Eyes of the Fleet

Eyes of the Fleet

Thursday, December 04, 2008

Somali Pirates: UN extends right for foreign navies to pursue in Somali waters

Reported as Countries can enter Somali waters to fight piracy: UN:
The UN Security Council has passed a resolution permitting member countries to enter the territorial waters of Somalia to fight piracy.

The US-sponsored resolution, passed unanimously by the Security Council Tuesday, is valid for 12 months. It welcomes the recent initiatives taken by countries like India, Canada, France, Russia, Britain and the US to counter piracy off Somali coast.

The Security Council resolution is expected to come as a big help to countries like India that are fighting Somali pirates. Under international laws, naval ships are free to patrol international waters.
In its resolution, the Security Council called for "seizure and disposition of boats, vessels, arms and other related equipment" used or suspected of being used for piracy.
Actual Resolution is available here in pdf format:
6. Welcomes initiatives by Canada, Denmark, France, India, the
Netherlands, the Russian Federation, Spain, the United Kingdom, the United States
of America, and by regional and international organizations to counter piracy off the
coast of Somalia pursuant to resolutions 1814 (2008), 1816 (2008) and 1838 (2008),
the decision by the North Atlantic Treaty Organization (NATO) to counter piracy off
the Somalia coast, including by escorting vessels of the WFP, and in particular the
decision by the EU on 10 November 2008 to launch, for a period of 12 months from
December 2008, a naval operation to protect WFP maritime convoys bringing
humanitarian assistance to Somalia and other vulnerable ships, and to repress acts of
piracy and armed robbery at sea off the coast of Somalia
9. Calls upon States and regional organizations that have the capacity to do
so, to take part actively in the fight against piracy and armed robbery at sea off the coast of Somalia, in particular, consistent with this resolution and relevant
international law, by deploying naval vessels and military aircraft, and through
seizure and disposition of boats, vessels, arms and other related equipment used in
the commission of piracy and armed robbery off the coast of Somalia, or for which
there is reasonable ground for suspecting such use;
10. Decides that for a period of 12 months from the date of this resolution
States and regional organizations cooperating with the TFG in the fight against
piracy and armed robbery at sea off the coast of Somalia, for which advance
notification has been provided by the TFG to the Secretary-General, may:
(a) Enter into the territorial waters of Somalia for the purpose of repressing
acts of piracy and armed robbery at sea, in a manner consistent with such action
permitted on the high seas with respect to piracy under relevant international
law; and
(b) Use, within the territorial waters of Somalia, in a manner consistent with
such action permitted on the high seas with respect to piracy under relevant
international law, all necessary means to repress acts of piracy and armed robbery
at sea;
11. Affirms that the authorizations provided in this resolution apply only with
respect to the situation in Somalia and shall not affect the rights or obligations or
responsibilities of Member States under international law, including any rights or
obligations under the Convention, with respect to any other situation, and
underscores in particular that this resolution shall not be considered as establishing customary international law; and affirms further that such authorizations have been provided only following the receipt of the 20 November letter conveying the consent of the TFG
Part of the effort is to preserve Somali sovereign rights. Unanswered is the question of what to do with the pirates if captured. Current law applicable to the "high seas" is UN Convention of the Law of the Sea, Part VII, :
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.
What about pirates taken in Somali waters, which, by definition are waters "in the jurisdiction of a state," failed or not? The UN boots that over to a committee:
15. Notes that the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (“SUA Convention”) provides for parties to create criminal offences, establish jurisdiction, and accept delivery of persons responsible for or suspected of seizing or exercising control over a ship by force or threat thereof or any other form of intimidation; urges States parties to the SUA Convention to fully implement their obligations under said Convention and cooperate with the Secretary-General and the IMO to build judicial capacity for the successful prosecution of persons suspected of piracy and armed robbery at sea off the coast of Somalia;
So the ball now is in the court of the parties to the SUA Convention to figure out the troubling legal framework with which to deal with these pirates. You can read the SUA Convention here. The SUA Convention sprang out of the hijacking of the cruise ship Achille Lauro:
According to the provisions of the Convention, any person commits an offense if that person unlawfully and intentionally commits, attempts to commit, threatens to commit, or abets the seizure or exercise of control over a ship by force or threat of force or any form of intimidation; or commits any of the following acts if it endangers or is likely to endanger the safe navigation of that ship: an act of violence against a person on board; destroying a ship or damaging a ship or its cargo; placing or causing to be placed on a ship a device or substance likely to destroy the ship or cause damage to the ship or its cargo; destroying or seriously damaging maritime navigational facilities or seriously interfering with their operation; or communicating information he knows to be false. It is also an offense to injure or kill any person in connection with the commission or attempted commission of any of the previous offenses.

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. In all other cases, the Convention also applies when the offender or alleged offender is found in the territory of a State Party other than the State in whose waters the offence occurred

Measures to establish jurisdiction over the offenses shall be taken when the offense is committed against or on board a ship flying the flag of the State at the Inventory of International Nonproliferation Organizations and Regimes time the offense is committed; in the territory of that State, including its territorial sea; by a national of that State; by a stateless person whose habitual residence is in that State; in an attempt to compel that State to do or abstain from doing any act; or when a national of that State is seized, threatened, injured, or killed during the commission of the offense.

Compliance and Enforcement: Once jurisdiction has been established, States shall take the offender into custody and immediately make a preliminary inquiry into the facts. States Parties are required to either extradite the offender in custody or submit the case for prosecution. States Parties are also required to assist each other in connection with criminal pro-ceedings brought under the Convention. States Parties are also to cooperate in the prevention of offenses by taking all practicable measures to prevent preparations in their respective territories for the commission of those offenses within or outside their territories and by exchanging information in accordance with their national laws.

Galrahn in this post links to the Commandant of the U.S. Coast Guard's blog, in which Admiral Allen writes:
SUA applies to nearly all of the attacks occurring in the Gulf of Aden, and obliges State Parties to criminalize such acts and establish jurisdiction when the offense is committed against their vessels or nationals. SUA establishes a framework whereby masters of ships may deliver suspected SUA offenders to a coastal State Party and the coastal State Party is obliged to accept custody and extradite or prosecute unless it can articulate why the Convention is not applicable. Leveraging States SUA obligations in conjunction with existing international law against piracy provides an effective legal framework to deliver an "endgame." We have worked for several months now with our partners on the Joint Staff, through the "interagency process", and with our international partners to pursue this outcome.

UPDATE: Daniel Sekulich, author and journalist, who blogs at Modern Pirate Tales suggests in the comments that the headline of this post is inaccurate.

I agree - the headline is a slightly misleading.

Daniel also is correct in his reading of the latest UN Resolution, as para 10 of the resolution does provide for the sovereign right of the TFG to give approval to the forces that may enter Somali waters by naming them to the Secretary General.

Just a couple of weeks ago the Indian Navy got such permission as set out here.

I was captured by the intent of the Resolution, rather than its substance and thereby made a mistake.

Daniel's comment did set me to thinking about the matter, though, as did his post setting out the problems created by the Somali pirate situation.

Suppose the Navy of Nowhereistan enters into Somali waters and grabs pirates for trial or even strings them up from their yardarms- what is the TFG or the UN going to do about it? Send a strong letter of protest? Or ratify the intrusion after the fact?

The TFG can't patrol its own waters against foreign fishing poachers, waste dumpers or sea robbers and apparently can't find a force ashore to go after the pirate shore bases or the pirate's leadership and financiers ashore.

It can't even be counted on to provide a court system by which captured pirates may be tried.

Continuing the illusion that Somalia is a real nation with sovereign rights may work to keep international law working, but I can't help but believe that the area would be better off if the UN declared, with or without TFG approval, that the UN was taking over the law enforcement role for Somali waters and littorals, and put the dithering NATO, EU and other navies - including private contractors - to work cleaning up the mess that the absence of the rule of law has created. Sort of protectorate for the Somali EEZ, territorial waters and the adjacent shores, as I have suggested before. Set up a court system at sea if need be.

If the UN wants to hire some of the pirates who claim to be acting as the Somali Coast Guard to be an interim Coast Guard, so much the better. Paint an orange stripe on their boats and give them arrest powers with a court that can impose penalties under the rule of law.

When the Somalis are ready to govern their own waters, the protectorate can end.

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