Counter Piracy and the Flap About Floating Armories
By John A C Cartner
Special to Piracy Daily
Let us consider a hypothetical situation. A vessel, duly flagged under a state’s scheme, is in international waters as defined by the U.N. Convention on the Law of the Sea. That is, it is not in the territorial waters, in the contiguous zone or in the customs zone, and in these senses not defined by the Convention. The vessel is engaged in the storage of arms and ammunition and the renting or vending of same to any entity contracted to it for those purposes. Another vessel comes alongside. Arms and ammunition are passed. A fee is paid. Assuming that it is lawful to keep arms aboard under flag state law this appears to be a proper use of the vessel and in no violation of domestic or international laws.
Let us now thicken the plot. The vessel was purchased by a brass-plate Austrian company that is manipulating Panamanian money laundered in Paraguay, arising from the drug trades. The vessel takes Hezbollah, Taliban or Al-Qaeda weapons as it does for any other customer. What if the vessel is also taking and disposing of small nuclear weapons traded on the black market of Russian arms? This is sounding destabilizing and frankly dangerous to observing states. Who do we believe? Who can we believe?
How did this come about? First and foremost, port states have no uniform laws—If they have any laws—on the importation, exportation or storage of weapons. Most such laws are contained in vaguely-worded customs regulations requiring that weapons be declared within territorial, contiguous or customs waters and perhaps kept under seal under the master’s care. Some states view weapons within their jurisdictions as destabilizing. However there is no real control of weapons outside the jurisdiction provided by domestic laws or conventions to which a state is signatory. The Republic of South Africa and the Republic of Egypt are especially sensitive to unknown weapons.
Of course, the operator of one these vessels can simply lie to the flag state,which is not in the business of regulating such things on its vessels and is usually not equipped to do so. Most flag regimes are silent in their regulations but would likely frown on issuing a flag license to an armory. My review of the flag state registry laws suggests there are a few good candidates—all flags of convenience and none in the mainstream of that trade. This may also be a case where economy of reporting is practiced by operators. If the flag state does not ask, the operator really has no duty to tell.
What is the best practice for such a vessel to operate? We can find scant guidance in the technical literature of ammunition ships accustomed to handling bombs more than small arms. How much security is enough for these vessels, and against whom is the vessel securing? That question goes back to the misuses to which such ships can be put by those one would not invite to dinner.
The United States may have a role to play. In international law, two jurisdictional principles have been combined in that state. They are the objective territorial principle, suggesting that a state may assert jurisdiction over persons and things outside its boundaries, and the passive personality principle, asserting that a state may take jurisdiction over a person or thing outside the state when a person within the state has been harmed. The latter has been rejected variously as a basis of international jurisdiction. This has not stopped the U.S. courts or Congress.
The latter august debating body has combined the territorial principle and the passive personality principles into the so-called effects doctrine, even though most other states reject it. The effects doctrine was originally a contrivance of the federal courts, which arose from a case wherein a crime adversely affected the commerce of the United States. Hence, the effects doctrine takes one fairly well accepted principle of jurisdiction, another that is dodgier, and mixes it all up with the Commerce Clause of the U.S. Constitution. It first arose in an anti-trust case of price fixing outside the United States. It has crept silently and apparently indiscriminately into the Restatement (Third) of the foreign relations law of the United States. It made its Congressional appearance in 18 USC § 7 at (7) as the Special Maritime Jurisdiction which asserts that the United States may take jurisdiction outside its territory where no other convention or treaty or law prevails, including “any place outside the jurisdiction of any nation with respect to an offence by or against a national of the United States.” If the flag state asserts no jurisdiction—other than the civil acts of registry–the United States could conceivably take jurisdiction under the broad scope of the anti-terrorism statutes, if it so chose. The United States has in the past been aggressive in the use of its extraterritorial powers—correctly or incorrectly depending on the eyes of the observer.
One can be assured that the U.S government is watching carefully floating armories. It may not be the best place to put one’s money in the on-going battle against pirates and their ilk.
John A C Cartner, LLM, Ph.D practices maritime law in Washington, DC and London and is the principal author of The International Law of the Shipmaster (2009) Informa/Lloyds and Defending against Pirates: The International Law of Small Arms, Armed Guards and Privateers (2011) Intershipmaster.com. He holds an unrestricted certificate as master mariner. © John A C Cartner 2013. May be reprinted or quoted with attribution.