Combating maritime piracy: inter-disciplinary cooperation and information sharing.

AuthorGottlieb, Yaron
PositionEnd Game: An International Conference on Combating Maritime Piracy

In recent years, maritime piracy has reemerged as a serious threat to the international community, particularly following the significant increase in incidents of maritime piracy and armed robbery at sea that occurred off the coast of Somalia and in the Gulf of Guinea. As presented in this article, international cooperation is indispensable for combating piracy. To that end, the article argues that a duty to cooperate in the repression of piracy is moored in various international instruments--notably in Article 100 of the U.N. Convention on the Law of the Sea (UNCLOS)--as well as in general principles of international law. It requires states to adhere to due diligence 'best efforts' standards, which, in the context of maritime piracy, entail exercising sincere, concerted, and proactive efforts. The duty to cooperate should serve as a guiding principle in identifying the specific obligations imposed on states. Among those specific obligations is the duty to share relevant information that can assist in preventing piracy attacks and in facilitating prosecution of suspected pirates. It is further submitted that successful undertakings to fight maritime piracy necessitate inter-disciplinary cooperation, namely cooperation among entities whose expertise generally lies in different fields. The article further discusses the main challenges for information sharing and proposes solutions to meet those challenges.

CONTENTS I. INTRODUCTION II. COMBATING MARITIME PIRACY: THE DUTY TO COOPERATE A. The Primary Legal Sources Underlying the Duty to Cooperate B. Interpretation of the Duty to Cooperate: The Applicable Legal Test C. Article 100 as the Guiding Principle in Identifying the Specific Duties Imposed on States III. THE DUTY TO SHARE INFORMATION AS A SPECIFIC OBLIGATION UNDER THE GENERAL DUTY TO COOPERATE IV. THE NATURE OF COOPERATION: A CALL FOR HOLISTIC INTER-DISCIPLINARY COOPERATION V. CHALLENGES IN SHARING INFORMATION IN THE FIGHT AGAINST PIRACY A. Scope of the Duty to Share Information and the "National Security" Exception B. Challenges Deriving from the Nature of the Crime and the Entities Involved in Counter-Piracy Operations 1. Navies carrying out law enforcement activities 2. Interaction with the shipping industry C. The Proliferation of Information Networks and its Discontents VI. CONCLUSION I. INTRODUCTION

In recent years, maritime piracy has reemerged as a serious threat to the international community, notably following the significant increase in incidents of maritime piracy and armed robbery at sea that occurred off the coast of Somalia and in the Gulf of Guinea. As presented in this article, international cooperation is indispensable for combating piracy. To that end, this article argues that a duty to cooperate in the repression of piracy exists under international law. This duty, as articulated in Article 100 of the U.N. Convention on the Law of the Sea (UNCLOS), should serve as a guiding principle in identifying the specific obligations imposed on states. Among these specific obligations is the duty to share relevant information that can assist in preventing piracy attacks and in facilitating prosecution of suspected pirates. It is further submitted that successful undertakings to fight maritime piracy necessitate inter-disciplinary cooperation, namely cooperation among entities with expertise in different fields. This article further discusses the main challenges associated with information sharing, and it proposes solutions to meet them.

  1. COMBATING MARITIME PIRACY: THE DUTY TO COOPERATE

    1. The Primary Legal Sources Underlying the Duty to Cooperate

      Combating maritime piracy requires commitment and active engagement by states. As indicated by Mr. Helmut Tuerk, the honorable justice of the International Tribunal for the Law of the Sea, "[t]he practice of piracy has been widespread over the centuries and continues to be a menace. As a result, every State not only has a right, but also a duty, to take action to curb piratical activities." (1)

      States are expected to take measures on both the domestic level--for example, by criminalizing piratical acts2--and on the international level. The key element of the latter is international cooperation, whether directly among states or through the involvement of international organizations and other mechanisms created by states.

      Indeed, international instruments repeatedly refer to the importance of international cooperation in the repression of maritime piracy. Thus, for example, the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation ("SUA Convention") provides in Article 13 that state parties shall cooperate in the prevention of the offences defined by that convention. (3) Similarly, the U.N. Security Council (UNSC), in its series of resolutions related to the threats of piracy and armed robbery at sea off the coast of Somalia (and more recently in the Gulf of Guinea), urged all states to cooperate with each other and with international organizations in combating acts of piracy and armed robbery at sea. (4) The importance of international and regional cooperation in this domain was also highlighted by the U.N. General Assembly in its resolutions on oceans and the law of the sea. (5)

      Notably, Article 100 of UNCLOS, titled "Duty to cooperate in the repression of piracy," specifies that "[a] 11 States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State." (6)

      The duty to cooperate is at the core of the piracy section of UNCLOS. Indeed, it is the first provision of this section, thereby providing an appropriate benchmark as well as framework for the substantive provisions that follow. Moreover, while international cooperation is a common theme of UNCLOS, (7) Article 100 is unique in two ways. First, it is the only provision in UNCLOS in which the title is the duty to cooperate. (8) Secondly, it uses the strongest wording found in UNCLOS with regard to this obligation; namely, that all states shall cooperate uto the fullest possible extent." (9)

      Article 100 of UNCLOS contains the precise wording of Article 14 of the 1958 Geneva Convention on the High Seas (HSC), (10) which in turn incorporated (again, verbatim) the corresponding article adopted by the International Law Commission (ILC) on the law of the sea. (11) All of these provisions went beyond the proposal put together in the scholarly work known as the Harvard Research Draft, (12) which later served as the basis for the discussions of piracy by the ILC and the negotiations of the piracy provisions in the HSC. Article 18 of the Harvard Research Draft provided that "[t]he parties to this convention agree to make every expedient use of their powers to prevent piracy, separately and in co-operation." The commentary to this provision underscored that Article 18 imposes on states only "a general discretionary obligation to discourage piracy by exercising their rights of prevention and punishment as far as is expedient." (13) By establishing a duty to cooperate, UNCLOS and the HSC therefore send a clearer message than originally foreseen in the proposal of the Harvard Research Draft.

      Both UNCLOS and HSC, however, did not set out the precise obligations that fall within the scope of the general duty to cooperate, (14) thereby leaving this provision open to interpretation with regard to the means that states should employ to sufficiently fulfill their obligation. At the very least, however, it is evident that inaction or failure to cooperate in response to piratical acts--where both the factual circumstances and the applicable legal framework allow for action and cooperation--cannot be reconciled with the duty as prescribed by Article 100. The ILC, in its above commentary, clearly stated that "[a]ny State having an opportunity of taking measures against piracy, and neglecting to do so, would be failing in a duty laid upon it by international law." (15) Similarly, Mr. Jack Lang, the Special Adviser appointed by the U.N. Secretary General to address the legal issues related to piracy off the coast of Somalia, underscored that the degree of flexibility provided by the wording of Article 100 "should not be used as a pretext for failure to prosecute." (16) Professor Rudiger Wolfrum, the honorable justice and former President of the International Tribunal for the Law of the Sea, echoed this approach, stating that "a ship entitled to intervene in cases of piracy may not, without good justification, turn a blind eye to such acts." (17) Professor Wolfrum went a step further by asserting that "[t]urning a blind eye to the activities of pirates is in itself an act of piracy," (18) and by suggesting that states permitting piracy activities may be subject to countermeasures and also, theoretically, to an intervention by the UNSC. (19)

    2. Interpretation of the Duty to Cooperate: The Applicable Legal Test

      Notwithstanding UNCLOS' shortcomings in failing to detail the specific obligations within the scope of the general duty to cooperate, certain conclusions can be reached regarding the nature of the duty, the applicable legal test, and the specific actions expected from states, such as the duty to share relevant information. (20)

      In this respect, Article 100 should be interpreted broadly. This derives from the provision's wording (duty to cooperate "to the fullest possible extent") as well as from the underlying rationale of the piracy section of UNCLOS; namely, ensuring the international community's common interest in protecting the freedom of navigation and safety of persons at sea. (21)

      Further, while Article 100 does not create an absolute obligation, its clear wording entails the existence of a presumption of cooperation in the face of piracy. This presumption also derives from the general principle of good faith in fulfilling treaty obligations, long recognized as "[o]ne of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT