Floating Armouries and the law
In general, there are three aspects of an FA operation to which existing laws apply:
- The vessel and its armoury
- The services facilitated by the vessel
- The individuals involved
The Services
The activities in which FAs engage are diverse and so this analysis does not attempt to comprehensively address them. That said, these are some of the key legal angles for analysing the various services provided by FAs.
Anti-Money Laundering and Combating the Financing of Terrorism (AML-CFT)
Given that FAs are literally “offshore” entities through which a lot of money flows, laws related to anti-money laundering and combating the financing of terrorism (AML-CFT) provide important constraints. The state of registration of the companies that own and or operate FAs have the audit responsibility to ensure that they are neither laundering money or financing illicit or terrorist activity.
The Financial Action Task Force (FATF) has produced forty recommendations for states to incorporate financial provisions of international conventions, as well as norms and custom into national law.
ANSI/ASIS PSC.4 Guidance for Private Security Companies Operating at Sea
The International Code of Conduct for Private Security Service Providers (2010) sought to promote principles related to international law and human rights in the operation of private security companies. ANSI/ASIS PSC.1 (2012) was a standard written to make that Code of Conduct measurable and auditable for private security companies. Recognizing that the principles of security on land and security in the maritime domain are almost identical, though the implementation of the differ, another standard, ANSI/ASIS PSC.4 (2013) Guidance for Private Security Companies Operating at Sea served as an implementation guide to PSC.1. Considering the broad scope of this standard, and the human rights focus of it, it isactually potentially applicable to FAs, as well as the PMSCs that use them. While it is not purpose- drafted for FAs, it contains extensive provisions relating to arms control, and would apply to FA operations.
Suppression of Unlawful Acts at Sea
The 1988 Suppression of Unlawful Acts at Sea (SUA) Convention and its 2005 Protocols are both relevant to FAs and their operations. SUA article 3 could apply to FAs in three different ways: the FA could be the victim of an unlawful act, particularly in light of its attractiveness to criminals or terrorists in need of weapons; the FA could commit an unlawful act; or the FA could facilitate its clients committing an unlawful act.
Accomplice Liability
If an FA were to knowingly supply weapons to assist other individuals in the commission of a crime, the FA may be guilty of aiding and abetting the illicit activity. National legal regimes of accomplice liability, negligence, conspiracy and common criminal plan may be invoked against an FA if weapons originating on the FA are used in the commission of a crime.
United Nations Convention Against Transnational Organized Crime
While the scope of the 2000 United Nations Convention Against Transnational Organized Crime (Palermo Convention) focuses on activities committed in States (art. 3), its jurisdictional provisions in article 15 require its state parties to “adopt such measures as may be necessary to establish its jurisdiction over the offences established in accordance with articles 5, 6, 8 and 23 of this Convention when:
(a) The offence is committed in the territory of that State Party;
or
(b) The offence is committed on board a vessel that is flying the flag of that State Party or an aircraft that is registered under the laws of that State Party at the time that the offence is committed.”
While the crimes covered by the Palermo Convention apply to various portions of this analysis, the facilitation of transnational criminal activity by FAs is a particular concern. Beyond the arms trafficking matters of the Firearms Protocol addressed above, the Palermo Convention focuses in particular on the commission of “serious crimes” by organized criminal groups, the laundering of the proceeds of crime, corruption and obstruction of justice. Article 2 of the Convention defines “serious crime” as “conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty.”
A wide array of criminal activity falls under this Convention, therefore, meaning that it could be, depending on the applicable flag, port or coastal state law, a powerful tool in addressing any criminality facilitated by an FA.
The Services Facilitated by the Vessel
Generally, FAs facilitate the activities of Private Maritime Security Companies (PMSCs). While FAs are not specifically regulated, there are GAIRS that apply to the PMSCs that use FAs. Between 2009 and 2014, the IMO produced a series of Maritime Safety Committee Circulars directed to PMSCs, flag states and ship owners regarding the use of PCASP:
- MSC.1/Circ.1405/Rev.2 Revised Interim Guidance to Shipowners, Ship Operators and Ship Masters on the use of Privately Contracted Armed Security Personnel on board Ships in the High Risk Area;
- MSC.1/Circ.1406/Rev. 3 Revised Interim Recommendations for Flag States Regarding the use of Privately Contracted Armed Security Personnel on board Ships in the High Risk Area;
- MSC.1/Circ.1408 Interim Recommendations for Port and Coastal States regarding the use of PCASP on Board Ships in the High Risk Area;
- MSC.1/Circ.1443 Interim Guidance to Private Maritime Security Companies Providing Privately Contracted Armed Security Personnel on board Ships in the High Risk Area;
- MSC.1/Circ.1444 Interim Guidance for Flag States on Measures to Prevent and Mitigate Somalia-Based Piracy
While these documents provide some of the best international guidance on PMSCs, they do not mention FAs and they are predicated on an IMO position that neither condemns nor endorses the use of PCASP and are thus only guidelines. From a maritime industry standpoint, BIMCO’s GUARDCON Standard Contract for the Employment of Security Guards on Vessels helped create some consistency in PMSC requirements, but does not address FAs at all.
Finally, two standards have been produced for private maritime security: ISO 28007:2015 Guidelines for Private Maritime Security Companies (PMSC) Providing Privately Contracted Armed Security Personnel (PCASP) On Board Ships, and ANSI/ASIS PSC.4. While neither addresses FAs directly, PSC.4 could be applicable as discussed above. To date, though, no company has used it and no entity has required it.
All that said, there is no universal requirement that PMSCs abide by any of these instruments, vet their clients, or ensure that their services are not used to facilitate criminal activity, constitute threats to peace and security, or support the violation of human rights.
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Floating Armouries and the Law - Individuals