Somalia and the Problem of Piracy in International Law (original) (raw)

In a State of Exception: National and International Perceptions of Piracy in Somalia

Hydra, 2013

This article investigates how international actors respond to piracy in Somalia. It is argued that the root causes of piracy must be traced back to the collapse of Siad Barre's regime in the early 1990s, which resulted in an escalation of foreign illegal activity in Somali waters. This caused Somali entrepreneurs to set up a taxing system that eventually escalated into organized piracy. Simultaneously, the international response to the issue of piracy has gained momentum as an important element in the 'global war on terror' and international political actors have increasingly approached piracy as a security concern rather than a development issue. Such discourse legitimizes a radicalization of the Western response motivated by an increasingly militarized and 'by-all-means-necessary' approach resulting from laws that effectively suspend basic human rights. The article argues that international response towards piracy in Somalia thus serves as a significant example of modern totalitarianism as described by Giorgio Agamben, where entire categories of citizens are considered incapable of being fully integrated into the political system. In terms of reducing the number of piracy incidents, this strategy has proven successful. But simultaneously it protected important members of the global political elite to from facing judgment on their responsibility of the depletion of resources in Somalia.

A "Global War on Piracy"? International Law and the use of Force against Sea Pirates"

In 2008, the United Nations Security Council passed a series of resolutions that authorized states to take “any means necessary” to combat piracy and armed robbery at sea in the area off the coast of Somalia. Such language, commonly understood to be an authorization for the use of military force, raises the question of whether, or under what circumstances, the international law of armed conflict can or should apply to the international effort to suppress piracy, as well as how the potential implication of this body of law might affect how states choose to address the problem of piracy in the Gulf of Aden area. Put another way, do these resolutions and subsequent state practice suggest that the global effort to combat piracy is legally tantamount to a “global war on piracy,” akin to the “global war on terror”? This chapter will argue that despite the authorizations of force adopted by the UN Security Council, the law of armed conflict does not currently apply to the global effort to suppress piracy, is not intended by states to apply, and would only do so under a very limited set of empirical circumstances. The chapter proceeds in three parts: Part I summarizes the evolution of the law of piracy from the classic law of nations to the contemporary regime centered on the United Nations Convention on the Law of the Sea (UNCLOS), wherein I observe that the use of military force against pirates has effectively been outlawed under the current regime. Part II examines whether the Security Council resolutions that purport to authorize the use of force against pirates were intended by the Council to implicate the law of armed conflict, as well as whether this body of law would prima facie apply to the anti-piracy activities off the coast of Somalia. Part III examines whether recent anti-piracy operations by states of off the coast of Somalia rise to the level of armed conflict and suggests that it would not be in states’ interests to escalate counter-piracy operations to this level.

Barriers to Developing Anti-Piracy Law in Somalia

The United Nations Security Council, through multiple resolutions, called for all nations to criminalize the crime of piracy. In particular, the SC demanded from the Somali government to enact anti-piracy legislation and declare an exclusive economic zone that is in agreement with the UNCLOS treaty. Although it has been notoriously slow, Somalia has recently proclaimed its EEZ by recalling the already existing 1989 Somali Law of the Sea. However, the Somali government has failed to enact anti-piracy legislation and establish institutions. As a result, international navies capture and states in the region (Kenya, Seychelles and Mauritius) try convict and often incarcerate pirates. In this paper, we examine the factors that have prevented Somalia to pass anti-piracy law. Based on interviews with different actors, archival research and content analyses of the four past and relevant legislations on the issue, we argue that lack of institutional memory, public belief that Kenya was annexing Somali territories and resources, poor capacity, and the international community’s practice of .outsourcing the functions of the Somali state explain the slow base of the development of anti-piracy legislation

Somali pirates as agents of change in international law-making and organisation

Cambridge Journal of International and Comparative Law, 2012

Somali piracy is a highly adaptive business activity that can only be understood in context. The present article aims to provide an analysis of the phenomenon and in particular its impact on international law-making and organisation. The present article thus proceeds by first offering an extended account of the history of Somali piracy and its context. This is vital for two reasons: first, one must appreciate that Somali piracy is not a static phenomenon; and second, understanding how Somali piracy is shaped by its context cautions us against concluding that Somali-style piracy may `spread' to other regions. The article then turns to the rise of international counter-piracy operations and counterpiracy co-operation. Here we see a rapid shift from a largely `military paradigm' response (unilateral actions and Security Council authorised missions) to a `law enforcement response'. The latter in particular requires transnational coordination, which soon moves out of formal international organisations to a range of informal co-ordinating bodies. Finally, we can see how a response that commenced as, in effect, containment of piracy through maritime patrols becoming increasingly engaged in operations ashore, though usually in the form of engagement with criminal justice sector reform rather than military strikes on pirate bases. Some tentative conclusions are then offered about the effectiveness of current efforts.

Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia

European Journal of International Law, 2009

Attacks against ships off the coast of Somalia have brought piracy to the forefront of international attention, including that of the Security Council. SC Resolution 1816 of 2008 and others broaden the scope of the existing narrow international law rules on piracy, especially authorizing certain states to enter the Somali territorial waters in a manner consistent with action permitted on the high seas. SC resolutions are framed very cautiously and, in particular, note that they 'shall not be considered as establishing customary law'. They are adopted on the basis of the Somali Transitional Government's (TFG) authorization. Although such authorization seems unnecessary for resolutions adopted under Chapter VII, there are various reasons for this, among which to avoid discussions concerning the width of the Somali territorial sea. Seizing states are reluctant to exercise the powers on captured pirates granted by UNCLOS and SC resolutions. Their main concern is the human rights of the captured individuals. Agreements with Kenya by the USA, the UK, and the EC seek to ensure respect for the human rights of these individuals surrendered to Kenya for prosecution. Action against pirates in many cases involves the use of force. Practice shows that the navies involved limit such use to self-defence. Use of force against pirates off the coast of Somalia seems authorized as an exception to the exclusive rights of the fl ag state, with the limitation that it be reasonable and necessary and that the human rights of the persons involved are safeguarded.