Topic: ‘Identify, discuss, and propose a course of action to solve what, in your opinion, constitutes the most pressing challenge for international law.’ Sub Topic: Is international law effective in the fight against piracy? Lessons from Somalia Kush Kalra

Introduction

Pirates are enemies of all mankind (bastis bumani generis). They are criminal groups which have long been present in the Mediterranean Sea, northern Europe, the Caribbean Sea, the East China Sea, Southeast Asia, Africa and other parts of the world. The acts of piracy1 off the coast of Somalia in recent years, however, have been unprecedented in terms of frequency and the extent of damages, and there has never been such a strong awareness of the need for international efforts to combat piracy. According to the International Maritime Bureau (IMB) of the International Chamber of Commerce (ICC), the number of cases of piracy off the coast of Somalia and in the Gulf of Aden grew rapidly in 2005 to 45 and rose to 196 in 2009. The latter number accounts for about half of the piracy cases worldwide during that period (406). The number of acts of piracy in the Gulf of Aden has recently increased sharply (116 in 2009).2 For almost 20 years Somalia has lacked a central government with effective control over the entire country, and many parts of the state are in a state of anarchy. The economic situation has been worsening, and young people who are unable to make a living through normal business activities choose to pursue piracy. Piracy has been generated by the conditions pertaining in a failed state, 1

2

The word ‘piracy’ is used in different meanings depending on contexts. For example, Article 101 of the United Convention on the Law of the Sea gives its definition of ‘piracy’, which primarily refers to acts on the high seas. Relevant Security Council Resolutions such as 1816 follow this definition and the similar acts in the territorial sea are referred to as ‘armed robbery.’ Each domestic law has its own definition or interpretation of ‘piracy’. In the present article, ‘piracy’ is used in its general term which does not exclude ‘armed robbery’ unless otherwise made clear from the context. ICC International Maritime Bureau, Piracy and Armed Robbery against Ships, Annual Report 2009 (January 2010) pp 5–6. Figures for the number of attacks and attempted attacks by pirates reflected in the statistics of the IMB are only those confirmed by the IMB. It can reasonably be assumed that the actual number of attacks is larger than these figures indicate.

and coastal states are unable to effectively combat it. Is the existing framework of international law effective to address the piracy off the coast of Somalia?

This paper will analyse the characteristics of piracy activities off the coast of Somalia and the efforts that have been undertaken thus far by various states and international institutions. It will then examine the legal issues accompanying measures against piracy, and discuss how we may enhance the role of international law to address this challenge.

Characteristics of piracy activities off the coast of Somalia and the inadequacy of existing legal tools

Characteristics of piracy off the coast of Somalia

Piracy in the waters off the coast of Somalia is unique in its characteristics. The first and most salient characteristic has to do with the geopolitical importance of the region of the pirates’ activities. The area off the coast of Somalia, in particular the Gulf of Aden, is an important shipping route linking Asia with Europe, through which 16,000 to 20,000 ships and 12 per cent of the world’s oil shipments pass annually.3 The safety of maritime traffic in this region is thus crucial in terms of ensuring the smooth flow of goods between Asia and Europe. Insurance premiums for ships travelling through the Gulf of Aden rose tenfold from 2007 to 2008, and the burden of these expensive insurance fees could impact the comparative economic advantage of maritime transport, which is an inexpensive way of sending bulk shipments. Ensuring the safety of maritime traffic in this region is also important for the energy security of many states.

The second important characteristic is the vastness of the area of piracy activities, Somalia has a coastline of approximately 3,000 km, and the monitoring of pirates going out to sea from the coast is virtually an impossible task. Furthermore, by using mother ships, pirates have widened the range of their activities offshore, and their activities now extend from Somalia to the waters around the Seychelles, 1,300 km (700 nautical miles) away.

3

US National Security Council, Countering Piracy off the Horn of Africa: Partnership and Action Plan (December 2008), p 3.

The third characteristic to note is the high-level attack capabilities of the pirates. In addition to the small firearms that pirates usually carry, they are now using machine guns and rocketpropelled grenade launchers. With these technologies, their attacks can be completed within 20 minutes. Some pirates are audacious enough to attack warships. The decrease in the number of crew members on ships due to upgrades in the performance of oil tankers and other ships also makes them more susceptible to pirate attacks.

The fourth characteristic that stands out is that the coastal state concerned lacks the ability to prevent and prosecute pirates. Somalia has been in a state of anarchy for a long period of time, and enforcement efforts directed at pirates’ home bases on land are not being carried out. Regional warlords within Somalia may be supporting the pirates, and, conversely, the pirates may be funding the warlords. The funds obtained by the pirates seem to be serving as valuable living expenses for a number of residents of Somalia's coastal areas, and in the absence of significant improvement in the security situation within Somalia, the piracy business shows no signs of slowing down.

Inadequacy of existing legal tools to deal with piracy

In light of these characteristics, it is not easy to counter piracy off the coast of Somalia from an operational perspective, but we face in addition the following legal challenges.

COORDINATION OF JURISDICTION

First, there is the problem of coordination of jurisdiction. A single act of piracy involves many states. Interested parties include not only the states of nationality of the pirates and the states of nationality of the victims, but also the coastal state or other state with jurisdiction over the area in which the incident occurred, the flag state of the pirates’ ship, the flag state of the victims’ ship, the states of nationality of the owners of the ships, the states of nationality of the owners of the cargo, the states of consignment for the cargo and the states of destination for the cargo. In international law, it is necessary to ensure coordination of jurisdictions to determine which state has precedence to apprehend the pirates on the high seas, but a coordination mechanism has not

been fully developed. To be more precise, international law allows the state that has apprehended the pirates to exercise jurisdiction. On this point, international law is clear. However, the problem here is a lack of willingness on the part of many states to exercise their own jurisdiction to adjudicate when they have captured pirates. There is no established international custom as to which other state will exercise jurisdiction, how coordination will be carried out if multiple other states claim jurisdiction, and what should be done with the pirates if no state exercises jurisdiction. Security Council resolution 1897 adopted on 30 November 2009 called upon all states to ‘cooperate in determining jurisdiction, and in the investigation and prosecution of persons responsible for acts of piracy and armed robbery off the coast of Somalia’,4 but did not provide any criteria by which to determine jurisdiction.

INTERNATIONAL CONVENTIONS

It can also be pointed out that the existing international conventions are not sufficiently concrete to achieve effective repression of piracy activities. In the United Nations Convention on the Law of the Sea (UNCLOS), which can be said to be the basic law of the sea, Article 100 stipulates a general duty to cooperate in the repression of acts of piracy, but it does not set forth specific methods of cooperation that should he followed by each state; Article 105 provides that any state may arrest, prosecute and punish pirates, but while it recognises these authorities, states are not obligated to employ them.

Another relevant international agreement is the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention), which addresses unlawful acts against the safety of maritime navigation (sometimes referred to as ‘hijacking at sea’). Some states have pointed out that the full implementation of this convention will be an effective measure against piracy,5 but it does not give contracting states on-site enforcement jurisdiction. The SUA Convention 2005 Protocol stipulates that ships of contracting states may hoard and search the ships of other contracting states under certain conditions (Article 8 bis). The enforcement jurisdiction of the flag state may he partly subrogated to a requesting state, but not

4 5

U.N Doc S/RES/1897 (2009), para 12. See above, note 3, p 13.

very much can be expected of the Protocol in terms of repression of piracy, insofar as the authorisation of the flag state is required for boarding; seizures, confiscation, arrests, and prosecutions are basically left to the flag state; and the contracting states are limited (only eight states as of December 2009; the Protocol has not yet entered into force).

Legal issues faced by states

In engaging in measures against piracy, practitioners of international law and criminal law within governments are facing the following legal issues.

To what extent should/may we apprehend pirates?

International law recognises that each state has the enforcement jurisdiction to seize and prosecute pirates. Article 105 of UNCLOS stipulates: On the high seas, or in any other place outside the jurisdiction of any state, every state may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the state which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. Nevertheless, this only affirms that states have the right to seize and prosecute pirates; it does not make these actions obligatory. The only thing that is recognised as obligatory by UNCLOS is general cooperation: ‘All states shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any state.’ (Article 100) UNCLOS leaves the question of how a state exercises its enforcement jurisdiction to its own discretion.

Which authorities will apprehend the pirates?

International law is silent on whether it is the navy or the coastguard that should play the role of repressing pirate activities off the coast of Somalia, and this is left up to the discretion of each state. The division of labour between the navy and the coast guard differs depending on the situation of each state, but in general, the warships of the navy are better suited to long-distance navigation, and they have the advantage of being able to respond to pirates who possess advanced weapons. Nevertheless, it is often the case that the ships of the coast guard are more agile in their handling of actual enforcement efforts against piracy at sea. Furthermore, it is not the role of the armed forces to apprehend and prosecute criminals and transfer them to judicial authorities, and military authorities generally do not wish to assume police functions. However, most of the ships that have actually been dispatched to the waters of the coast of Somalia are navy ships. In Japan, the Diet conducted intensive debate on this point during the deliberations on the Anti-Piracy Act, and it was finally agreed that personnel of the Japan Coast Guard, who have competence as judicial police officials, shall be present on ships of the Maritime SelfDefence Force and shall carry out judicial proceedings such as the apprehension of criminals. In Germany, where a distinction between the authority of the police and the authority of the federal military forces has been strictly maintained, there was some hesitation to dispatch military vessels to address piracy. Ultimately, the military authority was empowered to detain pirates, and if the oil office of prosecutors in Hamburg issues an arrest order, the pirates can be handed over to the federal police.6

Conclusion: how should the international community handle the situation going forward?

How should the international community handle the issue of piracy off the coast of Somalia going forward? Governments, international organisations such as the UN and some think tanks have already made various policy recommendations,7 and these focus on the need to restore security, governance and the rule of law in Somalia; support economic development; improve the ability of local authorities in Somalia to repress piracy;8 and strengthen the self-defence capabilities of ships at sea through the assignment of security personnel and the installation of

6

Announcement of German Foreign Ministry (6 March 2009). For example, regarding the United Nations, see note 16; regarding the United states, see above, note 3. 8 The report of the United Nations Secretary General regarding measures against piracy off the coast of Somalia (see note 18) shows that Puntland authorities have indicated a willingness to take measures to combat piracy (para 62). 7

advanced orientation instruments, non-lethal electric fences, sound equipment and other measures. In this context, I will now consider the role of national law and international law.

Development of domestic laws regarding combating on piracy

Few states have laws on piracy. In those states where piracy laws exist, they are often archaic and lack clarity in terms of the elements of the crime, which are required in the criminal codes of today. The UK Piracy Act of 1837, for example, provided elements of crimes in a rather detailed way for the legislation of that time, but it uses ‘with intent to commit the crime of piracy’ in its definition. This circular definition makes it difficult to understand the scope of the punishable acts without case law. US Code Section 1651 refers to ‘the law of nations’ in its definition of piracy, making its scope ambiguous. That Section also seems to require a nexus between acts of piracy and the US, thereby making it difficult to exercise jurisdiction based on the universal principle. With the problem of piracy off the coast of Somalia as the impetus, we can expect new piracy legislation having a clear definition of acts of piracy and based on the universal jurisdiction to be enacted in a number of states. The new legislation will be significant not only because it will lead to the apprehension and punishment of pirates but also because it will clearly express that nations will under no circumstances tolerate piracy.

In this regard, the Act on Punishment of and Measures against Acts of Piracy of Japan, which is arguably the first fully-fledged piracy legislation in the international community since UNCLOS came into effect, will greatly contribute to the international framework for repression of piracy and serve as a model for other countries. The act authorises the vessels of the Japanese Coast Guard or the Japan Self Defence Forces to capture pirates on the high seas on the basis of universal jurisdiction. It provides the elements of the crime which are clearer and stricter than Article 101 of UNCLOS, satisfying the principle ‘nullen crimen sine lege’. For example, ‘any illegal acts of violence, 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 on the high seas, against another ship (first part of (i) of Article 101(a))’ is formulated as ‘seizing another ship in navigation or taking control of the operation of another ship by rendering persons irresistible by assault, intimidation or any means,, ‘committed for private ends on the high seas’, ‘by crew or

passengers of a ship (except for warships and other government ships)’. It also makes clear the conditions of the use of weapons in the course of operations.

New framework of international law

Does the framework of international law regarding measures against piracy have room to develop in the future? The focal point of discussions so far has been how swiftly we can address the problem of piracy off the coast of Somalia, and discussions therefore have been focused on what can be done within the existing legal framework. As cooperation on countering piracy develops, however, we may consider whether a new legal framework should be created for more effective repression.

In particular, the legal obligations for states regarding measures against piracy are limited to general cooperation, and states are not obligated to apprehend and prosecute pirates. This is the weak point in the current legal framework, and some may argue that capturing pirates should be made obligatory. However, it would raise various problems. For example, if a state actually encountered an act of piracy, it would have to carry out arrests and prosecution even if it were not associated with the case. This would be a significant burden for states. If capturing pirates is made obligatory, there may be states which will pretend not to have detected acts of piracy even if they have encountered such acts at sea, so that they do not have to bear the extra burden of arrest and prosecution of pirates. The obligation to extradite or prosecute criminals (aut dedere aut judicare) often adopted in cooperation agreements against international crimes presumes that the suspects are present in a state's sovereign territory. It is not realistic to obligate states which have encountered pirates on the high seas to capture them, as the suspects are not under the control of the state in question, and such practice will not be accepted as a norm by the majority of states.

Cooperation to repress armed robbery within territorial waters will be important in the future. In normal situations, armed robbery is to be dealt with by coastal states, but situations may arise in the case of states other than Somalia in which police activities cannot be carried out by the coastal state in question. Some states, such as Indonesia, have a strong reservation to third-party

state intervention within the territorial waters of coastal states. Nevertheless, piracy and armed robbery are based on land, and in order to repress such crimes effectively, cooperation within the territorial waters of coastal states is essential. It seems, however, that it will be difficult to produce a one-size-fits-all formula. In that light, we may anticipate that a modality of cooperation will be decided on an ad hoc basis depending on the situation at the time within the Security Council or other relevant international bodies. The legal framework which the international community should aim to formulate is one that would include a mechanism that will allow prosecution in the most suitable state from the point of view of achieving effective punishment and the prevention of crime. This is a problem regarding coordination of jurisdiction, but it is also a problem of the sharing of responsibility among the state of nationality of the pirates, neighbouring coastal states, and the victim state. It seems reasonable that the neighbouring states should carry out prosecution and sentencing in the case where the judicial system of the home state of the pirates is collapsed, in view of securing evidence, lessening the burden of criminal proceedings, and avoiding bringing in the complication of a clash of cultures. On the other hand, the neighbouring states, despite their proximity to the state of nationality of the pirates, would undoubtedly be dissatisfied with this solution, as they would naturally wonder why they are obligated to prosecute and imprison pirates who are not their citizens for acts carried out in waters not off their own coasts.

Some have argued for a special international criminal court to be set up to try pirates. For example, the Netherlands proposed the creation of an international tribunal and hosted informal meetings with some interested states, particularly Russia.9 In Germany, the coalition agreement between the CDU/CSU and the FDP has explored the possibility of setting up a special chamber on piracy within the International Criminal Court.10

The issue of burden sharing is a difficult and sensitive one. No state denies the need for international cooperation to counter piracy, but most are reluctant to take on the burden 9

During the visit of President Dimitry Medvedev to the Netherlands, both states discussed the prospects for a tribunal located in the Horn of Africa for the effective prosecution. trial and punishment of Somali pirates. Press release by the Dutch Government on 25 June 2009, available at www.government.nl/News/Press_releases_and_news_items/2009/June/Netherlands_and_Russia_to_explore_prospects_for _piracy_tribunal 10

Wachstum. Bildung. Zusammenbalt. FCoalitionsveitrag zwischen CDll CSV und FDP (2009), p 123.

themselves. As long as the states of Europe, North America and Asia continue to maintain a passive stance toward receiving pirate criminals, discussions in the future will have to focus on how the international community can build a balanced cooperative structure, in order to lessen the burden on coastal states.

Is international law relevant?

As discussed above, we may confirm that international law plays a major role in the fight against piracy, but even a set of good policies that have been carried out based on international law has proven to be insufficient to eradicate piracy off the coast of Somalia. The fundamental reason is simple: the seas are too vast. We should not, however, resign ourselves to defeatism. International cooperation has produced a positive result in deterring and punishing pirates, and this could not have been possible without intensive discussion among states on the interpretation and application of international law. The high seas constitute a vast open space that remains outside the territorial jurisdiction of any state, and promoting the rule of law in that context is a difficult challenge. We must, however, continue to pursue this goal, and the key is a solid use of international law based on the strong political will of the international community as a whole.

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