The legal problems of modern piracy

The military and political measures to try and solve the problem are well known and obvious; but the legal ones are not so, because there is a certain amount of uncertainty and vagueness. Even so, any legal issue has to be solved or addressed within UN Security Council resolutions.

The council has passed two resolutions: Number 1838, passed in October, which authorizes the use of ''necessary means,'' meaning force if need be, to stop piracy in international waters; and Number 1816, which allows operations against pirates within Somali territorial waters, but only with the consent and agreement of the Somali transitional government.

However, despite the existence of these two resolutions, all military operations have to be conducted within the framework of international law, defined in this case by the provisions of the UN Convention on the Law of the Sea (UNCLOS). This convention places limitations on military actions. For instance, under Article 100, a warship has to first send an officer-led party to board a suspected pirate ship to verify any suspicions. Furthermore, a warship cannot simply open fire on any suspected ship. An inspection to verify suspicions has to be carried out "with all possible considerations."

With these and other rather tentative and vague provisions in mind, international taskforce ships patrolling and policing the region have been reluctant to intercept and search probable pirate vessels. On top of this, there is also the problem of to whom to hand over the captured pirates. A recent legal opinion by the United Kingdom's Foreign and Commonwealth Office concluded that captured pirates cannot necessarily be sent back to whatever authorities can be found in Somalia, in case they were to be subject to harsh treatment, which would contravene the UK Human Rights Act. For this reason the pirates captured by UK Naval forces have now been handed over not to Somali authorities but to Kenyan authorities. In the same manner, Somali pirates captured by the French Navy were not handed over to Somali authorities, but taken back to Paris for prosecution.

Adm. Mike Mullen, chairman of the US Joint Chiefs of Staff, highlighted these legal problems facing the international community this week by asking, ''One of the challenges that you have in piracy, clearly, is, if you are intervening and you capture pirates, is there a path to prosecute them?"

Apart from the procedural problems to tackle pirates and prosecute them, there is also the problem of defining "piracy" and "pirates." The UNCLOS defines piracy as “all illegal acts of violence or detention … committed for private ends by the crew or passengers of a private ship''. But it says that piracy can take place only "on the high seas" or "outside the jurisdiction of any state," which excludes the territorial waters of sovereign states, including, of course, the coastal areas and territorial waters of Somalia.

For these reasons, until now no foreign warship has entered the territorial waters of Somalia either to intercept a pirate vessel or to undertake an operation to free captured ships or crews. According to UNCLOS, ''action permitted on the high seas'' does not allow the pursuit and boarding of a pirate vessel or to arrest those on board. To do so needs the further authorization of the transitional government.