SOMALI PIRATES IN TROUBLED WATERS OR A LEGAL BLOW AGAINST THE UNCLOS, 1982? : Dilemma of United National Security Council (UNSC) Resolutions in a 'Failed State' and Burden of Legitimacy

International law in a failed State
Despite the fact most domestic legislations (Piracy and Maritime Violence Act 2011, Maritime Zones Act 2005, section 65 of the Penal Code of the Republic of Seychelles) are inspired directly from The United Nations Convention on the Law of the Sea, 1982 (UNCLOS,1982), it took a serious blow when Somali piracy is in issue. Somali possesses all the characteristics of a 'failed State': there is no formal, functional or official government; all its institutions have collapsed without exception and consequently there is no law and order, the police force and the army are inexistent to maintain peace and security, various clans and different warlord leaders control the harbours, customs, airport and issuing licences in a collapsed State where socio-economic development is one of the lowest in the world and unemployment is one of the highest in the world. Actually, there is no institution or government which can represent Somalia and has enough authority to negotiate, represent, enforce or commit the State in an effective and legally binding system. Worse, the Somali Transitional Federal Government (TFG) is neither a State nor a government and it has never been mandated by the Somali people to represent them and is recognized neither by the UN/UNSC and the international community. Consequently, it has no power to sign and ratify treaties and international covenants. Ironically enough the UNSC, through its Resolutions (infra), are asking member States to cooperate with the Somali TFG, in the absence of a legitimate government, to eradicate piracy in the Indian Ocean. These UNSC resolutions erode completely the credibility of the UN. Strange, if Somali's sovereignty is not contested at the UN there is absolutely no Somali representatives at the UN, international and intergovernmental levels. The ultimate issue therefore is international law applicable in a 'failed State'?
Serious ambiguities under the UNCLOS, 1982
Most States prosecute pirates according to relevant Articles of UNCLOS, 1982 (Articles 100-107 of UNCLOS, 1982, are implemented in the domestic Piracy and Maritime Violence Act, 2011) but there are also several ambiguities under the UNCLOS, 1982 (explaining, may be, why the US has still not ratified it) especially to countries which are prosecuting pirates.
There is unfortunately no legal precise definition of the term 'pirate' under the UNCLOS, 1982. In the same rationale the terms 'committed for private ends' as stipulated under Article 101(a) UNCLOS, 1982, ask for an academic debate and there is still no clear interpretation of these terms either. Justice Jackson in the case of USS Ashland held that ''the definition of piracy in the international community is unclear'' and the charges retained against the 11 pirates for attacking the amphibious dock landing ship USS Ashland were dismissed as the prosecution failed to show that the 11 pirates violated American piracy law. However, in contrast, Justice Story in the case of United States v. Smith 1820, 5 Wheat 153, 161 remarked that: ''Whatever may be the diversity of definitions in other respects, all writers concur in holding that robbery or forcible depredations upon the sea animo furandi, is piracy.'' According to The Ambrose Light, 25 Fed. Rep. 408 case, the US Federal Court found that any armed ship in the sea must be under the authority of some State and if such a ship is not under the authority of any State then it should be treated as being under the authority of any State, it would be treated in the category of pirate ships, irrespective of if it has committed piracy or not. The same Article is again in dispute as it deals with ''private ship …against another ship...'' which means that illegal acts of violence may be committed against another ship, private or not, ''on the high seas'' such that there must be a 'two-ship requirement' where mutiny, crew seizures or passenger takeovers of one and the same vessel do not fall under the ambit of this Article. Coming back to 'on the high seas' (as per Article 101 (a)(i) UNCLOS, 1982 and Article 105 UNCLOS, 1982) pirate attacks on 'territorial waters' do not amount to piracy, per se. Furthermore, neither the Geneva Convention on the High Seas, 1958 and the UNCLOS, 1982 cover exactly what is meant by 'any illegal acts of violence' as stipulated in Article 101, UNCLOS 1982 such that some loopholes are filled by other relevant conventions such as the Hostage Convention, 1983 which entered into force one year after the UNCLOS became effective and the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention, 1992) coupled with the Djibouti Code of Conduct, 2009 modeled on the Regional Cooperation Agreement on combating  Piracy and Armed Robbery against Ships in Asia (ReCAAP) and the International Maritime Organisation (IMO), Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery against Ships provide the necessary international and regional legal instruments to deal with international maritime piracy especially in the Gulf of Aden and off the coast of Somali in terms of cooperation, communication and sharing of information and capacity building to prevent acts of piracy and armed robbery against ships.
The Re Piracy Jure Gentium Case or Hostis Humanis Generis
Whether an actual robbery was essential for piracy has been discussed lengthily in the leading case of Re Piracy Jure Gentium 1934 A.C. 586, an important decision of the judicial Committee of the Privy Council (JCPC). The facts revealed that some Chinese nationals were arrested in 1931 on the charge of piracy but the Hong Kong Court referred the case to the JCPC as to whether actual robbery or committing of actual robbery is essential for piracy? Their Lordships held unanimously that for an act to constitute piracy, actual robbery is not essential. Treated as hostis humanis generis all States without exception are entitled to apprehend and punish persons accused of piracy because of the principle of universal jurisdiction applicable in case of piracy, war crimes and even to some extent to aircraft hijacking. In the Lotus Case, PCIJ, Series A, No. 10 (1927), p.70 Justice Moore stated that: ''A pirate is treated as an outlaw, as the enemy of mankind-hostis humanis generis-whom any nation may in the interest of all capture and punish''. The UNCLOS, 1982 is international customary law and any captured pirate (Gulf of Guinea near Nigeria, the Malacca Strait in Indonesia and the Indian Ocean) is subject to universal jurisdiction. In the leading case of re-Piracy Jure Gentium 1934 AC their Lords of the Judicial Committee of the Privy Council had this to say: 'With regard to crimes as defined by international law, that law has no means of trying or punishing them. The recognition of them as constituting crimes, and the trial and punishment of the criminals, are left to the municipal law of each country. But whereas according to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes committed on its terra firma or territorial waters or its own ships, and to crimes by its own nationals whenever committed, it is also recognized as extending to piracy committed on the high seas by any national on any ship, because a person guilty of such piracy has placed himself beyond the protection of any State. He is no longer a national, but ''hostis humanis generis'' and as such he is justiciable by any State anywhere: Grotius (1583-1645) 'De Jure Belli ac Pacis,'', vol.2, cap. 20''. So may Victim State or Seizure State has the power to prosecute pirates provided they, inter alia, enjoy their fundamental rights (right to interpreter or translator, right to prepare their defense within a reasonable time, right to be defended by a representative of their choice, right to be tried by an impartial court) and that there is evidence of the crime (kidnapping, ransom taking, wounds and blows, drug and arms trafficking  just to name a few that they have perpetrated on the 'high seas' (UNCLOs, 1982 provides for any illegal acts of violence on the 'high seas' and whether pirates may be prosecuted for crimes they have committed in their territorial waters are still a full academic debate but the answer is definitely “no” and a 'hot pursuit' (i.e chasing pirates from high seas until they are in their territorial waters) is “une grave atteinte à la souveraineté d'un Etat”).



An interesting contribution to the debates on piracy. As an observer of the Somali piracy problem over the past few years, permit me to add a few random observations (it may be that you will be dealing with these in subsequent parts).

The 'sudden' upsurge of piracy off the coast of Somalia in 2007/8 (actually, not so sudden had we all been watching more closely) revealed the lamentable lacunae in national laws and international guidance on piracy; it simply hadn't been accorded the attention it needed, and legislators have been playing catch-up ever since. Some, like Seychelles and Mauritius, have amended their laws commendably quickly; others, such as the UK, are arguably behind-hand, which may be one reason why Britain has failed to prosecute even one alleged pirate. The other reason, and perhaps the more persuasive one, is the fear of convicted pirates claiming asylum in Europe after finishing their sentences.

The idea that Somali piracy is somehow a regional problem that requires the perpetrators to be tried regionally is very convenient to the major powers but hardly accords with reality. The ships and crews affected are truly global and, as pointed out above, "all States without exception are entitled to apprehend and punish persons accused of piracy because of the principle of universal jurisdiction applicable in case of piracy". Currently, the burden is being shared unequally. In particular, the flag states of the ships involved have, in my view, abrogated their responsibilities by failing to prosecute those accused of pirating 'their' ships. One may well question why, if a flag state is not prepared to prosecute those who attack and steal ships registered to that state, what exactly is a flag state's purpose? Why should the shipowner pay money to a registry that won't defend their interests? Certain small islands and one west African nation have done very well out of their open registry (aka 'flag of convenience') businesses, but piracy has shown that they are not acting responsibly to protect international trade.

The Enrica Lexie case, in which two Italian marines on an Italian oil tanker are accused of firing at and killing two innocent Indian fishermen in India's contiguous zone (12-24nm from the coastline), highlights the whole vexed issue of jurisdiction in and near territorial waters. It's a problem that is surely only going to intensify as competition for undersea resources grows and, in my view, urgently needs strong leadership from the IMO. However, the IMO isn't very keen to talk about such things. The Enrica Lexie affair, and also the rather similar USNS Rappahannock case in which a ship security guard shot an Indian fisherman, raised a lot of - so far unanswered - questions about the status of vessel protection detachments (VPDs) on merchant ships. VPDs seem to have proved more problematic on board ships than have private maritime security companies.

The Somali piracy business model is very different from the west African one or the Malacca Strait groups' modus operandi. The first is seizure for ransom, the second theft of cargo, the third mostly theft of valuables, so each needs a different approach to combat. And, as pointed out, there is an important distinction between piracy on the high seas and robbery at sea within territorial waters.

Whereas the problem in Somalia stems from the lack of a functioning government in that 'country', which has made it possible for pirates to anchor their 'prey' just offshore for long periods without being troubled by the law, the problem in the Gulf of Guinea is almost the reverse: strong countries that won't allow armed security aboard merchant ships except under very restricted terms, for the perfectly understandable reason that such coup-troubled states fear large numbers of foreigners lurking nearby with guns. And corruption has its part to play too, of course.

Underlying all forms of piracy, past and present, wherever it occurs in the world, is that the ocean is an essentially ungoverned space. UNCLOS, SUA and all the laws and regulations in the world are of no practical purpose if they cannot be enforced. This is of crucial importance to small island states such as Mauritius and its Indian Ocean neighbours, none of which has the capability to patrol its EEZ adequately. Vast tonnages of fish are extracted illegally, arms and people are smuggled, and drugs are trafficked. These are serious issues that all the Indian Ocean countries need to address with even greater vigour than they are currently doing through bodies like the IOC and IOR-ARC, because otherwise they will lead to escalating maritime crime and increase the potential for regional, and possibly international, conflict.