JURIST Guest Columnist S.R. Subramanian of the Hidayatullah National Law University in Raipur, India, says that recent UN Security Council endorsement of a law enforcement mechanism called a "shipriders agreement" represents a significant step forward in the new international fight against piracy off the coast of Somalia...
Law of the Sea
The United Nations Convention on the Law of the Sea (UNCLOS) is the chief source of international law concerned with public order at sea. Popularly known as the "constitution of the oceans," it codified the laws relating to territorial waters, sea lanes and resources of ocean. According to the Convention, every State has the right to claim the breadth of its territorial sea up to 12 nautical miles as measured from the shoreline, where its coastal sovereignty will extend. As piracy is an international crime, it is obvious that it can only be committed on the high seas.
The Convention defines piracy as any illegal act of violence, detention, or depredation committed by the crew or the passengers of a private ship or a private aircraft against another on the high seas. As international law considers piracy hostis humani generis (an enemy of mankind), it is established as an offense of universal jurisdiction. Accordingly, all states are entitled to seize a pirate ship or aircraft and arrest the persons and seize the property on board and try the pirates according to their own laws.
In 1988, to address "other forms" of violence at sea, the Rome Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (also known as the SUA Convention) and its Fixed Platforms Protocol were developed. The Convention prohibits a broad range of acts with the aim of ensuring safe navigation and, to a limited extent, deals with the act of using the ship as a weapon against navigational safety. Terrorist attacks necessitated the passage of a Protocol to the SUA Convention in 2005 which, inter alia, criminalizes the use of a ship to further an act of terrorism.
Despite the fact that the international legal regime applicable to maritime piracy contains no gaping holes, the actual practice of states indicates that the law is inaccessible to the international community. Most countries are hesitant to enact the international legal provisions and to prosecute perpetrators. There are several reasons for this hesitancy. Chasing pirates into the territorial waters of a sovereign state would amount to the violation of international law of the sea. Moreover, even if they are captured on the high seas, the criminal justice system in Somalia, a possible jurisdiction, is in a state of collapse since the outbreak of civil war in 1991. Hence the prospect of trial of captured pirates in Somalia is very bleak. On the other hand, the countries which have the naval capabilities to carry out the arrest and seizure are also afraid of domestic political repercussions due to human rights concerns and possible claims of asylum. These factors have provided a perfect opportunity for the Somali pirates to intensify their attacks.
The United Nations Security Council has now considered this issue and, in Resolution 1846 (2008), has directed that for a period of 12 months, states and regional organizations cooperating with the Somali Transitional Federal Government (TFG) may enter into territorial waters of Somalia and use all necessary means to repress acts of piracy and armed robbery at sea. Moreover, to sort out the issues associated with the jurisdiction, it called upon a host of states - including states which have ships registered to them, port and coastal states, states of the nationality of victims or perpetrator, and other states with relevant jurisdiction under international law and national legislation - to cooperate in determining jurisdiction and in the investigation and prosecution of pirates.
The lack of judicial capacity and the limited naval capabilities in the region have nonetheless led the leading naval powers to hesitate in intervening. Concerns as to the future of captured pirates have meanwhile hindered well-coordinated global action.
In this context the Executive Director of the United Nations Office on Drugs and Crime (UNODC) has offered a breakthrough proposal called the "Shipriders Agreement". According to the proposal, approved last month by the Security Council in its Resolution 1851 (2008), states and regional organizations fighting piracy are encouraged to conclude special agreements with countries willing to take custody of pirates in order to allow local law enforcement officials (shipriders) on board foreign vessels to pursue, arrest and prosecute the pirates. Shipriders agreements have, in the past, been successfully employed by states against narcotics transportation, protection of fishing resources and maritime environment, and in removing jurisdictional barriers to investigation and prosecution.
The countries around Somalia and elsewhere should make full use of this innovative arrangement. With effective prosecution, maritime piracy could once again become a thing of the past. An even more lasting solution, however, would be to increase the criminal justice capacity of the states in the region and to implement the SUA Convention and the United Nations Convention Against Transnational Organized Crime (TOC Convention) and other relevant instruments to which they are party in the hope of restoring public order at sea off the coast of Somalia.
S.R. Subramanian is an Assistant Professor at the Hidayatullah National Law University, India and previously was with the University of Vienna.