• Civil war in Somalia 1990
• Due to lack of effective government, pirates have had free reign in attacking shipping off the Somali coast
• Attacks have been made in the territorial sea and beyond, up to 750 nm from the coast
• Targets include cruise liners, tankers, ships carrying international aid, fishing and recreational vessels
• From 2005‐2007, attacks/attempted attacks off Somali coast exceeded incidents for the Malacca Straits and the South China Sea combined
• From 1992‐2000, Somalia had no representation at the UN
• Transitional Federal Government (‘TFG’) in power since 2000, but lacks control over most of Somalia’s territory
• Pirates operate from command centres on the Somali coast
• Pirates use “mother ships” from which they launch their smaller vessels to attack ships in the EEZ and the high seas
• After the attack, the ships retreat into the Somali territorial sea
• In 2003, 23 hostages taken; by 2008, this rose to 815; in 2010, 1,181 hostages were taken g (with 760 still in captivity)
• In 2005, there were 35 attacks; in 2010, there were 219 attacks
• By 5 February 2011, there had already been 35 attacks in 2011
• Capture of M/V Rozen (World Food Programme vessel) in February 2007;
vessel and crew of 12 held hostage for 40 days
• M/V Victoria (WFP) also attacked in May 2007, one crew member was killed
• Le Ponant (April 2008) attacked – French military responded (with Somalia’s consent)
• Worldwide ship hijackings (Jan – Sept 2009):
o – 34 hijackings o – 559 hostages o – 294 total attacks
• Gulf of Aden (Jan – April 2009):
o – 10 hijackings o – 38 attempts
o – 26 interventions, 10 arrests
• As at 5 February 2011 (off Somali coast):
o – 7 hijackings o – 35 attempts
o – 758 crew being held hostage
• Average ransom: USD 5.8 million
• Average length of hijacking 60‐70 days (but see “Win Far 161”, held for 10 months)
• Legal Framework for Combating Piracy
• – UNCLOS Art 100 (duty to cooperate): – “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.”
• UNCLOS, Art 101 (definition): – “Piracy consists of any of the following acts:
o (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; …
o (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
o (c) any act of inciting or of intentionally facilitating … (a) or (b).”
• UNCLOS, Art 103 (pirate ship): – “A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in Article 101. …”
• UNCLOS, Art 105 (jurisdiction): – “On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. – The courts of the
State which carried out the seizure may decide upon the penalties to be imposed….”
• UNCLOS, Art 110 (right of approach): – “[A] warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity … is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy …”
• Definition of piracy under UNCLOS (Art 101):
o – An act of violence;
o – On the high seas;
o – For private ends;
o – By a private vessel against another vessel;
o – And includes inciting and intentionally facilitating piracy (including
‘cruising with intent’).
o NB that there are limitations with this Definition
• Where should pirates be prosecuted? – Under UNCLOS and customary international law, all States have universal jurisdiction to capture and prosecute pirates – but there is no obligation to do so
• – So States might not have adequate national laws
• – States might be reluctant to prosecute if there are no “links”
• – States might have impediments under their constitution or national law from being involved in efforts to combat piracy
• Legal Framework – SUA Convention - Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (1988)
o – Art 3: it is an offence to ‘seize or exercise control over a ship by force or threat thereof’
o – Art 4: not an offence where the offence took place within one State’s territorial sea, and the vessel was not scheduled to navigate beyond that territorial sea
o – Art 5: States parties have an obligation to legislate and criminalise acts committed against Article 3 of SUA:
a) against or on board their flag vessels;
b) within their territory, including their territorial sea; and
c) by one of their nationals.
• SUA Convention, Arts 8 and 10: – If a vessel detains a vessel or suspect under the SUA Convention, any port State which is a State party must accept delivery of the suspect and extradite or prosecute if there are reasonable grounds for suspecting they have committed an offence
• Summary of UNCLOS and SUA
• UNCLOS:
• – no obligation on States to create national offences
• – need “two vessels”, and piracy must be “for private ends”
• – no provision for States capturing pirates to transfer them to other States
• – automatic right to board on the high seas
• SUA:
• – obligation on States to create national offences
• – obligation to accept delivery of pirates, and to extradite or prosecute
• – no automatic right to board on the high seas
• – haphazard implementation by different States
NB also …
• International Convention Against the Taking of Hostages (1979)
• International Convention for the Suppression of the Financing of Terrorism (1999)
• Djibouti Code of Conduct on Repressing Piracy off Somalia (2009), which promotes further cooperation between States bordering the Indian Ocean
• IMO created an Internationally Recognised Transit Corridor (“IRTC”), and a Maritime Security Patrol Area (“MPSA”) in the Gulf of Aden
• And several UNSC Resolutions …
• UNSCRs
• UNSCR 1816: – authorised interdiction operations in Somalia’s territorial sea (cf UNCLOS – EEZ and high seas only), and use “all necessary means to repress acts of piracy and armed robbery at sea”
• Limitations:
o – Only for six months
o – It did not make the international law of piracy directly applicable in Somali territorial waters
o – No solution re jurisdiction to try pirates
• UNSCR 1838:
o – exhorted States whose naval vessels operate on the high seas off the coast of Somalia to use on the high seas the necessary means, in accordance with international law, as reflected in UNCLOS, for the repression of acts of piracy
• UNSCR 1846:
o – Extended UNSCR 1816 for 12 months
o – Called on States and regional organisations with the capacity to do so
‘to take part actively in the fight against piracy and armed robbery at sea off the coast of Somalia’
o – Noted provisions of SUA Convention
• UNSCR 1851: – “States and regional organisations cooperating in the fight against piracy and armed robbery at sea off the coast of Somalia … may undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea, pursuant to the request of the TFG”
• UNSCR 1897: – renewed authorisations in UNSCR 1846 and UNSCR 1851
• Current response
o 24 naval vessels patrolling the area
o – Coalition Taskforce 150/151 ‘Enduring Freedom’, EU, NATO
o For prosecution of pirates: – Prisoner transfer agreements have been agreed (EU/UK/US/Denmark – Kenya; EU/UK – Seychelles; China – TFG;
France – Puntlan
o Trials have taken place in Kenya, US, Netherlands, France (but Kenya no longer accepting transfers of pirates)
• Challenges ahead
o Different naval forces have different mandates o States who capture pirates reluctant to detain them
o Practical difficulties with prosecutions (cf UNSCR 1918 (2010)) o Legal difficulties – e.g., application of ECHR? Refugee Convention?
o Workload of States carrying out prosecutions (see Kenya’s decision on 1 April 2010)
o So “catch and release” policy re‐implemented?
o International Criminal Tribunal for pirates?
o Best hope: restoration of effective government in Somalia?
o See Letter from S‐G to President of UNSC dated 24 January 2011, and appointment of Jack Lang as Special Adviser on Piracy; see also Jack Lang’s Report (S/2011/30)