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Piracy off Somalia: a sketch of the legal framework

Published on April 20, 2009        Author: 

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. Read the rest of this entry…