The pirates of the Gulf of Aden: the coalition is the strategy.

• Author: Kraska, James

Abstract

New international legal and policy frameworks have become the most effective force multiplier for developing maritime security and offer optimal approaches to counter piracy in the Horn of Africa. Piracy flourishes at the seams of globalization because jurisdiction is unclear, and pirates exploit the inherent isolation of individual vessels and nations. Regional powers in the Horn of Africa have underdeveloped law enforcement and judicial systems and suffer from a severe lack of resources. In this setting, developing legal and policy frameworks to enable those regional powers to build capacity for maritime security will be more effective than adding another warship to the equation. These efforts include four U.N. Security Council resolutions in 2008, and, perhaps even more promising, regional initiatives in the Horn of Africa that can establish a maritime security framework among states.

TABLE OF CONTENTS I. INTRODUCTION II. THE THREAT OF MARITIME PIRACY IN EAST AFRICA A. Attack Patterns in Maritime Piracy B. The Global Security Costs of Piracy III. U.S. LAW AND POLICY A. U.S. Piracy Policy: Origins and Goals B. The Tenets of the U.S. Piracy Policy C. Additional Efforts Complementing the U.S. Piracy Policy D. Recent European Actions in Maritime Piracy E. Vessel Security and Private Security Companies IV. INTERNATIONAL LAW AND POLICY A. The 1982 U.N. Convention on the Law of the Sea B. The International Maritime Organization C. First Regional Model." Regional Agreement on Combating Piracy and Armed Robbery (ReCAAP) D. Second Regional Model." Maritime Organization of West and Central Africa (MOWCA) and the 2006 Memorandum of Understanding E. IMO Resolution A. 979(24) F. Third Regional Model: The "Jakarta Initiative" G. The UN Security Council 1. Security Council Resolution 1816 2. Security Council Resolution 1838 H. The Nairobi Report 1. The Dire Situation in Somalia 2. The Nairobi Report's Recommendations I. The Global Train and Equip Program J. Security Council Resolution 1846 K. The Implications of Applying the SUA Convention L. Security Council Resolution 1851 M. Recent Maritime Developments V. CONCLUSION I. INTRODUCTION

More than two hundred years ago, just as the United States was developing into a nation, corsair piracy challenged the ability of countries to conduct international trade throughout the Mediterranean Sea.' While that Barbary threat was defeated, the threat of piracy has once again emerged to feature in world news. Pirates operating off the Somali coast now represent a destabilizing force in the region, and their attacks are wreaking havoc on global shipping markets at the very time the industry is suffering economic collapse. In 2008, Somali pirates attacked more than 124 vessels in the Gulf of Aden and western Indian Ocean. (2) The audacity and scope of such a campaign at sea has been unprecedented in the modern age. "We have never seen this before, these kinds of numbers, the number of ships that have been attacked," asserted Noel Choong of the Piracy Reporting Centre in Kuala Lumpur. (3) Although piracy began to pick up over the past five years, 2008 was an especially remarkable year. (4) The Horn of Africa is a strategic area that links trade between the East and West through the neighboring Strait of Bab el Mandeb and into the Suez Canal. Piracy is also occurring in Southeast Asia, off the west coast of Africa, and in the Caribbean, but the explosion in the number and scope of incidents in the Horn of Africa has galvanized world attention.

Increasingly Somali pirates have seized and held for ransom seafarers and valuable cargo. Among the take: thirty-three Russian armored tanks, two million barrels of crude oil valued at more than $100 million, and tankers full of bulk chemicals. Twenty thousand ships transit the Gulf of Aden annually--some 6,500 tankers--carrying seven percent of the world's daily oil supply. (5) The location, sophistication, and lethality vary among the attacks, but the response has generally been the same for hundreds of years for ships and nations: either pay ransom for the release of hostages and seized vessels and cargo, or individually battle the pirates. (6) With the advent of the new piracy in the Horn of Africa, this approach has shifted. Collaborative confrontation of the problem of piracy has begun to strengthen relationships among states in East Africa, and between them and other maritime powers and shipping nations. Global organizations, including the International Maritime Organization (IMO) in London, the European Union, and North Atlantic Treaty Organization (NATO), aggressively support piracy repression efforts.

Piracy suppression includes collective efforts to deter and defeat the crime, from intercepting money transfers of ill-gotten ransoms to forced-entry expeditionary military action in the coastal towns and villages located in the Puntland state of Somalia that support the maritime gangs. On the operational end of the spectrum, an entire host of nations including France, Denmark, Malaysia, India, and Russia, have sent warships to the area. A multinational coalition of naval forces associated with the U.S. Fifth Fleet in Bahrain, called the Combined Maritime Forces (CMF), operates in the Gulf of Aden, the Red Sea, the Arabian Gulf and the Western Indian Ocean. Under CMF, Combined Task Force 150 (CTF150) conducts Maritime Security Operations (MSO) to deter maritime terrorism and promote the rule of law at sea in the Horn of Africa. However, some navies in CTF-150 did not have the authority to conduct counter-piracy missions, and so on January 8, 2009, CMF created Combined Task Force 151 (CTF-151) as a new international counter-piracy naval force. The goal of CTF-151 is to deter, disrupt, and criminally prosecute those involved in piracy, and several nations, including Turkey, already have joined.

The European Union has also deployed naval vessels and surveillance planes to the Horn of Africa under Operation "Atalanta." (7) Belgium, the United Kingdom, France, Germany, Greece, the Netherlands, Spain and Sweden have made contributions to this effort. (8) Other nations are heeding the call. South Korea and Japan sent warships to the region and China also deployed two destroyers and a supply ship. The deployment marks Beijing's first operational mission ever beyond East Asia, but the circumstances do seem to call for unprecedented action. More than 1,200 Chinese vessels that annually transit the Gulf of Aden are vulnerable to piracy attack and China obtains one-third of its sea-bound trade from ships that transit the area. (9)

International collaboration is particularly vital for securing the maritime domain, a global commons in which all nations may exercise community rights of peaceful uses of the oceans. The seas are a unique legal milieu of flag state, port state, and coastal state jurisdiction. Criminal offenses on the oceans frequently involve perpetrators, victims, and witnesses from multiple countries. Most of the oceans and airspace above the seas lie beyond any coastal state's jurisdiction, so cooperation with flag states--which typically exercise exclusive jurisdiction over their vessels at sea--is essential for effective action. Achieving success in repressing piracy requires bold national commitments, integrated regional action, and long-term international support. "[I]n an intimately interconnected world [where t]he problems faced by nations are ... complex and trans-boundary in nature.... it is clear that problems can no longer be solved by a single power or even a small group of powers in concert." (10)

This article focuses on how international laws and policy can connect many nations and international organizations in a common enterprise to repress maritime piracy. A dramatic increase in the number and type of warships patrolling the Horn of Africa has been unsuccessful in markedly decreasing the threat of maritime piracy. Instead, developing workable legal and policy frameworks that facilitate collective action between states will yield better results. To successfully contain piracy, private industry, governments, and international organizations will need to participate in the process. With such diverse and varied interests converging to address piracy, it is critical that potential partners can coordinate regional and global efforts more effectively. (11) Toward this end, this Article describes the problem of Somali piracy; summarizes U.S., regional, and global actions to deter or defeat it, and offers reflections on how ongoing efforts in international law and policy can spur more effective collective action to make the oceans safe.

The first Part of the article examines the presence of maritime piracy in the Gulf of Aden and the western Indian Ocean--the current epicenter for piracy. Only after critically dissecting and understanding the risks associated with the threat can we develop pragmatic and more effective solutions.

The second Part discusses recent responses to maritime piracy off the coast of Somalia. After conducting a successful U.S. piracy interdiction in East Africa in 2006--the first engagement by a U.S. warship against piracy in 150 years--the United States developed a comprehensive presidential-level policy on countering maritime piracy. The document and the process undertaken for its development provide valuable lessons for other countries struggling with the legal and policy considerations for counter-piracy courses of action. After reviewing the counterpiracy policies of the United States, the section will briefly discuss responses from the European Union and the United Kingdom. Their unprecedented actions against maritime piracy in the Horn of Africa illustrate the global nature of the threat and the need for broad collective response. Lastly, the Part will discuss the responses of shipping firms against maritime policy. With so many ships at risk and so few warships to protect them...