Law of the sea hinders fight against piracy – expert

3268

The international law of the sea has struggled to provide solutions to the problem of piracy and it is necessary for the law to evolve and develop more appropriate methods of dealing with new threats to maritime security, an expert has noted.

Professor John Gibson, Director, Institute of Marine and Environmental Law at the University of Cape Town, gave the following presentation on the United Nations law of the sea at the Indian Ocean Naval Symposium (IONS) in Cape Town earlier this month.

The legal aspect of piracy and maritime security is particularly pertinent given that, according to the International Maritime Bureau, there were 238 actual or attempted attacks on shipping in the Indian Ocean and the adjoining sea areas during 2011, and these were attributed to Somali pirates. Four hundred and seventy seafarers were taken hostage while 10 were kidnapped, three injured and eight killed.

Although shipping in the Indian Ocean has been attacked by Somali pirates since the mid-1990s, and the practice has increased substantially in the first decade of this century, the international law of the sea has struggled to provide solutions to the problem, Gibson cautioned. The reasons for this are partly historical, and the legacy of history continues to place impediments in the way of effective action, and fails to reflect the changing nature of piracy.

In 1932, Harvard Law School published research concluding that piracy was not an international crime, but simply an extraordinary basis of jurisdiction entitling all States to enforce municipal criminal laws against pirates beyond their territory. This research influenced the International Law Commission, which prepared draft articles on piracy that were incorporated in the 1958 Geneva Convention on the High Seas, and are now largely reproduced in the 1982 UN Convention on the Law of the Sea.

Definition of piracy

Article 100 of the current Convention requires all States to co-operate to the fullest possible extent in the repression of piracy on the high seas, thus recognising that this is a shared responsibility for a matter of common concern.

Piracy is defined in Article 101 the Convention as illegal acts of violence, detention or depredation, committed for private ends by the crew or passengers of a private ship, and directed against another ship, persons or property on the high seas.

There are several problematic aspects of this definition. First, the requirement that two ships must be involved in piracy excludes the situation where a ship is hijacked by its own crew or passengers, as in the case of the cruise ship Achille Lauro off the coast of Egypt in 1985; this incident led to the negotiation of the 1988 Rome Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention), which obliges States to make various violent actions on or against ships punishable as offences under national law, but it does not require the involvement of another ship. It has also been amended by protocols to take account of new forms of terrorism.

Of more immediate relevance to the situation in Somalia, however, is the provision in Article 101 of the UN Convention on the Law of the Sea that piracy can only occur on the high seas outside the territorial limit of coastal States. Although the Convention restricts the territorial sea to 12 nautical miles, Somalia has claimed a 200-mile territorial limit since 1972, and many piratical attacks occur within this zone. Another issue of concern is that piracy must be committed for private ends by the crew or passengers of a private ship, and so it excludes politically motivated acts or State-sponsored terrorism. Somali pirates claim that, despite the huge ransoms demanded, they are poor fishermen whose livelihood has been destroyed by over-fishing and uncontrolled pollution by foreign ships, and they are eco-warriors defending a wider public interest.

Arrest and prosecution of pirates

Article 105 of the UN Convention declares the right of every State to seize a pirate ship on the high seas, and prosecute the pirates in its own courts, irrespective of their nationality or that of the arrested ship. However, there is no power under the Convention for foreign navies to undertake enforcement activities in the territorial sea of another State. While the principles in the UN Convention are intended to respect the sovereignty of coastal States, they fail to take account of the situation in countries like Somalia, where the Transitional Federal Government (TFG) lacks the military capacity to police its own waters, and does not control the autonomous region of Puntland where many pirates are based.

In November 2007, the UN Secretary-General wrote to the President of the Security Council, reporting that the TFG would welcome international help to address the problem of piracy; the President then received a letter from the Permanent Representative of the Somali Republic in February 2008, which conveyed the consent of the TFG to urgent assistance in securing the territorial and international waters off the coast of Somalia for the safe conduct of shipping. In response to these communications, the Security Council adopted Resolution 1816 in June 2008. The preamble to the resolution emphasised that the UN Convention on the Law of the Sea provides the international legal framework for combating piracy and armed robbery, and also reaffirmed the Security Council’s respect for the sovereignty and territorial integrity of Somalia. However, paragraph 7 of the resolution decided that, for a period of six months, States cooperating with the TFG could enter Somali territorial waters and take the same kind of action against pirates there as is permitted on the high seas under international law.

An important qualification is that the TFG must have given advance notification to the Secretary-General identifying the States to which this concession applies, which means that intervention in the territorial sea by the armed forces of other countries may not happen without the prior general consent of Somalia. Moreover, paragraph 9 emphasises that the authority provided by the resolution is only applicable to the situation in Somalia, and should not be construed as establishing a principle of customary international law that might justify similar action elsewhere; it also stresses that the resolution is consequential on the acceptance of assistance by the TFG in its letter to the Security Council in February 2008.

Resolution 1816 was adopted under Chapter VII of the UN Charter, which empowers the Security Council to take measures to maintain or restore international peace and security. Since, however, the authority given to the international community by the resolution to police the territorial sea of Somalia is dependent on the consent of the TFG, a decision of the Security Council was not strictly necessary to legitimise such action. Nevertheless, the resolution provides a practical way of enlisting the support of many nations and explaining the legal basis of their collective role. It also calls on flag, port and coastal States of the same nationality as the victims and perpetrators of piracy to cooperate in determining jurisdiction, and in investigating and prosecuting pirates consistently with international human rights law. In addition, the resolution requests States and interested bodies, including the International Maritime Organization, to provide technical assistance to Somalia and its neighbours in order to enhance their capacity for maritime security, and it encourages them to coordinate their actions with other participating countries.

Following Resolution 1816, the Security Council has issued nine more resolutions developing and extending these principles. In October 2008, Resolution 1838 called on States to deploy warships and military aircraft to combat piracy on the high seas off the coast of Somalia in accordance with the UN Convention on the Law of the Sea; this request reflected the fact that pirates were increasingly operating beyond as well as inside the territorial sea. States were also urged to protect the World Food Programme’s maritime convoys transporting humanitarian aid to Somalia, and to issue advice and guidance to their registered ships on precautionary measures to preserve themselves from attack. Resolution 1846, which was adopted in December 2008, extended the original six-month period for foreign intervention within Somali territorial waters for a further 12 months. It also welcomed naval initiatives by nine nations, the North Atlantic Treaty Organization (NATO) and the European Union, and urged parties to the SUA Convention to fully implement their obligations to create criminal offences, establish jurisdiction and accept delivery of persons responsible for seizing ships by force. However, the resolution expressed concern that escalating ransom payments were fuelling the growth of piracy.

Two weeks after the adoption of Resolution 1846, the Security Council agreed another resolution in December 2008. This attempted to address a jurisdictional difficulty posed by article 105 of the UN Convention on the Law of the Sea, which arguably restricts the power to try pirates arrested on the high seas to the courts of the State that made the arrest, and does not expressly contemplate the transfer and trial of prisoners in another country. Consequently Resolution 1851 invited States involved in the fight against piracy off Somalia to negotiate special agreements with countries in the region that are willing to take custody of pirates, under which law enforcement officials (described as ‘shipriders’) from those countries would be carried on board foreign warships in order to participate in arrests and assert jurisdiction over prisoners; the prior consent of the TFG would also be needed if shipriders sought to exercise their authority in Somali territorial waters instead of on the high seas. In addition, the resolution responded to a request from the President of Somalia for international assistance to interdict pirates who use land in Somali territory as a base from which to operate. Accordingly, it provided that for 12 months the States and regional organisations cooperating at sea could also undertake measures against pirates in Somalia itself, subject to similar qualifications to those that apply to intervention in the territorial sea, including the need for advance notification by the TFG to the UN Secretary-General and respect for international humanitarian and human rights law. The time-limits for action by foreign armed forces in both the territory and territorial sea of Somalia were subsequently extended for a further year until the end of November 2010 by Resolution 1897, which was adopted by the Security Council in November 2009. They have been renewed again for two further periods of 12 months by Resolutions 1950 and 2020 in November 2010 and 2011. However, the resolutions are all careful to stress that these special measures are restricted to Somalia, and do not create general principles of customary international law that would apply elsewhere.

International and regional action

Many nations have responded to the call with naval assistance, either through multinational coalitions or independently. NATO has deployed warships from its Standing Maritime Group 2, the United States has established the Combined Task Force 151, and the European Union has undertaken Operation EU NAVFOR-ATALANTA to escort humanitarian aid convoys. In January 2009, the Contact Group on Piracy off the Coast of Somalia (CGPCS) was formed to facilitate discussion and co-ordination between States and international organisations. In the same month, 17 States in the region adopted the Djibouti Code of Conduct on the Suppression of Piracy and Armed Robbery against Ships in the Western Indian Ocean, in which they undertake to share information about piracy and review the adequacy of their national legislation against it. Kenya, Seychelles and Mauritius have subsequently revised the relevant provisions in their criminal laws, with assistance from the UN Office on Drugs and Crime (UNODC), and have also entered into agreements with the European Union and other countries on the status of foreign armed forces and the transfer of prisoners. In addition, two trust funds have been established to provide financial support.

Nevertheless, the limited capacity of the judicial systems in Somalia and other States in the region to deal effectively with suspected pirates led the Security Council to adopt Resolution 1918 in January 2010, which requested the Secretary-General to prepare a report on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy at sea. This report was published in July 2010, and examined seven options, including the establishment of a Somali court in the territory of a third State in the region, a special chamber within the national jurisdiction of one or more States with or without UN participation, a regional tribunal based on a multilateral agreement, and an international tribunal either based on an agreement between the UN and a State in the region or established by a resolution of the Security Council under Chapter VII of the UN Charter. The first option, however, which is the least ambitious and seemed to be preferred in the report, is simply to enhance existing UN assistance to build capacity for prosecution and imprisonment by individual States in the region. Accordingly, the Secretary-General has produced two reports in October 2011 and January 2012 on the modalities for establishing specialised anti-piracy courts in Somalia and other African countries, including Seychelles, Kenya, Mauritius and Tanzania.

At the same time, there has been a torrent of other developments. While attacks in the Gulf of Aden have dropped by more than 50% due to naval patrols and improved ship security, incidents continue to increase in other areas where military protection is unavailable, and the level of violence used by pirates has also grown. In addition, hijacked vessels are now being used as mother ships from which to launch further attacks, thereby increasing their range. In February 2011, the International Maritime Organization launched an Action Plan on orchestrating the response of the shipping community to piracy, which particularly considers the release and welfare of hostages. IMO has also adopted resolutions and published guidance for improving the security of merchant ships off the coast of Somalia. These include best management practices, advice on the investigation of crimes and recommendations on the use of privately contracted armed security personnel.

There have also been several inter-governmental meetings at a regional level, and in October 2010 the African Union Peace and Security Council urged the UN to address the underlying causes of piracy and the threats to the Somali people from illegal fishing and waste dumping. The Security Council responded in April 2011 in Resolution 1976 by requesting the Secretary-General to prepare a report on the subject, which was published in the following October. Although this report is inconclusive due to the practical difficulties of collecting evidence, it recommends that more should be done to protect Somalia’s marine environment. One potential legal reform that might be helpful would be for Somalia to declare a 200-mile exclusive economic zone in accordance with Part V of the UN Convention on the Law of the Sea, and reduce its territorial sea to a legitimate 12 miles.

The legal ramifications of piracy also extend into many other areas of law, and in January 2011, the English Court of Appeal ruled in the case of Masefield and Amlin Corporate Member that the payment of ransoms to pirates is neither illegal nor contrary to public policy, despite the fact that it encourages piracy.

Conclusion

The international response to hijacking and armed robbery in African waters has demonstrated the problematic nature of the UN Convention on the Law of the Sea in relation to pirates. When the Convention was adopted in 1982, piracy was largely an historical issue, and the provisions dealing with it were redolent of another era. The modern emergence of piracy in the Indian Ocean as a result of the political vacuum in Somalia has exposed the inadequacy of traditional legal definitions and concepts in this context, and the international community has been compelled to resort to temporary expedients in order to respond to a regional emergency. In the longer term, however, it will be important for the law of the sea itself to evolve, and develop more appropriate principles to deal with new threats to maritime security.