August 6, 2013 Leave a comment
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.
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 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.
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.
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.