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Wednesday, November 19, 2008

Pirates and the law: What law?

A few days ago, a well-meaning legal writer suggested here, that fighting the pirates of Somalia would be an "easy win" for the incoming president of the United States:
Might piracy be a relatively easy place for the Obama administration to demonstrate its approach to use of force, multilateralism, and international law? No use of force question is ever truly easy - law of unintended consequences always in effect - but clearly this is a rising issue, and one in which the vessels of many nations have been attacked and continue at risk.
Quite honestly I don't think the author understands the issues involved when sovereignty rights meet human rights in the middle of the world's shipping lanes. I would note that most states involved in the pirate thwarting effort seem to be mostly interested in preventing attacks than in capturing or attacking the low level pirates who are actually out at sea doing he handiwork of higher ups ashore. About the only pirates killed off Somalia have been those dumb enough to shoot at naval forces.

Today's Wall Street Journal has another look,written by lawyers, at pirates at Pirates Exploit Confusion About International Law:
One solution would be for the capturing state to press charges based on the much misunderstood and abused principle of "universal" jurisdiction. This is the notion that any state may criminalize and punish conduct that violates certain accepted international law norms. Although its application in most circumstances is dubious -- there is very little actual state practice supporting the right of one state to punish the nationals of a second for offenses against the citizens of a third -- piracy is one area where a strong case for universal jurisdiction can be made (if only because piratical activities often take place on the high seas, beyond any state's territorial jurisdiction).
Moreover, given the nature of naval operations, discerning who is a pirate is usually a much easier task than separating Taliban and al Qaeda members from innocent bystanders. This fact, all things being equal, should make the task of prosecuting captured pirates an easier process, both from the legal and public relations perspective.
I am not sure that the last quoted paragraph is entirely true. One of the problems in fighting the Somali pirates is the fact that it is hard to spot them until they actually attack a ship - and they usually only attack ships when it is clear that the ship they're attacking is not within easy range of a war ship. And once they've captured a ship and holding hostages, the ability to attack them dwindles unless hostage lives are to be put at risk. Otherwise, the pirates look a whole lot like all the other sea traffic bobbing around offshore...

And, as is obvious to mariners, but perhaps not so to landsmen, there is lot of sea out there off Somalia. Somalia has the longest coastline on the African continent and, as now seems evident, the pirates are willing to extend their reach up to 500 miles off shore, that's a whole lot more water than can be patrolled by 20 or 30 or 40 ships.

Once again I say, as I set out here, escorts and anti-pirate patrols might contain (somewhat) the pirates, but if you want them defeated, you need to take down their shore support. With Somalia, that means that you might end up owning the "Somalia problem" and I see no nation or group of nations ready to step forward to take on that challenge.

For those in need of a refresher in anti-piracy law, here are some pertinent sections from the United Nations Convention on the Law of the Sea (UNCLOS):


Article 86. Application of the provisions of this Part

The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State...
Article 100. Duty to co-operate in the repression of piracy

All States shall co-operate 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.

Article 101. Definition of piracy

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depreda tion, 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 air-craft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(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;

(c) any act of inciting or of intentionally facilitating an act des cribed in subparagraph (a) or (b).

Article 102. Piracy by a warship, government ship or government aircraft whose crew has mutinied

The acts of piracy, as defined in article 101, committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship or aircraft.

Article 103. Definition of a pirate ship or aircraft

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. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act.

Article 104. Retention or loss of the nationality of a pirate ship or aircraft

A ship or aircraft may retain its nationality although it has become a pirate ship or aircraft. The retention or loss of nationality is determined by the law of the State from which such nationality was derived.

Article 105. Seizure of a pirate ship or aircraft

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, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.

Article 106. Liability for seizure without ad equate grounds

Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure.

Article 107. Ships and aircraft which are entitled to seize on account of piracy

A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.
Article 110. Right of visit

1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:

(a) the ship is engaged in piracy...
Article 111. Right of hot pursuit

1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued ouside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established.

2. The right of hot pursuit shall apply mutatis mutandis to violations in the exclusive economic zone or on the continental shelf, including safety zones around continental shelf installations, of the laws and regulations of the coastal State applicable in accordance with this Convention to the exclusive economic zone or the continental shelf, including such safety zones.

3. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State.

4. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available that the ship pursued or one of its boats or other craft working as a team and using the ship pursued as a mother ship is within the limits of the territorial sea, or, as the case may be, within the contiguous zone or the exclusive economic zone or above the continental shelf. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship.

5. The right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.

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