Over six months since the Japanese government issued a landmark national law permitting privately contracted armed security personnel (PCASP) aboard Japanese flagged vessels, there remains confusion and uncertainty as to its scope and practical application. The legislation is entitled the “Special Measures Act for Security of Japanese Vessels in Pirate Infested Waters” of 20th November 2013, Law No.75 (Japanese Ship Guarding Act.) This Act, along with its supporting Orders and Ordinances, sets the policies, procedures, and applications for the employment of armed guards aboard Japanese flagged oil tankers. It is written exclusively in Japanese and requires not only translation, but also analysis by those seeking to provide or procure compliant maritime security services for the Japanese market.
Despite the Act being rolled out more than half a year ago, Japanese ship-owners and operators struggle to find foreign PCASP and private maritime security companies ready to provide their services aboard Japanese vessels.
According to Mr. Henri Vlahovic, founding director of Amniscor Ltd., which offers market entry support to companies in this sector, “while our team has developed the right compliance solutions for the constantly evolving procedures in Japan, significant challenges remain for foreign private maritime security companies to enter this new-born market. There are several reasons, including a lack of comprehensive information on policies and laws, which themselves are still not completely defined and remain emerging. This is compounded by protracted application procedures that hinder, rather than foster, advancement of this crucial new industry segment in Japan. The Japanese Ministry Of Land, Infrastructure, Transportation and Tourism (MLIT) is still missing sufficient mechanisms to attract foreign service providers, while Japanese ship-owners’ demand for high standard PCASP is steadily increasing.”
So as the demand grows, supply of services remains lacking due to the complexity of navigating the Japanese legal system, especially the hurdle of deciphering the Japanese Ship Guarding Act, which can be seen as scaring off foreign security providers.
While the world now observes a trend in piracy and maritime-armed robbery, priority areas shifting to West Africa and Malacca, the Act came into existence against the backdrop of increased PCASP deployment aboard vessels transiting the High Risk Area– the Horn of Africa and the Indian Ocean. The Japanese government accepted the correlation of increased use of PCASP with decreased successful pirate boarding in this region. Coupling this with Japan’s energy dependence being exclusively sea-borne from source countries mostly in the Middle East, authorities sought strategies to protect their vulnerable maritime assets and energy flow. However, unlike some other nations which could place PCASP on-board their ships at-will, Japanese flagged vessels were prevented from doing so as firearms possession is prohibited by the Japanese Swords and Firearms Control Law of 1958.
The recently adopted Japanese Ship Guarding Act provides an exception to this Law. The Japanese legal system is composed of three unique components: Laws, Orders, and Ordinances.
The Act itself is actually a Law, meaning that it was passed by a vote in the Diet, Japan’s parliament. However, it also includes Orders and Ordinances, which can be modified without Diet debate by the cabinet or the relevant ministry, in this case—MLIT. This allows the cabinet and MLIT the necessary legal latitude to independently adapt or expand the scope of the legislation without Diet approval, a crucial aspect to respond to the fluid nature of maritime operations and maritime threats.
According to the relevant Orders, to obtain MLIT permission for embarking armed guards on Japanese flagged vessels, the candidate vessel must be a Japanese flagged tanker carrying crude oil and meeting certain fundamental static requirements as set down in the Ordinances described below.
The Orders prescribe the use of PCASP only within a designated High Seas area in the Gulf of Aden and Indian Ocean along with a ‘passing area’ at Bab-el-Mandeb, the entrance to the Red Sea.
According to Mr. Takashi Watanabe, the Deputy Director of MLIT’s International Shipping Division, the operational area remains the High Seas, beyond twelve nautical miles from shore, as prescribed by the UNCLOS framework, while the territorial sea spaces of these oceans are considered transit areas. This means that armed guards may be onboard within twelve nautical miles, designed specifically to facilitate embark and disembark procedures in a coastal state’s territorial sea, but in such locations they are forbidden from using weapons.
As these requirements are prescribed specifically in the Order and not the Act itself, the Japanese government maintains the jurisdiction to modify such specific geographic requirements as needed to adapt to fluid operational and threat conditions.
Should security operations be needed to protect the Japanese fleet in West Africa or Malacca, for example, the government maintains the power to grant these permissions in the form of a new or modified Order which can expand the subject area for a security response.
Likewise, should the need for increased protection be deemed necessary aboard vessels other than crude oil tankers, such as LNG carriers, fishing vessels, or even perhaps the Japanese whaling fleet, cabinet can similarly expand the scope of the Order to include these parameters.
Related Ordinances specify that in order to qualify for armed security permission, Japanese oil tankers must have a maximum speed no faster than eighteen knots fully loaded, and have a freeboard less than sixteen meters (distance between the water line and the deck or other places where humans can enter the ship.) Ships must also have a secure citadel where crew members can seek refuge and continue external communication in the event of an attack, along with primary preventative measures including a water discharging system and razor wire along exposed areas of the deck.
Application forms are included with the Ordinances as appendices available in Japanese only, which ship-owners must submit to MLIT for obtaining permission to employ PCASP aboard their Japanese flagged vessel. However, a summary of required information has been created and is presented below.
This includes applications to authorize a Ship Security Plan, modify all or part of the Ship Security Plan, confirm security personnel and their weapons, change of security personnel, submit the guarding implementation plan, and notify MLIT about lost or stolen firearms.
Ship-owners must submit a designated guarding plan for each candidate vessel to MLIT along with personal details of the PCASP and their embarked weapons. These applications are free of any charges and commissions and have validity periods of two months, after which a new application must be submitted.
DESIGNATED GUARDING PLAN
An application must be submitted to MLIT detailing the Designated Guarding Plan. This plan includes information on the ship-owner, including copies of their personal identification documents and criminal record check. It also must include details of the candidate vessel, certification of its Japanese flag possession, architectural schemes, pictures, and drawings. This evidence shall detail the equipment required under the Regulation to prevent and reduce damage by piracy, including that of the citadel, razor-wire, water discharge system, and appropriate storage facilities for firearms. Moreover, a written pledge by the Ship’s Master (Captain) must be enclosed stating that he/she is over twenty years old, and does not have any psychological or physical conditions which may impact his performance, is not a previous criminal offender, and is capable of overseeing and monitoring the possession and use of firearms onboard for special security activities.
The ship-owner or their liaison must also submit relevant documents about the PCASP to be embarked on the vessel and the company they hail from. Along with copies of relevant PCASP team leader or company director’s personal identification documents, such as residency card, a medical certification by a doctor or public body indicating this individual does not suffer from any psychological issues, addictions, or other health problems that can impact this line of work must be included. They must also submit results of a clean criminal background check indicating they have not been imprisoned in the past five years or have been a violent criminal within the last ten years. A copy of the guards or guarding company’s insurance or alternative form of liability protection demonstrating that the PCASP to be employed are insured for the scope and duration of their operations must be included.
The ship-owner or their designated liaison must submit documents indicating details of the intended voyage, cargo, number of rifles, bullets, and activities to take place on the candidate vessel during the special security period. Photographs of weapon profiles and serial numbers must be attached for the specific firearms slotted to be brought on-board.
VERIFICATION OF DESIGNATED GUARDING BUSINESS (DGB) PERSONNEL
MLIT also requires an application to verify what they call the Designated Guarding Business (DGB) Personnel, or PCASP, to be engaged in special security activities aboard the candidate vessel. This is the middle stage after ship-owner’s Designated Guarding Plan has been approved, but before they receive the final greenlight to undertake the specific maritime security operations requested in their Guarding Implementation Plan, described in the subsequent section.
The verification of Designated Guarding Business Personnel by MLIT takes approximately two months to process, so it is imperative for ship-owners to begin this process early. It requires them to provide evidence attesting to the quality and competence of the individual guards scheduled to embark upon their vessel. It requires evidence of their training and education which must be submitted in a document indicating that the individuals were trained by the relevant maritime security company along with a video demonstrating their proficiency for MLIT review and record-keeping. These videos must demonstrate (1) rifle handling and the other basic skills, (2) inspection of firearms, (3) loading / unloading various types of ammunition, (4) shooting form and weapons handling, (5) marksmanship and external variables. In some circumstances MLIT may issue a paper test to be completed by PCASP in order to verify their qualifications and education.
As is standard throughout this industry, medical certification by a doctor or public body must be produced that indicates the mental and physical health of the candidate. A document indicating the employment relationship between the maritime security company and the individual guard must be provided along with copies of the individual’s passport, residence permit, as well as a clean criminal background check indicating they have not been imprisoned in the past five years or have been a violent criminal within the last ten years. Evidence of insurance coverage for damages that can occur from their activities should also be included.
GUARDING IMPLEMENTATION PLAN
After guards are approved by MLIT, the ship-owner must submit the Guarding Implementation Plan at least five days prior to the commencement of the special security arrangements. Like the other documents, there is no fee for MLIT processing this request.
To this they must attach a copy of the contract between the ship-owner and PCASP or their hiring company along with details of the special security activities planned. This shall include navigational charts for the assigned vessel’s voyage indicating the location where weapons will be loaded/unloaded and if relevant, where PCASP will embark/disembark.
NOTIFICATION FOR LOST OR STOLEN FIREARMS
When guns are lost or stolen, the Master of the approved vessel must submit a pre-form document which is included with the Act to report the location, nature, and reason for the loss along with indication and identification of the missing items. Masters are requested to contact MLIT for updates to the document and to submit the details as soon as possible after their disappearance.
RULES FOR THE USE OF FORCE (RUF)
Mr. Takashi Watanabe of MLIT highlights that the use of firearms to deter pirates attacking a Japanese vessel remains a last resort. The preliminary steps taken beyond deterrence with razor wire are discharging water and escaping the crew into a reinforced citadel, or protected area.
To use rifles, additional steps are required. First, PCASP must warn the suspected pirates using all other means, both audio and visual, without using firearms. Second stage is warning by rifle use, safely firing warning shots into the sky or sea to deter attack.
Only in cases which the first two measures are undertaken, but the pirates do not halt their attack, are PCASP aboard Japanese flagged vessels permitted to shoot at the pirate ship for the purpose of protecting the lives of crew members.
The Japanese government’s move to permit PCASP onboard their vessels is certainly a step welcomed by the international maritime community. Its redundant safety and approval protocols will keep their seafarers safe and energy supply uninterrupted, while ensuring that PCASP operations remain monitored for compliance. Although challenging to decipher, the Japanese legal system caters specifically to this complex Act, placing its components within the numerous levels of Law, Order, and Ordinance that permit the Japanese cabinet and MLIT the flexibility to expand the Act’s scope and geographic-area as new threats against the Japanese fleet emerge and security responses evolve.
Written by Simon O. Williams with research support from Michitsuna Watanabe, under the auspices of Tactique Ltd. Their team remains available for contact at email@example.com should there be queries regarding this subject or related compliance matters.
This article is for information only and does not constitute legal consultation services.
In the first part of this article we briefly explored the long history of private maritime security companies (PMSCs) in South and Southeast Asia, as well as the conditions most conducive to their sustainment and growth. In part two we look at regional factors that have or could lessen the threats to which PMSCs provide services in response – including government action, capacity building, and legal regimes – and will conclude with final thoughts on the outlook for PMSCs in the region.
Lessening the Prospects for PMSCs
Perhaps the largest mitigating factor for PMSCs’ prospects is the whether governments will themselves tackle the underlying issues, including economic development, instability, and corruption, and/or their outgrowths that PMSCs attempt to address, such as piracy and maritime crime. This factor consists of and can be measured by both the desire and ability of governments to take on these challenges.
As discussed in part one, levels of piracy and armed robbery (PAR) and kidnapping and ransom (K&R) against ships have been two of the main determinants of the market for PMSCs in the region and the frequency, severity, and locations of these attacks have varied over the recent decades. This dynamic owes in part to several measures undertaken by regional governments beyond those development efforts aimed at removing the economic basis for crimes. What follows is not intended as an exhaustive catalogue, but an attempt to highlight some of the most illustrative examples.
In coming to terms in the post-Tsunami peace agreement, Indonesia’s government and its Aceh foes removed a major source of instability that opportunistic actors from both sides of the conflict reportedly used for kidnapping and ransom operations at the mouth of the Malacca Strait. Whether attackers’ motives were to provide a revenue stream to further the insurgency, or as a manifestation of corruption, the removal of the combatants – along with the tsunami’s decimation of the local population and maritime assets used in attacks – helps explain the documented drop in numbers by the International Maritime Bureau (IMB).1819
Alternately, governments can take direct action against criminals based in their territory as well as demonstrate their willingness to crack down on internal corruption feeding such crime. PMSC expert James Bridger remarks that the Chinese government launched a campaign in the 1990s against “criminal syndicates and ‘rogue’ police and coast guard units that had been engaging in hijackings and phantom ship fraud out of Hong Kong and southern China.” While there are dangers in relying on self-reporting, an area once known as a favorite destination of hijacked vessels re-named for resale,20 Hong Kong, is now known far more for piracy of a digital kind.21
Governments can also work together, and with non-governmental organizations such as the IMB, in the fight against maritime crime. These efforts can be particularly important in preventing criminals from exploiting the seams between territorial waters and exclusive economic zones (EEZs). In 2004 Malaysia, Singapore, and Indonesia initiated an agreement known as the Trilateral Coordinated Patrol, or MALSINDO, nominally providing smarter coverage by coordinating patrol areas. Illustrating the importance of closing the maritime seams, the agreement was criticized for failing to provide cross-border pursuit permissions due to sovereignty sensitivities.22 As Lino Miani notes in The Sulu Arms Market, “territorial disputes and historical mistrust…undergirds the hesitation to enter into multilateral agreements.”23
In 2005 the three nations of the MALSINDO agreement were joined by Thailand in an attempt to bolster the initiative’s effectiveness by dedicating air assets for maritime air patrol missions with hosted liaison officers in what is known as the Eyes in the Sky (EiS) plan.24 In addition to the capability boost, EiS also marked the first time the nations allowed each other to briefly cross a short ways into their territorial airspace while executing the coordinated mission.25 In 2006 the participating countries combined the two efforts in the new Malacca Straits Patrol Network.26
Another recent example of inter-governmental cooperation helping close maritime seams is the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP). The initiative, which entered into force in 2006, establishes information-sharing and attack reporting procedures among 19 countries and an Information Sharing Centre (ISC).27
Yet Malaysia and Indonesia are notably absent from ReCAAP. In another move seen as indicative of the nations’ territorial sensitivities the pair passed on the U.S.-proposed Regional Maritime Security Initiative in 2004, which would have involved Americans in joint patrols including “special forces on high-speed boats.”28 A key difference between these efforts and the Malacca Straits Patrol Network is the involvement of nations external to Southeast Asia. While it doesn’t include Malaysia or Indonesia, ReCAAP involves nations such as Japan, China, Denmark, and the United Kingdom.
Singapore stands in contrast with the two former nations in its openness to long-term partnerships involving a foreign presence. In addition to hosting the ReCAAP’s ISC, it has invited the United States to rotate through a squadron of forward-deployed littoral combat ships, temporarily stationing them at Changi Naval Base, along with the maintenance facility the United States has long maintained in the port.29 An important indicator of the outlook for PMSCs in the coming years will therefore be the receptiveness of these straits nations to maintain or pursue regional approaches to combating maritime crime – as well as their tolerance for joint patrols or a foreign presence.30
Investing in Capacity
Whatever the merits of these regional initiatives in concept, they and individual nations’ efforts require assets to be effective. These assets in turn require investments in procurement, training, and maintenance.31 It’s what separates ReCAAP’s ISC from ASEAN’s Center for Combating Transnational Crime – first proposed in 1997 and stuck on the drawing board ever since.32 Even with the EiS add-on, MALSINDO has been criticized as a public-relations salve lacking the resources to provide comprehensive coverage and hindered by corruption.33
Tracking defense expenditures therefore serves as a similar measure of governments’ seriousness in tackling PAR. While the specifics vary, South and Southeast Asian nations have a large appetite and long-term plans for expanding their coast guards and naval forces – with submarines, patrol craft, and naval aircraft high-priority items.34 Yet the ability to field these maritime forces, and do so effectively, is constrained by limited, though rising, budgets.35 Many of these investments are aimed at protective capabilities in the event of inter-state conflict against the backdrop of China’s own spending increases, but several can also boost maritime enforcement efforts. Key nations including India, Indonesia, Malaysia, Singapore, Vietnam, Thailand, Bangladesh, and the Philippines are pursuing corvette or frigate programs, as well as various fast attack and patrol boat procurement.
Indonesia bears closer scrutiny as it faces perhaps the largest PAR threat and is expected to double defense expenditures from 2013 to 2018, after increases of 34 percent in 2011, 16 percent in 2012, and 7 percent in 2013.36 In addition to frigates, the country is also building three classes of fast attack craft that can aid maritime enforcement efforts.37 Further, Indonesia’s military (TNI) announced in March that it would increase its presence around Natuna Island, a former mainstay of piracy to the east of the current hotspots near the Riau Archipelago. While this move is publicly aimed at preventing “infiltration” and “instability” in the South China Sea – primarily to safeguard nearby oil and gas fields – the additional air force and naval assets could act in a secondary capacity to deter PAR to the west when not otherwise engaged.38
Meanwhile at the western approaches to Malacca Strait, India’s Andaman and Nicobar Islands could act as the first line of defense against a return to epidemic maritime crime in the strait. India’s Andaman and Nicobar Command (ANC) is charged with “maritime surveillance, humanitarian assistance and disaster relief, as well as suppressing gun running, narcotics smuggling, piracy, and poaching in India’s EEZ.” Since establishing the ANC in 2001, the India has continued to develop the command’s capacities, albeit at a slow pace, commissioning a new naval air station in 2012 and a new offshore patrol vessel in 2013.39
Yet in the short run, foreign partners or PMSCs may be the easiest capacity-bolstering ways for states to preserve the gains against maritime crime or reduce it further. Help from the former is forthcoming from several corners, potentially limiting the need to turn to PMSCs. India agreed to build four Offshore Patrol Vehicles (OPVs) for Myanmar’s navy, along with a “$100-million credit line to Vietnam to purchase” four patrol boats.40 The United States has recently sold former U.S. Coast Guard cutters to Bangladesh and the Philippines on favorable terms. Japan is likewise “donating” 10 patrol boats to the Philippines, reportedly by extending a $110-million line of credit,41 and Vietnam has asked to procure them as well.42 While there has been no public confirmation of a deal between Japan and Vietnam, including during last month’s bilateral agreement on enhanced maritime security ties, it’s possible that this will be announced during President Obama visit this week to Asia. On Friday the Yomiuri Shimbun cited sources stating that Japan and the U.S. will on Thursday announce moves to jointly help ASEAN countries “strengthen their maritime surveillance capabilities,” “counter piracy,” and “help member states better respond to natural disasters such as typhoons and earthquakes.”43
A final way for governments to boost their capacity directly mimics PMSCs’ at-sea protection services through what are known as vessel protection detachments (VPDs). These detachments are typically comprised of active duty service members of a nation’s military and hired out to individual shipping companies for protective duties in high risk transit areas or aboard World Food Program vessels.44 While VPDs have faced criticism on legal and efficacy grounds – for blurring the lines between sovereign services and mercenaries and for narrowing protection to individual ships – the list of countries offering VPDs has grown markedly in the past five years, albeit primarily for use along the East African coast.45
The effect of this competition on PMSCs is debatable. On one hand some shipping companies have “voiced a strong preference for VPDs” over PMSCs due to their perceived legal protections and ease of moving weapons.46 As will be discussed below, however, these legal protections have been challenged. Further, according to a 2013 study, only 35% of Dutch ships traversing high risk areas off Somalia applied for a VPD due to the “high costs, lack of flexibility of deployment, and long application schedule.”47 (Figures for Southeast Asia were not available but the business case rationale is likely analogous when available) While those Dutch companies who looked to PMSCs as an alternative did so illegally due the nation’s laws, it’s clear that VPDs will remain attractive to some who would otherwise higher PMSCs.
Legal and Policy Issues
Governments’ legal regimes and policies serve as additional factors directly impacting the prospects of PMSCs in the region on several fronts. When operating in territorial waters, the U.N. Convention on the Law of the Sea (UNCLOS) provides little clarity on the legal status or protections for PMSCs performing embarked duties or vessel-protection escorts. The innocent passage regime protects the rights of states in territorial waters, including their transiting warships, but sees armed non-state escort vessels, or private armed on-board detachments as violating the “standard practices” of the international community. No definitive case law has put the matter to rest and the increasing acceptance of armed guards on ships combating Somali-based piracy could lead to a change of acceptance elsewhere, but for the time being the waters remain murky.48
In setting national policies, Indonesia and Malaysia both publicly prohibit the use of armed shipboard PMSC detachments, with Singapore the exception – provided stringent weapons control requirements are followed.49 Carolin Liss notes, however, that despite these pronouncements PMSCs are routinely able to obtain back-channel notifications and permissions, smoothed over with “fees.”50
The varying home laws of the shipping companies also impact the environment for PMSCs in South and Southeast Asia. As mentioned, some states such as the Netherlands currently prohibit PMSCs aboard their vessels. Nonetheless, the trend is clearly towards operating states allowing their use in a regulated process as the Netherlands is the sole E.U. nation without such legislation in place, and a Dutch law that would permit PMSC use in 2015 is in the process of approval.51
Whether PMSC or VPD, Italy’s experience in the Enrica Lexie case is illustrative of the legal dangers in the region facing embarked detachments. In February 2012, two Italian Marines – part of a VPD – shot and killed a pair of Indian fishermen they believed to be pirates. The case has tested the belief that sovereign actors provide greater legal protection for counter-piracy teams in international waters and is still working its way through India’s legal system with a trial date scheduled for July.52
Regional weapons control laws also complicate the logistics of both VPDs and PMSCs. Kevin Doherty, President of Nexus Consulting, a PMSC that operates in Southeast Asia, states that in contrast with ports servicing embarked teams in the western Indian Ocean, “many Asian ports don’t allow weapons to be ‘introduced,’ and must therefore be loaded well in advance.” One outcome is the creation of so-called floating armories in international waters, which come with their own set of complications and regional baggage.
India in particular has expressed concern for these armories. Then-Indian Navy Chief of Staff DK Joshi argued at the 2013 Galle Dialogue they could fall prey to pirates and that they and PMSCs’ lack of international regulation made them susceptible to supporting criminals, traffickers, and terrorists.53 Another on-going case illustrates the complexities and difficulties for PMSCs. After the Sierra Leone-flagged vessel Seaman Guard Ohio entered Indian waters in October 2013 it was escorted to port by an Indian Coast Guard vessel.54 While the Indian government has labelled the vessel operated by U.S.-based PMSC AdvanFort, a floating armory, the company’s spokesman denies the categorization saying the ship serves as an escort vessel that was unable to dispose of its weapons prior to entering port due to the sudden nature of the detainment by the Indian Coast Guard.55
During the same Galle speech, Joshi commended neighboring Sri Lanka for providing what he viewed as a model regulatory regime of both PMSCs and the nation’s government-supported armories. PMSCs can receive licenses from the Sri Lankan Ministry of Defense to store equipment and weapons on naval bases or on floating armories run in partnership with the government – although these primarily service western Indian Ocean transits.56 Center for Naval Analyses’ Nilanthi Samarankaye says that this stringent effort to control armories through regulation is due in part to the “still fresh” memory of their use by the Liberation Tigers of Tamil Eelam (LTTE) during the Sri Lankan civil war, giving context to the regional fears that unregulated PMSCs and their support networks could have destabilizing side-effects.
Marine Resource Protection
A final area of possible mitigation for PMSCs’ prospects is in the realm of marine resource protection. As The Diplomat’s Zachary Keck notes, PMSCs “have sometimes been used by states to combat illegal fishing in their EEZs. Tensions over fishing rights in Southeast Asian waters have been high and are likely to persist so long as states continue to dispute their maritime borders in places like the South China Sea.”
Yet PMSCs are not alone in seeking to find solutions to these problems. Maritime activism expert Cdr. Chris Rawley, U.S. Navy, points out that “today, pirates, environmental activists, and more legitimate private security contractors compete for some of the same business, especially in the realm of marine wildlife protection.” For example, “Illegal shark finning remains a problem mostly driven by Asian markets that NGOs have expressed an interest in combating.”
It’s a fascinating trilateral confluence of interests which, instead of seeing states hiring PMSCs, could see NGOs outsourcing to PMSCs to achieve their aims, or alternately NGOs becoming more like PMSCs by “selling” their services to nations. In one possible scenario, in exchange for the enforcement of a nation’s territorial claims, an NGO might extract concessions on marine wildlife preservation. As documented by Rawley, some of have already moved towards PMSCs in tactics and capacity if not in business models or motivation.57 Says Keck, “Already, we have seen the Philippines use nominally civilian vessels to resupply their marines on the Second Thomas Shoal in the face of China’s blockade. Thus, there seems to be demand for more innovative solutions to the region’s growing maritime disputes.”
In providing training maritime law enforcement (MLE) to national agencies PMSCs might also run into difficulty. Heather Bacon-Shone, a U.S. Coast Guard officer with experience conducting MLE training in Southeast Asia says PMSCs would have trouble finding an adequate profit and could lack credibility if they don’t hire personnel specific to the mission. “MLE training is as much if not more about laws, legal process, case packages, and reasonable suspicion than it is about kicks, punches, and stuns,” said Bacon-Shone. “What we are really trying to teach them is about the rule of law, not about how to take each other down. It’s a real eye-opener for some that we accomplish so much compliance without having to beat people up.”
Assessing the Outlook
On the balance, the opportunities for PMSCs in South and Southeast Asia appear constrained. “The need for PMSCs is limited,” says Doherty. “The ‘high risk’ zones are only a day or two of transit, not like the 7-10 days in the [western] Indian Ocean or like a week at anchorage in West Africa.” Meanwhile geography might also help prevent a resurgence of piracy in the Strait of Malacca. As Bacon-Shone points out it’s “quite narrow and limited of a space, unlike the Gulf of Aden, which is much harder to patrol and control.” Additionally, “the prospects for PMCs in Southeast Asia may be dimming, remarks Keck, “as tensions over the South China Sea push Southeast Asian nations to develop stronger navies and coast guards, which should reduce demand from commercial entities for private security.”
Nonetheless, PMSCs will not disappear from the scene. Outside the universal need for port security, especially prevalent in the region, there are opportunities in high-value transit protection, training of VPDs and security forces, investigation services, and marine resource protection. And, as we discussed above, Keck says “it’s possible that some of the weaker maritime Southeast Asian nations could hire PMSCs to help patrol the waters they claim. This could be seen as a cheaper or at least quicker, temporary solution to their maritime woes, compared with building up their own naval and coast guard fleets.”
Furthermore, one should never discount the ability of organized crime syndicates to adjust and find new vulnerabilities to exploit. As von Hoesslin stresses, criminal organizations remain “dynamically fluid and capable of adjusting quickly to enforcement pressures.”58 Counter-terrorism too could return as a greater priority and create an opening for PMSCs. “There are a lot of really bad guys reportedly getting out of jail this year in Indonesia,” remarks Doherty, “and the line between piracy and terrorism is not going to be as clear.”
In the “Asian Century,” PMSCs will continue to play a role when threats outpace state capacity. The breadth of that role has yet to be defined.
LT Scott Cheney-Peters is a surface warfare officer in the U.S. Navy Reserve and the former editor of Surface Warfare magazine. He is the founder and vice president of the Center for International Maritime Security (CIMSEC), a graduate of Georgetown University and the U.S. Naval War College, and a member of the Truman National Security Project’s Defense Council.
The National Intelligence Council’s report Global Trends 2030: Alternative Worlds released in December 2012 revealed trends, game-changers, and potential worlds that have relevance to maritime security. Two of the four mega-trends identified were individual empowerment and diffusion of power. Two game-changers will be a governance gap (or previously suggested maritime security shadow zones) and the potential for increased conflict. It suggests one potential future of a “Non-state World” in which non-state actors take the lead in confronting global challenges. If this is the future, where the power of traditional states erodes or collapses and individuals and illicit organizations are super-empowered, private maritime security companies could be far more employed than they have been in the past decade.
The quick rise of PMSCs in the past decade was due primarily to the threat of non-state actors—in this case Somali pirates operating off the Horn of Africa. Before the shipping industry responded to changes in its Best Management Practices and states began devoting more air and surface naval platforms to the region, individuals identified an opportunity in maritime security and formed companies. Whether they are mercenaries or entrepreneurs can be left to a discussion in the classroom or comments, but the reality is that the immediate threat to shipping was real and growing by 2006.
The companies themselves were analogous to dining in a large city. In the first category are the four and five star restaurants with superior ingredients and preparation, excellent service, but very costly. The second category includes standard restaurants. The third might be diners— affordable food, quick turn-around on service, and a dependable location. The last category is the street vendors. Because they have no infrastructure other than a mobile cart and they may not carry the best ingredients, their costs are extremely low. But there is a market for each of these categories.
The same has been true of PMSCs. Some are highly rated among the industry for the quality of their security personnel (such as former SAS and Navy SEALs), high-performance gear, and company infrastructure. These are the higher priced five-star restaurants. But as the industry emerged, it seemed anyone would join in if they had a cell-phone and an email address. Even experienced, qualified operators made attempts to form their own companies. Peter Cook, founder and director of the Security Association of the Maritime Industry (SAMI) suggested that this is one reason why the number of PMSCs has dropped in recent years as the number of piracy incidents off Somalia have declined. “New businesses fail at a high rate,” he said in a recent interview. “You have operators who might not have the business background necessary to administer all the paperwork that’s involved in setting up and operating a maritime security company.”
According to Cook, the number of PMSCs peaked in 2011 when eleven new PMSCs were applying every month for membership in SAMI. While there were an estimated thirty-five to fifty companies in 2010, SAMI now has about 160 members. The industry became highly competitive and very litigious. With some twenty to twenty-five percent of overcapacity in the shipping industry, shippers are trying to find ways to reduce costs and prices. When threats by Somali pirates resulted in far higher insurance rates, shipping companies reluctantly turned to protection from armed guards. At their height in 2008 to 2009, some PMSCs could charge $5,000 per day for a four-man team; today that price is down to about $3,500. Since, to date, not ship with an armed team has been taken by pirates, that investment more than offset the potential of paying hundreds of thousands to millions of dollars in ransom.
Although some in the industry argue that incidents of piracy remain unreported or underreported in order for companies to avoid higher insurance rates, the fact is that Somali piracy has dropped precipitously. As a result, Cook notes, there has been a major consolidation of PMSCs. That is not to say they will disappear or their work will not expand. To the contrary, they will likely be more necessary in the coming decades for several reasons.
First, long-time state navies with global projection (such as European nations or even the United States) are likely to diminish in size and projection capability due to increased domestic funding demands. Second, increasing competition for scarce resources and changing demographics will lead to greater instability among underdeveloped nations, particularly those along coastlines. Third, greater need for energy will result in more off-shore oil and gas platforms (currently twenty-five percent of all oil and gas platforms are off-shore such as those in the Gulf of Guinea.) Fourth, as one presenter at a recent Naval War College symposium suggested, a greater need for food sources will result in aqua-farming areas. Simply put, less maritime security capabilities by states and increased needs for security will lead to a greater reliance on PMSCs.
What does this mean for the United State? Most importantly, the nation will have to work with the industry in ensuring it is regulated and accountable. With Somali piracy, the country – like many European countries – was opposed to the use of PMSCs or at least did not recognize them. Public officials and senior military now recognize the partial role they have played off the Horn of Africa. The industry has already begun to self-regulate internationally. Operators quickly share information with each other on the reputation of firms and which ones should be avoided. In addition, organizations like SAMI provide standards such as certifications as a vetting conduit between PMSCs and the shipping industry.
In the coming decades, maritime security will be far more complex. Absent sufficient state navies and coast guard forces, PMSCs may well be the only alternative to ensuring platforms and regions have some semblance of security.
Claude Berube teaches naval history at the United Stated Naval Academy and is the author or co-author of several books including “Maritime Private Security” and his debut novel “The Aden Effect.” In December 2013, CIMSEC published his article and interview regarding “Civilian Warriors”. He is the immediate past chair of the editorial board of U.S. Naval Institute Proceedings.
In a week-long operation in June 2010, 6 vessels were attacked and robbed over a 130-mile span while in a nearby strait armed security contractors kept watch for the pirate threat.1 The same waters have played host to a “sophisticated syndicate…deploying speedboats from motherships” with raiding parties able to “board, rob, and disembark a vessel with ﬁfteen minutes without the bridge knowing.”2 The location was not the Somali coastline or the Bab el-Mandeb, but rather 4,000 miles to the east, among the Anambas Islands and the Singapore Strait.
For the past decade or so, when people thought of private military contractors (PMCs)3 they typically thought of land-force outfits like the Academi formerly known as Blackwater and its founder Erik Prince. During this same period, the word “piracy” generally brought to mind skiffs plying the waters of the Horn of Africa and Gulf of Guinea. Others have written elsewhere on this site that some of the more interesting uses of PMCs during this timeframe have in fact been in combating (or attempting to combat) the now-diminished pirate scourge off East Africa in the form of private maritime security companies (PMSCs). Yet historically one of the greatest epicenters of piracy has been in the waters of South and Southeast Asia. If the region, already home to PMSCs operating in a variety of capacities and more than one-third of the world’s seaborne-oil trade, faces a resurgence of piracy, it may see a similar growth in PMSCs.4 This article will touch briefly on the historic precedents, preconditions encouraging the presence of PMSCs, and regional factors affecting their utility.
Precedents and Prevalence
South and Southeast Asia have long been home to private and quasi-private security arrangements. Cdr. Chris Rawley, U.S. Navy Reserve, notes that “historically, the line between privateering and piracy has been a thin one. From the 15th to the 19th century, pirates were often employed as a political tool by the Malay states to resist colonization by disrupting trade of the British and Dutch. Conversely, in the mid-1800s, the British East India Company’s private armies protected shipping in Malacca from pirates.”
The history of Singapore’s founding and growth under British rule is itself closely tied to this blurred public-private partnership. When the British arrived at Malaysian Singapore and sought local allies to protect their trade and investment, the recently displaced Temenggong, sea lord of the orang laut sea people, who themselves were noted for their marauding maritime prowess, presented himself as an acceptable solution. The Temenggongs thus served as part local officials, pressured to resettle their power base to neighboring Johor, and part maritime security contractors for hire, serving British counter-piracy operations in the early 1800s and port security for Singapore.5
In recent years, PMSCs have provided a range of services in South and Southeast Asia. According to The Diplomat’s Zachary Keck, “PMCs operating in Southeast Asia have primarily been focused on providing maritime security to clients, particularly in combating piracy. This has been especially true in narrow chokepoints like the Malacca Straits” and has included companies such as Background Asia and Counter Terrorism International (CTI).
In addition to providing these escort vessels and transit/cargo security aboard merchant vessels, PMSCs have worked extensively on port security (Gray Page, Pilgrim Elite, and the Glenn Defense Marine Asia group now know for the ‘Fat Leonard’ scandal), training and maritime hardening efforts (Trident Group), crisis response, and fisheries protection in countries’ exclusive economic zones (EEZs) (Hart).6 PMSC experts James Bridger and Claude Berube remark that in contrast with Africa, the companies in South and Southeast Asia place a greater focus on port vs transit security, due in part to the prevalence of at-berth and in-port crime, as well as training, vessel hardening, and security planning.
What conditions have given rise to this most recent cast of companies? In Carolin Liss’s 2011 book Oceans of Crime, she attributes the rise of PMSCs in South and Southeast Asia to several factors including states divesting former functions and the changed security landscape. This includes relatively more powerful transnational actors, both those interested in stability such as multinational corporations and multilateral institutions and those, such as terrorist organizations, interested in the opposite. Another element of the changed landscape facilitating PMCs’ rise is to Liss the disappearance of the Cold War struggle between the United States and Soviet Union, and the attendant opportunities for training of regional security forces.7 Further, post-Cold War terrorism heightened the focus of governments and the shipping industry on maritime security, as the threat joined piracy as a perceived regional risk to maritime assets, although it has so far failed to be nearly as impactful.8
In general PMSCs may find a market whenever the threats to maritime assets – be they from criminals, separatists, or environmental, corporate, or territorial disputes – appear to outweigh states’ capacities to safeguard those assets. The perception of corruption or distrust of the competency and fairness of states’ protective functions will similarly further the reception for external services.
How do these threat measures stack up in South and Southeast Asia? The first thing to note is the wide variance among the nations and waters of the region – as can be expected from such an diverse expanse generalities are hard to come by, so the following is a survey rather than a summation of the area.
With regards to the historical scourge of piracy, a recent report by the insurance firm Allianz made headlines for describing a 700 percent rise in actual and attempted attacks occurring in Indonesian waters in a 5-year span, from 15 in 2009 to 106 in 2013,9 although most of these were robberies at berth or at anchor.10 The International Maritime Bureau (IMB)’s April 2014 update notes that Indonesian “Pirates / robbers are normally armed with guns, knives and, or machetes…attacking vessels during the night.”11 Derived from IMB statistics, the Allianz report also notes that in 2013 South Asia’s 26 incidents and Southeast Asia’s 128 combined to far outstrip Africa’s total of 89 incidents, with only 7 of the latter considered acts of Somali piracy.12
While privation is often portrayed as a leading spur for illicit maritime activities, analyst Karsten von Hoesslin contends that groups operating in Southeast Asia exhibit “more sophistication and structural coordination, reflecting the existence of organizations that go well beyond opportunistic marauders seeking to merely compensate for economic hardship.”13 In 2012 von Hoesslin noted such syndicates active in the Philippines, conducting kidnapping and robbery (K&R) operations, with robbery and hijacking organizations plentiful in Indonesia’s Anambas Islands and Riau Islands Archipelago.14
On the other hand, IMB’s April 2014 update demonstrates the fluid nature of piracy, stating only three years later that “attacks have dropped significantly in the vicinity off Anambas / Natuna / Mangkai islands / Subi Besar / Merundung area” and “dropped substantially” in the Strait of Malacca since 2005, although no such improvement is noted for the Singapore Straits.15 The year 2005 is significant as the year that Gerakan Aceh Merdaka (GAM) separatists and previous perpetrators of maritime assaults at the entrance to the Malacca Strait signed a post-Tsunami peace accord with the Indonesian government.16
The assets most at risk in Southeast Asia are in general not the more than 60,000 tankers and container vessels that ply the waters but tugs and other small vessels with low freeboards. Nonetheless, Erek Sanchez, a maritime security contractor, notes that insurance companies now require nearly all merchant vessels to “have a security team aboard or have a proven static anti-boarding mechanism that satisfies the requirements set by the insurance company,” meaning there is plenty of business to be had.
Adding to PMSCs’ potential in the region is the lack of enthusiasm for joint patrols by multinational forces in and around Indonesian waters due to sensitivity of competing territorial claims. While understandable from a sovereignty perspective, vessels must as a result rely on the prospect of the strengthening of individual naval forces or seek additional protection.
Although the majority of attacks in the region – whether at sea, at anchor, or in port – are short-run robberies, when hijackings do occur they are often inside jobs. An interesting variant on hijackings occurs in the Sulu Sea between rival fishing companies who “attempt to deplete the maritime assets and platforms of their competitors.”17 This points to another factor that might increase the region’s potential for PMSCs – that of maritime resource competition.
According to Rawley, “Poorly managed fisheries and maritime crime in SE Asia are inextricably linked. In the 1990s, over-fishing partially caused the loss of livelihood of coastal communities that contributed to the surge in piracy near Malacca. Southeast Asian countries that cannot afford adequate coast guards might reach out to NGOs or PMCs for fisheries enforcement patrols in their territorial waters.”
Taken together, the sustained incidence of piracy and robbery, especially near Indonesian waters, along with resource competition between companies, states, and fishermen indicates that there will be a ready market for PMSCs in the region for some time to come. In Part 2 I will look at factors that might lessen the need for or hinder the operations of PMSCs in South and Southeast Asia, as well as provide a brief outlook on their future uses in the region.
LT Scott Cheney-Peters is a surface warfare officer in the U.S. Navy Reserve and the former editor of Surface Warfare magazine. He is the founder and vice president of the Center for International Maritime Security (CIMSEC), a graduate of Georgetown University and the U.S. Naval War College, and a member of the Truman National Security Project’s Defense Council.
1. Risk Intelligence, “2010 Statistics Fact File.” Marisk.dk 2. Karsten von Hoesslin, “Piracy and Armed Robbery at Sea in Southeast Asia: Organized and Fluid,” Studies in Conflict & Terrorism (2012): 35:7-8, 542-552: http://dx.doi.org/10.1080/1057610X.2012.684652 3. I use this term interchangeably with private security contractors (PSCs). 4. U.S. Energy Information Administration estimate of 2011, updated April 4th, 2013: http://www.eia.gov/todayinenergy/detail.cfm?id=10671 5. Carl A. Trocki, Prince of Pirates: The Temenggongs and the Development of Johor and Singapore, 1784-1885 (Singapore: National University of Singapore Press, 2007), 24. 6. Carolin Liss, Oceans of Crime: Maritime Piracy and Transnational Security in Southeast Asia and Bangladesh (Singapore: Institute of Southeast Asian Studies, 2011), 331. 7. Ibid, 323. 8. Ibid, 327. 9. “Safety and Shipping Review 2014,” Allianz Global Corporate & Specialty, 27: http://www.agcs.allianz.com/assets/PDFs/Reports/Shipping-Review-2014.pdf 10. Attacks in territorial waters, whether against vessels underway, at anchor, or moored, by definition under the U.N. Convention of the Law of the Sea (UNCLOS) are not considered pirate attacks and when possible I will attempt to distinguish between sea robbery and piracy, although the terms are frequently conflated. 11. International Maritime Bureau: http://www.icc-ccs.org/piracy-reporting-centre/prone-areas-and-warnings 12. Allianz, 27 13. Von Hoesslin, 541-542. 14. Ibid, 544. 15. IMB. 16. Von Hoesslin, 545. 17. Ibid, 545.