Piracy off Somalia: the challenges for international law.

Author:Rubin, Alfred P.
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This panel was convened at 10:45 a.m., Thursday, March 26, by its moderator, Douglas Guilfoyle of University College London, who introduced the panelists: Alfred Rubin of the Fletcher School, Tufts University; Malvina Halberstam of Cardozo School of Law, Yeshiva University; Ashley Roach, formerly with the U.S. Department of State; Katharine Shepherd of the U.K. Foreign and Commonwealth Office; and Robert Beckman of the National University of Singapore.

INTRODUCTORY REMARKS BY DOUGLAS GUILFOYLE *

Welcome to today's panel, "Piracy off Somalia: the Challenges for International Law." I am delighted to introduce a panel bringing together expertise from both academia and government practice. Today's format is a round-table discussion. I will make some brief introductory remarks to frame our discussion before putting specific questions to our panelists.

Our panelists today are:

* Alfred Rubin, Distinguished Professor Emeritus of International Law, The Fletcher School, Tufts University, and author of the definitive text, The Law of Piracy;

* Malvina Halberstam, Professor at Cardozo Law School, Yeshiva University, who headed the U.S. delegation in the negotiations on the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, adopted in Rome in 1988 ("SUA Convention");

* Robert C. Beckman, Associate Professor and Director of the Centre for International Law at the National University of Singapore, a prolific writer on law of the sea ("LOS") issues, including maritime security and piracy;

We are also very fortunate to have with us two highly informed serving and former government practitioners who have been deeply involved in these issues at the front lines:

* J. Ashley Roach, recently retired from the U.S. State Department, and previously of the U.S. Navy JAGC, also a widely published author on LOS issues; and

* Katharine Shepherd of the U.K. Foreign Office, a law of the sea specialist who has recently spent a lot of time in Africa working on these issues.

We are all familiar with the headlines concerning pirate attacks in the Gulf of Aden and off Somalia's east coast, particularly following the spectacular hijacking 500 nautical miles (rim) off the coast of Kenya of the Sirius Star in November 2009.

Even following the organization of the Internationally Recognized Transit Corridor, administered since 1 February 2009 by the European Union Naval Force and patrolled by the naval assets of seventeen countries, attacks have continued. On some industry estimates, the ratio of successful hijackings per attack have dropped from one in four to one in seven following the implementation of the Corridor. (1) The most recent reported hijacking occurred on Thursday last week and over forty attempted hijackings off Somalia have been reported so far this year. The 1982 UN Law of the Sea Convention ("UNCLOS") defines piracy as: (2)

(1) an act of violence, detention or depredation;

(2) committed for private ends;

(3) on the high seas or in a place outside the jurisdiction of any State; and

(4) committed by the crew or passengers of a private craft, against another vessel or persons or property aboard.

In such cases, the warship of any state has powers to board and inspect suspected pirate vessels and UNCLOS further provides that "every State may seize a pirate ship . . . 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...." (3) Customary international law also permits any state subsequently finding a pirate within its territory to prosecute him or her as an exercise of universal jurisdiction. These general rules are expressly incorporated into the chain of Security Council resolutions and regional non-binding agreements aimed at Somali piracy.

UN Security Council Resolutions 1816, 1838, 1846, and 1851 are--despite granting the talismanic authority of Chapter VII to use "all necessary means" to combat piracy--at first glance seemingly superfluous and peculiar. In broad-brush terms, these resolutions encourage states to develop a cooperative framework to counter piracy in the region as well as granting specific authority to "cooperating states" to enter Somalia's territorial sea to repress piracy in a manner consistent with the international law applicable on the high seas. Resolution 1851 authorizes "cooperating states" to go further and engage in counter-piracy action on Somali soil.

To be a cooperating state under the resolutions, you must be operating with the consent of the Transitional Federal Government as notified in advance to the UN Secretary General. The resolutions thus appear legally superfluous--Somalia itself is competent to authorize foreign law-enforcement action in its waters and on its soil. The resolutions may, however, provide a means of circumventing one wrinkle: Somalia claims a 200 nm territorial sea. A Chapter VII authorization has the political advantage of taking this manifestly excessive claim off the table. (4)

The resolutions are peculiar in that they contain a number of savings clauses, emphasizing that all that is being done is done with Somalia's consent; that this creates no precedent for other situations or for customary international law; and that this does not affect rights or obligations under UNCLOS.

The resolutions also highlight the fact that many captured pirates are being released without prosecution. The difficulty is that while every state in the world may try pirates, not every state has appropriate domestic laws. Some, such as Germany, have constitutional impediments to trying crimes not committed against their flag vessels or nationals. The preamble to UNSCR 1851 notes:

"with concern that the lack of capacity, domestic legislation, and clarity about how to dispose of pirates after their capture ..."

Issues for us to discuss thus include:

* If the law of piracy poses a jurisdictional problem, can the SUA Convention fill the gap?

* What is the international law governing the use of force against pirates?

* What issues arise--especially as to human rights--when a capturing warship transfers captured pirates to another state for prosecution?

* What are the legal and practical issues involved in efforts towards regional cooperation, information sharing, and the potential use of ship-rider agreements?

But first, turning to Professor Rubin, definitional issues: is the law of piracy too narrow and itself part of the problem?

* Lecturer, Faculty of Laws, University College London.

(1) Other estimates suggest the ratio has dropped from one in four to one in five, but that the total number of attempted attacks may be lower.

(2) United Nations Convention on the Law of the Sea art. 101, Dec. 10 1982, 1833 U.N.T.S. 3 (UNCLOS).

(3) Id. art. 105.

(4) I am grateful to J. Ashley Roach for suggesting in discussion that this was not the intention behind the UNSCRs, but that they rather served to provide political and legal certainty (or "cover") to states who either doubt the de facto effectiveness of the Transitional Federal Government or do not recognize it as a de jure government. Others have since suggested to me that a UNSCR is also constitutionally useful for some states in terms of domestic authority to deploy military forces overseas.

REMARKS BY ALFRED P. RUBIN *

As to "piracy," there is no widely accepted definition despite various attempts. The principal problem is to distinguish between "piracy" as defined by each legal system for itself and "piracy" as determined by international law. There is no generally accepted definition of "piracy" at international law (my book makes that clear); and as to the definition by individual states, it varies hugely...

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