This is interesting, and this will certainly be a legal nightmare to produce. The reason why is the UK is a signatory of the Paris Declaration and the Second Hague Conference in 1907. Not to mention their local laws that deal with citizens owning and using weapons.
Although there is precedence for Britain to ignore these treaties. During WW 1, they implemented a strategy against German U-boats called ‘Q Ships’. Or basically they armed merchant vessels to attack the enemy at sea. What made this strategy interesting is that they actually wanted the vessel to look like a defenseless merchant vessel so German U-Boats would attack them. The point is, is this was a violation of these treaties, and that is precedence. (someone please correct me here if I am wrong, but Global Security identified this point as well)
Now is this a revival of a modern day version of Letter of Marque and Reprisal? It could be, but they probably will not call it that. But it is a license to arm a merchant vessel, and that is significant. The article below also identified Denmark as seeking a similar path of creating an arming license.
It’s kind of like how the US licenses private companies to be armed or provide defense related services abroad via the ITAR and DSP 73. I guess the point is that states will work around the law and treaties, if it is within their best interest to do so. But as the Export Law blog has identified, there are many ‘technical’ obstacles to arming vessels.
My thoughts on the matter is that they might as well revive the Letter of Marque and Reprisal, just because the laws created continue to morph into exactly what the LoM is all about. It will also give vessels more legal authority to sail and not get screwed with by other countries for being armed. The incident between India and the Danish flagged Danica Sunrise highlights the complexities of being armed on the open ocean, and these vessels need internationally recognized authority to be armed.
A LoM is essentially a license that ‘puts the flag of a country’ on that vessel to do what it is doing. A LoM is also signed by the highest authority of that country and there is law (admiralty law, prize courts) and history (hundreds of years of it’s usage) to support the concept. All other licenses pale in comparison.
The other interesting thought that came to mind is if a vessel had armed guards, could that vessel defend itself against a state sponsored act of piracy or outright attack? Let’s say China or Iran wanted to detain an armed merchant vessel, seize the loot on the boat and imprison or even kill all the crew. If the threat was imminent, would a vessel and it’s armed crew have the right to defend itself against such a naval assault?
Who knows, but as it stands now, a merchant vessel being attacked by a country could be viewed as a company versus a state, and less like an act of war. If that company has arming authority through a license, then how does that work in such an example presented? It is an interesting question, but as we allow shipping to be armed, these kinds of scenarios will present themselves. In this case, if ships are to be armed, then these possible scenarios should be covered by laws and licenses, and international treaties should be made or modified. Hence why I go back to the LoM, because it has such historical precedence throughout the world.
The other point that needs to be addressed is the rules for capture or enemy prisoners. Because what if the guards on a vessel fire upon a skiff with pirates, and their boat starts sinking? Or the pirates just give up and surrender to the vessel for some reason. Or a wounded pirate is the last survivor on a boat, and asks to be given care? What about prisoners? There should be a mechanism in place that allows for the detention of pirates, and the legal processes an armed merchant vessel must follow for that detention. Perhaps video cameras on ships would be a good thing to have, just to legally protect the ship in a court of law when these pirates are detained and charged. The way I envision this is that video tape, witnesses, and GPS coordinates for where the incident took place, would be some excellent tools for a vessel to have in order to help protect themselves legally and to help in the prosecution of pirates. Without provisions like this, then in essence the whole ‘catch and release’ game continues.
And like with the early privateers, unless they have an incentive to detain prisoners, they will not be that enthused to take them. Do we want armed guards of a vessel to be in a position to ‘turn away’ pirates that are surrendering to them, just because it is not profitable or legal to do so? Or the ships insurance or budget does not provide for the care or detention of prisoners. For those of you who are students of ‘offense industry‘ you will recognize quickly what I am getting at here. At present, there is no offense industry in place to capture prisoners and reduce the number of pirates that continue to ravage the shipping industry. There is only ‘defense industry’, which only profits from the continuation of piracy. Reducing the number of pirates through culling or capture is not a main focus of defense industries.
Also, to be technical, the terms of the treaties signed have more significance between all the parties that ratified the thing. The main threat to shipping is pretty much from Somali pirates, so the LoM’s to be issued would be against folks who come from a failed state. (Somalia is not a signatory of these treaties either.) But of course I am simplifying this, and any legal eagle out there could probably find some portion of the treaties or international law that would still prevent the LoM being used against pirates. If any lawyers or readers have any legal input on where this will go, or what this will potentially look like if they create an arming license, let us know in the comments. –Matt
Edit: On a side note, JLT has been itching to fire up their private navy, and legal authority is what they have been seeking.
Britain To Give Legal Backing To Armed Guards On Vessels
May 16, 2011
Britain is preparing to give firm legal backing to the deployment of armed guards on UK-flag ships.
Legislation is being drawn up that will formally accept the use of private security personnel on ships sailing through waters where pirates are active.
Although many ships are known to have armed protection, including a considerable number operated by UK-based companies, the legal position remains uncertain. Both the shipowners who employ armed personnel and the guards themselves could, technically, be in breach of the law.
The UK is now poised to remedy that situation, changing the law where necessary to ensure shipowners whose vessels have firearms on board are not at risk of prosecution. The British government is thought to be one of the first to promise statutory changes. Denmark has taken similar action
“We have to accept [piracy] is happening, but if a UK-registered ship has armed security on board, I must make sure the legislation is fit for purpose,” UK shipping minister Mike Penning told Lloyd’s List.