Engaging private armed guards on board commercial vessels : international legal ramifications under the law of the sea

Abstract

This dissertation examines some of the major legal issues associated with the engagement of privately contracted armed security personnel on board merchant vessels to protect from potential pirate attacks. Since the inception of privately contracted armed security personnel is a relatively recent development, no clear international rules existed providing for their use. Nevertheless, this dissertation explores the relevant provisions in the main international treaties which have a bearing on the operations of privately contracted armed security personnel. Issues relating to the operations of privately contracted armed security personnel arise primarily due to the multiple jurisdictions that can apply depending on where the vessel is located or the activities it is engaged in. Furthermore, this dissertation examines whether the carriage of arms and/or armed guards on merchant vessels conflicts with the right of innocent passage afforded to ships of all States. Moreover, the work considers whether coastal and port States have a right to enforce their criminal jurisdiction on merchant vessels traversing their territorial sea, in addition to human rights considerations which are made. In the absence of international laws on the use of privately contracted armed personnel, international organizations such as the IMO have adopted soft law instruments for the purpose of guiding relevant stakeholders on the authorization and use of privately contracted armed security personnel. This study addresses these issues. Lastly, the work provides a comparison between the positions of two important flag State registries on the use of privately contracted armed security personnel. This serves to highlight the differing stances adopted by flag States. The dissertation concludes by establishing that the private maritime security industry and the international maritime community as a whole would considerably benefit from the enactment of an internationally binding instrument for the purpose of regulating the operation of privately contracted armed security personnel in a uniform manner.