Italy

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In summary, the list of approved PMSCs should be utilised by other flag states, and in particular, the South African authorities in adopting or amending its procedure and policies on armed guards as a port state.

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law are imputed to the VPD (and the sending State) only, and not to the master and the ship- owner”.²²⁴

The costs of logistical arrangements including transport, board, lodging and flights are borne by the owners.²²⁵ There must be third party insurance to cover third party liability for negligence based on damages caused by the NMPs whilst on board providing protection.²²⁶ The owner must indemnify the Ministry of Defence against claims for deviation due to any embarkation or disembarkation of NMPs and captured pirates.²²⁷ The authority of the Master of the vessel is confirmed but only in respect of “navigation and control decisions”.²²⁸ “The passive protective measures have [sic] to be handled with the coordination of the NMP leader”.²²⁹ This raises the issue of divided command in Chapter Two.

The protocol requires the owners to take note “that the loading/unloading of NMP is easier at hub ports identified by the Navy”, an example being the Port of Djibouti.²³⁰ This could benefit South Africa should the policy accommodate PCASP (or VPDs/NMPs), and the country would thus be identified by shipowners, PMSC and naval forces as a suitable hub port. As noted in Chapter Five, with the current surge in piracy off the coast of West Africa, combined with the existing threats off the East African coast, South African ports have the unique opportunity to be identified as preferred hub ports for embarkation and disembarkation of PCASP. The advantages and risks are highlighted in Chapter Five.

The use of NMPs in Italy’s response to piracy encountered problems relating to the capacity of available naval officers to provide protection. On 2 October 2012 the Defence Committee of the

224 Ibid at 15 and 16.

225 Studio Legale Garbarino Vergani ‘Piracy IV, Definitely signed the Protocol between Ministry of Defence and Confitarma’ at 5 (12 October 2011) available at http://www.garbamar.it/ON%20THE%20WAVE%20-

%20fifth%20issue%20-%20Pirateria%20-%20Piracy%20IV.pdf accessed on 14 May 2013 with reference to the Italian protocol; Ministero della Difesa ‘Protocollo Di Intesa tra Ministero della Difesa e Confederazione Italiana Armatori (Confitarma)’ (11 October 2011) available at

http://www.marina.difesa.it/attivita/operativa/nmp/Documents/A_101011_Protocollo_Difesa_CONFITARMA_UG.

pdf accessed on 15 May 2014.

226 Ibid at 2.

227 Ibid para. 6.

228 Ibid.

229 Ibid.

230 Ibid.

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Italian Senate approved a resolution on armed guards on board vessels flying the Italian flag.²³¹ The committee suggested that clear resolutions be passed in favour of allowing PCASP on board as an alternative to NMPs.

A number of items were highlighted in the resolutions, including:

1. That agreements are reached with coastal states to avoid diplomatic clearance for NMPs for each vessel;²³²

2. The piracy risk area is extended to the Gulf of Guinea;²³³

3. Broader obligations and liabilities for PMSCs, including criminal and civil liability for shipowners and PMSCs for actions of their employees, namely PCASP;²³⁴

4. Insurance cover is to be held by PMSCs;²³⁵ and

5. Specific training courses have to be undertaken by PCASP.²³⁶

The Italian Regulation on the deployment of armed guards on board vessels flying its flag was gazetted on 29 March 2013 under Law Decree 107/2011, amended by Law Decree 130/2011,²³⁷ and came into force on 13 April 2013.²³⁸

This signalled the Italian government’s determination that armed personnel assigned to vessels flying its flag must be regulated. The regulation makes it compulsory in the first instance to

231 Senato della Republica, Defence 4^th Standing Committee ‘Proposed Resolution Scheme by Speakers on the deal assigned # 747’ (27 September 2012) available at

http://www.senato.it/japp/bgt/showdoc/frame.jsp?tipodoc=SommComm&leg=16&id=679249 accessed on 15 May 2014.

232 Ibid para 2.

233 Ibid para 3.

234 Ibid para 4.

235 Ibid para 8(b).

236 Ibid.

237 Giorgia Bevilacqua‘Counter Piracy Armed Services, the Italian System and the Search for Clarity on the Use of Force at Sea’ (2012) 22 The Italian Yearbook of International Law at 50 available at http://www.sidi-isil.org/wp- content/uploads/2012/05/03_Bevilacqua.pdf accessed on 13 April 2014.

238 Studio Legale Garbarino Vergani ‘Special Issue: Piracy – The Decree on the employment of Contractors on Board Italian Flagged Ships has been issued’ (4 April 2013) available at

http://www.garbamar.it/on%20the%20wave%202013%20-%201%20English%20version.pdf#! accessed on 24 November 2013 with reference to Decreto-Legge 12 luglio 2011, n. 107 ‘Gazzetta Ufficiale N. 160 del 12 Luglio 2011’ available at

http://www.marina.difesa.it/attivita/operativa/nmp/Documents/D.Lgs%2012%20luglio%202011%20n.107.pdf accessed on 15 May 2014.

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deploy NMPs, and PCASP can only be deployed if NMPs are unavailable. There is thus a slight deviation in the published regulation from the prior resolution. Article 5 of the Law Decree further limits contractors that may be appointed as PCASP to Italian and European Union citizens and Italian security providers.²³⁹ Bevilacqua notes that the deployment of private security guards will be difficult as the conditions in the law decree will have to be met and only when a public team is unavailable, thus the “only enforceable option is that of vessel protection detachments”.²⁴⁰ Article 8 provides that the embarkation and disembarkation of weapons in coastal states must be “in compliance with the legislation of the states”.²⁴¹ Flag states are once again placing an obligation on vessel owners to ensure compliance with coastal state laws and regulations on firearms.²⁴²

There should be diplomatic agreements between flag and coastal states on the issue of armed guards. There should be an open line of communication between states in order to regulate the private maritime security industry. This approach would streamline any permit or vetting process that needs to be undertaken by flag and/or coastal and port states and also provide for a

‘blacklist’ system should any PMSC be found to have transgressed the laws of the states concerned.