Feral Jundi

Monday, July 25, 2011

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

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

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

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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Thursday, July 14, 2011

Maritime Security: Pirate Attacks At Sea Getting Bigger And Bolder, Says IMB Report

I have to say it. Today’s naval strategies to counter piracy is a failure. We also have the moral high ground in this fight, and yet the piracy industry flourishes. Amazing. It also points to the amazing power of a naturally occurring offense industry. Not one country has given these pirates Letters of Marque or licenses to do what they are doing, and it is an industry that has naturally evolved and expanded. Kind of like a naturally occurring virus, versus a lab manufactured virus.

To take that thought a step further, if a government wanted to manufacture an artificial offense industry, then they could probably learn a lot from this naturally occurring virus called modern piracy.  Of course you could also study the history of piracy and privateering, and find consensus from that.

Probably a good starting point would be to study Sir Henry Morgan, a very effective and intelligent privateer that did very well in the Spanish Main. Another privateer I liked was Christopher Newport, just because the guy was an amazing privateer that dominated in the Caribbean. He was also the go to guy for the Virginia Company of London, for transporting colonists to the Virgina Colonies in the new world. Christopher was a stud, and of course there are other famous privateers I am missing. The common theme here is that they were ‘authorized and given license’ to do what they did, and this public/private partnership was mutually beneficial.

Another point to bring up about these older privateers, is that these folks acted more like Marines, than seamen. That they boarded vessels, but they also conducted raids on land.  So the captains of vessels or PMC’s  had to be proficient in naval operations, and land warfare, to maintain their position of power.  Because on these boats, they were extremely democratic and followed codes/rules. If a captain sucked, no one would follow him and they would vote for someone else on the boat to lead them to the prize.  I would compare it to today’s modern fishermen in Alaska, and that if they are not able to find the crab, the crew goes home penniless and investors soon go shopping for another captain that ‘can’ find the crab. Everyone likes a winner in the world of offense industries. So privateer captains all had to know their stuff, if they wanted to keep their job. –Matt

Pirate attacks at sea getting bigger and bolder, says IMB report
Thursday, 14 July 2011
Pirate attacks on the world’s seas totalled 266 in the first six months of 2011, up from 196 incidents in the same period last year, the International Chamber of Commerce (ICC) International Maritime Bureau’s (IMB) Piracy Reporting Centre (PRC) revealed today.
More than 60% of the attacks were by Somali pirates, a majority of which were in the Arabian Sea area said the report, Piracy and Armed Robbery against Ships. As of 30 June, Somali pirates were holding 20 vessels and 420 crew, and demanding ransoms of millions of dollars for their release.
“In the last six months, Somali pirates attacked more vessels than ever before and they’re taking higher risks,” said IMB Director Pottengal Mukundan. . “This June, for the first time, pirates fired on ships in rough seas in the Indian Ocean during the monsoon season. In the past, they would have stayed away in such difficult conditions. Masters should remain vigilant.”

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Monday, July 4, 2011

Letter Of Marque: Privateer Days…..A Canadian Holiday

Filed under: Canada,History,Letter Of Marque — Tags: , , , — Matt @ 4:32 PM

What I wanted to do here is show a little history that folks in the US were probably not aware of. Especially during our celebration of Independence Day. In this town in Canada, they still celebrate the authorization (Letter of Marque) by the British to attack American privateers. To them, American privateers and the Continental Navy were the enemy and this was that town’s solution and savior. The Americans were also pirates in their eyes, and they felt totally justified to use their legalized privateers to attack and defend against such an enemy. (the Continental Navy could take prizes as well)

But it also indicates the effectiveness of privateering back then. This type of warfare did extreme damage on British related commerce, and to anyone that was an ally of the British, and privateering was a means of attacking the enemy’s pocketbook. It also had a great impact on the logistics of the British war machine. This artificially created offense industry, authorized via the Letter of Marque and Reprisal, is an industry that certainly left it’s ‘Marque’. lol

Cool stuff and check it out. –Matt

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