Presently, maritime piracy plays a prominent role on the global stage. For the past several years, reports of violent attacks on ships and hefty ransom payments to secure the safe release of captains and crews have become a regular feature of the world’s daily news.²³ Although not all of those attacks are linked to Somalia, the emergence of Somali piracy on a grand scale beginning in the mid-2000’s helps to illustrate the increased global threat posed by maritime piracy.²⁴ The International Maritime Bureau (IMB) Piracy Reporting Centre reported 1,850 worldwide pirate attacks between January 2007 and December 2011.²⁵ Attacks during 2009, 2010, and 2011 numbered more than 400 each year – an amount that exceeds the total reported attacks in 2007 by more than 50 percent.²⁶ The IMB reports fewer successful attacks in 2012 than in the several prior years,²⁷ but it is not yet time for celebration. Between January and September 2012, 585 seafarers were taken hostage – as compared to 172 during the same time period in 2007.²⁸ Six seafarers were killed by pirates during 2012.²⁹ These numbers are startling, even if they are lower than in some prior years. As a recent United Nations Secretary-General Report warns: “Although there are signs of progress, they can easily be reversed.”³⁰

Although the number of attacks is down, piracy still poses a significant threat to the safe passage of vessels travelling through shared sea-lanes. Pirates are sophisticated criminals who use violence to mount their attacks.³¹ The IMB reports that guns were used in 113 of the attacks that occurred during 2012³² and that most attacks by Somali pirates now involve the use of weapons.³³ Somali pirates are able to operate hundreds of nautical miles out to sea where they use larger fishing vessels – known as “mother ships” (often acquired by acts of piracy) – from which they mount their attacks.³⁴ From these mother ships, the pirates use small maneuverable skiffs powered with large outboard motors.³⁵ With the help of AK-47 rifles and rocket propelled grenade launchers, today’s pirates have successfully attacked some of the world’s largest supertankers.³⁶

Pirate attacks do not just harm individuals travelling on the ships that are captured. Piracy threatens the world economy and global trade, since 90% of the world’s traded goods move by sea.³⁷ Somali piracy is a particular danger to the 40% of world sea trade that passes through the Indian Ocean, the Gulf of Aden, and the Arabian Sea.³⁸ While Somali pirates at one time operated within a concentrated geographical area in the waters off the coast of Somalia and the Gulf of Aden, they have more recently expanded their reach farther into the Indian Ocean.³⁹ Additionally, pirate attacks on ships carrying oil threaten world energy supplies.⁴⁰ Piracy also jeopardizes the delivery of humanitarian assistance to the Horn of Africa.⁴¹

Moreover, the increasingly hefty ransoms paid to guarantee the release of innocent seafarers provide an incentive for pirates to continue their illegal and violent activities. In 2011, pirates received an estimated $170 million in ransom payments, a huge increase from the total of $110 million they received in 2010.⁴² In fact, the ransoms paid to pirates “have increased sevenfold over the last five years,” with average ransoms increasing from about $600,000 in 2007 to about $5 million in 2011.⁴³

Although maritime piracy remains a significant threat, the international community has engaged in some coordinated efforts to combat it. In 2007, some countries began providing naval escorts to World Food Program ships delivering humanitarian aid.⁴⁴ Since then, those naval escorts have accompanied about 150 vessels carrying essential humanitarian assistance.⁴⁵ Beginning in late 2008, countries also began contributing naval resources to conduct counter-piracy operations. Multi-national naval forces (Combined Task Forces 150, 151, and 152), involving twenty-seven different states, operate around the Gulf of Aden, the Arabian Sea, and the Indian Ocean with the stated aim of deterring, disrupting, and suppressing acts of piracy.⁴⁶ These forces have been joined by others, such as the European Union’s combined naval force (Operation Atalanta).⁴⁷ The Council of the European Union has authorized Atalanta to operate until December 2014 and has allowed it to expand the reach of its activities to the coast and internal waters of Somalia.⁴⁸ NATO has also sent ships on anti-piracy missions to the Horn of Africa.⁴⁹ Other states, including Russia, China, India, South Korea, Japan, Malaysia, and Singapore, have complemented these multi-national operations by sending their own ships to patrol in the waters off the Somali coast.⁵⁰ In total, between ten and sixteen naval ships conduct anti-piracy missions in the Gulf of Aden and Indian Ocean on any given day.⁵¹

Since 2008, the United Nations Security Council has backed these coordinated naval efforts to counter piracy with a number of resolutions authorizing military action against Somali pirates at sea and on Somali territory. Under Resolution 1816, the Security Council authorized coalition navies cooperating with the Transitional Federal Government (TFG) of Somalia to enter Somalia’s territorial waters and use “all necessary means to repress acts of piracy and armed robbery” for an initial period of six months.⁵² That authorization was extended for one year under Resolution 1846.⁵³ The Security Council authorized even broader military action to combat piracy under Resolution 1851, allowing states to use land-based operations in Somalia to fight piracy.⁵⁴ Under Resolution 1897, it extended the scope of allowable anti-piracy operations in Somalia’s territorial waters for another twelve months.⁵⁵ Recent Security Council resolutions urge states to continue contributing to the naval forces that patrol the pirate-infested waters off the coast of Somalia.⁵⁶

All of these coordinated naval efforts have likely contributed to the present reduction in the total number of reported and attempted attacks.⁵⁷ In fact, naval forces apparently “thwarted 126 attacks in 2008, 176 in 2009 and 127 in 2010.”⁵⁸ Furthermore, no World Food Program ship has been hijacked since the ships began receiving escorts from the world’s navies.⁵⁹ Similarly, ships travelling through the Gulf of Aden corridor have not been successfully attacked since naval forces began organizing commercial shipping vessels into transit groups.⁶⁰ This process allows the navies to closely watch a designated number of ships to which they can promptly respond should they receive distress calls.⁶¹ The naval forces have also successfully captured pirates who have attacked or attempted to attack ships at sea. Reports indicate that between January and August 2009 alone, the world’s naval forces “encountered” more than 500 pirates, 10 of whom were killed, 282 of whom were disarmed and released, and 235 of whom were transferred for prosecution.⁶²

Despite the fact that the international community is spending more than $1 billion annually to support the various naval patrols,⁶³ the threat of maritime piracy persists. The world’s navies have thwarted attacks, and the number of successful attacks is down in 2012. The threat posed by piracy, however, remains real to individual seafarers and the international community. Further, before 2012, the number of pirate attacks was growing in absolute terms, even as navies patrolled in an effort to help secure the safe passage of ships.⁶⁴

Some partially attribute the continued prevalence of piracy on the navies’ general “catch and release” policies.⁶⁵ According to some reports, about 90% of pirates are released after capture, rather than being transferred to stand trial for their actions.⁶⁶ Recent figures indicate that between 2006 and September 2012, about 1,186 suspected pirates have been prosecuted or await prosecution in twenty-one states.⁶⁷ Yet this is only a small fraction of the number of pirates who have been captured attacking or attempting to attack ships.⁶⁸

Unless states are prepared to prosecute a sufficient number of pirates to send a signal that their criminal acts will not be tolerated, they must stop pirates before they are able to mount their attacks.⁶⁹ The anti-piracy naval patrols, however, simply do not have the capacity to secure the safe passage of every transiting ship.⁷⁰ In many cases, pirates are able to board and take hostages within fifteen to thirty minutes of being sighted.⁷¹ This amount of time is too short for a naval ship to respond unless it is only a few miles away.⁷² Indeed, the world’s “[n]aval forces have found it difficult to monitor pirates and to respond swiftly to attacks […].”⁷³ According to the United Kingdom’s Major General Howes (Operation Commander of Atalanta), about “83 [ships] would be needed in order to provide response conditions of half an hour.”⁷⁴ William Wechsler, the United States Deputy Assistant Secretary of Defense for Counternarcotics and Global Threats, offers a more pessimistic view, suggesting that pirates now operate within an area of approximately 2.9 million nautical miles and that all the navies in the world could not possibly protect such a space.⁷⁵

Thus, while naval ships have been successful in thwarting some pirate attacks, at present they do not have the capacity to protect every ship travelling through the Indian Ocean. Moreover, there is reason to believe that states will provide fewer naval resources for counter-piracy efforts in the upcoming years because of budgetary pressures. This state of affairs has caused some stakeholders in the fight against piracy to focus on the role private armed guards might play in protecting ships, cargo, and crews against attacks.⁷⁶ The recent increased reliance on armed guards to assist in the fight against maritime piracy and the risks associated with relying on them is discussed in Part II below.

The apparent security gap left open by the limitations of the world’s navies caused ship owners to begin calling for more protection of their ships when travelling through pirate-infested waters.⁷⁷ In response, some 200 to 300 PMSCs emerged, the bulk of which were created in 2011.⁷⁸ These companies, which claim to offer some sort of maritime security, now provide armed escorts for 50% or more of the vessels transiting through areas carrying a high risk of pirate activity.⁷⁹ Most companies providing these maritime security services are British or American and are often founded or staffed by retired military personnel.⁸⁰ The cost of hiring private guards is not cheap: a PMSC’s services to secure a safe passage can range from $15,000 to $100,000, depending on the number and quality of the guards employed, the ship’s size and vulnerability, and the length of the trip.⁸¹ On the other hand, the expense may be warranted. Notably, as of mid-2012, pirates had not successfully hijacked any commercial ship carrying armed guards.⁸² Moreover, some insurance companies offer significant discounts to vessels employing armed security when travelling through areas that pose a high risk of pirate attacks.⁸³

PMSCs provide armed guards in one of two ways: using ship-borne armed protection teams or armed convoy escort vessels.⁸⁴ Ship-borne armed protection teams typically consist of three to ten guards who have prior naval or military training.⁸⁵ These guards will often “embark with body armour, medical kits, satellite communications, night-vision equipment and weapons.”⁸⁶ There is no standard type of weapon employed by PMSCs, and a decision on which weapons to provide their personnel may vary from firm to firm and also depends on the nature of the voyage.⁸⁷ Thus, armed guards may be equipped with pistols, shotguns, or even machine guns and sniper rifles.⁸⁸ Protection teams will usually embark from ports near the Gulf of Aden and disembark some days later in southern Sri Lanka so that they can provide security in the waters most prone to pirate attacks.⁸⁹

Ship owners and operators must address the difficulty of boarding weapons when seeking to place armed guards on their ships. Ship owners carrying arms must comply with the flag state laws⁹⁰ and the laws of the state where they are incorporated.⁹¹ They must also comply with the laws of coastal states through which they transit.⁹² Some coastal states permit PMSCs to store their weapons in the state’s ports and sign the weapons on and off the ships that they are assigned to protect, allowing for transparency in PMSC arms procurement and transport.⁹³ Other states, however, have strict laws forbidding foreign weaponry in their territories,⁹⁴ while some only allow certain types of weapons.⁹⁵ Due to the complex web of legal requirements relating to the carriage and transport of arms, some PMSCs are dumping weapons at sea to avoid violating arms regulations when calling at ports or disembarking at a final destination.⁹⁶ PMSCs also avoid coastal state regulations by stocking “floating armories” on the high seas.⁹⁷ This arrangement allows their personnel to embark on the ship without weapons but to obtain the required weapons once outside of territorial waters.⁹⁸

On the other hand, some coastal states have embraced the profit opportunity associated with the recent rise of the PMSC industry and ship owners’ interest in securing armed protection when travelling through pirate-infested waters. For example, Djibouti sells annual permits to PMSCs for $150,000 (or more) to allow them to operate from its ports with weapons.⁹⁹ Djibouti also has a program whereby PMSCs can pay to rent and embark government-owned weapons – including fully automatic firearms.¹⁰⁰ Sri Lanka runs a similar program from its port in Galle, allowing PMSCs to rent government-owned weapons – again including fully automatic firearms.¹⁰¹ PMSCs wishing to rent the weapons must also agree to embark a retired or off-duty Sri Lankan military officer to monitor the use of weapons on board the ship.¹⁰² Yemen has taken a different approach, renting out its own military personnel to escort ships travelling through the Gulf of Aden.¹⁰³

Armed convoy escort vessels are another option offered by some PMSCs to their private clients seeking individualized counter-piracy services.¹⁰⁴ PMSCs offering this service generally rely on small vessels armed with small crews to conduct these escorts.¹⁰⁵ Some companies, though, have grander plans. For example, reports indicate that one private company, Typhon, will offer the services of three large boats, each fitted with machine guns and manned with 40 guards carrying rifles.¹⁰⁶ Both the smaller and larger escort vessels operate by accompanying the client’s ship on its travels and challenging any suspicious boats that attempt to approach so as to deter any potential attacks.¹⁰⁷ One advantage for ship owners choosing to employ armed convoy escort vessels is that the owners seemingly avoid the difficulties and legal issues associated with carrying weapons on board since the escort vessels operate separately from the client’s ship.¹⁰⁸

In addition to PMSCs, however, some governments hire out their naval or military personnel to provide security for commercial ships travelling through the Indian Ocean.¹⁰⁹ Known as vessel protection detachments, or VPDs, these privately hired military teams also offer armed protection against pirate attacks.¹¹⁰ For example, the Netherlands does not permit its shipping companies to employ PMSCs, citing concerns that allowing private guards would undermine the state’s monopoly on the use of force.¹¹¹ Accordingly, in 2011, it began offering VPDs to its ship owners, half of the cost of which is borne by the private shipping company.¹¹² Several other states, including France, Spain, Israel, and Italy, have also hired out their military personnel to guard merchant vessels flying the state’s flag.¹¹³

Indeed, the fact that Italy hired out some of its marines to help guard the Italian ship MV Enrica Lexie as it was travelling from Singapore to Egypt in early 2012 became international news.¹¹⁴ Two of those Italian marines were arrested by Indian authorities for having shot two Indian fishermen the marines believed to be pirates.¹¹⁵ The marines were thereafter detained and arrested on murder charges despite Italy’s argument that they enjoyed immunity from foreign prosecution as agents of the Italian state.¹¹⁶ Nevertheless, industry witnesses strongly prefer VPDs over hiring guards employed with PMSCs, in part because they believe that state military personnel will be properly trained and responsive to authority.¹¹⁷ Some also believe that military personnel can more easily move weapons through ports and that their legal status, which is more defined than that of private contractors, will protect them against foreign prosecutions should their actions cause any injury or death.¹¹⁸ Of course, the Enrica Lexie incident should serve as a warning that even military personnel hired out as part of VPDs have no certain status entitling them to immunity from foreign arrest and prosecution.

Only a few years ago, industry organizations and states were generally opposed to the idea of private armed guards, preferring to allow only naval fleets to provide anti-piracy protection.¹¹⁹ A major criticism of the use of armed guards on commercial ships emphasizes the risk of escalating violence.¹²⁰ Piracy has already become more violent over the last several years, and pirates who know that ships are prepared to use lethal weapons to repel attacks may respond more forcefully.¹²¹ The United Kingdom’s Dr. Campbell McCafferty, Head of Counter-Terrorism and UK Operational Policy at the Ministry of Defense, explained that the presence of armed guards on ships may not only lead to an escalation of violence but may also “just encourage pirates, in acts of desperation, to arm themselves more.”¹²² Other commentators are willing to assume that having armed security on board may actually deter pirates from striking that particular ship so as to avoid a potentially deadly fight.¹²³ They point out, however, that other ships without such protection may then be especially and unfairly vulnerable to pirate attacks.¹²⁴

Ship owners that hire private armed guards also face the additional complication of having to comply with flag and port state regulations on the carriage and transport of weapons.¹²⁵ For example, South Africa recently announced that it will not allow ships travelling through its waters to carry private armed guards; only military personnel will be allowed to provide protection on ships.¹²⁶ In Seychelles, police board commercial ships and lock the weapons armory.¹²⁷ In Mauritius, ships must release any onboard weapons to the local police to be stored.¹²⁸ In fact, some commentators have described the need to comply with varying and shifting state weapons laws as one of the greatest burdens faced by ships seeking to use armed security personnel for protection and the reason why some private security companies are stocking “floating armories” on the high seas.¹²⁹ Yet such “floating armories” operate in a legal gray area without any international or national regulations governing their use, resulting in concerns that the companies using them are not applying minimum safety standards when storing arms and ammunition.¹³⁰ Estimates as of mid-2012 indicate that approximately 18 vessels were operating as “floating armories” on the high seas,¹³¹ carrying approximately 7,000 weapons.¹³²

There are additional reasons to be wary of wholly embracing private armed guards as the potential solution to the maritime piracy problem. Although guards may be able to repel attacks, concerns have been raised about “cowboy” security companies engaging in illegal activities.¹³³ The evidence suggests, for example, that the PMSCs are operating the “floating armories,” causing potential threats to lives, peace, and security by not properly securing those weapons.¹³⁴ By contrast, when the Netherlands hires out its VPDs, it makes arrangements for the legal transport of weapons. For example, Singapore has agreed that the Netherlands’ VPDs may store weapons in Singapore’s port.¹³⁵

Others argue that untrained guards operating on the high seas are shooting indiscriminately and unnecessarily killing pirates and innocent fishermen.¹³⁶ Indeed, the belief that government military personnel are well-trained and prepared to act lawfully or face the necessary consequences is one reason why some industry representatives and states have shown a preference for using them in the fight against piracy.¹³⁷ After all, as Admiral Baumgartner pointed out in his testimony before Congress, when one brings armed guards on board a vessel, one must make sure they are “fully qualified […] [and that they have a] well thought-out, well-coordinated and rehearsed practice method” of using their weapons.¹³⁸ Yet not all private guards are necessarily well-trained,¹³⁹ and in any event, private guards do not operate under a military chain of command or subject to military discipline when hired to protect an individual ship.

In addition, no international standard governs the level of force that guards may use to repel a pirate attack. Generally speaking, because PMSC personnel are private citizens, they may only use lethal force to stop a pirate attack in self-defense or defense of others.¹⁴⁰ Guards must look to flag state law and the law of the territories in which they operate to determine precisely what conduct by alleged pirates will suffice to trigger the right to respond with lethal force and what steps guards must take, if any, before responding with such force.¹⁴¹ Any use of excessive and unauthorized force will subject the guards to potential criminal and civil liability – in the flag state and in the state where they used force.¹⁴² Thus, at present, even if the guards are correct that any use of force was proper under the laws of the flag state, the territorial state could conclude that those same actions violated its laws.

It is true that states sometimes waive their rights to assert jurisdiction over particular actors and conduct by way of grants of immunity.¹⁴³ In the context of the fight against maritime piracy, such immunity probably only applies to military personnel acting in the course of their official duties. For example, states often enter into Status of Forces Agreements (SOFAs), which are treaties between states that typically grant the state sending military personnel into another state’s territory primary concurrent jurisdiction over offenses committed by its personnel while acting in the line of duty.¹⁴⁴ But PMSC personnel are private citizens and therefore are not entitled to special immunity from foreign suits should they use excessive force to repel what they believe is a pirate attack.¹⁴⁵

Even so, the outcome of the Enrica Lexie shooting incident shows that military personnel hired out in their private capacity may not be granted immunity from another state’s exercise of criminal jurisdiction over their activities either. That shooting involved trained Italian marines who were part of a government-offered VPD but whom the Indian government claims killed innocent fishermen without provocation.¹⁴⁶ On the question of jurisdiction, the Italian government has argued that the marines are entitled to functional immunity from foreign prosecution because they were acting as an organ of the Italian state and because the shooting occurred in international waters.¹⁴⁷ The Indian government has rejected that argument, asserting instead that it has jurisdiction over the shooting offense because the marines shot Indians on an Indian boat.¹⁴⁸ The Italian government recently settled civil charges brought on behalf of the dead fisherman – for reported sums of $180,000 each.¹⁴⁹ As of mid-December 2012, however, criminal charges against the two marines remained pending.¹⁵⁰ Accordingly, the Enrica Lexie incident demonstrates that not all states will necessarily conclude that military personnel hired to provide private protection for a commercial vessel are immune from prosecution for violating the state’s criminal laws.

Finally, adding private armed guards to a ship can create additional issues about when, and how, the use of force may be authorized and who may be liable for any excessive use of force.¹⁵¹ On the one hand, the armed guards are tasked with repelling pirate attacks and likely believe that a decision on whether to use lethal force should rest with the security team.¹⁵² On the other hand, international regulations and longstanding practice rest ultimate authority for the safety of life at sea with the ship’s captain.¹⁵³ Further, there is reason to believe many captains would not be comfortable ceding such authority, a point made by Captain Richard Phillips, whose ship, the Maersk Alabama, was attacked by pirates. Before the Senate Foreign Relations Committee, he stated: “I am not comfortable giving up command authority to others […] including the commander of a protection force. In the heat of an attack, there can be only one final decision maker.”¹⁵⁴ Yet, if command authority is not agreed on clearly and in advance, chaos could ensue during a pirate attack, and attempts to shift blame would likely follow any assertions that the force used exceeded what was necessary.

For many of the reasons discussed above, until 2011 the maritime industry generally opposed the use of private armed guards on ships.¹⁵⁵ Naval forces were charged with providing the bulk of anti-piracy protection, and individual ships were encouraged to assist in deterring piratical acts by following the industry’s “best management practices” – a set of guidelines outlining a host of primarily passive defensive measures.¹⁵⁶ For example, the guidelines cautioned ships to install, among other things, alarms, motion detectors, and closed circuit televisions, so as to be warned of imminent attacks.¹⁵⁷ The guidelines also counseled ships on the use of non-lethal defensive tools, such as high-powered fire hoses and razor wire barriers that can repel pirates trying to board a ship.¹⁵⁸ In addition, suggested best management practices prompted ships to register with international and regional monitoring agencies so that navies and other government-sponsored counter-piracy teams would be able to provide assistance if needed.¹⁵⁹

The fact that the world’s navies were unable to protect every ship from experiencing an act of piracy, however, resulted in ship owners calling for the right to hire private armed guards to accompany them when travelling through pirate-infested waters.¹⁶⁰ Those calls were essentially heeded in early 2011 when the International Chamber of Shipping (ICS), which represents national ship owners’ associations from over 30 countries, announced that it had changed its previous stance opposing the use of armed guards on ships.¹⁶¹ Instead, it concluded that the decision as to whether armed security can participate in the fight against maritime piracy should be a matter for flag states to decide.¹⁶² The ICS chairman explained:

ICS has had to acknowledge that the decision to engage armed guards, whether military or private, is a decision to be made by the ship operator after due consideration of all of the risks, and subject to the approval of the vessel’s flag state and insurers. The consensus view amongst shipping industry associations remains that, in normal circumstances, private armed guards are not recommended, and are a clear second best to military personnel. However, in view of the current crisis in the Indian Ocean – with over 700 seafarers held hostage and, most recently, a seafarer being executed – ship operators must be able to retain all possible options available to deter attacks and defend their crews against piracy. Many shipping companies have concluded that arming ships is a necessary alternative to avoiding the Indian Ocean completely, which would have a hugely damaging impact on the movement of world trade.¹⁶³

The IMO followed the ICS by issuing a series of Circulars beginning in May 2011 that cautiously endorsed a regime whereby flag states would be able to decide whether and under what circumstances armed security personnel should be allowed on their ships. In its guidance, the IMO emphasized that the use of private armed security should not be considered an alternative to best management practices and other, more passive, measures to defend against pirate attacks.¹⁶⁴ It also emphasized the need to minimize the risks associated with placing armed guards on ships through the use of clear flag state policies. In particular, the IMO encouraged flag states to develop and employ: (1) a process for authorizing ship owners’ use of private guards, (2) mechanisms for ensuring accountability with the terms and conditions under which any authorization to hire guards would be granted, (3) information about the lawful carriage and use of firearms by private guards, (4) guidance on command authority as between the captain and any armed security, and (5) reporting and recordkeeping requirements.¹⁶⁵ By September 2011, shipping industry representatives had drafted an updated version of the best management practices (BMP4) similarly acknowledging that whether to use armed guards on “merchant vessels is a matter for individual ship operators to decide following their own voyage risk assessment and approval of respective Flag States.”¹⁶⁶

In May 2012, in an effort to enrich existing advice, the IMO also issued interim guidance to PMSCs.¹⁶⁷ That guidance, among other things, encourages PMSCs to acknowledge the need to operate according to flag state and other applicable laws.¹⁶⁸ It recommends that firms only hire out personnel who are trained to operate in a maritime context and that the firms carry adequate insurance to cover any claims that might arise as a result of their employees’ conduct.¹⁶⁹ The guidance cautions that personnel acting as armed guards must abide by flag state and other laws regarding the carriage and use of firearms and to also recognize that laws regarding the use of lethal force vary from state to state.¹⁷⁰ In addition, the guidance further recommends that PMSCs respect that the captain is in control of the ship.¹⁷¹

This Article uses the laws and guidance of (1) the United States, (2) the United Kingdom, (3) Denmark, (4) Norway, and (5) Singapore to explore some approaches that states have taken to regulating the use of private armed guards on their ships. There are several reasons for focusing on these five states. First, these states all have strong shipping interests. As of December 2010, the United States, the United Kingdom, Norway, Denmark, and Singapore were each listed among the states with parent companies owning the top twenty controlled merchant fleets in terms of gross tonnage.¹⁸⁷ Second, including the United States and the United Kingdom in the study is important, as both are states from which a number of PMSCs hail – meaning that both should have a relatively great interest in regulating PMSC conduct.¹⁸⁸ Third, these states authorize the use of private armed guards in different ways, thus facilitating a later comparison of approaches and a discussion of their strengths and weaknesses. Finally, as a practical matter, information about these states’ laws and guidance is available in English, thereby obviating the need to translate from another language.

Although each of these states has authorized the use of private armed guards on board their commercial ships while travelling through pirate-infested waters, the timing and nature of their commitment to the idea differ in some respects. For example, the United States’ acceptance of private armed guards seems relatively long-standing and also quite strong. The United States has authorized personnel on commercial ships to use force to defend against maritime pirate attacks for more than one hundred years. According to 33 U.S.C. § 383, which is entitled “Resistance of pirates by merchant vessels,” the commander and crew of any merchant vessels owned in whole or in part by a United States citizen may defend against any attack by another private armed vessel.¹⁸⁹ How much and what kind of force civilians may use to repel pirate attacks is a topic that is addressed by reference to general law in the area, rather than by any specific language in Section 383. To provide more exact guidance on the topic in the piracy context, in 2009 the United States Coast Guard and the Department of Homeland Security jointly issued a Port Security Advisory entitled Guidance on Self-Defense and Defense of Others by U.S. Flagged Commercial Vessels Operating in High Risk Waters.¹⁹⁰ That 2009 Self-Defense Advisory “restates existing law” and clarifies the rules to be followed by all vessel personnel, including private security guards, when defending against pirate attacks.¹⁹¹

March 2012 remarks by Andrew Shapiro, Assistant Secretary of the Bureau of Political-Military Affairs, further demonstrate the United States’ commitment to using private armed guards.¹⁹² Mr. Shapiro explained that the United States permits its commercial vessels to carry private armed security teams.¹⁹³ Because of the seriousness of the threat posed by maritime piracy to the safety of international ships, crews, and cargo, the United States has also encouraged other countries to follow suit.¹⁹⁴ Mr. Shapiro recognized that employing armed guards may involve some complicated issues.¹⁹⁵ But he played down concerns of “cowboy” guards, saying that the evidence showed that most private armed guards act responsibly, only firing warning shots after using non-lethal methods, such as flares or loudspeakers, to scare pirates away.¹⁹⁶ Regarding weapons carriage and transport, he stated that the United States has worked, and will continue to work, with other states to facilitate the legal movement of arms.¹⁹⁷

The United Kingdom and Denmark, by contrast, have only recently changed their previous stances, now allowing their ship owners to employ private armed guards. As mentioned above, on 30 October 2011, Prime Minister David Cameron announced the United Kingdom’s decision to authorize the use of private armed guards under some circumstances.¹⁹⁸ In announcing the change, the Prime Minister referred to the extent of hijackings for ransom around the Horn of Africa as a “stain” on the world that needed to be tackled.¹⁹⁹ In December 2011, the government followed with a Written Ministerial Statement outlining the new policy in more detail.²⁰⁰ That Statement explained that private armed guards would only be permitted under “exceptional circumstances,” defined as where (1) the ship is transiting on the high seas through a specific area posing a high risk of pirate attacks,²⁰¹ (2) the ship is following the latest IMO best management practices but has concluded that they are insufficient to protect it against a pirate attack, and (3) the use of armed guards is likely to reduce the risks to the lives of those travelling on board.²⁰² Along with the Statement, the government published its Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend against the Threat of Piracy in Exceptional Circumstances.²⁰³ The Guidance sets out the government’s policy on the use of armed guards on board UK-flagged ships and the rules regarding the use of force, command responsibility, and the carriage and transport of arms.²⁰⁴

The Danish government only yielded to ship owners’ requests to be allowed to hire armed guards for individualized protection in May 2011.²⁰⁵ Prior to that time, the government had strongly opposed the use of private armed guards on board ships flying the Danish flag.²⁰⁶ It had been concerned about granting civilians the permission to use weapons in self-defense and had feared that pirates would only escalate the violence they used to perpetrate their attacks if they knew that ships were carrying armed guards.²⁰⁷ Recognizing the increasing difficulty that the world’s navies were having in defending against pirate activities that now occur in an expanded geographical range, however, the government changed its policy.²⁰⁸ Nevertheless, the Danish government rejected ship owners’ requests to employ current military personnel as guards on their ships, stating that using scarce government resources would not be cost effective and would run counter to the interest in encouraging international cooperation to deter maritime piracy rather than forging a regime whereby each state protects only its own ship owners.²⁰⁹

Although it has no general law permitting armed defense of its ships against pirate attacks, Norway has, since 2007, authorized the captain of a Norwegian ship to take actions to defend the vessel, including using private armed guards on board.²¹⁰ In July 2011, the government amended its regulations on ship security and arms carriage to more specifically address the problem of maritime piracy by regulating ships’ usage of armed security when travelling in waters known to pose a high risk of pirate attacks.²¹¹ The government’s subsequently-issued Provisional Guidelines offer explanatory comments to aid ship owners in understanding the new regulations.²¹² According to those comments, the new regulations do not encourage the use of private armed security guards but are intended, instead, to regulate the selection and use of such guards so that the highest possible professional and ethical standards are followed when their services are used on Norwegian flagged vessels.²¹³

Finally, Singapore does not ban the use of private armed guards on its ships, but at the same time, its endorsement of their use appears cautious.²¹⁴ In its Shipping Circular dated 18 September 2012, Singapore advises that the use of armed guards should not be considered an alternative to the effective employment of best management practices or other more passive defensive measures to guard against maritime piracy.²¹⁵ It also notes that the decision of whether to hire such armed security personnel is a matter for ship owners and operators.²¹⁶ Nevertheless, it warns that the decision should be made “after a thorough risk assessment and after ensuring all other practical means of self protection have been employed.”²¹⁷ Singapore refers ship owners and operators to the IMO’s Circular for a list of the factors and considerations that should guide such risk assessment.²¹⁸

The sections that follow explore and compare several specific aspects of the laws and guidance of these five states as they relate to the various risks that have been previously identified as being associated with permitting private guards to aid in the fight against piracy.

One risk associated with using private armed guards in the fight against piracy is that not all will be well-trained and prepared to act in a lawful and proper manner when defending ships against attacks. To the extent that states want to guard against such risks, they might regulate the PMSC industry or in some way vet the guards that ship owners are permitted to hire. A review of the laws and guidance of the five states that are the subject of this study, however, indicates that at least these states are not willing to undertake such tasks. For the most part, these states have gone on record and cautioned ship owners to be diligent when hiring guards but have otherwise made clear that they are not in the business of passing on the competence of the guards that their ship owners hire.

For example, the United States warns ship owners that any security personnel hired by U.S. flagged ships must be fluent in English and must also meet certain training requirements enabling them to effectively defend the vessel and crew while in high risk waters and in accordance with the approved protection plan for the vessel.²¹⁹ In addition, it cautions that any security personnel should be trained in the use of any firearms that they are carrying, weapons safety, and the lawful use of force in self-defense and defense of others.²²⁰

The United Kingdom only allows ship owners to hire armed guards if the owners file with the government a counter-piracy plan indicating why this extra level of protection, beyond following best management practices, is necessary.²²¹ And it reminds ship owners that the presence of armed security personnel could lead to an escalation of violence.²²² Nevertheless, the government notes that it has no accreditation process for PMSCs and warns ship owners to be “extra vigilant” in selecting the company from which to hire security personnel.²²³ The only other protection against the possibility of untrained, “cowboy” guards operating on the high seas is the government’s outline of the types of due diligence that ship owners should undertake when selecting a PMSC.²²⁴

The new Danish counter-piracy strategy gives ship owners the possibility of applying for a firearms certificate to use armed security on board Danish ships as long as it is perceived necessary based on the general threat assessment for the area “and as long as the specifics of the case, also in terms of compliance with Best Management Practices, do not otherwise speak against it.”²²⁵ According to the government, the intention is to make the application process as flexible as possible, while at the same time “ensuring that no available personal data on the guards gives cause for concern when issuing a firearms certificate.”²²⁶ Ship owners must provide the government with various items of information to obtain the firearms certificate. They must identify the PMSC and the specific guards they intend to hire and provide those guards’ certificates of criminal record, information on their training and experience in arms operation, and copies of any valid arms licenses.²²⁷ In addition, ship owners must identify the specific weapons to be brought on board the vessel and whether the arms will be carried out of and into Denmark.²²⁸ Nevertheless, Denmark does not oversee any vetting process for guards, instead leaving the ship owner to determine the guards’ suitability.²²⁹

Similar to the United Kingdom, Norway requires its ship owners to conduct a risk assessment of passive and active unarmed measures and consult with the ship’s captain before deciding to hire armed guards.²³⁰ In addition, any ship owner that hires armed security to protect its ships must provide certain documentation to the Norwegian Maritime Directorate outlining the reasons why more passive defensive measures will not be adequate, the suitability and qualifications of the security firm and the particular guards to be hired, and the procedures for safely handling and storing firearms and ammunition.²³¹ The documentation is designed to make companies employ due diligence in selecting a security firm and provide the government with some necessary information should it later need to investigate any alleged unlawful use of force.²³² The government, however, specifically states that it is under no duty to conduct a quality check on security firms and will only disqualify a security company if it has received specific and credible information showing that the firm is clearly unsuitable.²³³

Finally, Singapore simply refers its ship owners to the non-binding guidance contained in the various IMO Circulars, including one that details some due diligence in which ship owners should engage before hiring a PMSC company.²³⁴

There is also some concern that private guards may not be aware of or be willing to comply with applicable rules regarding the appropriate use of force. As described below, the evidence indicates that some states are providing some information about when guards may use deadly force. On the other hand, the comparison of state laws also shows that states are not uniform in their guidance and that some guidance is more detailed than others. States seem to be aware that guards may be subject to the laws of different jurisdictions depending on where and under what circumstances they are called upon to defend against a pirate attack, though they seem unwilling to opine on the laws of other states and the circumstances under which guards may find themselves criminally or civilly liable for using force that another state may deem excessive.

The guidance provided by the United States in this regard is illustrative. It allows ship personnel to use deadly force in self-defense or defense of others only when an individual has a “reasonable belief that the person or persons to which the deadly force would be directed poses an imminent danger of death or great bodily harm.”²³⁵ Whether an imminent danger exists requires a fact-specific inquiry focusing on whether the attacker has the means and opportunity to do an act that may cause great bodily injury or death to others. Means and opportunity to perform a deadly act exist when an attacker has, or has apparent access to, a weapon that can be used against others and makes a movement that could cause another to believe the attacker is threatening great bodily harm – for example, pointing a weapon.²³⁶ More specifically, the guidance states that deadly force may be used when individuals without legal authority fire at, attempt to fire at, or attempt an armed boarding of a United States vessel carrying embarked individuals.²³⁷ The guidance recognizes that the captain has command authority over the vessel and that any use of force “is subject to the direction of the vessel master.”²³⁸ Before employing force, the ship’s captain should consider all of the circumstances and resort to deadly force only where there is evidence of imminent danger of death or great bodily harm.²³⁹

In the Coast Guard Authorization Act of 2010, the United States has also taken what appears to be the unique step among the states in this study of immunizing from liability for monetary damages those persons who defend a United States vessel against an act of maritime piracy while complying with the self-defense rules outlined above.²⁴⁰ At the same time, the Act makes clear that the United States can only immunize persons from liability under U.S. law – meaning that individuals could still face liability for their conduct in other jurisdictions.²⁴¹ It nevertheless states, in the text of the new Act, that the United States will work through the International Maritime Organization to persuade other states to enact limitations on liability similar to those established by the provisions of the Act.²⁴²

By its June 2012 Interim Guidance, the United Kingdom also provides some direction on what constitutes the appropriate level of force that may be used to defend against a pirate attack. In general, one could characterize the country’s approach as a cautious one. The United Kingdom specifies that guards may use force, including lethal force, in self-defense or in defense of others as long as the amount of force used “is proportionate and reasonable in the circumstances as the defendant genuinely believed them to be.”²⁴³ A guard need not wait for the aggressor to strike the first blow if the person believes that a threat of bodily harm is imminent.²⁴⁴ On the other hand, the Guidance explains that security teams should be seeking to disrupt any attempted boarding of the vessel “using the minimum force necessary.”²⁴⁵ In addition, any escalation in force should be graduated, and security personnel should not “needlessly escalate a situation.”²⁴⁶ Indeed, the Guidance warns that any measures that show the ability to use force, such as making firearms visible or firing warning shots, should be carried out “so as not to be taken as acts of aggression.”²⁴⁷ As to using reasonable and proportionate force to prevent a crime more generally, the Guidance explains that piracy is a crime that can be defended against.²⁴⁸ It also notes, though, that the defense is only available to respond to crimes “in progress.”²⁴⁹

Like the United States’ policy, the United Kingdom’s policy recognizes the captain’s command authority over the vessel and over any decision to use force.²⁵⁰ The Guidance states that the security team has to advise the captain of any responses available to counter any threat should the ship or crew be in danger of an attack.²⁵¹ Thereafter, the captain “will be responsible for determining and exhausting all available options before recommending potential armed intervention to overcome a piracy threat.”²⁵² At the same time, the Guidance recognizes that there may be situations where the crew has “insufficient time” to seek the approval of the captain “before a course of action is taken.”²⁵³ In such cases, the security team must inform the captain about the course of action taken “as soon as possible afterwards and explain their reasoning for acting as they did.”²⁵⁴ In the event of an altercation with pirates, the United Kingdom advises that the captain and security team should both make detailed reports of any incidents to the relevant international institutions.²⁵⁵

Unlike the United States, the United Kingdom does not have a law specifically immunizing from civil monetary liability those who adhere to the legal standards regarding the lawful use of force in self-defense and defense of others in responding to pirate attacks. On the contrary, the Guidance explains that although having complied with “rules on the use of force may serve to reduce the risk of armed guards acting unlawfully,” should criminal charges be brought, “[i]t would be for the enforcement agencies and then the court to decide whether the force used in the particular case was lawful.”²⁵⁶ Moreover, the government offers no guidance on the laws of other countries, except to note that security personnel could be liable under laws of other jurisdictions for unlawful use of force depending, for example, on where the acts took place.²⁵⁷

Norway’s guidance on the use of force by armed guards can also be described as cautious in approach. In Norway, the use of force by individuals – including private armed security guards – is limited to cases “of necessity or self-defence, i.e., cases in which there is no other way out and in which the requirements of necessity, reasonableness and proportionality are observed in connection with the use of force.”²⁵⁸ But the guidance advises that the use of force should be avoided whenever possible; should only be employed after other, less radical measures have been attempted; and should only be used against a threat that is “direct, immediate, significant and otherwise unavoidable.”²⁵⁹ Further, firing shots at a person to render him harmless may only occur after other, gentler means have been employed or where no alternative has any chance of success.²⁶⁰

In Norway, the decision of whether to authorize the use of force rests with the ship’s captain.²⁶¹ Any use of firearms must be approved by the captain in each individual case and, if circumstances permit, only after attackers are warned by means of light and sound signals and warning shots.²⁶² While any such use of force must be “proportionate in view of the scope of the threat and the conditions otherwise,”²⁶³ the guidance notes that the captain has significant discretion “when faced with an unclear and apparently precarious situation.”²⁶⁴ In fact, even when pirate vessels are 2,000 meters away, the captain may reasonably conclude that a pirate attack is immediate and may require the use of force to repel.²⁶⁵ The captain is also charged with the task of having to report to the appropriate government entity any use of firearms to repel a pirate attack, including that which results in injury or death.²⁶⁶

Persons employing force will only be immune from criminal prosecution under Norwegian law if the use of force is not excessive.²⁶⁷ Because individuals must in every case independently determine whether their use of a firearm is lawful, individuals may be criminally liable for excessive use of force even if acting in accordance with the captain’s authorization. Because the ship owner and the captain are responsible for establishing conditions under which force may be used, in some cases both may also be liable in the event an individual marksman’s use of force is excessive.²⁶⁸ On the other hand, if the marksman acts contrary to the captain’s instructions, the marksman will likely be the only subject of any criminal prosecution.²⁶⁹ In some special cases, criminal liability may even attach to the security firm from which any guard using excessive force was hired.²⁷⁰

Neither Denmark nor Singapore provides any specific guidance on the appropriate level of force that guards may use to repel pirate attacks. Denmark does refer ship owners to the various IMO Circulars on the use of private armed security guards.²⁷¹ Singapore’s Shipping Circular notes that while the crew and any private security personnel may lawfully bear arms, “they will still be liable under Singapore’s laws if they use their arms on board the ship without lawful excuse, as a person on board is not exempted from criminal liability in respect of any offence that he commits on the ship.”²⁷² Otherwise, the Circular refers ship owners to the remaining guidance contained in the IMO’s Circular, which, it notes, contains advice on the command relationship between the captain and any security team, the rules regarding the use of force, the management of arms and ammunition, and the need for proper recordkeeping.²⁷³

Using private armed guards also poses risks associated with weapons carriage and transport. The need to comply with various state laws can be a burden but has also created a situation in which PMSCs are stocking floating armories on the high seas – a situation which could create significant problems if those arms are not properly safeguarded.²⁷⁴ Again, however, the comparison of state laws and guidance shows that states are taking different approaches to dealing with the potential issues relating to weapons carriage and transport. Moreover, the comparison suggests that states could regulate much more comprehensively than they are: their guidance, for example, does not address floating armories or the fact that guards can rent any number of automatic weapons in foreign ports.

In the United States, for instance, ship owners and guards must comply with U.S. weapons laws, as well as with any applicable port state laws regarding weapons carriage. Most particularly, they must comply with the International Traffic in Arms Regulations (ITAR), which require individuals and corporations of the United States to obtain a license in order to export or import, among other things, firearms and ammunition.²⁷⁵ The terms “exporting” and “importing” include any manner of “sending or taking” the prohibited articles out of the United States.²⁷⁶ Under some circumstances, individuals may qualify for an exemption from ITAR’s licensing requirement, but in that case they will only be allowed to export up to three non-automatic firearms and 1,000 rounds of ammunition.²⁷⁷

According to a Port Security Advisory issued in 2010, United States vessel operators may apply for a temporary export license under ITAR should they decide to board firearms.²⁷⁸ Such licenses are valid for up to four years and may be used for multiple trips to and from the United States.²⁷⁹ To obtain a temporary license, the ship owner must identify the precise firearms and ammunition that would be carried on board the vessel and must also list the foreign countries for each port of call the ship will visit during that time period.²⁸⁰ While the temporary license would allow the ship owner to alter the personnel travelling on the vessel, it would not allow the firearms to be transferred to any other vessel.²⁸¹ The Advisory explains that to be eligible for a temporary license under ITAR, the arms must be for the individual applicant’s exclusive personal use.²⁸² In addition, because the exemption only applies to individuals, it cannot be used by companies that “desire to hire security teams that will not travel with their weapons or where weapons will be transferred from one security team or crew member to another.”²⁸³ In such circumstances, the vessel owner should obtain a temporary license to cover the vessel’s carriage of weaponry.²⁸⁴

The Advisory also notes that United States law places other restrictions on the use of firearms, such as registration and transfer approval requirements, with which vessel owners and individuals must comply.²⁸⁵ It also emphasizes that vessel owners and operators, as well as PMSCs, must comply with any weapons carriage or transport laws of foreign states in whose ports they call or through whose waters they pass.²⁸⁶ On the other hand, vessel owners and individuals may avoid ITAR licensing requirements should they purchase weapons in a foreign country and stow them while in a foreign port (assuming doing so does not violate the laws of the applicable foreign country).²⁸⁷ Should they seek to bring those weapons back into the United States, however, they would have to abide by United States weapons importation laws.²⁸⁸

Like the United States, the United Kingdom also regulates the carriage and transport of weapons by armed guards.²⁸⁹ The June 2012 Interim Guidance explains that only members of the security team are permitted to handle firearms on board UK flagged ships and that no person may possess a prohibited firearm without obtaining the proper licenses.²⁹⁰ The government and its police will conduct background checks on the PMSC and its personnel before granting any license to carry “prohibited firearms” on British ships.²⁹¹ Laws also govern removing firearms or ammunition from the country.²⁹² Thus, British companies seeking to provide armed guards on ships must now obtain a special export license – called an Open General Trade Control License – from the country’s Export Control Organisation (ECO).²⁹³