State or Private Protection?

While piracy continues to be a problem for the commercial shipping industry, the debate on the legality of the use of private armed security guards continues in the Netherlands where Dutch law does not allow the use of armed PSCs

State or Private Protection against Maritime Piracy?

As the threat of piracy continues to be a problem for the commercial shipping industry, the debate on the legality of the use of private armed security guards provided by private security companies (PSCs) that provide the necessary protection during the passage of these ships through the High Risk Area (HRA) near the coast of Somalia keeps coming back to the political arena in the Netherlands. Dutch law does not allow the use of armed PSCs.

The Dutch government is of the opinion that the monopoly on the use of force belongs with the government. Instead, shipping companies can apply for protection provided by Vessel Protection Detachments (VPDs) by the Ministry of Defence. However, not all ships apply for this form of protection because the costs are too high or the procedure takes too long, or because they do not meet the required criteria. Meanwhile, the shipping industry is in fierce
competition with industry in other European countries. Developments in legislation in these countries are moving towards a legalisation of the use of armed PSCs if certain criteria, for instance, with regard to vetting procedures, are met. In this report, the regulation of and legislation on the use of armed PSCs in the United Kingdom, Norway and Denmark are elaborated upon.

The reflagging of vessels is one of the options available to Dutch shipping companies in order to retain a level playing field in their competition with foreign firms. However, the number of ships that have been reflagged to a foreign country for this particular reason seems very small. Another option is to illegally hire armed PSC. Dutch shipping companies that choose this approach most likely are unable to hire certified PSCs with a long track record and a good reputation, since these companies often refuse to provide armed protection on board of ships sailing under the flag of a state that prohibits the use of armed PSCs. As a consequence, the shipping companies that nevertheless want to hire an armed PSC are left with those that do not meet the same high standards needed to pass the recognized vetting procedures; a practice that is growing.

There is as yet no internationally recognised standard to regulate the use of armed PSCs on ships. Public international law does, however, set a minimum norm, through the absolute prohibition of the use of force except in the case of self-defence. In addition, the obligation on states to respect human rights such as the right to life, and the obligation to protect rights from interference by others implies that states need to have a legislative and administrative framework in place to regulate the use of armed PSCs if this is legal according to their legislation.

Despite the lack of an internationally standardized legal framework, there are multiple ongoing developments in soft law regulation. These developments in soft law regulation as well as private sector regulations on the use of armed PSCs can provide a patchwork system of control for the chain of quality checks applicable to the security industry as such, the vetting procedures for specific deployment for a specific passage, the issuing of weapon permits, and the oversight of the actual use as such.

This patchwork system might not offer a clear overview on the control exerted on the use of armed private security companies, but can at times result in multiple checks of companies because of an overlap in control systems and vetting procedures, thus in the end resulting in a more zealous system than one uniform system of control would offer.

The analysis of these soft law and private sector regulations provides a set of key aspects of regulation that should be addressed in case a government decides to legalise the use of armed PSCs. The seven key aspects are: weapons permits and permits for armed guards, the scope of application of the permit (geographically, and the type of vessel), a certification or vetting procedure, the threshold for the use of force, the role of the master, third party insurance and oversight and control in relation to responsibility and accountability.

After summarizing the pros and cons in the debate on the use of VPDs versus the use of PSCs, this report concludes that continuing the current Dutch policy without any adjustments is not desirable. In order to move ahead, policy adjustments should be made. The following are the three main options:

1. The use of PSCs remains illegal, but the requirements for VPD deployment should then be more flexible, the delivery time should be shorter, and the costs should be further reduced.
2. The practice of VPD deployment remains the backbone of Dutch policy, but in addition the use of PSCs (either insourced as a government task, or privately contracted) is admitted under strict criteria and oversight mechanisms.
3. The policy of VPD deployment is no longer practised. The use of PSCs (either insourced as a government task, or privately contracted) is made possible under strict criteria and oversight mechanisms.

Key findings

The majority of Dutch ships do not make use of the protection of VPDs. In fact only
8-10 % of the ships passing through the High Risk Areas of Somalia are both eligible
and apply for VPD protection. More than 65% of the total number of ships do not
even apply for VPD protection.

The main reasons for not applying for VPD protection include the high costs and the
lack of flexibility of deployment and the long application procedures, which affect
competitiveness.

Security companies that meet the highest quality standards are signatories to the
international guidelines, such as the ICoC, and are certified or accredited according to
government or industry-based systems such as the SAMI which checks on compliance
with international guidelines. This includes aspects such as having a good track record
and the capacity to make an adequate security assessment before deployment and
not allowing to protection to be provided through the deployment of a team of security
guards on board ships sailing under flags of states that do not allow the use of armed
PSCs. As a consequence of this policy to protect the good reputation of the PSCs,
shipping companies that decide to illegally hire a PSC can only turn to uncertified
companies, which often do not meet the same high standards.

Data from recent years show that approximately 40-50 ships of the total Dutch fleet reflag
each year. Since some ships reflag to the register of a state that also prohibits the use of
armed PSCs, it is clear that not all reflagging is done out of frustration with the current
Dutch prohibition on the use armed PSCs. It is unknown how many go through the
reflagging procedure for exactly the reason of being able to legally hire an armed PSC.

More and more European countries are moving towards the legalisation of the use of
armed PSCs. Currently, in addition to the Netherlands, the only important European
maritime countries that prohibit the use of armed PSCs are France and Germany.
However, these countries are in the process of legalising the use of armed PSCs. This
leaves the Netherlands as one of the only countries in Europe to adhere to a strict
interpretation of the state’s need to keep a monopoly on force.

There is not yet a uniform set of rules regulating the deployment and oversight over the use
of armed PSCs by shipping companies. Public international law does however formulate
the minimum norms of human rights and state responsibility applicable to the situation.

The kaleidoscope of soft law regulations, complemented with the codes of conduct
developed in the private sector, provide for a patchwork of quality and control systems,
that on occasion result in a more thorough system of checks than a uniform system
would offer.

There are at least seven key aspects of regulation that need to be addressed in case
a state moves towards legalising the use of armed PSCs. These key aspects are:
weapons permits and permits for armed guards, the scope of application of the permit
(geographically, and the type of vessel), a certification or vetting procedure, the threshold
for the use of force, the role of the master, third party insurance and oversight and control
in relation to responsibility and accountability.

When assessing the pros and cons of the use of VPDs versus the use of PSCs, it becomes
clear that continuing the current Dutch policy of VPD deployment and the prohibition on
the use of armed PSCs is not desirable.

In order to move ahead, three possible scenarios are relevant: (1) The use of PSCs
remains illegal, but the requirements for VPD deployment should then be more flexible,
the delivery time should be shorter, and the costs should be further reduced; (2) The
practice of VPD deployment remains the backbone of Dutch policy, but in addition the
use of PSCs (either insourced as a government task, or privately contracted) is admitted
under strict criteria and oversight mechanisms; (3) The policy of VPD deployment is no
longer practised. The use of PSCs (either insourced as a government task, or privately
contracted) is made possible under strict criteria and oversight mechanisms.

Access full report: State or Private Protection against Maritime Piracy?