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Piracy in Somalia: A Challenge to The International Community


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In the paper Piracy at Sea: Somalia an Area of Great Concern (Baniela, 2010), a general up-to-date vision of piracy at sea in Somalia was analysed. As piracy at sea has political, socio-economic, security and humanitarian dimensions, the international community requires a thorough approach that embraces a comprehensive and multi-faceted response of effective counter-measures, both onshore and offshore. So as a follow-up to that paper, the objective of this one is to analyse the impact of the current strategy in the struggle against piracy in Somalia carried out by the international community focused solely at sea and to examine the proposals to find a solution to the problem on land.
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Piracy in Somalia: A Challenge to
The International Community
Santiago Iglesias Baniela
and Juan Vinagre Ríos
(Navigation and Earth Sciences Department, A Coruña University, Spain)
(Vessel Surveyor)
In the paper Piracy at Sea: Somalia an Area of Great Concern (Baniela, 2010), a general
up-to-date vision of piracy at sea in Somalia was analysed. As piracy at sea has political,
socio-economic, security and humanitarian dimensions, the international community
requires a thorough approach that embraces a comprehensive and multi-faceted response of
effective counter-measures, both onshore and offshore. So as a follow-up to that paper, the
objective of this one is to analyse the impact of the current strategy in the struggle against
piracy in Somalia carried out by the international community focused solely at sea and to
examine the proposals to nd a solution to the problem on land.
1. Piracy at sea in Somalia. 2. Strategies against piracy. 3. Shipping security.
Submitted: 31 January 2012. Accepted: 20 April 2012. First published online: 15 June 2012.
1. IN TR OD UC TI ON . The history of international awareness of, and concern
with, modern-day piracy dates back to Southeast Asia in the early 1980s. From the
middle of the last decade, the problem is especially focussed in the Indian Ocean, and
has acquired an international dimension which destabilizes one of the worlds most
important maritime trade routes (Kraska and Wilson, 2008 [p. 41]). It also destabilizes
the world economy and affects the safety and security of crewmen who sail in that
The approach to solving piracy in Somalia (See Figure 1) should be both from land
and sea; but the current strategy developed by the international community is only
focused at sea. Considering that there is consensus among analysts that the best and
ultimate solution lies on land, this seaborne focus tackles the symptoms but not the
roots of the piracy problem. Accordingly, it is unlikely that pirates will change their
risk-to-reward calculation and thus the attacks will continue. Therefore, although no
single response will solve the problem and despite the international communitys
apparent lack of capability or will to face up to the task, there is an urgent need for a
land-based approach which tries to implement coherent proposals in support of the
sea-based anti-piracy measures. The purpose of this paper is to analyse these
THE JOURNAL OF NAVIGATION (2012), 65, 693710. ©The Royal Institute of Navigation 2012
2. PI RA C Y H IS TO R Y B A CK GR OU ND . Piracy has been a cyclical
phenomenon throughout history. Traditionally, it starts with attacks on vulnerable
ships at a small scale, which at rst are more a nuisance than a true threat. However, if
steps are not taken to control it and the rewards are enough, piracy starts to prosper;
the greater the frequency and intensity of attacks, the more seriously maritime trafcis
affected and it is then that the international community responds. Thus, in the last
cyclical stage, the piracy threat becomes so relevant that the world maritime powers
Figure 1. Political map of Somalia and the surrounding countries with international borders.
Source: Nations Online Project (
react, organizing with each other to send warships to the area to control it. That is
certainly the case with Somali piracy after the United Nations Security Council
Resolutions (UNSCRs) throughout 2008. Today, the literature is full of countless
books and papers about piracy on the Somali coasts, where we can conclude that this
phenomenon has followed the traditional cycle.
It is worth considering whether piracy in the Indian Ocean may be eradicated by
means of naval operations which only focus on the issue of securing sea lanes or
protecting merchant shipping. Unfortunately, if we analyse this phenomenon in its
historical context (Wombwell, 2010), it clearly shows that piracy at sea has never been
completely eradicated only by using warships stationed on the spot to ght it. The
reason, as has been so often repeated lately (Isanga, 2010 [pp. 13111312]; Murphy,
2009; Ong-Webb, 2007[p. 90]), is that although the problem occurs at sea, it is based
on land; and as long as it is not seen from this viewpoint
, it will never be eradicated.
In this sense Wombwell (2010 [p. 13]) describes the USA President James Monroes
proposal during the second phase of the Caribbean Piracy in the 19
century that
seems still valid nowadays when he suggested that some forceful actions against
Spanish people should be carried out to end Spanish support to piracy in Cuba and
Puerto Rico in late 1824.
national law, the sovereignty principle is linked to the notion of statehood as a source
of its basic authority and it is expressed in the right of each state to solve national
matters without interferences of any other state.
Not carrying out the nations duties supposes a threat to the structure of
international relations caused by the misuse of power by coordinated institutions
and the lack of a governmental authority which can offer security to its residents. This
is different to a consolidated state, where a regime of law and order exists that can
serve as the foundation for the international system.
In customary international law, some of the main characteristics that identify a
should in any case include a permanent population, a dened territory and a
government capable of maintaining effective control over its territory and conducting
international relations with other states or gaining international recognition.
The contemporary assessment of countries such as Somalia, Chad or Sudan (Failed
States Index, 2011)
causes a great concern about the adaptation of this traditional
denition (Sepúlveda, 2009); it has given rise to the concept of a failed state. This
term itself is fairly recent and was rst used by Helman and Ratner (1993 [p. 3]), which
has specic characteristics from a geographical (mainly connected to internal and
endogenous problems), political (they face internal law and order collapse) and
functional view (they lack bodies able to represent them at an international level
If we want to eradicate piracy, it becomes necessary to stabilize the country and to provide the citizens
an alternative means of life which enables the elimination of support for piracy on land; otherwise, piracy
re-emerges again when the conditions become favorable, although it may be temporarily suppressed.
Following Art. 1 of the 1933 Montevideo Convention on the Rights and Duties of States.
An annual ranking prepared by the Fund for Peace of the worlds most vulnerable countries where
Somalia has held the No. 1 spot for four years in a row, indicatingthe depth of the crisis in the international
communitys longest-running failure.
and they also suffer from the ability to accept the external inuence) (Thürer, 1999
[p. 734]).
Assuming the previous general considerations, it is not a surprise that Somalia is
widely perceived as a failed state (Cronjé, 2010; Silva, 2010) without a stable
government since 1991. It lacks a functional economy, with various powerful factions
(warlords and militant Islamic groups) possessing little, if any, national allegiance.
They currently ght for the control of the country, where pirates are able to operate
with impunity from Somali coastal towns or even camps; this situation is the root of
the revival of piracy acts in this area from the middle of the last decade (Riggs, 2009
[p. 2]).
4. TH E NE ED F OR A L AN D- BA SE D AP P R OA C H . There is a
requirement in the ght to eradicate piracy in an area where the international
community is faced with propitious geography
in favour of the pirates who are able
to use it to their advantage. However, there is another necessary land-based factor
which encourages piracy to prosper; Somalia is a country wracked with political
turmoil. Somalia has not had a viable government since Mohamed Said Bare was
ousted from power in 1991; pirates take advantage of this instability and uncertainty
which usually brings poverty to the population as a consequence. There are few
alternative economic opportunities onshore and this means potential pirates are ready
to embark on criminal activities as a means of survival (Kraska and Wilson, 2009
[p. 44]). Consequently, we nd that pirate sanctuaries (Baniela, 2010 [p. 206]),
essential to maintain their criminal activity, have arisen as piracy becomes an
acceptable activity
among the population involved. Thus, in some communities,
piracy has even become an acceptable profession(Riggs, 2009 [p. 4]). Although
Somalia does not have a cultural history of piracy, it has become acceptable because
the dire conditions in the country have led to chronic poverty, starvation and
lawlessness. This has usually left Somalis with little alternative to such an extent that,
according to Middleton (2011 [p. 23]), piracy is now likely to be the second largest
generator of money in Somalia, only surpassed by remittances from Somalias large
and dispersed diaspora. On the other hand, pirates are seen by local Somalis to be
lling the void left by the absence of a government to protect Somalia´s offshore
interests, after claiming that they have assumed those duties.
More widely, Murphy (2008 [pp. 161166]) analyses six factors (besides geography)
that enable piracy to occur, which may be considered a consequence of the condition
of a failed state in Somalia.
best solution to efciently cut out piracy is to get a stable government in Somalia that
In the case of Somalia (although it has not got thousands of islands where pirates may hide and wait to
carry out small sudden attacks on their victims, as in Indonesia), rstly Somalia has about 1,880 miles of
coastline in the Gulf of Aden and the Indian Ocean; secondly, Somalia is close to the Gulf of Aden; and
nally, there are limited options if a shipping company chooses to avoid the Gulf of Aden as the only
alternative requires ships to go round the Cape of Good Hope (South Africa), adding time, fuel and crew
Pirates are offered shelter in many sanctuaries all along the Somali coast asthe ransom money available
is a valuable help to the coastal villages, where normal trading is almost non-existent.
may control its coasts and avoid the piratessanctuary ports, together with improved
prospects for economic development and security (Silva, 2010 [p. 555]). The study
and analysis of the most appropriate state model which may solve the Somali situation
(centralized or decentralized) is very controversial, given the Somali idiosyncrasy,
the history and background of the country, making different proposals arise. Thus, as
the strategy of establishing a central government model which works in Somalia
has been proved ineffective for dealing with instability and has repeatedly failed
because none has been able to establish its rule over a signicant portion of the
country; the Transitional Federal Government (TFG)
is the 14
such interim
government structure since 1991 and although internationally recognized, it proved
to be a weak institution hindered by a lack of legitimacy among the Somali
Some authors propose recognizing the failure of imposing a centralized state
authority, arguing that the experience indicates this strategy is not viable. Instead, they
propose moving toward support a grassroots modelof identifying, establishing,
building and improving existing legitimate authorities (including civil society and
traditional clan authorities), provided that they do not support or have links with
terrorism, piracy, or Islamic extremism. Although applying this strategy will take time
and face many difculties, they consider such an approach more likely to lead to
success in the long run (McNeill and Schaefer, 2009; Schaefer, 2009; Schermerhorn,
2011). Also, as the current anti-piracy efforts are not effective in preventing and
deterring Somali pirates, Bair (2009) proposes alternative solutions; instilling distrust
and suspicion within the groups and undermining the alliances between the pirate
groups and their support structures have been used to disrupt criminal organizations
in the past and may be effective in combating Somali piracy. Some scholars and
analysts show such a discouraging vision of the problem that they doubt the real
possibility of the stabilization of the country any time soon and, even more drastically,
they state that Given this Somali view of the state, it is unsurprising that the entrance of
the TFG into the country has increased violence...we nd that rather than chaos,
statelessness seems to have generally improved living conditions in Somalia(Powell
et al., 2008 [p. 669]). In the same sense ... even if Somalias ability to improve is
constrained by statelessness, Somali development would still be better served under
anarchy than it would be under government ...(Leeson, 2007 [p. 707]).
Lately, scholars have considered the possibility of issuing Letters of Marqueto
private actorsas an anti-piracy strategy. This has given a contemporary under-
standing of those licenses and it has been considered a viable legal option to be
employed by the USA (Richard, 2010; Schwartz, 2010), but is obviously not the same
as was issued to privateers in the Golden Age of Piracyfrom the 1650s to the 1730s,
(as privateering was abolished by the Declaration of Paris in 1856). That possibility
was contemplated in a wider sense by Hutchins (2011) developing the concept of how
such a legal framework could be structured under both domestic and international
regimes, and proposing the establishment of an international system of issuing Letters
of Marque and how it might effectively deter pirates while adequately compensating
and controlling privateers.
The expiration of their transitional situation, that took place in August 2011, was extended for another
year at a UN sponsored conference in Kampala (Uganda) on 9 June 2011, deferring elections until 20
August 2012.
Atallah (2011) emphasized that piracy must be tackled head-on; he assumed that
piracy could not be stopped solely at sea and that development of a comprehensive
land-based approach is essential. Consequently, he points out that the primary
method of combating Somali piracy should be to disrupt its economic system by
pressuring and disrupting the cashow through the key players that nance piracy. But
at the same time, they need be offered sufcient economic incentives to replace the lure
of piracy. This strategy, as the author himself recognises, has to face up to the current
limited accessible research that identies those key players and thus reveals a gaping
hole in this approach.
A strategy to address piracy at regional level was implemented in Southeast Asian
countries in the middle of the last decade. Due to the effectiveness of those measures in
preventing and deterring piracy operations (although, according to ICC-IMB Report
(20062010) this threat seems to have resurfaced once again in this region
) that
contributed to the substantial drop in piracy attacks in the region and was largely
attributable to coordinated patrols by the coastal states
. There are proposals to adopt
a similar strategy in the struggle against Somali piracy, but its implementation is
charged with more difculties than in Southeast Asian countries.
On the one hand, besides the establishment of the Rule of Law ashore in coastal
areas which prevented the pirates from operating successfully, the patrols in the
Malacca Strait were performed by the three littoral states involved, which allowed
them to combat piracy at its source, and this strategy made it possible to exert control
over the landward side of the littoral. Meanwhile, the patrols in the Horn of Africa
have been performed by various coalitions of warships from the international
community. Therefore, maritime enforcement only affects the seaward side of the
littoral. But unfortunately, the total number of attacks (attempted and actual) has
gone up (ICC-IMB Reports 20062010)
, although the rate of successful ones at
actually seizing control of vessels has decreased. According to Middleton (2011
[p. 24]), the increase in overall attacks is ascribable to several factors: the increased
number of pirates, the improvement in their tactics and the continuous rise in the
ransoms paid for the release of ships and crew.
This increase in piracy is exacerbated because many of the nations that signed the
Djibouti Code of Conduct have political and economic problems, which limit their
abilities to face some of the most basic causal factors of the piracy phenomenon
(Davis, 2009 [pp. 6869]; Riggs, 2009 [pp. 5859]).
Due to insufcient evidence in their prosecutorial regime, the states often have no
choice but to release the suspected pirates when they come to trial and in order to
tackle this shortcoming, Kontorovich (2010;2011 [pp. 100103]) proposes the
70 total (actual and attempted) incidents against 45 in 2009, 55 in 2008 and 69 in 2007.
Particularly the Malacca Strait Sea Patrols (MALASINDO) in the Malacca Strait among Malaysia,
Singapore and Indonesia in 2004, the Eyes in the Sky (EIS) plan to increase the coverage and response times
to surface forces in 2005 and the Regional Cooperation Agreement on Combating Piracy and Armed
Robbery against Ships in Asia (ReCAAP) in 2006.
This assertion is based on the numbers provided in this report (2006: 20 attempted and actual attacks, 6
actual successful attacks; 2007: 44 attempted and actual attacks, 12 actual successful attacks; 2008: 111
attempted and actual attacks, 42 actual successful attacks; 2009: 217 attempted and actual attacks, 47 actual
successful attacks; 2010: 219 attempted and actual attacks, 49 actual successful attacks). This suggests that,
as there is a low probability that a warship would be close enough to hinder an attack, the lower rate actual/
successful attacks can be due to the counter-measures in place carried out by the merchant vessel´s crew as
the ships know this is a high-risk area.
promulgation known as equipment articles. This could help prosecute captured
pirates, creating a judicial presumption of blame on piracy charges for crews on-board
their civilian vessels if they are equipped with certain specied equipment, unnecessary
for their functions as shermen, but that the pirates customarily use to perpetrate their
crimes (mainly outboard motors above a determined horsepower, boarding ladders,
grappling hooks, arms such as RPGs, insufcient provisions for the zone of high seas
where they are, that can suggest they are operating from a mother ship). The author
quotes legal precedents stating that similar rules were in force in the past, permitting
the prosecution of the transatlantic slave trade in the 19
century, and are now in
place in the 2005 Protocol to the 1988 Convention for the Suppression of Unlawful
Acts against the Safety of Maritime Navigation (SUA Convention). He also analyses
different options with their advantages and disadvantages of implementation in the
ght against Somali piracy. With different wording but the same end, Roach (2010)
refers to piracy paraphernalia subject to conscation, suggesting that their possession
should evidence a piracy attempt.
As we have seen up to now, although there are proposals aimed to stop piracy by
stabilising and reconstructing Somalia; this option seems improbable in the near
future as, considering the historical background (Cronjé, 2010; Møller, 2009), it is very
unlikely that the country can nd a solution by itself in the short or medium term due
to the generalized misgovernment situation. Because it is also doubtful that the
international community has the capability or will to carry out the task on land, where
the root causes of piracy are located, international action seems limited to keeping a
maritime task force in the region.
A probable factor behind the lack of will of the international community to adopt a
determined land-based strategy is the failure of the so-called humanitarian
interventionsin the 1990s that have discredited the motives of the western countries
for the countrys pacication, which has made Somali people reluctant to involve
themselves in nation-building efforts since then. During this decade, both violence and
a severe drought plunged the country into widespread poverty, which led the USA and
the UN to a singularly ineffective, even counter-productive, international humanitar-
ian and military intervention from 1993 to 1995. This intervention failed to restore
peace and withdrew from Somalia without restoring a central government, although
thousands of lives were saved through food aid. The last peacekeepers left the country
in 1995, leaving it in an even worse state than when they had arrived; little progress has
been made over the last 16 years. This fact has not been forgotten by Somali people,
most of whom now have a mistrust of both the UN and the USA. In fact, they united
against the foreign presence and eventually forced the USA to withdraw after
the incident in 1993 known as Black Hawk Down(Bordas, 2009; Møller, 2009
[p. 12]).
SO LU TI ON T O C OA ST A L ST AT E S . Anti-piracy responses at national
level by Somalia and its neighbours (Kenya, Yemen and Tanzania) have had little
success, primarily because of the lack of resources and support from within their
countries and the international community.
Bilateral cooperation between regional governments has mainly focused on
establishing legal and jurisdictional mechanisms for the transfer, detention and trial
of suspected pirates and due to the lack of cooperation, resources and political
instability within the region, the bilateral response has been largely ineffective and
insufcient in the struggle against piracy there, although with signs of progress.
Regional cooperation based on factors such as social and cultural balance, parallel
attitudes and objectives, mutual political and/or economic dependence, and a
geographical proximity, among others carry greater global legitimacy than global
arrangements do. This is probably because they are less likely to be seen as impositions
and should play an overriding role to provide support to nations with piracy problems.
In this sense, nowadays the most important instrument is the IMO sponsored
Djibuti Code of Conduct adopted in January 2009, that was inspired in the Regional
Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in
Asia (ReCAAP), adopted in 2004. This agreement marks the rst major regional
effort to cooperate in the repression of piracy off the coast of Somalia and in the Gulf
of Aden. The effort carried out by regional governments to cooperate in piracy and
robbery matters at sea are promising (the creation of mechanisms to promote greater
cooperation between the Somali TFG and the regional governments of Somaliland
and Puntland starting from January 2010 should be highlighted). However, these
efforts are still insufcient because many of the nations that signed the agreement
(17 regional governments) have political and economic problems that limit their
abilities to address some of the most basic causal factors of piracy. Furthermore, the
Code encourages governments, but does not require them to act, which provides little
incentive to cooperate and in the end the results depend on whether there is enough
capital to ensure that the agreement is well implemented. Even if these provisions
establish an improvement on the UNCLOS framework, as a regional agreement, it
does not create an international body against piracy, it is a non-binding document and
the crime must be committed on the high seas (Bento, 2011 [p. 427]; Riggs, 2009
[pp. 5859]).
7. TH E CU RR EN T SE A- A P P ROA CH S TR AT EG Y . The current strat-
egy of stemming Somali piracy has been unsuccessful till now because this action only
serves to treat the symptoms of a problem rooted on land. Murphy (2009 [p. 3])
describes the response as The least efcient and cost-effective form of piracy
suppressionemphasising that the belief that piracy can be suppressed solely at sea is
largely illusory(Murphy, 2011 [p. 36]). The current sea-based strategy seems not to
deter more desperate young Somalis eager for the possibility of acquiring relatively
substantial wealth. So, these approaches to the solution of the problem are ineffective
and unsustainable because supplying such a large naval force is prohibitively
expensive and disproportionate in relation to the monetary costs associated with
piracy in the region. Even with the unprecedented maritime enforcement regime, navy
ships have forced pirates (with the help of mother ships) to shift their operations to
areas which they know are not being patrolled (Baniela, 2010 [p. 205]). Currently, the
coalitions of warships attempt to maintain eight warships on station at any time
and although 40 warships may be deployed to the area, there are seldom more than
12 actually on station for counter-piracy operations at any time, but would take
more than sixty warships to provide an effective presence over the length of a single,
narrow transit corridor ...(Kraska, 2009 [pp. 149150]). Such naval forces cannot
effectively patrol an area of 2·5 million square miles in the Indian Ocean (Hutchins,
2011 [p. 828]).
As Bento (2011 [p. 412]) recognises, security concerns in Somalia expose land-based
operations to unquantiable security risks. This makes any land-based intervention
unlikely, even under military protection, and has limited the international response to
a sea-based strategy which aims to diminish the attacks to an acceptable level without
completely eliminating them or solving the root causes which are the origin of the
It is for this reason that in this sea-based strategy, with the impossibility of naval
forces providing complete protection to shipping, self-defence strategies become
important. Given the current situation, strict adherence by ships to the Best
Management Practices (BMP4, 2011) and the use of Privately Contracted Armed
Security Personnel (PCASP) on-board ships become more relevant; they should not be
adopted as an alternative but as complementary to BMP4.
To follow the practical advice contained in BMP4 is of overriding importance,
especially when ships transit high-risk areas as dened in BMP4. These procedures
have been recognised and encouraged by the deployed naval forces in order to enable
ships to avoid, deter or delay piracy attacks.
Regarding PCASP, it is an extraordinary controversial matter with experts,
analysts, countries and international institutions in disagreement, either for or against
it (Baniela, 2010 [pp. 202204]). Nevertheless, last year was a turning point as relevant
institutions, such as International Maritime Bureau (IMB) and International
Maritime Organization (IMO), and many countries have tempered their positions
against it by adopting a neutral attitude. The IMO through its Maritime Safety
Committee (MSC) enacted three Circulars in September 2011 in order to give interim
guidance and recommendations on the use of PCASP to shipowners, ship operators
and shipmasters (IMO, 2011a), to ag states (IMO, 2011b), and to port and coastal
states (IMO, 2011c). This seems an important step in order to clarify their potential
use by the shipowners and to foster the necessary development of a complete
regulation in every sense.
Therefore, having ruled out the short-term objective of eradicating piracy,
what is really considered is to neutralize the piratesactions or to minimize their
consequences. However, planning the ght against piracy by the deployment of aero-
naval units focused on capturing and prosecuting seagoing pirates, has to consider the
legal, jurisdictional and practical limitations that international law presents, besides
the intrinsic limitations previously analysed. Many legal, jurisdictional and practical
limitations are derived not from the international law in itself, but from its
implementation on the part of the national legislation of the states (Guilfoyle, 2010
[p. 142]) which determine the operational aspects of the missions
. These short-
comings minimize the risk pirates take each time they attempt to hijack a ship and,
until those risks outweigh the reward, piracy will continue to be difcult to stop.
Further details about these legal aspects are contained in the Appendix to this paper
entitled: International legal framework about piracy regarding Somalia.
Since naval force operations are primarily using law enforcement mechanisms, they are forced to rely
upon international law and national laws to combat piracy.
8. CO NC LU SI ON S. The boom that piracy has undergone in Somalia
since about the middle of the last decade has threatened one of the worlds main
maritime trade routes and called for an international community response. That
response was an unprecedented naval force deployment to patrol the zone as a
response to UNSCRs calls since 2008, aimed at countering piracy attacks. Despite the
best efforts of the naval forces, this task has become impossible to accomplish because
of the current expanse of the area to patrol, a factor that complicates the navalstrategy
per se.
An analysis of the piracy phenomenon throughout history reveals that to
eradicate piracy it has always been necessary to carry out a determined action
on land because, as has been repeated so many times lately, piracy is manifested at
sea but it has its roots on land. The main necessary factors for piracy to ourish are
having propitious geography, political instability and pirate sanctuaries; as the
geography of the area cannot be changed, the anti-piracy focus should be centred on
the two remaining enabling factors, both of which are land-based. In Somalia
these two factors are directly correlated with their well-earned reputation as a failed
Regarding political instability, due to the absence of economic interests on the zone
combined with the failure of humanitarian interventions that nished with the retreat
of the UN in 1995, it is doubtful that, in the short and medium term, the international
community has the capability or will to address it, being reluctant to engage in this
Regarding pirate sanctuaries, there are no known military plans and an apparent
lack of appetite to unleash attacks on land against them, even by nations such as the
USA that supported the wording of the UNSCR 1851/2008 that opens this possibility.
The solution in Somalia goes through restoring peace and order and, as it is one of
the poorest countries, establishing alternate income-earning activities for the Somali
population to the lucrative businessof piracy, achieved through ransom payments.
The question is how to address the problem because it is so intricate that there is no
single response and a need to address the phenomenon by a comprehensive approach
is necessary. The preferred centralised-state option that the international community
has supported from the beginning (for 20 years now, when Somalia became a failed
state) has repeatedly failed. This fact reveals that it is probably time to try other
alternatives. Thus, the grassroot modelsas opposed to the centralised-state strategy
and the efforts towards the identication of key players that nance piracy and
the pressuring and disrupting of their cashows, are land-based proposals that
could be effective. Regarding the prosecutorial regime, to facilitate evidentiary items,
known as equipment articles, seems a worthwhile proposal to attempt their
To sum up, if the international community wants to eradicate piracy in Somalia, it
must implement land-based counter-measures. Meanwhile, as naval power is
necessary but not sufcient, the consequence of the current strategy focused solely at
sea means that, unfortunately, it will not eliminate piracy in Somalia. The pirates risk-
to-reward calculation hardly changes and the piracy problem goes on, seeming
endlessly, although tempered by ship security self-defence strategies (ie., strict
adherence to BMP4 and the use of PCASP mainly after the interim guidance
promulgated by IMO MSC Circulars and their desirable development by all parts
concerned). That is why a land approach is essential.
In the struggle against piracy in Somalia, the present legal protection provided to
shipping by international law is set out on the three following rules of application:
.Arts. 100 to 107 and 110 of the 1982 United Nations Convention on the Law of
the Sea (UNCLOS), incorporated almost literally without amendment from Arts.
14 to 22 of the 1958 High Seas Convention (HSC).
.The 1988 SUA Convention, as amended by the 9 May 2005 Protocol, which
regulates, among state parties, unlawful acts against maritime safety.
.The UNSCRs regarding Somalia.
A1.1 Denition of Piracy. Art. 101 of UNCLOS denes piracy under inter-
national law and, for the purposes of this appendix, the key elements an act must
satisfy to be considered piracy are all contained within subparagraph (a) and
emphasized in bold as follows: any illegal acts of violence or detention, or any act of
depredation,committed for private ends by the crew or the passengers of a private ship or
a private aircraft, and directed ...on the high seas, against another ship or aircraft, or
against persons or property on board such ship or aircraft.
A brief examination of these elements will reveal the gaps and inherent limitations
concerned with modern-day piracy in the existing UNCLOS denition.
.any illegal acts of violence or detention, or any act of depredation
Regarding this element, acts of attempted piracy, acts preparatory to piracy and
other violent acts indirectly linked to piracy are not included in the denition, falling
outside the scope of Art. 101. This constitutes a problem because warships can only
capture pirates in the act.
.for private ends
Neither the HSC nor the UNCLOS give a denition of what private endsmeans.
Therefore, there are grey areas arising from the questions as to what the purpose was;
if the motive of this requirement must be exclusive or if it can be a mixture of private-
public ends and when the public and the private starts and nishes if the coexistence of
both is not possible.
As most scholars point out, the private endscondition excludes acts directed
at ships or their crew from the denition of piracy that are politically motivated, which
nowadays means that this proviso excludes terrorist acts that are politically motivated.
It also excludes acts carried out by warships (or other recognized government vessels)
although, according to Art. 102, such ships can become pirate ships if seized
unlawfully (using a warship by a mutinied crew) and then used to perpetrate piratical
This element of the piracy crime comes from the 1932 Harvard Draft Convention
on piracy successively incorporated into the denition of piracy by the HSC and
the UNCLOS. The process of incorporating a perpetrators motive into the denition
of a crime is not usual. However, when the piracy denition began to emerge
internationally, this measure was necessary at international law at the time
and appears to arise from the distinction between piracy and privateering
(state-sponsored piracy under the license of a letter of marque) of the 16
and 17
According to recent statistics, modern-day piracy is an endemic problem, specially
nowadays in the Gulf of Aden and off Somalias east coast. This suggests that the
premise considering it a phenomenon of the past is no longer valid - the HSC and
UNCLOS conventions were adopted without any thought about a piracy resurgence
on the high seas. So, in the absence of any privateering on the high seas, the old
private endselement of the denition is now obviously outdated.
.on the high seas
The piracy denition requires that a violent act must be committed on the high seas.
This geographical restriction to high seas seems the most signicant shortcoming
because it not only limits the offence to the high seas but also enforces power to nish
with it.
Regarding piracy, this area should be considered including the Exclusive Economic
Zone (EEZ) by operation of Art. 58·2 though prima facie Art. 86 excludes EEZ from
the provisions applied to the high seas regime.
At the end of the 18
century, when the customary international law started to
materialize regarding piracy, the territorial sea of a state was stretched to about three
nautical miles from shore; thus, high seas were all the waters beyond the territorial sea
so determined.
At that time, it was established the presumption that the coastal state inside its
jurisdiction, including the three nautical miles from the territorial sea, had legislation
applicable to offences committed there and was able to enforce those laws. So the
international community need not consider how to face the piracy acts taking place
anywhere, but not on the high seas, considering that in such cases, it was more
appropriate to let the coastal states face the piracy problems in the territorial sea under
their control.
In light of the aforementioned, we could assume that the original justication
related to limiting the piracy crime to piracy acts taking place on the high seas is not
valid nowadays as it cannot be generally assumed that a state will carry out its
jurisdiction regarding maritime crimes within its territorial sea. Consequently, the
international community should review the suitability of the high seas requirement
considered in the piracy denition today.
.against another ship
Art. 101 of UNCLOS sets up the two-ship requirementstating that the act has to
be committed by one ship (the attacking ship) against another (the victim ship) to be
considered piracy. The attacking ship must be a private ship (a non-government ship)
while it is irrelevant if the victim ship is private or not.
The exception of this general rule is stated in Art. 102 that treats the mutinying
crews of state-owned ships as pirates in Art. 101. In this case, UNCLOS establishes a
legal ction considering a government ship as a private ship and therefore subject to
the international piracy law.
The fact of considering the two-ship requirement in the denition lies in the thought
that the acts committed aboard only one ship affected the ag state of the ship where
they took place so they should not be strictly subject to the international law.
Nevertheless, this presents no problem in Somalia as the modus operandi involves the
presence of ships, where pirates attack their targets from small boats, usually very fast
skiffs, coming from bases on the mainland or from mother ships at sea.
A1.1 Action Against Pirates. Regarding action against pirates, the main
provision is Art. 105 that confers a common police or enforcement jurisdiction on
any state on the high seas to seize a pirate ship (according to Art. 107 only warships
may carry out seizure on account of piracy), arrest the persons and seize the property
on-board, and a common judicial jurisdiction to prosecute it in its own court system
and punish the offenders. However, the universal jurisdiction over pirates is limited to
the high seas, as no nation has the right to enter the territorial waters of a state. Only
the state has exclusive jurisdiction to apprehend and the capturing nation may then
prosecute pirates in their domestic courts but may not transfer seized pirates to a third
country for prosecution.
To sum up, the universal jurisdiction conferred by the UNCLOS regarding piracy
has two shortcomings: the geographical limitation, as the power of states to pursue
pirates ceases to exist outside the high seas; and the judicial limitation,
as the opportunity to prosecute pirates arises only in cases where the capturing state
is also willing to prosecute; therefore other states are not entitled to prosecute them.
The problem becomes even worse because UNCLOS does not require states to
enact domestic anti-piracy laws according to the convention provisions, as it is based
on the assumption that states have adequate domestic legislation to prosecute piracy
acts. This causes additional impediments in the piracy struggle as although the
international law makes capture outside a state jurisdiction possible, it is the national
laws of the capturing state that determine how to punish pirates, not the international
law. Although the UNCLOS confers states universal jurisdiction to prosecute pirates
on the high seas, as they are under no duty, few states actually do it. Some of them
have usually enacted national laws for the prosecution of pirates who have specically
committed offences against either their nationals or ag vessels; the promulgation of
these too restricted laws is possible as states have no international obligation to
include national offences in their laws for prosecuting pirates who have perpetrated
acts considered piracy under international law. As a result, it has led to remarkable
failures and, in this respect, the scarcity of piracy cases actually brought in national
courts stands out; a fact that exhibits the limitation of international law as a response
to modern-piracy.
Another limitation of enforcement jurisdiction comes from Art. 111 that authorizes
the hot pursuit of a foreign ship by a coastal state warship provided that there is good
reason to believe that the ship has violated the laws and regulations of that State. The
pursuit must begin either within their internal waters, the territorial sea or the
contiguous zone and can continue outside the jurisdiction of any state only if it is
uninterrupted and must cease when the ship pursued enters the territorial sea of its
own State or of a third State.
As a policy power, the right to approach and visit is contained in Art. 110 that lets a
warship send an ofcer-led party to board a private ship when there are reasonable
grounds that it is under piracy suspicion in order to investigate and corroborate it. The
problem here is that, up to now, there is not a conclusive jurisdictional interpretation
of what reasonable grounds constitutes and therefore, the concept can differ
depending on the national court jurisdictionally competent. Hence the need to ll
this void by establishing what reasonable grounds means once and for all in this
context, specially taking into account the wording of this provision in point 3 if the
suspicions prove to be unfoundedor Art. 106 if the suspicious ship is seized without
legal justication ...without adequate grounds ...respectively.
Regarding cooperation among states in the eradication of piracy, Art. 100 imposes
a legal duty (according to the wording shall) upon states to cooperate although it
offers no particulars on the nature of such cooperation. However, as piracy can only
take place on the high seas or EEZ from a legal standpoint, this general duty ends as
soon as pirates go into a states territorial sea. Furthermore, under this provision,
UNCLOS stipulates no procedure for punishing the non-fullment of a states
responsibilities in the repression of piracy.
A2. T HE SU A CO NV EN TI ON . The SUA Convention was adopted after the
1985 Achille Lauro incident in response to terrorist attacks against shipping. It does
not specically outlaw piracy (nowhere in their provisions are the words piracyor
terrorismcited); it rather attempts to punish forms of maritime violence not
included in the UNCLOS denition, giving the impression of being better adapted to
the modern-day piracy phenomenon. Thus, Art. 3 lists particular acts as ship seizure
and violence by those on-board that could result in physical injury or damage to the
ship or its cargo. This would likely endanger the safe navigation of the vessel, being
considered maritime criminal offences in such cases. Therefore, although the drafters
did not expect to extend the denition of piracy with prejudicial acts to maritime
safety, the SUA Convention may have some intrinsic advantage in the struggle against
From the list of acts the SUA Convention enunciates as criminal offences, it can be
inferred that it tries to remove the limitations UNCLOS states on the key elements
embraced in the piracy denition, particularly:
.It does not have the private endsrequirement; so acts of terrorism politically
motivated, and not simply private aims, would fall within the SUA Convention
.It is also applied to attacks against any ship navigating to, through or from the
territorial seas, not therefore applying the UNCLOS high-seas requirement,
authorizing states to pursue and capture maritime offenders not only on the high
seas, but whenever the victim vessel is in some form of international transit and
.It no longer requires the two-ship requirement; so if hijackers board the ship
when it is moored in harbour and overcome its crew and passengers at a later
point in time, this would fall within the SUA Convention framework.
The SUA Convention also requires state parties to extradite or prosecute
the suspected offenders of maritime violence. If the capturing state cannot take the
necessary measures to establish jurisdiction, SUA requires the extradition of the
alleged offender to a state that has successfully established it. However, dependency
on this Convention is doubtful because the compulsory extradite or prosecute
requirement deters states most affected by piracy where pirate attacks typically occur,
such as Somalia, Indonesia or Malaysia, from ratifying it.
Although the SUA Convention attempts to overcome limitations of the restrictive
elements of the UNCLOS denition of piracy, it has not been so widely ratied.
Consequently, while UNCLOS is considered a customary international law legally
binding on all nations, the SUA Convention is not; therefore, it is only attached to
those member states that have ratied it. So, although the SUA Convention may
theoretically be regarded as an alluring alternative for piracy-ghting states, its
realistic scope turns out to be restricted because of the absence of universal acceptance
and ratication.
All this is not applicable to the intra-state coastal trafc movements (it hardly
accounts for much in Somalia, unlike Southeast Asia) and if violence on-board is not
enough to endanger maritime safety. However, the main loophole attributed to the
SUA Convention is the lack of police or enforcement jurisdiction over ships whose
persons are suspected of being involved in acts considered offences as dened in the
SUA Convention under Art. 3. As in the case of international rules regarding piracy,
such a preventive power would allow jurisdictional competent states to board, search,
seize and arrest ships and offenders involved in actual or attempted acts that this
Convention criminalizes.
When the SUA Convention is envisaged as a weapon in the struggle against
modern-day piracy, an additional problem arises as the acts criminalized usually take
place in rather poor states like Somalia. Therefore they are unwilling or incapable of
allocating the necessary resources to proactively patrol their littoral to capture the
alleged offenders.
While at rst the SUA seemed an encouraging solution, in practice it has been an
inefcient legal tool for taking measures regarding piracy so far, as this Convention
has only been used once. Thus, whatever the potential merits it can have as a tool in
the ght against piracy, the states seem not to be using it.
A3. TH E UN S C R S RE GA RD I N G SO MA LI A. The UN is entitled to
override assertions of the sovereignty principle whenever it acts in the interest of
international peace and security. The recent rise in Somali piracy and their well-earned
reputation as a failed state highlighted the shortcomings to the provisions of the
existing international law and the inability and/or lack of political will of many states
to apply them. This fact led the Security Council (SC) to issue a string of ad hoc
Resolutions (UNSCRs) since 2008 to specically help address the problem of Somali
piracy for the rst time. The intention was to widen the scope of international legal
rules on piracy in order to cope with this growing alarm. The SC lled some gaps in
the UNCLOS by expanding their enforcement jurisdiction and by encouraging
cooperation among states to enhance their abilities in the ght against piracy,
especially regarding every necessary aspect of the alleged piratesprosecution for
taking hostages and their potential imprisonment, including capacity building in both
areas. Somali piracy goes on the SC agenda nowadays since the root of the problem
(Somalia as a failed state and all the questions it entails) persists unresolved and some
jurisdictional loopholes endure, particularly providing an efcient prosecutorial
Starting from UNSCR 1816/2008, the international community response brought
about an unprecedented and spectacular deployment of warships by more than twenty
nations to patrol the area. Thus, they have shown a determined effort to undertake the
high cost this enforcement jurisdiction entails; but they have not assumed the duties to
prosecute the alleged pirates captured, as they are empowered to do by Art. 105 of
UNCLOS in the exercise of the universal jurisdiction to prosecute.
As most SC Resolutions have linked the piratesactivities off the Somali coast with
the notion of a threat to international peace and security, they have been enacted
under Chapter VII of the UN Charter framework, entailing that, according to Art. 25,
they are legally mandatory on every state, making it possible to circumvent UNCLOS
through Art. 103.
To sum up, there are two interesting facts to point out: the shifting in the sequence
of the UNSCRs from emphasising authority to use force to requirements towards a
higher law-enforcement cooperation and the search for bases on which to assert
jurisdiction over pirates. And on the other hand, in search for a comprehensive
international response, the general consensus to embrace the problem of piracy in
Somalia, from a multifaceted perspective containing provisions, fosters a wide range
of cooperative actions to improve capabilities to repress the piracy phenomenon. The
main goal is to nd a solution to the problem of what to do about pirates
once captured by the warships of cooperating states, i.e., the capacity-building
regarding their prosecution and imprisonment as prison facilities, transfer agreements
with other regional countries besides Kenya, post-trial agreements of convicted
pirates (this concept entails the transfer of a pirate sentenced in one state to be
incarcerated in another state) as is the case between Seychelles and TFG, Somaliland
and Puntland.
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Hace treinta años, el modelo de Estado occidental se daba por único viable en el sistema internacional y el mejor instrumento para garantizar la gobernabilidad, el desarrollo nacional y la seguridad interna. Tras el fin de la Guerra Fría se percibieron quiebras significativas, al tiempo que se evidenciaba la incapacidad de sostener ese modelo en un creciente número de países. Si para las sociedades nacionales esa debilidad estatal tenía como consecuencias más dramáticas el agravamiento de las tensiones internas hasta alcanzar el conflicto civil, para la comunidad internacional suponía un principio de inestabilidad con una enorme capacidad para contagiar a la región circundante, lo que hacía necesaria la intervención de los principales agentes internacionales. Este trabajo pretende realizar una exposición de los principales conceptos manejados para definir el proceso de degradación estatal, al tiempo que se analizan los grados de implicación exterior en la gestión de crisis y resolución de conflictos.
Piracy is a land-based crime that takes place at sea. Intensive maritime patrolling can de-ter piracy in narrow waters, providing that is its sole purpose. When piracy suppression is incidental, the effect of patrolling can be limited. Patrolling against piracy on the open ocean is often a hit-or-miss affair given the huge spaces involved. Consequently, it is fair to say that piracy is only effectively controlled when maritime patrols act in concert with land-based policing, and is only suppressed when piracy becomes politically and eco-nomically unattractive. What this demonstrates is that maritime crime and violence can only be perpetrated, and certainly can only be sustained, from the sanctuary of secure bases on land. THE FAVORABLE FACTORS There are seven factors that enable piracy to occur. As it pertains to armed groups oper-ating at sea, there are eight similar and largely common factors. In both cases, these fac-tors interact one with another and, although circumstances determine which predominate, all are usually present to some degree. Differences between the two, where they exist, are often ones of nuance. 1 All of these factors, with the exception of charismatic and effective leadership, are elements in the notion of sanctuary. 2 This chapter discusses these factors and how they apply to maritime armed groups. Geography Pirates used to be called "rovers," but they never roved aimlessly. Piracy has only ever been sustainable in places that offer a combination of rewarding hunting grounds, ac-ceptable levels of risk, and proximate safe havens, and this combination remains the case today. 3 Ships that are anchored in ports or awaiting berths are more at risk than ships under way, but if ships are attacked when moving then this generally occurs in narrow waters such as straits and around archipelagoes. 4 The Straits of Malacca and Singapore, and the waters around Indonesia, famously offer these conditions.
THE CONTINUITY OF PIRACY The hijacking of the 17,000 ton container ship Maersk Alabama off the Indian Ocean coast of Somalia on April 8 th , 2009 was the first occasion when a US-flagged ship with a US crew had been captured by Somali pirates. If this had been an ordinary ship the expectation would have been that the ship and its crew would have been held for months beyond hope of rescue or retaliation waiting for a substantial ransom to be paid. Thanks to the effort that Maersk Lines had put into planning for such an eventuality, the courage and determination of the American crew in recapturing their ship, and the accuracy of the sharpshooters firing from the moving deck of the USS Bainbridge who killed three of the pirates holding the ship's captain, Richard Phillips, in a lifeboat, this was not an ordinary hijacking. Instead, it was one of the shortest ever recorded. This incident was but one in a long history of predation off the coast of this unfortunate country where poor people are ill served by poor government. It presents the Obama administration with the opportunity to place the question of Somalia's future much closer to the top of the US's foreign policy agenda. 1 Somalia is important because its prevailing lawlessness makes it vulnerable to exploitation by violent Islamist groups that desire to use it as a base to destabilize other states in a region that borders a geo-strategically vital waterway. The risk, however, is that any action that is taken will be doomed to failure unless the administration places this single piratical act in proper perspective. The nature and purpose of piracy in the past and piracy today are indistinguishable. The casual factors remain the same: large sea spaces that defy easy application of legal restraint, favorable geography, weak or compliant states that provide sanctuary, corrupt officials and political leaders who can benefit from and protect piracy, conflict and economic disruption that open markets for stolen goods, and the promise of reward from the proceeds extracted from the sales of rich cargoes or the ransoms paid for seafarers lives. These factors, which are present today in Somalia, are different only in detail from the factors that drove Chinese, Mediterranean or Atlantic piracy in the past. In the end, states individually and collectively that determine whether piracy flourishes or fails. 2 The complicating factor in the case of Somali piracy is the presence on land of Islamist terrorists.
Piracy is a complex problem that threatens maritime safety and interferes with global commerce. Supported by networks of financiers and negotiators, Somali pirates viciously attack seafarers across expansive stretches of the Indian Ocean. Despite costly naval interventions, pirates continue to strike. Powerful nations from around the globe have been unsuccessful at stemming the problem because they have focused on capturing and prosecuting a relatively small number of seagoing pirates, while allowing pirate networks to operate with near impunity. To prevent future attacks, an effective and sustainable deterrence regime must be implemented to target the financiers and sophisticated kingpins who lead pirate networks. This Comment examines a new approach based on an age-old solution-privateers. The U.S. Constitution expressly provides that Congress, by issuing letters of marque, can enable private entities to conduct maritime warfare on behalf of the nation. Successive generations of American governments have employed letters of marque to combat maritime threats efficiently. Once more, the commissioning of privateers might prove to be an appropriate tool in the battle to dismantle pirate networks. Given the dispersed nature of the problem and relatively limited capabilities of the pirates, this Comment argues that privateers may provide a more cost-effective and sustainable approach than deploying naval forces. It suggests how a new regime for deploying privateers against Somali pirates could and should be established consistent with international law under either international or domestic frameworks.