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.
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.