In view of the recent increase in piracy off the coast of Somalia, the U.N. Securi- ty Council, together with individual states has been taking more robust action.666 Global organizations, such as the IMO, the European Union, and North Atlantic Treaty Organization (NATO), have also supported piracy repression off the coast of Somalia.667 In 2008, the U.N. Security Council took historic action against pi- racy off the coast of Somalia by adopting four key resolutions (Resolution 1816, 1838, 1846 and 1851)668 to boost collaboration, enhance operational capabilities, remove sanctuary, develop legal authorities and support prosecution efforts.669 These resolutions, decided under Chapter VII of the U.N. Charter, authorize ‘all necessary means’ to deal with piracy, and they are legally binding instruments for all states.670
Resolution 1816 was adopted by the Security Council in order to obtain greater international cooperation against Somali pirates.671 It allows states cooperating with Transitional Federal Government (TFG) of Somalia672 for a period of six
665 Collins and Hassan, above n 591, 111.
666 Helmut Tuerk, 'The Resurgence of Piracy: A Phenomenon of Modern Times ' (2009) 17 The
University of Miami International and Comparative Law Review 1, 2.
667
James Kraska and Brian Wilson, 'The Pirates of the Gulf of Aden: The Coalition Strategy' (2009) 45
Stanford Journal of International Law 243, 245.
668 S.C. Res 1816, UN SCOR, 5902nd mtg, UN Doc S/Res/1816 (2008); S.C. Res 1838, UN SCOR,
5987th mtg, UN Doc S/Res/1838 (2008); S.C. Res 1846, UN SCOR, 6026th mtg, UN Doc S/Res/1846 (2008); S.C. Res 1851, UN SCOR, 6046th mtg, UN Doc S/Res/1851 (2008).
669Kraska and Wilson, above n 667, 275. 670 Charter of the United Nations art 39- 51.
671 S.C. Res 1816, UN SCOR, 5902nd mtg, UN Doc S/Res/1816 (1998). 672
Somalia’s TFG is one of the ruling authorities inside the fractured state. See, for example, an execu- tive summary and recommendations on Somalia published by International Crisis Group
121
months to enter the territorial waters of Somalia for the purpose of repressing pi- racy and armed robbery at sea.673 The resolution, which has been extended since its adoption, also calls upon states in particular flag, port, and coastal states, states of the nationality of victims and perpetrators of piracy, and other states with rele- vant jurisdiction to cooperate in determining jurisdiction, and in the investigation and prosecution of Somali pirates.674 In addition, states also should render assis- tance by providing logistic assistance with respect to persons under their jurisdic- tion and control.675
While Resolution 1816 does not compel any state to take suspected pirates or other ‘persons under control’ from a warship, it does provide an important foun- dation for political support and legitimacy for the provision of assistance and lo- gistics related to the disposition and repatriation of detained persons.676 Further- more, this resolution encourages states to improve and coordinate their efforts to repress piracy in conjunction with the TFG of Somalia. Since Resolution 1816, the U.N. Security Council has recognized the authority of the TFG as the govern- ing body in Somalia, although its authority is contested domestically.677
Another important resolution in relation to situation in Somalia is Resolution 1851 which authorizes states cooperating with the TFG of Somalia to extend counter-piracy efforts to include operations in Somali territorial land and air- space.678 This resolution also urges states to establish an international coopera- tion mechanism as a common point of contact between and among states and re- gional and international organizations in combating piracy off the coast of Soma- lia.679 Furthermore, this resolution urges the enhancing of the judicial capacity of regional states to combat piracy, including to prosecute pirates. 680
<http://www.crisisgroup.org/en/regions/africa/horn-of-africa/somalia/170-somalia-the-transitional- government-on-life-support.aspx > at 13 August 2013. 673 S.C. Res 1816, above n 671, [3]. 674 Ibid. 675 Ibid.
676 Kraska and Wilson, above n 667, 276. 677 Ibid.
678 S.C. Res 1851, UN SCOR, 6046th mtg, [1], UN Doc S/Res/1851 (1998). 679
Ibid [3].
122
The Resolution 1851 encourages the establishment of a mechanism for regular- ized contact between states, similar to the ReCAAP model in Southeast Asia re- gion.681 The resolution authorizes ‘all necessary measures’ to fight piracy, and for the first time allows military operations by the international community on Somali soil and airspace.
However, the UN Security Council resolutions on Somalia have little direct rele- vance to the combating of piracy in the Malacca Straits. The littoral states of the Malacca Straits, particularly Indonesia and Malaysia have consistently resisted the involvement of foreign forces, in order to protect their own claims to sover- eignty. More importantly, the situation in the Malacca Straits is different to the situation in Somalia. While there are three sovereign littoral states bordering the Malacca Straits, Somalia has not had an effective government controlling signifi- cant territory since 1991 when warlords took control of the country, and it is therefore often called a ‘failed state’.682 Furthermore, the U.N Security Council’s resolutions were adopted on the basis of a preceding request from Somalia’s TFG for an international assistance.683 It is evident that a similar request would not likely to be made by two littoral states of the Malacca Straits, Indonesia and Ma- laysia. As mentioned, these two states have consistently opposed the presence of foreign patrols in their territorial waters because of sovereignty concerns.
At the time of the adoption of the Security Resolution 1851, some diplomats ex- pressed their concern over authority to enter Somali’s territorial waters, including the Indonesian Foreign Ministry’s Director General for Legal and International Treaties, Ariev Havas Oegroseno.684 Oegroseno made a comment that the resolu- tion may become a precedent for the Security Council to intervene in the Malac- ca, Lombok and Sunda Straits, three of the world’s major straits, and all located in Indonesia.685 In order to address these concerns, the final draft of the resolu-
681 Kraska and Wilson, above n 667, 283.
682 See, for example, International Crisis Group, Africa Report, Somalia: To Move Beyond the Failed
State (2008)
<http://www.observatori.org/paises/pais_74/documentos/147_somalia___to_move_beyond_the_failed_ state.pdf> at 2 July 2010.
683 See, for example, S.C. Res 1851, above n 678, [2]. 684 Kraska and Wilson, above n 667, 283.
685
Tony Hotland, 'RI Rejects U.S. Anti-Piracy Proposal', The Jakarta Post (Jakarta), 17 December 2008.
123
tion eliminates uncertainty regarding the application of resolution beyond Soma- lia by including a provision stating that the resolution applies only with respect to the situation in Somalia and does not establish new customary international law.686
Despite lack of direct relevance of the U.N. Security Council Resolutions to ef- forts to combat piracy in the Malacca Straits, they are evidence that piracy con- tinues to be seen as a very significant threat to the international community and therefore cooperation between states is encouraged in order to tackle this prob- lem.