Private security company Blackwater is, apparently, pitching itself to shipping companies as their solution to all their pirate problems. They’ve even got a 183-foot ship that can carry two helicopters and a shipload, so to speak, of rigid-hull inflatable boats. The ship can carry 30 pirate hunters in addition to its crew of 15. No word yet of any takers.

Of course, Blackwater’s proposal may look better on parchment than it does in practice. This being a blog about export law, I can’t resist wondering initially if Blackwater needs any approval from the Directorate of Defense Trade Controls (“DDTC”) before it sets off on the high seas. Certainly it will need licenses from DDTC for any weapons being taken on the boat, except for non-automatic firearms exempted by section 123.17 of the International Traffic in Arms Regulations (“ITAR”). (I tend to doubt, however, that non-automatic firearms are much use in pirate-hunting). I also don’t think that a Technical Assistance Agreement with Blackwater’s foreign clients will need to be approved by DDTC, since Blackwater won’t be performing a defense service for it’s clients as that is defined by section 120.9 of the ITAR — namely, providing assistance in the design, maintenance and use of defense articles or the provision of military training.

But dealing with the DDTC seems to be the least of Blackwater’s worries here. Rather it seems that well-established principles of international law may result in Blackwater getting all dressed up and having no place to go. Worse yet, if Blackwater takes any actions against suspect pirates, that may well constitute itself an act of piracy and subject Blackwater’s employees and their craft to seizure on the high seas by foreign, or even U.S., military forces.

Articles 100 through 107 of the U.N. Convention on the Law of the Sea (“UNCLOS”) cover piracy. Most significantly, Article 107 would prevent Blackwater’s ship or its crew from seizing any suspected pirate craft as that right is reserved under that article to “warships and military aircraft,” i.e. vessels and aircraft under the control of the military service of a State. And if the Blackwater ship fired upon or attempted to board a suspected pirate craft that would likely constitute and act of piracy as defined by Article 101 of UNCLOS. That article defines “piracy” as

any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed … on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft.

Of course, once Blackwater’s attack on the other craft becomes an act of piracy, then, under Article 105 of UNCLOS, any State that is a member of UNCLOS can seize Blackwater’s ship and its crew and punish the crew under its own laws. Although the United States has not ratified UNCLOS it is still a party to the 1958 U.N. Convention on the High Seas which has virtually identical provisions governing piracy and which would permit the United States as well to seize Blackwater’s vessel and crew if Blackwater fired upon a suspected pirate craft.

Blackwater is free, however, to open fire on any pirate craft that fire on or try to hijack Blackwater’s ship under customary principles of international law that permit reasonable and proportionate acts of self-defense. But who is going to pay Blackwater to go put a ship in the Gulf of Aden that can only fire at the pirates when they try to hijack Blackwater’s ship and must sit and watch when the pirates go after its client’s ship? Perhaps the Blackwater ship could accompany its client’s ship and fire on a pirate vessel that attacked the client ship as an extension of the client ship’s right of self-defense, but the legality of that would be clearer if Blackwater employees were on the attacked vessel rather than on Blackwater’s own ship.

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