After years of recommending against the use of weapons to defend against piratical attacks, the International Maritime Organization (IMO) has finally approved a Circular with interim guidance to the industry on the use of “privately contracted armed security personnel on board ships in the High Risk Area” of the Indian Ocean, as well as apparently separate interim recommendations to Flag States on the same subject. The press briefing announcing this decision also indicates that a Working Group will meet in September 2011 to develop permanent guidance and recommendations.
At its 89th session, concluded on May 20th, IMO’s Maritime Safety Committee (MSC), which has cognizance over maritime security issues as well, approved issuance of an MSC Circular providing interim guidance to ship owners/operators and shipmasters, as well as interim recommendations for Flag States, on the “complex issue” of the use of private armed security on board ships in the areas of the Indian Ocean with high risk of piracy. The industry guidance notes that Flag States’ laws clearly apply, while port and coastal state laws may also apply. It also stresses that armed guards should not be considered as an alternative to the Best Management Practices (BMP) that have been developed to deal with Somali piracy in the Indian Ocean. Further, a risk assessment should be conducted before employing armed guards and the ship’s master should be involved in the decision-making process. The interim guidance “includes sections on risk assessment, selection criteria, insurance cover, command and control, management and use of weapons and ammunition at all times when on board and rules for the use of force as agreed between the shipowner, the private maritime security company and the Master.”
The interim recommendations to Flag States suggest that Flag States should have in place a policy on whether private armed security will be allowed and under what conditions. In determining their policies, Flag States should consider “possible escalation of violence” resulting from the use of firearms against the pirates. The press release is also careful to note that the recommendations “are not intended to endorse of institutionalize” the use of armed security and that they “do not address all the legal issues that might be associated with” the carriage and use of firearms.
In addition to this groundbreaking Circular, the Maritime Safety Committee also adopted a Resolution urging the maritime industry to better implement the Best Management Practices, as effective self-protection is the key to maritime transportation security in the Indian Ocean. The MSC also agreed on Guidelines to assist in criminal investigations, to be used in conjunction with the existing Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery against Ships. The Guidelines deal with evidence collection, including recovery, packaging, and logging; taking of witness statements; and submission of written reports.
As noted above, the Working Group on Maritime Security and Piracy will meet in September to develop permanent recommendations for Flag, Port, and Coastal States and on the use of private armed security. In addition, the Committee will agree on a Circular promulgating those recommendations and review the interim guidance to the maritime industry for any needed amendments and agree on a revised Circular, if necessary. The MSC will also identify any consequential amendments to the existing Recommendations to Governments, and the existing Guidance to the industry, on preventing and suppressing piracy and armed robbery against ships (Circulars MSC.1/Circ. 1333 and 1334, respectively).
In the meantime, it will be interesting to see how quickly the Circular with interim guidance for industry is made available. The most recent MSC Circular of any kind (which includes various kinds of periodic statistical reports) available to the public on the IMO website is dated October 19, 2010
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