Posted: 20th December 2017 | Written by: Commander Sean O'Reilly
I’m not a regular listener of BBC Radio 2 (being more of a Radio 4 versus max volume Pink Floyd type), but my attention was grabbed recently by a chatty news item on the release of six British former Servicemen who have just been liberated after being banged up for thirty months, in what was presumably a very nasty Indian prison (don’t misunderstand me – all prisons are supposed to be nasty.)
As far as I could discern, the gutter tabloid style reporting seemed incomplete (they didn’t, perhaps tellingly, mention that the seemingly inconsequential ‘foreigners’ on board, including the Master, were also incarcerated; each having been convicted for the unlawful possession of unlicensed firearms and ammunition). The editorial point was crystal; that their release was unquestionably right and proper. The unavoidable sub-text being ‘how could they (ie HM Government) allow our chaps to be treated like this by Johnny Foreigner; how very dare they?’
Listening to the hapless Geordie former squaddie, accompanied by his sister who had championed the ‘cause’ of the Chennai Six, as they have famously become known, I was struck, nay gobsmacked, by the shocking lack of understanding (including that of a BBC journalist who should have known better) of even the most fundamental aspects of jurisdiction and domestic law, flag state law, the law that comes with the privileges attached to being in possession of a passport, and that most arcane of litigious instruments – international law.
Image courtesy of Captain Jean-Maxime Berthet
Complicating matters yet further was the invocation of the International Law of the Sea, which forms the basis in international law of how the world’s oceans, seas and waterways connected therewith are governed (or not). Here’s a snippet to whet your appetite – did you know that the basis in International Law at sea (and trickled down into British domestic law through the Merchant Shipping Act), the instrument that amongst other things mandates the International Regulations for Preventing Collisions at Sea – you’ll know then as the ‘COLREGs’ or perhaps the Rule of the Road) - has not been ratified by several states, most notably the USA.
As far as I can tell, the backroom bar chatter opines thus: any international agreement that allows international arbitration of disputes is not ratified by the US on the single premise that any US citizen arraigned before an international court will be discriminated against simply because they are American. If true, the US State Department cynics might well be correct; they don’t recognise the International Court of Justice either. Or Kyoto.
I digress, but only a little. So, what’s this got to do with large commercial and ‘private’ yachting? Let us, for now, pop in the back of our minds, that the vast majority of yachts (most certainly alongside stern to in Antibes), regardless of their beneficial ownership, wear a Red Ensign – the one with the Union Flag in the top left corner; the one that binds its occupants to observe British (and its overseas territories’ and dependencies’) laws anywhere, any time.
Now, cast your mind back a few years to those challenging days when marauding buccaneers, corsairs and Somali pirates were wreaking havoc in the north western Indian Ocean. Taking many a ship and its crew hostage, they anchored illegally seized vessels inside Somali territorial waters (that is, less than 12 nm to seaward from the baseline, in effect the bit when the beach meets the oggin – the low water mark). It was widely acknowledged, albeit with diplomatic reticence, that all too often the pirates were being paid off handsomely by many a state and/or ship owner or, to put it another way, crime was being shown to pay.
But the British, as a matter of national policy, habitually don’t pay off blackmailing crooks and thieves (hurrah). So, the then Prime Minister, David Cameron, realised that something must be done; but he had to acknowledge that the UK’s own law enforcement specialists, most notably including the Armed Forces (for which read Royal Marines), had neither the capacity nor the time to come to the rescue.
The upshot of this manifestation of the UK’s ongoing military/naval demise was a swift and special legal instrument: the truly astonishing mandate for arming what are effectively civil militia at sea for the purpose of providing a deterrent (often through nothing more sophisticated than an AIS safety message ‘armed security personnel embarked’) and an armed response force against the pirates.
And, stone the crows, it’s worked! Not a single vessel with armed Private Maritime Security Company (PMSC) personnel embarked has been successfully targeted by the pirates who, until recently it seems, were effectively put out of business and cast into the history books but immortalised for posterity by Captain Phillips (every cloud has a silver film, especially in Hollywood).
I can’t resist it – the multi-national anti-piracy naval task group, commanded in theatre by a former Royal Naval shipmate of mine, was assembled, despatched and given legitimacy by, guess what, the European Union. It was the EU – that we Brits have collectively decided to leave - that negotiated and gave credence to the legality of legitimate law enforcement inside Somali territorial waters. Trust me my dear yacht Master, stick with this because it’s all relevant to you.
Image by Captain Mark O'Connell
Relax; I’m not going to burble on about fine points of the law; I am not a lawyer, although I have been a practitioner of law enforcement at sea, and I’ve yodelled in a university lecture theatre where I taught disinterested under-graduates the mysteries of International Law of the Sea. I’ll cut to the quick of what this has got to do with you; what you need to understand.
When you are considering going somewhere potentially dangerous, your first thought, I hope, is the ‘A’ in the passage planning acronym APEM – appraisal. It’s a euphemism for risk assessment, a feasibility study; a simple question to yourself as the Master (and nobody else) – is it essential, sensible, can my vessel and my team actually do it, or even is it necessary that I take my ship there? It is only ships of war (RoR 1c?) that can be ordered knowingly into danger; holidays afloat don’t feature, or at least shouldn’t.
But not everything can be foreseen; risk taking is normal (we do it every time we get into a car) so you might well decide, perfectly reasonably, to go ahead with a challenging passage; all part of the fun of captaincy!
At this stage, have a good google at the available documentation: for example, passage through dangerous waters (ASofNTM No. 3) and NP 100, UKHO chart Q6099, read the latest UK government PMSC guidance (currently BMP4), look at the Security Threat Level, and the FCO website for guidance. There are more, and if and when you talk to a friendly naval officer at a Maritime Trade Office you might well be given specific guidance on how best to tackle and proceed through a High Risk Area; you might even be escorted, maybe not.
And after all this, you might have decided (perhaps you have been told) to embark armed security personnel from a Private Maritime Security Company (PMSC). They must be properly authorised and recognised (weapon trained and certified, hence the vast majority of British maritime security staff are former Service personnel, many from the Royal Marines whose forte is in the maritime environment). And never forget that in a British flagged vessel, British law applies everywhere, at all times. And when you are in another state’s territorial waters – and that includes India! – their laws must also be followed.
Image courtesy of Captain Jean-Maxime Berthet
The booze fuelled stories of questionably legal behaviour and practises are legion: sources from within the maritime security industry have expressed the view that governance of British companies is good, well regulated, but some others are – how shall I put it – less professional in their attitude, training and behaviour. Just see YouTube for the most appalling and shocking videos of the blatant criminality of supposed ‘professional security personnel’.
The process of embarking armed guards at sea can be complex and, as perhaps evidenced by the appalling experience of the Chennai Six, potentially problematic even when you think everything has been covered, thought of, and mitigated against. And where is the parent security company when a well intentioned vessel is intercepted, ‘invited’ into harbour, and found lacking by the authorities whose job it is to uphold the law.
Just like the infamous and hugely embarrassing case of the UK Royal Navy’s sailors and marines being arrested and detained by Iranian forces for alleged unlawful behaviour inside their territorial waters, claiming to be outside national jurisdiction makes little difference at the time. Who do you reckon would be believed in court; the Navy/Coastguard or the accused wrongdoers? And ignorance is no defence; nor, arguably, can it reasonably be offered as mitigation after the event. I have tried to speak to the (US) based company managing the Chennai Six’s vessel, but they have not replied; they are rumoured to have folded, but their website suggests otherwise.
Unsurprisingly, the business of embarking the personnel and weaponry is plagued with yet more potential difficulty, if not properly managed and organised. In some areas, floating armouries offshore – probably in international waters – store weapons and ammunition; in others (including India), licenced and declared weapons and ammunition are held safely ashore by local proper authorities, and released under supervision when required for embarkation.
In the absence of a reception facility, it has been routine in many places at the end of a passage for weaponry simply to be ditched in deep international waters where, remember, flag state law still applies – cue the telly advert: any time, any place, anywhere, there’s a wonderful place you can share... (your prison experiences?) Are you familiar with what laws apply in internationally recognised Contiguous Zones (out to 24 miles from the baseline)? You should be. Does India claim a CZ and is it relevant? Where would you find out?*
Image courtesy of Quinsec
Another couple of snippets to beware of, that will only become GARGANTUAN in their significance when, with virtually no notice, they occur and bite you metaphorically in the ass. I refer to the use of force, or to use the full law enforcement phrase ‘the lawful use of lethal force’ or, the ‘Rules of Engagement’, usually referred to as ‘ROE’ in naval-speak. Much gnashing of teeth goes into this back in the ‘headquarters’ where the rules are authorised for you – the amateur – to follow. It is a truth universally acknowledged that there are few people more dangerous than an armed law enforcement/police officer with a gun, especially when he/she is frightened (and if they need a gun, they will be).
I can think of another: an untrained civvie (with no previous policing experience), with a badly briefed and ill-defined law enforcement role in a ship with a Master who has delegated all security duties to a group of four men eager for ‘action’ (for otherwise I guess they are bored witless). This extreme and unusual situation needs calm, measured command – a Master (of his ship and all on board) with presence and authority. Sources from within the industry have described a wide range of Masters’ attitudes from ‘you are the experts, do whatever you want’, to a less common obsessional control that all but negates the value of security guards’ presence. Like many approaches to unusual circumstances, a position somewhere in between the two extremes is arguably the optimum choice.
The right to defend oneself is enshrined in international and (as far as I know) all domestic law; it is known universally as ‘the inherent right of self-defence’. It even allows the use of lethal force – to kill someone – provided that extreme action was proportionate; for example, if it was reasonably felt that life was threatened, and there were no other options.
It gets a wee bit more complicated still when someone else’s life is threatened, and even more so when someone is, say, pointing a gun at someone – in effect demonstrating hostile intent, but has not yet fired a shot. It is widely reported from within PMSC that it is considered to be lawful to use lethal force when, and if, a weapon is aimed at a person; it is considered not necessary to wait. Winston Churchill’s observation springs to mind, ‘there are few things more thrilling than being shot at... and missed’. Check the small print; ask searching questions.
Image by Captain Mark O'Connell
The rules of the use of lethal force by law enforcement personal are complex but, if you want to know more, start by googling the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. But note that it seems highly dubious that civilian maritime security guards have the status of ‘law enforcement officers’. I’m not sure if it’s been tested in court. Wikipedia ‘The Enrica Lexie Incident’, which is ongoing, if only to try and grasp the Indian perspective on armed security guards at sea (and in this case the guards were Italian Marines).
Have a look also at the right of innocent passage (through another state’s territorial water) in UNCLOS III (Articles 19 and 45) which, amongst other strings of pearls, says ‘passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State’. This is just another of the many examples of the murky opacity of laws and regulations; ‘what does the law actually mean?’ is not a question that should be posed after the event. Was the unlawful presence of weapons and ammunition in the Chennai Six’s ship ‘prejudicial’? The judge presumably thought so. I imagine the boss of the company arguably responsible, at least in part, for this massive balls up had another view, but that didn’t cut any ice in the Indian court (so, in the absence of anything else useful to do, he probably went for a round of golf).
Another couple of observations from the Radio 2 newscast. A clearly experienced, salty merchant Master, seemingly not commanding a Red Ensign flagged vessel, who regularly took his ship into an Indian port, was opining that inward clearance into India is a bureaucratic ‘nightmare’ and that he ‘never had a problem with properly licenced weaponry (backed up with the correct papers) in India’.
Bureaucracy is always a nightmare when it’s done diligently; that’s what it’s for – it’s the price of doing irritating ‘admin’ properly. I recall getting things done in Saudi Arabia felt ‘difficult’ despite the aim invariably being achieved; as no doubt is the experience of any non-English speaking monoglot when faced with the ‘welcome’ of the over-worked, under-paid border security officials in the UK. What horrified me was the casual way the Master said that his own ‘personal firearm, a 9mm pistol’ was also ‘cleared’. Maybe I’m a wimpish Brit, but civilians routinely carrying firearms is of more than questionable legality, at least in a vessel flying the Red Ensign (and long may it remain so).
Image by Captain Glynne Fletcher
So, what was that all about? Private Maritime Security Companies serve a very useful purpose and, without being too inward looking or myopic, there are good companies, properly and expertly run by highly professional and dependable experts in the provision of security at sea. There are also others who, let us not lose meaning in diplomatic nicety, are cowboys that are dangerous; who will hang their troops out to dry when it goes wrong, turn a blind eye to improper and illegal activities and have no place at sea; most certainly not in your beautiful yacht. Like everything else you do in your magnificent vessel, maintain the pursuit of excellence and don’t cut corners on standards; use the best.
*Annual Summary of NtM 12 (and, yes, India does claim a CZ) but does the UK, France or Italy?
About the Author:
Commander Sean O'Reilly (aka Horatio Hardy) spent 28 years in the Royal Navy. He commanded two warships, and taught navigation, ship-handling and leadership at Britannia Royal Naval College, Dartmouth, before commanding the naval contingent in the UK MoD Saudi Arabia Project. He then commanded the UK inter-agency Maritime Counter-Narcotics contingent in the Caribbean. A Masters graduate in International Affairs, he left the Navy in 2006 to lecture International Law of the Sea to Naval undergraduates in Abu Dhabi. Sean now teaches UK MCA accredited courses in the captaincy of commercial yachts up to 3000gt.
You can contact Sean directly via 'Contact Author' below.
The Future of Yacht Security
Piracy & Armed Security
Piracy: Disarming the Media Hype
Piracy & the Rise of Armed Security
Piracy: Responding to the Threat at Sea
Security at Sea: Proactive v Reactive
A Return to Gunboat Diplomacy
Basic Weapons Familiarization for Yacht Crew
Drones: A Vision of the Future
The Joy of Armageddon
Migrant Boat Encounter: Procedures for Captains
Personal Safety Ashore
Safe Travel in the Age of Small Terror