B. Background

In recent years the high seas off Somalia have become a dangerous place: cruise-liners have been shot at, aid deliveries jeopardized and the crews of fishing, recreational and aid vessels have been taken hostage for ransom.Footnote ¹ In 2005 and 2007 attacks or attempted attacks against shipping in international waters off East Africa exceeded reported incidents for the traditional piracy hotspots of the Malacca Straits and the South China Seas combined.Footnote ² This lawlessness at sea clearly follows from the chaos on the Somalian shore. Somalia has lacked a government controlling its entire territory since 1991. The Transitional Federal Government (TFG), internationally recognized since 2000, has only limited control over Somalian territory. Protracted internal conflict has allowed pirates

The tactics of some Somali pirates are sophisticated and aggressive.

NATO, coalition and regional naval forces have all taken part in counter-piracy actions, but the degree to which this involves organized cooperation or joint patrolling with each other or regional navies is unclear. Pirate mother ships remain hard to detect, hiding ‘among … fishing vessels’ and rather than carrying weapons themselves

Among the more notorious hijackings was the seizure in February 2007 of the World Food Programme's chartered vessel the MV Rozen. The vessel was seized in international waters and taken to an anchorage off the coast of Puntland (a Somalian constituent territory claiming a degree of self-government). Neither the TFG, nor Puntland authorities, appeared able to act against the hijackers. Vessel and crew were eventually released after an undisclosed ransom was paid.Footnote ⁶ Similarly, in May 2007 the World Food Programme vessel Victoria was attacked by pirates, causing one fatality aboard, and was successfully hijacked in international waters a year later in May 2008.Footnote ⁷

In several hostage-takings, those involved have claimed to be acting to deter illegal foreign fishing in the Somalian Exclusive Economic Zone (EEZ).Footnote ⁸ Overfishing is endemic off African coastlines, and up to 700 foreign vessels—some of them armed— have taken advantage of chaos in Somalia to conduct unlicensed fishing (or fishing ‘licensed’ only by local warlords), adding to local fishing communities' hardships.Footnote ⁹

In at least one case the TFG has consented to foreign forces conducting a counter-piracy action within Somalia. In April 2008, French helicopters and commandos seized the pirates who had ransomed the crew members of the yacht Le Ponant as they returned ashore. The pirates were reportedly Somali fishermen, and were removed to face trial in Paris with the TFG's permission.Footnote ¹⁰

C. Applicable law

The High Seas Convention and the United Nations Convention on the Law of the Sea (UNCLOS) define piracy as:

1. (1) an act of violence, detention or depredation;

2. (2) committed for private ends;

3. (3) on the high seas or in a place outside the jurisdiction of any State; and

4. (4) committed by the crew or passengers of a private craft, against another vessel or persons or property aboard.Footnote ¹¹

This definition is generally, though not universally, accepted as having codified pre-existing customary international law.Footnote ¹² In international waters any State warship or government vessel may board a ship suspected of piracy as an exception to the otherwise exclusive jurisdiction of the flag State.Footnote ¹³ Further:

Customary international law also permits any State subsequently finding a pirate within its territory to prosecute him or her as an exercise of universal jurisdiction. The fact that every State may prosecute piracy does not mean they will be eager to or will have appropriate national laws. In one case in which the US navy captured 13 alleged pirates off Somalia it took some time to secure their trial before an African court.Footnote ¹⁵

The definition of piracy and the enforcement powers granted to suppress it contain several limitations. The least important is the requirement that piracy be for ‘private ends’. It is commonly and mistakenly presumed that these words must exclude all politically motivated violence.Footnote ¹⁶ In fact, the words ‘for private ends’ simply denote that the violence involved is not public and were originally included to acknowledge the historic exception for civil-war insurgencies who attacked only the vessels of the government they sought to overthrow.Footnote ¹⁷ All acts of violence lacking State sanction are acts undertaken ‘for private ends’. Pirates are criminals not because of their subjective motives but because their acts impinge upon States' monopoly on legitimate violence and their interests in freedom of navigation. The words ‘for private ends’ must thus be understood broadly. At least one national court decision has sensibly applied this approach and found that violence in international waters committed by one private vessel against another in pursuit of political protest still constituted piracy.Footnote ¹⁸

The more significant restriction is the geographical limitation of both the offence and enforcement action to the high seas. ‘The high seas’ or ‘international waters’ refers to all waters beyond the territorial sea, including the EEZ. This has two consequences. The first is that attacks against vessels in territorial waters or port are not piracy. Such attacks within territorial jurisdiction are commonly referred to as ‘armed robbery against ships’ by the International Maritime Oganisation (IMO) and other bodies, a term including hijacking.Footnote ¹⁹ Further, the enforcement jurisdiction granted to all States in international waters does not extend to pursuing pirate vessels into the territorial sea of any State. As with conventional cases of hot pursuit, pursuit must cease ‘as soon as the ship pursued enters the territorial sea of its own [flag] State or of a third State’.Footnote ²⁰ The ability of pirates to evade pursuit by crossing into territorial waters remains a real problem, particularly in the waters off Somalia.Footnote ²¹

D. UN Security Council Resolution 1816

In December 2007 the IMO called for the Somalian TFG to

Somalia consented to such measures being taken on 27 February 2008. It took several months to achieve a Security Council Resolution, despite the Security Council having previously expressed concern about Somalian piracyFootnote ²³ and encouraged ‘Member States whose naval vessels … operate in international waters … adjacent to the coast of Somalia’ to take measures to protect merchant shipping and humanitarian aid from piracy ‘in line with relevant international law’.Footnote ²⁴ In particular the Council had praised France and Denmark's actions in protecting the World Food Programme's convoys.Footnote ²⁵ Eventually, it was France, Panama and the US who introduced a draft resolution before the Council in April 2008 authorizing Member States to enter Somalia's territorial sea to ‘repress acts of piracy and armed robbery’.Footnote ²⁶

On 2 June 2008, the Security Council passed such a Resolution, UNSCR 1816, with Somalia's consent. The second preambular paragraph stated that the SC was

The SC proceeded to determine

It is important to observe that it is the situation in Somalia which constitutes the threat to international peace and security, not the piracy and armed robbery as such. The Resolution encourages a package of measures, including: increased coordination among those States with naval assets off Somalia; better information-sharing and cooperation over Somalian piracy among and between States, international bodies and regional organizations; and encouraging States and organizations ‘to provide technical assistance to Somalia and nearby coastal States’.Footnote ²⁷ However, UNSCR 1816 will attract most attention for the fact that it uses the words ‘all necessary means’—commonly associated with a general authorization to use military force— and adds to those few occasions when the Council has authorized interdiction operations in a State's territorial sea.Footnote ²⁸ Operative paragraph 7 provides:

States authorized to act under the Resolution may thus pursue pirate vessels from international waters into Somalian territorial waters or may counter violence against or aboard vessels occurring exclusively within Somalia's territorial sea.

The restrictions upon these powers are readily apparent. First, the authority granted will lapse unless renewed in December 2008. Secondly, only those States named by the TFG to the Secretary General as ‘cooperating’ with it may act under paragraph 7. Authority to use ‘all necessary means’ is further conditioned by the requirement that such action must occur within Somalia's territorial waters and be ‘consistent with action permitted on the high seas with respect to piracy’. This limitation by analogy presumably restricts authorized action to pursuing and boarding a pirate vessel, seizing it and arresting those aboard. So limited, the words ‘all necessary means’ cannot encompass striking at pirate command centres on land or, as occurred in the Ponant affair, arresting pirates after their return to shore.Footnote ²⁹ Such action will still require the TFG's specific authorization.

Finally, the repeated words of limitation, ‘in a manner consistent with action permitted on the high seas with respect to piracy …’, may cause some confusion. International law has little to say about the manner in which piracy may be suppressed. Rules governing the conduct of high seas interdictions remain embryonic, found in a limited case law and inferences from treaties. Briefly, it can be suggested that the use of force in maritime police actions must be necessary, proportionate and should be proceeded by warning shots where practicable.Footnote ³⁰

Notably, UNSCR 1816 does not make the international law of piracy directly applicable in Somalian waters. On the high seas the capturing warship determines where pirates will be tried and may try them before its own courts without consulting others. This raises a question as to the disposition of any pirates captured in Somalian territorial waters under the resolution. Legal authority to pursue and arrest the vessel as granted by UNSCR 1816 (enforcement jurisdiction) is not the same thing as authority to try the offenders (prescriptive and adjudicative jurisdiction). The Resolution itself contains a somewhat convoluted paragraph on jurisdiction and mutual legal assistance:

Clearly any attack against or aboard a vessel at sea may leave multiple States capable of asserting jurisdiction to prosecute if they can lay hands on the offender. On its face, UNSCR 1816 simply lists every conceivable head of jurisdiction, leaving it to the States involved to resolve questions of ‘disposition and logistics’.Footnote ³² For victims and witnesses, this is obviously a matter of getting them safely home or on their way, while taking measures to make their evidence available in any subsequent trial. In the case of captured pirates, cooperation ‘in determining jurisdiction, … disposition and logistics’ might be thought a euphemism for working out to which State they should be handed for prosecution. In fact, there is a prior legal choice to make. The eventual disposition of criminals captured in Somalian territorial waters is either a matter for Somalia (on the theory that enforcement jurisdiction has been exercised with Somalia's consent) or for the interdicting State (on the theory that it has direct authority to deal with the pirates under the UNSCR). The matter may simply be treated in a memorandum of understanding between cooperating States and Somalia. If not, several approaches are possible. On the one hand, the customary principle allowing the State where the offender is present to assert jurisdiction over pirates who have fled the high seas may indicate that the coastal State, if any State, should have jurisdiction.Footnote ³³ Similarly, one could argue that violence occurring wholly within Somalia's territorial waters would ordinarily be its sole concern and Somalia should determine if, how and where captured offenders are to be tried in such cases. On the other hand, the UNSCR allows the use of ‘all means necessary’ to suppress piracy including action compatible with that taken on the high seas. On a broad understanding of ‘all means necessary’ and a strained reading of the word ‘compatible’, this might be thought to extend to asserting prescriptive and adjudicative jurisdiction. However, given that States exercising this power are meant to be cooperating with Somalia, it seems most likely the UNSCR leaves the question of disposition to Somalia. However, as a practical matter, given the limited capacity of the Somalian State, the interdicting State having custody will likely have the job of finding a forum to try the suspects.

The Resolution also contains two savings clauses. Paragraph 9 provides

This was clearly intended to meet the concerns of States, such as Indonesia, wishing to avoid any implication that the Resolution involved the ‘modification, rewriting or redefining’ of UNCLOS principles.Footnote ³⁴ Indonesia has previously rejected any suggestion that other States might conduct counter-piracy operations within those parts of the Malacca Straits falling within its territorial waters. South Africa similarly stressed that ‘it was the situation in Somalia [giving rise to piracy] that constituted a threat to international peace and security, and not piracy in itself’.Footnote ³⁵ In Paragraph 9 the Security Council also ‘[r]equests that cooperating States take appropriate steps to ensure that … [action taken] does not have the practical effect of denying or impairing the right of innocent passage’ to other States' vessels.

It should not be presumed that the only ‘cooperating States’ under UNSCR 1816 will be the US and European naval powers. Notable steps towards a regional counter-piracy arrangement were taken shortly before UNSCR 1816.

E. African regional initiatives and the IMO counter-piracy conference

The IMO held a conference in Tanzania in April 2008Footnote ³⁶ to discuss the establishment of a regional counter-piracy arrangement similar to the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (‘ReCAAP’).Footnote ³⁷ Alongside the coordinated piracy patrols conducted by Malaysia, Indonesia and Singapore, ReCAAP has been credited with helping greatly to reduce piracy in the Malacca Straits, an area classified by Lloyd's of London as a ‘war risk’ to shipping in 2005–2006. ReCAAP establishes an information-sharing centre and framework for regional cooperation, but does not create any reciprocal rights for members' law enforcement vessels to operate in the territorial waters of other parties.

Rather than a treaty text, the Tanzanian conference produced a draft non-binding regional memorandum of understanding (‘the draft MOU’). The choice of a non-binding instrument followed some participants' concerns that ‘it would take significantly longer … to gain parliamentary support for entering a binding agreement’.Footnote ³⁸ The draft MOU would not establish a single information-sharing centre. Instead it provides that Kenya, Tanzania and Yemen would offer their services as designated communications and reporting ‘Centres’ and that each participant should appoint a single national focal point for information exchange.Footnote ³⁹ In addition, the draft MOU goes further than the ReCAAP model, anticipating regional cooperation through use of ‘ship-riders’. Ship-rider agreements first emerged in US bilateral drug interdiction treaties; they involve placing a designated law enforcement officer from one party (‘the ship-rider’) aboard the vessel of another party (‘the host State’).Footnote ⁴⁰ The ship-rider is then able to board the vessels of their flag State and enforce flag-State law once aboard, possibly with the assistance of host State officers. Ship-riders may also have the power to authorise pursuit of a vessel into the territorial waters of their designating State. In practice, most formal ship-rider agreements include provisions allowing for the exercise of such boarding and pursuit powers in limited cases even when no ship-rider is embarked.Footnote ⁴¹ The draft MOU does not go this far, but does provide a mechanism by which a State participant may request ad hoc permission from a coastal State to continue pursuit of a suspect pirate vessel into its territorial waters.Footnote ⁴² The ability to make such requests is obviously greatly facilitated by the creation of single points of contact under the draft MOU.

The draft MOU also borrows a saving provision on national jurisdiction from ReCAAP Article 2:

This must, however, be read as subject to the express authority of participants to grant permission for foreign law enforcement vessels to continue pursuit into their territorial waters and then give ‘specific instructions as to the actions that the Pursuing Participant may take.’Footnote ⁴³ Such instructions could obviously include conferring a degree of authority to board and seize the vessel pending the arrival of local authorities, despite this saving provision.

If adopted and implemented, the MOU could offer a framework for effective regional counter-piracy operations. Whether it is adopted, and how it is implemented, remains to be seen.

F. Somalian piracy and a defence of insurgency or eco-piracy?

Despite the promise of UNSCR 1816 and the draft MOU, if the view that politically motivated violence cannot be piracy is correct then Somalians attacking shipping beyond territorial waters have a simple defence. They may claim to be acting as civil war insurgents and not for private gain, or to be fulfilling a necessary public function in the absence of effective government by preserving fishing grounds from foreign over-exploitation. Difficulties with the political motivation argument were noted above. One could also point to the fact that no relevant IMO or UNSCR resolution has countenanced the possibility that some of these illegal acts may not be piracy for reasons of political motivation. As was noted in Re Piracy Jure Gentium, ‘a little common sense is a valuable quality in the interpretation of international law’Footnote ⁴⁴ and the generality of these resolutions may support a common-sense interpretation of the law over any supposed exception. Further, the historical rule preventing insurgents from being considered pirates applied only to insurgents who confined themselves to attacking the vessels of the government they sought to overthrow.Footnote ⁴⁵ That is clearly not the case here. As for ‘eco-piracy’, performing a public function in default of effective government is certainly a principle of State responsibility.Footnote ⁴⁶ Simply because a State may become responsible for such acts, however, does not mean the actors involved become cloaked with State immunity. Even if it could, many cases would simply not fit the ‘eco-pirate’ claim: the first pirates to claim to be acting to deter foreign fishing held to ransom the crew of a barge, not a fishing vessel.Footnote ⁴⁷