JURIST Guest Columnist Raymond Gilpin, Director of the Center for Sustainable Economies at the United States Institute of Peace, says that the UN piracy resolution will only have a meaningful impact on ending maritime crime if it is complementary, coordinated and comprehensive…

Maritime insecurity in the Horn of Africa has attracted significant global attention since 2000 for its steady increase, costs to the global economy [PDF] and implications for regional stability. Analysts and observers disagree about the root causes of crimes at sea off the Somali coastline. Some argue that it is a legitimate response by local groups to poverty, poaching and pollution, while others believe it is an extension of apparent lawlessness on the land. Regardless of its perceived origin, there is some consensus that the worrying trend of increasing maritime crime and rising violence must be addressed. The immediate response has been to defend transiting vessels, deter attacks and defeat armed gangs militarily. Even though naval vessels from over a dozen countries, including China, India and the US, currently patrol the Gulf of Aden under the aegis of the US-led Combined Joint Task Force in the Horn of Africa, incidents of hijacking, theft and sometimes violent attacks have been on the increase. Voicing his frustration, a retired four-star admiral in the US Navy quipped “if you can’t rule the waves, you must waive the rules.” He was partly lamenting the lack of enforceable laws and effective courts in this part of the world.

UN Security Council Resolution 2015 calls on Somalia and its neighbors to take urgent steps to address legislative and judicial shortcomings that make it difficult to deal with growing maritime insecurity in this region. The resolution mandated the UN Office on Drugs and Crime and UN Development Programme to consult with national and regional authorities in the Horn of Africa to determine what is needed to promulgate the requisite laws, establish capable courts, enhance prison capacity and provide technical assistance. The resolution targets those who plan, organize, facilitate, finance or profit from maritime crime. Conceptually, this is clearly an important step in the right direction. Operationally, it is fraught with a number of difficulties.

First, maritime crime in the Horn of Africa presents a rather complex conundrum because it entails a combination of “brown water” offenses, those committed within Somalia’s exclusive economic zone (EEZ), and “blue water” offenses, those committed on the high seas — actual piracy. Addressing legislative deficiencies related to “brown water” crimes might be relatively more straightforward than the complexities related to international maritime law. This is partly why it costs an estimated $250,000 to try a single Somali pirate in European courts [PDF]. Second, the regional characteristics of maritime crime in and around Somalia necessitate the harmonization of national laws against maritime crime. The combination of limited state capacity and paranoia in Somalia and some of its neighbors will make issues like the “right of hot pursuit” difficult to solve. Significant diplomatic effort must be expended before any regional harmonization can be contemplated. Third, efforts should be made to reconcile and avoid potential conflicts between international and national maritime legislation. For example, the “freedom of navigation” and “right of innocent passage” clauses in international maritime law could pose problems for national legislators, eager to enact robust anti-piracy laws. Fourth, while it is clearly necessary for the legislative framework to be all-embracing, available research suggests that only the foot soldiers are likely to be apprehended in and around Somalia. Those benefiting the most, like the financiers and facilitators, reside outside the sub-region and are likely to be unaffected. As long as they continue to have the capacity to fund and support groups willing to perpetrate maritime crime, the mass of unemployed Somali youth are more than likely to gamble on a big payday.

The legal and judicial reform envisaged in this initiative could help deter maritime crime in the Horn of Africa if it is complementary, coordinated and comprehensive [PDF] — complementary in the sense that it is viewed and implemented as part of a broader package of reforms that speak to the multifaceted causes of maritime crime in Somalia (to include improved law enforcement capacity, economic development and political reconciliation); coordinated to the extent that it facilitates the collection and sharing of information; and comprehensive to the extent that it effectively targets all actors in the chain of events that result in maritime insecurity in this region, especially those providing funding and control. Failure to do this will lend some credence to the assertion that Resolution 2015 is primarily about reducing the cost and burden of piracy trials on non-regional countries and not about meaningfully contributing to ending the scourge of maritime crime in and around Somalia.

Raymond Gilpin is Director of the Center for Sustainable Economies at the United States Institute of Peace. He focuses on analyzing relationships among economic actors during all stages of conflict. He also teaches the Economics and Conflict course at the United States Institute of Peace Academy and manages the Web-based International Network for Economics and Conflict. Previously, he served as the academic chair for defense economics at the Africa Center for Strategic Studies at the National Defense University and was an economist at the World Bank.

Suggested citation: Raymond Gilpin, UN Piracy Resolution Faces Significant Hurdles, JURIST – Hotline, Nov. 12, 2011, http://jurist.org/hotline/2011/11/raymond-gilpin-piracy-reform.php.