The New Model of Privateering

The maritime domain has always held strategic and economic significance in regional security, but recent actions of both state and non-state actors are creating instability. The Yemen-based Houthi rebels have attacked merchant shipping vessels in the Red Sea through piracy, disrupting international trade for more than 44 countries. Additionally, China’s irregular fishing fleet, which doubles as paramilitary units, dubbed “little blue men” by the Philippines, seeks to advance China’s territorial claims in disputed areas of the South China Sea. This gray zone aggression by state and non-state actors disrupts regional security through armed coercion that falls below the threshold of outright warfare. To maintain a competitive advantage, U.S. strategic planners should develop irregular strategies to deter state and non-state actors’ armed coercion tactics within the maritime domain.

The reintroduction of privateering offers a compelling approach to today’s maritime domain challenges by helping the United States regain economic competitiveness and by creating regionally strategic security dilemmas for its adversaries. This essay explores a new model of privateering, defined by the time-chartering of civilian vessels for sealift capability operating under the direct command structure of the U.S. government. This will enable the monitoring, detection, and interdiction of illicit maritime threats. This essay will also highlight how the new model of privateering provides a viable legal means of countering threats from state actors like China, as well as non-state entities such as transnational criminal organizations and violent extremist organizations.

The purpose of this new model of privateering is to provide offensive options to safeguard U.S. interests and enhance maritime domain awareness to enable regional security. This essay will define traditional maritime privateering and examine historical examples. It will also examine current laws against privateering, and modern applications that enable strategic advantage. Grounded in this analysis, it will provide a new U.S. military maritime concept to safeguard U.S. interests in an increasingly contested maritime environment.

Piracy versus Traditional Privateering

The confusion between piracy and privateering is based on a widespread practice during the late 17th and 18th centuries, in which European states contracted private ships to conduct warfare. The Max Planck Encyclopedias of International Law describe a privateer as a “privately-owned vessel, outfitted as a warship (Warships), authorized by a recognized national government, through the issuance of a commission,” also known as letters of marque. By providing letters of marque, European states could supplement their navy with non-flagged privately owned vessels.  These vessels would operate autonomously as an offensive tool to attack enemy vessels during wartime or protect commercial goods against state or non-state actors. Leveraging privateers through legal means bolstered the European states’ capability to protect trade routes and defend territorial waters to compete against strategic competitors.

Piracy is not the same as privateering because it focuses on utilizing forms of violent and non-violent actions to achieve personal goals not supported by a state. Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS) defines piracy to consist of the following:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

An excellent example to explain the UNCLOS definition of piracy is the Houthi rebels illegally attacking cargo ships, creating a blockade off the coast of Yemen to disrupt maritime trade in support of the Hamas war against Israel. Actions of piracy are, in fact, illegal criminal actions of a non-state actor creating instability within a region by utilizing private ships to achieve their own goals not aligned with the State government.

Privateers Enhancing National Security in the War of 1812

During the War of 1812, in order to protect economic trade, the U.S. Government turned to privateers. U.S. privateers’ success in capturing or destroying enemy merchant convoys drove British insurance rates to rise, and deprived Great Britian’s economy of badly needed goods. The disruption of Britain’s trade routes allowed the United States to protect its commercial trade and enabled privateers to profit from the capturing of enemy merchant ships. Privateering was a means of armed corrosion to conduct economic warfare that allowed the U.S. to gain an economic strategic advantage.

The volunteer force of the U.S. privateers was essentially a legalized maritime militia to bolster the U.S. Navy’s small fleet to counter the larger and more powerful English Royal Navy. Between 1812 and 1815, the U.S. Government issued more than 600 letters of marque that increased U.S. maritime influence and forced the English Royal Navy to remove warships from their blockade to protect their merchant ships. The decision of the U.S. Government to leverage the private sector as part of the military strategic plan was the vital factor that enabled the economic survival of the United States during the War of 1812. Without the support of privateers, the United States would not have been able to deter against a strategic competitor and secure its maritime domain.

Maritime Laws against Privateering

The Declaration Respecting Maritime Law of 1856 sparked Great Britain and France to adopt the treaty, ending the use of privateering for warfare and establishing new rules of naval warfare to benefit states with naval supremacy. This treaty allowed warring states to utilize neutral states or private merchant ships to transport commercial goods through blockades. However, it also prevented the use of un-flagged vessels for naval warfare. The United States, which declined to sign the treaty after assessing it would weaken U.S. capabilities to project naval power, would later agree to respect the principles of the Declaration and focus on building up its Navy. In effect, the treaty of 1856 established a new model of naval warfare, restricting state actors with weaker naval powers from leveraging private vessels to achieve a maritime advantage.

The UNCLOS reinforced the definition of naval warships that can take part in international conflicts, but conflicts outside international warfare provide opportunities to leverage the private sector to support national maritime security. The Department of Defense Law of War Manual defines non-international armed conflicts (NIAC) as being conflicts not declared between states, ranging from civil war, guerrilla warfare, terrorism, and low-intensity conflicts. NIAC allows the U.S. Government to utilize naval warships and vessels from the Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP), U.S. Coast Guard (USCG), and private sector vessels contracted by the state to counter illicit maritime threats. The future success of U.S. maritime security will require the leveraging of all assets of national power, including collaboration with the private sector, to prevent the ongoing trend of transnational criminal organizations and terrorist activities from reaching the homeland.

Modern Applications of Privateering

China has been expanding its maritime influence by integrating its People’s Liberation Army Navy (PLAN) with the civilian sector to create a new application of privateers through the use of the People’s Armed Forces Maritime Militia (PAFMM) and the Spratly Backbone Fishing Vessels (SBFVs). The PAFMM are professional Maritime Militia Fishing Vessels (MMFV) specifically built and outfitted with military capabilities to augment military operations. The SBFVs, on the other hand, are domestic fishing vessels that meet specified dimensions and receive subsidies and bonuses to operate in designated areas. China uses the PAFMM and SBFVs to assert China’s maritime claims by using grey zone aggression to assert China’s sovereignty in disputed waters. China’s integration of its irregular fishing fleet within its military structure has established a new version of privateering that uses commercial vessels as quasi-military forces, or militia, to conduct operations below the threshold of military aggression to advance China’s ambitions in the South China Sea.

Harnessing U.S. Private Sector

Expanding U.S. maritime domain security requires an irregular approach to harnessing the private sector stakeholders as the new privateer framework. SpaceX is a current example of how the U.S. government collaborates with the private sector to expand space domain awareness to support national security and space transportation. The U.S. military has partnered with SpaceX to enhance secure communication and intelligence capabilities and provided NASA with commercial crew space transportation to the International Space Station. The example of SpaceX’s integration into U.S. national/military power, provides a framework for the maritime domain. This would involve chartering private sector vessels and aligning them with the appropriate agencies or DoD command structure to counter national security threats.

The New Model of Privateering

Time-chartering private vessels for sealift capabilities would amplify the efforts of the DHS and DoD in conducting NIAC operations to counter cartels in the western hemisphere and piracy in the Red Sea. It would also enable U.S. partners in the South China Sea to protect their sovereign waters. The CBP and USCG with their limited vessels are responsible for patrolling over 95,000 miles of U.S. coastline while the U.S. Navy deploys forward alongside our partners and allies to preserve freedom of the sea. The time-chartered vessels operated by their civilian crews would carry CBP, USCG, or U.S. Navy personnel to amplify the U.S. ability to monitor, detect, and interdict potential threats. The timed-chartered vessels would be appropriately flagged and marked while aligned with the CBP, USCG, or U.S. Navy, and their crew would fall under the direct control of a small contingent force of appropriate agencies to ensure the UNCLOS is respected. The command structure of the new privateer model would be very similar to the U.S. Navy’s Military Sealift Command (MSC) which focuses on providing global maritime transportation but not offensive options to counter threats. When MSC uses time-chartered, privately owned vessels, they are operated by the contracting company’s crew but carry DoD personnel to execute government functions and are subject to the command of MSC. By applying the new privateer model, the U.S. would have the additional ships needed to increase its maritime domain awareness to counter global threats while reducing the required costs of building and maintaining a fleet.

Challenges

At first glance, chartering commercial vessels to support U.S. maritime security may resemble China’s use of SBFVs. China’s utilization of civilian fishing fleets is a form of offensive deception to hide their true intent of occupying other states’ Exclusive Economic Zones as a tool to assert their territorial rights not supported by international laws. On the contrary, the U.S. application of civilian vessels is a lawful deterrence measure a state can employ to protect its sovereign right against state and non-state actors.  Another challenge is changing the conventional mindset of deterring grey zone aggression and applying an irregular capability to counter threats to stay below the threshold of conflict. Continual collaboration between the DHS and DoD, as seen within U.S. Northern Command (USNORTHCOM), is the way forward to amplify U.S. national power. However, it must also include the private sector to create new solutions to current problems.

Conclusion

State and non-state actors will continue to contest the control of the maritime domain by disrupting trade routes and creating global security concerns. The U.S., with its allies and partners, should consider the benefits of a prospective maritime strategic plan that integrates this new privateer concept to counter emerging threats, such as the Houthi rebels in the Red Sea. Utilizing this new form of privateering within U.S. law and UNCLOS, the U.S. would disrupt illicit activities and threats to the sovereignty of U.S. allies and partners, such as the “little blue men” in the South China Sea. If the U.S. does not shift its conventional mindset to counter the emerging threat of private sector involvement in maritime security, as seen in China’s current applications, it will continue to see state and non-state actors shaping the rules of war to hinder the U.S. from achieving its strategic goals. The chartering of private vessels for sealift capabilities, as the new privateers model, is a viable tool that needs to be considered and can be adapted across all domains to support the National Security Strategy.