A Study On The Legal Issues Of The Use Of Private Armed Security Guards On Board Ships

In recent years, the use of private armed security guards(PASGs) on board ships is quite popular in the pirate-infested waters of the Gulf of Aden and the Indian Ocean. As one of anti-piracy measures taken by ships, the use of PASGs tends to normalize and universalize. Along with this trend, people are concerned about the risks and legal issues arising out of using PASGs on board ships.Bear the brunt of legal issues involved is use of force by PASGs. There have happened several incidents of PASGs using weapons against pirate attacks, raising the concern that use of PASGs may upgrade the degree of violence in maritime context. A series of questions has come: Under which circumstance PASGs may use force? Whether the use of force should be limited? Between PASGs and captain, who has authority to order the use of force or stop to use.It’s the only way that legal regulation of the use of PASGs on board ships ensures PASGs `behavior lawfully. On international level, there is no international convention which direct applies to the use of PASGs on board ships. It will be analyzed that whether existing international documents which apply to private security company also apply to the use of PASGs on board ships. On domestic level, different modes and contents of regulation between states is worth studying.This paper studies the following aspects: the basic situation of the use of PASGs on board ships; the powers, duties and responsibilities of private armed security guards; legal regulation of the use of PASGs on board ships. Based on these studies, the paper makes specific recommendations on how our country to deal with the use of PASGs on board ships. Therefore, this article is divided into the following sections:The first chapter introduces the basic situation of the use of PASGs on board ships. First, three aspects about the use of PASGs on board ships is introduced: background, market and the effectiveness of anti-piracy. Then, from both internal and external analysis, reasons for the rise of the use of PASGs on board ships are discussed. The final analysis focuses on the attitudes of main international shipping organizations towards the use of PASGs on board ships. Somali pirates threats to maritime security in the Indian Ocean and the Gulf of Aden is the background against which the use of PASGs on board ships rises. Although maritime military enforcement actions curb, to some extent, the arrogance of Somali pirates, hijacking incidents has decreased, but the imbalance between the ever-expanding operational area Somali piracy infested and the scarcity of available military resources makes it increasingly difficult for ships to obtain rescue timely. Moreover, the existing international legal regime cannot effectively deal with Somali pirates’ violence at sea, Somali pirates has become a serious concern of shipping industry. To safeguard its own security interests, out of consideration to reduce operating costs, shipping companies have chosen the use of PASGs on board ships. This practice has also been recognized by the IMO and BIMCO, both of which are important international shipping organizations.The second chapter analyzes the rights, duties and responsibilities of PASGs, in order to respond to the aforementioned legal issues related to the use of force by PASGs. In general, PASGs has power to use force in self-defense or defense of others, guidance documents of the United Kingdom and the United States can be used as examples to demonstrate it. In order to avoid the abuse of use of force, reactions of different levels should be required to make by PASGs to deal with different levels. The use of force is the last resort. The captain of the ship is responsible for the security of ship and has the right to decide what measures to take against the pirates attacks, including the use of force, and therefore PASGs should be subject to captain’ s order. In addition, PASGs is entitled to take short-term detention of pirates, but those pirates should be seized and handed over to warships or law enforcement department of coastal states as soon as possible. PASG`s behavior may be subject to several jurisdictions, and they should comply with relevant national laws, or they will bear the responsibility for violations. In particular, PASG will bear criminal responsibility when he unlawful use of force caused casualties.Chapter 3 studies the legal regulation of the use of PASGs on board ships from the domestic and international levels. On International level, there is no international convention which direct applies to the use of PASGs on board ships, but there exists international documents applying to the regulation of private security companies, Montreux Document and International Code of Conduct for Private Security Providers(ICo C). Montreux Document which is applicable during armed conflict does not apply to the case of the use of PASGs. It is still controversial that whether ICo C is applicable to the private maritime security company. In addition, International Maritime Organization also issued two guidance documents, Interim Guidance to Shipowners, Ship Operators, and Shipmaster on the Use of Privately Contracted Armed Security Personnel on board Ships in the High Risk Area and Interim Guidance to Private Maritime Security Companies Providing Privately Contracted Armed Security Personnel on board Ships in the High Risk Area, both of which have the similar contents about qualification requirements of private maritime security company, selecting, vetting and training requirements of private armed security, as well as terms and conditions shipping companies and private maritime security company entered into a contract should contain. Although these international documents lack of legally binding, failing to effectively regulate the use of PASGs on board ships on international level, but they are playing important role in improving domestic legal regulation of the use of PASGs on board ships. On national level, legislation or policies relating to the use of PASG on board ships of flag, coastal and port states are the objects of analysis. The flag state `s legal regulation focuses on three areas: first, the conditions under which the ship can employ PASGs; secondly, the qualifications of the private maritime security company and their employees; third, weapons management. For coastal state, the ship on board PASGs enjoys the right of innocent passage through the territorial sea; although in theory the coastal State seems not to regulate the use of PASGs on board foreign ships within its territorial waters pursuant to section 21 of UNCLOS, based on the sovereignty coastal state can adopt laws and regulations, but such laws and regulations shall not substantially impair the innocent passage of foreign ships. As regards to port state, it is entitled to enact regulations, require foreign ships carrying PASGs to get license before sails into the territorial water, regulate storage and management of arms and security equipment. Considering the status of domestic and international legal regulation of the use of PASGs, this paper proposes three suggestions: making international rules, improving the domestic law, enhance the self-discipline of the private maritime security company.The world’s major maritime states are allowing their ships to use PASGs. Out of the need for protection of the China’s shipping industry and international trade, Maritime Safety Administration has issued relevant departmental rules, contents of which is so over-simple that it needs to be revised and improved. In order to safeguard the security interests of Chinese shipping companies, Chinese private security companies should be encouraged to carry out PASGs escort services. However, the current legal regime, which mainly consists of Regulation on the Administration of Security and Guarding Services and Measures for the Public Security Organs to Implement the Regulation on the Administration of Security and Guarding Services, cannot provide legal support for Chinese private security companies intending to carry out the services. Therefore, making specific law or adopting amendment to exiting law will be suggested. The goals of these new rules include: confirm the legitimacy of China’s private security companies to carry out PASGs escort business; clarify qualifications armed security companies and its personnel should comply with, establish reporting system; finally, improve our regulatory regime of private armed security escort services.