In the last couple of years, merchant shipping has witnessed the introduction of armed guards on ships, especially those transiting the high risk areas affected by Somalian piracy. The International Maritime Organisation (IMO) and various national governments advised the shipping community to follow 'best management practices'.

Countries deployed naval ships to protect merchant ships in vulnerable regions. Unfortunately, piracy continued unabated. Navies had to intensify their efforts and monitor and co-ordinate more effectively.

somalian piracy

The current scenario is that Somalian piracy has been slightly reduced, but is nowhere near eradication.

The debate on the use of arms on board merchant ships is not new. The urgency created by the Somalian pirates, however, paved way for a quick decision in the matter, although the international community is still divided on the issue.

Several countries have now allowed merchant ships to engage armed guards, either from the navy or from private sources. Increasingly, this was seen as an easy solution to the scourge of piracy; and the experience so far proves that pirates have not abducted any ship with armed guards on board. However, the move towards complacency about the success of the system was rudely shaken by the alleged shooting of two Indian fishermen by Italian naval personnel on board the Italian ship Enrica Lexie, and the court cases, diplomatic meandering and controversies that followed. The incident has raised serious questions on the management of the armed protection of merchant ships. The IMO, governments and shipping industry organisations like such as ICS (Institute of Chartered Shipbrokers) and BIMCO (Baltic and International Maritime Council) have been deliberating on the issue ever since.

The resolution of the issue involves reconciliation of two contradictory positions.

First, the armed guards are essential on merchant ships passing through regions with the risk of pirate attacks.

Second, the presence of armed guards takes away the innocent nature of the passage of merchant ships. The first statement is not universally endorsed; there are a few countries that have decided not to allow armed guards, even though their naval ships are actively engaged in anti-piracy operations in the regions near the Horn of Africa. However, even India has allowed the use of armed guards on Indian ships, and is contemplating the deployment of paramilitary personnel for the purpose.

The strongest argument in favour of arming the ships is that criminals in the oceans will have to be dealt with as such, and that there is no place for misplaced sympathies.

legal framework

The placement of armed guards on ships raises several operational and legal issues. The big question is, who can take the general policy decisions and lay down the legal framework? The United Nations has made the law governing the seas in the form of the UN Convention on the Law of the Sea (UNCLOS). But, in respect of Somalian piracy, the UN has stayed in the background and has only passed a few routine resolutions. True, the UN has no operational role in the implementation of UNCLOS. Still, when there is an international problem with a huge impact on world trade, peace in the region and human rights, and there is need for multinational military intervention, one would have normally expected a greater concern on the part of the UN.

'Blue berets in blue oceans' would have provided a much more effective co-ordination in the fight against piracy. The navies of the different countries are no doubt doing a wonderful job, and there are mechanisms for co-ordination as well, but a unified command under the UN would have been a far superior arrangement. The IMO has been understandably active and has tried to intervene, the latest effort being the issuing of guidelines on May 25. But guidelines are not law. According to Article 92 of UNCLOS, ships are subject to the exclusive jurisdiction of the flag states on the high seas.

And who are the flag states? Panama, Liberia and some of the small island nations register more than half the merchant ships in the world. The laws are, therefore, to be made and implemented by these countries and not essentially by the countries from which the shipowners or the seafarers come or by the countries near which incidents take place as long as the events take place outside their territorial waters.

The key issue of jurisdiction is addressed in the IMO Convention for Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA), according to which 'Measures to establish jurisdiction over the offences shall be taken when the offence is committed against or on board a ship flying the flag of the State at the time the offence is committed; in the territory of that State, including its territorial sea; by a national of that State; by a stateless person whose habitual residence is in that State; in an attempt to compel that State to do or abstain from doing any act; or when a national of that State is seized, threatened, injured, or killed during the commission of the offence'.

Shipping is conceivably the most 'global' of all economic activities and so it is necessary to have a well-drafted international law.

operational issues

Now let us look at some of the key operational issues. First of all, who should be the guards? Several ship owners' organisations have expressed preference for naval personnel and the reasons are obvious. In an incident resulting in casualties, the State would be fully involved if naval personnel are involved, giving comfort to the ship owners.

There can be an interpretation that they belong to a 'vessel protection detachment' of the State, with sovereign immunity. Members of a uniformed force are normally expected to be more disciplined than private players. On the other hand, private maritime security companies (PMSCs) also mostly engage former naval personnel. Ultimately, the performance of the individuals depends on their personal traits and their training. The selection of the guards and their training are, therefore, of crucial significance, irrespective of the source.

imo guidelines

The recent IMO guidelines in respect of PMSCs is fairly comprehensive. Private players have found a new business opportunity, and since this is one which involves the safety and security of other people from other parts of the world, the adoption of the guidelines and compliance with them by the flag states, shipping companies and security companies is important until it becomes enforceable law. It also follows that the State's vetting of PMSCs is critical.

The second issue is about the functions of the guards and the rules for the use of force. The basic premise on which guards are posted is that they should be subject to the orders of the Master of the ship. Any use of force should be with the approval and guidance of the civilian authority, namely the Master.

The use of force has to be commensurate with the level of threat and there should be no unwarranted aggression. This is more of a police function than an act of war. Nobody has a monopoly over the high seas; merchant ships, naval ships, fishing vessels, passenger and cruise ships, pleasure yachts, research vessels.

This brings up the need for training the crew as well, because the protection of the ship, its crew and its cargo is primarily their function. The Best Management Practices (BMP4 - August 2011) issued by the IMO delineate among other things, the various ship protection measures. These include watch keeping and enhanced vigilance, minimum speed of 18 knots, physical barriers etc. Armed guards should not be seen as the one-stop solution.

The third issue is about the obligations and liabilities of the armed guards and of the company which provides them. The obligations can be clearly laid down in contracts. The BIMCO has already taken the initiative to develop the Guardcon contract which appears to have been accepted by the interested parties including ship owners, PMSCs, P&I Clubs, etc.

However, any contract would be subject to the laws of the flag state and the port state. Armed private persons going out into the sea have to be subjected to stringent contractual obligations and state regulations. The issues are many more. These include the manning regulations, the weapons to be permitted, loading and unloading of arms, role of the guards at anchorages (with at least one instance of a ship being captured by pirates from an outer anchorage), inspections, threat of terrorism etc. The legal intricacies would get settled only over a period of time, with judicial interpretations of the laws.

The outcome of the Enrico Lexie case now in the Indian Courts could perhaps be the first indicator of the judiciary's approach to the matter. According to Article 88 of Unclos, the high seas shall be reserved for peaceful purposes. The pirates violate this wishful law. Unless properly regulated, the armed guards will also make their contribution to the violation.

Author: K. MOHANDAS, former Shipping Secretary

Source: Business Line