Legal aspects of modern piracy

MANILA, Philippines - Piracy has existed since man set sail; it has developed in time, in the seas and oceans where pirates could attack commercial vessels. Since Vasco de Gama discovered the route of the East Indies, European pirates have followed suit to operate in the most propitious places for ambush on the routes of the silk trade. French pirates were reported in the Gulf of Aden in 1646, their activities brought the Great Moghul to file a protest to King Louis XIV in 1705. This phenomenon has disappeared when the maritime powers were able to destroy their bases in Madagascar.

Piracy in effect can prosper only when pirates have a base to hide and get supplies. The phenomenon seems to rise once more with Somalian pirates who take advantage of the chaos in their country.

The United Nations Convention on the Law of the Sea (UNCLOS) defines acts of piracy on the basis of their nature (acts of violence against goods and persons) but most of all on the basis of the place where this act is committed. Thus, the acts of violence committed against goods or persons in high seas or in the Exclusive Economic Zone (EEZ) of a coastal State (up to 200 nautical miles from the coast) are considered acts of piracy. Meanwhile, acts of the same nature committed within territorial waters of a State (up to 12 nautical miles from the coast) are not in legal terms acts of piracy, since they are committed in an area wherein the coastal nation has total sovereignty and wherein foreign warship cannot intervene.

Crimes committed in the straight of Malacca involved mainly territorial waters of the coastal nations and decreased considerably when these nations took necessary measures in the context of the ReCAAP (regional cooperation agreement on combating piracy and armed robbery at sea), as well as in their own territorial waters. In the case of Somalia, there are no national forces that could intervene against the pirates since the country is caught in a civil war since 1991. The pirates act in the high seas up to 500 miles from their coast and in the EEZ of the Seychelles, then take refuge in the Puntland area, beyond the sovereignty of Somalia.

Meanwhile, the international community has been involved to defend the freedom of navigation in the region. In 2007, after concluding an agreement with the transitional federal government of Somalia, France took the initiative to mount operation Alcyon which consisted of protecting the vessels transporting nutrition aid of the World Food Program needed by 3.5 million Somalians. Several States, including Denmark, the Netherlands and Canada also took part to this operation legitimized by resolution 1814, dated May 15 2008, of the Security Council of the United Nations.

To ensure the safety of navigation off the coast of Somalia, the Security Council adopted, upon the initiative of France and the United States, resolution 1816 dated June 2, 2008, which allows the States having signed an agreement with the transition federal government of Somalia, to pursue vessels which have committed acts of piracy in the high seas within the territorial waters of Somalia. This resolution has been renewed by Resolution 1851 dated December 16, 2008. In the framework of this resolution, the European Union, upon the initiative of France and Spain, mounted operation Atalante which gathered military vessels of several EU Member States under European command.

The legal status of the vessels brings up problems because UNCLOS guarantees the immunity of jurisdiction of the flag State, which means that it is the flag State which authorizes the embarkation of security forces with the mission of protection on vessels flying its flag, even when the shipowner, or the ship’s manager are of different nationality. If the flag State agrees, a ship rider agreement must be concluded to solve questions of jurisdiction (insurance, responsibility). This explains the difficulty of boarding security forces of one nationality onto a vessel of another nationality.

These legal problems, and other of operational nature, are examined by the Contact group on Piracy off the coast of Somalia created upon the initiative of the United States in January 2009, and which assembles 28 countries. This group has organized workshops to coordinate the activities of the fleets and to study legal matters (fate of captured pirates, the possibility to create an international court dedicated to piracy…)

The activities of the Somalian pirates remain due to the length of the zone to watch (4 million km.) and the sophistication of the means available, thanks to the ransoms paid. International action has nevertheless been able to control the phenomenon (281 pirates arrested in 2008). The monsoon which reigns from June to October in this part of the Indian Ocean has temporarily limited the activities of the pirates which have resumed, and it is urgent that the international community be mobilized in this matter.

(The writer is a specialist of maritime delimitations, author of the Geopolitical atlas of the maritime spaces: ed Technip 2008).