Somali Pirates and International Law: Domestic Interests Preventing a Permanent Solution? A Critical Examination of the International Legal Framework and Response to Somali Piracy
| Author | Balpreet Lailna |
| Pages | 1-23 |
S.S.L.R Som ali Pir ates an d Intern ationa l Law Vol.4
Somali Pirates and International Law: Domestic
Interests Preventing a Permanent Solution? A Critical
Examination of the International Legal Framework and
Response to Somali Piracy
Balpreet Lailna
Introduction
he Gulf of Aden is on e of the busiest internat ional shipp ing lanes close to th e
coast of Som alia, with up to 30 ,0 00 ships traveling through it an nually.1 With
increasing aggressiven ess an d sop histication, pirates operating out of Somalia
have mad e in ternational headlines by att acking vessels passin g thr ough th e Gu lf of
Aden, off the Horn of Africa (HOA).2 In 2011 the In tern ational Maritim e Bureau of
the In tern at ion al Cham ber of Commerce (IMB) attributed approximately 54% of all
attempted piracy att acks worldwide to Somali pirates.3 Consequently, these piracy
attacks have caused significant intern ational ram ifications. Th e economic costs of
Somali pir acy have been cited upwards of US$ 6.6 – 6.9 billion in 2011.4 Mean while,
“cruise-liners have been shot at, aid deliveries jeopardized and the crews of fishing,
recreation al and aid vessels h ave been taken hostage for ransom.”5 Eviden tly, a
variety of domest ic in terests have been affected , thu s giving the intern ational
commun ity an incen tive to intervene.6 Particularly, “the count ry in which the vessel
* Balpreet S. Lailna B A (Hons), LLB: I wish to thank Dr Matthew Nicholson from the Un iversity of
Southampton Law School for his supervision and invaluable feedback on another version of this paper. I also
wish to thank the Edito rs-in-Chief of the Southampton Student Law Review Miss Liz Herbert and M iss Ida
Petretta, and Reviewer James Dingjing for their comments and feedback.
1 A Anyimadu, ‘Notorious Somali Pirate Quits: Now is Shipping Safe? ’ (Marketplace Africa: CNN 2013)
2 D Guilfoyle, ‘Counter -piracy Law Enforcement and Human Rights’ (2010) ICLQ 141, 141
3 International Maritime Bureau of the International Chamber of Commerce, Piracy and Armed Robbery Against
Ships (Annual Report for 2011, ICC-IMB London, 2012) 5-6
4 A Bowden and S Basnet, ‘The Economic Cost of Somali Piracy 2011’ (2012) One Earth Future Foundation,
Working Paper 1 < http://oceansbeyondpiracy.org/sites/default/files/economic_cost_of_piracy_2011.pdf>
accessed 2 February 2013
5 D Guilfoyle, ‘Piracy off Somalia: UN Security Council Resolution 1816 and the IMO Regional Counter-piracy
Efforts’ (2008) ICLQ 690, 691
6 E Kontorovich, ‘“A Gua ntánamo on the Sea”: The Difficulty of P rosecuting Pirates and Terrorists’ (2 010) 98
Cal. L. Rev. 242, 247
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is flagged, th e various cou ntries of nationality of t he seafar ers taken hostage, r egional
coastal cou ntries, the country of the vessel or cargo owner, an d tr ansshipment and
destination countries” all have a direct interest in ensuring fur ther attacks do not
occur. 7 As British Pr im e Minister David Cam er on su ggests, in th e fight against
pir acy, “the wor ld need s to com e togeth er wit h [great ] vigour.”8
Given th e in ternational im pact of Somali piracy the UNSC, charged with
responsibility of maintaining intern at ional peace an d security, h as spearh eaded the
international fight against piracy.9 Relying on the Un ited Nations Convention on the
Law of the Sea 1982 (UNCLOS),10 wh ich, inter alia, pr ovides an intern ational legal
framewor k against piracy, the Council has a dopted Resolution s 1816,11 1846 12 and
1851; 13 hereafter the international framework. These resolutions have arguably
mitigated m any of the com plexit ies in law and in pr actice concer ning enforceability
in and off the coast of Somalia. Accordin gly, an attempt is mad e to provide a
foundat ional enforcem en t framework, u niting in ternational effor ts on the seas to
suppress Somali piracy. But is t his en ough to permanently sup ress piracy stemm in g
from Somalia? Is th is the goal?
This piece argues that the inter nation al framework on piracy provides an effective
str ucture for the internation al commun ity to effectively supress piracy permanen tly;
however , the internat ion al commun ity’s desire an d willingness to do so in tur n
highligh ts the weaknesses of the framework itself. This piece challen ges the
inter nation al framewor k with th e realities of enforcement and influence of domestic
inter ests that pose great danger to supressing piracy. Therefore, this piece seeks to
emph asize that the effectiveness of intern at ional laws an d UNSC resolutions against
pir acy are only as effect ive as the policing behin d them. A solid intern ational legal
framework exists to address piracy but its aims and pur poses must be enfor ced to
achieve a perma nent solution to Soma lia piracy. However , the role domestic interests
and polit ical un willingn ess has had on the enforcement of UNSC resolutions on
Somali piracy has been lar gely limited to the seas. What is lacking to achieve a
perm anent solut ion to Somali piracy is the “political will an d capacity” to tackle its
root causes.14 Unt il then, any intern ational an ti-piracy efforts against pir acy mu st be
un derstood to have a limited effect at permanently sup ressing piracy within Somalia,
where its roots ar e, even if successful on the sea.
1 UN CLOS , Pi rac y an d Lega l Lim ita tio ns
7 United States Government Accountability Office, Action Needed to Assess and Update Plan and Enhance
Collaboration among Partners Involved in Co untering Piracy off the Horn of Africa (GO A-10-856) 78
8 BBC News, ‘The Andrew Marr Show: Transcript: David Cameron’ (BBC News 2011)
9 Charter of the United Nations (adopted 24 October 1945) 1 UNTS XVI [hereafter UN Charter]: Article 24
10 United Nations Convention on the Law of the Sea 1833 UNTS 397 [hereafter UNCLOS]
11 UNSC Res 1816 (2 June 2008) UN Doc S/RES/1816
12 UNSC Res 1846 (2 December 2008) UN Doc S/RES/1846
13 UNSC Res 1851 (16 December 2008) UN Doc S/RES/1851
14 E Kontorovich, ‘“A Gua ntánamo on the Sea”: The Difficulty of Prosecuting Pirates and Terrorists’ (2010) 98
Cal. L. Rev. 242, 245
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