Friday, March 29, 2013

The Policy Context of Maritime Piracy


Piracy is an unconventional security threat that individual states and the international community as a whole has to address through conventional political avenues. Much of the basis for modern piracy policy stems from the 1982 UN Convention on the Law of the Sea (UNCLOS.) The convention provided the internationally agreed upon definition of piracy and established many rules governing the uses of the oceans and their resources. The most influential law outlined by the UNCLOS was the definition of territorial seas and exclusive economic zones (EEZ). The law gave coastal states complete sovereignty of their “territorial sea,” an area up to 12 nautical miles from their shore (UN News Center). As per the definition of piracy, any crimes committed within territorial seas, internal waters, or archipelagic waters are not classified as piracy and therefore burdens states with the responsibility of policing their own waters. 

In 2008 the UN security council drastically changed the way in which states can pursue pirates by allowing jurisdiction within Somalian territorial seas. UN Resolution 1816 gave states the power to:
(a) Enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law; and
(b) Use, within the territorial waters of Somalia, in a manner consistent with action permitted on the high seas with respect to piracy under relevant international law, all
necessary means to repress acts of piracy and armed robbery ...(Roach 400). 

This resolution is extremely significant because it infringed upon Somalian maritime sovereignty for the purpose of international security. The jurisdiction previously held solely by Somalia now can be asserted by any number of states as long as they show they are a relevant participant in the prosecution (Warbrick 690). Under normal circumstances, only the Somali government would be able to prosecute crimes that happened within their territorial seas but that is no longer the case. Although the TFG consented to these measures, the legislation marks a clear escalation of international involvement in the conflict. Many aspects of UNSCR 1816 are vague and require some interpretation by the interdicting state for example there is no clear law saying who can try the offenders. Holland can exercise their “jurisdiction” to pursue and arrest the vessel but they don’t necessarily have the authority to hold and try the captured pirates or even safely escort victims and witnesses home. Clearly this could lead to legal issues when multiple states are involved but no law exists to guide them. 

Many other international efforts have been made to combat maritime piracy including the formation of groups like the International Maritime Organization (IMO). The IMO is the UN’s specialized agency with responsibility for the safety and security of shipping and the prevention of marine pollution by ships (imo.org). The organization was created in 1948 and is still very active in fighting modern piracy. Their main goal in terms of counter piracy is fostering regional agreements between coastal states. One example is the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP.) Members include China, Japan, India, Korea, Myanmar, the Phillippines, Norway, the UK, Viet Nam, and several others (Bradford 490). The agreement was spearheaded by Japan and exists to facilitate communication and information sharing among member states to better understand the piracy situation in Asia. The ReCAAP was very successful in combatting piracy in the Malacca Straits and the IMO hopes to replicate those results in other regions. Kenya, Tanzania, and Yemen drafted a non-binding memorandum of understanding (MOU) that pledged similar information-sharing practices to ReCAAP but without legally binding obligations. They did, however, institute a system of “ship-riders” which would reinforce regional cooperation (Roach 405). A ship-rider is a law enforcement official from one state that goes aboard the ship of another state. In international waters this is a huge advantage because you are only allowed to pursue vessels from your host state. Having officials from multiple flag-states enables them to pursue more vessels. Regional cooperations like these mark a shift in policy from state-focused piracy prevention to regionally-focused prevention. A coastal state simply cannot protect all of its maritime assets alone, multilateral solutions make piracy prevention much more feasible.  

To get a more detailed look at counter-piracy measures, I examined a few major powers with a strong voice in the discussion. Japan was inevitably part of that list because their economy is completely dependent on trade and therefore piracy is very threatening to their security. For this reason they emerged as an anti-piracy leader in Asia in 1999 and have remained so ever since. Japan would prefer to form multilateral solutions, as they do with most political roles, but the diverse interests of coastal states hampers that. Unfortunately many solutions they proposed such as a regional coast guard body, increased state support for shipping companies, and cooperation of regional responses were shot down by other powers. Bilateral arrangements were eventually very successful and led to anti-piracy training exercises with India, Malaysia, India, and Thailand, among others (Bradford 490). The ReCAAP was spearheaded by Japan and marked the first successful multilateral operation in Asia. 

I must also bring the United States into this discussion because they are one of the largest maritime powers in the world and work extensively towards piracy prevention. In 2007, the Bush administration created a comprehensive piracy policy developed through the National Security Council.  The policy established 7 goals: prevention, deterrence, reduced vulnerability, accountability for pirates, preservation of the freedom of the seas, protection of lines of communication, and the leadership and support of international efforts (Kraska, Wilson). The policy stressed international cooperation with the US as the leader but also created substantial codes such as the International Shipping and Port Facility Security (ISPS) code. This requires operators of ships and port facilities that handle ships of more than 500 gross tons to develop, implement, and evaluate security plans. These types of measures are helpful because they set universal standards but they can be difficult to implement.

More recently the US has been acting through NATO to counter piracy. NATO’s current operation is called Operation Ocean Shield and focuses on the prevention and deterrence of piracy in the Gulf of Aden/Somalia region. The operation is meant to assist regional states in developing their capabilities and reinforce existing international efforts (Baruah 31). Maritime security is still incredibly important to the US but they now realize that unilateral action is not always the best route. Their use of NATO and the general cooperative nature of current policies highlight the multilateral trends emerging in the counter piracy field. 

The largest problem with current piracy policy is the vague nature of jurisdiction laws. Capturing pirates is only the first step, then you must decide what to do with the “persons under control.” Any country can assert jurisdiction over a universal crime but should every state be permitted to prosecute them? Many vessels lack clear loyalties and could be registered in one nation, owned by a corporation in another, and operated by a crew from several others. When you include the nationality of the pirates and the origin of the cargo you have even more conflicting players. So who has the right to prosecution? Somalia is a failed state and doesn’t have the infrastructure to deal with captured pirates, tribal regions are often an unreliable source of justice, and extraditing pirates to a Western country is far too costly (Kraska, Wilson). At this time there is no clear answer to this problem. A strong, stable Somalia would be the best option but it seems we are far from that prospect. Many times pirates are released because there is nowhere to try their crimes. I believe this issue must be addressed if the international community is serious about combatting piracy. Preventative measures are important but we must also be prepared to deal with the aftermath. 



WORKS CITED 

Baruah, Darshana M. "NATO’s Approach to Counter-Piracy." E-International Relations. N.p., 31 Oct. 2012. Web. 27 Mar. 2013. 

Bradford, John F. "Japanese Anti-Piracy Initiatives in Southeast Asia: Policy Formulation and the Coastal State Responses." Contemporary Southeast Asia 26.3 (2004): 480-505. JSTOR. Web. 25 Mar. 2013. 

Kraska, James, JAGC, U.S. Navy, and Brian Wilson, JAGC, U.S. Navy. "Piracy, Policy, and Law." Proceedings Magazine 1270th ser. 134.12 (2008): n. pag. U.S. Naval Institute. Web. 26 Mar. 2013.

Kraska, James, and Brian Wilson. "Combatting Piracy in International Waters." Web log post. World Policy Blog. N.p., 23 Feb. 2011. Web. 24 Mar. 2013.

"Piracy and Armed Robbery Against Ships." IMO.org. International Maritime Organization, n.d. Web. 25 Mar. 2013.

Roach, Ashley. "Countering Piracy off Somalia: International Law and International Institutions." The American Journal of International Law 104.3 (2010): 397-416.JSTOR. Web. 26 Mar. 2013. 

"United Nations Convention on the Law of the Sea of 10 December 1982." UN News Center. UN, 09 Nov. 2011. Web. 25 Mar. 2013. 

Warbrick, Colin, Dominic McGoldrick, and Douglas Guilfoyle. "Ii. Piracy Off Somalia: Un Security Council Resolution 1816 And Imo Regional Counter-Piracy Efforts."International and Comparative Law Quarterly 57.03 (2008): 690. Print.

19 comments:

  1. In coastal areas where the maritime territory is under dispute who has jurisdiction to try the pirates? For example, Colombia and Nicaragua recently had a trial in where the International Court of Justice gave Nicaragua a maritime territory that previously belonged to Colombia. In cases like, these where there is no clear point of transition, who is to say what laws govern the sea?

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    1. That jurisdiction dispute is exactly one of the gray areas of current policy. In this case since the ICC gave Nicaragua the maritime territory then it would be their responsibility to try pirates acting within that area. So many maritime borders are disputed around the world that nations can easily deny responsibility and then outside actors or the international community are forced to patrol the areas/control the consequences.

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  2. You point out the shortcomings of piracy legislation but also say that there is no clear answer to the issue. Though you obviously don't have a comprehensive solution, do you think that any of the current policies hold promise or could be instituted more broadly to help control piracy more effectively?

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    1. I think UN Resolution 1816 was a very effective policy because the Somalian government clearly was unable to control the issue and yet the international community was limited in how much they could help. Passing the resolution helped both sides of the equation and was somewhat successful in controlling piracy. This isn't a broad solution because it is only applicable to failed states, otherwise the international community would be violating sovereign territory without just cause. It could, however, be applied in certain other cases throughout the world and possibly be used as a benchmark for further legislation.

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    2. What other cases do you think warrant similar legislation?

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  3. How do you think the shift to shipping through the northern passages will effect global piracy will we see an increase in attacks on the high seas as shipping shifts away from the transit choke points an into the arctic?

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    1. I think using the northern passages would decrease global piracy because as Katie talked about, most cases of piracy are rooted in a local/regional motivation. Nico has a good point that international funding will decrease as the number of attacks decreases but I don't think there is any way to truly prevent that. There will always be some level of piracy on the high seas but that risk is fully understand by shipping companies.

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  4. @Jeff I think we will see a decrease in attacks on the high seas. At the same time, I think international funding for piracy prevention around the choke points will also decrease because companies will no longer be collectively worrying about the issue. Therefore the companies that choose to continue to ship through these choke points will again be at a higher risk.

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  5. What practical steps can be taken by naval forces in order to counteract or deter pirate attacks?

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    1. As Murphy discussed, I think the best answer to that would be increasing the US's maritime policing capability. When the US took over Great Britain's role as the chief maritime power post-WWII they failed to police the seas and it has allowed piracy to continue. Steps in this fashion would include more US Navy patrols in key areas and in general just a more significant presence.

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  6. What kind of initiatives does Operation Ocean Shield include, and in what direction do you foresee NATO heading with this? I don't know if that wording comes off clearly but if you have questions of what I mean let me know.

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    1. Operation Ocean Shield really focused on helping existing policies that were already in place by other countries. So for example if Yemen was making efforts to combat Somalian piracy, NATO would assist their current operations with ships, personnel, aid, etc. NATO in general is definitely moving in a multilateral direction.

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  7. Should the insurance companies of these boats consider action themselves? Insurance companies hirer investigators to watch for insurance fraud on land. Why wouldn't they take action if they are losing profit?

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    1. I'm not entirely sure what fraud you're referring to as far as the ships are concerned but the insurance companies aren't realistically losing money. Just like all insurance companies, the monthly/yearly payments they receive from companies far outweighs the occasional ransom they have to pay to pirates.

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  8. In class we talked about how Piracy takes away only a minute fraction of Globe Trade, we alluded to the fact that the minuscule economic factors might have a lot to do with the lack of action taken by states to combat piracy. As time goes on and pirates become more sophisticated there is the possibility that they might stat becoming a larger player in harming global trade. Will this shift ignite policy makers to change there ways? also as mentioned in class, in Nigeria in particular oil tankers are taken captive and then the oil is sold on the black market. As resource scarcity is likely to affect the globe eventually, will the threats to oil and other resources drive a more effective/cohesive policy?

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    1. Weapons improvements most likely wouldn't be significant enough to change the policy of major players because as we talked about, the entire piracy industry amounts to no more than a rounding error. If ransom payments are made illegal that could have a great impact because sailors wouldn't risk coming into contact with pirates when ransoms can't be made to save their lives. As far as resource scarcity I think piracy is still too small of an industry to truly have an impact, especially when a vast majority of it is focused on ransoms and only a small sector (Nigernian cases) targets oil tankers.

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  9. 1982 and 2008 seem to be the big years of piracy legislation in the UN. Why these two years? Where there any countries in particular that spearheaded the effort to introduce more piracy policy?

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  10. Have there been many nation-building efforts in Somalia that might help combat piracy? Do you find that policy makers are looking at the problem from a long-term perspective, or more of a quick-fix perspective in making policies about pirates? Which perspective would you recommend?

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    1. Somalia is still considered a failed state so while some nation-building efforts have been made internally and by the international community, they are either in the early stages or were mostly unsuccessful. It is widely accepted that a layered approach including short-term and long-term solutions are needed but the international community tends to be short-sighted. I would lean towards a more permanent solution for a couple reasons. One because the situation is economically so insignificant currently that we can afford to wait for a long term solution. And two because piracy has always been a threat, a long-term solution will be the only thing that can truly combat it.

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