The OTHER Anti-Piracy Legislation

There is a continuing debate over whether flag states should sanction the hiring of armed guards aboard commercial ships. There are significant financial risks associated with hiring Private Military and Security Companies (PMSCs), including liability for damages to cargo and crew. As a Congressional Research Office report concluded in April 2011, “Some industry experts suggest that hiring armed security teams may be more expensive than taking the risk and paying the occasional ransom.” Nonetheless, there is a growing trend among flag states to permit the use of PMSCs on-board commercial ships. India and the UK paved the way, and a number of other states have indicated a willingness to accept such practices. Just today it was announced that the Philippines issued guidelines to permit armed security details.

Likely because of prior controversies in Iraq and Afghanistan, the United States has been reluctant to embrace the use of PMSCs aboard marine vessels. Thus far, the U.S. has not publicly sanctioned the use of PMSCs, although some reports indicate that the U.S. State Department has privately encouraged the use of PMSCs in pirate hot spots. It is in this context that in November 2011, the U.S. House of Representatives passed the Piracy Suppression Act of 2011 (within H.R. 2838) which would require the Department of Transportation to train U.S. mariners in “standard rules for the use of force for self defense […] including instruction on firearm safety for crewmembers of vessels.” This suggests that mariners would be permitted to carry and use firearms in certain situations. The Bill would also require all U.S. flagged ships carrying goods belonging to the United States to be provided with armed personnel to be paid for by the U.S. government. The initial house bill was even more ambitious and would have permit the U.S. to seek reimbursement for U.S. military assistance to pirate victims from other states, as well as criminalize attempts to commit piracy. Interestingly, the Senate version of the Bill (S. 1665) omits all of these provisions. Therefore, if the Senate Bill passes, the Piracy Suppression Act is unlikely to become law. (The House tried to pass a similar bill in 2010 (H.R. 2647), but the Senate version did not include the armed security provisions and they failed.) It remains an open question whether the U.S. Congress will keep the Piracy Suppression Act within the bill. But the conditions may be different this time around as Congress considers the successful rescue of two aid workers in Somalia and the maritime world starts to coalesce around the view that sanctioning PMSCs is the most practical, immediate solution to counter piracy.