Piracy off Somalia: a sketch of the legal framework

Author: Douglas Guilfoyle
Filed under: EJIL Analysis

Monday
Apr 20,2009

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.

10 Responses for "Piracy off Somalia: a sketch of the legal framework"

Francisco Forrest Martin April 23rd, 2009 at 17:13
Prof. Guilfoyle wrote in relevant part: ” [Piracy] 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.”

I don’t think this is correct. The High Court of the Admiralty in The Hercules approved the issuance of warrants of arrest against property taken piratically wherever such property may be found:

The warrants of arrest . . . appear to have gone out in terms of great latitude indeed – “to arrest the goods in whatever hands they may be found, per mare vel terrum [by sea or land], or to seize them, aut provenientia a venditione eorum, in the hand of A.B. of London, or wherever else they may be found.”

The Hercules, 2 Dods. 369, 372 (High Ct. Admiralty 1819). Furthermore, Chapter 7 of Title 33 of the U.S. Code also authorizes the capture of piratical vessels on the high seas or their seizure in U.S. waters.
Mark E. Herlihy April 24th, 2009 at 0:16
I am curious to know what authority exisits for the proposition that the law of piracy does not allow pirates to be pursued from the high seas into territorial waters. I would have thought it consistent with general principles of international law that there would exist at least a “hot pursuit” justification for entering territorial waters.
Douglas Guilfoyle April 24th, 2009 at 10:59
Fransisco, thank you for your helpful clarification.

I was speaking of the international law of piracy: in treaties and International Maritime Organisation practise acts within territorial waters are not referred to as piracy and a clear bright line is drawn to respect the sovereign jurisdiction of the coastal State.

Naturally, many national law statutes do treat offences on the the high seas and within their own (national) territorial waters as one offence of piracy. This has contributed to the definitional confusion.

On my point you may care to see Art 101, UNCLOS; the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia 2005, 44 ILM 829; and the piracy reports on the IMO website.

The US Naval Commander’s Handbook (a fabulous resource) sets out the international law very clearly at paragraph 3.5 – 3.5.3.2.

See: http://www.nwc.navy.mil/cnws/ild/documents/1-14m_(jul_2007)_(nwp).pdf
Douglas Guilfoyle April 24th, 2009 at 11:21
Mark, you are right that it would seem constructive to have a right of hot pursuit into foreign territorial waters.

I would be hard pressed, however, to find much academic or official government support for such a right.

In current international practice, the Djibouti Code of Conduct on Countering Piracy 2009 (non-binding, but reflecting a consensus as to the law) requires express permission before foreign law-enforcement vessels may enter the territorial seas of a foreign coastal State.

The most liberal position is that taken in the US Naval Commander’s Handbook (as above), which suggest that while – in exceptional circumstances – you might conduct such a pursuit, one should ordinarily never conduct such an operation without seeking and receiving coastal state consent.

Such a right would also be inconsistent with the general proposition in international law that hot pursuit may not be continued into a foreign State’s territorial sea (absent permission or a special treaty arrangement). See Art 23, High Seas Convention; Art 111, UNCLOS.

Significant portions of UNSCR 1816 and 1846 would also be otiose if States had a pre-existing right of entry into Somalia’s territorial waters to conduct counter-piracy actions.
Francisco Forrest Martin April 24th, 2009 at 15:22
Prof. Guilfoyle:

My citations to the British admiralty court decision and the U.S. code do not reflect merely national law. The High Court of Admiralty was addressing the law of nations governing piracy. And, the relevant sections of Chapter 7 of Title 33 of the U.S. Code codified the law of nations on piracy. Furthermore, UNCLOS and the High Seas Convention do not prohibit pursuit of piratical vessels from the high seas into territorial waters. Only the U.S. Naval Commander’s Handbook states that pursuit must be broken off upon request of the coastal state, but I think that is merely a policy statement.
Mark E. Herlihy April 24th, 2009 at 15:43
Douglas, thank you for your detailed response. This whole area is quite interesting, even without the urgency of the current situation.

This is not my field, so what follows may be a somewhat naive comment: Upon looking at most of your references, it seems to me that there is a slight gap in the legal scheme here. Arts. 22 and 23 of the High Seas Convention and Arts. 110 and 111, UNCLOS, are essentially identical, and seem to be tailored to an enforcement situation in which a foreign flag vessel is sought to be detained within coastal waters by a warship of the coastal state; in this context, the right of “hot pursuit” covers the apprehension of the suspect vessel in international waters when the elements of “hot pursuit” are met. This appears to be functionally an exception to the notion that a warship of one state has no jurisdiction over a “merchant” vessel flying the flag of another state on the high seas; it also seems to envision a situation in which the law sought to be enforced is that of the coastal state.

The principle of universal jurisdiction applicable to vessels reasonably suspected of piracy, engaging in the slave trade, and certain other jus cogens violations is an independent exception to the normal rule of jurisdiction on the high seas. The gap seems to be that there is no formal “hot pursuit” doctrine tailored to the situation of a pursuit from the high seas into territorial waters to assert universal jurisdiction. Arguably, respect for territorial sovereignty should require, at lease, “best efforts” on the part of the pursuing warship to obtain consent to pursue from, or to hand off the pursuit to, the territorial sovereign. But conceptually, if this is not possible, or the sovereign lacks the capacity to apprehend, I would argue that universal jurisdiction ought not be deemed to have been defeated or trumped by territorial sovereignty — if for no other reason than that, conceptually, the pursuing vessel’s original jurisdiction on the high seas is not based on its own sovereign flag, but on serving as the agent of all nations, including the territorial sovereign into whose waters the pirate has fled. The sticky case would be if the territorial sovereign lacked the capacity or the will to apprehend, yet affirmatively withheld consent — at that point, it seems to me that the law becomes a bit thin.

I would distinguish the Security Council resolutions you referenced on the grounds that they represent a programmatic effort to resolve these issues in the particular case of Somalia — an approach which is, of course, preferable to the ad hoc circumstances in which “hot pursuit” could be argued.
Douglas Guilfoyle April 24th, 2009 at 16:12
Mark, thank you this is well put. The analogy between general hot pursuit (onto the high seas) and “reverse hot pursuit” of pirates into the territorial sea is less than exact.

Conceptually, if we were starting from a blank slate I would agree with you.

As a pragmatic matter though, no coastal State has ever to my knowledge excepted a right of “reverse hot pursuit” on any basis.

Every treaty, non-binding code, exchange of letters, etc dealing with subjects such as fisheries, drug smuggling, WMD counter-proliferation etc proceeds on the basis that the express authority of the coastal state is required to permit foreign law-enforcement vessels the right to take any action in their territorial sea.

You could, quite possible rightly, distinguish all of this as being perhaps evidence only of a general rule but not directly relevant to the case at hand.

However, all emerging instruments on piracy are entirely consistent with the general view on other subject-matters. The Djibouti Code of Conduct and the Asian Regional Agreement spring to mind as denying in express terms any right on the part of foreign warships to enter territorial waters to counteract piracy. Given that these are instruments concluded by the most specially affected regional states, they must be given some weight as evidence of the positive law.

Historically, the Harvard Codification project of the 1930s proposed that there be a treaty-based right of “reverse hot pursuit”. While other aspects of the Harvard approach did not find their way into the drafting of the High Seas Convention and UNCLOS, this did not. When I have more time I hope look into whether the ILC canvassed the issue in its debates in the 1950s. It would be interesting to know if this was expressly considered and rejected. My initial memory is that the point was simply not taken up in the early work.

At bottom though we are, I suspect, in furious agreement: normatively there is potentially a gap, and normatively a right of reverse hot pursuit could be desirable.

Our only point of difference arises from my stance as an old-fashioned positivist who likes to see concrete expressions of state practice and opinio juris before concluding an exception to a well-established rule (exclusive competence of the coastal state in their territorial sea) exists.

At present, the closest to express support for such a right I can find is the (in my view) lukewarm drafting of the Commander’s Handbook.
Douglas Guilfoyle April 24th, 2009 at 16:13
Sorry, typo in that last comment: I meant to say the Harvard proposals on piracy were generally implemented in later treaties, the reverse hot pursuit drafting was not.
Mark E. Herlihy April 24th, 2009 at 16:35
Douglas, Thank you very much. I have learned a great deal from these exchanges.
Douglas Guilfoyle April 24th, 2009 at 16:39
On Prof Forrest’s point, I entirely accept that the courts of admiralty were addressing themselves to piracy by law of nations.

Nonetheless, I would concur with the views of Professor O’Connell and the Harvard Research project (26 AJIL Sup 739) that national courts and legislatures – despite invoking piracy by law of nations – have tended not to make the clear and important distinction between offences committed in a territorial sea (subject to the jurisdiction of only that State) and offences on the high seas (subject to the jurisdiction of all) and have often used the same term for both.

As a point of interest, UK statute law now restricts the definition of piracy to events occurring on the high seas, through its incorporation of UNCLOS: s. 26(1) Merchant Shipping and Maritime Security Act 1997.

You are entirely correct that UNCLOS does not prohibit in terms what I have called “reverse hot pursuit”. As it does not mandate it either, we are left with a Lotus case question. On the basis of available State practice, I simply take the view outlined above.