Legal Implication On Naval Action International LawEssay

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The idea of this paper is to look into military intervention especially naval actions in suppressing piracyin Gulf of Aden. Specifically analyse the International Law of the Sea 1982 (UNCLOS) and Conventionfor the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 (SUA) incontemporary piracy. The research focused on legal implication in naval actions' in maintaining thepeace and freedom of the stipulated area for maritime interest. Investigating the allowable actionstaken in high seas by the international laws revealed the darken side of it. Successful actions by navalaction in curbing piracy in Somalia should not be taken as solving the whole issues. Worst casescenarios were exposed by visiting previous cases as a case study in this research in order tounderstand the implication of legal aspects of it.

Methodology of the research focusing on literatures review by doing library research using the books,articles, journals and reports as primary approach. Surfing established websites by governments, stateactors and non-state actors such as International Maritime Bureau (IMB) and International MaritimeOrganisation (IMO) was widely used as secondary approach.

On completion of the research, weaknesses on legal aspects in naval actions' will be revealed forfurther improvement of current international law by all law makers.

IntroductionPiracy has existed since the earliest day of navigation. The pirates terrorized maritime trade anddisappeared in the late nineteenth century with changing sail propulsion engine, limited since the seasof Southeast Asia, Africa and eastern coast of the Gulf of Guinea coast. During the twentieth centurypiracy in the seas systematically exerts some Third World countries, especially in the GulfofAdenandthe east coastofSomalia, Indonesia and Malaysia. In 2008, piracy has surged in Somalia. TheInternational Maritime Bureau (IMB) and the International Maritime Organization (IMO) recent statisticson attacks against ships indicate that piratical acts and armed robbery against ships are on theincrease and are affecting, at present day, various areas of the oceans. The level of violence, thesignificant loss of human lives inflicted on crews and the loss of property involved, together with thedanger posed to international navigation and to the marine environment, especially in straits used forinternational navigation and to maritime security, affecting commercial shipping, fishing boats, pleasurecrafts, tankers, bulk carriers and, in a way, every floating device. The situation, though not yet out ofcontrol, seems to have the potential to get worse if effective measures are not put in place. Thequestion must then be raised as to what extent maritime piracy and armed robbery against ships havegiven a serious impact for shipping and the whole maritime communities. In a Chapter 2, piracy way ofimpeding the peace will be discussed further.

Background

Piracy in Somalia is growing at an alarming rate and threatens to drastically disrupt international trade.In other hand, it provides funds that feed the vicious war in Somalia and could potentially become aweapon of international terrorism or a cause of environmental disaster. It could be the result of agrowing issue in fragile African states. During August 2008, the frequency of Somali piracy explodedand the drastic increase in frequency meant that waters adjacent to Somalia became the most pirate-infested waters in the world. Since the end of 2007 piracy activity has shifted away from the Mogadishuport area and into the Gulf of Aden.Piracy has been a problem in Somali waters for at least ten years.The number of attempted and successful attacks has risen over the last three years (see Figure 1).

The actual number of attacks could well be higher: not all incidents will have been reported as there ismuch illegal activity in Somali waters, and the official statistics do not measure the impact of piracy onSomali coastal trade. Some 16,000 ships a year passes through the Gulf of Aden, carrying oil from theMiddle East and goods from Asia to Europe and North America. So one of the most important traderoutes in the world is now threatened by the chronic instability in Somalia. This traffic is concentrated ina relatively small area. Recent international military patrols along the International RecommendedTransit Corridor through the Gulf of Aden have now caused pirate activities to shift further offshore intothe Arabian Sea and Indian Ocean. Keeping such geographical factors in mind, piracy in general isexplained mainly by six factors: culture, exclusion and relative deprivation, poverty, organizationalsponsorship, failure of legal and maritime counter-strategies, and weak/weakening state/institutionalstructures.All factors mentioned we could find in Somalia state, which could summarise as a FailedState. With little functioning government, long, isolated, sandy beaches and a population that is bothdesperate and used to war, Somalia is a perfect environment for piracy to thrive. This will be discussedthoroughly in the Chapter 2.

Understandably, the potential security implications of widespread maritime piracy in this region haveled to a significant increase in international attention and response. Counter-piracy initiatives inSomalia represent an unprecedented degree of international cooperation on maritime matters. Thereare three multinational naval task forces patrolling the region and loosely coordinating protection forshipping: The European Union's first ever joint naval operation with Operation Atlanta, NATO's withOperation Allied Protector; and the US-led Combined Task Force 151 (CTF-151). Interestingly, thissignificant naval counter-piracy initiative is accompany by a widespread view that naval action cannotfundamentally alter the Somali pirate situation but further analysis was needed which are not cover inthis research.

Chapter 1

Piracy

DefinitionThere is no organization under UNCLOS that is being dedicated to monitoring or preventing piracy. Insome UNCLOS provisions, though not in those relating to piracy, there is mention of a competentinternational organization.It is widely accepted that this is a reference to the IMO which are UNspecialized agency that predates UNCLOS. In its regulatory role of shipping, maritime security, andsafety, the IMO has also taking an interest in piracy.

IMO refers to both piracy and sea robbery in its reports. It uses the UNCLOS definition of piracy, but itdefines armed robbery against ships as any unlawful act of violence or detention or any act ofdepredation, or threat thereof, other than an act of piracy,' directed against a ship or against personsor property on board such ship, within a State's jurisdiction over such offences.

Translated, it means that according to the IMO:

Piracy must involve a criminal act of violence, detention, or depredation.Piracy is committed on the high seas or in a place outside the jurisdiction of any state.The two-ship rule. Pirates need to use a ship to attack another ship (which excludes mutinyand barratry).Piracy needs to be committed for private ends, (which excludes the acts of terrorists orenvironmental activists).Piracy must be committed by the crew or passengers of a privately owned vessel, (whichexcludes attacks by naval craft).

IMO definition does not apply since a part of maritime crime is carried out by groups that arepolitically motivated on the strategic level, while carrying out the individual activity for financialreasons on the tactical level.

Piracy consists of the following main types of criminal acts:

Harbour and anchorage attacksAttacks against vessels at sea: (sea) robbery - also referred to as Asian PiracyAttacks against vessels at sea: Hijacking with neutralisation of the crew - variation: permanentseizure of a vessel by piratesKidnap for ransom

The International Maritime Bureau, in turn, is a specialized division of the International Chamber ofCommerce. It thus has a very commercial focus, and as maritime crime can have a huge financialimpact on the world's shipping community, in 1992 it created a dedicated Piracy Reporting Center. Forstatistical purposes, the IMB chooses not to use the relatively narrow UNCLOS definition of piracy.Instead, it speaks collectively of Piracy and Armed Robbery, which it defines as an act of boarding orattempting to board any ship with the apparent intent to commit theft or any other crime and with theapparent intent or capability to use force in the furtherance of that act. It is clear that this definition willcover any act of violence against a ship, whether that vessel is berthed in internal waters or under wayon the high seas. Contrast of both definitions is simplified in table as below:

Table 1: Contrast between IMO and IMB definitions of piracy

Analysing both, the IMO methodology conforms more closely to the international legal view aboutpiracy; nonetheless, the most widely used source of data on piracy is the IMB. For statistical purposes,the IMB defines piracy and armed robbery as an act of boarding or attempting to board any ship withthe apparent intent to commit theft or any other crime and with the apparent intent or capability to useforce in the furtherance of that act. This definition thus covers actual or attempted attacks whether theship is berthed, at anchor or at sea. Petty thefts (small case) are excluded unless the thieves arearmed.The definition thus crosses the jurisdictional boundary of international and domestic law.

Chapter 2

Piracy in SomaliaTen years ago there was some activity off Somalia with 14 actual or attempted piracy raids but noreported incidents in the Gulf of Aden/Red Sea.Northern Somalia borders the Gulf of Aden. Piracy inthe Gulf over the next few years peaked at 18 incidents in 2003 then declined, until rising to 92 in 2008and 115 for January to September, 2009.Off eastern Somalia piracy incidents declined to only two in2004, peaked at 35 in 2005 and declined again to 19 in 2008.From January to September 2009, 47incidents were recorded.Somali pirates were also responsible for six other attacks in more distantwaters prior to October in 2009 and several attacks near the Seychelles in November, 2009.As we cansee from these figures, contemporary piracy should not be viewed as a phenomenon affecting worldshipping only in 2009 and only off Somalia. Somalia as a Failed State will be analysed next in furtheranalysis of what really trigger such phenomena.

Origin of Piracy in SomaliaIt suggests that piracy started out as a defensive measure taken due to illegal foreign fishing, whichover time has turned into professional piracy. Ken Menkhaus states that piracy on the greater Gulf ofAden evolved as a defensive strategy against exploitation by foreign vessels. He notes that, In 1991,foreign fishing trawlers aggressively moved into Somalia's rich and unpatrolled waters, at the expenseof coastal fishing villages. It claims that the pirates simply have no alternatives due to overfishing the

sea is said to have become empty. Angry Somali fishermen secured weapons and began firing onforeign trawlers.

On the other hand, it should also be kept in mind that clashes between Somali boats seem to be afrequent occurrence; clans, as well as individuals, accused each other of fishing illegally from theirgrounds. This is one of the reasons that Somali fishers in general are armed. It also makes it easier forpirates to hide among fishermen and for fishermen who are tempted to turn to piracy when they spot aneasy prey. Large fishing company in Puntland said that the fishing is good, but that piracy actuallycrowds out the fishing sector, as fishers quit becoming pirates because of the potential for more incomein the latter sector, and it becomes harder to put together a fishing crew. The argument is thatPuntlanders are less willing to work in the fishing industry since piracy seems to be more profitable.

The Situation off SomaliaThe current situation off Somalia shows how complex antipiracy suppression operations can become.Hijackings are frequent in these waters, one of the world's busiest and most important sea-lanes.During 2008, Somali pirates reportedly attacked 111 ships and were able to seize forty-two.28 In June2008, the United Nations Security Council passed a resolution authorizing the use of force againstpirates in Somalia's territorial waters. It gave warships the power to intervene in piracy attacks on thehigh seas under UNCLOS, but warships must work with local law enforcementSomali authorities, inthis casefor subsequent prosecution. The need for this multinational force was dramaticallyillustrated in September 2008 when pirates hijacked the Ukrainian cargo ship Fainaoff the central coastof Somalia. What commanded international attention was not the ship's crew but its cargo: thirtythreeRussian battle tanks and other heavy weapons, nominally intended for the Kenyan army but probablydestined for southern Sudan. U.S., Russian, and British warships surrounded the Ukrainian vessel, andNATO antipiracy patrols escorted UN food aid shipments. Since Resolution 1772, adopted on 20August 2007, the Security Council has passed many resolutions dealing with piracy and armed robberyoff the coast of Somalia. On 7 October 2008, the UN Security Council passed Resolution 1838, callingupon states interested in the security of maritime activities to fight piracy on the high seas off the coastof Somalia by deploying naval vessels and military aircraft.29 The Security Council has nottraditionally drawn a clear distinction between piracy and armed robbery, condemning both activities.Yet in Resolution 1816 it decided that states cooperating with the Transitional Federal Government ofSomalia may enter the territorial waters of Somalia for repressing acts of piracy and armed robbery atsea, in a manner consistent with such action permitted on the high seas with respect to piracy underrelevant international law, and use, within the territorial waters of Somalia[,] . . . all necessarymeansto repress acts of piracy and armed robbery.30 States acting within territorial waters to combat piracycould draw their lawful authority from this resolution, even though such action is not supported byUNCLOS. It is also notable that Resolution 1838 calls upon states interested in the security ofmaritime activities to take part actively in the fight against piracy on the high seas.31 By contrast,article 101 of UNCLOS states that it is a duty to co-operate in the repression of piracy and requiresall states, not just those with particular commercial interests, to cooperate to the fullest possibleextent in the repression of piracy. The Security Council's call to arms, therefore, is a more limitedrequest, obliging only states with stakes in maritime security to fight piracy off Somalia actively. To date,the Security Council resolutions have been ineffective. Even as an international armada surroundedFaina, pirates attacked three other vessels in Somali waters. In particular, on 16 November 2008pirates seized the very large crude carrier (VLCC) Sirius Star, releasing it only after receiving a three-million-dollar ransom. This incident caused quite a shock to the shipping industry, since this was thefirst VLCC hijacked for ransom and had reportedly been located by the pirates through its AIS signal.Sirius Star sat off the Somali coast surrounded by warships, but no navy had the authority to recapturethe ship. The ship was

released in January 2009, only after the owners paid the ransom. The inadequacy of international lawsregulating piracy means that captured alleged Somali pirates have either been set free or sent toKenya for trial, since there is no legal system in Somalia that can try them. Embarrassingly, the Sirius

Star attack occurred when a large number of warships were in those waters precisely to prevent such athing. These naval forces are acting under a UN Security Council resolution, but there is no unifiedcommand plan. In early January 2009 it was announced that Combined Task Force 151 (CTF 151)would be created to conduct antipiracy operations. It has been given authority to act in Somali watersby no fewer than four Security Council resolutions, plus agreements with Kenya to prosecute anypirates captured.32 Somali piracy has created an unprecedented international response, includingships from the United States, Europe, India, Australia, Japan, Russia, China, and Malaysia. Forexample, on 8 April 2009, Somali pirates hijacked the U.S.-flagged ship Maersk Alabama and took shipcaptain Richard Phillips hostage. Four days later, Navy SEAL sharpshooters from the USS Bainbridgekilled three pirates in a successful nighttime rescue.33 The Somali pirates were clearly not deterred bythe U.S. Navy, and on 18 November 2009 attacked Maersk Alabama again, but this time were foughtoff by private guards armed with guns and a high-decibel sonic emitter. China has also sent twoFrigates and a supply ship to the Horn of Africa, and has pledged to regain control of the cargo ship DeXinHai, which was seized by Somali pirates on 19 October 2009. According to the InternationalMaritime Bureau, of the 359 reported attacks or attempted attacks so far this year, 195 could beattributed to Somali pirates.34 These developments show the pressing need for a Global MaritimePartnership. However, patrol areas are vast, and the fundamental question remains: Should the watersbe patrolled, or should the merchant ships be convoyed? That is, should the ships themselves beprotected, not the ocean? Under international law, warships can convoy and protect only ships of theirrespective nations' flags, unless another flag state gives approval; it was this very issue that resulted inthe 1856-60 Sino-British Arrow War.

At present, some shipping lines have decided to reroute their traffic away from the Somali coast bysending them around the Cape of Good Hope, adding considerably to costs and causing extensivedelays in delivery. While external powers are deciding on whether to commit navies to the Gulf of Aden,ship owners are reportedly negotiating ransoms. Most often, ship owners bargain with the pirates overtheir ransom demands and then eventually pay which means the pirates win. This success merelymotivates others to join their ranks. The root problem is a lawless state, in the case of Somalia it is notonly continues but may grow worse.

Somalia a Failed State

Chapter 3

The Law of the Sea and Contemporary PiracyThe UN Convention on the Law of the Sea 1982 (UNCLOS) addressed the parameters of jurisdictionand defined offenses. But like all UN treaties and conventions, it could be enacted only if the signatorystates adopt similar worded statutes as domestic legislation. UNCLOS defines piracy as an activity thatoccurs exclusively on the high seas. Coastal states have full jurisdiction in their territorial sea andqualified jurisdiction in the rest of the EEZ. Other states can freely navigate the waters of this area butaccording to Article 58 (3) of the Law of the Sea (UNCLOS 1982), In exercising their rights [such as theright of navigation] ... under the Convention in the exclusive economic zone, States shall have dueregard to the rights and duties of the coastal State and shall comply with the laws and regulationsadopted by the coastal State.'

It clearly concerns who has jurisdiction over the area and whether the crime should fall under nationalor international law. If a crime at sea is deemed to be a pirate attack then according to the UNCLOSevery State may seize a ... ship taken by piracy and under the control of pirates, and arrest thepersons and seize the property on board. The courts of the State which carried out the seizure maydecide on the penalties to be imposed.'

In 1988 the United Nations created the Suppression of Unlawful Acts against the Safety of MaritimeNavigation Convention (SUA). A key difference between UNCLOS and SUA is that SUA requires

nations to accept individuals suspected of committing piracy as defined by seizing control over a shipby force. UNCLOS allows for warships to be used to combat piracy but specifically states that they areacting in a policing rather than a purely military role when doing so. While many countries havebecome signatories to the UNCLOS, few have created domestic laws that duplicate or reflect UNCLOSand even fewer have incorporated the language and legal parameters of SUA into their domestic law.For instance, Malaysia is one of signatory of UNCLOS but not SUA. However, we are just planning tocreate domestic laws which taking UNCLOS as reflection.

The UN International Maritime Organisation (IMO) based in London, has been keeping records ofpirate attacks since 1995. It also records armed robbery against ships, which is defined as anyunlawful act of violence or detention or any act of depredation, or threat thereof, other than an act ofpiracy, directed against a ship or against persons or property on board such ship, within a State'sjurisdiction over such offences'.These offences may occur on a ship at sea or in port as explained inthe first chapter.

The International Chamber of Commerce (ICC) runs the International Maritime Bureau (IMB), a piracy-reporting centre in Kuala Lumpur, Malaysia. It produces similar reports to the IMO and also an up-to-date piracy map locating high risk areas globally. The IMB groups piracy and armed robbery againstships. The two crimes together include any act of boarding any vessel with the intent to commit theft orother crime and with the capability to use force in furtherance of the act'.

Currently, anti-piracy patrols and interdictions are operating under UN Security Council Resolutions:1816, 1838, 1846 and 1851. These resolutions, which were passed in 2008, allow cooperating statesto pursue and capture pirates in Somali waters with the stipulation that consent must first be receivedfrom the Transitional Federal Government of Somalia and that the UN Secretary General must benotified.Even with newly approved resolutions, complications in applying international treaties and lawsarise. Further research in next chapter will grasp the legality dilemma in naval actions in suppressingpiracy in Somalia.

UNCLOS

SUA

UN Resolution

Law implication

Chapter 4

Implication of Law in Naval ActionsRecent scenario, while traveling under military escort, a MISC hired tanker was seized by pirates inthe Gulf of Aden on 21st Jan 2011.The actions taken by PasukanKhasLaut TLDM (PASKAL) impederegional and diplomatic resolutions as well as prosecutions. However, immediate action must be takento save life and limb of 23 crew members. Without support and participation of those in the shippingindustry, reducing piracy through military patrols is unlikely to generate long term results.

Chapter 5

Achievement in Suppressing Piracy

Conclusions

Legal Implication On Naval Action International Law EssayIntroductionChapter 1PiracyDefinitionChapter 2Piracy in SomaliaOrigin of Piracy in SomaliaThe Situation off SomaliaSomalia a Failed State Chapter 3The Law of the Sea and Contemporary PiracyUNCLOSSUAUN ResolutionLaw implicationChapter 4Implication of Law in Naval ActionsChapter 5Achievement in Suppressing PiracyConclusions