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Maritime Security: Softlaw Governance of Private Maritime Security Companies (PMSC)
The widespread use of Private Contracted Armed Security Personnel (PCASP) is not new to the international community, and the usage of private contractors have been increasing over the past years.[1] This is also the case in the Maritime Security field with piracy as one of the pre-dominant drivers and although piracy was a relatively neglected issue in the twentieth century, it has especially in the last decade, gained renewed attention as a serious threat to global shipping.[2]

Although some work in the UN has been made[3], no single overall international law governing the area currently exist. This has in turn spurred a plethora of softlaw governance initiatives from both private organizations as well as more established international entities like the International Maritime Organization under the UN. The objective of this article is to describe how the softlaw governance landscape looks like for Private Maritime Security Companies (PMSCs) in the maritime sector.

Background
Maritime crime and piracy in particular has been an age old problem for seaman and maritime states for centuries.[4] A key pivotpoint for modern piracy was 2008 in particular. In this year alone, 293 total attacks against ships occurred: 49 ships were hijacked, 889 crew members were taken as hostages, 11 were shot and 21 went missing.[5] All of a sudden piracy gained the attention of the international community and the media. Solutions to combat the insecurities in the maritime sector have been many. Solutions with nation state coalitions intervening with use of naval capacities, precautionary efforts on land and coast guard built-up have been some of them. (See: Ocean Shield) Another solution to mitigate the threat of maritime crime and piracy, and ensure the stability of the trade system, has been the shipping industry’s own increased usage of privately armed security personnel on their vessels. By transferring the security responsibility to the private sector, primarily with ship owner/operators utilizing private maritime security contractors to guard and protect ships and crew, new governance challenges was created. This solution format, and the challenges it has brought with it, has been one of the primary drivers for the certification and accreditation standards that are currently in place, and the efforts to govern and align the usage of armed private security personnel on merchant ships in an international context.

Softlaw Contributors
In the following sections various instruments created by key international organizations with the objective to provide guidance and mechanisms to standardize the use of Private Maritime Security Companies (PMSCs) and that can be categorized as softlaw will be described.

This will among other entail descriptions of mechanism created by the UN and one of its agencies, the International Maritime Organization (IMO), as well as other contributors like ISO (International Standardization Organization). One common feature for all the below mentioned instruments is that they are not legally binding and thus can be described as soft law in contrast to the binding traditional law.

The 100 Series rules
In 2013, different security and maritime groups created the 100 Series Rules as an independent set of maritime rules for the use of force (RUF).[6] In simple terms the rules provide a guideline with four incremental steps for responding to an eventual attack on the open water.

Who drafted it?

The group of creators were organizations such as BIMCO (The Baltic And International Maritime Council), the International Chamber of Shipping, the Republic of the Marshall Islands and Lloyd’s Register, and the UN Interregional Crime and Justice Research Institute, among others.[7]

What is it?

The 100 Series rules complement current international standards, industry RUF guidance on creation of rules for the use of force, and it’s content are compliant with both international and national law.[8]

The purpose of the 100 series rules is twofold. On the one hand it aims to provide PMSC, crew and ship master with guidance on how to respond to criminal maritime threats, both perceived or actual. The rules insure that response using force is aligned with the right of self-defense but also outlign in detail the scope, purpose, and basic principles and key definitions for the use of the rules.[9] On the other hand it aims to reduce risk for the Ship Master, the crew, the security provider,  the ship owner, charterer, insurer etc.

Overall the 100 Series Rules are a detailed framework the set an example of best practice for the use of the force in the maritime environment.

The International Code of Conduct for Private Security Service Providers
The International Code of Conduct for Private Security Service Providers (The ICoC) was released in November 2010.[10] The ICoC is a compilation of standards or principles that encourages companies providing security services to follow rules of humanitarian law and respect human rights. Despite not being specifically targeted at the maritime domain it is still highly relevant in this context which is underlined by the fact that many of the signatory companies, are providing maritime security services.[11]

Who drafted it?

In 2009 a multi-stakeholder initiative dubbed “The International Code of Conduct”, was launched. The driving force behind it was the Government of Switzerland that in consultation with the Governments of Australia, the United States and United Kingdom, as well as several private security companies and other relevant experts and stakeholders, drafted the code.[12]

What is it?

The Code aims to clarify and synthesize various international standards for private security companies to improve oversight and accountability when operating in complex environments. By September 2013, 708 companies had formally committed to operate in accordance with the Code of Conduct.[13]

Although primarily focusing on private security companies operating on land, The Code is also applicable to the maritime domain. More specifically, maritime security services are particularly mentioned in article 7 of the ICoC and many of its signatories are engaged in maritime security.[14] Signatory security companies of the ICoC, commit to upholding the rule of law, protecting the interests of, and respecting the human rights of, all persons.

The ICoC also has a certification and oversight body (The ICoCA) that through partnerships with other accreditation standards like ISO 28007-1, ISO 18788 and PSC.1 facillitate a pathway to official ICoCA certification for security companies.[15] Overall the ICoC basically tries to encourage voluntary compliance from security companies. It applies to many different types of security firms. Be it from risk management, to the protection civilians in areas of conflict, to training forces.[16]

ISO 28007-1
Due to the sharp rise in usages of privately contracted security in the maritime sector over the past decade the ISO 28007 standard was released in 2012 to build industry confidence and ensure the safety and reliability concerning the utilization of private maritime security providers.

The original ISO document from 2012 is called “Publicly available specification 28007”[17] (Now updated to ISO 28007-1).[18]

Who drafted it?

The International Organization for Standardization (ISO) was the drafting body of the standard.

The ISO is the world's largest developer of voluntary International Standards. They are an non-governmental, independent membership organization with 164 member countries constituting the national member bodies across the globe.[19] The ISO was tasked with the development of it, at the request of the Maritime Safety Committee under the International Maritime Organization (IMO). The work was supported by intelligence and law enforcement agencies such as Interpol, the European Commission and major international corporations.[20] Among other the highly regarded maritime industry body The Security Association for the Maritime Industry (SAMI) was closely involved in the ISO development. The SAMI organization entered voluntary liquidation in 2016 as they had reached their objective.[21]

What is it?

The ISO 28007-1 standard revolves around security aspects such as planning, training, resources, communication, documentation and awareness. It is  in general aligned with the direction set out in the IMO guidance (See section on IMO below).[22] Overall it outlines practical requirements for areas such as investigation and incident reporting, health and safety, scene and casualty management, customer complaints and also includes recommendations on how to improve performance through tools like monitoring, audits, and continuous improvement.[23]

ISO 28007-1 is a detailed comprehensive international standard that PMSCs can be certified against by Certification Bodies accredited by ISO. A Certification Body can only be appointed to carry out ISO 28007-1 inspections, once it acquires national accreditation through the ISO.[24] In general the ISO standard is not expected to circumvent existing national accreditation requirements, and can work in parallel and provide the shipping industry with a more unbiased framework to conduct it’s due diligence instead of solely relying on internal processes.

PSC.1 & PSC.4
Who drafted it?

The American Security Industry Society (ASIS), is an widely recognized international association of security professionals with more than 34.000 members worldwide and was founded in 1955.[25] ASIS has developed their PSC.1 and PSC.4 requirements and guideline as part of their Manag​ement System for Quality of Private Security Company Operations.

What is it?

The PSC.1 is a security standard based on the Montreux Document and the ICoC for private security companies operating on land overseas.[26] In 2013, ASIS released the PSC.4, a additional guideline for the implementation of the PSC.1 requirements in the maritime domain. The PSC.1 & 4 are also aligned and in compliant with the ISO 28000:2007 standard.[27] The objective of PSC.4 is to provide quality assurance for companies operation in all security related activities and functions in the maritime environment while demonstrating respect for human rights and adhering to law.

GUARDCON
In March 2012 the GAURDCON contract format was released in an industry effort to support and assist operators and owners of merchant vessels to inter into transparent contractual partnerships with private maritime security companies.[28] This action was primarily driven by

Who drafted it?

The GUARDCON standard contract was created by The Baltic and International Maritime Council (BIMCO). BIMCO is the largest international shipping association, with 1.900 members in around 120 countries.[29] The initial work on the GUARDCON format began in 2011, when BIMCO identified that changing national laws regarding to the use of PMSCs and the presence of firearms on-board of merchant ships constituted a significant problem for shipping masters.

What is it?

The GUARDCON contract, is a standard contractual format for shipping industry, ship owner and ship operators providing them with a comprehensive, standard, and clearly worded contract for entering into agreements private maritime security services providers.[30] The contract provides shipping industry and security providers with a framework to facilitate better understanding of the two parties respective obligations and rights, it sets out basic requirements of on-board guards especially in regard to Insurance, liability and firearms licensing.[31] Overall the GUARDCON contract objective is to be a pragmatic agreement which can be used for both single transits or as a wider framework agreement covering several transits.[32] The contract does not impose any enforceable provisions. It supports by outlining standards, and by taking “all reasonable skill and care” as the benchmark when facilitating the agreed security services.[33]

IMO Circulars
Who drafted it?

The International Maritime Organization (IMO) is a specialized agency of the United Nations and is the standard-setting global authority for the security, safety and environmental aspects of international shipping.[34] The IMO has 174 member States and three associated members.[35] The IMO’s main responsibility is to create a regulatory framework for the shipping industry. Despite this, the IMO clearly states that currently no agreed upon minimum standards exist for the use of Privately Contracted Armed Security Personnel (PCASP).[36] With this in mind and in response to the steadily increasing number of private armed security guards operating in the maritime sector, the IMO started to publish various Circulars in 2011 to provide guidance for both states as well as shipowners and other entities. The end goal of its interim guidance was to harmonize domestic policies for PMSCs across nations.

In the below four Circulars, key elements in moving towards a regulation of private maritime security companies are described.

What is it?

IMO Circular 1405
IMO Circular 1405 was issued for Shipmasters, Ship Operators, and Ship owners [37], and deal with employment and conduct of private security guards (Circulars 1406 and 1443 also touch upon this). Circular 1405 contains rules regarding the use of force and encourages PCASP only to use force in self-defense and when strictly necessary and reasonable in response to a pirate attack.[38] Ship owners are also encouraged by the IMO circular to employ risk assessment and proper due diligence procedures before hiring private armed security guards.[39] The circular also list guiding criteria for vetting and selecting security personnel and advises ship owners to control that the hired guards are trained adequately.[40]

IMO Circular 1406
Recommendations for flag States are at the core of IMO Circular[41] In it, the IMO encourages States to adopt a policy in regard to whether or not utilization of private armed guards can be authorized, and if so, under what conditions.[42] Furthermore flag States are requested to identify minimum requirements for PCASP as well as a process for authorizing their use.[43] Finally, Circular 1406 proposes the adoption of record-keeping and reporting obligations.[44]

IMO Circular 1408
Circular 1408 from IMO issues recommendations for coastal States and ports[45]. It consist of recommendations concerning elements related to the embarkation and disembarkation and carriage of security equipment, private security personnel and firearms.[46] IMO Member states, and in particular, coastal States bordering the Gulf of Aden, Indian Ocean, Red Sea and Arabian Sea, are advised to facilitate the movement of PCASP and of their firearms and security equipment by creating policies and procedures that allows for it. One important concern mentioned in IMO circular 1408 is that states should avoid establishing policies and procedures which may hinder maritime trade or interfere with the navigation of ships. Finally states should ensure that all efforts are aligned with international law.[47]

IMO Circular 1443
IMO Circular 1443 recognizes that flag States holds the legal power to allow PCASPs to operate aboard ships registered under it’s flag, as stated in article 92 UN-CLOS.[48] It goes on to directly targeting the role of PMSCs.[49] The Circular in article 3.1 encourages that PMSCs should establish procedures to provide maritime security services to ship operators and owners and to ensure legal compliance with requirements. Circular 1443 also provides guidance for certification, management, use of force and other considerations.[50] Shipowner/operators are encouraged to ensure that documentation, authorization, risk assessments, reporting procedures and compliance mechanism are in place when the use of PMSCs are proposed.[51]