Letter of Marque Against Piracy

As Reported http://www.huffingtonpost.com/david-isenberg/there-is-more-than-one-wa_b_594777.html


On May 27 I wrote about the pros and cons of using private security contractors to fight piracy. But that article considered just the use of putting armed guards aboard ship. That is not the only way, or even the best way, private security firms can be involved in fighting pirates.
Using private contractors help provide security against pirates is an increasingly popular notion. Congressman Rep. Ron Paul (R-Tex.) called on Congress to "issue letters of marque and reprisal, deputizing private organizations to act within the law to disable and capture those engaged in piracy." Indeed, this idea is grounded in the U.S. Constitution, which expressly invests Congress with authority to define piracy on the high seas and to issue letters of marque. (Art. I, § 8, cls. 10, 11).
For detail let's consider the article "Reconsidering the Letter of Marque: Utilizing Private Security Providers Against Piracy" by Maj. Theodore Richard, which was published in the Spring issue of the Public Contract Law Journal. Richard is an Air Force Judge Advocate and is currently serving as trial attorney in the Air Force Commercial Litigation Division in Washington,
As Richard notes, piracy thrives in coastal regions where people are drawn towards criminality by desperate circumstances combined with an absence of law-enforcement authorities. The pirate scourge originated in the failure of the rule of law and international institutions to prevent exploitation of Somali waters. The now sophisticated and aggressive pirate operations are thought to have morphed out of a self-help police or military function into piracy earlier this decade. Somali fisherman started out trying to deter illegal dumping and fishing and graduated from attacking vessels to seizing them for ransom, with the Hawiye clan, based around Haradere in central Somalia, emerging as the dominant group of pirates in 2004.
When the short-lived Union of Islamic Courts government took over the Haradere area in 2006, they suppressed local piracy, so the Darod clan, with strongholds around the east coast of Somalia and in the semi-autonomous Puntland region on the Gulf of Aden, took over the piracy role.
By 2008 a United Nations report described the pirates as "loosely organized and poorly trained," with a fluid membership. The report described two significant overlapping networks: one in Puntland, mainly consisting of the Majerteen clan, and another in central Somalia, mainly consisting of the Habar Gidir clan.
Puntland's current president, Abdirahman Mohamed Farole, has made fighting piracy a priority. During a meeting with an international delegation in February 2009, President Farole explained that military operations against the pirates would not be sufficient to end the piracy problem. Instead he "strongly suggested that the world must first address the root causes of piracy, including illegal overfishing and toxic waste dumping."
It is not excuse for piracy to point out that it is not well realized that illegal fishing by foreign vessels is a significant concern for Somali leaders: a United Nations Secretary General report lamented the "pillage of Somali Indian Ocean and Red Sea waters by literally hundreds of vessels from a variety of nationalities" and expressed concerns of overfishing and depletion of fish stocks.
In 2005 some of the intruding vessels attacked local Somali fishermen and destroyed their boats and equipment. It should be no surprise that another United Nations report described the Somali fishery situation as resembling "naval warfare": "Fishing boats are typically mounted with heavy anti-aircraft canons and many of the crews are armed."
This analogy has become even more appropriate in recent years, with reports of international naval vessels firing on local fisherman and protecting their own vessels illegally fishing in Somali waters.
Richard points out that Puntland has employed a number of different security contractors since 2000, meeting with various levels of success.

It first contracted the British company Hart Security ("Hart") from 2000 to 2001. Hart was hired "mainly to protect Puntland's maritime resources against illegal foreign fishing by providing training as well as on-ship support to the local Coast Guard." The company's force consisted of one boat and seventy men, primarily Somalis with a balanced composition from the local clans. Hart was financed through the sale of fishing licenses. "Hart was very successful: the frequency of piracy declined, and the nucleus of a relatively efficient coast guard was formed with its spine consisting of British advisors and British-trained Somali militia acting as boarding parties.
Hart successfully tapped British legal resources to settle international disputes.
For example, when the Somali coast guard detained a Spanish ship for illegal fishing, Hart contacted a British law firm and resolved the matter through arbitration.
Hart did not simply ransom the vessel, but made use of a legal international dispute resolution forum, strengthening Puntland's legal authority.
Hart stood apart from its successors by respecting the rule of law; it actively sought legal advice and followed fisheries guidelines.

Internal conflicts within Puntland ultimately doomed the Hart Group. Other companies -- such as SOMCAN, Al Hababi Marine Services, TopCat Marine Security, Northbridge Services Group, Secopex, Odyssey Consulting SA -- that followed Hart did less well, for a variety of reasons; some their own fault, and others beyond their control.
The point here is that maritime security contractors can be hired for a variety of purposes. Putting armed guards aboard ships is just one of them. As that is a defensive measure it is inherently a reactive, rather than a proactive one. In medical terms it is a cure and not a preventive measure. Using contractors to help provide a comprehensive coast guard force is likely a better way to go.
If governments, rather than commercial shipping companies, hired private security contractors for that purpose we might see real progress in fighting pirates. But that, as Richard notes "must be centrally organized and controlled."
In that regard letters of marque might be a useful tool. Richard concludes that:

Littoral governments should reconsider letters of marque to license and control privatized maritime security. The letters can be used to license defensive weapons on merchant vessels, and could even be used to authorize active anti-piracy operations. Furthermore Somali governments can use the letters to deputize their security contractors. Maritime security contractors can be part of the solution to piracy--especially if they are properly licensed and regulated through letters of marque.

What are your thoughts?