Tuesday, April 14, 2009

The Problem with Maritime Law and Piracy

Presumably, you dear reader, have also been following the news about pirates on the high seas, off the coast of Somalia (especially when a US captain was taken hostage). I recently did a piece about pirate reenactors. These are people who romanticize the Caribbean buccaneer. What we have been witnessing is modern piracy—except it is actually the same thing: violent seizure on the high seas of a private ship or the illegal detainment of persons or property aboard said ship for the purpose of private gain [this is the definition as set by Article 15 of the 1958 Geneva Convention and Article 101 of the 1882 UN Convention on the Law of the Sea].

In this modern era, piracy represents worldwide losses of 13 to $16 billion per year, in commercials lanes that are used by over 50,000 ships a year.

Traditionally, pirates have been dealt with by a simple solution—catch the bad guys and hang them. The rationale being that piracy was regarded as an offense against Law of Nations and the state whose flag flies on the ship. That state had the right to seize the pirate ship, bring it to port, try the crew, and punish them.

All this was before lawyers took over the world.

So now we have a dilemma. These people, who think that they are smarter than us, say that that approach seems simple, BUT in reality there are problems with this solution.

This is what they say:

1. It limits piracy to crimes committed against private property or citizens.
2. The act must occur in international waters.
3. Greed must be the motivating factor behind the crime.

To them, what the law fails to address are acts of piracy committed: by governments, within territorial waters, for political purposes. They say the maritime laws and the UN Convention of 1982 clearly do not consider the emergence of failed states like Somalia. They do not address what happens if a pirate attack takes place within a country’s territorial waters or in its neighbor’s waters.

The international law addresses what happens on the high seas. So the Convention, which was signed by 150 countries, enables war ships to patrol the shipping lanes under legal protection. But they only have the right to seize and prosecute on the “high seas.” The Somali pirates often do their dirty deeds within the twelve nautical mile limit.

The international law on piracy assume that individual states take responsibility for policing and patrolling their own waters and to prosecute those caught in the act of piracy.

Here’s the problem with these laws and assumptions--

1. Not all states have the sources and capacity to ensure maritime security within their waters.
2. Somalia (and no doubt others) after eighteen years, still has no functioning government.
3. Modern international law does not apply to incidents occurring in waters where there is in fact no law. We will call these areas—the Twilight Zone.

In June 2008, the Security Council adopted Resolution 1816, which seeks to address the threat posed by Somali piracy. In effect the Council has authorized States acting in cooperation with the TFG (Somali Transitional Federal Government) to enter the territorial waters of Somalia to undertake enforcement actions against piracy and armed robbery.

What were they thinking? Oh yeah—like lawyers!

If the Somali courts are not willing and able to conduct prosecutions, the responsibility can only fall on the international community, whose ships are patrolling off the coast of Somalia.

The US and Great Britain seem to be the only ones willing to take steps to address these issues, by signing agreements with Kenya allowing for the transfer of pirates there for prosecution.

So far, the response of the international community has been pretty much invisible, and at the best haphazard.

This is why I believe the US made the right move when they recently took out three pirates by sniper fire. It is time we go back to the old fashion way of dealing with pirates—catch the bad guys and hang them (or at least actually take matters in to your own hands).

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