This topic will be discussed at the 8th Annual Port and Maritime Security 2011 Conference in September.
That is not legally the status of private armed guards. Under the Mercenaries Convention, mercenaries have the backing of a sovereign and are involved in meddling in the affairs of another sovereign.
Private guards may meddle in state affairs but they are not yet state-backed and therefore not mercenaries.
So states still walk a quite thin and excursive line. Matters are evolving but await real cases to see how things will turn out.
I am not hopeful it will be good for either states or armed guards as things stand now.
States have only themselves to blame.
Had the rational thing been done – placing state-employed entities on state-flagged vessels to keep the contract flag states have traditionally had with their merchant ships – the situation would not have evolved as it has.
After getting over the outof- sight and out-of-mind mentality and setting aside wilful blindness, some states have sent ineffective and extraordinarily expensive naval ships and their accoutrements to keep trade going.
Sovereigns, with few exceptions, simply cannot afford that today.
Further, neither the despatching states nor the under- funded naval forces have done a very good job of it.
It makes one curious as to the reasons for the Second World War knee-jerk response of sending in the heavy guns for a great deal of money when a few good men well-placed for a few pounds could have done the job.
These are the ambiguities of the evolving New World Order one must conclude even though we are still muddling through.
Where does this put us? A fraction of the ships are carrying armed guards with apparent good effect in the short term.
However the majority of ships have no flag-state policies as to the use of armed guards.
The fraction carrying guards under even vague forms of law– most of which rest on after-thefact concepts of self-defence – are perhaps in a slightly better position for owners and guards than vessels flagged in states having no policies.
The problem remains: self defence is argued in court after charge for an armed guard or master or owner.
A good law would protect these parties against their molestation of putative pirates and preclude charges. Weak laws are as bad in these cases as no law because the new and weak laws are untested.
The old laws have been around and have been tested. Some states have put out a path for owners to follow– then strewn it with quicksand.
So the armed guards debate continues. The success in suppressing pirates on individual ships is fairly clear.
The success of the current regime of patchwork laws, old laws and wilful blindness will not work in the long run.
Again, where is the IMO? It is putting out bland memoranda from London.
The matter of armed guards has not been resolved and this developing part-solution may end up being as bad as no solution.