Who governs Norwegian maritime security? Public facilitation of private security in a fragmented security environment

Abstract

This article analyses the Norwegian governance of maritime security that surrounds the accommodation of armed private security provision on board Norwegian-registered ships, and questions the role of Norwegian public authorities. In 2011, the Norwegian government introduced a new legal framework that explicitly permitted the use of armed private security for ships transiting piracy-prone waters. Through an in-depth examination of the agenda setting, implementation and evaluation phases of the new policy, the article analyses the roles and responsibilities performed by the involved actors. Comparing the empirical case study of Norway with the governance literature, it is argued that public actors neither ‘steer’ nor ‘row’, rather they function as facilitators in and for a governance arrangement that is essentially industry-driven in character. This facilitating role encompasses elements of both acceptance and contribution, where a low degree of public control was accepted in return for a flexible and low-cost/risk scheme against piracy. As such, the facilitating role does not support the view that contemporary security governance is a zero-sum game between public and private actors. Instead, the facilitating capacities of public authorities are seen as their competitive advantage in an increasingly fragmented security environment. This article contends that although maritime governance inhabits peculiarities related to both the shipping industry’s global competitive character and the maritime domain’s geographical distance from public authorities, the Norwegian governance of maritime security is nevertheless deeply embedded in global governance structures. This underscores the need to address the maritime domain as constitutive of global politics and, in turn, treat the ‘facilitating argument’ developed here as potentially relevant for the broader governance literature.

Keywords

Global shipping governance maritime security Norwegian shipping private security public/private distinction

Introduction

The image of private security contractors protecting Norwegian-registered commercial ships against non-state actor violence in the Gulf of Aden does not sit easily with the idea of security provision as a definitional activity of sovereign statehood. This Weberian idea(l) has, however, rarely existed in an uncompromised fashion outside of books, whereas the act of private security provision has a long and multifaceted empirical track record. This article seeks to further our knowledge of the contemporary role of the state as a security provider through an in-depth examination of Norwegian maritime security governance in the face of the upsurge in piracy in the Gulf of Aden from 2007 onwards. Like multiple other shipping nations (Van Hespen, 2014), Norway took steps to clarify and explicitly authorise the use of private security on board its registered fleet at the height of the piracy surge. The process culminated in a new legal framework that entered into force on 1 June 2011 authorising armed private maritime security.

The main aim of this article, therefore, is to reflect upon the roles performed by the various stakeholders within the Norwegian governance arrangement, and to link this case study to contemporary debates on governance with a specific eye to the changing role of the state in security provision. Drawing upon works that consider private security solutions to be an important indicator of evolving state/security relations, this article examines how new roles and responsibilities are being cast among the actors in the Norwegian governance of maritime security. The task is important for multiple reasons, most notably for the purpose of grounding theoretical reflections on the evolving role of the state as a security provider in detailed empirics. The article therefore starts by outlining theoretically why the contemporary governance of security involves a multitude of actors cutting across the public/private and local/global divisions. It then examines how this fragmentation manifests itself in practice, which actors are involved, through which means, and with which consequences. Comparing the Norwegian case with the vast governance literature, the article argues that the involved public actors are neither rowing nor steering; rather, they are facilitating a governance arrangement through their convening capacities and regulatory infrastructures.

Furthermore, the article examines an issue area that is rarely considered relevant for the purposes of security studies, or the international relations discipline more broadly, namely the maritime sector and its associated industry actors. This article challenges implicitly held perceptions of the sea, of the maritime domain and of global shipping in particular, as a separate sphere different from territorial politics. Although the maritime domain inhabits peculiarities that relate to its global structure characterised by extreme interconnectedness and competitiveness, in turn positioning maritime actors with a high degree of independence and autonomy in the political-economic landscape, it is simultaneously deeply embedded in contemporary governance structures that cut across the sea/land divide.

This article makes use of publicly available documents from public consultations initiated by the Norwegian Ministry of Trade and Industries and the Ministry of Justice in March 2011¹ and July 2012,² and background interviews with key stakeholders in Oslo in August 2013 (not directly quoted in text).³

Case and concepts

Norwegian shipping and global shipping: two sides of the same coin

In the maritime domain, unusual actors thrive. From the largest flag states of Panama and Liberia to chief nationalities of ownership such as Greece and Japan, global shipping rankings look remarkably different from a range of other business or economic performance statistics. In this domain, Norway has a long history as an important maritime nation due to both its high percentage of owned deadweight tonnage and the diverse shipping sector’s important position in the national economy (Harlaftis and Theotokas, 2010: 17). Situated in the present top ten list of the world’s largest owned fleets measured in terms of both the ships owed by nationals and the fleet’s gross deadweight tonnage (United Nations Conference on Trade and Development (UNCTAD), 2013, 2014), the country makes an interesting and relevant case study of the dynamics of maritime security. As of 1 January 2014, the Norwegian-owned fleet of ships over 100 feet operating outside national territorial waters was registered in three categories: 1) the Norwegian Ship Register (NOR) with 219 ships, 2) the Norwegian International Ship Register (NIS)⁴ with 540 ships, and 3) 1021 ships registered in foreign open registries (Norwegian Shipowners’ Association, 2014). The country’s shipping industry has gone through significant reforms, mirroring the globalisation of shipping more broadly, and it has followed the global patterns of expansion, decline and restructuring (see Tenold, 2012). These elements serve the purpose of placing the Norwegian fleet firmly within the global shipping industry as a relevant player, acknowledging both the fleet’s size and the consequential strong position in the national political-economic landscape, and its simultaneous embeddedness in the global and competitive structures of global shipping. The Norwegian case study addressed in this article is therefore assumed to be unique in its empirical details, but nevertheless inseparable from the broader macro structures of global shipping.

Highlighting the relevance of maritime affairs for the study of contemporary governance dynamics is an implicit aim underlying this article. The maritime domain in general, and global shipping in particular, are still invisible fields in the study of global politics. Despite the industry’s key role in facilitating global trade, extreme interdependence and global connectedness, only very rarely do maritime affairs – beyond that of territorial disputes – figure as remotely relevant or interesting for the broader International Relations (IR) audience.⁵ Placing maritime affairs (back) into the study of global politics is therefore an aim in itself. It is, however, necessary to comment upon the critical issue of the extent to which maritime governance is representative of broader governance trends. This is a question that follows the argument that the governance of maritime affairs is distinct from land-based governance because of inherent peculiarities. This refers, among other things, to the vast geographical distance between public authority and maritime activities, and the consequential tradition of the shipping industry of maintaining a more autonomous relationship vis-à-vis public authorities when compared to other commercial sectors (see Grewal, 2008). This point is particularly salient taken the already mentioned important position of the Norwegian shipping industry in the national Norwegian economy (see Harlaftis and Theotokas, 2010; Tenold, 2012). The regulation of global shipping is furthermore overtly complex due to the interplay between different national and international legal regimes as a result of the industry’s geographical scope and mobile nature. The extent to which national public authorities are actually capable of ensuring comprehensive regulation is therefore limited when compared to some nationally anchored, land-based industries.

These concerns are relevant, and do carry some implications for the conclusions that will be made, but they nevertheless do not distort the overall understanding of maritime affairs as being intimately bound to broader political dynamics. From a historical point of view, the governance of maritime security has a long history of being aligned with evolving state-security relations (Colás and Mabee, 2010). As argued by Mabee (2009), both pre-19th-century piracy and privateering and contemporary usage of private security contractors need to be understood with an eye to the demands of surrounding economic, political and social macro structures, which make little differentiation between land-based and sea-based activities. This argument can be extended to the contemporary globalised economic landscape, where the overtly complex regulatory landscape of global shipping is hardly a unique feature. Generally speaking, transnational corporations are by definition subject to different jurisdictions due to their cross-border activities. Overlapping legal regimes and jurisdictions – or the straightforward lack thereof – often challenges comprehensive regulation. As such, instead of approaching the regulatory challenges of the comparatively autonomous maritime domain as a unique problem, the article argues that the maritime sector not only replicates, but also actually amplifies contemporary governance dynamics. As will be shown in the analysis of the Norwegian governance arrangement surrounding the resort to private maritime security, this amplification concerns the vast share of actors involved across public/private and global/local divides, the degree of private sector autonomy and responsibilities in the arrangement, and the mode of regulation.

The contemporary governance of security

In order to analyse the Norwegian governance arrangement, it is necessary to elaborate on what characterises contemporary governance with a specific eye to the governance of security. According to a range of scholars across the disciplines of IR, sociology, law and criminology, horizontal actor networks have gradually replaced vertical hierarchical social structures as a means for governing societal affairs, including security (Avant et al., 2010; Dupont, 2004). Within the new structures of governance, a vast array of governors encompassing public authorities, individuals, corporations, organisations and the like, ‘create issues, set agendas, establish and implement rules or programs, and evaluate and/or adjudicate outcomes’ (Avant et al., 2010: 2). This fragmentation of roles and responsibilities in governing is linked to fundamental societal changes associated with late modernity, most importantly increasing global interconnectedness, and (neoliberal) efforts by states to scale down their activities. The former change is associated with the collapse of barriers that once corseted ‘institutions, organisations, communities and individuals inside limited roles and responsibilities’ (Dupont, 2004: 77). The latter change is associated with the state loosening regulations of economic and social activities while simultaneously scaling back in some areas and encouraging private actors to finance and provide an array of services (Avant et al., 2010: 5).

With reference to the field of security, these changes have been described as a ‘quiet revolution’ and noticed by criminologists since the early 1980s (Stenning and Shearing, 1980; Shearing and Stenning, 1981). According to Abrahamsen and Williams (2011), the security domain was arguably more resistant to the neoliberal ethos when compared to other public sectors, but has ‘caught up’ and appears today as significantly transformed (p. 61). The contemporary security environment is characterised by its fragmentation, also referred to as ‘pluralisation’ or ‘hybridity’ (Dupont, 2004). This refers most notably to the multitude of actors involved in both formulating security demands (‘what requires protection and through which means’) and providing security supplies (see Bayley and Shearing, 2001). Moreover, the increasing reliance on private security providers diminishes the importance of national boundaries, since security issues, security providers and security buyers are not necessarily geographically linked. Security is treated today as an inherently global commodity, which can be traded across spaces. Indeed, the world’s largest private security providers such as G4S and Securitas operate so to say in all corners of the world, with local branch offices linked to their British-registered headquarters. Hence, the old idea(l) of security being a priori structured along public/private and local/global divisions come up short in the contemporary security environment.

In order to analyse how security is organised, hereunder provided and regulated, researchers have been searching for concepts and tools that facilitate the characteristics sketched out above. Some authors approach the contemporary security environment through network analyses (Crawford, 2006; Krahmann, 2005), others prefer the term ‘assemblage’ (Abrahamsen and Williams, 2011; Schouten, 2014), both concepts carrying strong references to a fragmented form of organisation. The concept of governance, which is the preferred term for this article’s analysis, has become a keyword in the social science literature, having as its common denominator the portrayal of governing processes as a joint task between constellations of various actors across the public/private divides, and, with reference to ‘multi-level governance’, across the global/local divides. There is, however, a great deal of disagreement on the concepts’ status as a theoretical/analytical tool. Governance is seen as cause and effect, explanandum and explanans, theory and practice, and therefore means vastly different things when applied in research (see Hofferberth, 2015). The concept has maintained a dominant state-centric bias by often referring to a specific type of organisational structure where the state occupies the main seat. According to this interpretation, governance refers to the pattern of rule arising when the state is relying upon ‘others’, that is, non-state actors (Bevir, 2009; Offe, 2009). A common related claim, then, is that governance essentially refers to the observed shift whereby the state’s main occupation has shifted from that of ‘rowing the boat’ to ‘steering the boat’, by authorising and directing activities performed by others (Bell and Hindmoor, 2009).⁶ Others go further in tying down the concept, and link governance not only to a specific type of organisation structure, but also add a normative twist by insisting on ‘minimal normativity’ and/or ‘common good orientation’ as part of the very definition of governance (see e.g. Börzel et al., 2008; Risse, 2011).

Although the rowing/steering metaphors certainly carry some analytical value, and although a ‘common good orientation’ can be a useful tool to investigate an arrangement’s adherence to desired values and norms, they nevertheless block for broader debates about the constantly evolving governing capacities of both public and private actors in a range of social affairs when considered to be part and parcel of the very conceptualisation of governance. The former give priority to the state as the locomotive in and of the arrangement. Together with the latter’s inclusion of normative claims in the conceptualisation of governance; for example, regarding the proper role and responsibility of the state vis-à-vis non-state actors, these understandings allow the relationship between public and private actors within an arrangement to constitute the lens for assessing the question ‘are things how they ought to be?’ This turns the concept of governance into a theoretical-normative framework for assessing an arrangement’s adherence to an ideal type constructed around a state-bias, which makes the concept unfit for addressing the constantly evolving structures of societal-political organisation.

To avoid the above, governance is approached as a meta-concept, encompassing sub-concepts of modes of coordinating actions. This means, for instance, that (state) government is included in the governance concept as one out of many modes. This understanding of governance, drawing upon works from criminologists such as Johnston (2006) and Wood and Dupont (2006), is in itself unable to say something up front abut ‘who’ governs, but aims to provide a useful starting point for discussing ‘how things are’ (as opposed to ‘are things how they ought to be?’). Acknowledging that the state does play an important role as a crucial site of governance should not lead either to the theoretical assumption that this is always so, or to the normative assumption that this ought to be so, as argued by Johnston (2006). Governance, therefore, is in this article understood squarely as an analytical–conceptual tool. It is conceptualised as the process of coordinating actions, and, for the purposes of examining the case in question, this is narrowed down to the coordination of actions across three relevant phases of the policy cycle: 1) agenda setting, understood as the definition of governing objectives, 2) implementation, understood as the processes by which these objectives are achieved, and 3) evaluation, referring to the ability to assess the provision of the defined governing objectives (drawn in part on Bevir, 2009: 153–154). Such an empirical-analytical understanding of governance does in itself contain no explicit theoretical claims, but helps to organise and structure the analysis. This is done by directing attention towards the capacities necessary for ‘defining’ and ‘achieving’ governing objectives, and the related question of which actors are performing these capacities. The Norwegian governance of maritime security therefore refers to the coordinated action among stakeholders in these three phases that culminated in the new legal framework that explicitly authorised the usage of armed private security on 1 July 2011. It is to this coordinated action that the article now turns.

Norwegian maritime security governance

In the period that stretched from 2007 to 2011, the usage of, and attitudes towards, private security came to the forefront in the maritime sector. Prior to the piracy upsurge in the Gulf of Aden, the general view held by the global shipping community on private security was largely negative. Private security, it was argued, would blur established public/private responsibilities dictating ‘who does what at sea’, understood as holding the state responsible for sea-borne security provision (Berube and Cullen, 2012: 4). However, attitude changes were about to sweep across the sector in parallel with the growth of attempted and successful piracy attacks in the Gulf of Aden (International Maritime Bureau, 2012). As a consequence, an increasing number of individual shipowners started employing armed private security personnel on board transits through piracy-infested areas and/or lobbied their national governments for authorising private security. The change in practice trickled upwards to industry associations and governments, and the heavyweight industry stakeholder International Chamber of Shipping (ICS) stated publicly in February 2011 for the first time that arming ships through private security companies was an understandable move in the face of growing piracy risks (Polemis, 2011, quoted in Dutton, 2013: 129–130). In the meantime, a range of national governments initiated processes towards explicitly laying the ground for the usage of private security, whereas others implicitly tolerated the practice without offering specific regulation (see Van Hespen, 2014).

Agenda setting: defining governing objectives

The Norwegian governance arrangement was fuelled by the above-mentioned changes. As noted by Berndtsson and Østensen (2015), using private maritime security solutions before 2011 was not explicitly illegal in Norway, but the issue area was subject to large amounts of uncertainties based on diverging interpretations of the existing legal framework (p. 143). Key Norwegian stakeholders, such as the Norwegian Shipowners’ Association (NRF), were prior to 2010 negative in their views on armed private maritime security.

The NRF came to revise its earlier negative position on private security throughout the autumn of 2010, and expressed understanding for individual shipowners hiring armed private security guards (Norwegian Shipowners’ Association, Public Consultation (PC), 2011). Representing the large and powerful assembly of Norwegian shipowners, the shift in position by the NRF was an important move in terms of being able to raise the issue on the political agenda in a concerted manner, and was undertaken in advance of the position shift at the ICS. Another important early mover was the Norwegian Shipowners’ Mutual War Risk Insurance Association (DNK), the most important provider of war-risk insurance to Norwegian shipping companies. Nearly all Norwegian-registered ships are insured by the DNK, and the DNK also offers insurance to Norwegian-owned ships registered in foreign ship registries (DNK web). Due to the latter practice, the DNK already had experience with offering advice to clients hiring armed private security guards (Ministry of Trade and Industries, PC, 2011). Therefore, when the issue gradually became relevant in Norway, the DNK was in a position to offer advice to its clients on the selection of security companies and insurance implications, a stereotypical example of how international customs and practices travel across borders in sectors and issue areas that are essentially global in character. In cooperation with the NRF and the Norwegian Maritime Officers’ Association, on 23 March 2011 the DNK published for its members the world’s first industry guidelines regarding the usage of armed maritime private security companies. According to the text, the aim of the guidelines was to ‘assist [the DNK’s] Members in their vetting process of Private Security Companies once the decision has been made to employ a PSC’ (Den Norske Krigsforsikring for Skib (DNK), 2011). It contains, among other things, minimum standards for selection, insurance requirements and guidelines regarding weapons and their usage.

The roles of the DNK and the broader sector of global insurers and underwriters stretch, however, well beyond their involvement in being a first mover in the drafting of industry guidelines. The Gulf of Aden was designated a ‘war-risk area’ by the DNK in 2008, following the recommendation from the Lloyd’s Joint War Committee (JWC), which in turned inferred higher insurance premiums for ships transiting the area (Brown, 2012). The DNK followed a well-documented global trend (Brown, 2012; Cullen, 2012; Lobo-Guerrero, 2008, 2012; Miller, 2009) of offering reductions in insurance premiums for ships that hired armed private security for protection in 2013 (Mellingen, DNK, email consultation, 2015). Such a practice gives insurance providers a great deal of influence over the conduct of their clients, and can be said to have constituted an important push factor in raising the issue area on the political agenda in the first place.

On 4 March 2011, after strong pressure from Norwegian shipowners and shipowners’ associations, and in a period during which Norwegian shipowners had also started to utilise armed private security amidst the unclear regulatory conditions, the Ministry of Trade and Industries and the Ministry of Justice initiated a public consultation (PC) on the issue of regulating armed private security on board Norwegian-registered ships through amendments to existing legislation (Bergen Shipowners’ Association, PC, 2011; Ministry of Trade and Industries, PC, 2011). The Ministry of Trade and Industries positioned itself in favour of the move, noting that ‘no ship has been hijacked with armed personnel on board’ (Ministry of Trade and Industries, PC, 2011). The public consultation included more than 50 Norwegian stakeholders (see note 1), who were invited to comment upon the Ministry’s draft outline of amendments to existing arms regulations and ship security regulations. In sum, the amendments would allow Norwegian-registered ships the option to apply for a six-month general arms permit if sailing to or from a high-risk area as laid down by the Norwegian Maritime Authority (NMA). The draft framework offered by the Ministry and the industry guidance provided by the DNK, the NRF and the Norwegian Maritime Officers’ Association are remarkably similar in character, advocating an industry-driven approach to security provision where industry actors are offered the bulk of responsibilities vis-à-vis selection and regulation of the chosen private security provider. Identical formulations – for example, with reference to the storage of weapons, where both make reference to the rather ambiguous demand to ensure ‘appropriate storage’ – indicate a strong synergy between the two texts.

The agenda-setting phase of the governance arrangement was therefore heavily influenced by demands from individual ship owners and their industry associations, in turn driven by both safety concerns for staff and economic incentives arising from the competitive challenge from other companies’ usage of private security, exaggerated by the international insurance industry’s reduced insurance premiums for transits carrying armed security guards. The Ministry of Trade and Industries and the Ministry of Justice responded to inquiries issued from the maritime industry (see Bergen Shipowners’ Association, PC, 2011; Norwegian Shipowners’ Association (NFR), PC, 2011), the insurance industry (the Norwegian Shipowners’ Mutual War Risk Insurance Association, PC, 2011), and the framework outlined corresponded to wishes expressed in the industry guidelines provided by the DNK, the NRF and the Norwegian Maritime Officers’ Association (DNK, 2011).

Implementation: achieving governing objectives

On 29 June 2011, on the basis of the extensive consultation, the Norwegian government announced a new framework on the use of armed guards through amendments to the Arms Regulation 904/2009 (Lovdata, 2011a) and the Ship Security Regulation 972/2004 (Lovdata, 2011b). The framework was announced as provisional and subject to evaluation after a one-year pilot phase. In statements to national media, the then-Minister of Trade and Industries, Trond Giske, pointed to the urgent and escalating situation of the piracy threat, and went to considerable lengths in justifying the move to private arms on the basis of the inadequacy of existing options and the necessity of contributing to a safe working environment for seafarers. The minister also pointed to similar developments in other seafaring nations, and specifically stated that ‘Norway cannot be the only country not allowing for armed guards’ (NRK, 2011, author’s translation). The provisional changes entered into force on 1 July 2011, and allow shipping companies to apply for a six-month general permission to temporarily make use of armed guards when sailing in, to or from a high-risk area, as established by the NMA. The applicant may furthermore apply to make use of weapons otherwise forbidden, such as fully automatic firearms or semi-automatic firearms (Lovdata, 2011a).

Comparing the provisional law amendments of 1 July 2011 with the consultation responses from March and April the same year offers insight on the views of private security from the different stakeholders involved. The strongest objections against the proposed law amendments had to do with the fear of escalating violence and making seafaring more dangerous (Norwegian Engineering Association, PC, 2011; Norwegian United Seamen’s Union, PC, 2011), that the exemptions from the arms regulation went too far and/or that they were not followed up with adequate public regulation and control mechanisms (KRIPOS, PC, 2011; Ministry of Defense, PC, 2011; Police Directorate, PC, 2011), that ship masters were neither adequately equipped nor trained to be in a command position regarding the use of armed force (University of Oslo – Center for Human Rights, PC, 2011), that the amendments could implicate international obligations and invoke state responsibility (KRIPOS, PC, 2011; Ministry of Defence, PC, 2011; Ministry of Foreign Affairs, PC, 2011), that the requirements regarding armed guards and storage of weapons were unspecified and/or lax (Coastal Service, PC, 2011; KRIPOS, PC, 2011; Ministry of Defence, PC, 2011; Police Directorate, PC, 2011), and that the decision about whether to use armed guards lies with the shipowner, leaving no say for the master of the ship who would bear the command responsibility (Norwegian Seafarers’ Union/Norwegian Maritime Officers’ Association, PC, 2011).

When read together, important changes can be observed in the final law-amendments which entered into force on 1 July 2011, compared to the suggested law-amendment as put forward in the consultation of 4 March 2011. The most notable of these relate to clarification of command responsibility, stricter demands on weapon storage, a duty to report to the NMA and to KRIPOS in case of personal injury and/or death following the usage of weapons, minimum requirements for guards and company selected, and a clarification of the use of weapons as a matter of very last resort after all other alternative options have been deemed insufficient. Based on the references to the various objections referred to above, it appears that objections stemming from the consultation that centred on the need for clarification, reformulations and specifications were followed up and implemented in the final version of 1 July 2011. However, more serious objections such as the call for stronger public regulation and control, as voiced by KRIPOS, the Police Directorate and the Ministry of Defence, were not reflected in the final version of the amendments. Even though the final law amendments go further in specifying procedures relevant for shipping companies that choose to hire private security companies, §22 (4) of the Ship Security Regulations (Lovdata, 2011b) makes it clear that the procedures are not subject to verification and approval, which underscores that it is the shipping company who is responsible for the establishing of adequate procedures for the usage of armed private security without interference from public authorities.

Similarly, although shipowners are requested to report to the NMA about their choice of private security companies, and to document that the individual guards are sufficiently trained, the reporting is deemed necessary for orientation purposes according to §20(2) of the Ship Security Regulations (Lovdata, 2011b), not for regulative purposes. The NMA, according to §20(4) of the Ship Security Regulations (Lovdata, 2011b), can deny the usage of a specific private security company, if the NMA ‘receives information that a named security company is not considered suitable for use’. However, this regulatory function is dependent upon the looming ‘if’: there are few mechanisms in place to ensure that the NMA receives the information necessary to make such qualified decisions. As stated by Berndtsson and Østensen (2015), ‘shipping companies are not required to report their experiences after the deployment of PCASP [Privately Contracted Armed Security Personnel], unless specific violent incidents have taken place’ (p. 147). This makes the regulatory capacities of the NMA dependent upon cooperation with, and voluntary inputs from, the actors it is set to regulate.

Although less explicit, the implementation phase was also industry-driven in character, reflecting and corresponding to wishes expressed by shipowners and shipowners’ associations, and preferences by the insurance industry in their respective consultation replies from March and April 2011. Although important changes to the initial proposal were made to accommodate concerns as expressed by actors such as KRIPOS, the adopted law-amendments pay tribute to the demands of the shipping and insurance industries by granting them great autonomy in both the selection and regulation of private security providers. This is not to say, however, that Norwegian public authorities did not see their own interests represented in the final governance framework. Successfully, the state was released from claims of responsibility for sea-security and corresponding costs, and the task of both performing and paying for security-related tasks was delegated to the private security industry and the private maritime industry respectively. The Ministry of Trade and Industries specifically stated in the consultation letter that:

For the authorities, the administrative and economic consequences [of private armed security] will be absolutely marginal. Correctly, the Norwegian Maritime Authority will be receiving reports of incidents where weapons have been used, but the follow-up of this reporting requires no resources of significance. (Ministry of Trade and Industries, PC, 2011, author’s translation)

The Norwegian authorities, representing a leading maritime nation (Harlaftis and Theotokas, 2010), are also well aware of the negative effects of shipowners ‘flagging out’ to countries of with more lenient regulatory frameworks, so-called ‘flags of convenience’ (FOCs) (see Grewal, 2008). The cost-aspects of allowing and providing a regulative framework for private maritime security therefore extends well beyond what is sketched out above by the Ministry of Trade and Industries – it also relates to political/economic impediments of continuing to be a relevant and desirable flag-state through various means. Allowing, and providing, an industry-friendly regulative framework for the usage of armed private security can be considered one such means, underscored by former-minister Giske’s above-mentioned statement that ‘Norway cannot be the only country not allowing for armed guards’ (NRK, 2011, author’s translation). Nevertheless, the scenario of private security having emerged as a politically acceptable alternative was an industry-driven process, in turn reflecting trends in the global shipping and insurance industries.

Evaluation: assessing the provision of governing objectives

In August 2012, the Ministry of Justice and the Ministry of Trade and Industries issued another public consultation to evaluate the provisional law amendments that entered into force on 1 July 2011 (see endnote 2). The feedback from the second consultation was generally supportive of the changes, and previously sceptical actors either saw nothing to comment upon (Ministry of Defence, PC, 2012; Ministry of Foreign Affairs, PC, 2012) or had come to acknowledge that the use of private armed security did contribute to a feeling of safety for seafarers (Norwegian Engineering Association, PC, 2012). The strongest critic was the Norwegian Red Cross, which maintained that the knowledge about the use of force on the part of shipmasters and security guards alike was still insufficient (Norwegian Red Cross, PC, 2012). However, the provisional law amendments were made permanent in early 2013, and the then-Minister of Trade and Industries, Trond Giske, spoke publicly of good experiences overall and a sharp decline in piracy attacks, and stated that the usage of armed private guards had not escalated violence in the Gulf of Aden (Aftenposten, 2013).

The decision to make the provisional law amendments permanent was a governmental decision on the basis of the second public consultation. It should be mentioned that the NMA has the power to revise what counts as a high-risk area to which the law applies, in theory allowing for the possibility that the amendments are made ineffective at any time. However, the overall favourable attitude observed among the included stakeholders in the evaluative consultation and the persistently high number of armed transits through the Gulf of Aden by Norwegian-registered ships – approximately 400 transits per year since July 2011 as reported by the NMA (Fossan, NMA, email consultation, 2014) – indicates that private maritime security is here to stay. The government’s decision to make the provisional law amendments permanent hence contributed to the normalisation and gradual institutionalisation of armed security as a natural component in and of the governance of maritime security.

Public facilitation of private maritime security

On the basis of the governance process that led to the permanent amendments made to the Arms Regulation 904/2009 (Lovdata, 2011a) and the Ship Security Regulation 972/2004 (Lovdata, 2011b), this article argues that the verb that most accurately describes the Norwegian authorities’ role in the governance arrangement is that of facilitating. This stands in contrast to the better known verbs associated with the terminology of governance, where the state is argued to be steering rather than rowing, by authorising and directing activities (Bell and Hindmoor, 2009). Yet, conceptually, steering implies strong agenda-setting capacities, a sense of command and certainty of direction, capacities which were not undertaken by the public actors involved in the arrangement under analysis. Facilitation implies the explicit or implicit assistance in carrying an activity forward; either by inaction, by allowing for action, or by helping the activities run more smoothly and effectively. Facilitation thus comes close to what Jessop (2002) has described as the reordering of public actors’ general function towards that of being responsible for ‘organizing the self-organisation of social forces’ (p. 199). In the governance arrangement outlined above, the Ministry of Trade and Industries and the Ministry of Justice made use of their convening capacities and regulatory infrastructure, respectively, in the facilitation of an essentially industry-driven process towards the authorisation of private maritime security. In two out of three phases of the governance process, strong agenda-setting capacities were performed by industry actors, which directed the way of the governance arrangement, whereby public authorities undertook a convening and weak regulative role in the shape of the ministry of Trade and Industries and the Ministry of Justice. Other relevant ministries supplied correctives through the public consultation alongside the equally important correctives received from industry associations in the implementation phase.

By facilitating the governance arrangement surrounding the resort to private maritime security upon demand, Norwegian public authorities traded a lower degree of control in terms of both directing the end goal and regulating behaviour in exchange for a flexible solution to a contemporary security challenge with minimal costs and risks undertaken. Public authorities did not only accept the framing of maritime (in)security as a matter predominantly concerning trade and national competitiveness, but also actively contributed to the process. This is underlined by the treatment of private security first and foremost as a means to combat trade obstacles, rather than dwelling with the potential consequences for international law with reference to potential invocation of state responsibility, and the principled state/security dilemmas. The latter, the active contribution, can be observed in the choice made to amend existing legislation rather than introducing new legislation, and thereby avoiding a potential lengthy parliamentary debate on the politics of private security.

These two points furthermore reveal that public and private actors are by no means engaged in a zero-sum relationship: the case does not reveal private actors ‘taking over’ the governance of security from pacified public actors. In the fragmented governance arrangement, private actors are both capable of formulating (security) demands and being responsible for providing (security) supplies, but these private governing capacities are actively convened and regulated, although in a light fashion, through the special competences of public authorises, in their expressed interests. Understood in this manner, the fragmentation of roles and responsibilities across a large number of actors is fronted by a sense of capacity differentiation. Business might know what is best for business, but the state knows best how to make policy. The facilitating capacities of public authorities become their competitive advantage, simultaneously ensuring their continued relevance as security governors.

To what extent, then, is the facilitating role undertaken by public authorities bound to the domain of maritime affairs? The Norwegian public authorities as represented through the Ministry of Trade and Industries have strong interest in supporting a highly competitive Norwegian shipping industry, and perform what has been labelled a ‘strategic trade policy’ vis-à-vis the industry by former Ministry of Foreign Affairs Secretary of State Erik Lahnstein (Vermes, 2011). This refers, among other things, to special tax exemptions, in turn linked to the competitive conditions derived from the vast amount of shipping companies registered in FOCs with minimal tax requirements. The industry-driven governance arrangement, and the facilitating role undertaken by public actors can therefore partly be understood with an eye to the strong imperatives arising from running a ‘strategic trade policy’, and the corresponding strong bargaining position enjoyed by the shipping industry vis-à-vis public authorities (see Grewal, 2008). However, as mentioned in the introduction, although the shipping industry does inhabit inherent peculiarities, the Norwegian governance of maritime security simultaneously not only replicates but also amplifies broader governance dynamics.

The actors involved, the process, and the final outcome of the law amendments which explicitly authorise the usage of private armed security on board Norwegian-registered ships allow for making multiple references to the macro structures surrounding the organisation of contemporary security provision as previously sketched out. The assortment of actors involved in the arrangement testifies to the fragmented nature of the contemporary governance of security, where the capacity to formulate and provide both security demand and security supply is diffused across the public/private and local/global divisions. The amplification of these trends in the Norwegian governance arrangement refers, among other things, to the inclusion of a wide web of actors in the arrangement, such as the importance of the global and national insurance industry in establishing ‘war-risk-areas’ and corresponding insurance premiums. Furthermore, the types of weapons that private maritime security companies are allowed to use go way beyond the provisions regulating land-based private security governance arrangement.⁷ To an extent, this can be explained by the comparatively peaceful environment in which Norwegian land-based security contractors operate, but the provisions in the amended Arms Regulation stretches beyond even those applying to Norwegian military personnel operating in conflict zones. Security guards protecting Norwegian flagged ships are, under §23a of the amended Arms Regulation (Lovdata, 2011a), entitled to make use of weapons that Norwegian military personnel can use only when targeting material structures (as opposed to soft targets, i.e. combatants), as pointed out by the Norwegian National Criminal Investigation Service (KRIPOS) (PC, 2011). No similar limitations follow §23a, which effectively means that these weapons are not restricted to targeting material structures when used by private guards at sea upon successful application (see §23a at Lovdata, 2011a).

Finally, the governance arrangement is characterised by its heavy reliance on industry self-regulation, leaving a number of important regulatory measures in the hands of the hiring company. The deliberate choice by public authorities not to institutionalise a vetting system, but rather to leave the choice of companies to the shipping companies themselves, amplifies the self-regulatory ethos of the private security industry in the Norwegian maritime context. The Norwegian governance of private maritime security, including the facilitating role undertaken by public authorities, is therefore also part and parcel of global security governance dynamics, and cannot be understood with an isolated view to the maritime domain. The Norwegian authorities’ facilitation of the maritime governance arrangement under analysis is arguably amplified in itself, in turn due to the shipping industry’s strong bargaining position and corresponding imperatives arising from running a ‘strategic trade policy’, but the facilitating role itself is an expression of evolving governance dynamics in which the organisation of security is becoming increasingly fragmented and private security provision increasingly accepted.

In this same period in which the Norwegian governance arrangement was laid out, a range of organisations, companies and governments came to accept, or even advocate, the use of private armed security on board ships for protection against piracy. According to the summary of country authorisations provided by Van Hespen (2014), it is difficult not to be struck by the domino-like effect sweeping across the world’s shipping nations. Furthermore, the additional tacit acceptance (i.e. without having undertaken explicit authorisation) by a range of flag states for the same type of usage, and the regulatory/common ground frameworks provided by formal and informal international organisations such as the International Maritime Organisation and the Contact Group on Piracy off the Coast of Somalia, contribute to the overall understanding that there is a contemporary global consensus on the use of private security companies for protection.

As such, although the sole focus of this article in all its empirical detail has centred on the Norwegian governance arrangement, the dynamics observed – most importantly the steps taken to explicitly legally authorise the usage of private maritime security – speak to a broader number of cases. In a similar fashion, the facilitating role can be observed with reference to countries such as Denmark, Great Britain and Germany, in which private maritime security companies today are found to operate within, and not outside, the regulatory frameworks provided by the states, and are, in turn, considered to be legitimate and collaborating actors in the nationally anchored governance arrangements (see Van Hespen, 2014). Although these various national arrangements differ with regards to the rigor of the authorisations provided, the level of inclusion of private actors, and the relationship between actors in the arrangements, they are all expressions of joint interests in the utilisation of private security. Simultaneously, they are also manifestations of public actors’ enduring relevance as security governors through their facilitating capacities in fragmented governance arrangements.

Conclusion

The Norwegian acceptance of armed private security for maritime protection did not arise in a vacuum. It was part of a domino-like process that involved a large share of the world’s shipping nations, which in turn is indicative of a global consensual acceptance of private maritime security. An important argument in the article is that this local expression of a global consensus exhibits fundamental changes in the organisation of security, where security is transformed into a commodity, demanded, supplied and regulated by a vast array of actors. This fragmented form of governance is no longer structured along public/private and local/global divisions, therefore requiring tools and concepts capable of analysing the interplay between actors and their individual roles and responsibilities in a given governance arrangement.

Another important argument concerns the relevance of maritime governance for the broader body of governance literature. Can the findings from a maritime case study offer relevant perspectives on the evolving relationship between public and private actors in governance? It has been argued that, despite the distinctiveness of the Norwegian maritime industry, the Norwegian governance of maritime security actually amplifies broader governance trends. From this point of view, the maritime domain is part and parcel of global politics and, thus, by studying its political aspects we can further our knowledge on the evolving dynamics of governance.

Hence, this article’s main contribution is the analysis of the role of Norwegian public authorities in the governance arrangement, and the implications thereof. Having analysed the case by drawing upon an empirical-analytical understanding of governance, the article argues that the involved public actors in the governance arrangement surrounding the resort to private maritime security are neither rowing nor steering; rather, they are facilitating a security governance arrangement through their convening capacities and regulatory infrastructures. This understanding stands in sharp contrast to popular assumptions about the primary role of the state in security provision, but offers nevertheless little support to those arguing that the state is becoming an irrelevant security governor. On the contrary, the facilitating capacities of public actors are understood as a form of capacity differentiation, which in turn provides a competitive advantage in the governance of security. In other words, strong facilitating capacities – succeeding in ‘organizing the self-organisation of social forces’ – ensure public actors’ continued relevance as security governors.

This argument adds a nuance to the discussion raised by Deborah Avant (2005) on the gains and losses of utilising private security by ‘strong states’ and ‘weak states’ (pp. 57–65). Whereas Avant analyses gains and losses predominantly from the point of view of the state’s capacity to comprehensively regulate, the facilitating argument as applied to the Norwegian case indicates that the capacity to facilitate governance arrangements heavily reliant upon the private sector might be considered a strength in itself. It is likely that the facilitating capacities of public actors will become increasingly important in parallel with an increasingly fragmented and globalised security environment.

Having reflected upon ‘how things are’, the arguments raised here open for a range of other queries that go beyond the parameters of this article. Importantly, the article has not addressed how the facilitating role resonates with established principles of policy making. The facilitating argument thus prepares the ground for asking the normative questions that have been left aside in this article: ‘are things how they ought to be’, or, ‘what kind of facilitator should the state be’?

Footnotes

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

Email consultations

The Norwegian Maritime Authority: Turid Fossan on 24.11.2014.

The Norwegian Shipowners’ Mutual War Risk Insurance Association (DNK): Ingrid Mellingen on 20.04.2015.

Author biography

Åsne Kalland Aarstad is a PhD candidate at Aarhus University. She has published on private security, maritime security and European foreign policy, and is the co-editor of The SAGE Handbook on European Foreign Policy (SAGE, 2015).

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