What legal regime applies to the route through Iranian territorial waters? The ordinary starting point would be that a State may temporarily suspend innocent passage its territorial waters, without discrimination, for essential security reasons (Article 25(3), UN Convention on the Law of the Sea). However, as Hormuz is a strait used for international navigation, Iran lacks that ordinary power.

Under UNCLOS, where a strait is used for international navigation and there is no equally convenient route through open high seas waters, then “all ships and aircraft enjoy the right of transit passage, which shall not be impeded” (Art. 38(1)). This would seem decisively against Iran, but for the fact it is only a signatory to the UN Convention on the Law of the Sea and has never ratified it. The precise legal regime applying to Iran and the Strait of Hormuz is thus open to debate.

Some States, especially the US and UK, contend the UNCLOS regime of unimpeded transit passage is customary international law. The alternative is that outside UNCLOS there is only a customary international law right of non-suspendable innocent passage. The Corfu Channel case established in 1949 that warships, and a fortiori merchant ships, have a right of innocent passage through international straits which the coastal State may not suspend.

It was certainly held under the Corfu Channel case that in a time of heightened tensions Albania would have been entitled to regulate (though not prohibit or effectively nullify) the passage of warships through its waters. (See further the discussion in Churchill and Lowe.) Thus it is clearly arguable that under the non-suspendable innocent passage regime a coastal State retains its right to prevent non-innocent passage by individual foreign vessels; while under the UNCLOS transit passage regime it would lack any such rights of enforcement (though it would retain the right to formally regulate certain matters).

Thus, there is some basis for an argument that Iran could seek to restrictively regulate passage through its territorial sea short of suspending innocent passage – provided that as a matter of custom the Corfu Channel and not the UNCLOS rule applies.

However, in the comments to Sahib Singh’s recent post on Iranian sanctions Dan Joyner raised the question whether Iran could take countermeasures in the Strait in response to illegal interventions against its nuclear programme. Rather than close the Strait, Dan suggested Iran might be justified in seizing and confiscating vessels of the nationality of the States responsible for various illegal interventions against its nuclear programme (presuming these acts could be proven the responsibility of Israel and the United States).

Ordinarily, under the ILC Articles on State Responsibility, countermeasures must:

• be targeted only against the responsible State;
• be preceded by an offer to negotiate;
• consist only of the injured State withholding performance of one or more international obligations owed to the responsible State;
• be proportionate and readily reversible; and
• not involve the use of force.

Technically, seizing individual vessels under Dan’s scenario would not involve closing the Strait. Could it be described as suspending the right of innocent passage of certain targeted States? Perhaps, though I have some (possibly formalistic) qualms about the idea that suspending a freedom from interference can create a positive right to interfere. That aside, would seizing merchant vessels involve a prohibited use of force under the UN Charter? The majority view among scholars would appear to be that such a “police action” is not usually tantamount to a use of force (see e.g. Guyana v. Suriname), though much might depend on how such an interdiction operation was carried out.

The suggestion some vessels could be seized as a countermeasure is thus not implausible, but the real question would be sufficient proof of attribution of the complained of conduct to the targeted States.

Finally, one might note that actually closing the whole of the Strait by force could constitute a blockade of the ports of Kuwait, Qatar, Bahrain, the United Arab Emirates and Iraq. This would appear to be a prima facie act of aggression against these States as the General Assembly’s Definition of Aggression (UNGAR 3314) includes blockade of ports under Article 3(c). Such an act of aggression would, at a minimum, justify Security Council intervention though we could debate what other action might be permissible in such a case.

This is far from a fully developed analysis, so thoughts are welcome. My apologies if my replies to comments are less than timely.

• the report is critical of the failure to contain piracy in the Indian Ocean; however, it acknowledges that absent further naval resources the only effective way to protect vessels is to allow them to protect themselves – it thus supports the use of armed guards in some cases;
• indeed, the committee notes that UK government policy on armed guards appeared to shift during its inquiry, with the release last December of a Department of Transport policy allowing the use of armed security on UK flag vessels for the first time;
• the committee calls on the government to issue clear guidance on when armed guards may use potentially lethal force, noting that Crown Prosecution Service guidance on self-defence was not drafted with armed security guards in mind (paras 35-37);
• the report includes as appendices transcripts of evidence; of particular interest is the evidence of Major General Buster Howes (head of the EU NAVFOR counter-piracy mission), Sally Healey (Somalia expert) and Paul and Rachel Chandler (piracy hostages – though some of their evidence will remain redacted until such time as no British hostages are being held);
• the committee rejects calls for an international piracy tribunal or an extra-territorial Somali court sitting in Arusha and supports “recent proposals for specialised anti-piracy courts established within regional states under ordinary national law” as the most efficient and practical option (para 92);
• the explanation of how decisions to prosecute and transfers for prosecution operate in practice is enlightening (see paras 102-3 in particular);
• the report urges the government to consider prosecuting those piracy suspects intercepted by the Royal Navy in the UK where no other State will accept the case (para 107) but notes UK law may need clarification/updating (para 84 and n. 162);
• also worth attention are the sections on “solutions on land” (noting that present “[i]nternational capacity to rebuild a Somali state is extremely limited” but supporting “community engagement” as the way forward) and on the UK government response to the Chandler case (recommending a review of procedures and lessons learned); and
• finally, there are a series of interesting tables and graphs in the report, including those at pages 30 (total attacks against shipping compared to successful hijackings), 39 (numbers of ships and hostages held by pirates over time), 53 (pirate prosecutions internationally), 56 (total ransoms paid).

One statistic evident in, but not highlighted by, the report is the success rate of pirate attacks which halved from 2010 to 2011 (see page 30). This piece of good news is probably due to a mix of factors including naval patrolling, improvements in the passive security measures taken by vessels following Best Management Practices and increasing use of armed security. None of these measures, of course, should be seen as a panacea.

*I note the House of Lords also inquired into Somali piracy, reporting on 14 April 2010.

First, the inquiry had no direct mandate to examine legal issues or render an opinion on the applicable law (as the report notes inter alia at paras 3, 5, 6, 14 and 15). Its task was to review the reports and findings of two widely divergent national inquiries into the incident, and to: “(a) examine and identify the facts, circumstances and context of the incident; and (b) consider and recommend ways of avoiding similar incidents in the future.” It was not asked, for example, to render an opinion on the applicable law to the Secretary-General. The key legal analysis is thus contained in an appendix and represents only the views of the Chairman and Vice-Chairman; indeed, the whole report predominantly reflects the conclusion of the Chairman and Vice-Chairman, with the Israeli and Turkish panel members appending a partial concurrence and a dissent, respectively.

My own analysis of the blockade is available in the current pre-publication British Yearbook of International Law. I only sketch the path of my analysis here, but to my mind these are the questions that any balanced assessment of the legality of the blockade must address. Starting from the proposition that blockade is ordinarily only available in an international armed conflict (IAC), the relevant questions are:

(1)  Is the conflict between Israel and Hamas an IAC, and if so, on what reasoned legal basis?

(2)  Alternatively, is the conflict between Israel and Hamas a non-international armed conflict (NIAC) by reference to the Tadić criteria (a conflict of sufficient intensity between a state and a sufficiently organised armed group)?

(3)  If it is a NIAC, on the basis of State practice and opinio juris, is it clearly the case that blockade is available in NIACs?

(4)  Presuming the doctrine of blockade to be applicable, were its requirements met?

(5)  Irrespective of the precise legal basis for the boarding, was Israel’s use of force against the Mavi Marmara excessive?

(6)  What were the applicable human rights standards governing Israel’s conduct of the Mavi Marmara boarding and subsequent treatment of detainees and were they adhered to?

Any approach that does not consider all of these questions is dodging or excluding an issue. I will set aside here question (6) for reasons of space.

The Palmer Report’s discussion of blockade is split between the report itself and Appendix I (containing the views of the Chairman and Vice-Chairman on the applicable law). My concerns about the Report’s approach to questions (1)-(5) are outlined below.

On (1), the Report characterise the conflict as an IAC without – regrettably – any legal reasoning; it simply asserts that this conclusion is based on the “facts as they exist on the ground”. This is simply dodging the law. The Report further asserts that the conflict has “all the trappings of an international armed conflict” (para 73) seemingly on the basis that: (a) 5,000 rockets were fired into Israel from Gaza in 2005-2009 causing more than 25 deaths, and significant further injuries and psychological damage to Israel’s civilian population (para 71); (b) this threat originates beyond Israel’s borders (para 73); and (c) the conflict implicates Israel’s right of self-defence (para 73). All three grounds provide a dubious legal, or even common-sense, basis for concluding the conflict is an IAC. Hamdan v Rumsfeld, correctly in my view, emphasised that IACs are conflicts between States and that conflicts with non-State actors are inherently NIACs. It is not enough to make the law of IAC applicable that the conflict crosses borders or that it commenced with an armed attack by a non-State actor capable of giving rise to a right of self-defence. Further, while the rocket attacks are grotesque, and clearly criminal, terrorist acts they do not have “all the trappings” of a conflict between regular national forces. They have all the trappings of conflict between a State and irregular forces.

As Marko notes, the Report’s Legal Annexe takes a slightly different position, and appears to endorse the US Civil War Prize Cases as providing a legal basis for invoking blockade against a non-State actor. This analysis goes to my questions (2) and (3) above. The Prize Cases are underpinned by the nineteenth century doctrine of recognition of belligerency. The basic problem is that there is real doubt that the doctrine survived into the twentieth century: it is generally thought to have fallen into desuetude (see, for example, the Turkel Commission Report, para 42 n 147).

More generally, one cannot make the case that blockade is available in a NIAC without engaging in an analysis of State practice after the US Civil War. In doing so, one must not abandon the ordinary rules of customary international law: one needs to find States acting in a manner consistent with blockade (State practice), while claiming they had a legal right to exercise blockade in a NIAC (opinio juris). One must also look to whether such actions have been widely denounced by other States, if so they cannot be taken to be rule creating. It is not enough that some State practice feels like blockade. For example: France’s measures of visit and search against foreign vessels suspected of weapons smuggling during the Algerian war were not justified as blockade, and were widely denounced by the international community; Sri Lanka during its civil war never declared a laws-of-war blockade, but did take measures available under the laws of peace within its national waters to prevent weapons smuggling. Most problematically European States widely denounced the rights of any party to the Spanish Civil War to engage in blockade. Some support might be drawn from the general lack of protest of Israel’s blockade against Lebanon in 2006 when taking action against Hizbollah. The Palmer Report, however, simply relies on the Prize Cases. The idea that the modern law can be completely exposed by reference to a single set of national proceedings 150 years old is dubious at best.

On (4), the Legal Annexe acknowledges that “a blockade as a method of warfare is illegal if the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage obtained by the imposition of the blockade” (p. 89, para 36). On the facts, the Palmer report concludes (para. 78) that the hardship caused to the population of Gaza is caused by land border restrictions and the prospects of delivering sufficient relief for 1.5 million people by sea are slight (especially in the absence of a functioning commercial port). Thus, the blockade regime should not be impugned by reference to the border-crossing regime.

There is perhaps some merit in this approach, but I find it unconvincing. The two regimes serve a single ostensible objective: the prevention of weapons and dual-use goods reaching Hamas. Whether proportionality analysis should allow such salami-slicing in this context is questionable. Hypothetically, if one accepted that at the relevant time the border regime inflicted disproportionate civilian damage and that the maritime blockade was implemented to perfect the land-border restrictions, then it would seem odd to conclude that the blockade itself was proportionate while the underlying measure was not (although note Shany’s argument that the military advantage secured by a blockade could be sufficiently distinct to justify separate treatment). Indeed, the Israeli national report refused to adopt such piecemeal analysis, concluding that the two regimes were linked at the tactical level (see the Turkel Commission Report, Part 1, at para 63 and the EJIL:Talk! blog post by Amichai Cohen & Yuval Shany).

As to question (5), regarding the level of force used in the incident, the Palmer Report findings are much harder on Israel than most other reports or commentary (other than the report of the Judge Hudson Philips Fact Finding Mission, paras 162-173, for a critical examination of which see Yuval Shany’s blog post). To oversimplify, some approaches to the question have assumed that the relevant standards are found (almost) exclusively in human rights law (e.g. the Hudson Philips Report) and some that the relevant standards are found (almost) exclusively in international humanitarian law (e.g. the Turkel Commission Report). The Legal Annexe to the Palmer report, as Marko notes, does the best job to date of engaging in a balanced discussion of how these two bodies of law relate to each other. The Palmer Report concludes:

(a)   The boarding was attempted by surprise, without immediate prior warning or any attempt to use the lesser means the force commander had at his disposal under operational orders including the use of “skunk bombs”, water cannons, shots across the bow, etc. The boarding was carried out with a level of force – several hours steaming away from the blockaded area – consistent only with a far more imminent threat to Israel. It was thus “excessive and unreasonable” (para 117).

(b)  As to the use of force aboard the vessel, the report finds that Israeli forces faced significant, violent and organised resistance upon boarding and were entitled to act in self-defence. However, the violence used in the Israeli response “unacceptable” (para. 134). “The Panel concludes that there has been no adequate explanation provided for the nine deaths or why force was used to the extent that it produced such high levels of injury” (para. 131), especially as regards those shot multiple times, including at close range and in the back.

These are all presented as judgements made on the facts without direct reference to legal standards. The Legal Appendix, however, goes into more detail. It notes that in the enforcement of a legal blockade a vessel that resists capture may be “attacked”, but under IHL this has a narrow meaning: “warnings must be given to the vessel prior to any attack … civilians may not be targeted, unless they take active part in hostilities. Moreover, the military advantage of the attack needs to be weighed against the collateral casualties.  If the latter are excessive, the attack would be illegal” (p. 92, para. 47). This is clearly correct. Elsewhere it concludes: “The level of force used to enforce … [a right of blockade against a civilian vessel] must be proportionate; in particular, it must be limited to the level necessary to achieve the military objective” (p. 102, para 72). It does not, on first reading, offer any authority for the latter proposition but I would certainly concur and add that the ordinary international law applicable in peace-time law enforcement action would be broadly similar (the need for warning shots, force as a last resort, and then only what was necessary and proportionate as in MV Saiga (No 2)). What is notable is the strictness with which the Palmer Report construed the requirement of prior warning immediately before boarding. Israel had clearly warned the flotilla in general that unless it changed course it would be subject to boarding; and it can plausibly be argued that, when resistance is expected, the element of surprise in a boarding may offer less risk to human life.

Overall, the report is generally clear, accurate and accessibly written. Its most regrettable element is the sometimes half-hearted effort to physically separate the discussion of facts and law and suggestions that a policy-oriented view of the facts may shape applicable law. The deliberate consideration of the blockade in total isolation from the impact of related tactical measures on the civilian population of Gaza is also not particularly convincing, and provides, in my view, an unsatisfactory basis on which to conclude the blockade is legal.

Post script: It appears from this press release that Turkey will seek that the General Assembly refer the question of the legality of the blockade to the ICJ for an advisory opinion.

There have been a number of national piracy trials taking place in Western States, notably in the US and the Netherlands. (I have written on piracy trials in Kenya elsewhere.) In the Netherlands a group of Somali pirates was sentenced to five years in prison. I have not seen either the judgement in Dutch or a summary of it in any other language yet. (If you have it, do let me know). In New York, the young Somali suspect pirate Abdiwali Abdiqadir Muse, sole survivor of the gang that attempted to hijack the Maersk Alabama, entered a guilty plea in a deal that removed piracy from the charges against him.

This leaves US v Said et al, the trial of 11 suspects before the US District Court in Norfolk, Virginia who were alleged to have (rather foolishly) attacked the naval vessel the USS Ashland, an amphibious landing craft transport, in April this year. The New York Times has helpful posted a copy of the interlocutory decision in this case which Justice Jackson struck out the charges of piracy against them. The decision finds that the alleged facts, which involve drawing alongside another vessel and starting a fire-fight with it, do not fall within the US statutory concept of “piracy as defined by the law of nations” (18 USC §1651). The reason for this is that the classic case, US v Smith 18 US 153 (1820), remains the governing authority and it held piracy to be “robbery at sea”. The alleged facts disclose no robbery, ergo no piracy.

The decision raises a host of issues. I will concentrate more here on points of methodology and issues of national prosecutions of international crimes. I have discussed the international law framework surrounding piracy in a previous post on this blog and will attempt not to repeat matters covered there. Nonetheless, I cannot resist the obvious quote from the Privy Council in Re Piracy Jure Gentium [1934] AC 586, which responded to the suggestion that robbery is a necessary ingredient of piracy by saying:

“[when confronted with the argument that] armed men, sailing the seas on board a vessel without any commission from any state, could attack and kill everybody on board another vessel … without committing the crime of piracy unless they stole, say, an article worth sixpence, … [one is] almost tempted to say that a little common sense is a valuable quality in the interpretation of international law.”

In fairness, the decision starts by noting the due process requirement that a criminal defendant should have “fair warning” of the existence of an offence (nullum crimen sine lege) and the prohibition on “novel” constructions of criminal statutes to capture acts not previously (or obviously) criminal. It also starts from the proposition that criminal statutes are to be strictly construed and their meaning is to be judged at the time of their enactment (here 1819).

The judgment gives short shrift to the prosecutor’s contention that: (1) “the definition of ‘piracy, defined by the law of nations’ includes and has always included any unauthorized violent acts or attacks committed on the high seas without lawful authority against another ship”; and (2) that this definition is not unconstitutionally vague.

US v Smith certainly did define piracy as “robbery upon the sea”, but it noted (in Justice Story’s epic 18-page footnote) the diversity of definitions then given by authorities and its facts concerned only robbery. That said, the prosecutor was unable to cite wider approaches to the definition in US law (other than in civil forfeiture cases using the broader term “piratical”).

Unsurprisingly, given the paucity of US sources, the prosecutor argued that the Court should have reference to current international law definitions. The government apparently cited International Maritime Bureau practice, Re Piracy Jure Gentium, the Geneva High Seas Convention 1958 and the UN Convention on the Law of the Sea 1982 (the latter two containing virtually the same definition). The defence case was that the current international law definition of piracy remained so unsettled that the only clear (and thus fair) standard to apply was the prior Supreme Court ruling in US v Smith.

The Court noted that according to Oppenhiem’s International Law (1905), Re Piracy Jure Gentium, and the relevant treaties piracy included any attack or act of unlawful violence. This, one would have thought a sufficient foundation to conclude there was presently a clear definition at international law.

The Court, however, took the view that there was no scholarly consensus as to whether there was a settled definition of piracy at customary international law. The decision quotes to this end a few US law journal articles and the magisterial (if idiosyncratic) work, Alfred P. Rubin’s The Law of Piracy (1988). There is indeed a received wisdom in some quarters that there has never been a clear customary international law definition of piracy and therefore there was nothing for the Geneva Convention 1958 to codify; any definition it offers must have been largely novel.

Like many received wisdoms, it fails under sustained analysis. In particular it gives no weight to the successive re-enactment of the 1958 definition in UNCLOS and other instruments. Both the Geneva Convention and UNCLOS have certainly come to be treated as codifications, even if the claim that there was a clear rule to codify in 1958 might seem shaky. As I’ve put it elsewhere (footnotes omitted):

“While [the treaty definition are] now generally accepted as customary law, there are worse and better arguments that this definition is not, historically, a codification. Worse arguments focus on national decisions of the 19th or early 20th century … These cannot be a reliable guide to the law a century later, not least because such cases notoriously conflated elements of national and international offences. Better arguments note the diverse, contradictory historical case law and scholarly commentary and ask how any coherent rule could emerge from such incoherent material. Both arguments fail to acknowledge that the successive re-enactment of this definition in treaties and regional instruments evidence States’ present acceptance of it as custom no matter how unconvincing this proposition might seem viewed over the longue durée.”

The position that the universally applicable legal framework dealing with piracy is reflected in UNCLOS has also been endorsed in Security Council Resolutions 1816, 1838, 1846, 1851, 1897 and 1918. If this isn’t evidence that that the treaty definition is now believed to be custom I’m not sure what is.

The Court also declines to look to international sources not only because of lack of clarity but because

“there is no single court that can bring order to various interpretations of UNCLOS [regarding piracy]. Rather, enforcement actions against pirates and criminal prosecutions of pirates are left to individual countries, many of which have different penalties for the crime of piracy ranging from three years to life in prison.”

Quibbles could be raised about these points, but they are all ultimately tangential. The Court ultimately held against looking to current international law sources because as they “evolve over time, defendants in the United States courts would be required to constantly guess whether their conduct is proscribed by § 1651.” A somewhat facetious response would suggest that the likelihood of any Somali having contemplated 18 USC §1651 is vanishingly remote. Obviously, though, it would certainly impair running a defence if your lawyers had no notice of what the definition of the offence was until the Court had determined it. There are also, perhaps, policy considerations in the propriety of courts receiving wholesale from custom criminal law standards in an age that expects such matters to be set out clearly and in advance, in written form, by elected legislatures (see, for example, the Australian case Nulyarimma v Thompson [1999] FCA 1192, paras 53 and 161; see also footnote 6 in Said v US).

It is hard to argue against the proposition that a defendant (or rather his lawyers) should have fair notice of the case they will have to plead and reasonably certain standards to guide them. The lesson for States wishing to prosecute pirates has to be to update your statutory definitions. This should not particularly difficult, but some legislative efforts look rather better than others.

In the UK s. 26(1), Merchant Shipping and Maritime Security Act 1997 (c. 28) states: “For the avoidance of doubt it is hereby declared that for the purposes of any proceedings before a court in the United Kingdom in respect of piracy, the provisions of the United Nations Convention on the Law of the Sea 1982 … shall be treated as constituting part of the law of nations”. That is, the UK crime remains piracy by law of nations, but judges are directed to construe that customary international law crime in line with UNCLOS. Whether this somewhat tortuous formula provides sufficient certainty for defence lawyers remains to be seen. Australia, rather more directly, simply incorporated the language of UNCLOS into ss. 51-53, Crimes Act 1914. There are reports of new laws in jurisdiction such as Spain and Japan. It might be time for the US to revisit its definition as well, especially in light of its treaty commitments under the Geneva Convention 1958.

Dr Douglas Guilfoyle is a Lecturer in Law at University College London.  His research has focussed on the law of the sea and international and transanational criminal law. His book Shipping Interdiction and the Law of the Sea was published by Cambridge University Press in 2009. His previous EJIL Talk! posts can be found by clicking on his name in the tab on the right.

The application of the European Convention on Human Rights (ECHR) to law-enforcement operations at sea raises a number of issues concerning the scope of the ECHR’s extra-territorial application and how ECHR rights are to be interpreted and applied extra-territorially. The limited case law to date has concerned maritime migrant and narcotics smuggling, but has significant implications for counter-piracy operation in the Gulf of Aden, an issue I have explored in a recent article in the Int. & Comp. Law Quarterly (see here).

We now have a European Court of Human Rights (ECtHR) Grand Chamber authority on point, Medvedyev v France (Application no. 3394/03), which illuminates some of these issues. In Medvedyev French authorities interdicted a Cambodian vessel (inaptly named the Winner) suspected of drug smuggling on the basis of Cambodian consent; those aboard were confined aboard during the 13 day voyage into a French port. The suspects were later convicted in France of drug-smuggling offences and brought proceedings before the ECtHR challenging the legality of their detention at sea and the delay involved in bringing them before a court under articles 5(1) and (3), ECHR. An earlier ECtHR case, Rigopoulos, similarly involved a Spanish high-seas interdiction of drug smugglers and a 16-day voyage to port. In both cases the Court held that such delays, where materially impossible to avoid, did not violate ECHR article 5(3). In Medvedyev, however, a violation of article 5(1) was found. France appealed to the Grand Chamber, and the decision was handed down on 29 March 2010. The Grand Chamber held, unanimously, that the applicants were within the jurisdiction of France; upheld, by 10 votes to seven, the decision that there had been a violation of article 5(1); and denied (by nine votes to eight) the claim that there had been a violation of article 5(3). The focus here will be on the jurisdictional and article 5(1) issues.

Extra-territorial application of the ECHR

The Grand Chamber shed little new light on the ECHR’s extra-territorial application (paras 63-66). It reiterated the Banković proposition that the ECHR’s extra-territorial application based on State jurisdiction is exceptional. It did not cite any State agent authority and control cases, but did note that exceptionally “the acts of the Contracting States performed or producing effects, outside their territories can constitute an exercise of jurisdiction”. It then resorted to the rather tired line that “clearly defined and recognised” cases of extra-territorial jurisdiction at international law included consular activities abroad and jurisdiction over flag vessels. Without more it concluded that French special forces boarding the Winner constituted an exercise of jurisdiction engaging the ECHR. It is hard to fault the result, but the lack of intermediate logic is odd given the judgment’s stress elsewhere on the ordinary rule of exclusive flag State jurisdiction. What in the act of placing forces aboard a foreign vessel (with flag State consent) transforms that vessel into a space analogous to an embassy or those forces into officials similar to consular agents? The desire to avoid the issue seems creakingly obvious. Nonetheless, it now seems firmly established that exercising coercive law-enforcement jurisdiction over a foreign vessel on the high seas will bring it within ECHR jurisdiction.

Article 5(1): was detention arbitrary?

The difficulty for France arose from the fact that its domestic legislation at the time covering drug interdictions at sea was designed only to implement interdictions authorised by a flag State pursuant to the UN Narcotics Convention 1988, to which Cambodia was not a party. Nor was Cambodia a party to the UN Law of the Sea Convention 1982 (UNCLOS). The only legal basis for the French action was an exchange of diplomatic notes. The Grand Chamber’s analysis (paras 82-103) was essentially concerned with two matters: that there was clear legal authority for the action either at French law or international law; and that the relevant law satisfied a quality of “foreseeability” (ie that those to whom it was applied could have predicted its application).

On the first point the Grand Chamber noted, as above, that textually the French statute did not apply on the facts. However, it then gratuitously observed that as the vessel was not French, the nationals aboard were not French and as Cambodia was not party to any relevant treaty – there was no basis to apply French law to the vessel. All State practice in counter-drug and counter-piracy operations is to the contrary: where a flag State waives its exclusive jurisdiction, the interdicting State is competent to apply its laws to the foreign vessel. While this is generally stipulated in treaty, treaties could not grant a jurisdiction prohibited by general international law. The consent of the flag State is the vital part, a treaty being only one mode to express it.

The Grand Chamber did accept that the diplomatic note was a source of international law capable of justifying the French interdiction. The note did not, however, sufficiently clearly specify a right to detain the crew. It granted power only to “intercept, inspect and take legal action against” the ship.

Further, even had it dealt with the crew expressly, the note would not have met the “foreseeability” criterion, giving the suspects notice they might be subject to French law. In fact, only a bilateral or multilateral treaty could ever suffice in such cases to give adequate notice and prevent the application of foreign law being arbitrary (para 100).

It is instructive to contrast the Grand Chamber’s approach with the first ECtHR judgment of 2008. Both essentially agreed that the diplomatic note was the governing legal text and that it was deficient for not expressly authorising the crew’s detention. However, as regards the requisite “quality” of the law they focussed on different things. While the Grand Chamber focussed on the standard of foreseeability, the Court at first instance was more concerned with procedural safeguards. The Court in 2008 held that that detention was arbitrary as both the invoked provisions of French and international law failed to: “regulate the conditions of deprivation of liberty on board ship, and in particular the possibility for the persons concerned to contact a lawyer or a family member. Nor do they place the detention under the supervision of a judicial authority” (para 61). Similar concerns are found in the eight-judge partial dissenting opinion of Judge Tulkens et al in the Grand Chamber arguing for quite a strict application of articles 5(1) and (3) to maritime interdictions, especially regarding judicial supervision of detention, notification of detention to family members and access to legal advice – all of which were apparently made available at sea in Rigopolous (para 5).

Analysis

An optimistic reading of Medvedyev suggests that the standard to be met for article 5(1) foreseeability is something close to the UNCLOS piracy provisions. Indeed, the Grand Chamber laments that the international community has not concluded a general instrument providing an exception to flag State jurisdiction and universal jurisdiction over drug smuggling in similar terms to the law of piracy (para 101). European States conducting counter-piracy operations might thus feel reasonably confident that they have legal authority to detain suspects and have more than usual latitude in bringing such suspects “promptly” before a judge.

This may, however, be overly optimistic. There is a clear strain of thought in the 2008 judgement and the Grand Chamber’s eight-judge partial dissent that even on the high seas judicial supervision of detention, communication with family and access to a lawyer are indispensible guarantees. Indeed, the Grand Chamber judgement does not expressly indicate anywhere that “foreseeability” was the only reason France’s appeal failed. It could thus remain open to the Court in future cases to apply these further article 5 criteria in addition to foreseeability.

On any view, the bad news is that the relatively common practice of ad hoc interdiction authorised by diplomatic note cannot, it seems, satisfy article 5(1) under any circumstances.

The partially dissenting opinion of Judges Costa et al makes a number of excellent points in this regard. Their essential view is that a certain realism is required when considering international cooperation to suppress drug trafficking and maritime operations thousands of miles out to sea. First, the Winner’s crew obviously knew what they were doing was wrong and could result in criminal punishment. Second, interpreting a diplomatic note governed by public international law as strictly as one would a domestic statute was unwarranted. Third, it was in any event artificial to hold that authorising legal proceedings against the ship did not authorise proceedings against the crew as it is “scarcely possible to dissociate the crew from the ship itself” on the high seas. This would appear a very sensible view of how a regional human rights court “which operates in the general field of public international law” should approach extra-territorial issues and give effect to the value of international co-operation (as expressed in ECtHR case law).

 While something of a mixed blessing, the decision can be seen as generally supportive of maritime law enforcement operations – so long as there is an underlying treaty that clearly contemplates criminal sanctions. Nonetheless, States would be wise to contemplate what practical measures could be taken to ensure judicial supervision of detention at sea and to allow suspects’ families to be informed and even for legal advice to be provided. There are clearly many ECtHR judges who would apply the Strasbourg case law on point strictly, irrespective of the practical challenges that could present in many maritime law-enforcement operations.

We’re all by now familiar with a certain account of the development of the idea of humanitarian intervention. Let me offer a stylised version of this narrative, with its inevitable oversimplifications by way of introduction.

On one account humanitarian intervention begins as an idea supported by academics, is then invoked (not always consistently) by a small handful of States in concrete cases from the 1990s onwards, is opposed by the 170 member States of the Group of 77 and has now been at least partially supplanted by the “responsibility to protect” (R2P). Paragraph 139 of the World Summit Outcomes Document, however, would appear to reduce R2P to an agreement that the UN is the only legitimate forum for authorising intervention and that the Security Council should act in cases of humanitarian catastrophe. There is very little sign, though, of UN practice in support of this vision of R2P as a collective, institutional responsibility. On this stylised account, what began as an attempt to modify the positive rules on the use of force and non-intervention appears to have been folded back in to the status quo ante. (Albeit that a caveat might have to be entered regarding interventions endorsed or carried out by regional organisations.)

What has always puzzled me about the debate over forceful humanitarian intervention is that proponents and critics have invariably cast it being either a right or a duty. Are there any obstacles to conceptualising it as a justification or excuse for an otherwise illegal use of force? After all, the “right” of self-defence is easily considered such a “circumstance precluding wrongfulness” (i.e. a defence), and is categorised as such in the ILC Articles on State Responsibility.  

Necessity may be invoked where the act which is otherwise contrary to an international obligation “is the only way for the State to safeguard an essential interest against a grave and imminent peril” (Article 25(1), ILC Articles). A State may plead necessity even where its own interests are not directly threatened; the ILC commentary to Article 25 refers to “a grave danger either to the essential interests of the State or of the international community as a whole”.

It would thus seem possible to plead the necessity of forceful intervention to suppress or prevent violations of obligations erga omnes, including at a minimum genocide and certain grave human rights violations (as in Barcelona Traction, para 34). Limitations circumscribing the defence’s availability are not hard to find. As the ILC Commentary to Article 25 notes (at para 5), the Caroline incident criteria provide a useful test of necessity: circumstances justifying necessity must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation”. Vaughan Lowe has, elsewhere, helpfully suggested that forceful action cannot be necessary before diplomacy has been exhausted.

It strikes me that this approach to humanitarian intervention has one major advantage and a number of significant problems. The advantage is that if humanitarian intervention can be justified by a defence available at general international law, in principle there is no need for proponents to point to prior State practice substantiating a prior right of intervention. The lesser of my two problems is that this would involve a concession that any such intervention was prima facie illegal, which intervening States would likely find politically unpalatable. The more significant problem is the possible argument that “the international obligation in question excludes the possibility of invoking necessity” (Article 25(2), ILC Articles). That is, one may point to statements in the Definition of Aggression and the Friendly Relations Declaration to the effect that no consideration of any kind whatever may justify forceful intervention in another State.

Addressing this objection leads us back to the scope of the underlying prohibition on the use of force, and the old and unproductive debates about the correct interpretation of Article 2(4) of the UN Charter or the search for convincing State practice supporting humanitarian intervention outside institutional arrangements. On any objective head-count of UN members, it is quite clear the majority favour an absolute prohibition on intervention (absent UN authorisation, or perhaps action within regional arrangements).

Nonetheless, my argument might suggest that those States already publicly endorsing anticipatory self-defence based on the Caroline criteria could, completely consistently with this position, invoke a plea of necessity as an alternative justification for humanitarian intervention. This conclusion doesn’t perhaps advance debate a great deal, but I would be grateful to know if anyone has explored this line of thought in more detail.

Dr Douglas Guilfoyle is a Lecturer in Law at University College London.  His research has focussed on the law of the sea and international and transanational criminal law. He is the author of ‘Piracy Off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-Piracy Efforts’ (2008) 57 International and Comparative Law Quarterly 690-699. His book Shipping Interdiction and the Law of the Sea will be published by Cambridge University Press later this year.  

We’re all familiar now with the pirate attacks in the Gulf of Aden and off Somalia’s east coast, especially following the hijacking of the Sirius Star 500 nm off the coast of Kenya in November 2008 and the more recent uses of lethal force by French and US navies to free hostages seized by pirates. Although, the international law of piracy is quite straightforward, its implementation – especially in a situation as complex as the Gulf of Aden – is rather more difficult. Some of the problems are legal and some practical. The law applicable to piracy off Somalia is presently a mix of customary law, UN Security Council Resolutions and treaty law. If pirates are captured, questions of national law and international human rights obligations also arise.

In my view, there is no short-term, military “fix” for piracy. It remains to be seen whether recent uses of lethal force against pirates will deter them, or escalate violence against ships and hostages. In the short term, the best we can hope for is better regional co-operation and judicial capacity-building in Kenya – the destination for many captured pirates. The later is presently being undertaken by the UN Office on Drugs and Crime with a substantial grant from the German government.

The customary law

The core of the customary law of piracy, as codified in Articles 101-107 and 110 of the UN Law of the Sea Convention (UNCLOS) is relatively simple. Piracy consists of: (i) any act of violence; (ii) committed for private ends; (iii) on the high seas or in a place beyond the relevant jurisdiction of any State; and (iv) which is committed by one vessel against another. Any State may send a warship to board a pirate vessel, arrest those on board and subject them to the jurisdiction of its courts. Warships may also use reasonable force to that end.

It is commonly held that piracy does not cover politically motivated acts. This, I believe, is a myth (for reasons I have explained elsewhere). Any act of violence lacking State sanction is, in my view, an act “for private ends”. The limitations within the definition of piracy are fairly obvious. It does not cover internal hijacking or events within territorial waters (the latter is normally termed “armed robbery against ships” and regarded as a matter for coastal-State law enforcement), nor does the law of piracy allow pirates to be pursued from the high seas into territorial waters.

 One of the problems with the current attempt to combat piracy is that though, as a matter of international law, all States have jurisdiction to try pirates, few States have adequate national laws for the prosecution of pirates who have not committed offences against either their nationals or flag vessels. This has lead to some startling results, such as the German navy releasing some captured pirates on the basis that they had no authority to detain them. While UNCLOS requires that States must co-operate to suppress piracy (Art. 100) it only provides that a capturing warship may send pirates for trial before its courts (Art. 105). The inference is that States are under no duty to have adequate national offences for trying pirates and may co-operate in the suppression of piracy by other means (such as “deter and disrupt” patrols). If States are under a positive obligation to have such laws, the majority have been continually in breach since before the 1920s League of Nations codification project. There is also no clear duty upon port States to receive pirates captured by a third State for trial.

 The UN Security Council Resolutions

The relevant resolutions on Somali piracy are 1816, 1838, 1846 and 1851, all containing the talismanic Chapter VII authority to use “all necessary means” to counter piracy. 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. 1851 authorises “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 Somali Transitional Federal Government (the TFG) as notified in advance to the UN Secretary General. This makes the Resolutions, at first glance, superfluous – Somalia itself is competent to authorise foreign law-enforcement action in its waters and on its soil. Indeed, when French commandoes seized the Le Ponant hijackers on Somali soil in summer 2008, the TFG expressly consented to the mission. Chapter VII is not needed to permit consensual operations. Indeed, all the Resolutions might be thought to do is add further bureaucracy through requiring UNSG notification.

The Resolutions appear to serve political and practical ends. A number of States either do not recognise the TFG or do not trust its ability to give authorisation in a timely fashion. In the Le Ponant affair it is not clear whether France received permission in advance or simply acquiescence after the fact.

The Resolutions also expressly provide, in a relatively standard savings clause, that they apply only to the situation off Somalia and do not serve as a precedent for customary law or modify parties’ rights and obligations under UNCLOS. This was necessary to appease a number of States on the Council, such as Indonesia (which has had piracy problems of its own).

Resolutions 1816 and 1848 allow the use of force in Somalia’s territorial sea to counter piracy in a manner consistent with action permitted on the high seas, but do not contain a rule of priority as to which State will have jurisdiction to try pirates captured there. They also only authorise the use of force against pirates in a manner consistent with that which is allowed on the high seas. The law of piracy has little to say about the manner in which pirates may be seized and articulates no specific rules on the use of force; the applicable law is therefore the general international law applicable to maritime police actions (discussed further below).

Resolution 1851, on action within Somalia’s land territory provides that any action taken under its aegis “shall be undertaken consistent with applicable international humanitarian and human rights law”. Some have taken this to import the entirety of humanitarian law to counter-piracy operations on land. This is clearly wrong. The Resolution refers to “applicable humanitarian law”, i.e. law that would otherwise apply. Unless pirates are also civil-war insurgents, it is hard to see that there would commonly be any humanitarian law applicable to actions against common criminals.

As for pirates captured at sea, both Resolutions 1816 and 1846 make it clear that “applicable … international human rights law” must be complied with (see below).

What is most notable in the chain of UNSCRs is the shift from emphasising authority to use force, to the call for closer law-enforcement co-operation and the search for bases on which to assert jurisdiction over pirates. This shift from a military to a law-enforcement paradigm is particularly pronounced in Resolution 1851, which reiterates

“that the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (‘SUA Convention’) provides for parties to create criminal offences, establish jurisdiction, and accept delivery of persons responsible for or suspected of seizing or exercising control over a ship by force or threat thereof or any other form of intimidation.”

Earlier Resolutions had encouraged States to cooperate to determine who would take jurisdiction to try pirates. UNSCR 1851 seeks to remind States that under certain conditions they might have a duty to accept delivery of pirates and to try them for offences under the SUA Convention (although this involves a strained reading of Art. 8). This appears to be an attempt to harness positive obligations in SUA to fill lacunae in the general law of piracy.

Some practical matters

The capturing of pirates is not free from practical, and some consequential legal, difficulties.

The easiest matter is the use of force. All navies may use force to capture pirates. International law contains well-established, if not enormously detailed, rules on the use of force in maritime policing operations. Put simply, government vessels may use reasonable force where necessary (i.e. as a last resort) in policing operations (see cases such as MV Saiga (No 2), The I’m Alone, Red Crusader). The problem is that if pirates have already seized control of a vessel, a hostage situation ensues and naval forces are rightly reluctant to risk innocent life. The UK and France each appear to have killed one hostage in either replying to pirate fire or rescuing hostages, and the Indian Naval Vessel Tabar sunk a pirate “mother ship” that was itself a hijacked Thai fishing vessel with the loss of as many as 13 lives.

Rather more complicated is what to do with a captured pirate. The naval vessels of 17 States presently patrol the Internationally Recognised Transit Corridor (IRTC) off Somalia, presently coordinated by the EU Naval Force. If one of them captures a pirate, hundreds of nautical miles from shore and well beyond the range of its helicopters to make landfall, should it abandon its mission protecting other merchant vessels to steam them to Mombassa? Most modern naval vessels contain no “brig” where a pirate can safely be clapped in irons. Understandably, most navies would thus prefer to confine their operations to “deterring and disrupting” rather than hunting and arresting. Notably, the implementation of the IRTC and navy patrols have, on industry estimates, basically halved the number of successful pirate attacks.

Trickier still are issues of “applicable international human rights law”. British case law (in Al-Skeini) would seem to suggest, and European case law would appear to confirm (in Medvedyev, Application No. 3394/03, 10 July 2008, unreported), that in a situation where officers have taken control of a vessel and arrested those on board, that becomes a space where their sending State exercises “effective control” and they are bound to secure European Convention on Human Rights protections for those within their custody. This – along with the Convention Against Torture -  may restrict the States where pirates may be sent to face justice and require that ECHR parties obtain assurances that, inter alia, pirates turned over to third States for prosecution will not face the death penalty.

This and other concerns have motivated the UK, US and EU to conclude memoranda of understanding with Kenya regarding the treatment of pirates transferred to Kenya for prosecution. The EU-Kenya MOU is available here. France, however, routinely returns pirates to Somalia, often to the semi-autonomous Puntland regional government.

Regional co-operation

As noted above, the relevant UNSCRs exhort regional States to engage in closer counter-piracy cooperation. UNSCR 1851 encourages regional capacity building, establishing information sharing centres and single points of contact and to consider entering ship-rider agreements. (A ship rider is a law enforcement official from State A, embarked on State B’s vessel. That official can then authorise various actions, including pursuit of vessels into the territorial waters of State A.) To some extent, this is occurring. In Tanzania in April 2008 the IMO sponsored a regional conference which produced a draft Memorandum of Understanding addressing some of these issues. Many of the proposals in the Draft MOU have now been carried forward into a regional Code of Practice to counter piracy concluded in Djibouti, again under IMO auspices and presently signed by Djibouti, Ethiopia, Kenya, Madagascar, the Maldives, the Seychelles, Somalia, Tanzania and Yemen. It makes no formal commitments to allow pursuit of pirates into neighbouring territorial seas in the region and expressly provides that “No Participant should pursue such a ship in or over the territory or territorial sea of any coastal State without the permission of that State”. However, the creation of single points of contact should facilitate obtaining that permission on a case-by-case basis.