. Thus, such a situation would lead to two major consequences. First of all, this points out the issue of the presence of weapons within territorial waters, especially in the case of the Guld of Guinea. Secondly, it appears necessary to draw up some convention or amendments as to having weapons within the ports of the Destination State. Then, securing the ships in such a way generates new threats that have to be urgently considered.
The international legal framework seems then to be incompatible in some circumstances to the employment of armed guards on board. This remark has to be completed by the fact that new issues would raise. Considering art. 19 and art. 107 of the Montego Bay Convention, such private guards would be not competent to arrest a vessel or pirates, and certainly not to cause damage to third people or ships. Being in charge of the ship, crew and goods security, armed guards are indeed not state agents. In case of exchange of fire, that might be lethal, the ship captain could be held responsible for not having render assistance to a person found at sea in danger and to proceed to the rescue.
The peculiarities of the fight against piracy require a distinct legal framework or at least dedicated provisions in the existing international instruments in order to frame these new private activities. Of course, it does exist guidelines that are really helpful to standardize these private practices, but as non-binding instruments, they do have a very relative scope. Moreover, in addition to the registration of these companies, their competences should be more clearly defined to better understand the articulation of the States, shipowners and security companies’ responsibilities. Some UNSC resolutions may be seen as a “subcontracting” mechanism of the fight against piracy, authorising non-coastal states to act within specific waters, justified by the political situation of Somalia. But recognise the employment of private companies shows here a privatization of the security and safety at sea, which will lead without a doubt to responsibility issues: in case of death, who would be responsible: the Flag State, the Shipowner, the captain, the security company?
The corporate social responsibility of the shipowners as a solution for the internationalisation of private solutions
An increasing number of European companies are promoting their corporate social responsibility strategies as a response to a variety of social, environmental and economic pressures. They aim to send a signal to the various stakeholders with whom they interact. As actors of the global economy, shipowners are participating to the fight against piracy, not only in ensuring the security of transit, but also to ensure the protection of fundamental social rights at work. From this point of view, in case of a successful attack, the corporate social responsibility appears to be an instrument of law enforcement but also as a source for redefining the concepts of economic efficiency.
The impact of globalized trade increasingly leads to an ethical consideration of the economy. One hopes that taking account of the cost of human risk cased by acts of piracy will encourage actors to consider the need to rethink the production of law no longer in a national context, but at an international one, promoting universal respect for fundamental rights. In this way, the concept of corporate social responsibility appears to be an effective mean to modify the governance and a secure basis for a possible international harmonization.
Crédits photo : Pixabay
- Research scholar at Maritime and Oceanic Law Centre, University of Nantes, France; Associate Researcher at Corbett Centre for Maritime Policy Studies, King’s College London, United Kingdom; Member of the Ethics Advisory Board of the European Project PROMERC (Protection Measures for Merchant Ships), World Maritime University, Sweden.
- Senior lecturer in European and International Labour Law, European and International Social Law, EC Fisheries Law ; Vice-President for International Affairs of the University of Nantes.