Piracy, law of the sea, and use of force: Developments off the coast of somalia

European Journal of International Law

Volumn 20, Issue 2, 2009, Pages 399-414

  Treves, Tullio ^a,b  

^a International Tribunal for the Law of the Sea ^*  (Jamaica)

^b UNIVERSITY OF MILAN   (Italy)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 67650389205     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chp027     Document Type: Article

References (76)

1. The author wishes to thank Valentina Falco (doctoral candidate, European University Institute) and Maria Chiara Noto (doctoral candidate, University of Milan) for helping him with some documents and in discussing some of the questions covered in this article. Some legal discussions of the questions considered are examined in Voelckel, 'La piraterie entre Charte et Convention: à propos de la résolution 1816 du Conseil de Sécurité', 12 Annuaire du droit de la mer (2008) 479;
2. Kontorovich, 'International Legal Responses to Piracy off the Coast of Somalia', 13 (2) ASIL Insights, 6 Feb. 2009;
3. Guilfoyle, 'Piracy off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-piracy Efforts', 57 ICLQ (2008) 690;
4. Tancredi, 'Di pirati e Stati "falliti": Il Consiglio di Sicurezza autorizza il ricorso alla forza nelle acque territoriali della Somalia' [2008] Rivista di diritto internazionale 937.
5. Very interesting legal and factual elements are in the report of the International Expert Group on Piracy off the Somali Coast, Piracy off the Somali Coast, Workshop commissioned by the Special Representative of the Secretary-General of the UN in Somalia Ambassador Ahmedou Ould-Abdallah, Nairobi, 10-21 Nov. 2008,
6. Final Report, Assessment and Recommendations, with an appendix of Detailed Recommendations, Nairobi, 21 Nov. 2008.
7. An accurate short general survey of international law concerning piracy is in Shearer, 'Piracy', in Max-Planck Encyclopaedia of Public International Law (2009),
8. while an older, but extremely penetrating analysis is in M. Giuliano, I diritti e gli obblighi degli Stati, I, L'ambiente dell'attività degli Stati (1956), at 393-401.
9. Studies of recent developments are in Khrska, 'Developing Piracy Policy for the National Strategy for Maritime Security and the International Maritime Organization',
10. Menefee, 'An Overview of Piracy in the First Decade of the 21st Century'
11. and Skaridov, 'Hostis Humani Generis', all in M.H. Nordquist, R. Wolfrum, J.N. Moore, and R. Long, Legal Challenges in Maritime Security (2008), respectively at 331, 441, and 479.
12. Recently this aspect was mentioned at the Security Council by South Africa on 16 Dec. 2008 (S/PV.6046 at 15).
13. SC Res 733 of 23 Jan. 1992, at para. 5.
14. See, among many, SC Res 1814 of 15 May 2008, penultimate preambular para.
15. SC Res 1816 of 2 June 2008, penultimate preambular para., and thereafter in all the Council's resolutions on piracy off the Somali coast.
16. Supra note 2, at 5.
17. Art. 105 UNCLOS.
18. Art. 1101(a) UNCLOS.
19. IMO Res A 922(22) of 29 Nov. 2001 adopting the Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery against Ships: '[a]rmed robbery against ships means any unlawful act of violence or detention or any act of depredation, or threat thereof, other than an act of "piracy" directed against a ship or against persons or property on board such a ship within a State's jurisdiction over such offences'; the defi nition is almost literally repeated in Art. 1(2) of the Regional Cooperation Agreement on combating piracy and armed robbery against ships in Asia of 28 Apr. 2005, 44 ILM (2005) 829; and in Art. 1(2) of the IMO -sponsored Code of Conduct concerning the Repression of Piracy and Armed Robbery Against Ships in the Western Indian Ocean and the Gulf of Aden, adopted in Djubouti on 29 Jan. 2009, available at: www.imo.org/Newsroom/mainframe.asp?topic_id=1773&doc_id=10933 (visited on 20 Feb. 2009). A provisional text of this instrument, to which reference is made in this article, is set out in Annex 7 to IMO doc. C 100/7, of 25 Apr. 2008, Report on the Sub-regional meeting on piracy and armed robbery against ships in the Western Indian Ocean, Gulf of Aden and Red Sea area.
20. Res. 1816, penultimate preambular para.; res. 1846, penultimate preambular para.
21. This is the operation conducted on 11 Apr. 2008 in Somali territory which succeeded in capturing 6 of the pirates, and part of the ransom collected in a piracy operation against the passengers of the French cruise ship Le Ponant, freed at sea by the French forces.
22. See facts and comments in Sentinelle Nr. 145 of 20 Apr. 2008, available at: www.sfdi.org.
23. On 20 Apr. 2008, the Somali Prime Minister Nur Hassan Hussein declared to international media, 'The French forces arrested six Somali pirates and took them to France to face justice. We encourage such steps by the French. The Somali government asks the international community to take action against piracy' (ibid.). The uncertainty about the real meaning and scope of such declaration led France to propose the draft of what became SC Res. 1851.
24. SC Res 1851, para 6 (emphasis added).
25. See the interventions by the British Minister for Foreign Affairs and by the US Secretary of State upon approval of Res. 1851 in SC/6046, at 4 and 9.
26. SC Res. 1816, at paras 12, 13, and 15.
27. At para. 10.
28. SC Res. 1816, at para. 9;
29. SC Res. 1846, at para. 11.
30. SC Res. 1816, at para. 8;
31. SC Res. 1846, at para. 13.
32. SC Res. 1816, at para. 9;
33. SC Res. 1846, at para. 11.
34. Before the unanimous vote of the Council adopting Res. 1816 Indonesia stated, 'A burden of responsibility rests upon us all [parties to the LOS Convention] to maintain the Convention's integrity and sanctity... it is our duty to voice strong reservations if there are actions envisaged by the Council or any other forum that could lead to modifying, rewriting or redefining UNCLOS of 1982' (S/PV. 5902, at 2). See also the declarations after the vote by Viet Nam, Libya, South Africa, and China (ibid., 4-5).
35. See references at supra note 9.
36. This letter, not officially available, is quoted in the preamble to the Res. It is also quoted in doc. S/2008/323 containing a letter dated 12 May 2008 from the Permanent Representative of Somalia to the UN to the President of the Security Council, stating that the Somali Government 'has granted a number of States authorizations to enter Somali territorial waters in order to deal with these threats' (i.e. threats posed by pirates and armed robbers: Paragraph 5 in relation to 2), and supporting the adoption of a res. under Chapter VII 'to authorize States cooperating with the Transitional Federal Government to enter Somalia's territorial sea and use all necessary means within the territorial sea to identify, deter, prevent and repress acts of piracy and armed robbery at sea' (para. 6).
37. At para. 11.
38. At para. 10.
39. 163 Gazzetta Ufficiale della Repubblica Italiana, suppl. of 15 July 1997.
40. EU Council Joint Action 2008/851/CFSP of 10 Nov. 2008, OJ (2008) L301/ 33, Art. 13, para 1, chapeau.
41. Under UNCLOS, Art. 105.
42. Res. 1816, at para. 7, introduction;
43. Res. 1846, at para. 10;
44. Res. 1851, at para. 6.
45. The letter of 12 May 2008 of the Somali Permanent Representative to the UN (UN doc. S/2008/323) clearly states that 'the Transitional Government does not have the capacity to interdict the pirates or patrol and secure the waters off the coast of Somalia'. This aspect is analysed by Tancredi, supra note 1, at 943.
46. Available at: www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATESFILES/S (visited on 3 Mar. 2009) indicates that the UN has the same information. The same source is relied upon in the recent study by Chircop, Dzidzornu, Guerreiro, and Grilo, 'The Maritime Zones of East African States in the Law of the Sea: Benefi ts Gained, Opportunities Missed', 16 African J Int'l and Comp L (2008) 121, at n. 32 and accompanying text.
47. US Secretary of State Rice observed in her declaration of 16 Dec. 2008 before the Security Council: 'the international community already has sufficient legal authority and available mechanisms to apprehend and prosecute pirates, but sometimes the political will and the coordination have not been there to do so' (S/PV.6046, at 10).
48. See the reports available at: www.lloydslist.com//ll/news/view/ Article.htm?articleId (visited on 30 Oct. 2008)
49. US Office of Naval Intelligence, Civil Maritime Analysis Department, Worldwide Threat to Shipping, Mariner Warning Information, 17 Oct. 208, at para. 10;
50. Combined Task Force 150, available at: http://en.wikipedia.org/wiki/ Combined_Task_Force_150 (visited on 30 Oct. 2008). The last-quoted source states that the pirates were allowed to keep their ships, while the other two do not mention this aspect.
51. See Rivkin Jr. and Casey, 'Pirates Exploit Confusion about International Law', Wall Street Journal, 19 Nov. 2008.
52. Respectively requests 37388/97 and 3394/03, available only in French at: www.echr.coe.int/ECHR/English/Case-Law/HUDOC.
53. Res. 1816, at para. 11;
54. Res. 1846, at para. 14.
55. 1678 UNTS 221. Under Art. 4(1), the 'Convention applies if the ship is navigating or is scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent States'. This means that only ships navigating between ports of the same state (cabotage) are excluded from the scope of the Convention. Even in this case, under para. (2) of Art. 4, the Convention applies if 'the offender or alleged offender is found in the territory of a State party other than the State referred to in paragraph 1'. On the SUA Convention see, with further references, the present writer's essays: 'The Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation', in N. Ronzitti (ed.), Maritime Terrorism and International Law (1990), at 69,
56. and 'The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation', 2 Singapore J Int'l and Comp L (1998) 541.
57. SUA Convention, supra note 27, at Art. 3.
58. Ibid., at Art. 6.
59. Meade, 'US to sign Kenya deal to prosecute Somali pirates', available at: www.lloydaliat.com/ll/us-to sign-kenya-deal-to prosecute-somilai-pirates (article dated 16 Jan. 2009).
60. Butty, 'Kenyan Foreign Minister Shed Light on US-Kenya Piracy Agreement', available at: www.voanews.com/english/Africa/ 2009-01-28-voa4-cfm (article dated 28 Jan. 2009).
61. Res. 1846, at para 3. 'Shipriders' are used in some bilateral agreements concluded by the US regarding drug trafficking, as, for instance, the Agreement concluded with Jamaica in 1997, Arts 7-9; they are mentioned also as 'Embarked Officers' in the above-quoted Code of Conduct of 2009 for the West Indian ocean and the Gulf of Aden (Art. 7).
62. Meade, supra note 30.
63. OJ (2008) L301/33.
64. EU Council Joint Action 2008/851/CFSP of 10 Nov. 2008, OJ (2008) L301/ 33, Art. 12(1).
65. Ibid., at para. 2.
66. 'Exchange of letters for the conditions and modalities for the transfer of persons having committed acts of piracy and detained by the European Union-led Naval Force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya' in OJ (2009) L79/49, annex to EU Council decision 2009/293CFSP of 26 February 2009, in ibid., at 47.
67. EU Council Joint Action 2008/851, supra note 35, Art. 2(f).
68. It must be noted that only in Res. 1851, authorizing action against pirates and armed robbers in the Somali mainland, does the Security Council specify that such action must be undertaken consistently not only with human rights but also 'with applicable humanitarian law'.
69. These episodes are reported in bulletins of the (US) Office of Naval Intelligence, Civil Maritime Analysis Department, Worldwide threat to shipping, Mariner warning information, available at: www.icc-ccs.org/.
70. Agreement for the Implementation of Provisions of the United Nations Convention on the Law of the Sea of 10 Dec. 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stock, opened to signature in New York on 4 Dec. 1995, 34 ILM (1995) 1547.
71. UN Fish Stocks Agreement 1995, Art. 22(3) and (4).
72. [1999] ITLOS Rep 10, at para. 155.
73. Ibid., at para. 156.
74. Award of 17 Sept. 2007, 47 ILM (2008) 66.
75. Para. 445 of the Award referring to para. 191 of the ICJ Judgment of 27 June 1986 in Nicaragua v United States [1986] ICJ Rep 14.
76. Supra note 53, at para. 445.