Maritime piracy: how can international law and policy address this growing global menace?

Author:Nanda, Ved P.
 
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  1. INTRODUCTION

    Maritime piracy disrupts international navigation and trade and threatens the lives and property of people of many nations. Thus, because of both the human and commercial cost and the threat to regional security at sea, piracy has become a matter of grave concern for the international community and has consequently attracted global attention. Several international organizations including the United Nations Security Council and General Assembly, the North Atlantic Treaty Organization (NATO), the International Maritime Organization (IMO), and regional organizations such as the European Union (EU) and African Union (AU) have been actively engaged in addressing this grave problem.

    Navies from the EU and NATO and from several countries, including the United States, Russia, China, India, and Japan, have deployed their warships off the coast of Somalia and in the Gulf of Aden to protect trade routes and the global supply chain because of the recent upsurge of attacks on ships by Somali pirates. However, notwithstanding these deployments, the attacks on and hijacking of ships transiting the area continue, and as the problem is not confined just to that geographical area, pirate attacks have intensified in other areas where there is not such deployment, including West Africa, Southeast Asia, and the Caribbean. Thus, it would be a fair appraisal that these efforts have met with only limited success in combating the menace of piracy and armed robbery.

    To address the challenge posed by pirates, the United Nations Security Council has adopted several resolutions authorizing states to take the necessary action to combat piracy, including in the territorial waters of Somalia. Norms prescribed under several conventions including the U.N. Law of the Sea Convention (UNCLOS), maritime law, and domestic laws of various states provide for jurisdiction by states to prosecute and punish pirates. The UN Secretary General has offered several options on "prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia," including the creation of a regional or international tribunal. (1) Although piracy must indeed be seen as a global challenge that requires a global response, (2) and while this paper addresses the challenges of piracy to the entire international community and explores actions that could effectively meet them, its focus will primarily be on the Somali pirates.

    The next section assesses the nature and scope of the challenge. This is followed by a discussion of the legal framework applicable to piracy and a review of the wide range of international, regional, and national responses to prevent and deter acts of piracy and punish the perpetrators. The concluding sections contain an appraisal and recommendations.

  2. NATURE AND SCOPE OF THE CHALLENGE

    Acts of piracy have been on the rise for several years, presenting a serious threat to commercial maritime shipping, especially in the Gulf of Aden and off the Horn of Africa. For international shipping and trade both east and west of the Suez Canal, the strategic importance of the Gulf of Aden lies in the number of vessels and the volume of the international trade passing through it--22,000 vessels annually, carrying around eight percent of the world's trade, including twelve percent of the total volume of oil transported by sea, raw materials and finished goods, as well. (3)

    Somalia has suffered from the tragedy of an ongoing civil strife since 1991, and this surge of piracy off its coast is primarily related to its being a failed state (4) with endemic poverty and lawlessness. Acts of piracy have also disrupted the delivery of humanitarian aid to Somalia. (5) Off Somalia's long coast line--almost 2000 miles--foreign vessels have engaged in unauthorized fishing and the dumping of toxic material and waste ever since the early 1990s. (6) The names of pirate fleets such as "National Volunteer Coast Guard of Somalia" and "Somali Marines" can be aptly described as a "testament to pirates' initial motivation." (7) However, their current motivation lies in the huge ransom payments, in the range of millions of dollars, pirates receive from the companies involved, including vessel owners and insurers. (8) Pirates use hijacked fishing vessels as mother ships as they prey on their victims off Somalia's coastline, and have now extended their reach to more than 700 miles offshore. (9) They wage attacks with sophisticated weapons such as M-16 and AK-47 assault rifles and rocket-propelled grenades instead of machetes, knives, and guns, which were their weapons just a few years ago; they are also equipped with speedboats, global positioning systems, and satellite phones. (10)

    The Piracy Reporting Center of the International Maritime Bureau (IMB), a division of the International Chamber of Commerce, issues periodic piracy reports. It reports that incidents of piracy and armed robbery in 2009 exceeded 400, (11) Africa accounting for 270 of these, and the Somalia coast and the Gulf of Aden accounting for 196. (12) Compare these more than 400 attacks with 239, 263, and 293 attacks that were reported in 2006, 2007, and 2008, respectively. (13)

    According to the annual report of the Piracy Reporting Center for 2009, there were 84 attempted attacks, 153 vessels boarded, 120 vessels fired upon and 49 hijacked, compared to 46 ships fired upon in 2008. (14) The report states that in 2009 a total of 1052 crew were taken hostage, while 68 were injured and eight were killed in various incidents. (15) However, increased naval patrols (NATO's Operation Open Shield and Allied Protector; the EU-NAVFOR Mission; the International Combined Task Force-151; and several nations' forces) conducting anti-piracy operations have reduced the success rate of these attacks since pirates find it increasingly difficult to board and hijack vessels. (16) However, the first eight months of 2010 witnessed 286 attacks, (17) demonstrating that, despite the naval presence off the Horn of Africa and the Gulf of Aden, (18) pirates remain active.

    In his report of July 26, 2010, to the UN Security Council, the Secretary-General noted that as of May 15, 2010, 450 mariners were being held hostage on vessels captured by pirates off the coast of Somalia. (19) More than 45 states participate in naval operations to combat piracy, conducted unilaterally or coordinated by the European Union Naval Operation "Atalanta," the North Atlantic Treaty Organization, and the US-led Combined Taskforce 151. (20)

  3. LEGAL FRAMEWORK APPLICABLE TO PIRACY

    1. Introduction

      The legal framework applicable to piracy consists of the customary international law norm, under which piracy is a jus gentium crime and therefore subject to universal jurisdiction, (21) meaning that no nexus is required and thus jurisdiction is available regardless of the nationality of the pirates or the victims, the ship or aircraft, or the location of the act. However, it has been suggested that "the nominal availability of universal jurisdiction for piracy does not translate in practice into ending impunity for the crime," as states have not implemented the jurisdictional grant through legislation. (22)

      Currently, the legal framework is comprised of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), (23) which retained the provisions relating to piracy of the earlier 1958 Convention on the High Seas, (24) several other international conventions, and pertinent Security Council and General Assembly resolutions. In addition, several regional and sub-regional arrangements, along with national efforts, are ongoing to fight piracy.

    2. Applicable Conventions and Actions by the UN Security Council and General Assembly

      1. Conventional Norms

        Customary international law on piracy is codified in the UN Convention on the Law of the Sea, which in section 100 obligates all states to cooperate to the fullest possible extent in repressing piracy "on the high seas or in any other place outside the jurisdiction of any State." (25) Piracy is defined in article 101 to consist of "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." (26) Such an act must take place on the high seas or outside the jurisdiction of any state and must be directed against another ship or aircraft, or the persons or property on board such vessel. (27)

        It should be noted that the definition does not refer to either an attempt to commit an act of piracy or to conspiracy relating to such an act, but it does include voluntary participation or facilitation. (28) Also, criminal acts constituting piracy do not fall under the UNCLOS definition if they occur inside the territorial waters of a state, but are called "armed robbery at sea" or "armed robbery against ships." (29) The IMO defines "armed robbery against ships" to mean any of the following acts:

      2. any illegal act of violence or detention or any act of depredation, or threat thereof, other than an act of piracy, committed for private ends and directed against a ship or against persons or property on board such a ship, within a State's internal waters, archipelagic waters and territorial sea; (30)

      3. any act of inciting or of intentionally facilitating an act described above. (31) State action is authorized within the state's own exclusive economic zone. (32) Piracy, 104 AM. J. INT'L L. 436, 453 (2010).

        UNCLOS Article 105 authorizes any state to seize a pirate ship or aircraft and its property on board, arrest the crew, and prosecute them through its own courts, so long as the seizure takes place on the high seas or on waters outside the jurisdiction of any state. (33) Under Article 107 only warships or military aircraft or those on government service are authorized to undertake such seizures. (34)

        It is noteworthy that while UNCLOS authorizes universal jurisdiction it does not...

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