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.RSom 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
BalpreetLailna
Introduction
he Gulf of Aden is one of the busiest international shipping lanes close to the
coast of Somalia, with up to 30,0 00ships traveling through it annually.1With
increasing aggressiveness and sophistication, pirates operating out of Somalia
have made international headlines by attacking vessels passing through the Gulf of
Aden, off the Horn of Africa (HOA).2 In 2011 the International Maritime Bureau of
the International Chamber of Commerce (IMB) attributed approximately 54% of all
attempted piracy attacks worldwide to Somali pirates.3Consequently, these piracy
attacks have caused significant international ramifications. The economic costs of
Somali piracy have been cited upwards of US$ 6.6– 6.9 billion in 2011.4Mean while,
“cruise-liners have been shot at, aid deliveries jeopardized and the crews of fishing,
recreational and aid vessels have been taken hostage for ransom.”5Evidently, a
variety of domestic interests have been affected, thus giving the international
community an incentive to intervene.6Particularly, “the country 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.
1A Anyimadu, ‘Notorious Somali Pirate Quits: Now is Shipping Safe? ’ (Marketplace Africa: CNN 2013)
2D Guilfoyle, ‘Counter -piracy Law Enforcement and Human Rights’ (2010) ICLQ 141, 141
3International Maritime Bureau of the International Chamber of Commerce, Piracy and Armed Robbery Against
Ships (Annual Report for 2011, ICC-IMB London, 2012) 5-6
4A 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
5D Guilfoyle, ‘Piracy off Somalia: UN Security Council Resolution 1816 and the IMO Regional Counter-piracy
Efforts’ (2008) ICLQ 690, 691
6E Kontorovich, ‘“A Gua ntánamo on the Sea”: The Difficulty of P rosecuting Pirates and Terrorists’ (2 010) 98
Cal. L. Rev. 242, 247
T
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[2014]Sou tha mpton S tudent La w R eview Vol.4
is flagged, th e various cou ntries of nationality of t he seafar ers taken hostage, r egional
coastal countries, the country of the vessel or cargo owner, and transshipment and
destination countries” all have a direct interest in ensuring further attacks do not
occur.7As British Prime Minister David Cameron suggests, in the fight against
pir acy, “the wor ld need s to com e togeth er wit h [great ] vigour.”8
Given the international impact of Somali piracy the UNSC, charged with
responsibility of maintaining international peace and security, has spearheaded the
international fight against piracy.9Relying on the United Nations Convention on the
Law of the Sea 1982 (UNCLOS),10which, inter alia, provides an international legal
framework against piracy, the Council has adopted Resolutions 1816,11184612and
1851; 13 hereafter the international framework. These resolutions have arguably
mitigated many of the complexities in law and in practice concerning enforceability
in and off the coast of Somalia. Accordingly, an attempt is made to provide a
foundational enforcement framework, uniting international efforts on the seas to
suppress Somali piracy. But is this enough to permanently supress piracy stemming
from Somalia? Is th is the goal?
This pieceargues that the international framework on piracy provides an effective
structure for the internationalcommunity to effectively supress piracy permanently;
however, the international community’s desire and willingness to do so in turn
highlights the weaknesses of the framework itself. This piecechallenges the
international framework with the realities of enforcement and influence of domestic
interests that pose great danger to supressing piracy. Therefore, this pieceseeks to
emphasize that the effectiveness of international laws and UNSC resolutions against
piracy are only as effective as the policing behind them. A solid international legal
framework exists to address piracy but its aims and purposes must be enforced to
achieve a perma nent solution to Soma lia piracy. However , the role domestic interests
and political unwillingness has had on the enforcement of UNSC resolutions on
Somali piracy has been largely limited to the seas. What is lacking to achieve a
permanent solution to Somali piracy is the “political will and capacity” to tackle its
root causes.14Until then, any international anti-piracy efforts against piracy must 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
7United States Government AccountabilityOffice, 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
8BBC News, ‘The Andrew Marr Show: Transcript: David Cameron’ (BBC News 2011)
9Charter of the United Nations (adopted 24 October 1945) 1 UNTS XVI [hereafter UN Charter]: Article 24
10UnitedNations Convention on the Law of the Sea 1833 UNTS 397 [hereafter UNCLOS]
11UNSC Res 1816 (2 June 2008) UN Doc S/RES/1816
12UNSC Res 1846 (2 December 2008) UN Doc S/RES/1846
13UNSC Res 1851 (16 December 2008) UN Doc S/RES/1851
14E Kontorovich, ‘“A Gua ntánamo on the Sea”: The Difficulty of Prosecuting Pirates and Terrorists’ (2010) 98
Cal. L. Rev. 242, 245
2
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