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INTRODUCTION
A. Changing Views on Private Maritime Security Companies
According to the International Law Firm Ince & Co, the piracy debate today is no longer focused on whether private maritime security companies (PMSC) should be used in the fight against maritime crime, but instead on how they can be used safely, with the emphasis on accreditation and accountability, the unique selling point for the security companies being that to date no ship with armed guards on board has been hijacked.1
On 15 February 2011 the International Chamber of Shipping (ICS) officially changed its stance to favour, for the first time, the use of armed guards. As a consequence, estimates indicate that in 2011 the percentage of ships employing armed guards rose from approximately 10% to 50%.2
On 8 March 2012, the IMO issued a note entitled "Piracy and armed robbery against ships" and called upon the Member States to analyze and discuss the handling and treatment of firearms by privately contracted armed security personnel (PCASP) under their respective national laws.5
However, there are some serious issues remaining. First of all, while it may well be that these private guards can keep ships safe from attack, there is no guarantee that they can or always will be able to do so without causing an escalation of violence, endangering innocent seafarers, involving the unlawful use of force or even causing international incidents.4
Another political issue has to do with state sovereignty. Some scholars and some states are convinced that securing the seas is a governmental function and thus has to remain the prerogative of the public authorities.
According to Azubuike,5 private ships or vessels cannot usurp governmental functions simply because they are in the high seas, but can always report or give information to government with a view to apprehending terrorists. Others however, argue that the monopoly on the use of force by public authorities does not mean that only the government can apply force, but also that the government can decide who can exercise it and under what conditions.6
This raises the question whether it is legally possible for States to use Private Maritime Security Companies (PMSCs) on board commercial ships.
B. Objective
This paper looks at the problem of combating international crime at sea,...