Feral Jundi

Wednesday, July 27, 2011

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

Filed under: Italy,Letter Of Marque,Maritime Security,Norway — Tags: , , , , , , , — Matt @ 2:04 PM

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The Declaration of Paris (DoP) is old and outdated, and as we put more private armed guards on boats and states continue to pass laws allowing for such things, then why hold to the DoP?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.
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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.

Monday, July 25, 2011

History: The Privateers Of The Texas Revolution

Filed under: History,Letter Of Marque,Texas — Tags: , , , , , — Matt @ 1:20 PM

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 

 

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

Filed under: Legal News,Letter Of Marque,Publications — Tags: , , , , — Matt @ 12:22 PM

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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Monday, July 18, 2011

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

Filed under: Hong Kong,Letter Of Marque,Maritime Security — Tags: , , , , , , — Matt @ 9:53 PM

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

Filed under: Al Qaeda,Letter Of Marque,Maritime Security,Somalia,Yemen — Tags: , , , , , , , — Matt @ 5:24 PM

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

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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