Red sky warning, pirate season is fast approaching. As the promise of calmer seas in springtime Somalia nears, international ships are readying themselves for the next wave of attacks. While many ships are deploying defensive measures such as radar, thermal video equipment, fire hoses, electric fences and ingenious acoustic distractions (such as the sound of dogs barking), an increasing number of ships are stocking up on something that comes with much weightier legal dilemmas: armed guards.

In order to combat the oldest recognized international crime commercial ships are taking notes from the violent pirate days of yore – and this is quickly escalating the threat of violence and raising tricky issues of legal liability.

In early March, Somali pirates hit a Spanish fishing boat off the coast of Kenya with a rocket-propelled grenade while private security guards on board shot at the pirates. In the early days of Somalian pirating, such sophisticated weaponry was unknown – all the pirates needed to do was wave a rusty gun at the surprised crew jumped into action.

Hostage-taking may result in huge ransoms and a flurry of media attention yet, despite the number of pirate attacks at sea increasing each year, deaths among the crew are uncommon (four in total in 2009) and international businesses have continued to risk the odds against attacks by sailing through the narrow Somalian seaway and trusting their insurance companies to cover the costs. But now, as piracy insurance premiums continue to rise and are up 10 times what they once were, shipping companies are looking for new options, and armed guards can reduce some premiums by half.

This raises tough legal liability questions. When an armed guard mistakenly shoots an innocent fishing vessel, who is at fault? According to the International Maritime Bureau and the traditional approach to employment contracts, it’s the ship owner, not the armed guard, who will have to deal with the sticky consequences. What court has jurisdiction over this international issue is another matter altogether, complicated by the diversity of national interests represented in a single ship. Recognizing the legal dilemmas, some insurance brokers have come up with a three-part anti-piracy package for ships that they must hope is too good to refuse: they provide the insurance, the armed guards, and a special deal from a law firm.

How attractive does this make armed guards to rich ship owners? There are still some definite setbacks. Attacks can result in expensive lawsuits, damaged goods or a sunken ship, costing the companies hundreds of millions of dollars, where ransoms cost only a few million. Some flag states do not allow armed guards at all, and many ports will not allow weapons.

Yet despite these drawbacks, American policy towards armed guards appears to be warming, and a new Bill passed by Congress has dramatically limited the liability of firms that use force against pirate attacks. The United States has also begun advising its ships to carry armed guards despite the costs. With countries such as Spain deciding to allow the use of armed guards, the momentum seems to be moving toward more weapons at sea.

The legal dilemmas surrounding Somalian piracy, as discussed in an insightful earlier article, have been recognized for years. So far no one has been able to fully solve these problems, which is why some ships are choosing to fight back in frustration. But the long-term implications of more weaponry around the Somalian seaway seems disastrous for Somalians caught in the crossfires.

In the short term, pirates will likely avoid the ships with difficult defences and seek out the likelier targets, enforcing the strategy behind the saying that you don’t have to be faster than the bear, only the guy standing next to you. But if armed ships become the norm, the pirates will likely seek more powerful weapons in retaliation and give a boost to the arms trade in Somalia. Man the crow’s deck this pirate season -the battle between the clever deterrence tricks and the heavy guns is on.

Striking a blow against Somali piracy, the momentous Dutch decision responded to a simple question: with no credible Somali government, who else was going to do it? And why shouldn’t a country enforce laws for someone else – look at Belgium’s fancy “universal jurisdiction” law. These questions go to a problem at the heart of public international law today: the “law is power” conundrum. In private international law, states in recent history have been moving further and further from a power-based model towards one founded on international comity. Globalisation rhetoric would have us believe that public international law is doing the same, but the Somali piracy issue belies this notion.

Somalia today, along with a handful of other places such as Pakistan’s tribal regions and Longueuil, provides the only instance outside of 18^th century political theory of a “state of nature”, a law-free area devoid of central authority. Unfortunately for Rousseau, these places have turned out to be distinctly Hobbesian. How is law to impose itself in the void? Simply put, it doesn’t. The only law in Somalia is power, and as money, weapons, and territory shift from one faction to another, so does the power and the law. After the movie “Black Hawk Down”, the international community gave up on creating a Somali government, and was content with chaos until it fostered the pirates now plaguing the international shipping world. So it once again became necessary to impose law – this time on Somalia’s seas.

How could the world of laws force pirates to abide by the rules? First there was the comedy comity approach: a year ago the UN Security Council imposed sanctions on the pirates, to be enforced by the titular Somali central government. Unfortunately, as one news source understated it, “enforcing the sanctions poses steep challenges […] as those responsible for much of the anarchy plaguing the country are well outside any traditional finance system.” So it became necessary to lay down the real law: power. This came in the form of Combined Task Force 150, a US-led international naval force (soon to include Canada’s HMCS Fredericton) patrolling the region around Somalia’s coast. Of course for good measure, the naval operation was given legal legitimacy by UN Security Council Resolution 1838. Resolution 1851 even allows states to conduct land-based operations in Somalia to combat piracy.

From a legal perspective, it’s more comforting to see a Dutch court take action against a teenage would-be she-pirate than it is to see unilateral military force deployed in a legal vacuum. Nevertheless, at the very least we can be reassured that the lawless Somali “state of nature” is restricted to affecting just the unfortunate residents of that non-state. The only problem is that in a world where law is power, a territory with no central authority is equally lawless for locals and foreigners.

Prior to the outbreak of large-scale Somali swashbuckling, some Europeans found it very convenient to have a legal no-man’s-land in Somalia. The UN Environmental Program found that Italian and Swiss companies dumped toxic waste in Somali waters in violation of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (BCCTMHWTD?). Other Western companies capitalized on the non-existence of a Somali government to help themselves to the fish, shrimp and lobster of Somalia’s territorial seas – and used prohibited fishing methods. The pirates with their brute force have been more effective than the “government” at combating these practices. The Belgians would understand: if the pirates didn’t enforce these laws, who else would?

The power dynamics that impel all public international law tend to be hidden (sometimes successfully, sometimes not) behind international dialogue. But in Somalia, where there is no one to have a dialogue with, the driving force at the core of public international law – power – is open for all to see. In this legal void foreigners can treat the territory as a restraint-free playground; pirates can then hijack foreign ships with (relative) impunity; and finally, foreign militaries can crack down on the pirates.

And with the Dutch ruling, so can foreign courts! Though if they had started sooner there might not be so many wannabe-pirates enjoying swashbuckler hospitality as we speak…

Circumnavigating the globe, eh?...