Piracy, pirates and the Law

No, not talking about illegal downloads or medical patent infringement. Just the modern, and less fun version of Jack Sparrow. Armed  robbery on the high seas. See Captain Phillips. I was aware of the problem of piracy off the coast of Somalia , but things kind of exploded just as I arrived at the Dutch Ministry of Foreign Affairs for a 6-month stint back in 2009. The UN Security Council had just gotten into it and states began looking for solutions. Short of ’solving’ the crisis in Somalia itself, states had to figure out how to deal with pirates at sea. I got into some of these legal issues, at the Ministry and back in academia:

Piracy in Somalia’s territorial waters

Piracy was first contained to the territorial sea of Somalia where pirates robbed ships from the World Food Program (WFP). This complicated efforts to combat piracy. Why? Quick Law of the Sea tutorial: The seas are divided into maritime zones, in order of appearance proceeding from the coast: territorial sea, contiguous son exclusive economic zone and continental shelf, high seas and the Area. The further out to sea, the less authority for the coastal states. In the territorial sea, coastal states have exclusive authority, but the high seas cannot be subjected to the authority of any state. Notable exceptions to the high seas regime are acts and persons on ships, and the struggle against piracy. Because if no state can exercise authority on the high seas, how can pirates otherwise be fought? Conversely, in the territorial sea, only the coastal state can combat piracy with force. To remedy this situation, the United Nations Security Council adopted several resolutions in which it authorized use force to combat piracy in Somali territorial waters, as if it were high seas. Because it can. Very pragmatic.

Prosecuting Somali pirates

As naval vessels started to not only prevent and deter pirate attacks, they also started arresting suspects. But what to do with these Somali pirates in the middle of the Indian Ocean? In the beginning suspects were often just send back to Somalia with extra food, water and gasoline. A practice know as ’catch and release’. The public, however, as it learned about pirate attacks got annoyed with this practice. Opinion quickly gravitated towards actually prosecuting suspects in national courts. But that was more easily said than done. Not only were the suspects far away, but also the evidence. Early solutions included transferring them to Kenya in a deal with the EU, to have suspects put through trial there. When national prosecution in Western countries turned out to be undesirable (convicted pirates were glad they were in the West!), international and regional prosecution became the new focus. The Netherlands actually proposed an international tribunal and I had my work cut out for me. The idea fizzled out and national prosecution in the region remained the only option.

Human rights and pirates

As I mentioned, human rights became a concern on a number of levels. Transferring suspects to Kenya turned out to be a messy affair. The Kenyan legal system quickly clogged up and in Western countries there many concerns about the human rights situation in that system. Deplorable prison conditions, legal representation etc. Within the United Nations system, regional capacity building attempted to shore up the Kenyan- and even Somali legal systems. But even in national prosecutions there were some initial human rights issues. In an early Dutch case there were some issues raised based on the European Convention on Human Rights (which I wrote about). Practical problems in prosecuting Somali pirates in the Netherlands became legal problems. These problems were based on the fact that the ECHR applied to the suspects as soon as they boarded the naval vessel. Being in the Indian Ocean, it could take two to three weeks for a suspect to be charged and brought before a judge in the Netherlands, or get legal representation. How did prisoners need to be treated according to human rights standard while on board? States have adapted in practice, and because of preventative patrolling and interceptions by a large amount of naval vessels from a lot of countries, Somali piracy has been significantly reduced.

VPDs and Private Security

Despite some successes in combatting piracy through escorting and patrolling by naval vessels, pirate attacks still occurred. So ship-owners were looking for additional protection: armed guards on board. At first, they were looking for the flag-state to provide so-called vessel protection detachments (VPDs), usually marines. But states are not always willing or able to provide them to all their registered ships. Ship owners therefore want to be able to hire private armed guards, the dreaded Blackwaters of this world, but now on the oceans. However, in the Netherlands for instance, the law doesn’t allow it, and Parliament is struggling to allow it. In the US it is mandatory. States are skeptical about the quality of these security companies and the risk of cowboys at sea shooting up innocent fishermen. Despite this resistance, ship-owners have contracted private maritime security companies, either covertly, or by switching flags, i.e. registering vessels in countries that do allow them on board.

In all of these issues, there is no uniformity to how piracy must be tackled in terms of law. States do not use the same legal definition of ’piracy’ or have the same punishments. Different human rights regimes are applied by different states, and some states allow PMSCs while others don’t. Liabilities for accidents with PMSCs are still a bit unclear (still working on it). And although Somali piracy is declining, the new hotspot for piracy is West Africa, off the coast of Nigeria. And Piracy is always a danger near the Strait of Malacca. Piracy is here to stay.