Vessel Protection - Floating Armouries and the Law SERVICES

Delving into the complex operations of Floating Armouries, this mini-series explores the legal framework that governs each aspect. Here, we highlight the vital SERVICES provided by these vessels.

• MSC.1/Circ.1405/Rev.2 Revised Interim Guidance to Shipowners, Ship Operators and Ship Masters on the use of Privately Contracted Armed Security Personnel on board Ships in the High Risk Area;  
• MSC.1/Circ.1406/Rev. 3 Revised Interim Recommendations for Flag States Regarding the use of Privately Contracted Armed Security Personnel on board Ships in the High Risk Area;  
• MSC.1/Circ.1408 Interim Recommendations for Port and Coastal States regarding the use of PCASP on Board Ships in the High Risk Area;  
• MSC.1/Circ.1443 Interim Guidance to Private Maritime Security Companies Providing Privately Contracted Armed Security Personnel on board Ships in the High Risk Area; 
• MSC.1/Circ.1444 Interim Guidance for Flag States on Measures to Prevent and Mitigate Somalia-Based Piracy  

While these documents provide some of the best international guidance on PMSCs, they do not mention FAs and they are predicated on an IMO position that neither condemns nor endorses the use of PCASP and are thus only guidelines. From a maritime industry standpoint, BIMCO’s GUARDCON Standard Contract for the Employment of Security Guards on Vessels helped create some consistency in PMSC requirements, but does not address FAs at all. 

Finally, two standards have been produced for private maritime security: ISO 28007:2015 Guidelines for Private Maritime Security Companies (PMSC) Providing Privately Contracted Armed Security Personnel (PCASP) On Board Ships, and ANSI/ASIS PSC.4. While neither addresses FAs directly, PSC.4 could be applicable as discussed above. To date, though, no company has used it and no entity has required it.  

All that said, there is no universal requirement that PMSCs abide by any of these instruments, vet their clients, or ensure that their services are not used to facilitate criminal activity, constitute threats to peace and security, or support the violation of human rights.  

Key Legal Considerations for Floating Armouries (FAs) in Maritime Security Operations

Floating Armouries (FAs) engage in a wide range of activities, making it challenging to comprehensively address them all. However, it is crucial to examine some key legal aspects concerning the various services offered by FAs.

Anti-Money Laundering and Combating the Financing of Terrorism (AML-CFT)

Due to the significant flow of money through FAs, laws related to anti-money laundering and combating the financing of terrorism (AML-CFT) play a vital role in setting constraints. The companies that own or operate FAs, based on their registration, bear the responsibility of ensuring that they are not involved in money laundering or financing illicit or terrorist activities.

The Financial Action Task Force (FATF) has issued forty recommendations for states to incorporate international financial provisions, norms, and customs into their national laws.

ANSI/ASIS PSC.4 Guidance for Private Security Companies Operating at Sea

The International Code of Conduct for Private Security Service Providers (2010) aimed to uphold principles related to international law and human rights in the operations of private security companies. ANSI/ASIS PSC.1 (2012) was developed as a standard to make this Code of Conduct measurable and auditable for private security companies. Another standard, ANSI/ASIS PSC.4 (2013) Guidance for Private Security Companies Operating at Sea, serves as an implementation guide to PSC.1. While not specifically designed for FAs, it contains extensive provisions related to arms control that are applicable to FA operations.

Suppression of Unlawful Acts at Sea

The 1988 Suppression of Unlawful Acts at Sea (SUA) Convention and its 2005 Protocols are relevant to FAs and their operations. SUA article 3 could apply to FAs in various ways, such as being victims of unlawful acts, committing unlawful acts, or facilitating clients in committing unlawful acts.

Accomplice Liability  

If a Floating Armoury (FA) knowingly provides weapons to aid in criminal activities, it could be held accountable for facilitating illicit actions. National legal systems on accomplice liability, negligence, conspiracy, and joint criminal enterprise could be enforced against an FA if weapons sourced from the FA are utilized in criminal acts.

United Nations Convention Against Transnational Organized Crime

While the scope of the 2000 United Nations Convention Against Transnational Organized Crime (Palermo Convention) focuses on activities committed in States (art. 3), its jurisdictional provisions in article 15 require its state parties to “adopt such measures as may be necessary to establish its jurisdiction over the offences established in accordance with articles 5, 6, 8 and 23 of this Convention when:

(a) The offence is committed in the territory of that State Party;
or
(b) The offence is committed on board a vessel that is flying the flag of that State Party or an aircraft that is registered under the laws of that State Party at the time that the offence is committed.”  

While the crimes covered by the Palermo Convention apply to various portions of this analysis, the facilitation of transnational criminal activity by FAs is a particular concern. Beyond the arms trafficking matters of the Firearms Protocol addressed above, the Palermo Convention focuses in particular on the commission of “serious crimes” by organized criminal groups, the laundering of the proceeds of crime, corruption and obstruction of justice. Article 2 of the Convention defines “serious crime” as “conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty.”

This Convention covers a broad spectrum of criminal activities, making it a potent tool in addressing any wrongdoing facilitated by a Floating Armoury, depending on the relevant flag, port, or coastal state laws.