Part of my academic research for the last three years was focused on the issue of sea piracy, as I have noted before. One particular problem caught my attention. In trying to fight off pirates at sea, ship-owners have resorted to private security companies. But having a private security team aboard, leaves the captain of the ship – properly called the shipmaster – in a bit of a pickle. A recent Dutch proposal to also allow private security on Dutch flagged vessels does nothing to resolve the dilemma that a shipmaster is in. Is he a Master or Commander?
Piracy and Maritime Security
The danger of piracy to the security of global commercial shipping has been real for a while. There have been different fundamental legal challenges and it seems that only practical ones remain. Because states were unable to fully protect their commercial vessels there was increased pressure to allow armed private security companies on board. The Netherlands has been long holding out on ship-owners, arguing that the state’s monopoly on the use of force would be compromised. However, Dutch vessels started to look for other states in which to register their vessels, or covertly employ private security. Being a sea-faring nation, that disturbed some in parliament.
Armed guards and the use of force
But employing private armed guards, overtly or covertly, poses a number of practical and legal challenges. First and foremost, is the question of what rules govern the use of force by those armed guards against suspected pirates. Private individuals only have the right to defend themselves and possibly others who are in immediate danger. Although there have been few incidents involving an egregious use of force by private armed guards, the line can be blurry. Over the years, the maritime security industry has developed guidelines on the use of force, based on the principle of gradual response. From showing weapons to lethal force. At one point during a suspected pirate attack is the private security team allowed to use lethal force? Only practice will tell what the limits are to the right of self-defence.
Master or Commander?
At the same time, the shipmaster – the captain of the vessel – has an interesting position. Traditionally, and legally still, the shipmaster has been the absolute authority on a vessel. Despite being under contract with the ship-owner, the shipmaster can deviate from the former’s instructions once at sea if the shipmaster sees fit to protect the vessel and the crew. The central question that I was grappling with was how to square this seemingly overriding authority with the right to self-defence of the private armed guard. All industry documents or standard contracts between ship-owner and private security company acknowledge the authority of the shipmaster to order the armed guards to cease fire. But does the shipmaster have the authority to actually order the use of force, lethal or not, when the right to self-defence of a private armed guard is not yet triggered? To what extent is the shipmaster liable for any disproportionate, illegal use of force by an armed guard? Is the shipmaster just a Master or also a Commander?
I have laid this topic to rest although I did get to present some of the research a few years ago, and was recently interviewed (via Twitter) for an article at ftm.nl. Unfortunately I have not been able to finish the writing on a proper article before I left the VU, leaving my co-author in a lurch.