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Norwegian flagged vessels with proof of flag state authorisation could reduce red tape for vetting the PMSC, thereby ensuring efficient processing of permits. This once again highlights the potential to increase the efficiency of the permit process of PCASP in coastal states with the cooperation of flag states.
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Roche, chief executive of PVI, noted with concern the UK Government’s failure to ratify guidelines in respect of the ISO accreditation standards as well as regulations governing the use of floating armouries.265
The UK Guidance version 1.2 was published in May 2013. It includes express reference to ISO PAS 280074:2012 and “encourage[s] shipping companies to use independent third party certification to ISO 28000...as an important component of their criteria in selecting a PMSC”.266 The obligation to conduct a due diligence and vetting of a PMSC falls on the ship owner.267 Dutton notes that the UK policy requires owners to submit a “counter-piracy plan indicating why this extra level of protection, beyond following best management practices, is necessary”.268 The UK Guidance suggests that the following minimum criteria should be adhered to in selecting a PMSC: “adequate experience and training of personnel, appropriate insurance cover, and access to maritime legal advice at various jurisdictions, understanding of port state requirements for the movement of firearms and an understanding of BMP and United Kingdom firearms legislation”.269 It is important to note that the UK Guidance suggests that the PMSC should have undertaken police and employment background checks.270 This will once again reduce the individual personnel vetting procedure that needs to be undertaken by a coastal state like South Africa, should the appropriate mechanisms be in place in the flag state or country where the PMSC is registered. The researcher is of the view that inter-state cooperation is essential to regulate the maritime security industry and to facilitate the movement of guards and weapons through various territories with as little hindrance as possible, always ensuring compliance with laws and procedures.
264 Stephen Askins ‘Piracy Update: Armed guards, West African hijackings and Guardcon revisited’ autumn 2013 available at http://incelaw.com/ourknowledge/publications/piracy-update-armed-guards-west-african-hijackings- and-guardcon-guardcon-revisited accessed on 20 March 2014.
265 Liz McMahon ‘Maritime security industry needs more support from UK’ (13 May 2013) - Lloyd’s List available at http://www.lloydslist.com/ll/sector/regulation/article422605.ece accessed on 29 August 2014.
266 Section 3 - Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances’ Version 1.2 – Department for Transport (May 2013).
267 Section 3.4 - Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances’ Version 1.2 – Department for Transport (May 2013).
268 Yvonne M. Dutton ‘Gunslingers on the high seas: A call for regulation’ (2014) 24 Duke Journal of Comparative
& International Law at 137.
269 Section 3.5 - Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances’ Version 1.2 – Department for Transport (May 2013).
270 Ibid Section 3.9.
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Section 6.9 of the UK Guidance states that: “it is essential that the laws of a coastal state are respected and complied with.” The right of innocent passage of vessels does not outweigh a coastal state’s right to sovereignty, or the restriction of the right to acts which “are not prejudicial to the peace, good order or security of that state”.271 The UK Guidance expressly states that the
“exercise or practice with weapons” in a member state’s territory would be prejudicial to the peace and security of that state.272
For South Africa’s purposes, Section 6.12 requires that a PMSC seek clarification of a port state’s laws on firearms prior to the voyage.273 This would ensure that applications for weapons permits are submitted the moment the contract to provide armed protection for a transit is signed between owners and PMSC.274
The UK Guidance states that rules on the use of force must be in place and agreed to by the shipowner;275 however, the guidance has been described as “cautious” as it advises that personnel should attempt to prevent unlawful boarding of a vessel “using the minimum force necessary”.276 The primary function of the PCASP “is to prevent illegal boarding of the vessel in order to protect the lives of those onboard, using the minimum force necessary to do so”.277 Section 8.5 of the UK Guidance recommends that any conduct that shows capability of the use of lethal force (i.e., warning shots or showing weapons) must be done in a manner so as not to constitute an act of aggression.278 The mention of warning shots is noteworthy in both the
271 Ibid Section 6.10.
272 Ibid Section 6.10.
273 Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances’ Version 1.2 – Department for Transport (May 2013).
274 This is not always possible. For example, one might consider the case where a time charter is fixed at the port of Salalah, Oman and the vessel is ordered to sail to Durban. The South African legislation requires 21 days prior notice for permit applications. The transit time between these two ports is less than 21 days. In this case, it is difficult to comply with the legislation without delaying the vessel’s voyage.
275 Section 8.4 - Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances’ Version 1.2 – Department for Transport (May 2013).
276 Yvonne M. Dutton ‘Gunslingers on the high seas: A call for regulation’ (2014) 24 Duke Journal of Comparative
& International Law at 140.
277 Section 8.3 - Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances’ Version 1.2 – Department for Transport (May 2013).
278 Ibid Section 8.4.
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Norwegian and UK policies as no mention is made thereof in the Italian and Panamanian notices.279
In the researcher’s view, the UK Guidance allows coastal states to utilise the provisions thereof for UK flagged vessels which allege ignorance of the coastal state’s laws prior to arrival. There is an express obligation on the owner to ensure knowledge and compliance of a coastal state’s laws regulating the presence or movement of firearms in its territory, as with the Panamanian, Italian and Norwegian policies.
279 The remainder of the UK Guidance deals with incident reporting and various counter piracy plans which are not
the focus of this study.
64 CHAPTER FOUR
THE SOUTH AFRICAN POSITION ON ARMED GUARDS