Lending an 'invisible hand' to the navy: armed guards as a free market assistance to defeating piracy.

• Author: Pizor, Brittany E.
• Position: Symposium: Presidential Power and Foreign Affairs

Abstract

Piracy may be viewed to have a romantic past but modern piracy is a serious problem facing the world today. As it becomes increasingly prevalent, piracy barras the world economy with increased costs and dangers to the shipping industry. To assist navies in preventing and deterring piracy, the free market should be allowed to provide private security measures, such as armed guards, to assist in anti-piracy efforts. However, shipping companies cannot invoke the services of private security companies ' armed guards until countries dismantle legal barriers. Right now, countries have anti-gun laws that restrict flagships from having guns on board and coastal countries have anti-gun policies restricting ships passing through their territorial waters from enlisting the help of armed guards. Additionally, armed guards cannot be protected by a self-defense claim it they kill a pirate attempting to attack their ship. To best dismantle these laws, an organization, such as the International Maritime Organization (IMO), should create cohesive, unified policies outlining the requirements and restrictions for ships carrying armed guards. With the support of the IMO, these new regulations can make it possible for merchant ships to protect themselves from pirates and hijackings. This will in turn bolster the efforts of navies and alleviate pressure on the world economy.

CONTENTS I. INTRODUCTION II. PIRACY REEMERGES IN A GLOBAL SOCIETY III. SOLE RELIANCE ON NAVIES TO PREVENT PIRACY IS INADEQUATE IV. FREE MARKET SOLUTIONS, SUCH AS ARMED GUARDS TO PROTECT SHIPS, SHOULD BE ALLOWED TO ASSIST NAVIES BY SERVING AS DETERRENTS AGAINST PIRACY A. Legal Barriers Make It Difficult for Shipping Companies to Hire Armed Guards to Protect Ships 1. Gun control laws make it difficult for merchant ships to allow armed guards to accompany ships 2. In order for armed guards to protect against piratical acts, self-defense must be a viable defense B. A Collective International Response Must Support the Free Market Assistance of Private Security Companies and Armed Guards 1. The United Nations must affirmatively support a ship's choice to utilize the security companies and armed guards to protect against pirates 2. The individual state navies and the coalition navies must utilize assistance from security companies C. Criticism Falls Short 1. Allowing armed guards on ships will not lead to more shooting 2. Ports will not be more dangerous if armed guards carrying guns are allowed into ports 3. Armed guards are not mercenaries V. CONCLUSION APPENDIX A: REGULATIONS REGARDING ARMED SECURITY GUARDS' FLAGSHIP COUNTRY APPENDIX B: REGULATIONS REGARDING THE ABILITY OF ARMED SECURITY GUARDS TO ENTER TERRITORIAL WATERS AND PORTS I. INTRODUCTION

On the night of December 5th, 2001, pirates stormed a 130-foot expedition vessel off the coast of Brazil. (1) Pirates ran through the vessel shouting and demanding money. (2) Soon, gunfire broke out, and Sir Peter Blake was shot twice in the back. The pirates stole cameras and Omega watches (3) and left one of the world's greatest yachtsmen dead at age fifty three. (4) Blake's friend, Australian yachtsman Chris Packer, learned a hard lesson that night. Thus, three years later, when Chris embarked on his around-the-world tour, be made sure to carry firearms to repel pirates. (5) Twice pirates boarded his ship and twice Packer used his firearms for protection. (6) While in port in Bali, Indonesia, government officials boarded Packer's yacht and arrested him for gun running, a capital offense. (7) Packer sat in a Bali jail uncertain if he would face a firing squad. After three long months, the Indonesian government set Packer free. (8)

Today, piracy is becoming more prevalent and dangerous. (9) Modern piracy is more serious than the piracy of the 1800s because instead of focusing on robbery and taking vessels, pirates now take hostages for high ransoms. (10) Pirate attacks doubled in 2008, (11) and again in 2009. (12) In 2010, pirate attacks decreased in number; however, total ransoms increased, making piracy as profitable as ever. (13) The year 2011 closed with 439 pirate attacks and forty-five hijackings worldwide. (14) As of March 2013, forty-four pirate attacks had already been attempted. (15) As shocking as these statistics are, even more shocking is the fact that these incidents often go unreported. (16) Countries do not report pirate attacks for fear of being seen as having a "piracy problem," (17) while ship owners simply pay ransoms to avoid insurance hikes. (18) Moreover, the extreme duress caused by pirate attacks often makes victim accounts unreliable, causing attack reports to be even more undependable. (19)

The current method of defeating piracy through interdiction alone cannot be successful. Navy patrols have limited effectiveness because navies cannot be omnipresent.20 Capturing pirates is difficult; prosecuting and punishing them is even harder. (21) Universal jurisdiction should theoretically make pirate prosecutions easy, but few countries are willing to prosecute pirates. (22) If pirates are found guilty, the country that hosted the trial must find an appropriate punishment. (23) However, the punishment is usually more luxurious than the lifestyle of a pirate, thereby creating a reverse deterrent effect. (24)

This Note focuses on the need for commercial ships to take proactive measures against piracy by hiring armed guards and the benefits and legal obstacles of doing so. Initially, this Note explains the reemergence of piracy in modern society. Next, it examines the importance of navy efforts to address piracy. While these efforts are necessary, this Note demonstrates why navies cannot be the sole defense mechanism against piracy and why armed guards must be utilized. Accordingly, countries must change their domestic gun laws for flagships and ports while enabling armed guards to use self-defense. This Note advocates for a collective diplomatic approach to adopt unified regulations for ships with armed guards to follow. Finally, this Note will explain why critics' fears that tais solution will lead to increased violence by "mercenaries" are unfounded.

2. PIRACY REEMERGES IN A GLOBAL SOCIETY

   After the heyday of piracy in the late seventeenth and early eighteenth centuries, it nearly disappeared. (25) Piracy had previously been encouraged by states as a way to attack enemies, (26) but in the late seventeenth century, naval wars ended and the need for state-sponsored piracy ceased. (27) Countries began treating piracy as a crime (28) and navies began targeting pirates. (29)

   But in the 1980s, the explosion of world trade and shipping, made piracy a profitable business again. (30) This reemergence first occurred off the coast of Southeast Asia, particularly in the Strait of Malacca, one the world's key shipping routes. (31) This narrow body of water, through which 50% of the world's oil passes each year, makes the strait an easy and profitable target for pirates. (32)

   Piracy next resurfaced off the coast of Somalia. (33) The country's weak government, poor economy, and lack of coastal police patrol contributed to a swell in piracy. (34) Currently, three independent governments fracture Somalia: Puntland, Transitional Federal Government (TFG), and Somaliland. (35) These governments have been unsuccessful in their battle against pirates. (36) Puntland not only harbors one of the major pirate organizations, but its leaders have known ties to pirates. (37) The Somali TFG has internationally recognized jurisdiction off its coast but it cannot control the territory. (38) Somaliland most successfully fights against piracy, but it lacks recognition as an independent country by any foreign government. (39)

   Many individuals are attracted to piracy. Pirate recruits are often from professions with transferrable maritime skills, such as fishermen, sailors, and taxi-boat captains. (40) Decreased economic opportunities in poor countries such as Somalia create an added incentive for these individuals to turn to piratical acts. (41) Ninety percent of the world's trade travels on the slow, vulnerable merchant vessels that frequently transit through tight trade routes, (42) allowing piracy to become a successful and viable career choice, especially for those in economic distress. (43)

   Piracy can be highly organized. (44) After September 11, 2001, international authorities focused attention on preventing a similar attack at sea. (45) Al-Qaeda showed its maritime terrorism capabilities with attacks on the USS Gole46 and the French supertanker Limburg. (47) Indonesian pirates also attacked the Dewi Madrim in Match of 2003. (48) Instead of being concerned with robbing the ship, attackers took turns steering the ship down the congested Malacca Strait. (49) The incident seemed like a practice run for a terrorist attack by the Free Aceh Movement, an Indonesian separationist organization. (50)

   Southeast Asia has become the new "hot-spot" for maritime terrorism with three primary terrorist organizations: Abu Sayyaf, Gerakan Aceh Merdeka, and Jemaah Islamiyah. (51) Historical and financial ties link al-Qaeda to Abu Sayyaf. (52) The region's extensive involvement in world trade makes terrorist activity especially dangerous to the global economy. (53) While the motives of piracy may be different for Somali pirates and maritime terrorists, the international community must prevent both groups from committing acts of violence at sea.

3. SOLE RELIANCE ON NAVIES TO PREVENT PIRACY IS INADEQUATE

   Navies around the world actively work to prevent and deter piracy in the 2.5 million square miles of pirate-ridden waters. (54) By 2013, three anti-piracy patrols and approximately thirty navies worked together to thwart pirate attacks. (55) The European Union Naval Force (EU NAVFOR) began operations in December 2008 and operates under the European Common Security and Defense Policy. (56) The EU NAVFOR conducts Operation ATALANTA...