Piracy,Navies and the Law of the Sea: the Case of Somalia

WMU Journal of Maritime Affairs, Vol. 8 (2009), No.2, 123–143 Piracy, Navies and the Law of the Sea: the Case of Somalia Uwe Jenisch* Walther-Schücking-Institute for International Law Abstract This contribution concentrates on the legal aspects of piracy and tries to explain some of the practical problems which modern navies experience in their fight against piracy and maritime violence off Somalia. The UN Law of the Sea Convention of 1982 provides a tra- ditional though largely deficient set of rules for control and counter measures. Modern legal instruments such as the SUA Convention of 1988 as amended, recent resolutions of the UN Security Council and regional treaties try to fill the loopholes. Against this back- ground the paper discusses e. g. the law of boarding and investigation of suspicious ves- sels, the arrest and penal prosecution of criminals and the right of self-defence in case of an imminent attack. The international mandates and the national rules of engagement in which the navies operate reflect these ambiguities that result in a loss of momentum. After all piracy is not an act of war, but a crime. In conclusion a political solution on land is indispensable as the navies and coast guards can only fight the symptoms and not the causes of crime and unrest in a failed State. Key words: Piracy/Maritime Violence and the Law of the Sea, SUA Convention, UN Security Council, International Mandates (UN, NATO, EU) Against Piracy, National Rules of Engagement. Piracy is rearing its ugly head again. According to current reports of the Interna- tional Maritime Bureau (IMB) Piracy Reporting Centre in Kuala Lumpur1 the year 2008 ended with a new record of nearly 300 reported acts of piracy and armed rob- bery posing a serious threat to the lives of seafarers, the security of the maritime trans- port industry and the safety and security of coastal States. Despite massive naval efforts in the Gulf of Aden piracy continues in 2009 at a high level and an expanding geographical scope to include large parts of the North-Western Indian Ocean. Piracy attacks around the world doubled in the first six months of 2009 to 240 from 114 compared with the same period in 2008. The rise in numbers is due almost entirely to pirate activities off Somalia with 130 attacks and 31 hijackings. The vast expanse of the oceans is an ideal hiding place for all kinds of illegal activities. But before giv- ing an overview of existing international legal instruments in the fight against piracy we have to make clear that maritime violence is also a political problem. * Professor, Walther-Schücking-Institute for International Law, University of Kiel, Visiting Pro- fessor WMU, Graf Luckner Str. 106, D-241 59 Kiel, Germany, email: uwe.jenisch@t-online.de 1 The International Chamber of Commerce (ICC) is operating the International Maritime Bureau (IMB), based in London, with its Piracy Reporting Centre (PRC) based in Kuala Lumpur/ Malaysia. The annual report 2008 of the IMB lists 293 acts of piracy, 889 seamen taken hostage, 11 killed and 21 missing; for past and subsequent reports see: www.icc-ccs.org. © World Maritime University. All rights reserved. ISSN: 1651-436X print/1654-1642 online 124 Jenisch 1 Piracy in a Political Context A “pirates’ paradise” like the Gulf of Aden can only develop when weak States (“failed States”), lawless societies, political disorder and impoverishment of the populations coincide. The chaos on land is fueled by political and economic instability and the proliferation of weapons. Consequently there is no coastal State control over adjacent seas. When it is impossible to earn money decently, then the unemployed fisherman may become a pirate and the jobless teacher an interpreter for ransom negotiations. Even more so, it may be argued, the poor fisherman of Somalia may turn into a pirate when he sees foreign fishing fleets exploiting the living resources of the 200 mile zone of Somalia, including its rich tuna stocks, while unidentified vessels are dump- ing illegal waste. It is from these origins that piracy off Somalia turned into real big business of organized crime. Anarchy on land easily leads to piracy at sea2. The community of States, including the UN, the African Union and not to forget the rich Arabian oil states allowed chaos to develop in Somalia for over 18 years now. Today the world is confronted with the consequences of bad governance and the inter- national shipping community has to pay the bills. In other words: a political solution on land has to be found to eliminate piracy. Unfortunately, so far no political concepts are at hand. Navies and coast guards can deal only with some of the worst manifesta- tions. They cannot solve the basic problem. Moreover, piracy is part of a larger problem which can best be named “maritime vio- lence”. Although this term is not (yet) established in international law3, it illustrates a growing variety of illegal acts at sea including piracy, armed robbery, slave trade, illegal migration, trafficking in human beings, illicit drugs, international terrorism, transnational organised crime, illegal movement of nuclear, chemical, biological and materials as well as illegal disposal of waste at sea. Readers should be aware that the United Nations Convention on the Law of the Sea (UNCLOS), in force since 1994 and binding upon 158 parties4, is largely regarded as the “constitution of the oceans”. Unfortunately, the section on piracy5 is full of gaps regarding counter-measures and other security aspects. Domestic law may offer some rules for these crimes under the criminal and police codes of individual States but national law cannot cope with the international dimension. 2 Robert D. Kaplan, “Anarchy on Land Means Piracy at Sea”, New York Times, April 11, 2009, on- line version: www.nytimes.com/2009/04/12/opinion/12kaplan.html? (accessed September 29, 2009). 3 Max Mejia and Proshanto K. Mukherjee, “Selected issues of law and ergonomics in maritime security”, Journal of International Maritime Law 10 (2004): 316–326, refer to p. 321. 4 UNCLOS member states are 157 States and the European Community, see: Law of the Sea Bulletin no. 68, 2009: 1. 5 For the text and current developments of UNCLOS, see: www.un.org/Depts/los/index/htm (accessed 15 September 2009); all articles mentioned hereinafter without further indication are articles of UNCLOS. Piracy, Navies and the Law of the Sea 125 At the outset definitions are decisive: acts of piracy have disrupted sea trade for thousands of years. Acts of terror are a novel development of our times. Both are acts of violence. However, they differ not only in the historic background but in the motive of the person responsible6. • The pirate is an opportunistic offender interested in financial gain at a low risk. He is after an easy prey, valuable cargo, cash or ransom. In fact, according to reports published by IMB,7 most cases of piracy and armed robbery involve the theft of relatively low cost items, occasionally called “subsistence piracy”. Today we are confronted with the highly sophisticated and violent hijacking (seizure) of ships on the high seas against ransom (Somalia). • The terrorist is acting on political, ideological or religious grounds. His aim is not to capture ships but to intimidate states, blackmail society and overturn states and governments by massive attacks against targets of high symbolic value or against soft targets with a maximum of damage. He is ready to die for his cause. Both types of offenders tend to consume drugs8 and they do not care for legal or moral standards. But the proportions of damage differ: the pirate leaves us with moderate pro- perty losses and a limited number of injured or killed persons while the terrorist is after a maximum “catastrophic” damage. In both cases innocent people are the victims. Traditionally the term “piracy” is used for piratical acts on the high seas outside the territorial sea of States while “armed robbery” is the term for such acts inside the ter- ritorial sea of 12 n.m. In both cases these individual acts are regarded as a crime which have to be corrected by seizure and by penalties – however under two different legal regimes. In the case of armed robbery inside the 12 n.m. zone only authorities of the coastal State are entitled to respond. In the case of piracy on the high seas war- ships and government ships of all States are entitled to counter measures. This “dual- regime” follows from the anti-piratical provisions of arts. 100 to 107 of the UN Law of the Sea Convention (UNCLOS) which refer only to piracy on the high seas. On the other hand, terrorism is an attack against society as a whole, against a State or a group of States. Terrorism is an attack on peace and security and therefore more aligned to warfare and military defence. A good example of response against terrorism is“Operation Enduring Freedom OEF”with its UN mandate to control terrorist move- ments at the Horn of Africa since 2001 based on the legal concept of self-defence. 6 See Mejia and Mukherjee, Selected Issues of Law and Ergonomics, refer in particular to page 320. Refer furthermore to Max Mejia and Proshanto K. Mukherjee, “The SUA Convention 2005: a Critical Evaluation of its Effectiveness in Suppressing maritime Criminal Acts”, Journal of International Maritime Law 12 (2006): 170–191. 7 See International Maritime Bureau,“Piracy and Armed Robbery Against Ships Annual Report 1 January–31 December 2008”, London (2009); annual reports have been published by IMB since 1996. 8 “Terror und Angst”, Der Spiegel, July 6, 2009, 34–36.