Armed men on board merchant ships – boon or bane?

There has been considerable debate and acrimony over many questions of international law involving the tragic incident of shooting and killing of two unarmed Indian fishermen by Italian Naval guards on board MV Enrica Lexie on February 15.

Ever since the Indian authorities detained the ship, and instituted murder charges against the guards, a diplomatic row has arisen with Italy insisting that India does not have jurisdiction to try the crew of an Italian ship sailing beyond India's territorial waters. On the other hand, Indian authorities insist that the perpetrators will face Indian law as the victims were Indian fishermen on board an Indian fishing vessel. The incident has also rekindled the debate on the desirability of the use of armed guards for protection of merchant ships from piracy.

While the investigating authorities would be analysing the circumstances surrounding the unfortunate incident, it is pertinent to examine the circumstances leading to the deployment of armed guards for protection of merchant ships as well as the legal issues involved therein.

Rising Costs

The human as well as the economic costs of piracy have been enormous. A study carried out by Oceans Beyond Piracy estimates the economic cost of Somali piracy at $7 billion for 2011. Shipping lines are affected and have begun employing private armed guards on ships, hoping that the presence of armed men on board would act as a deterrent. Until recently, most countries had strongly discouraged the use of private armed guards on board ships. However, Somalian piracy has forced a paradigm shift and many countries such as the UK, the US and India, have framed policy to enable armed guards on board ships traversing through high-risk waters.

In actual practice, however, this new policy has thrown up more problems than expected. A number of ‘maritime security companies' have jumped into the fray, but the quality of manpower employed by many of these companies is questionable. There have been reports of inadequate professional expertise, sloppy behaviour and failure to follow safety regulations. What is worrisome is the absence of standards or appropriate regulations to reign in the security companies or clear guidelines on the use of force, particularly lethal force, on when to use the force and how much.

If the private armed guard on board spots an armed skiff approaching at high speed, should the guard open fire? What if they make a mistake in their assessment and fire at an innocent fisherman as in the Italian ship shooting case?

IMO GUIDELINES

The International Maritime Organisation (IMO) has been spearheading a number of initiatives to safeguard human life and protect the shipping industry from the scourge of piracy. Last year, the IMO issued guidelines on the use of privately contracted armed security for protection of ships traversing the high-risk zones.

The IMO guidelines, while stating clearly that it does not endorse such deployment, point out that all armed personnel shall be subject to the laws and jurisdiction of the flag State and further, that the port and coastal States' laws may also apply to such vessels. Most importantly, all reasonable steps should be taken to avoid the use of force and if force is used, it should be in a manner consistent with the applicable law, the primary function being the prevention of boarding, using the minimal force necessary. In no case should the use of force exceed what is strictly necessary, and in all cases should be proportionate to the threat. Firearms are not to be used against persons except in self-defence or defence of others against the imminent threat of death or serious injury.

Minus factors

The presence of armed guards on board ships may also create legal complications, as they often fall foul of laws of other coastal countries. Often, authorities would be suspicious of armed personnel from other countries loitering within their territories and may either deny permission or outright ban them. Foreign nationals found to be in possession of firearms without appropriate licences could even face arrest and prosecution in certain countries.

Even the industry is somewhat sceptical about the new practice. Many in the shipping industry feel that this would only ‘shift the problem elsewhere.' The Secretary General of the International Chamber of Shipping is quoted by Reuters as saying: “To date, no ships with armed guards on board have been captured. But pirates will respond with increased firepower to overwhelm the armed guards, and when that happens, the impact on the crew will be pretty dreadful.”

One of the major complications could be the criminal liability of acts on the part of armed guards. And this brings us to the more complicated question of criminal jurisdiction of coastal States. It is well established that coastal States have absolute sovereignty and prescriptive legislative jurisdiction over their territorial waters. While ships of other countries enjoy the right of innocent passage through the territorial sea, such passage shall not be prejudicial to the peace, good order or security of the coastal State. In the exclusive economic zone too, the coastal State has sovereign rights for the purpose of exploring, exploiting and managing the natural resources.

Freedom of navigation is a well-established principle of international customary law, which has been formally incorporated in the United Nations Convention on the Law of the Sea, 1982. However, the 1982 Convention recognises an extraterritorial jurisdiction of any state to search and seize any ship under control of pirates and arrest and punish offenders according to its domestic laws.

The shipping industry needs to take note of the practical difficulties and attendant legal complications before taking a decision to employ privately contracted armed guards on board merchant ships. The case of Enrica Lexie shows that there can be no immunity extended to those who endanger the lives of others, even if they are members of the armed forces of a country.