Somali Piracy Conference

Piracy Conference Brochure TitlePiracy Conference devoted to the discussion of maritime piracy issues will take place at the Case Western Reserve University School of Law this Friday, September 6th.  The conference will unite prominent piracy scholars, NGO activists, international organization members and government officials, to discuss topics such as the treatment of juvenile pirates, the necessity to prosecute piracy organizers and financiers, new trends in the global combat against piracy, as well as operations and law enforcement issues related to the apprehension of suspected pirates.  The keynote address will be delivered by Senator Romeo Dallaire of Canada, founder of the prominent Child Soldier Initiative at Dalhousie University.  The conference is open to the public and will also be available via webcast.

The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force – An Update

A guest post by David Hammond. For a background, see also our previous post on the publication of the 100 Series Rules. 

David Hammond is the Head of Maritime Practice at 9 Bedford Row International Chambers London, author of the 100 Series Rules, a former frontline Royal Marines’ Officer and former head maritime lawyer to the United Kingdom’s Chief of Joint Operations for counter-piracy matters. He is an Associate Research Fellow of the Greenwich Maritime Institute and international speaker on maritime Rules for the Use of Force. The comments within this post comprise the personal opinion of the author and do not constitute any measure of formal legal advice whatsoever and howsoever read. Formal legal advice may be obtained on instruction.

Also posted at All About Shipping and the Bridge.

Background

Over the past two years, the 100 Series Rules (“the Rules”) have been conceived, researched, drafted and finally published in soft-copy form as of May 3, 2013 as a first edition. They are a first for the commercial maritime industry and go one step further than simple guidance for the drafting Rules for the Use of Force (RUF) and guidance as to where responsibility lies for producing RUF as an inclusive part of a commercial contract. At the time of writing, the 100 Series Rules have been short-listed in support of one of the five finalists for the Lloyds List Global Awards 2013 Maritime Lawyer of the Year.

At the very least, the Rules provide a lawful core set of principles and RUF for use by emerging companies. At best, they provide a point of reference that can be relied upon as a robust legal interpretation for the lawful use of force by international organisations and State entities, enabling auditing, standardisation and accountability in any chain of events where force is lawfully used at sea in self-defence.

The Rules have been developed for the benefit and use of the entire maritime industry, intended to be referred to without the imposition of State or geographical boundaries, overly restrictive interpretations, interference from commercial entities seeking commercial advantage or State authorities seeking State advantage.  In short, the previous lacuna in provision to the international community of an actual model set of rules has been filled and is now being further developed alongside the registered “Supporting Entities”, as highlighted on the website.

The Law

The law that underpins the Rules is that of individual self-defence; itself a universal concept that can be found to outdate modern legislative interpretations going back to the Bible, Koran and other main religious texts by way of example. It is the individual right of all persons in every region, in every country and that includes indigenous seafarers, merchant sailors, as well as Privately Contracted Armed Security Personnel (PCASP), to be able to lawfully defend themselves against criminal acts of violence.

The Rules themselves are concise in terms of their core principles. They are concise in their outline of graduated defensive response measures that individuals may be required to undertake to protect themselves and those immediately around them. This, of course, includes the use of lethal/deadly force as a last resort, in self-defence.

The drafters of the Rules have researched significant numbers of individual State’s legislation covering the issue of self-defence (presentations containing this research may be found open-source on the website). They have subsequently identified the international objective law test of what is “reasonable and necessary” within the Rules, while accounting for proportionality in the use of any force as against an identified treat. The objective test stands as a higher standard as against which actions may be measured than that necessarily found in some State’s legislation at the individual national subjective level. In some cases, individual State’s legislation may well exceed that laid down in the Rules.

The 100 Series Rules will not, however, provide any form of indemnity or immunity whatsoever against civil or criminal liability when force has been used unlawfully.

International Supporting Entities

The Rules are currently supported in their conception and use by over 40 international entities. These currently include a main flag State, ISO, Lloyds Register, BIMCO, UNICRI, SAMI as well as international maritime associations representing the world’s shipowners and ship managers, international PMSCs, insurance and maritime intelligence providers and leading international law firms specialising in piracy matters. In short, this is an international effort driven by leading commercial entities based upon practical and pragmatic real-time experiences, combined with the general call for clarity of rules, transparency in their use and accountability for the lawful use of force at sea.

IMO and ISO

In support of ISO PAS 28007-2012, the Rules were first submitted to ISO in October 2012. They were accepted a work item and are undergoing a final review at the time of writing.

 In June 2013, the Rules passed through the IMO at Maritime Safety Committee 92 as an INF paper sponsored by the Republic of the Marshall Islands, ISO, BIMCO and the International Chamber of Shipping. They were subsequently noted by the IMO and unchallenged for the detail of their contents following the session.

American Standards

There appears to be a dual-track approach to this issue of standardisation as between the US-based ASIS organisation and the European International Organisation for Standardisation (ISO). This article will not debate the pros and cons of the two initiatives, noting only that up to the point of the release of the 100 Series Rules, there was no other reference to an international model standard freely made available to the maritime industry.  Further, without competition, in what is an otherwise commercially focused arena, lone imposed standards may fall foul of anti-competition rules and legislations.

The maritime environment is of course is an entirely different environment to that of both established and emerging land-based operations, often undertaken with the backing of a UN mandate following a period of war-fighting as part of an international, non-international or internal armed conflict, often involving NATO forces and where the Law of Armed Conflict may have been invoked.  In stark comparison and as most readers will know, piracy, armed robbery and hijacking are criminal acts that require a constabulary response and hence the restriction in the maritime environment, (outside of armed conflict) for the need for recognised RUF, as opposed to offensive Rules of Engagement (ROE).

In tandem with the text of the American National Standard PSC 1-2012 ‘Management System for Quality of Private Security Company Operations – Requirements with Guidance’ and reassuringly so, the 100 Series Rules includes the same consideration and understanding for the need of the requirement for human rights at a State, commercial and individual level. The essence and intent of the American and European Human Rights Conventions, as well as the UN Universal Declaration of Human Rights and supporting texts have been rightly integrated as part of the comprehensive approach to the issue of maritime RUF.

Furthermore, 9 Bedford Row International (9BRi) Chambers’ Maritime Practice, will shortly be releasing the first international model guideline document “Model Guiding Principles and Best Practice for Human Rights Considerations in the Maritime Industry” ©Copyright 2013 9BRi. It will be available through http://www.100seriesrules.com/Human_Rights. This will be for the reference and use by the maritime (including the maritime security) industry and interested third parties. It will be based upon current international conventions and decided international case law, backed by a comprehensive legal advice.

Summary

Currently, there stands a lawful international model for maritime RUF that works, is internationally supported, widely socialised and rapidly growing so.  As a model set of actual rules, the 100 Series addresses the commercial requirements of the international maritime industry in greater depth than any other currently available RUF guidance and there are no cogent reasons why the established 100 Series cannot complement emerging land standards.

As seen with the development of Best Management Practice (BMP), the 100 Series Rules will remain at the disposal and for the use of the international maritime industry. It will be an iterative document that will develop over time, but most importantly, it should not be undermined by entities seeking commercial advantage at the expense of supporting and protecting seafarers in undertaking often difficult and dangerous roles at sea.

When the Use of Force is Lawfull: The 100 Series Rules are Released

After a lengthy incubation process, the 100 Series Rules have finally been released. Courtesy of the author, David Hammond, we have obtained a copy here.

The Logo of the 100 Series Rules

The Logo of the 100 Series Rules for the Use of Force

The 100 Series Rules are an international model standard and example benchmark of best practice for the use of force in the maritime security and anti-piracy fields for application by privately contracted armed security personnel (PCASP) and private maritime security companies (PMSCs) on board ships.

The Rules are set out for the benefit of the Master, Ship owner, charterer, insurer, underwriters, PMSCs, PCASP and interested third parties, providing guidance on lawful graduated response measures and lawful use of force, including lethal force, in accordance with the right of self-defence in the context of maritime piracy, armed robbery or hijacking. The Rules aim to provide for transparency of rules, clarity in use and accountability of actions in those situations, and hope to fill gaps in these areas often lamented by the stakeholders of maritime industry and maritime security.

The 100 Series Rules have been developed for the benefit of the entire maritime industry and under-pinned by a thorough public international and criminal law legal review of what is “reasonable and necessary” when force is used, as a lawful last resort, in self-defence.

Further details about the 100 Series Rules can be found at www.100seriesrules.com.

Piracy – Not just Kiobel’s Analogy

Justice Kennedy – the deciding vote in Kiobel

Cross-posted at opiniojuris.org

The majority opinion in Kiobel precludes Alien Tort Statute claims for foreign conduct against foreign victims, leaving a small door for potential future claims that involve extraterritorial conduct so long as they touch and concern US territorial interests. But, when does a claim “touch and concern” the territory of the United States? Roger Alford notes that piracy may present an incident of “cross-border” conduct that could clarify this issue. Indeed, two piracy cases will imminently arrive at SCOTUS’ courthouse steps.

The piracy statute 18 USC 1651 shares much in common with the Alien Tort Statute: both were passed in the same time frame and both have reference to “the law of nations.” The presumption against extraterritoriality applies to 18 USC 1651. However, the plain language of the piracy statute and its historical context clearly rebut the presumption for all conduct that occurs on the high seas. Further, neither the victim nor the defendant need be American (U.S. v. Klintock). That said, there remains an important subset of piracy cases that involve conduct both on the high seas and within the territory of another sovereign: acts of aiding and abetting piracy through financing or negotiating ransoms for acts of piracy; or recruiting of child pirates.

In US v. Shibin (4th Circuit) and US v. Ali (DC Circuit), currently on appeal, the underlying criminal conduct of hijacking vessels occurred on the high seas. But, the negotiators in these cases only boarded the vessels upon entry into Somali territorial waters. Hence the mixed loci delecti on the high seas and within the territory of another state. Does this type of mixed conduct touch and concern the territory of the United States?

First, the plain language of the piracy statute would not rebut the presumption against extraterritoriality for conduct occurring within the territory of another state (the statute merely applies to conduct on the “high seas”). However, the historical context of the piracy statute indicates that it was intended to prevent impunity for acts of piracy wherever committed. That is why the modern definition of piracy applies to conduct outside the jurisdiction of any state, as well as to the high seas.

Here is where a case-by-case analysis, suggested in Part IV of the Kiobel majority, could be determinative. In Shibin, the defendant is accused of negotiating the ransom of two vessels. The first vessel has a strong nexus to US interests; the victims were American nationals and the targeted vessel was flagged in the US. Although a vessel’s flag does not designate its surface as territory of the sovereign, it is treated in much the same fashion (Lauritzen v. Larsen) which is to say that there are strong domestic interests in exercising jurisdiction over acts of piracy on one’s flagged vessels. But the second course of conduct charged in Shibin involves a vessel with no links to the US apart from a general interest in suppressing acts of piracy. The same is true in Ali. As the district court described the case: “Defendant Ali Mohamed Ali, a Somali citizen, is accused of helping Somali pirates hijack a Bahamian ship, hold its Russian, Georgian, and Estonian crew hostage, and compel the ship’s Danish owners to pay a ransom for its release.” These latter facts would not prevent the exercise of jurisdiction if the alleged criminal conduct occurred on the high seas. The question is whether aiding and abetting conduct occurring within the territory of another state must touch and concern US interests. If answered in the affirmative, it would curtail the US’s ability to suppress and prosecute acts of piracy, which is contrary to the historical purpose and intent of 18 USC 1651. It would also be inefficient as those who initiate an act of piracy on the high seas and continue acts of piracy in foreign territorial waters could only be prosecuted for the former conduct.

One significant factor Kiobel instructs to consider is the imperative to avoid enmeshing US courts in foreign affairs. In this regard, the specific facts of the Somali cases militate in favour of exercising jurisdiction. For the then Transitional Federal Government (TFG) of Somalia did not have effective control over the territorial waters where these acts of piracy occurred. The UN Security Council authorized States and regional organizations “to undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea,” including in its territorial sea. The UNSC took great pains to note the TFG retained full sovereignty, that these exceptional measures did not create customary international law, and that they were authorized because the TFG had requested this assistance. It has been argued that the UNSC Resolutions authorized enforcement and stopped short of authorizing the prosecution of acts of piracy or armed robbery in Somalia’s territorial waters. Notwithstanding these provisos, the interest in preventing “unintended clashes between our laws and those of other nations which could result in international discord” (Morrison) that lies at the heart of the presumption against extraterritoriality, is greatly diminished in these piracy cases.

Justice Kennedy notes in his concurrence in Kiobel that in disputes not involving solely extraterritorial conduct, “the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.” Although the majority appears to exceptionalize piracy (“pirates may well be a category unto themselves”), such a reading is inconsistent with Sosa v. Alvarez-Machain which explicitly asked “who are today’s pirates?” The terms “pirate” or “piracy” appear in the various opinions in Kiobel 50 times. Perhaps it is time to address piracy directly, and not merely by analogy. Such could elucidate the “touch and concern” requirement applicable in ATS cases.

Upcoming Event: “Counter Piracy – Rules for the Use of Force” Conference in London, UK

The international conference “Counter Piracy – Rules for the Use of Force” will take place in London, UK on 8 February 2013. The event aims to bring together various stakeholders in the anti-piracy field, including maritime lawyers, flag States, ship-owners and shipping  associations, insurance companies and P&I Clubs as well as maritime security companies and other interested parties. The main topic of discussion will be the legal framework relevant to the use of force by privately contracted security personnel in the maritime industry, particularly the status of the so called “100 Series Rules”.

The 100 Series Rules, developed by David Hammond, aim to be an international model standard and example benchmark of best practice for the use of force in the maritime and anti-piracy field for application by privately contracted armed security personnel and private maritime security companies. Further details about the 100 Series Rules can be found at www.100seriesrules.com.