Archive for category Letter Of Marque

Maritime Security: Spain Allows Heavy Weapons On Tuna Fishing Vessels

Sep 29

Posted by Matt in Indian Ocean, Letter Of Marque, Maritime Security, Spain, Weapons | 2 Comments

You know, out of all of the countries that I have followed, Spain has been one of those countries willing to work with private security and shipping companies the most to achieve a good level of security. Unless someone can point out a better arrangement?

Especially when Spain is paying grants to Tuna boats that cover 25% of the cost to hire security, or providing military training to that security, and most of all, allowing those PSC’s to use heavy weapons. That last one is a big plus for me, just because it reflects the reality of what is out there.

I also like the idea of placing conditions on these grants. Although why not just grant the Letter of Marque? But this is an interesting way of mitigating the principal-agent problem. Here is the quote:

“No aid shall be granted in cases of breach of Community law, Common Fisheries Policy or legislation to combat illegal, unreported and unregulated (IUU) fishing activity. In these cases the aid will be refunded depending on the severity of the infringement,” the Ministry added.

Armed guards on boats are having some fantastic success against piracy. We have a 100 percent success rate. But that is no reason to get comfortable or to not evolve and stay one step ahead. Today’s pirates are consolidating, they are innovating, they are attacking using wolfpack tactics, they are using NVG’s to attack at night, and they are using weapons of war. With that kind of enemy, we must give today’s armed guards every advantage we can. So with that said, I give Spain high marks for this new weapons policy. -Matt

Heavy weapons allowed in tuna fishing vessels in the Indian Ocean
September 28, 2011
In order to combat pirates’ action in the Indian Ocean, the Ministry of Defense of Spain authorized the use of large caliber weapons — 12.70 mm — in tuna vessels fishing in these waters.
So far, the boats have been able to carry weapons of 7.62 millimetres, but the current ones are much more powerful and they are usually anchored using some kind of support.
The measure was announced by Defence Minister, Carme Chacón, after meeting with representatives of tuna vessels and of shipowners of the Spanish fleet in the Indian Ocean.
Thus, Spain is the only country with permission to carry heavy weapons on board to fight Somali pirates, Diario Montañes reported.
The initiative will be implemented as soon as the Government of Seychelles comes to approve the protocol submitted by the Spanish government with details of the agreement.
According to Chacón, it is “almost imminent” to carry such weapons in the Spanish vessels.
When asked about the possibility of managing an operation similar to Atalanta in the Gulf of Guinea, following the increase of crime in these waters, Chacón dismissed it.

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Tags: 12.7, heavy weapons, Indian Ocean, Maritime Security, piracy, Spain, Weapons

Letter Of Marque: The Original Understanding Of The Capture Clause, By Aaron Simowitz

Sep 21

Posted by Matt in Legal News, Letter Of Marque | No Comments

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. -the enumerated powers of Congress, Art. 1, Sec. 8, Para. 11 of the US Constitution.

This is cool. When discussing the Letter of Marque and Reprisal portion of the war clause, the capture clause is always forgotten. But for privateering, the capture clause was very important. It gave congress the right to establish the rules and laws for the capture of enemy vessels or prizes, and for the capture of combatants. That last part about the capturing of combatants is what has been falsely interpreted over the years and forgotten, and Mr. Simowitz has done a great job of disputing this false interpretation.

The reason why this is important to discuss is that like in the past, prisoners are very much a part of conflicts on land or water today, and if private industry is to be involved in such ventures, there must be rules and laws in place that dictate what is to be done with prisoners. Especially on water, just because armed guards on boats are big thing right now. The big one here is the legal capture, detention and treatment of prisoners, and of course, the costs of capture, detention and transport of prisoners. Private industry must be compensated and incentivized, or else taking prisoners will not be a priority. (hence why Congress dedicated funding for captures/bounties during wars like the one in 1812)

I have talked about offense industry in prior posts, and the key to this concept is to create a mechanism in which private industry profits from the destruction of the enemy. Well profiting from the ‘capture’ of enemies is included in that mechanism because the act takes combatants off the battlefield. You can see shades of that in today’s modern bailbondsmen industry as well.

And if there are specific rules and laws on how captures are to be done, then those captures could be recognized by a prize court or current court of law as legal. If a bounty or fees associated with the capture/detention is to be awarded, a court of law must be satisfied that it was legally conducted. As of right now, there are no laws or rules for private industry to use for the capture/detention of pirates. Yet states could easily provide such a thing via their right to grant a license or Letter of Marque to private industry.

Now lets discuss today’s modern piracy problem. We are well on our way to creating a vibrant ‘defense industry’; one in which there is no mechanism in place to reduce the numbers of pirates other than to kill them during times of self defense. This is an odd arrangement that we have, where we allow armed guards to take the life of a pirate during combat, but we do not give them the legal authority necessary to capture that pirate? Or what about the rules for when a pirate surrenders or we have wounded that pirate or destroyed their vessel during a battle, thus leaving them stranded in the ocean?

Sure, a company could contact a naval force nearby and give them a GPS coordinate of the position of that pirate vessel, but what about those companies who could care less about such things? Or maybe those companies are getting strict guidelines that they are not to stop or deal with any kind of pirate detention. And for those companies that do bring pirates on board that surrendered or were stranded, then who will pay those companies for the effort? That is what boggles the mind right now, and there are no laws or rules for capture or detention. Oh but we can shoot at the pirates all day long…..

So this is what I am trying to do here. We need a serious discussion about the ‘rules concerning captures on land or water’, and how that could apply to private industry and their current task out there on the high seas. The US Constitution is a great starting point for that discussion, as well as the history of privateers and the rules for capture they followed in the past. The War of 1812 is just one historical example, and our forefathers had a greater understanding and appreciation for the issue than our modern legal councils. And if you think about, our forefathers were more humane, just because they had a legal means of private industry removing combatants off the battlefield, other than just killing them.

Either way, check it out, pass it around, chew on it for a bit, and understand that we can learn a lot from the past about how to use private industry during times of war. -Matt

The Original Understandings of the Capture Clause
Aaron D. Simowitz
Gibson, Dunn & Crutcher LLP
March 12, 2008
Abstract:
The Congress shall have power to . . . To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. US Const Art I, § 8, cl 11.
Although the Capture Clause may seem obscure today, the power it embodies was crucially important to the early republic. General Washington declared, even during the Revolutionary War, that a centralized and standardized system for the handling of prizes was vital to the war effort. The first court established by the fledging federal government was the federal appellate court of prize. This court heard over a hundred and eighteen cases before it was dissolved by Article III of the Constitution.

The federal government, first under the Articles of Confederation and then under the Constitution, was responsible for prescribing the rules under which enemy ships and prisoners could be taken. The value of captured ships was the chief means by which the early navy and privateer system was financed. However, the early law of capture also concerned captured persons, who could sometimes be redeemed or ransomed for head money. Later scholars have correctly concluded the capture of property was more important to the Framers of the Constitution. However, they have also assumed that the Capture Clause did not cover people. This is not the case.

This paper will show that the received wisdom that the Capture Clause covers only property is based on a faulty and possibly disingenuous statement dating from 1833. This paper will also show that the received wisdom is inconsistent with the era’s admiralty law and with Congressional practice. The Framers made prescribing rules concerning captures on land and water an enumerated power of Congress. This power covered enemy persons as well as property.
Link to paper here.
—————————————————————-
Shortly before the War of 1812 broke out, Congress passed the latest version of “An Act Concerning Letters of Marque, Prizes, and Prize Goods.” Section seven of the Act, enacted pursuant to Congress quasi-war powers, provided, “[t]hat all prisoners found on board any captured vessel, or on board any recaptured vessel, shall be reported to the collector of the port in the United States in which they shall first arrive, and shall be delivered into the custody of the marshal of the district . . . who shall take charge of their safe keeping.” Section nine of the same act provided a bounty of twenty dollars for each enemy killed in the event that the enemy vessel was destroyed. -2 Stat 759, 763 (June 26, 1812)

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the United States be, and he is hereby authorized to make such regulations and arrangements for the safe keeping, support and exchange of prisoners of war as he may deem expedient, until the same shall be otherwise provided for by law; and to carry this act into effect, one hundred thousand dollars be, and the same are hereby appropriated, to be paid out of any monies in the treasury not otherwise appropriated.”-An Act for the Safe Keeping and Accommodation of Prisoners of War, War of 1812

Tags: Aaron Simowitz, capture clause, Gibson Dunn and Crutcher LLP, History, Legal News, Letter Of Marque, privateers, war of 1812

Maritime Security: Marine Insurers Backing Armed Guards As Piracy Threat Grows

Sep 20

Posted by Matt in Letter Of Marque, Maritime Security | No Comments

Frédéric Gallois, the deputy general manager at Gallice Security, a specialised security firm, said that keeping a team of four armed agents on board a vessel can cost between $4,000 and $8,000 a day.
Paul Tourret, the director of Institute Supérieur d’Économie Maritime, ISEMAR, a research institute that specialises in sea-based economic activities, estimated that the extra costs to a ship due to the risk of piracy can reach up to $50,000 a day.- Link to quote here.

That is an interesting quote up top, and I am always on the look out for cost estimates on transits. ISEMAR specializes in sea-based economics, so I tend to perk up when think tanks like this put out figures. Although on their website, I was not able to find any documents about armed security costs. Perhaps some of my french readers could help me out here?

But the real story here is the one below. That insurers are now getting behind the idea that armed guards on boats is a heck of good idea, compared to their other options. Or compared to the future of West’s navies.

They mentioned below about the defense cuts of Western navies, and the reduction of force size over the coming years. This is a very important point to bring up when it comes to today’s anti-piracy efforts. Eventually today’s war planners and strategists will come to the realization that using large Destroyers to take out tiny little pirate boats is not exactly cost effective. Especially when those navies still continue to falter when it comes to protecting commerce.

Cook said private firms would play an increasing role as navies face spending reviews, citing prospects of a 30 percent decline in the size of Western navies in the next 20 years. “They’re taking the policemen off the block,” he said.

The other statistic that was interesting was this one from ISEMAR. I would have thought that number would have been bigger? Especially if Peter Cook of SAMI said he has 58 member companies? I would be curious if SAMI or any other maritime groups agree with this number?

French maritime economics institute ISEMAR said there were about 1,000 private guards being employed by ships to counter Somali pirates.

Finally, with all of the increased use of armed security, the reduction in naval forces, and increase in pirate attacks and complexity, I have to think that the legal authority for how armed security is used will change. I have argued in the past that defense industries do not profit from the end of their venture. That they profit if the client they protect, continues to be attacked and threatened. But with offense industry, a different market force is set up to where companies profit from the ‘destruction of an enemy’ that threatens a client. That an offense industry work’s itself out of a job.

When countries really think about it, and try to understand what the economics are with how the pirates operate, and how private force ‘could’ operate to counter it, perhaps there might be some pragmatic choices made on the legal front? The question is, how do you reduce the numbers of pirates and attacks, and how can private industry be used to accomplish such a thing?

Specifically, I suggest to bring back the Letter of Marque and Reprisal, and create an offense industry to ‘expulsis piratis, restituta commercia’. It is the legal ‘sledge hammer’ in the tool box of states, and it is just sitting there getting rusty. As piracy becomes better funded, more violent, more organized, and more rampant, eventually states will have to re-evaluate what is ‘inherently practical’; and change their view on what is ‘inherently governmental’ in order to stop this. -Matt

Marine Insurers Backing Armed Guards as Piracy Threat Grows
By Gus Trompiz
September 20, 2011
More ship insurers are backing the use of private armed guards on merchant vessels at sea to combat Somali piracy as attacks and the resulting costs are set to rise in coming weeks, industry officials said on Tuesday.
Pirate attacks on oil tankers and other ships are costing the world economy billions of dollars a year and navies have struggled to combat the menace, especially in the vast Indian Ocean. Seaborne gangs are set to ramp up attacks in the area after the monsoon season ends.
A famine crisis in Somalia could also draw more people into piracy, marine insurers said.
“Piracy is clogging the arteries of globalization,” said Emma Russell with underwriter Watkins, a member of the Lloyd’s of London insurance market. “No vessel with armed guards has yet been taken,” she added.
Industry delegates at the annual conference of the International Union of Maritime Insurance (IUMI) said there were more than 20,000 transits a year in the Gulf of Aden and the Indian Ocean.
Speakers at the conference said the hiring of private armed guards to accompany ships is increasingly seen as an effective deterrent against pirates and as a complement to overstretched navies, many of whom face budget cuts.
Ship owners and insurers have until recently been reluctant to accept the use of armed private contractors. They have hesitated partly due to legal liabilities and risks, including the problem of bringing weapons into some territorial waters and due to the fear of escalating violence.

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Tags: Gallice Security, Insurance, ISEMAR, IUMI, Letter Of Marque, Maritime Security, Peter Cook, SAMI, Somalia

History: The Lynx–America’s Privateer!

Aug 12

Posted by Matt in Cool Stuff, History, Letter Of Marque, Video | No Comments

This is very cool. This vessel is a recreation of the original privateer schooner called the Lynx. The reason why I like this, is that this boat is a real representation of private industry during war time. This vessel is also a symbol of what an Offense Industry can create during times of war, and this boat is beautiful. This thing was designed for commerce raiding, and it is just neat to see it sail and exist.

The other deal I wanted to bring up is definitely go to the website and check out their schedule if you want to see where they are going next. They are sailing all over the world and their intent is to educate people about the history of privateering in America’s early wars. So they do tours on the vessel and this would be a fun way to spend a day. So definitely take the time to check this bit of contractor history if they happen to be in your area. -Matt

Lynx– America’s Privateer
HISTORY OF THE LYNX
Lynx is an interpretation of an actual privateer named Lynx built by Thomas Kemp in 1812 in Fell’s Point, Maryland. She was among the first ships to defend American freedom by evading the British naval fleet then blockading American ports and serving in the important privateering efforts.
At the outbreak of the War of 1812, the American Navy consisted of only 17 ships – eight frigates, two brigs, and seven assorted smaller vessels including a few schooners which saw service in the Barbary Wars. When a nation went to war, owners of private vessels were granted special permissions, called “letters of marque,” to prey upon the enemy’s shipping; thus, “privateers.” While rarely engaging enemy warships, their impact was felt by English merchants who insisted on warship escorts for their vessels. To perform this duty, warships were drawn away from engaging the scant American Navy and blockading our coast, and thus did the privateers, motivated by profit, assist in our national defense. Among the Baltimore privateers was the sharp-built tops’l schooner, LYNX.

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Tags: Cool Stuff, History, Letter Of Marque, Lynx, privateer, Video

Letter Of Marque: ASF 2011–Gen. Michael Hayden Talks About LoM And ‘Digital Blackwater’

Aug 2

Posted by Matt in Cyber Security, Letter Of Marque | No Comments

Now this was a pleasant surprise. I am always on the lookout for any serious or interesting conversations about the Letter of Marque and Reprisal, and low and behold I stumbled on a good one at the Aspen Security Forum. General Michael Hayden, with his extensive intelligence background and experience, actually brought up the concept of the LoM (@ min. 30:04) when talking about private security in the cyber space realm. The ‘Digital Blackwater’ comment came up before the mention of the LoM. Pretty cool stuff, and it is great to see such important and highly influential folks have a conversation about the concept.

The other topic that came up that really grabbed my attention is the patent legislation that is coming up that is referred to as the ‘first to file’ law or the Leahy-Smith America Invents Act. Meaning, companies that ‘first’ file the patent, win the rights to it, as opposed to companies or individuals who actually thought it up and file for that patent. A law like this would make it very lucrative for digital pirates to steal valuable information and file it first–legally. Scary stuff, and this could ramp up the cyber piracy game big time.

The other statistic I was floored by was that the US businesses loses about a trillion dollars a year to cyber piracy and all of the money that companies have to spend on security. That is a stunning figure, and it kind of puts into perspective what is really being lost, and especially during such tough economic times. Something must be done to stop that, and you can see why concepts like digital PSC’s and LoM come up. It’s like these criminals and attackers are just walking into Fort Knox and taking whatever gold they want.

Finally they ended the conversation with cloud computing, which will probably be pretty popular for companies to get into. Reduced cost and increased security do to economy of scale (everyone is sharing everyone’s stuff, to include security measures) Although I tend to think that cloud computing will be attacked and exploited, just like anything else. Interesting stuff, and this is a great LoM resource for future discussions. -Matt

Tags: article 1 section 8, Aspen Security Forum, Cyber Security, cyberwar, General Michael Hayden, Letter Of Marque, piracy

Legal News: Italy And Norway Produce National Regulations On The Use Of Armed Guards For Maritime Security

Jul 27

Posted by Matt in Italy, Letter Of Marque, Maritime Security, Norway | No Comments

Right on, and this is great news that countries are now starting to wake up about this stuff. I also think that this move to put armed guards on boats and backing that up with legal authority to do so, is actually helping to fuel the opinio juris of the world body that armed security is a good idea on these boats. If Italy or Norway thinks it’s a good idea, then other countries might be more inclined to do the same thing. I have also seen this change in attitude with places like the UN, Germany and the UK.

Now will armed guards on boats, eventually lead to states granting Letters of Marque? Who knows, but as armed guards on boats present certain unavoidable situations (like taking prisoners after sinking a pirate boat, killing pirates, killing innocents, clashes with other navies or armed guards, etc.) then further legislation might lead countries to just go back to the tried and true license called the LoM. In other words, if the sum of all of the laws created over time add up to being just a basic LoM, then why not just implement the LoM?

The Declaration of Paris (DoP) is old and outdated, and as we put more private armed guards on boats and states continue to pass laws allowing for such things, then why hold to the DoP? Especially as pirates continue to flourish, and navies continue to fail at stopping this virus. Stuff to think about, and bravo to Italy and Norway for doing the right thing. -Matt

National regulations on the use of armed guards
July 22, 2011
Italy

The Italian Decree no. 107, dated 12 July 2011, (Italian only) states the general principles of the deployment of military forces or private security guards onboard Italian Ships.
—————————————————————
Norway

On 29 June 2011, the Norwegian Government announced a new framework on the use of armed guards by amendments to Regulation 972/2004 on ship security and amendments to Regulation 904/2009 relative to arms. The changes came into force on 1 July 2011.
The new framework follows the IMO guidelines, and allows Norwegian owners to have armed guards onboard in a certain geographical area within the legal limits laid down. An owner wanting to place armed guards onboard must apply for authorization with Norwegian Police Authorities and provide necessary documentation to the Norwegian Maritime Directory. However, the owner is required to conduct an independent risk evaluation to prove the need for armed guards. In addition the owner must be able to show the Security Company’s documentation on procedures for training, qualification and storage and use of weapon.
The simultaneously issued Provisional Guidelines the use of armed guards offer practical guidance on the interpretation of the new framework.
The minister of Trade and Industry states in a press release (Norwegian only) that the amendments do not imply an encouragement to have armed guards onboard Norwegians ships. The purpose is to control the selection and use of security companies to ensure the safety of Norwegian ships and their crew. He emphasizes that all other efforts to protect the ship and its crew must first be fulfilled before armed guards are used.
Link to post here.

Tags: Armed Guards, Italy, Legal News, Letter Of Marque, Maritime Security, Norway, piracy, security

History: The Privateers Of The Texas Revolution

Jul 25

Posted by Matt in History, Letter Of Marque, Texas | 2 Comments

This is some cool history that yet again, you just don’t hear about. I had no idea about this history, and after reading about it, I tried to collect as much as I could that talked about this little known subject. Just to set this up, here is an excerpt from wikipedia about what led up to this revolution or war of independence between Texas settlers and Mexico:

The Texas Revolution or Texas War of Independence was a military conflict between Mexico and settlers in the Texas portion of the Mexican state Coahuila y Tejas. The war lasted from October 2, 1835 to April 21, 1836. However, a war at sea between Mexico and Texas would continue into the 1840s. Animosity between the Mexican government and the American settlers in Texas, as well as many Texas residents of Mexican ancestry, began with the Siete Leyes of 1835, when Mexican President and General Antonio López de Santa Anna abolished the federal Constitution of 1824 and proclaimed the more centralizing 1835 constitution in its place.
The new laws were unpopular throughout Mexico, leading to violence in several states. War began in Texas on October 2, 1835, with the Battle of Gonzales. Early Texian Army successes at La Bahia and San Antonio were soon met with crushing defeat at the same locations a few months later. The war ended at the Battle of San Jacinto where General Sam Houston led the Texian Army to victory over a portion of the Mexican Army under Santa Anna, who was captured shortly after the battle. The conclusion of the war resulted in the creation of the Republic of Texas in 1836.

So I guess the thing that I wanted talk about with this particular piece of history, is the fact that privateering was the first act of the provisional government of Texas. They did not have a navy, so privateers was a quick and easy want to fire up a navy and put some money into the treasury by means of a prize court. Unfortunately at that time, Mexican commerce in the Gulf of Mexico was not that great, and thus a privateer industry or offense industry did not have the necessary elements to flourish.

It is also important to note that if Texas was not part of the US at the time, then this would be an example of another ‘country’ using the LoM. I could be wrong there, but I just do not know how to legally classify Texas at that time period? But either way, this is an example of a fledgling and resource strapped government, firing up the Letter of Marque as just one tool in their fight.

On a side note, the provisional government also handed out land to any soldiers who would fight for Texas Independence. This is an interesting concept, and I wonder if Somalia could do something similar? Hell, the TFG could fire up the LoM as well, and grant these licenses to foreign or local privateers to go after pirates on water and land. Meaning, if a company could seize by force the wealth of the pirate investors or pirates themselves, then that company would split that prize with the TFG. That puts money into the treasury of the TFG, it provides financial incentive to the privateer companies, and it creates an offense industry that profits from piracy’s destruction. To really fire it up, they could offer pirates amnesty if they become privateers for the government. Call it the Woodes Rogers solution. lol.

Either way, check it out and let me know what you think. I think that flag below would be a cool morale patch for today’s maritime security bunch too. And I know that Texas is not ‘legally’ authorized to grant LoM’s at this present time, but imagine if they were? That they created an offense industry to deal with the asset rich cartels that operate along the borders? Now that would be something else. -Matt

1824History: The Privateers Of The Texas Revolution

The flag that Texas Privateers were required to fly on their vessels.

Texas Privateers

(From the Texas State Library and Archives Commission)
Revolution broke out in earnest in Texas in October 1835 with the seizure of the Mexican cannon at Gonzales and the beginning of the Siege of Bexar. As these events unfolded, the Consultation, the first revolutionary assembly of Texas, came together in San Felipe on November 3, 1835. One of its first acts was to consider the protection of the Texas coast. It was impossible to create a Navy overnight, so the Texans adopted the time-honored practice of issuing letters of marque and reprisal to privateers. These privately owned war ships would protect the coast, harass Mexican shipping, and bring in prizes that could be auctioned off, with part of the proceeds going into the public treasury.
Texas issued a total of six letters of marque to privateers, including the San Felipe, the William Robbins, the Terrible, the Thomas Toby, the Flash, and the Ocean. Flying the “1824″ Texas Revolutionary flag, these ships not only patrolled the Gulf, but also pursued Mexican shipping on the high seas. The Thomas Toby was the outstanding privateer of the group, capturing several Mexican vessels and bringing them back to be adjudicated and their contents sold. Overall, though, the privateering effort was disappointing for Texas. Mexican shipping was not considered rich trade, so relatively few privateers were willing to take the risk.

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Tags: History, Letter Of Marque, privateers, Texas, texas privateers, Texas Revolution

Letter Of Marque: California Law Review–Structuring A Sustainable Letters Of Marque Regime, By Todd Emerson Hutchins

Jul 25

Posted by Matt in Legal News, Letter Of Marque, Publications | No Comments

Excellent paper and I recommend checking out the whole thing with the provided link below. The section that I was particularly interested in is the International Law portion. I continue to hear arguments against the Letter of Marque, and no one really has a firm legal foundation for their argument. Or at least that’s what it seems to me. It is just assumed or the ‘opinio juris’ is that issuing Letters of Marque is a no go, and this paper clearly identifies the counter argument to this belief.

So that is why I posted this, and I hope that the legal counsels of countries that are looking for arguments for firing up their LoM or introducing legislation for such a thing, will have some resource to draw from. And what is really nice with legal papers like this, is they are heavily sourced and footnoted, just so they can back up their arguments. The footnotes alone are worth reading, just because they indicate how much the LoM has been talked about in legal circles. Lot’s of opinions, and this is a good collection of them.

In this particular section I posted below, the author identifies two reasons why states believe they are prohibited from privateering and issuing letters of marque, based on their interpretation of the Declaration of Paris and of International Law. One is opinio juris and the other is state practice that influences this interpretation.

State practice refers to “consistent conduct,” while opinio juris means States follow the rule out of “belief” that they are legally obligated to behave in a certain manner.

One of the reasons why I started the Letter of Marque category is to remind states of the practice of privateering, and to remind those who are establishing a legal basis for the act, that countries like the US have a history of consistent conduct when using privateers(it was used in multiple conflicts). And because the US is not a signatory of the Declaration of Paris, then that is interpreted as an ‘objection’ to banning the practice. This is key if you are to prove a state’s ‘belief’, and the fact that the LoM still exists in the US’s most cherished legal document called the Constitution, then we can certainly deduct the US ‘opinio juris’.

The author made this legal argument very well. So if the US could care less about the Declaration of Paris, then why do these other countries continue to hang on to a ‘belief’ that they have to abide by this document? Especially as their navies continue to be downgraded by reduced budgets, or those navies get over extended with other commitments. And especially as piracy is attacking the very life blood of these countries or commerce. National interest should be focused on doing whatever it takes to stop this, and the LoM is just one tool to help with that endeavor.

Finally, I would like to also point out the fact that this was written by a ‘naval Surface Warfare Officer’ and a ‘Judge Advocate student at the Naval Justice School in Newport, R.I’. That indicates to me a paper influenced by naval military history and thought, and the legalities behind implementing the LoM in modern times. It is also a paper that can show the way for how to implement the LoM to help in the war against today’s virus called piracy. Very cool and check it out. -Matt

Structuring a Sustainable Letters of Marque Regime: How Commissioning Privateers Can Defeat the Somali Pirates
Lieutenant Todd Emerson Hutchins
June 9, 2011
(this is just one section of the paper)
THE PRESENT STATE OF LETTERS OF MARQUE IN INTERNATIONAL LAW AND AMERICAN JURISPRUDENCE
Many contemporary international law scholars contend that the Paris Declaration “by formal accession or tacit acceptance by all the powers [has become] an established part of the general body of [customary] international law.”273 Proponents of a broad prohibition on privateering allege that customary international law has formed since the Paris Declaration. “[I]nternational custom, as evidence of a general practice accepted as law” is recognized as a source of international law under Article 38 of the International Court of Justice Statute.274 It “consists of rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act that way.”275 The two key elements are state practice and opinio juris.276 State practice refers to “consistent conduct,” while opinio juris means States follow the rule out of “belief” that they are legally obligated to behave in a certain manner.277 Admittedly, the distinction is frustrating “because it is difficult to determine what states believe as opposed to what they say.”278

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Tags: california law review, Legal News, Letter Of Marque, Publications, Todd Emerson Hutchins

Maritime Security: Anti-piracy Consultants In Search Of Asian Clients

Jul 18

Posted by Matt in Hong Kong, Letter Of Marque, Maritime Security | No Comments

The move reflected growing interest by Hong Kong and mainland shipping companies to use armed guards to protect their ships and crews while sailing through pirate-infested waters in the Indian Ocean, Arabian Sea and Gulf of Aden.
Gibbins said the firm had seen business grow 140 per cent so far this year compared with last year as the global shipping industry increasingly used armed personnel. “We’ve been working for two years and clocked up 1,000 transits. We’ve deterred 23 attacks, all of which avoided any lethal force,” he said.

Every once in awhile, an article comes up that is just full of interesting data. This article is short, but filled with some key points that have helped to identify a trend here. That the armed maritime security business is on the rise, and expanding.

The article mentioned a familiar company called PVI or Protection Vessels International. This company was identified as one of the top Maritime Security companies that guys wanted to work for in my last survey, and it is great to see a good company expanding and doing well.

What was also interesting is that the author identified a trade industry called the Security Association for the Maritime Industry or SAMI. This trade group is doing some good work, and namely trying to organize and hold it’s members to some standard. Which is great, because at this time, there is no one regulating the maritime security industry. A group like this can also help shipping companies to determine who the good companies are..kind of.

On the other hand, SAMI will run into the same problem that ISOA has when it comes to dealing with a member company that screwed up. Or how they deal with member companies when one of us contractors files a legitimate claim of abuse and violation of the code that the company signed on to follow. Will they truly punish one of their members when they do bad, or even take away their membership? What kind of teeth does SAMI have to actually police their own is the question, and that will be the indicator of it’s true strength as a group. Or is this just another club for companies to join, and say ‘look, we are members, so we must be good’.

Which this brings us to the road that I keep ending up on when we talk about this stuff. We can have associations and trade groups and clubs all day long, but unless we have legal authority or license to do what we are doing, then all of these self imposed regulations and policies are just kind of weak. A Letter of Marque is a license that comes directly from the highest authority of any country, and it is a license that is backed up by hundreds of years of use. If a country is willing to put it’s flag on a vessel, then why are they so afraid to put that same flag on an armed security team in the form of a comprehensive LoM that is backed by a bond?

I mean if I have to get the SSO, STCW 95, ENG1, TWIC, Yellow Fever and Seaman’s Kit Book for a job, I guess I will do it. But the ultimate would be an LoM. And even with an LoM, you would probably run into issues when dealing with other countries out there, but at least you would have a license of true significance.

On another note, if you look at that list of member companies at SAMI, you will have quite the list of maritime security companies to submit resumes and CV’s too. You can do the same over at the ISOA, and that is a great way of identifying those companies who are players out there.

Finally, another point to make here is the market of armed maritime security work is expanding quickly. Lots of countries are getting on the band wagon of armed security, which is great. But what I would like to see, are more of the larger companies getting into the game. Of course all of the government related contracts in Iraq and Afghanistan are the cash cows of these companies, but as the war winds down and there becomes less and less demand for armed security in the war zones, then it would make sense that some of these companies would look at maritime security as a potential market. I think there is room for a lot more entry into this market, and especially if companies like PVI have seen a ’140 percent increase’ in business just in this year alone.

As more vessels get armed security, the vessels that do not have security will get an increase in attention by the pirates as well. So the market will be expanding quickly as the ratio of unprotected vessels decreases–less boats, yet the same amount of pirates, and probably an increase in attacks against unarmed vessels. Remember, the pirates are using scouts and hacking emails and doing whatever they can to find out who has security, and who does not. It is this environment that security companies should examine, and understand that now is the time to enter the market if you are looking for other business.-Matt

Anti-piracy consultants in search of Asian clients
By Keith Wallis
Jul 17, 2011
One of the largest companies providing armed guards for shipowners is to open an office in Hong Kong next month to help develop closer business links with Asian shipowners.
Commenting on the move, Paul Gibbins, director of communications for Protection Vessels International, said: “We are looking for further opportunities in that part of the world.”
Shipping industry insiders said on Friday that the company’s executives would visit Hong Kong this week to meet shipowners before opening an office in the city early next month.
Gibbins said most of the firm’s clients are owners and managers in northern Europe and the company was keen to broaden its customer base. Ian May, who will head the Hong Kong office, would look for opportunities throughout Asia and allow the company to have a closer physical presence in Asia’s shipping community.

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Tags: asia, Hong Kong, Letter Of Marque, letter of marque and reprisal, Maritime Security, piracy, PVI

Al Qaeda: Closer Ties Between Somali And Yemeni Jihadists Threatens Oil Through Gulf Of Aden

Jul 18

Posted by Matt in Al Qaeda, Letter Of Marque, Maritime Security, Somalia, Yemen | No Comments

Well this was a no brainer, but at least folks are talking about it now. So if Yemeni and Somali jihadists are working together, and Al Shabab is taking a 20 percent cut in piracy ransoms, then I wonder what the Yemeni cuts are? I mean that is a lot of shoreline now that a pirate could call home, if they were backed by the jihadists. If they did not have the support of the jihadists, then I would imagine they would come up against some problems.

The other way to look at this deal is the drug trade in Latin America. If you are a drug dealer in Central or South America, do you think you can set up your own shop and not get hassled by any of the large cartels? Of course not. If you did not cut them in, they would kill you. Or they would kill your family, and then tell you to sell more drugs for them! lol

So if Al Qaeda moves to control this corridor called the Gulf of Aden, then why wouldn’t they want to control these pirates? They could make money off of operations and they would disrupt western and middle eastern interest (oil flow, commerce). Jihadist privateering is a logical conclusion.

Now on to solutions, besides just putting armed guards on boats or squaring away those countries on land. I personally like the Q-ship idea. It is the ultimate zheng and qi strategy, and it would be one that pirates would have a very difficult time countering. The basic scheme is that you use a tanker or whatever boat as bait, and make it look like an unarmed vessel. You could even make it look like it is in distress. Then if it attracts a pirate crew and they go into attack mode and show their guns, an anti-piracy force outflanks that pirate crew and takes them down. You would have a force on the ship open up with the big guns, and a force on water that could attack. Whatever a team wants to use to get the job done. The cool thing is that there is no terrain for a pirate to hide behind, and you actually want the pirates to attack.

This idea though, would need a license by whatever country the vessel is flagged under, and there must be rules identified for killing and capturing pirates. There must be incentive as well, because if you want everyone to get involved with destroying piracy, you need to make it a venture or offense industry that ships would want to get involved with. Ideally, you would also want to capture the pirates and collect information from those detainees so networks can be studied and dismantled. So there must be a mechanism that supports the legal capture of pirates, if possible. Especially if an anti-piracy team wounds some pirates and those poor fools are in a sinking vessel. Do we let them die, or do we have a responsibility to capture them and care for them until those individuals are delivered to a detention center.

I believe all of these details could be hashed out in a Letter of Marque, much like they were in the past. As it stands now, we have armed security teams on boats that are great at repelling the assault, but they have no authorization from anyone to capture/detain or even care for wounded pirates? What sense does it make to have shoot out’s with these guys, but have no means of legally detaining them and taking that pirate crew out of the system?

Now of course this tactic would have multiple legal issues to overcome before it would ever be considered. But honestly, something has to be done because the problem is only getting bigger and it is morphing into an animal that is certainly a threat to the global economies and innocent people. I also fear the day that pirates decide to capture a vessel and outright hand it over to Al Qaeda. Something like ramming a natural gas tanker into a heavily populated port or sinking the thing in gut of the Straits of Hormuz is a frightening thought. Believe me, if you can think it up, the other side has probably thought of it too.-Matt

pirate attacks.jpg.scaled500Al Qaeda: Closer Ties Between Somali And Yemeni Jihadists Threatens Oil Through Gulf Of Aden

Closer ties between Somali and Yemeni jihadists threatens oil through Aden Gulf
Monday, 18 July 2011
By JAMES M. DORSEY
Affiliates of Al Qaeda operating on opposite shores of key oil-export routes through the Gulf of Aden have forged closer ties in what could emerge as a substantial threat by a group that has been dealt severe body blows by the Arab revolt sweeping the Middle East and North Africa and the killing in May of Osama Bin Laden by US Navy Seals. ?The closer ties between Yemen-based Al Qaeda in the Arabian Peninsula (AQAP) and Al Shabaab in war-shattered Somalia is sparking concern among intelligence and counter-terrorism officials who suggest that AQAP may be the driving force behind closer cooperation between the two groups.

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Tags: Al Qaeda, jihadist privateers, Letter Of Marque, Maritime Security, piracy, pirates, Somalia, Yemen