Moving from crisis management to a sustainable solution for Somali piracy: selected initiatives and the role of international law.

Author:Nanda, Ved P.
Position::End Game: An International Conference on Combating Maritime Piracy
 
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Since 2012 a sharp decline in Somali piracy has occurred, primarily due to proactive naval actions from many countries and the shipping industry's preventive measures by implementing best management practices and the employment of private armed guards. In addition, numerous international organizations have been actively engaged in the complex process of combating piracy. But the underlying causes of piracy--such as poverty and unemployment among youth, coupled with the political, economic, and security problems in Somalia--persist. Hence, maritime piracy continues to be a global nuisance. Several states and international organizations are also engaged in the prosecution of pirates, which is an immense logistical and legal challenge, especially the prosecution of pirate leaders and financiers of piracy groups who constitute part of the land-based criminal networks and reside outside Somalia. The ongoing regulation of private maritime security companies by international, national, and non-governmental entities also presents an equally important challenge, as the security companies aspire to meet the twin objectives of ensuring the effective provision of maritime security and protecting the lives of innocent civilians who might be mistaken for pirates or otherwise get caught in the crossfire. As cost-effective suppression at sea continues, the transition must be to a sustainable solution on shore that can be accomplished with capacity-building measures. These include creating economic opportunities within Somalia and enhancing the rule of law along the Somali coastline. Otherwise, the hard-fought gains made to date could be reversed.

CONTENTS I. INTRODUCTION II. THE NATURE AND SCOPE OF THE MENACE OF PIRACY: CURRENT TRENDS III. THE ROLE OF INTERNATIONAL ORGANIZATIONS A. The U.N. Secretary-General and Security Council B. International Maritime Organization C. North Atlantic Treaty Organization D. European Union E. The Contact Group on Piracy off the Coast of Somalia F. Combined Task Force 151 G. United Nations Office on Drugs and Crime IV. THE UNITED STATES' RESPONSE TO PIRACY V. THE REGULATION OF PRIVATE MARITIME SECURITY COMPANIES A. Ongoing Regulatory Efforts in the Private Maritime Security Industry 1. National regulation 2. International regulation 3. Nongovernmental regulation B. Criminal Jurisdiction at Sea and the Case of Mistaken Identity 1. Criminal jurisdiction at sea 2. Criminal law in a case of mistaken identity at sea VI. ESTABLISHING SOMALIA'S EXCLUSIVE ECONOMIC ZONE A. The Legal Character of the Exclusive Economic Zone B. The Status of Somalia's Exclusive Economic Zone VII. APPLICABLE LEGAL FRAMEWORK VIII. RECOMMENDATIONS IX. CONCLUSION I. INTRODUCTION

Notwithstanding a sharp decline in Somali piracy since 2012, maritime piracy continues to be an ongoing global threat to international navigation, trade, and maritime and regional security. Efforts to combat this menace include concerted action by several international organizations, including the United Nations (U.N.), North Atlantic Treaty Organization (NATO), European Union (EU), African Union (AU), and the League of Arab States. More than forty countries are also involved in undertaking operations on their own or through the following coalitions: the European Union Naval Force Somalia through Operation Atalanta, the Standing Naval Group of NATO through Operation Ocean Shield, and the Combined Task Force 151.

In 2009, the Contact Group on Piracy off the Coast of Somalia (CGPCS) was established to coordinate several international organizations and countries engaged in preventing piracy. A number of other international, regional, and national initiatives, such as the Djibouti Code of Conduct Concerning the Repression of Piracy and Armed Robbery Against Ships in the Western Indian Ocean and the Gulf of Aden ("Djibouti Code of Conduct"), and the Indian Ocean Commission Anti-Piracy Partnership Program, also complement the international efforts. The shipping industry, which is burdened with the spiraling costs of piracy, has also taken preventive steps by complying with the Best Management Practices for Protection Against Somalia Based Piracy, (1) (BMP) and, with the help of private maritime security companies (PMSCs), is actively engaged in combating piracy.

All these efforts have resulted in an effective response to fight Somali piracy, but as the recent 2013 World Bank Report, The Pirates of Somalia: Ending the Threat, Rebuilding a Nation, (2) aptly warns, "the long-term solution to piracy off the Horn of Africa cannot be dissociated from the construction of a Somali state that is viable at both central and local levels." (3)

While the scope of this article is limited to a discussion of the challenges the international community faces in combating Somali piracy, it is worth noting here that the scourge of global piracy demands long-term and persistent efforts to prevent, deter, and combat this ongoing threat. In Part II we review the nature and scope of the menace, while Part III studies the role of international organizations to meet the piracy challenge. Part IV outlines the United States' counter-piracy efforts. Parts V and VI discuss two issues that will play an important role in transitioning from crisis-management to a sustainable solution to maritime piracy, with Part V focusing on the importance of effectively regulating PMSCs, and Part VI describing ongoing efforts to establish Somalia's exclusive economic zone (EEZ). Part VII analyzes the applicable legal framework, and Part VIII provides some recommendations based on our research and analysis. Part IX then concludes.

  1. THE NATURE AND SCOPE OF THE MENACE OF PIRACY: CURRENT TRENDS

    The Piracy Reporting Center of the International Maritime Bureau (IMB), a division of the International Chamber of Commerce, and the International Maritime Organization (IMO), both issue piracy reports. The IMB reports for 2012 show a sharp decline in attacks compared with those of prior years, from 410 incidents in 2009, 445 in 2010, and 439 in 2011, to 297 in 2012. (4) What is striking, however, is that Somalia, as the location of actual and attempted attacks, showed 49 such attacks in 2012 as compared with 80 attacks in 2009, 139 in 2010, and 160 in 2011. (5) IMB's updated report shows only nine Somalia-related incidents, including two hijackings, from January 1, 2013 through July 15, 2013. (6) Similarly, such attacks in the Gulf of Aden diminished from 117 in 2009 to 53 in 2010, 37 in 2011, and 13 in 2012. (7)

    Effective counter-piracy operations by naval forces and PMSCs in the Gulf of Aden and off the coast of Somalia may have resulted in diminished pirate activity in East Africa, but the diminished activity has coincided with a rise in maritime crime in West Africa. To illustrate, attempts off the coast of Nigeria increased from 10 in 2011 to 27 in 2012 and from 6 to 15 off the coast of Togo in the span of one year. (8) As of July 15, 2013, Nigeria-related incidents numbered 22, including one hijacking. (9) The IMO's 2012 Annual Report also shows a dramatic decline in the number of Somalia-based piracy attacks from 286 incidents in 2011 to 99 incidents in 2012, while the number of attacks in West Africa increased from 61 incidents in 2011 to 64 in 2012. (10)

    During the first six months of 2013, the IMB Piracy Reporting Center recorded 138 incidents, including seven hijackings worldwide, a decrease from 177 such incidents, including 20 hijackings in the first half of 2012. (11) One hundred twenty-seven sailors were taken hostage during the first half of 2013, compared with 334 sailors in the same period of 2012. (12) However, in the Gulf of Guinea, the number of piracy incidents, including hijackings, has increased along with the number of kidnappings, and "a wider range of ship types [are] being targeted," which the report considers to be "a new cause for concern in a region already known for attacks against vessels in the oil industry and theft of gas oil from tankers." (13) Armed pirates in the Gulf of Guinea took 56 sailors hostage and kidnapped 30 crew members, killing one person and injuring another five in the first half of 2013. (14) Further, as of June 30, 2013, Somali pirates were holding 57 crew members for ransom on four vessels and 11 kidnapped crew members on land. (15) The IMO's Global Integrated Shipping Information System report of recent incidents from April 2013 to July 2013 shows a similar pattern to that occurring in the Gulf of Guinea, with more such incidents taking place in West Africa and the South China Sea. (16)

    Outside of East and West Africa, Indonesia recorded the highest number of attacks--81 in 2012, with 73 vessels boarded and 47 crew members taken hostage--accounting for more than a quarter of global incidents that year. These attacks in Southeast Asia have increased

    every year since 2009. (17) During the first half of 2013, Indonesia accounted for 48 attacks, with 43 vessels boarded. (18)

    Current trends indicate the need for concerted and coordinated international, regional, bilateral, national, and industry efforts to combat global piracy. The underlying causes of piracy persist: poverty and unemployment in Somalia, especially among the youth, coupled with the complex security, political, economic, and cultural landscape of the country and the need for a functioning government with effective rule of law, which has yet to be realized. Consequently, the Somali piracy threat, though diminished, still remains grave, as on April 15, 2013, the IMB reported an incident up to 400 nautical miles east of Mogadishu. (19)

    Commenting on the recent reduction in Somali piracy attacks, IMB Director Pottengal Mukundan aptly stated:

    Although the number of acts of piracy reported in Somalia has significantly decreased, there can be no room for complacency. The drop in reported attacks is due to proactive naval actions against suspect Pirate Action Groups, the employment of...

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