| As one of non-traditional security threats, the piracy seriously interferes with the freedom of navigation at sea. Facing rampant piracy, the public authorities have taken such measures as the piracy-prone waters patrol and escort, to combat and suppress piracy. But such measures may not provide effective protection for every merchant ship passing the High Risk Area. Therefore, in case that the public remedy is insufficient, the owners begin to seek the use of privately contracted armed security personnel (PCASP) on board ships in the High Risk Area in order to protect themselves. Owners’use of PCASP on board ships against piracy in the High Risk Area falls into the realm of self-help, which becomes common practice in the shipping industry. Although the measure using PCASP on board ships against piracy is proved to be effectual, a series of legal issues arise subsequently. In order to seek feasible solutions, the issues are examined and analyzed in this paper from the perspectives of public law and private law.In addition to the Conclusion, the paper consists of five chapters.Chapter 1 is introduction of the paper’s research background, significance and research methods, and the emphasis is placed on the summary and analysis of the legal issues involved in the use of PCASP on board ships at home and abroad.Chapter 2 is the Situation of Use of PCASP on Board Ships. First of all, the meanings of private maritime security company (PMSC) and PCASP in this paper are defined, and then the status of using PCASP on board merchant ships is introduced. The emphasis is placed on the analysis of the reasons for the use of PCASP on board ships, and it is argued in Chapter 2 that the use of PCASP on board ships enjoys overwhelming superiority over the public relief. The pros and cons of the use of PCASP on board ships are probed into at different levels, and it follows that certain problems with PCASP, do not preclude the owner from taking such self-help measure. Therefore the crucial issue is not to permit or prohibit such measure, but is how to make it work well. Finally, while the attitudes and the corresponding measures taken by the international community toward the use of PCASP on board merchant ships are studied, and at the level of countries, the attitudes and the corresponding measures taken by the countries toward the use of PCASP on board merchant ships are explored in terms of geography and the flag State and coastal State.Chapter 3 is the Issues of Public Law Arising out of Use of PCASP on Board Ships. Seven issues are discussed in this Chapter. With regard to the issue of carriage of weapons on board, on the basis of comparison between the law of flag States and coastal States regulating carriage of weapons used by PCASP, it is hold that there are not international instruments, and it is regulated mainly at the level of domestic law, and the much differences between domestic laws affect the navigation of the merchant vessels using PCASP and carrying weapons and the normal operation of PMSC. With regard to the issue of command and control on merchant ships using PCASP, there is tension between the supreme authority which the master is endowed on board in accordance with International Convention for the Safety of Life at Sea and the command of team leader of PCASP for security team and the use of force. It is agued that the issue can be settled by the prior approval by the master of the operating program of PCASP or by stipulating special articles in the contract security services. With regard to the issue of the use of force by PCASP on board ships, it is hold that the right of self defense can provide a legitimate basis for the use of force by PCASP at sea, but after the comparative analysis of the use of force of guidelines published by the typical flag States, it is found that there is a lack of clarity of the standards of use of force by PCASP. With regard to the rules of use of force, binding guidance issued by some countries and the non-binding guidance issued by some shipping industry associations and maritime security industry associations are analyzed by comparison. Then the elements that are essential for the rules of use of force applicable to PCASP are analyzed, which lays the foundation for the design of the rules of use of force. With regard to the issue of the innocent passage of merchant ships using PCASP, it is analyzed that whether the merchant ships using PCASP to passage the territorial sea of the coastal State constitute the non-innocent passage behavior provided by United Nations Convention on the Law of the Sea (UNCLOS) or not and whether the coastal States can, by means of legislation, restrict or prohibit the merchant ships using PCASP to passage its territorial sea or not, then it is hold that the definitive answers to the above two questions cannot be drawn from UNCLOS. As a matter of fact, there are the contradictions between the preservation of sovereign interests of coastal States and the maintenance of freedom of navigation at sea, which is sometimes difficult to reconcile. With regard to the issue of assisting the pirate in distress at sea by the master and PCASP, it is hold that while the master is obliged to rescue the pirate of loss of resistance in distress at sea, which would be held criminally responsible without fulfilling the obligation, in some legal systems of countries, and that PCASP on board ships would constitute crime of "no salvation when others in danger", and be held criminally responsible without rescuing the pirate in distress at sea. With regard to the issue of the seizure of the pirate ships and the detention of pirates, only the warships and the ships authorized by government can seize the pirate ships in accordance with UNCLOS, and the master and PCASP on board have no right to seize the pirate ships under international law. The master can detain the pirates based on their own "police power" function, while PCASP on board can arrest the pirates based on Citizen’s Arrest which have been acknowledged by the Continental legal system and the Anglo American law system. With regard to the issue of the international human rights and the humanitarian law arising out of using PCASP on board ships, it is hold that the use of PCASP on board against piracy does not satisfy the conditions of application of international humanitarian law, but the international human rights law, as an international jus cogens, should be applied to the use of PCASP on board against piracy.Chapter 4 is the Issues of Private Law Arising out of Use of PCASP on Board Ships. Firstly, the civil liability resulting from the use of PCASP on board ships is analyzed. When the illegal use of force by PCASP causes the damage to third parties, and evidence taking is difficult, under the theory of vicarious liability theory or supervisory negligence the owner will bear tort liability incurred by illegal use of force by PCASP to third parties. Secondly, with regard to the division of responsibility between the owner and PMSC in the performance of the security service contract, it is hold that the knock-for-knock principle in the maritime security service standard contract of the Baltic and International Maritime Council amounts to responsibility of exclusion or limitation of liability, which tends to be deemed as unfair terms, and therefore such principle will be tested by court or arbitral tribunal. Thirdly, the implications of using private armed guards on board ships to the charter party and the contract of carriage of goods by sea are analyzed. It is believed that if the owner who does not inform the charterer and the cargo interest of the use of PCASP on board, he will breach the charter party and the contract of carriage of goods by sea. Finally, the impacts on marine insurance by using PCASP on board ships are analyzed, and it is argued that what impact on marine insurance by using PCASP on board ships depends on a detailed analysis of insurance policy. In the context of "Marine Insurance Act 1906", the unlawful action of PCASP will make the policy to be invalid or unenforceable because of the owner’s failure to fulfill the obligation of warranty.Chapter 5 is the Legal Obstacles of the Provision of Security Services by PMSC on Merchant Ships Flying Chinese Flag and Corresponding Countermeasures. Firstly, the legitimacy of providing maritime security services by PMSC on merchant ships flying Chinese flag and the legal obstacles of arms control in China are analyzed and it is argued that the use of PCASP on merchant ships flying Chinese flag is illegal in accordance with the existing laws in China, and carrying of weapons used by PCASP would be contrary to the Chinese firearms control law. Then countermeasures are proposed for ship owners to use PCASP on merchant ships flying Chinese flag. Finally, some suggestions are made to amend the existing law in case that the use of PCASP on board is permitted by Chinese authorities.In Conclusion part, the feasible proposals put forward in this paper are integrated. |
