A Call to Arms – Evolving Law and Culture to Protect Our Merchant Maritime Fleet
In a 2018 Defense News article, The Honorable Mark Buzby, retired Rear Admiral and head of the Department of Transportation Maritime Administration, reflected on the Navy’s inability to escort the massive sealift operation that would be required in the event of a long-term major conflict.1 This deficiency presents great strategic risk for the United States, as each merchant vessel represents an invaluable link in the sealift capacity required to sustain such an effort. It also poses a moral quandary as merchant ships and their crews are not armed to defend against modern threats, such as hypersonic missiles and satellite-based interdiction, which leaves them exposed to grave danger.
The United States has an opportunity now to modernize the protection of our merchant fleet by advancing the law of self-defense and to press that legal framework outward so that it becomes recognized international law. Simultaneously, we must evolve the military culture to embrace this evolution in law so that the United States can achieve both the strategic and moral imperative to defend the merchant fleet to ensure mission success.
LOOKING TO THE PAST
In the international community, protecting the merchant maritime fleet dates back to the days of the Barbarossa Brothers, Captain Kidd, and Blackbeard. Often sanctioned by the government, pirates typically began as licensed privateers, like Sir Francis Drake, who was famously licensed by the English government to attack Spanish shipping, and subsequently knighted for his attacks by Queen Elizabeth I.2 Historically, privateering was the way merchant ships protected themselves from pirates.3 Letters of Marque were issued to private entities in exchange for protection or for capturing pirates.4 In the modern era, pirates take hostages for high ransoms.5 However, today, protecting the merchant maritime fleet from piracy is more complex from a legal perspective. The 1856 Paris Declaration proclaimed privateering illegal internationally, and while the US is not a signatory, we have not used privateering or Letters of Marque since the War of 1812.6 Regardless of the limitations imposed by the 1856 Paris Declaration, the international community has armed their merchant fleets during times of conflict, such as World War I (WWI) and World War II (WWII).7
However, today, protecting the merchant maritime fleet from piracy is more complex from a legal perspective. The 1856 Paris Declaration proclaimed privateering illegal internationally, and while the US is not a signatory, we have not used privateering or Letters of Marque since the War of 1812.6
The United States also has a long history of arming its merchant ships in times of war. During WWI, President Woodrow Wilson issued an Executive Order authorizing the arming of US merchant ships in March 1917 in the wake of continuing German U-boat attacks on US shipping.8 In the years preceding WWII, in an effort to keep the US out of the issues embroiling Europe, the US Congress passed the US Neutrality Act of 1936 (Neutrality Act), which (in part) made it illegal to arm merchant ships.9 However, as the conflict grew, Congress amended the Neutrality Act in November 1941, authorizing the arming of US merchant ships.10 Specifically, Congress provided that “the President is authorized, through such agency as he may designate, to arm, or to permit or cause to be armed, any American vessel as defined in such Act.”11 In the aftermath of WWII, Congress took further steps to establish this provision as a permanent fixture in US law when in 1948, it passed “An Act Relating to the Arming of American Vessels.”12
This provision of US law, in only slightly modified form, remains in effect today. Specifically, under 10 USC § 261, the President “through any agency of the Department of Defense designated by him, may arm, have armed, or allow to be armed, any watercraft or aircraft that is capable of being used as a means of transportation on, over, or underwater, and is documented, registered, or licensed under the laws of the United States” at any time “when the President determines that the security of the United States is threatened by the application, or the imminent danger of application, of physical force by any foreign government or agency against the United States, its citizens, the property of its citizens, or their commercial interests.”13 Although no US President has had occasion since WWII to direct the arming of US merchant ships, the President has the authority under US law to direct such arming and broad latitude to determine when such arming is required.14 Given the current threat environment, the need to arm merchant ships is visible on the horizon.
THE PRESENT DAY
Neither the law nor US military culture has sufficiently adapted to account for the current threats to merchant maritime fleets. The current threats come in a variety of forms; below are some examples.
Long-range, Hypersonic, Anti-ship Missiles
The recently released 2019 Missile Defense Review provides a chilling description of the current threat environment, where near-peer competitors are significantly investing in their missile capabilities to increase the capabilities of their current systems, develop new capabilities, and integrate offensive missiles more thoroughly into their offensive operations.15 The US is also now engaged in a race with Russia and China to develop hypersonic weapons.16 In response to this “emerging missile threat environment,” the US has placed increasing emphasis on missile defense. For instance, the Navy, Army, and Marine Corps have been acquiring new long-range missiles to target enemy ships and maritime targets from the land and sea. However, it will not be sufficient for the US to focus only on protecting organic military assets in this new missile threat environment. It must consider how to protect its merchant maritime fleet, as well.
As General Darren McDew, then-Commander of US Transportation Command, testified before Congress in 2018: “threats in the cyber domain pose the greatest threat to our decisive logistics advantage.”17 He stated that the reason for the vulnerability is “because the majority of the Command’s transportation data resides within and travels through the unsecure commercial internet.”18 In addition to the vulnerabilities created by the commercial internet, many merchant fleets also lack the ability, knowledge, or desire to provide the stringent protections to maintain a defensive posture.19 Much of the merchant fleet is untrained in even basic avoidance techniques—such as jamming or GPS tracking capabilities.20 Furthermore, the mix of legacy ships and new systems, the multi-cultural, multi-lingual crews, and the nature of the mobile workforce make training and consistency in even basic cybersecurity protections difficult.21
Next Wave Piracy and Modern Privateers
While the focus is on high tech methods in modern wars, we should not lose sight of the historically effective use of pirates and “ground” seafaring violence of the early colonies. And as recent history has shown, the threat of piracy still remains.22 Moreover, actors incapable of competing militarily with the US Navy could turn to piracy-like tactics to engage in asymmetric warfare. Additionally, pirates could also be inclined to increase attacks during wartime due to the type of cargo and increase in value a wartime footing would place on that cargo.
EVOLVING FOR THE FUTURE
Evolution in the Law
International law must adapt to the realities of modern threats and current military capabilities, and the United States should drive that change. In the context of the merchant maritime fleet, this means taking a more progressive view of “defensive” arms by allowing States greater leeway in the weapon systems and equipment that are deemed “defensive” so as to give a ship a realistic opportunity to survive against today’s threats.
Under widely accepted views, in order to retain protection under international law, non-naval vessels can be used in defensive but not offensive, belligerent acts. The crux of the question then becomes: when does a merchant ship have the right to act in self-defense? After September 11, 2001, a more progressive view of self-defense seems to have taken root in the international law arena that takes into account present-day threats and technological advancements.23 The evolution of the pre-emptive self-defense concept and the growing consensus emerging around the idea that a State may launch strikes into another State against private actors for counter-terrorism purposes are but two examples of this more progressive view of self-defense. The international legal community should again re-examine what truly constitutes defensive weapons so that mariners have not just a theoretical right to self-defense, but a realistic opportunity to defend themselves from today’s threats. The current threat environment is very different from WWII, which saw the last major naval conflict. Over-the-horizon weapon systems and drone swarms are just two threats that could quickly destroy a merchant ship. Waiting for such an attack to commence before engaging in self-defense may be way too late. Adapting to current realities means more broadly defining defensive capabilities and allowing merchant ships to engage in pre-emptive self-defense. The law should not become the impediment that renders any right of self-defense as effectively meaningless.
Evolving the concept of self-defense is only part of the equation. There must also be a correlating growth in the means and methods to employ this right. For example, the use of armed private security in lieu of governmental armies and navies for protection is one such method. With limited human capital and resources, the US and other governments are ill-equipped to properly protect their merchant maritime fleets. The use of contractors in recent years, although at times controversial, has generally proven successful. For example, “[t]o date, pirates have not successfully taken a ship protected by armed security guards.”24
What is needed in this area to address some of the issues with private armed security is greater governmental regulation and oversight. We need to adapt international law to facilitate legal instrumentalities to allow military contractors to properly protect merchant ships, which will alleviate the pressure felt by our Navy.
What is needed in this area to address some of the issues with private armed security is greater governmental regulation and oversight. We need to adapt international law to facilitate legal instrumentalities to allow military contractors to properly protect merchant ships, which will alleviate the pressure felt by our Navy. Utilizing historical precedent, governments should be allowed to directly employ security contractors through the development of a contractual obligation built from the Letters of Marque and the Montreux Document, spelling out the best practices and legal obligations required for military contractors.25
Additionally, another international challenge with respect to arming merchant ships would be port entry in foreign countries. As aptly demonstrated by the challenges of arming ships to counter pirates, when making port calls, those ships are subject to the law of the foreign nation, including any arms limitations or restrictions. In order to address that issue, the US may need to re-examine or revise its bi-lateral or multilateral international agreements to account for this issue, or the international community as a whole may need to come together to form some sort of international agreement. Given the apparent difficulty with members of the international community agreeing on the arming of merchant ships to counter piracy, the former may be a more practical approach than the latter.
We may also need to adapt (or amend) domestic law to permit the US government to contract for armed private security, at least with respect to protection of the merchant maritime fleet.26 Currently, 32 C.F.R. 159, “Private Security Contractors Operating in Contingency Operations,” provides the model for the changes needed to standardize and improve contract management and oversight of private military security contractors (PMSCs).27 Expanding this document to protect merchant mariners specifically, will provide the proper protections necessary and also send an important message to the merchant mariner community that the DOD is ready, willing, and able to protect them.
Facilitation of a contractual obligation under control by the government affords the US government the ability to monitor and regulate these private contractor firms. Furthermore, it affords the US legal remedies in the event of a breach of contract. Similarly, contracts should be further utilized as an instrument of self-defense for cyber interdiction. Facilitating stricter contractual penalties for cyber-security failures by carriers may also help incentivize additional protections for the merchant maritime fleet.
Changes in Military Culture – We can no Longer Accept the “Accept the Risk” Mentality
The United States’ ability to flex warfighting capability anytime, anywhere, is a profound strategic advantage. That strategic advantage hinges on US logistics’ capabilities, in which the merchant fleet is integral. Our adversaries are well aware of this advantage and will seek to degrade our logistics capability. With an increase in our near-peer competitors’ focus on the sea, it is only a matter of time before the fight will move there. Fundamentally, the US military must embrace the idea that the battle will largely be fought and won before the equipment reaches the warfighter. That battle will be on the sea and the merchant vessels hauling the freight will be the key terrain over which nations will fight. We must not only be focused on the battlefield itself, but also how the warfighter and his equipment get there. To do this requires a change in military culture that embraces the idea that protection of the merchant fleet is not merely a memory of a time gone by, but is a requirement of today, not only as a strategic advantage but also a moral imperative.
Today’s threat environment differs greatly from the environment that existed during the last war that involved a major naval conflict, WWII. However, neither the law nor US military culture has sufficiently evolved to account for the current environment. If the law does not evolve—if it does not allow a State’s merchant fleet a realistic opportunity to defend itself—then the fundamental right of self-defense is hollow and the law is irrelevant. If US military culture does not evolve—if it does not recognize and account for the importance of protecting the US merchant fleet—then the US military may suffer mission failure. Neither one of these outcomes should be permitted to occur.
By LTC Stacy Flippin, USA (Ret.) and Maj Meghan Smorol, USAFR*
*Contributions provided by the Military Surface Deployment and Distribution Command Legal Office, including Lieutenant Colonel Russell Jackson (USA), Mr. James Dorn (Colonel, USA, Retired), Mr. David DiCenso (Lieutenant Colonel, USAFR, Retired), and Captain Gregory Saloka (USA). The views expressed in this article are those of the authors and do not reflect the official policy or position of the US Army, the Department of Defense, or the US Government.
Photo Caption: The guided-missile destroyer USS Lassen (DDG 82) escorts the merchant vessel Tomahawk through the Strait of Hormuz. US Navy photo by Mass Communication Specialist 2nd Class Michael H. Lehman/Released.
- Contributions provided by the Military Surface Deployment and Distribution Command Legal Office, including Lieutenant Colonel Russell Jackson (USA), Mr. James Dorn (Colonel, USA, Retired), Mr. David DiCenso (Lieutenant Colonel, USAFR, Retired), and Captain Gregory Saloka (USA). The views expressed in this article are those of the authors and do not reflect the official policy or position of the US Army, the Department of Defense, or the US Government.
- David Larter, “You’re on Your Own: US Sealift Can’t Count on Navy Escorts in the Next Big War,” Defense News, last modified October 10, 2018, accessed August 12, 2019, https://www.defensenews.com/naval/2018/10/10/youre-on-your-own-us-sealift-cant-count-on-us-navy-escorts-in-the-next-big-war-forcing-changes/.
- Jesse Greenspan, “8 Real-Life Pirates Who Roved the High Seas,” History Channel, last modified August 31, 2018, accessed August 12, 2019, https://www.history.com/news/8-real-life-pirates-who-roved-the-high-seas.
- Theodore T. Richard, “Reconsidering the Letter of Marque: Utilizing Private Security Providers Against Piracy,” Public Contract Law Journal 39, no. 1 (2010): 423-438.
- Ibid, 418-419.
- Ibid, 418-420.
- “Defensively Equipped Merchant Ships,” Wikipedia, last modified June 21, 2018, accessed August 12, 2019, https://en.wikipedia.org/wiki/Defensively_equipped_merchant_ship.
- “Defensively Equipped Merchant Ships,” Wikipedia, last modified June 21, 2018, accessed August 12, 2019, https://en.wikipedia.org/wiki/Defensively_equipped_merchant_ship; Will Englund, “How to End a Filibuster: World War I and the Origin of the Cloture Rule,” The National Constitution Center, last modified April 4, 2017, accessed August 12, 2019, https://constitutioncenter.org/blog/how-to-end-a-filibuster-world-war-i-and-the-origin-of-the-cloture-rule.
- “The Neutrality Acts,” The Oxford Companion to American Military History, last modified 2000, accessed August 12, 2019, https://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/neutrality-acts-0.
- “American Merchant Marine Heroes and Their Gallant Ships in World War II,” American Merchant Marine at War, last modified May 8, 2002, accessed August 12, 2019, http://www.usmm.org/men_ships.html.
- Joint Resolution to Repeal Sections 2, 3, and 6 of the Neutrality Act of 1939, and for Other Purposes, Public Law 294, US Statutes at Large 55(1941): 764-765.
- An Act Relating to the Arming of American Vessels, Public Law 817, US Statutes at Large 62(1948): 1095-1096.
- Arming of American Vessels Act, US Code 10 (1956) §261.
- Arming of American Vessels Act, §261. There is no statutory authority within Chapter 10 of the United States Code that defines what is meant by “arm” or what is required to qualify as “imminent danger” of physical force.
- Department of Defense, Missile Defense Review (2019), III-IV.
- Iain Boyd, “US, Russia, China Race to Develop Hypersonic Weapons,” The Conversation, May 1, 2019, accessed 11 July 2019, http://theconversation.com/us-russia-china-race-to-develop-hypersonic-weapons-114694.
- General Darren W. McDew, Commander, USTRANSCOM, statement before the House Armed Services Committee, Readiness Subcommittee and the Seapower and Projection Forces Subcommittee, March 8, 2018, 18.
- General Darren W. McDew, Commander, USTRANSCOM, “On the State of the Command,” statement before the Senate Armed Services Committee, May 2, 2017, 17–18, accessed July 11, 2019, www.armed-services.senate.gov/download/mcdew_05-02-17.
- Leah Kinthaert, “8 Experts Weigh in on Cybersecurity in Shipping & Maritime,” KNect 365, last modified April 9, 2017, accessed August 12, 2019, https://knect365.com/shipping/article/56554e0a-1356-42ac-88cd-564a389bcd1e/cybersecurity-shipping-maritime.
- Jeffrey Gettleman, “Somali Pirates Attack, Raising Fears that a Menace is Back, The New York Times, last modified April 4, 2017, accessed August 12, 2019, https://www.nytimes.com/2017/04/04/world/africa/somalia-pirates.html
- As one legal scholar noted, “this process of transformation is most visible in states’ changed interpretations of the principles of immediacy and necessity, which are nowadays understood in more contextualized and permissive terms. The terrorist challenge—especially the prospect of nuclear-armed jihadists—has thrown into sharp relief the need to develop a somewhat broader understanding of the concept of self-defense than the one enshrined in Article 51 of the UN Charter.” Theresa Reinold, “State Weakness, Irregular Warfare, and the Right to Self-Defense Post-9/11,” American Journal of International Law 105 (April 2011): 245.
- Andrew J. Shapiro, Ass’t Sec’y, Bureau of Political-Military Affairs, Remarks to the Defense Trade Advisory Group, November 9, 2011, accessed July 11, 2019, http://www.state.gov/t/pm/rls/rm/176925.htm.
- “Montreux Document,” International Committee of Red Cross, last modified 2009, access August 12, 2019, http://psm.du.edu/media/documents/regulations/global_instruments/multi_stakeholder/montreux/montreux_document_eng.pdf; Theodore T. Richard, “Reconsidering the Letter of Marque: Utilizing Private Security Providers Against Piracy,” Public Contract Law Journal 39, no. 1 (2010): 423-438.
- “Department of Defense Regulations and Instructions,” University of Denver, last modified 2014, accessed August 12, 2019, http://psm.du.edu/national_regulation/united_states/laws_regulations/defense.html.