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”).
International law in a failed State