By James Brown
The UK Parliament's Foreign Affairs Committee last week released a report discussing the UK response to increasing piracy in the Gulf of Aden and Indian Ocean. Notably, it tracked a significant increase in the past six months of the use of onboard private military security contractor (PMSC) teams by shipping companies.
This increase has largely been driven by policy shifts in the UK, US and Denmark, which all now condone the use of armed guards aboard ships. Two months ago UK Prime Minister David Cameron noted that armed ships had lower odds of being hijacked and that PMSCs provide a practical solution to risk of piracy. Of the PMSCs which have signed an International Code of Conduct for Private Security Providers, over 100 are equipped to provide maritime security services. In October last year, an armed shipboard security team repelled a pirate attack on the Poseidon Ocean Rig in cooperation with the Tanzanian navy.
But in international waters, PMSC teams seem to be operating in a legal vacuum, particularly when it comes to the detention of pirates. If a commercial vessel with an armed security team comes under attack from pirates, the ship may respond with force, and the flagged state may arrest and prosecute the pirates. However, if the PMSC team suppresses a group of pirates onboard, the domestic laws of the ship's flag state apply, meaning that detention by a PMSC team may not be legal.
Ultimately, there is little clear guidance as to what a PMSC could and, perhaps, should not do when in international waters.
The UN Convention on the Law of the Sea (UNCLOS) provides little guidance. UNCLOS permits states to seize a pirate vessel, arrest suspected pirates and gives states the option of subjecting them to trial. But PMSCs are not state representatives — they are privately contracted non-state actors.
Further, in international law, pirates are civilians. Only the state has the power to arrest a civilian, a power usually delegated through legislation or an executive order. A PMSC does not have the power to hold, detain or arrest, unlike a police officer, coast guard officer, naval officer or a merchant ship's Master (see for example s.105 of the Merchant Shipping Act 1995 [UK]). The current practical reality is that PMSC can only disarm pirates and release them, as naval forces do on occasion.
It is also unclear whose authority PMSCs represent. One solution, not used since the days of the East India Trading Company, is a 'letter of marque'. This enables private actors to be deputised as an extension of the government. Interestingly, the US already has a modern variation of this in its Code, provided that the PMSC services are contracted to the government. But not all states have this option and a letter of marque does not apply to privately contracted PMSCs, nor should it.
It would be useful if the UN Security Council and International Maritime Organisation offered some guidance on the legal status of maritime PMSCs, especially considering that states may be tempted turn to mechanisms primarily designed to enable privateers (abolished in 1856 Paris Declaration) to hunt down pirates for their bounty.
So long as global naval budgets remain stagnant and there continues to be little interest in sending additional military forces to patrol piracy-prone waters around the horn of Africa, PMSCs look likely to proliferate.
Governments have an interest in ensuring that maritime PMSCs have the authority to act within a legally defined mandate and have a degree of accountability for their actions. Private contractors have an interest in protecting themselves against legal liability in the event they detain or kill pirates. But there has been little interest thus far in amending UNCLOS to enable a legally defined role for PMSCs at sea, and the international legal framework governing their use remains uncertain.
The Lowy Institute's International Security Program is researching the growing use of PMSCs in counter piracy operations; a report will be released in early 2012.
