The first academic article that I will blog about in-depth in 2011 was published last month in Contemporary Security Policy. It is "Against the Current? Somali Pirates, Private Security, and American Responsibilization" by Christopher Spearin who is an Associate Professor at the Canadian Forces College and has been researching and writing on the privatization of security for many years.
It will come as no surprise that, given the attacks by Somali pirates, recent years have seen a marked increase in the call for using private security contractors to protect commercial shipping, both defensively, in terms of protecting commercial shipping, and proactively, in terms of training Somali forces to take on Somali pirates on their home ground.
But, especially since so much of the call for using PSCs comes from various U.S. advocates, there are certain implications which have not been well considered, if at all, according to Spearin. His article is an attempt to do just that. He brings up several useful points which I am going to cite here. His bottom line is that just like oil and water, PSCs and maritime commerce may not mix well.
He has three main concerns. First, the U.S. promotion of the PSC-shipper engagement is an attempt to make shippers responsible. Though this call for "responsibilization" reveals inherent state limitations, commercial shippers have not raised it universally because it upsets traditional conceptions regarding order at sea.
Second, when the US promotes use of PSCs it suggests that the U.S. Navy may not work to ensure freedom of navigation in the last resort despite long-standing practice and the expectation of sea users. In turn, this underscores the lack of structure and relations among states, shippers, and PSCs, which could have detrimental consequences regarding the management of violence at sea.
Third, the US call raises challenges for interested states, particularly European states, regarding how best to secure shippers.
Let's consider each of these points in depth.
Because pirates have long been considered the enemy of mankind, piracy has been traditionally considered a 'shared problem' that requires a multistate solution. For example, article 105 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) specifies that on "the high seas, or in any other place outside the jurisdiction of any state, every state may seize a pirate ship or aircraft, or a shipper aircraft taken by piracy and under the control of pirates and arrest the persons and seize the property on board." And UNCLOS article 107 deems counter-piracy an exclusive state task: "a seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect."
But for a variety of reasons states do not always, or even frequently, fulfill their obligation to combat piracy. For example, today many shippers turn the flags of convenience for tax and regulatory reasons; think Panama or Liberia, for example. But states like these lack the capability to protect 'their' vessels.
Thus, one can view the US call for shippers to take responsibility as an alternative to having to deal with its own limitations. At a minimum, such responsibility implies a spreading, if not transference, of costs.
And, yes, the use of a maritime PSC, in some respects, will minimize costs. For example, unlike states, the PSCs are not concerned with bringing pirates to justice; they are only concerned with deterring pirates and protecting their clients. Thus, no costs for prosecution or incarceration of pirates. It is irrelevant to PSCs that the United Nations Security Council resolution 1816 of June 2, 2008 "calls upon all states with relative jurisdiction under international law national legislation, to cooperate... in the investigation and prosecution of persons responsible for acts of piracy and armed robbery off the coast of Somalia."
Ironically, the long-standing concern of PSCs to avoid what they consider the pejorative label of "mercenaries" works against their use at sea. Although the performance of specifically offensive activities is not part of the legal definition of the word, PSCs generally accept the distinction between the offensive and defensive roles. This is in accordance with the accepted division of labor between regular state forces and PSCs on land. The former conduct offensive operations and the latter only do defensive work. Indeed, regular militaries themselves demand this division remain.
As previously noted, UNCLOS article 107 details a state focus; one cannot imply the current responsibilzation call as an authorization for bringing PSCs under government service. In fact, PSCs applying violence in an offensive manner could themselves be accused of piracy because, as defined in Article 101, piracy is "any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew were passengers of a private ship or a private aircraft."
Yet while some shippers do employ PSCs, for others the distinction is irrelevant because they reject the use of PSCs. They do this because of fundamental understandings about who should be doing what on the high seas.
For Peter Hinchcliffe, the International Chamber of Shipping's Marine Director "what is navies are forgetting, and perhaps governments are forgetting as well, is that we are not talking about protection of individual ship in piece of water. What we are talking about is the fundamental obligations of nations to provide safe passage for world trade. So, therefore, is totally unsatisfactory for naval authorities to try and devolve responsibility to innocent merchant ships.
The second main concern is that the specifically American nature for PSC-shipper engagement seemingly delimits the degree to which United States Navy will respond to Somali piracy. On the one hand, U.S. Naval Forces Central Command serves as the backbone for anti-piracy activities in the region. On the other, although the U.S. Navy is not retreated from anti-piracy efforts, the responsibilization attempt suggest that the U.S. Navy will not send additional naval assets despite the growth of Somali piracy.
The responsibilitzation call seemingly alters course from what the U.S. Navy has done in the past regarding freedom of navigation. This challenges the expectation of other sea users. Specifically, with respect the piracy, the responsibilization call contrast with American policies that link countering piracy to maintaining freedom of navigation.
Nor should one assume that even if shippers and PSCs agreed to work together that the results will be positive this is because in the maritime realm there are no definite guidelines about the PSC skill sets are required. PSCs themselves are not in agreement as to whether they require special capabilities and attributes to operate at sea. This runs contrary to the usual claims made by PSCs operating on the ground, i.e., that they have access to a huge pool of highly skilled professionals previously trained in the military who they can hire. Let's be honest; the navies of the world do not have an anti-piracy rating.
Just to give one example of how this plays out, at sea, in contrast to PSCs on the ground, there is only a limited possibility of a backup arriving in a timely manner. The personnel are generally left to their own devices. Because pirates attempts to capture ships often conclude in less than 15 minutes, the advantage usually rests with the pirates. This means that PSC personnel may have to employ violence effectively and responsibly. Not only must PSC employees be resourceful and capable, they also must be familiar with the nature of sea conditions, the specific demands of ship operations and architecture, and the use of special maritime equipment.
The private security companies may not have a sense of the appropriate requirements as they entered a maritime marketplace. Just like the early years of PSCs in Iraq, minimal capital and infrastructure are required to set up firms. The sometimes resulting lack of experience proved to be a concern as "start-ups" quote flooded in to fulfill contracts with varying degrees of effectiveness. What the world does not need is the maritime equivalent of Custer Battles.
Finally, European states, although extremely dependent on maritime trade, have less enthusiasm for PSCs than the United States. Thus far European states have made very strong efforts to counter pirates. For example, Operation Atalanta is a European Union military operation undertaken to help deter, prevent and repress acts of piracy and armed robbery off the coast of Somalia. It relies heavily on the engagement of the U.S. Navy. But if the US Navy will not apply additional assets as the call for PSC engagement implies, this places greater onus on European states to up the ante.
Logistically this would be very difficult. Consider that about 30 ships form the international military presence off Somalia, but as many as 60 ships are required to secure transits through the Gulf of Aden alone. Furthermore 30 ships on station means an additional 60 ships in various stages of preparation or recovery; 60 ships on station would require a further 120 ships. Considering the cost of Navy ships, crews, and supporting infrastructure you can easily see why an increase in ships is not going to happen.
Although this might seem to represent a market opportunity for PSCs the truth is that most European officials do not wish to change the status quo between states and nonstate actors; at least not to the extent the United States has. Although "several European militaries rely upon private military companies for their repair, support, transportation, logistics, and infrastructure maintenance needs, these militaries have not significantly relied upon armed PSCs."
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