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Countering Piracy off Somalia: International Law and International Institutions

Published online by Cambridge University Press:  27 February 2017

J. Ashley Roach
J. Ashley Roach*
Affiliation:
United States Navy; Office of the Legal Adviser, U.S. Department of State
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Extract

Dealing with pirates off the coast of Somalia in the Gulf of Aden and the western Indian Ocean over the past two-plus years has highlighted the international law applicable to countering piracy at sea and the role of international institutions in that effort. This essay seeks to illuminate related issues with a view to improving counterpiracy action.

Type
Agora: Piracy Prosecutions
Information
American Journal of International Law , Volume 104 , Issue 3 , July 2010 , pp. 397 - 416
Copyright
Copyright © American Society of International Law 2010

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References

1 The most comprehensive treatment of the law of piracy is Alfred P. Rubin, the Law of Piracy (2d ed. 1998) (originally published as U.S. Naval War College, International Law Studies, Vol. 63, 1988, available at http://www.usnwc.edu/Research–Gaming/International–Law.aspx); see also Shearer, Ivan Piracy, in the Max Planck Encyclopedia of Public International Law (Wolfrum, R. ed., online ed. June 2008)Google Scholar.

2 See, e.g., Report of the Secretary–General on the Situation in Somalia, UN Doc. S/2009/684* (Jan. 8, 2010) (and previous reports of the UN secretary–general on the situation in Somalia); International Expert Group on Piracy off the Somali Coast, Piracy off the Somali Coast (Workshop Commissioned by the Special Representative of the Secretary General of the UN to Somalia Ambassador Ahmedou Ould–Abdallah, Nov. 21, 2008), at http://www.imcsnet.org/imcs/docs/somalia_piracy_intl_experts_report_consolidated.pdf. The author participated in the workshop and in drafting its report.

3 Piracy can also occur “in a place outside the jurisdiction of any State.” The meaning of this phrase is discussed in note 33 infra.

4 Convention on the High Seas, Art. 15, Apr. 29, 1958, 13 UST 2312, 450 UNTS 82; Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 UST 1606, 516 UNTS 205.

5 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397, available at http://www.un.org/Depts/los/index.htm [hereinafter LOS Convention].

6 Article 58(2) of the LOS Convention, supra note 5, provides that die Convention’s articles on piracy (100–07), among other articles of the high seas regime, “apply to the exclusive economic zone.” This provision is the logical concomitant to Article 58(1), which expressly preserves in the EEZ the high seas freedoms of navigation, overflight, laying of submarine cables and pipelines, and related rights and freedoms set forth in Article 87, the basic provision enumerating the freedoms of the high seas.

7 Accordingly, it can be misleading to state that the law of piracy applies only on the high seas without clarifying that, for these purposes, that includes the EEZ. See Kontorovich, Eugene “A Guantanamo on the Sea”: The Difficulty of Prosecuting Pirates and Terrorists, 98 Cal. L. Rev. 243, 253 (2010)Google Scholar (“Because the international law of piracy applies only on the ‘high seas,’ UNCLOS has die unintended effect of reducing the area where piracy can be internationally policed.”) (citing Martin Murphy, Piracy and UNCLOS: Does International Law Help Regional States Combat Piracy? in Violence At Sea: Piracy in the Age of Global Terrorism 155, 161–63 (Peter Lehr ed., 2007)). But see Murphy, supra, at 162 (“Most commentators agree that, in accordance with Article 58(2), the piracy provisions apply fully in the EEZs and that all states are therefore allowed to arrest and arraign any pirate found in them under the provisions of the Convention and their own domestic laws.”)

8 Even the pollution provisions in Article 56 do not apply to foreign warships because Article 236 expressly provides that” [t]he provisions of this Convention regarding the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, only on government non–commercial service.” Note in particular that this provision is not limited in its scope to Part XII, as it refers to the “provisions of this Convention” as a whole.

9 Murphy correctly makes the point that, while coastal states’ claims to restrict the military activities of foreign navies in the EEZ “may not appear to be directly relevant to piracy suppression,” if that trend is extended to other forms of “disorder at sea” such as weapons proliferation, drug and arms smuggling, and terrorism, constraints on navies will simply “encourage [the disorder] to grow,” particularly in the EEZs of “states that lack the will or resources to suppress disorder.” Murphy, supra note 7, at 163.

10 Convention for the Suppression of Unlawful Acts Against die Safety of Maritime Navigation, Mar. 10, 1988, S. Treatydoc. No. 101–1 (1989), 1678 UNTS 222 [hereinafter SUA Convention]; See International Maritime Organization [IMO], Code of Practice for the Investigation of Crimes of Piracy and Armed Robbery Against Ships, para. 2.2, IMO Assemb. Res. A. 1025 (26), annex (Dec. 2, 2009) (defining “armed robbery against ships” as” (. 1) any illegal act of violence or detention or any act of depredation, or threat thereof, other than an act of piracy [as defined in Article 101 of the Law of the Sea Convention], committed for private ends and directed against a ship or against persons or property on board such a ship, within a State’s internal waters, archipelagic waters and territorial sea; [and] (.2) any act of inciting or of intentionally facilitating an act described above.”). Unless otherwise indicated, links to IMO documents cited below are available at IMO Maritime Knowledge Centre, Information Resources on Piracy and Armed Robbery at Sea Against Ships (Apr. 29, 2010), at http://www.imo.org/includes/BlastData Only.asp/data_id%3D28402/Piracy_29April2010_.pdf. IMO Council reports are restricted to persons registered with the IMO, though some are posted online by the U.S. Coast Guard at http://www.uscg.mil/imo/council. The IMO News is available at http://www.imo.org/ (follow “Newsroom” hyperlink; then follow “IMO News Magazine” hyperlink).

11 Of course, the recognition of archipelagic waters resulted in a significantly larger marine area over which the archipelagic state is required to exercise its control, and prevent and punish criminal acts such as armed robbery occurring within its archipelagic waters and territorial sea.

12 LOS Convention, supra note 5, Arts. 92(1), 110(1). These provisions also apply in the EEZ to the extent compatible with the enforcement rights of the coastal state. Id., Arts. 56(1), 58(2).

13 See Daniel Heller–Roazen, the Enemy of All: Piracy and the Law of Nations (2009).

14 LOS Convention, supra note 5, Art. 110(l)(a) & (2).

15 Id., An. 105.

16 Dalton, Jane G. Ashley Roach, J. & Daley, John Introductory Note to United Nations Security Council: Piracy and Armed Robbery at Sea—Resolutions 1816, 1846 & 1851, 48 ILM 129 (2009)Google Scholar, reprinted in ASIL Newsletter, Jan./Mar. 2009, at 8. See generally UN Doc. S/PV.5902 (June 2, 2008) (statements of Libya and China).

17 SCRes. 1816, para. 7(a), (b) (June 2, 2008) (authorizing those states to” [e]nter 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 to “[u]se, 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”).

18 See). Ashley Roach, J. Enhancing Maritime Security in the Straits of Malacca and Singapore, 59 J. Int’l Aff. 97 (2005)Google Scholar.

19 SC Res. 1816, supra note 17, para. 9; UN Doc. S/PV.5902, supra note 16, at 2–3 (statement of Indonesia).

20 SC Res. 1816, supra note 17, paras. 7 (chapeau), 9.

21 SC Res. 1846, paras. 10–11 (Dec. 2, 2008); SC Res. 1897, paras. 7–8 (Nov. 30, 2009).

22 Kenyan authorities advised the author that they could prosecute pirates captured in Somalia’s territorial sea only if the acts of piracy for which they had been captured had occurred seaward of the territorial sea.

23 Dalton, Roach, & Daley, supra note 16, at 130.

24 SC Res. 1851, para. 6 (Dec. 16, 2008); SC Res. 1897, supra note 21, para. 7. After Resolution 1851 was adopted, several countries spoke to this development in their explanations of vote. The United Kingdom stated that this authorization included “using force if necessary, against pirate activities on land in Somalia.” UN Doc. S/PV.6046, at 4 (Dec. 16, 2008) (statement of Foreign Secretary David Miliband). Costa Rica made repeated reference to combating piracy “on the territory of Somalia.” Id. at 6 – 7 (statement of Mr. Urbina). The United States noted that the pirates’ “dens in Somalia provide[d] refuge from the naval ships in the Gulf of Aden,” and that because of the Council’s authorization “today,. . . States may pursue pirates into their place of operation on land.” Id. at 9 (statement of Secretary of State Condoleezza Rice). Subsequently, on February 24, 2010, EU ministers of defense agreed that from the end of March 2010 the objectives of Operation Atalanta will include “control of Somali ports where pirates are based, as well as ‘neutralising’ mother ships that allow the pirates to operate over 1000km from the coast.” Press Release, EU NAVFOR Somalia, Operation Atalanta Expands Its Mission on Piracy (Feb. 26, 2010), at http://www.eunavfor.eu/; see also Houreld, Katharine Warships Take New Strategy Against Somali Pirates, Seattle Times, Mar. 18, 2010, at http://seattletimes.nwsource.com/html/nationworld/2011377659_appiracy.html Google Scholar.

25 The letter of December 9, 2008, from the president of Somalia to the UN secretary–general requested “the international community to assist the TFG in taking all necessary measures to interdict those who use Somali territory and airspace.” SC Res. 1851, supra note 24, pmbl.; Cherbonneau, Louis US Wants Pursuit of Pirates Inside Somalia, Reuters, Dec. 10, 2008 Google Scholar, available in Lexis, News Library, Individual Publications File; UN Security Council Approves Anti–piracy Measure, Voice Am. News, Dec. 16, 2008, available in Lexis, News Library, All News File.

26 Law on the Territorial Sea and Ports, No. 37 of September 10, 1972, at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/index.htm.

27 UN Division for Ocean Affairs and the Law of the Sea, Chronological Lists of Ratifications of, Accessions and Successions to the Convention and the Related Agreements as of 01 March 2010, at id.

28 LOS Convention, supra note 5, Arts. 3, 57, respectively.

29 Id, An. 5.

30 Article 15(3) of the Convention on the High Seas, supra note 4, is the antecedent provision.

31 UN Doc. A/CONF.13/C.2/L.83,Art.39(l) (Apr. 1, 1958), in 4 United Nations Conference On the Law of the Sea, Official Records [hereinafter UNCLOS OR]: Second Committee, Annexes at 137, UN Doc. A/CONF.13/40, UN Sales No. 58.V.4, Vol. IV (1958). The UK proposal for draft Article 39 (“or any attempt to commit such acts”) was defeated in the Second Committee by a vote of 13–22, with 17 abstentions. 4 UNCLOS OR, supra, at 84, available at http://untreaty.un.org/cod/diplomaticconferences/lawofthesea–1958/vol/english/2nd_Cttee_vol_IV_e.pdf.

32 See infra text at notes 52–70.

33 The phrase “or in any other place outside the jurisdiction of any State” was drafted to ensure that there was international authority to seize and try pirates in territory that was not under the sovereignty or jurisdiction of a state, i.e., terra nullius, and thus did not have a territorial sovereign to suppress the pirates. Commentary on draft Article 39, cmt. (4), in Report of the International Law Commission on the Work of Its Eighth Session, [1956] 2 Y.B. Int’l L. Comm’n 253, 282, UN GAOR, 11 th Sess., Supp. No. 9, UN Doc. A/3159 (1956) [hereinafter 1956 ILC Report] (“[T]he Commission had chiefly in mind acts committed by a ship or aircraft on an island constituting terra nullius or on the shores of an unoccupied territory. But the Commission did not wish to exclude acts committed by aircraft within a larger unoccupied territory, since it wished to prevent such acts committed on ownerless territories from escaping all penal jurisdiction.”). Sir Gerald Fitzmaurice, the UK member, previously had given an example of “territory which was res nullius—for example, on certain Pacific islets and rocks where guano was collected.” Regime of the High Seas, para. 12, in [1955] 1 Y.B. Int’l L. Comm’n 51, 52, UN Doc. A/CN.4/SER.A/1955. Today, one author asserts that this phrase can only refer to waters adjacent to Antarctica, if anything. 2 D. P. O’Connell, The International Law of the Sea 971 (I. A. Shearer ed., 1984). States that do not make or recognize territorial claims in Antarctica may believe that the phrase “any other place outside the jurisdiction of any State” applies to that continent.

34 LOS Convention, supra note 5, Art. 105. The corresponding article of the Convention on the High Seas, supra note 4, Article 19, is worded identically.

35 On “catch and release,” see, for example, Britten, Nick Navy Regularly Releases Somali Pirates, Even When Caught in the Act, Telegraph.co.uk, Nov. 29, 2009, at http://www.telegraph.co.uk/news/worldnews/ Google Scholar.

36 Exchange of Letters on the Conditions and Modalities for the Transfer of Persons Suspected of Having Committed Acts of Piracy and Detained by the European Union–Led Naval Force (EUNAVFOR), and Seized Property in the Possession of Eunavfor, from Eunavpor to Kenya for Their Treatment After Such Transfer, EU–Kenya, Mar. 6, 2009, 2009 O.J. (L 79) 49, reprinted in 48ILM 751 (2009); Memorandum of Understanding [MOU] on the Conditions of Transfer of Suspected Pirates and Armed Robbers and Seized Property to the Republic of Kenya, Kenya–UK, Dec. 11, 2008 (on file with author); Memorandum of Understanding Concerning the Conditions of Transfer of Suspected Pirates and Armed Robbers and Seized Property in the Western Indian Ocean, the Gulf of Aden, and the Red Sea, U.S.–Kenya, Jan. 16, 2009 (on file with author). Kenya is reported to have invoked, on March 30, 2010, the six–month notice of termination of the Canadian, Chinese, Danish, EU, UK, and U.S. MOUs. Houreld, Katharine Warships Fill up with Pirates After Kenya Balks, Statesman.com, Apr. 15, 2010 Google Scholar, at http://www.statesman.com/news/world/warships–fill–up–wim–pirates–after–kenya–balks–578447.html. Later, Kenya reportedly agreed to “resume taking on new piracy cases.” Maliti, Tom UN: Donors to Spend$3.9Million to Prosecute Somali Piracy Suspects in Kenya, Seychelles, Canadian Press, June 15, 2010 Google Scholar, at http://ca.news.yahoo.eom/s/capress/100615/wo rid/piracy.

37 LOS Convention, supra note 5, Art. 100.

38 See, e.g., Eugene Kontorovich, Case Report: United States v. Shi, in 103 AJIL 734, 739 (2009).

39 SC Res. 1897, supra note 21, paras. 12, 14; SC Res. 1846, supra note 21, para. 14; SC Res. 1816, supra note 17, para. 11. Security Council Resolution 1918 (Apr. 27, 2010) reinforces this conclusion by calling for increased efforts to prosecute the Somali pirates.

40 Commentary on draft Article 43, in 1956 ILC Report, supra note 33, at 283.

41 E.g., Kontorovich, supra note 38, at 739 n.37.

42 McDougal, Myres S. & Burke, William T. The Public Order of the Oceans: A Contemporary International Law of the Sea 877 (1962)Google Scholar (emphasis added).

43 Commentary on draft Article 45, in 1956 ILC Report, supra note 33, at 283, cmt. (2).

44 Bernard H. Oxman first made this point in his remarks on October 16, 2009, at the 38th annual conference of the Canadian Council on International Law, and on October 17, 2009, at the Maritime Piracy Workshop of the American Society of International Law. See also Elizabeth Andersen, Benjamin Brockman–hawe, & Patricia Goff, Suppressing Maritime Piracy: Exploring the Options in International Law 7 (report on workshop sponsored by the American Society of International Law, the Academic Council on the United Nations System, and the One Earth Future Foundation, 2009), available at http://www.asil.org/files/suppressingmaritime– piracy.pdf (“Participants agreed that universal jurisdiction exists for piracy, grounded in international customary law and the Law of the Sea Convention. As such, any state is authorized to prosecute the crime of maritime piracy.”) (also on file with the ASIL library).

45 Commentary on draft Article 38, in 1956 ILC Report, supra note 33, at 282, cmt. (2).

46 Id., cmt. (1).

47 Kontorovich, supra note 7, at 253 (citing Commentary on draft Article 38, supra note 45). Kontorovich correctly notes that Article 105 “makes clear that prosecution itself is not obligatory.” Id. (citing Tullio Treves, Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia, 30 Eur. J. Int’l L. 399, 408 (2009))Google Scholar.

48 UN Doc. A/CONF.13/C.2/L.46 (Mar. 21, 1958), in 4 Unclos Or, supra note 31, Annexes, at 128. The proposal in the Second Committee was rejected by 11–37, with 1 abstention. 4 Unclos OR, supra, at 84. The summary records do not reflect the delegations’ views on this proposal.

49 Other provisions of the LOS Convention, supra note 5, do address other aspects of responsibility and liability, including Articles 106 and 110(3) on liability for boarding and seizure with unfounded suspicions or on inadequate grounds. See also, e.g., id., Arts. 31, 42(5), 139, 232, 235, 263, 304. Some modern international criminal law treaties that impose an explicit duty to act on parties do not contain any provision imposing state responsibility for failure to act. See text infra at notes 52–70.

50 4 Unclos OR, supra note 31, at 84.

51 SC Res. 1918, supra note 39, para. 2, “Calls on all States, including States in the region, to criminalize piracy under their domestic law and favourably consider the prosecution of suspected, and imprisonment of convicted, pirates apprehended off the coast of Somalia, consistent with applicable international human rights law.”

52 These treaties are examined in some detail in Douglas Guilfoyle, International Treaties, in Chatham House, Piracy and Legal Issues: Reconciling Public and Private Interests, Annex I, at 26 (Oct. l, 2009), d£ http://chathamhouse.org.Uk/research/africa/papers/view/–/id/799/.

53 SUA Convention, supra note 10; International Convention Against the Taking of Hostages, Dec. 17, 1979, TIAS No. 11, 081, 1316 UNTS 205 [hereinafter Hostages Convention]; International Convention for the Suppression of the Financing of Terrorism, Dec. 9, 1999, TIAS No. 13, 075, 39 ILM 270 (2000) [hereinafter Terrorism Financing Convention]; United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, TIAS No. 13, 127, 2225 UNTS 209 [TOC Convention]. As of May 31, 2010, the SUA Convention had 156 parties. As of June 3, 2010, the Hostages Convention had 167 parties, the Terrorism Financing Convention had 173 parties, and the TOC Convention had 155 parties. For ratifications and accessions to the SUA Convention, see http://www.imo. org; and for those to the latter three conventions, see http://treaties.un.org

54 Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Art. 8 bis, Oct. 14, 2005, S. Treaty Doc. No. 110–8 (2007) (entered into force July 28, 2010). See http://www.imo.org/. The United States gave its advice and consent to ratification of the protocol on September 25, 2008, see 103 AJIL 137 (2009), but Congress has not yet enacted the necessary implementing legislation to permit the United States to ratify the protocol. Article 8 bis reflects the experiences of the United States over the past twenty years in maritime law enforcement.

55 SUA Convention, supra note 10, Art. 3(1)(a).

56 Id., Art.3(1)(b)–(f).

57 Id, Art. 4.

58 See Chatham House, supra note 52, at 3.

59 Hostages Convention, supra note 53, Art. 1(1).

60 Id., Art. 1(2); see Winters, D. D. Letter to the Editor, Fed. Law., Feb. 2010, at 14 Google Scholar.

61 Terrorism Financing Convention, supra note 53, Alt. 2(1) & annex.

62 Id, Art. 2(5).

63 See Olad Hassan, Mohamed Pirate Payoffs Peed Big–Money Lifestyle in Somalia, AP, Dec. 6, 2009, available in LEXIS, News Library, Wire Service Stories FileGoogle Scholar.

64 See Lauren Ploch Et Al., Piracy Off the Horn of Africa 9–11 (Congressional Research Service, Report No. R40528, updated Apr. 19, 2010), available at http://opencrs.com/document/R40528/; Chatham House, supra note 52, at 4; U.S. Dep’t of Transportation, Maritime Administration, Somali Pirate Tactics (May 8, 2009), at http://www.marad.dot.gov/documents/Somali_Pirate_Tactics_8May2009.pdf.

65 TOC Convention, supra note 53, Art. 2(a).

66 Id., Art. 3(2)(d).

67 Id, Arts. 2(b), 6, 8, 23, respectively.

68 SUA Convention, supra note 10, Art. 5; Hostages Convention, supra note 53, Art. 2; Terrorist Financing Convention, supra note 53, Art. 4; TOC Convention, supra note 53, Arts. 5–11.

69 SUA Convention, supra note 10, Arts. 10–11; Hostages Convention, supra note 53, Arts. 8–10; Terrorism Financing Convention, supra note 53, Arts. 10–11; TOC Convention, supra note 53, Arts. 6–10, 16.

70 See, in this Agora, Gathii, James Thuo Kenya’s Piracy Prosecutions, 104 AJIL 416, 429–30 (2010)Google Scholar (discussing incorporation of international conventions in Kenya’s Merchant Shipping Act of 2009).

71 IMO Assemb. Res. A.545(13) (Nov. 17, 1983); A.683Q7) (Nov. 6, 1991); A.738(18) (Nov. 4, 1993).

72 IMO Assemb. Res. A.922(22) (Nov.29, 2001) (adopting the first version of the Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships); A.1025(26), supra note 10 (revised code of practice); A.979(24) (Nov. 23, 2005) (initial guidance on piracy and armed robbery against ships in waters off the coast of Somalia); A.1002(25) (Nov. 29, 2007) (revised guidance); Piracy and Armed Robbery Against Ships in Waters off the Coast of Somalia, A.1026(26) (Dec. 2, 2009) (third guidance).

73 See, in this Agora, Kontorovich, Eugene & Art, Steven An Empirical Examination of Universal Jurisdiction for Piracy, 104 AJIL 436, 438–40 (2010)Google Scholar.

74 Recommendations to Governments for Preventing and Suppressing Piracy and Armed Robbery Against Ships, IMO Doc. MSC.l/Circ. 1333 (June 26, 2009); Guidance to Shipowners and Ship Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed Robbery Against Ships, IMO Doc. MSC.1/Circ. 1334 (June 23, 2009); Piracy and Armed Robbery Against Ships in Waters off the Coast of Somalia, IMO Doc. MSC. 1/Circ. 1332 (June 16, 2009); Best Management Practices to Deter Piracy in the Gulf of Aden and off the Coast of Somalia Developed by the Industry, IMO Doc. MSC. l/Circ. 1335 (Sept. 29.2009); Information on Internationally Recommended Transit Corridor (IRTC) for Ships Transiting the Gulf of Aden, IMO Doc. SN. 1/Circ. 281 (Aug. 3, 2009).

75 IMO Press Briefing 25/2004, IMO Council Supports Initiative on Keeping Strategic Shipping Lanes Open (June 28, 2004); IMO Press Briefing 36/2004, IMO to Take Straits Initiative (Nov. 22, 2004); IMO Council Docs. C 92/D, para. 5.3 (July 12, 2004); C 93/D, para. 15.2 (Nov. 22, 2004); C 93/15 (Oct. 7, 2004) (IMO Council documents cited herein on file with author).

76 IMO Press Briefing 29/2007, Milestone Agreement Reached on Co–operation over the Straits of Malacca and Singapore (Sept. 18, 2007).

77 IMO Assemb. Res. A.979(24), supra note 72.

78 See IMO Press Briefing 48/2005, IMO Assembly Calls for Action on Piracy off Somalia (Nov. 24, 2005); IMO Press Briefing 08/2006, Security Council Urges Action over Piracy off the Coast of Somalia in Line with IMO Assembly Resolution (Mar. 17, 2006).

79 IMO Press Briefing 17/2007, IMO Council Agrees Secretary–General’s Proposal for Action on Piracy off Somalia (June 28, 2007).

80 IMO Press Briefing 24/2007, UN Secretary–General Confirms Support for IMO Initiative on Somalia (July 11, 2007).

81 IMO Assemb. Res. A.1002(25), supra note 72; IMO Assembly Issues Renewed Call for Action on Piracy off Somalia, IMO News, No. 1, 2008, at 9; IMO Press Briefing 47/2007, IMO Assembly Issues Renewed Call for Action on Piracy off Somalia (Nov. 29, 2007). In paragraph 6 of Resolution 1838 (Oct. 7, 2008), the UN Security Council urged states to take the actions set out in Resolution A.1002(25).

82 SC Res. 1816, supra note 17; see IMO Press Briefing 24/2008, IMO Welcomes Security Council Moves on Somali Piracy (June 3, 2008).

83 IMO Press Release 49/2008, United Nations Secretary General Supports Anti–piracy Mandate Extension (Oct. 20, 2008).

84 Report of the Secretary–General on the Situation in Somalia, UN Doc. S/2008/709 (Nov. 17, 2008); UN Doc. S/PV.6020, at 6–8 (Nov. 20, 2008) (statement of Efthimios Mitropoulos, IMO secretary–general); IMO Chief Makes Direct Appeal to Security Council for Somalia Piracy Action, IMO News, No. 4, 2008, at 7; IMO Press Briefing No. 54, IMO Chief Makes Direct Appeal to Security Council for Somalia Piracy Action (Nov. 21, 2009).

85 IMO Council Doc. C 102/14/Annex, annex to attachment 1 (Apr. 3, 2009).

86 IMO Council Doc. C 100/7/Annex (Apr. 23, 2008).

87 Data from IMO e-mails to author as of March 23, 2010 (on file with author).

88 See Contact Group on Piracy off the Coast of Somalia, Chairman’s Conclusions, 4th Meeting of Working Group 2 on Legal Issues 3 (Nov. 26–27, 2009) [hereinafter Contact Group WG 2] (on file with author).

89 PLOCH ET AL., supra note 64, at 29.

90 UN Office on Drugs and Crime [UNODC], About UNODC (2010), at http://www.unodc.org/unodc/en/about–unodc/.

91 International Expert Group on Piracy off the Somali Coast, supra note 2. This report was used extensively in the preparation of the U.S. National Security Council’s counterpiracy policy guidance, Countering Piracy off the Horn of Africa: Partnership & Action Plan (Dec. 2008), at http://www.marad.dot.gov/documents/Countering_Piracy_Off_The_Horn_of_Africa_–_Partnership_Action_Plan.pdf.

92 UNODC/EC, Joint European Commission/UNODC Programme: EU Support to the Trial and Related Treatment of Piracy Suspects (May 2009) (on file with author); see also UNODC, Combating Maritime Piracy in the Horn of Africa and the Indian Ocean. Increasing Regional Capacities to Deter, Detain and Prosecute Pirates, at http://www.unodc.org/easternafrica/en/about–unodc–eastern–africa/ongoing–projects.html.

93 UNODC, Counter Piracy Programme (Nov. 2009), at http://www.unodc.org/documents/easternafrica/piracy/UNODC_Counter_Piracy_Programme.pdf; Linden, Eric van der Op–Ed, Piracy: “Why Kenya Should Care, Daily Nation (Kenya), Apr. 7, 2010 Google Scholar, at http://www.nation.co.ke/oped/Opinion/Why%20Kenya%20should%20care%20about%20piracy/–/440808/894724/–/6ucaw8z/–/ (written by the head of the EU delegation to Kenya); see also Unodc, Seychelles to Establish Centre for Piracy Trials (May 5, 2010), at http://www.unodc.org/unodc/en/frontpage/2010/May/seychelles–to–establish–centre–for–piracy–trials.html; UN News Centre, Seychelles to Launch UN–Backed Courts to Combat Piracy (May 5, 2010), at http://www.un.org/news/.

94 Council Joint Action 2008/851/CFSP, 2008 O.J. (L 301) 33; Corrigenda to id., 2009 O.J. (L 253) 18; see also European Union Committee, Combating Somali Piracy: The EU’S Naval Operation Atalanta: Report with Evidence, 2009–10, H.L. 103, available at http://www.publications.parliament.uk/pa/ld200910/ldselect/ldeucom/103/103.pdf; Ploch Et Al., supra note 64, at 21.

95 The initial deployment, Operation Allied Provider, commenced on October 15, 2008. Ploch Et Al., supra note 64, at 20–21; Nato, Counter–piracy Operations (Apr. 30, 2010), at http://www.nato.int/cps/en/natolive/topics_48815.htm#provider.

96 The Council of the European Union extended Operation Atalanta until December 12, 2010. Council Decision 2009/907/CFSP, 2009 O.J. (L 322) 27. NATO has extended Operation Ocean Shield until 2012. NATO, supra note 95.

97 Combined Maritime Forces Press Release CMF032–10, Counter–piracy Task Force Efforts Reduce Numbers of Successful Attacks (Apr. 29, 2010), at http://www.cusnc.navy.mil/articles/2010/CMF032.html.

98 Dalton, Roach, & Daley, supra note 16.

99 See supra text at notes 16–25.

100 See supra note 39.

101 UN Doc. S/PV.6046, supra note 24, at 4 (statement of UK foreign secretary Miliband).

102 SC Res. 1851, supra note 24, para. 4.

103 UN Doc. S/PV.6046, supra note 24, at 9 (statement of U.S. secretary of state Rice).

104 For a useful compilation of these and other counterpiracy initiatives, with links, see U.S. Dep’t of Transportation, Maritime Administration, Horn of Africa Piracy, at http://www.marad.dot.gov/news_room_landing_page/horn_of_africa_piracy/horn_of_africa_piracy.htm [hereinafter Horn of Africa Policy].

105 UN Press Release AFR/1966, PA/6, United Nations Approves Funding to Help Somalia, Neighbouring Countries Prosecute Piracy Suspects (Apr. 23, 2010), at http://www.un.org/News/Press/docs/2010/afrl966.doc.htm.

106 SC Res. 1918, supra note 39, pmbl.

107 There were three cases involving a total of twelve Somali pirates in U.S. federal district courts in early 2010. Press Release, U.S. Attorney, Eastern District of Virginia, Alleged Somali Pirates Indicted for Attacks on Navy Ships (Apr. 23, 2010) (attacks on USS Nicholas, Mar. 31, 2010, and USS Ashland, Apr. 10, 2010), at http://www.justice.gov/usao/vae/; Press Release, U.S. Attorney, Southern District of New York, Manhattan U.S. Attorney Files Superseding Indictment Against Alleged Somali Pirate Charging Involvement in Two Additional Hijackings (Jan. 12, 2010) (attack on M/V Maersk Alabama, Apr. 8, 2009, and on two other ships); id, Somali Pirate Pleads Guilty in Manhattan Federal Court to Maritime Hijackings, Kidnappings, and Hostage Takings (May 18, 2010), both at http://www.justice.gov/usao/nys/pressreleases/ (accused Muse avoiding mandatory life sentences for several offenses charged in the superseding indictment by pleading only to the lesser offenses).

108 The International Tribunal for the Law of the Sea issued a press release clearly stating that it had no authority to try pirates, notwithstanding press reports to the contrary. ITLOS/Press 135, Clarification (Apr. 24, 2009), at http://www.itlos.org/. The government of Turkey has suggested that such a court be established. Note Verbale from the Permanent Mission of Turkey to the United Nations, UN Doc. S/2010/3, annex (Jan. 4, 2010). The Russian Federation, the Netherlands, and Portugal had earlier made similar proposals in the context of meetings of the Contact Group on Piracy off the Coast of Somalia, and its Working Group 2. Contact Group WG 2, supra note 88; Contact Group, Communique of the 5th Plenary Meeting (Jan. 28, 2010), at Horn of Africa Policy, supra note 104 (hyperlink). Until the adoption of Security Council Resolution 1918, there appeared to be little support for these proposals. See Chatham House, supra note 52, at 8. The U.S. government has opposed the creation of a new international tribunal, while supporting the efforts of the European Union, the Unodc, and the IMO to enhance local capabilities. The U.S. vote in favor of Resolution 1918, which requests that the secretary–general report on options for possible proceedings in international or mixed tribunals, may reflect a change in appreciation of the circumstances in the region. See text at note 118 infra.

109 See, e.g., Crimes Act 1914, §§51–56 (Austl.), at http://www.ausdii.edu.au/au/legis/cth/consol_act/cal9l482/; Canada Criminal Code, R.S.C., ch. C–46, §74 (1985), available at http://laws.justice.gc.ca/PDF/Statute/C/C–46.pdf; Crimes Act 1961, No. 43, §§92, 95–97 (N.Z.), at http://www.legislation.govt.nz/default.aspx. For the relevant laws of Kenya, see infra note 111.

110 See, for example, those laws separately defining “piratical acts” with a national nexus: Canada Criminal Code, supra note 109, §75; Crimes Act 1961, supra note 109, §§93–94 (N.Z.); Merchant Shipping and Maritime Security Act, 1997, c. 28, §26, sched. 5 (UK) (LOS Convention definition), available at http://www.opsi.gov.uk/acts/; Piracy Act, 1850, c. 26, 13 & 14 Vict., available at id.; Piracy Act, 1837, c. 88, 1 Vict., available at id.; 18 U.S.C. §1651 (2006) (piracy under the law of nations).

111 An Act to Impose the Death Penalty on Certain Heinous Crimes, Rep. Act No. 7659, §3, Art. 122, as amended, Rev. Penal Code, Book 2, tit. 1, ch. 1 (Dec. 13, 1993) (Phil.), available at http://www.lawphil.net/statutes/repacts/ral993/ra_7659_1993.html; Merchant Shipping Act, Act No. 4 of 2009, §369(1) (Kenya) (LOS Convention definition of piracy); PENAL CODE, Cap. 63, §69, Penal Code (Amendment) Act, No. 24 of 1967, §6, Kenya Gazette, Supp. No. 67, Acts No. 11, at 150, 153 (1967) (repealed) (“Any person who, in territorial waters or upon the high seas, commits any act of piracy jure gentium is guilty of the offence of piracy.”).

112 E.g, 18 U.S.C. §1651(2006).

113 A Collection of Piracy Laws of Various Countries (Stanley Morrison ed.), in 5 Harvard Research in International Law (1932), reprinted in 26 AJIL Supp. 887 (1932).

114 Unodc, International Response and Security Council Resolutions, at http://www.unodc.org/.

115 Law on Punishment of and Measures Against Acts of Piracy, 2009 (entered into force July 24, 2009), at http://www.sof.or.jp/en/topics/pdf/09_01.pdf (provisional trans.), http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/index.htm (trans, of draft). For Kenyan law, see supra note 111. See also Gathii, supra note 70, at 421 & n.38, 429–30.

116 Multi–million Dollar TC Programme Approved, IMO News, No. 3, 2009, at 13.

117 SC Res. 1918, supra note 39, paras. 1–3.

118 Id., para. 4.