Since 2012 the CGPCS agenda was increasingly occupied by the question whether the High Risk Area (HRA) of the Best Management Practices (BMP) should be revised. Why did the high risk area become so controversial? What’s at stake in the debate? What can be learned from this debate? A new lessons learned paper sets out to address these issues.
The paper offers a detailed reconstruction of the making of the BMP and the high risk area (HRA). The BMP were developed in a political and legal greyzone, the HRA became linked to various other areas, such as the Lloyds listed areas. The BMP and the HRA were increasingly legalized, through endorsements, but also references in national regulations and legislation. Once piracy declined and unmaking the HRA became the core question this ambiguous status became problematic. The HRA debate in consequence concerned space (where is a high risk? can sovereign territorial waters be included?), authority (who is to evaluate if their is a risk or not?) and expertise (how can one decide whether the risk is high or low?). These larger political questions came to the fore, once piracy attacks declined. The debate points us to the limits of the informal, experimental and pragmatic approach of counter-piracy. Many larger political questions were only bracketed. Yet, the CGPCS also succeed in finding a solution to the debate, as it was announced in October.
Ten core lessons can be distilled from the HRA controversy. These pertain in particular to the question of how to design the prospective BMP5 as well as set up other risk zones in the future. They are, however, also lessons that point to the limits of purely pragmatic international policymaking processes.
The HRA was introduced as a quick fix. The intent was to focus attention, give guidance to the shipping industry and coordinate international activities. The primary attention went into the question of how compliance with the BMP could be strengthened. When the notion was introduced no one anticipated the quick success of the international community and that piracy attacks would simply stop. The process of making the BMP was not documented, and hence the question of how they could be ‘unmade’ remained unclear. No mechanism was put in place for how to revise the area if needed.
Lesson 1: Making a risk zone requires awareness for the un-intended consequences and the establishment of a review mechanism from the onset.
Part of the HRA controversy was the problem of conflating different counter-piracy zones, namely the zones established by the insurance industry for mitigating financial risks, by the IBF to negotiate labour contracts, by the shipping industry for strengthening self-protective measures and by the states to coordinate their naval protection and patrol program. The relations between these different zones was unclear and never officially clarified.
Lesson 2: In establishing a zone of exception ensure accuracy in naming, by clearly documenting who establishes what zone for which purpose.
To label the special zone “high risk area” was a misnomer. While the concept of “high risk” appeared self-evident to all involved in counter-piracy when it was introduced, it is not. What precisely constitutes ‘risk’ and how it can be measured is contested, and furthermore, whether a risk is “high” or “low” is a matter of subjective interpretation. Without clearly established criteria when a risk is “high” the notion has the potential to cause controversy.
Lesson 3: Labeling a zone of exception is a crucial issue and ambiguous notions such as “high” are better avoided.
The notion of risk and ambiguous references such as “pirate activity” moreover raise the question of who has the authority to determine what kind of risk exists in an area. These questions were left open in establishing the HRA. The so-called threat assessments were not in line with the state of the art of research on piracy as well as risk assessment methodology.
Lesson 4: Zones of exception should be defined and reviewed by establishing objective criteria.
Lesson 5: A zone of exception requires to identify which agencies have the authority to carry out assessments.
Lesson 6: Assessment methodologies should draw on the state of research.
One factor hindering the revisions of the HRA was the reproduction of the material by which the BMP were disseminated. The global distribution of the BMP booklet and the navigation charts contributed to higher BMP compliance. This, however, also implied that these materials cannot be easily replaced.
Lesson 7: In disseminating information about a zone of exclusion, keep reversibility and reproduction costs in mind.
The way the HRA was introduced it includes the exclusive economic zones as well as the territorial waters of a range of littoral states. Labelling territorial waters as piracy risk zones is firstly questionable in legal terms because, under UNCLOS para 101, the concept of piracy refers to crimes outside of territorial waters. Secondly, even if a zone of exclusion is introduced only for the purpose of industry self-regulation, it raises concerns over state sovereignty, and in consequence states must have a say in the establishment and/or revision of such zones.
Lesson 8: If industry actors introduce zones of exception for self-regulative purposes, they must seek the dialogue with states in appropriate international organizations such as the International Maritime Organization.
Lesson 9: States should closely monitor if and when industry actors aim at establishing zones of exception and seek the dialogue with these actors through established and appropriate channels.
The BMP were introduced as a kit of advice and a self-regulative device. There was no intention to give them legal status. The HRA however achieved a semi-legal state through references to the BMP and the HRA in domestic regulations and counter-piracy legislations. This does not only make revisions more complicated, but also implies that the industry cannot revise the area without consulting legislators.
Lesson 10: In establishing zones of exception exercise particular caution about legal repercussions and whether and how a zone becomes embedded in national and international legislation.