Pirates vs. Private Security: Commercial Shipping, the Montreux Document, and the Battle for the Gulf of Aden

20 Feb 2013 01:43pm Joel Christopher Coito 

The scourge of Somali piracy has imperiled the free movement of commercial shipping vessels in the Gulf of Aden, a major conduit of global commerce. A "grand armada" of international naval forces sent to safeguard commercial vessels near Somalia has been unable to stem the growth of Somali pirate syndicates capable of brazen attacks and bolstered by the promise of multimillion dollar ransoms. This Comment explores the commercial shipping industry's increasing reliance on private military and security companies (PMSCs) to secure their vessels, cargo, and crews from pirate attacks. The International Maritime Organization and other groups have vehemently opposed PMSC employment aboard commercial vessels, citing the inevitable escalation of violence and excessive use of force that are part of the PMSC modus operandi. This Comment highlights the factual underpinnings that animate these concerns and suggests that the PMSC misconduct in the conflicts in Iraq and Afghanistan provide instructive, indeed critical, lessons regarding the responsible employment of PMSC forces to combat piracy.

Against this backdrop, this Comment introduces the Montreux Document, an internationally developed code of conduct for PMSCs participating in armed conflict that recalls and affirms the international humanitarian law (IHL) obligations of these armed contractors and their employers. The Montreux Document, which can be readily integrated into PMSC operations through contractual machinery, is the foundational tool by which these private security providers can establish themselves as professional entities accountable to the rule of law. The Comment further analyzes whether the Montreux Document, though clearly relevant to armed conflict on land, is rendered inapposite in the context of counterpiracy operations. In so doing, this Comment examines the current majority position that Somali piracy is not "armed conflict" under international law, and thus not subject to the IHL obligations the Montreux Document seeks to affirm. Furthermore, the unprecedented expansion of piracy since 2008, combined with the explicit invocation of IHL by Security Council Resolution 1851, suggest that piracy may increasingly be viewed as "armed conflict" in the future. Finally, this Comment argues that even if IHL is not presently applicable to counterpiracy operations as "armed conflict," contract law provides a method of incorporating IHL, by way of the Montreux Document, into PMSC counterpiracy operations. Will the commercial shipping industry heed this call and demand that their PMSC forces operate in accordance with the Montreux Document? In order to effectively manage the conduct of the PMSCs protecting its assets and crewmembers, honor its international legal obligations, and responsibly pursue the most viable solution to the piracy epidemic in the Gulf of Aden, this Comment concludes that it must.

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