A case for armed guards on ships
FOR several maritime piracy watchdogs, the worst of their fears has materialised: Increased incidences of piracy has forced some commercial shipping companies to use armed guards or escorts for their vessels, especially those plying the waters of the strategic Malacca Strait. For littoral states such as Malaysia, the concern is that some of these armed guards or escorts are supplied by private companies.
Following news about maritime armed escorts, the United Nations' International Maritime Organisation (IMO) and several Malaysian officials have expressed reservations - for different reasons - about weapon-wielding guards on board commercial vessels - with armour-plated speed boats strapped alongside the assigned ships in some cases.
The IMO's position against armed escorts is in common with that of the International Maritime Bureau (IMB), a leading authority in countering piracy. They share an anti-piracy philosophy that places primacy on the safety and welfare of commercial seafarers. Consequently, they fear that radical measures might spark a backlash from piracy syndicates.
The use of armed escorts - whether private or from state militaries - contravenes their prudential approach. First, they consider the use of arms on board a vessel an aggressive move that can instigate an 'arms race', compelling pirates to counter this by employing heavier weapons. Second, an on-board shoot-out between the ship's defenders and pirates may risk incurring high casualties among the ship's crew.
Bodies like the IMO and the IMB have attempted to focus the private sector instead on more benign means of protection, such as using new technology. The IMB, for instance, has supported the use of a Dutch-designed electrified fence system covering the perimeter of a ship's deck to deter pirates from boarding.
In contrast, most regional states concerned with the threat of maritime piracy (as well as terrorism) do not in principle object to the role of armed escorts. Singapore and Malaysia's recent decision to provide armed escort services indicates that regional governments are willing to take some risks in using such personnel.
The real issue for countries such as Malaysia is the use of private armed guards. This hinges on the prevailing paradigm of international law relating to the innocent passage of vessels through a state's territorial waters. As the convention on state sovereignty dictates, the legitimate monopoly over the use of force in matters of security lies with the state and not with vessels seeking passage.
While state-sponsored armed escorts are in line with a country's legal hold over the use of force, the supply of such services by private companies can be viewed as prejudicial to innocent passage. This helps explain the Malaysian authorities' response in the form of a directive to its marine police. Vessels providing armed escort services to merchant shipping could be considered a terrorist threat and their crew could be arrested if they encroached on Malaysian waters, according to a Bernama news agency report on April 26.
One official was quoted by Bernama as saying that hired armed escorts were 'mercenaries being paid for performing specific tasks' and could not be allowed into Malaysian territory without a permit from the host government.
Indeed, the presence of armed escorts with a ship entering the waters of a state raises certain legal questions.
First, international maritime law makes a sharp distinction between the manner in which merchant and naval vessels are authorised to enter the territorial waters of a state. To facilitate international maritime commerce, nations can grant foreign merchant vessels standing permission to enter their waters, in the absence of notice to the contrary. Naval vessels and their 'auxiliaries' - a word that used to be synonymous with 'mercenary' - on the other hand, require specific and advanced permission for entry, unless other bilateral or multilateral arrangements have been concluded.
It stands to reason that merchant vessels accompanied by private escorts should be considered under a category similar to naval vessels. This is because armed escorts actually add an auxiliary function.
Second, a private security company receiving a licence to base its operations in one country, and which is contracted by a shipping line to escort its vessels, may not have the authorisation to carry out its full scope of activities at sea when it sails into the sovereign jurisdiction of another state. Unless the host country recognises these licences and contracts through some prior arrangement, the laws of the land (and the sea) determine that private escorts do not have any sanctioned powers to pull the trigger on an approaching pirate.
Third, the issue over licences raises questions of whether private security companies are competent enough to handle and store firearms. It also raises issues of accountability. It is clear who navies and maritime law enforcement outfits are accountable to, but not entirely so in the case of private armed guards.
Yet despite the kind of problems that private security companies create, more states and international organisations are turning to the private sector as a means of procuring services that were once the exclusive preserve of the military.
Similarly, in a region facing a maritime deficiency in resources, manpower and equipment in securing about 960km of waterway through which 50,000 vessels pass annually, private security companies can play a vital role in improving the security of commercial vessels plying the strait.
As a result, the time may have come for private armed escorts to be viewed as another addition to the array of counter-measures against piracy.
Malaysian Foreign Minister Syed Hamid Albar's subsequent proposal last week, that the region should set guidelines for the kinds of weapons that vessels are allowed and the manner they are allowed to carry them, indicates that greater consideration could be given to the provision of private armed escorts. His suggestion of a meeting on the matter in Batam next month also reflects Malaysia's commitment to follow the issue through in consultation with its neighbours.
Indeed, in the face of the piracy threat, there is an immediate need to work out the necessary maritime legislation and multilateral coordination that will facilitate the operations of private armed escorts. Also, a regional licensing regime must be established in order to distinguish between reputable private security companies and those with a more mercenary inclination.
And strict industry and safety standards must also be set up in close consultation with military and law enforcement agencies to ensure that these security services deter and suppress piracy rather than attract it, as well as to prevent operational mishaps during a voyage. Clear boundaries must also be created to determine what private armed escorts can and cannot do in relation to the functions played by navies and law enforcement agencies.
So, in light of the possibility that ships with armed escorts may be unwittingly encouraging pirates to prey on vessels that do not have such facilities, alternative security provisions - such as broader naval patrols or the extension of state-sponsored armed escorts to more ships - must be present to offset the possible negative externalities that private armed escorts create for ship owners who do not hire such services.
The writer is a research associate at the Institute of South-east Asian Studies.