South Africa: Are Merchant Shippers Hiring Pirates To Kill Pirates?’ – The Regulation Of Private Maritime Security Companies Operating In The Gulf Of Aden

Last Updated: 17 December 2013
Article by Mark Kmelisch

The proliferation of the Private Maritime Security Company (PMSC) in the merchant maritime domain has been succeeded by substantial measures toward greater regulation, providing detailed provisions regulating the operation of PMSCs and deployment of Privately Contracted Armed Security Personnel (PCASP) on board merchant ships transiting the Gulf of Aden. However, discrepancies regarding flag state accreditation of PMSCs remain the biggest concern regarding flag state regulation and consequently the biggest threat to the regulated employment of PMSCs.


Annually, it is estimated that the Gulf of Aden is transited by approximately 22 000 ships, carrying eight per cent of the world's trade, and twelve percent of the total volume of oil transported by sea.1 Due to the Gulf of Aden's strategic importance in international sea trade, together with its geographical confines resulting in dense traffic, the region has historically been prone to piracy.2

However, from 2006 onwards pirate attacks in the Gulf of Aden 'developed from a common domestic nuisance, aimed mainly at illegal fishing vessels, into a sophisticated and well-organized industry'.3 During 2009, this led to, what could be termed the high noon of Somali piracy: 217 attacks, the hijacking of 47 ships and 867 crewmembers.4 However, on the contrary, piracy incidents in the Gulf of Aden rapidly decreased during 2012 where 75 incidents of piracy and 14 hijackings were reported.5

Although there has been a drastic decline of piracy incidents in the Gulf of Aden, the threat of Somali piracy will continue to exist as long as a number of economic and socio-political factors prevail, widely believed to have been brought about by Somalia's terminal unrest following the collapse of Siad Barre's authoritarian regime in 1991, overfishing by foreign ships and dumping of toxic waste.6 The absence of governmental oversight, together with the longest coastline in Africa and no effective coastal security has enabled Somali pirates to launch successful attacks on ships transiting one of the world's most important shipping routes.7

Somali pirates are notoriously heavily armed, utilize sophisticated technology such as satellite phones and GPS navigation systems and are aided by strategically-placed informants in London and Dubai who provide details on targeted ship, routes and cargo.8 The pirates, together with their weaponry which includes rocket-propelled grenades and Kalashnikov assault rifles, operate high-powered speedboats, frequently launched from a mother ship.9


The emergence of PMSCs in the merchant maritime domain in response to piracy has given rise to unique challenges, both operational and contractual, necessitating the need for PMSC specific regulation, opposed to the adoption of general private security regulatory measures. The extent of the current demand for PMSCs is illustrated when considering that toward the end of 2011, an estimated 50 percent of merchant ships transiting the Gulf of Aden were employing PMSCs, with an average cost of US$50 000.00 per PMSC team.10 The political and security transition influenced by the post-Cold war environment facilitated the major downsizing of armies, leaving an abundance of military professionals from the Soviet Union, the USA and Great Britain available for employment.11

The outsourcing of military services is well known, with Private Military Companies (PMCs), previously known as mercenaries, having been involved in conflicts around the world.12 Today Private Security Companies (PSCs) are employed throughout Africa and the Middle East by governments, the U.N., humanitarian NGO's and multinational corporations.13 The nature and conduct of PSCs involved in Iraq and Afghanistan gave rise to a number of questions regarding their transparency and operations, fueling the debate as to whether the provision of military services should remain within the control of governments, opposed to being vested in the profit driven private sector.14

Given the complexities arising from member states' divergent views on the topic of armed guards, the IMO's involvement in implementing guidance and recommendations has been commendable and evidently beneficial to many sectors of the maritime industry, particularly flag states and shipowners. However, guidelines and recommendations are not law, and ships, according to Article 92 of The United Nations Law of the Sea Convention (UNCLOS),15 are subject to the exclusive jurisdiction of their flag state on the high seas.16

The implementation of the IMO's interim guidance to PMSCs has assisted in the development of an international standard and certification process for PMSCs, culminating in the International Standards Organisation Publicly Available Specification 28007 (ISO/PAS 28007). The result of the ISO/PAS 28007 is a set of guidelines containing 'sector-specific recommendations which companies can implement to demonstrate that they provide PCASP on board ships' to an internationally agreed standard.17 The ISO/PAS 28007 addresses a number of components regulating the deployment of PCASP on merchant ships, including, competence; responsibilities; financial stability; insurance; licensing of firearms; vetting of security personnel; guidance on the rules for the use of force; and command and control of security personnel.

The ISO/PAS 28007, as the international standard, establishes a set of conformance criteria that PMSCs need to comply with in order to be certified. The criterion covers an extensive list from operational to head office procedures and protocols.18 Secondly, in order to establish whether the PMSC has complied with the requisite criteria, the PMSC is audited and inspected by accredited inspectors, known as Certification Bodies. However, before a Certification Body can be appointed for ISO/PAS 28007 inspections to certify compliance by PMSCs, it must attain national accreditation, which in the United Kingdom, residence to the largest number of PMSCs, is verified by the UK Accreditation Service.

The absence of a standardized and enforceable regulatory framework governing PMSCs and PCASP in the maritime domain has left a considerable part of armed maritime security regulation in the domain of flag states. Flag state law and regulation on the employment and management of PCASP varies substantially and ranges from permissive and clear rules to total prohibition of deployment of PCASP on board merchant ships. In some flag states, such as Liberia, shipowners are responsible to verify PMSC credentials. Thus shipowners of Liberian registered ships are free to contract with PMSCs of varying standards, provided that the PMSC provides the Registry with their operational procedures, which are not required to adhere to any formal standard.


Accreditation processes not only ensure that PMSCs can adequately perform the task they are contracted to perform, but further ensure that flag states are able to exercise oversight and hold PMSCs accountable. This measure of regulation is conferred upon the flag state through its ability to suspend a PMSCs operating license or prohibit a particular PMSC from operating on that flag state's ships should its PASP act unlawfully or fail to abide by national regulation, and is aided by oversight mechanisms such as master and owner reports, submitted to a registry at completion of the voyage.

Notwithstanding the implementation of substantial regulatory measures by the majority of flag states, it is suggested that registries ensure regulatory measures are enforced through the establishment of stringent national accreditation processes or the insistence that owners contract with PMSCs that are ISO/PAS 28007 accredited. The importance of stringent accreditation is emphasized when considering that ships with embarked PCASP are operating on the High seas and foreign territorial waters, great distances from their country of registration, rendering the oversight of PCASP conduct and enforcement of regulatory provisions difficult for flag states.19


1.Geib & Petrig Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (2011) 6.

2.Geib & Petrig op cit note 1 at 6-7.


4.International Chamber of Commerce – International Maritime Bureau Piracy and Armed Robbery against Ships, Annual Report 1 January to 31 December 2009 at 25.

5.International Chamber of Commerce op cit note 4 at 24.

6.Geib & Petrig op cit note 1 at 9.

7.Jill Harrelson 'Blackbeard meets Blackwater: An analysis of International Conventions that address piracy and the use of private security companies to protect the shipping industry' (2010) 25 American University International Law Review 283 at 289.

8.Theodore T. Richard 'Reconsidering the letter of marque: Utilizing private security providers against piracy' (2010) 39 Public Contract Law Journal 411 at 418.

9.Richard op cit note 8 at 419.

10Alice Priddy & Stuart Casey-Maslen 'Counter-piracy operations by private maritime security contractors: Key legal issues and challenges' (2012) 10 Journal of International Criminal Justice 839 at 841

11.Carolin Liss 'Losing control? The privatisation of anti-piracy services in Southeast Asia' (2009) 63:3 Australian Journal of International Affairs 390 at 391.



14.Carolin Liss 'Privatising anti-piracy services in strategically important waterways: Risks, challenges and benefits'. Discussion Paper E-09-003 at5, available at, accessed on 28 May 2013.

15.United Nations Convention on the Law of the Sea, 1982.

16.K Mohandas 'Armed guards on merchant ships – a necessary evil?' The Hindu Business Line 8 July 2012.

17.ISO 'Ships and Marine Technology – Guidelines for Private Maritime Security Companies (PMSC) Providing Privately Contracted Armed Security Personnel (PCASP) on Board Ships', ISO/PAS 28007, 15 December 2012.


19. Carolin Liss 'Regulating private military and security companies at sea: New developments and challenges' at 1, available at , accessed on 11 June 2013.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions