Private Maritime Security Companies (PMSCs) have proven to be an effective means by which ship owners can deter pirate attacks. In 2013, between $767,144,000 and $876,736,000 was spent on armed guards aboard ships in East Africa alone. These significant sums of money were not expended frivolously, and because PMSCs have achieved results, many shipping companies are eager to make use of them in regions of emerging piracy. One of these regions is West Africa. However, unlike East Africa, West African laws are highly restrictive as to the use of PMSCs in their territorial waters. In some cases, these laws create a situation where ship owners must, in their efforts to bolster security, turn to either (1) security personnel sanctioned by the state or (2) national forces such as the navy. This approach to maritime security has been fraught with difficulties, two of which are detailed below.
The United Nations Convention on the Law of the Sea (UNCLOS) provides that the sovereignty of a state extends to the territorial sea, which is measured 12 nautical miles from the baseline. Thus, as long as a ship is within the territorial sea of a West African state, that state may prohibit private security aboard the ship without contravening international law. However, there have been reports of these laws being enforced beyond the territorial sea in Nigeria. A recent statement made by the Baltic and International Maritime Council (BIMCO) warned all of its members operating vessels within Nigeria’s Exclusive Economic Zone (EEZ) that “[t]he Navy has seemingly begun enforcing its alleged authority to prevent the employment of armed guards”. The authority of the Nigerian Navy is described as “alleged” because international custom does not allow a state to apply its national law throughout the EEZ. As per UNCLOS, the EEZ extends 200 nautical miles from the baseline, and gives a state exclusive jurisdiction over the exploitation of the resources therein. Thus, while Nigeria has exclusive rights over fishing, oil, and gas in its EEZ, enforcement of national laws beyond territorial waters is contrary to international law. This issue brings to light the overall uncertainty faced by the maritime industry: not only do seafarers and ship owners face the risk of unpredictable pirate attacks at sea, but they are further subject to the arbitrary exercise of jurisdiction by littoral states.
“Blue on blue” incidents:
One solution to the problem of jurisdiction would be to rely exclusively on security either sanctioned by or provided for by the littoral state. However, even this approach has proven to be problematic, and has resulted in a number of “blue on blue”, or friendly fire, incidents. One notable incident occurred in 2013, where members of the Nigerian police opened fire on a small ship, believing it to be in the process of committing an act of piracy. In fact, the crew of this ship belonged to the Nigerian Navy, and, as a result of the initial attack, a standoff between the two sides ensued, forcing the policemen to lock themselves inside of the citadel for multiple days. The Nigerian Navy has asserted that the police only have jurisdiction over riverine territory, and they have expended efforts to enforce this ban. However, these efforts continue to result in clashes between the Nigerian authorities, and have further contributed to the uncertainty and lack of coordination in the region.
PMSCs have become a significant part of the maritime industry, and their continued use by shipping companies facing tight budgets suggests that it is a successful method of deterring maritime crime. However, much like piracy clauses, it must be kept in perspective that this counter-piracy measure is preventative. In order to address the problem of piracy directly, we must not only protect the lives and livelihoods of seafarers through such security measures, but further address the root causes of piracy that exist both ashore and at sea.