Simon Palombi is a Research Associate at the Lowy Institute.

Earlier this week, Simon Murray, the chief of global commodities trading firm Glencore, announced the creation of a private navy funded by a consortium of UK businessmen under the company name Typhon.

This private navy will use a 10,000-ton mother ship, high-speed armoured patrol boats, '240 former marines and sailors' and one former Royal Navy commodore to provide security to oil tankers and bulk carriers as they traverse the piracy plagued Gulf of Aden and Indian Ocean. Murray insists that this is more cost effective than using sovereign warships to patrol the waters off Somalia.

Some may note the apparent similarities between Murray's private navy and the privateers that were commonplace on the oceans from the 14th to the 18th century, providing security to merchant ships in waters plagued by pirates. But this private navy is a different legal animal.

What distinguished the privateers were Letters of Marque, which were deputisations from government permitting them to engage in acts of war in exchange for the ship they attacked and/or its cargo. So long as a privateer attacked a ship deemed to be an enemy of the state, it was a legal act of war.

This form of privateering was outlawed in 1856 by the Paris Declaration. However, the Declaration did not rule out all private navies. In the case of Prussia's 'volunteer navy' during the 1870-71 Franco-German War, the Law Office of the British Crown (Britain was neutral in the Franco-German War) found that private vessels which were temporarily contracted by the state were not in breach of the Declaration if they were under control of the regular navy, with a requirement to do regular navy work, and forbidden to exploit private property.

This established a precedent that a private navy can legally exist and engage in acts of war so long as there is a service contract with a government, and that its crew agrees to act within the same disciplinary bounds as naval personnel. But Typhon will presumably not have service contracts, since it will be working for shipping and perhaps insurance companies rather than sovereign governments. Moreover, this precedent was set on grounds of necessity. Why would a government turn to a private navy if there are sufficient regular naval resources available? 

To Murray, there is a necessity because 'deploying a billion-pound warship against six guys (pirates) with $500 of kit is not a very good use of the asset.'

Whether a sovereign court accepts this explanation is the main point. These 240 former marines and sailors are not traditional privateers and since they are not deputised, they are not acting under the immunity afforded to servicemen and women on military operations, so they could find themselves tried in foreign courts. They are private individuals representing a business whose purpose is to defend against pirates through the use of force.

Typhon is sailing into a deep legal fog. Presumably the company is investigating these issues, though it has made no public statements on the subject (and it does not appear to have a website). One thing is certain; Typhon had better have a very good lawyer on speed dial.

Photo courtesy of Wikipedia.