Red sky warning, pirate season is fast approaching. As the promise of calmer seas in springtime Somalia nears, international ships are readying themselves for the next wave of attacks. While many ships are deploying defensive measures such as radar, thermal video equipment, fire hoses, electric fences and ingenious acoustic distractions (such as the sound of dogs barking), an increasing number of ships are stocking up on something that comes with much weightier legal dilemmas: armed guards.

In order to combat the oldest recognized international crime commercial ships are taking notes from the violent pirate days of yore – and this is quickly escalating the threat of violence and raising tricky issues of legal liability.

In early March, Somali pirates hit a Spanish fishing boat off the coast of Kenya with a rocket-propelled grenade while private security guards on board shot at the pirates. In the early days of Somalian pirating, such sophisticated weaponry was unknown – all the pirates needed to do was wave a rusty gun at the surprised crew jumped into action.

Hostage-taking may result in huge ransoms and a flurry of media attention yet, despite the number of pirate attacks at sea increasing each year, deaths among the crew are uncommon (four in total in 2009) and international businesses have continued to risk the odds against attacks by sailing through the narrow Somalian seaway and trusting their insurance companies to cover the costs. But now, as piracy insurance premiums continue to rise and are up 10 times what they once were, shipping companies are looking for new options, and armed guards can reduce some premiums by half.

This raises tough legal liability questions. When an armed guard mistakenly shoots an innocent fishing vessel, who is at fault? According to the International Maritime Bureau and the traditional approach to employment contracts, it’s the ship owner, not the armed guard, who will have to deal with the sticky consequences. What court has jurisdiction over this international issue is another matter altogether, complicated by the diversity of national interests represented in a single ship. Recognizing the legal dilemmas, some insurance brokers have come up with a three-part anti-piracy package for ships that they must hope is too good to refuse: they provide the insurance, the armed guards, and a special deal from a law firm.

How attractive does this make armed guards to rich ship owners? There are still some definite setbacks. Attacks can result in expensive lawsuits, damaged goods or a sunken ship, costing the companies hundreds of millions of dollars, where ransoms cost only a few million. Some flag states do not allow armed guards at all, and many ports will not allow weapons.

Yet despite these drawbacks, American policy towards armed guards appears to be warming, and a new Bill passed by Congress has dramatically limited the liability of firms that use force against pirate attacks. The United States has also begun advising its ships to carry armed guards despite the costs. With countries such as Spain deciding to allow the use of armed guards, the momentum seems to be moving toward more weapons at sea.

The legal dilemmas surrounding Somalian piracy, as discussed in an insightful earlier article, have been recognized for years. So far no one has been able to fully solve these problems, which is why some ships are choosing to fight back in frustration. But the long-term implications of more weaponry around the Somalian seaway seems disastrous for Somalians caught in the crossfires.

In the short term, pirates will likely avoid the ships with difficult defences and seek out the likelier targets, enforcing the strategy behind the saying that you don’t have to be faster than the bear, only the guy standing next to you. But if armed ships become the norm, the pirates will likely seek more powerful weapons in retaliation and give a boost to the arms trade in Somalia. Man the crow’s deck this pirate season -the battle between the clever deterrence tricks and the heavy guns is on.

One of the first cited examples of ambush marketing occurred during the 1984 Olympic Games, where Fuji was an official sponsor of the games but its commercial objectives were undermined by Kodak’s sponsorship of a major television broadcast and its association as the ‘official film’ of the US track team. Here Kodak used legitimate sponsorships to foster Olympic associations, but it seems big companies’ creative and legally-savvy marketers can always find ways to link their brand with an event.  Interestingly, the situation reversed itself for the 1988 Olympic Games, showing Kodak was perfectly willing to officially sponsor the event, while Fuji was equally willing to use ambush marketing techniques.

The International Olympic Committee (IOC) claims the rise of ambush marketing has been undermining the commercial objectives of official sponsors and consequently attracting sponsors is now a more difficult task for event organizers. In response, countries are compelled to enact legislation banning ambush marketing if they want their Olympic bids to be attractive to the IOC. Trademarks not associated with Olympic sponsors are officially banned, forcing Canada’s Olympic hockey team to change their jerseys and leading more recently to the high-profile news story of the battle between the IOC and Australia’s trademarked Boxing Kangaroo, an event that generated an outburst of support online for the Australian team and criticism of the IOC. All of which leads to the question: What is the impact of ambush advertising and is this of international concern in sports?

As Scassa pointed out, with the current recession and a multitude of other factors it is difficult to determine how much of an effect ambush marketing is having on sponsorships deals in general. The Olympics depend upon the economic support that sponsorship deals bring, and it is in the interest of the event planners to protect them. A major dilemma in sports is that athletes independently depend on the support of sponsors and it is entirely foreseeable that a single athlete may be sponsored by Nike, their club sponsored by Reebok, and their event sponsored by Puma. Micheal Jordan stirred up such a controversy when he covered his Olympic Reebok sweatsuit with an American flag rather than risk losing his Nike sponsorship deal. Companies are not likely to support athletes and athletic events unless it is beneficial for them to do so, but these are big players with deep pockets and excellent legal teams. A greater question of whether passing legislation is really effective is another debate.

Certain words in Canadian advertisements (such as gold, silver, bronze, Vancouver, 2010) now set off legal alarm bells. But you only need to look at Lu Lu Lemon’s Cheer line for a “cool global sporting event” to see that sponsorship deals are not the only ways of cashing in. Scassa argues that those who will feel the greatest impact of this legislation are not the big companies, but the smaller businesses around downtown Vancouver trying to generate business off of the Olympic enthusiasm and energy who cannot afford high litigation fees.

In my opinion, ambush marketing legislation is unnecessarily broad and largely ineffective. Legal teams for companies who do not sponsor the Olympics are careful to add disclaimers onto advertisements, but clever marketers can always use a very public event to their advantage (see Roots clothing line in support of Right to Play Canada). It is troubling that so far the most public critical analysis of this type of legislation seems to have arisen from the reaction of the Boxing Kangaroo.  Hopefully if this legislation extends to other sporting events within Canada or if it is enacted in other nations it will begin to generate broader international attention.

On November 5, the UN International Criminal Tribunal for the former Yugoslavia postponed the trial against former Bosnian Serb leader Radovan Karadzic until March 2010. Karadzic ended his boycott of the proceedings earlier this week, saying it would be “criminal” if he had “to enter a trial for which I am not prepared.”

As discussed last week, Karadzic’s boycott of the trial led judges to begin hearing the prosecution’s case and warning Karadzic to appear in court or risk being tried in absentia.  Besides postponing the trial, the tribunal has also appointed a lawyer to represent Karadzic.

Karadzic has vowed to resist the imposition of counsel.  He has seven days to apply for permission to appeal the ruling, and another seven days thereafter to file an appeal.

2. Lisbon Treaty

The Lisbon Treaty was officially ratified by the last European Union member state, the Czech Republic, on 3 November 2009. It is expected to officially become law in December.

The treaty is an attempt to make the EU more cohesive and influential on the worldwide stage, though some critics have seen it as a threat to national sovereignty. The treaty grants new powers to the European Commission, the European Parliament and the European Court of Justice.  Legislation will now be decided by “co-decision” by the parliament and the European Council.  A major change regards the president of the Council.  Currently, countries take turns at being president for six months, but under the treaty a chosen politician will serve as president for 2 ½ years.

A reference to the Charter of Fundamental Rights in the treaty makes it legally binding for member states, but the full text is not printed. Conversely, some countries chose to “opt-out” of certain provisions of the Charter. Poland has an opt-out from parts of the Charter concerning abortion, and the Czech Republic has an opt-out concerning property claims by expelled Germans after WWII. The Irish Republic and the United Kingdom have the right to opt in or out of any policies in the entire field of justice and home affairs, and currently have opted-out of the policies of asylum, visas and immigration.

3. Canada Challenges EU Ban on Canadian Seal Products

Canada’s seal-products dispute with the European Union is being brought to the World Trade Organization for settlement. Trade Minister Stockwell Day claims Canada will be arguing that the seal hunt is “a legitimate economic pursuit” and Europe’s ban on Canadian seal products, adopted in May of this year, is a violation of the EU’s trade obligations.

Canada has previously instituted new rules to ensure each seal is killed quickly and painlessly after an earlier draft of the seal product regulation legislation left the door open for exemptions to countries that could certify their hunting methods are humane.

4. Climate Change Treaty not Legally Binding

United Kingdom climate Secretary Ed Miliband stated on November 5^th that it is highly unlikely that a new legally binding climate treaty will be agreed on this year and only a political deal is likely.

This may be the first time UK ministers have acknowledged the unlikelihood of the treaty achieving anything legally binding.  Miliband has stated that he hopes a political agreement will lead to a legally binding treaty.  He told the BBC: “I think an agreement without numbers is not a great agreement. In fact it’s a wholly inadequate agreement.”

5. RCMP arrest alleged Rwandan War Criminal

This week the Royal Canadian Mounted Police have arrested Jacques Mungwarere, a 37-year-old Rwandan man living in Windsor, Ontario.  Mungwarere is charged with committing genocide in Kibuye, Rwanda under the Crimes Against Humanity and War Crimes Act.

After a brief court appearance in Ottawa on November 7^th, Mungwarere has been remanded in custody and his case held over until November 12.  Mungwarere is only the second person to be charged under Canada’s Crimes Against Humanity and War Crimes Act, and his arrest follows the October 29 decision by Justice André Denis of the Quebec Superior Court who handed down a life sentence to Désiré Munyaneza, with no chance of parole for 25 years.

RCMP Sgt. Marc Menard has reportedly confirmed that there is a connection between Mungwarere’s case and the recently concluded Munyaneza prosecution, although these concerned a different area of Rwanda.

6. Prosecuting Election Violence in Kenya

International Criminal Court prosecutor Luis Moreno-Ocampo has stated on November 7^th that he believes there is a strong case against some of the people allegedly responsible for the crimes committed during Kenya’s post-election violence.  The prosecution will need to move quickly in this case, if they seek to heed crisis mediator Kofi Annan’s warning that failing to prosecute the architects of the killings could pose the risk of further violence erupting again during Kenya’s next election in 2012.

According to Moreno-Ocampo, it is possible the trial will take place in Kenya, or at the court in Arusha in Tanzania where suspects from Rwanda’s 1994 genocide have been prosecuted.  Kenyan leaders have decided not to refer the case to The Hague, but have promised to co-operate with Moreno-Ocampo.  There has been some speculation that those responsible include cabinet ministers, parliamentarians and businessmen.