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CAUSES OF MARITIME PIRACY OFF THE SOMALI COAST; WHAT SOLUTIONS CAN THE REGIONAL
OR INTERNATIONAL COMMUNITY OFFER?


Robert Ongom Cwinya-ai*.


September 29
th
, 2009.

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The Issue:

The Introduction; Underlying factual points:

The following maritime occurrences are among many that have since taken the
international maritime community by storm.
Concerns about the unlawful acts which threaten the safety of ships and the
security of the passengers and crews grew during the 1980s, with reports of
crews being kidnapped, ships being hijacked, deliberately run aground or blown
up by explosives. Passengers were threatened and sometimes killed.

The seizure of the Faina, a Ukrainian-flagged vessel transporting 33 Russian
tanks and ammunition to Kenya for delivery to the Sudanese Peoples Liberation
Army in Sudan(SPLA) was startling in its audacity and haul.
Even more alarming, however, was the November 2008 hijacking of the 1,000-foot
supertanker Sirius Star which occurred nearly 500 miles East of Kenya. The
Liberian-flagged vessel, which is owned by Aramco in Saudi Arabia, was carrying
more than $100 million in oil to the United States when pirates seized the ship
and the twenty-five crewmembers and dropped anchor near the Somali coast.
Admiral Michael Mullen, Chairman of the Joint Chiefs of Staff, was stunned by
the capture, which sent shocks through global energy markets. The seizure of a
supertanker was unprecedented, and the daring attack so far from shore suggested
the pirates were using the shipping industrys open-access automatic
identification system (AIS) to intercept merchant ships. Since January, more
than 80 ships have been hijacked off the dangerous waters of Somalia, and the
ransom for some vessels fetches several million of dollars.

Causes of the Somali Piracy; why it flourishes:

Why does piracy subsist off the Somali coast?
Somali piracy affects maritime areas and busy sea lanes as wide as from the Horn
of Africa (The Gulf of Aden), off the Somali coastal waters, or Western Indian
Ocean off the coastal waters of East Africa.
Piracy flourishes at the seams of globalization because jurisdiction is unclear
and pirates exploit the inherent isolation of individual vessels and nations.
Somalia is a failed, lawless state and the pirates are more powerful than the
ruling government. Regional powers have underdeveloped law enforcement and
judicial systems and suffer from a severe lack of resources. Not only do they
have insufficient numbers of lawyers and judges and confinement facilities, they
lack essential items and equipment such as communications systems, computers and
printers, and even are missing basic office supplies.

Ruling:

Resolution A.584(14):

Convention for the suppression of unlawful acts against the safety of maritime
navigation, 1988, adopted 10 March 1988, entry into force on March 1, 1992,
Resolution A.584 (14):
The assembly adopted resolution A.584(14) measures to prevent unlawful acts
which threaten the safety of ships and security of their passengers and crew
which notes with great concern the danger to passengers and crews resulting
from the increasing number of incidents involving piracy, armed robbery and
other unlawful acts against or on board ships, including small crafts, both at
anchor and underway.

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The United Nations Convention on the Law of the Sea:

The constitution for the worlds oceans, defines maritime piracy as an illegal
act of violence or detention committed for private ends. This is distinguished
from maritime terrorism, which is committed for political ends.

The question then becomes: On whose shoulder does the authority or
responsibility to prosecute such culprit fall?
Only warships and military aircraft or vessels in government service, however,
may exercise this authority. And criminal courts and warships and military
aircraft or vessels in government service, may exercise this authority.

Boarding hijacked vessels or pirate ships may be conducted under a variety of
legal rationales, including the consent of the flag state under Articles 92 and
94 of the Law of the Sea, the exercise of the right of self-defense under
article 51 of the United Nations (UN) Charter, the right of visit a vessel under
article 110 of the Law of the Sea if there are reasonable grounds to believe it
is engaged in piracy, and in some cases, the extension of port state control
measures.
Under international law, any of these nations could assert jurisdiction,
including the state of registry or flag of the attacked vessel, the nationality
of any of the victim crew, and in some cases coastal and port states in the
region.


The Analysis:

Maritime piracy is experiencing a renaissance not seen since the period of the
Barbary pirates. Instability from maritime piracy in the Gulf of Aden is sending
ripples throughout the global supply chain, which is reeling from falling rates
brought on by the worldwide economic slowdown.
The resurgence is occurring along critical sea lines of communication. Twenty
thousand ships pass through the Gulf of Aden adjacent to the Indian Ocean each
year, transporting cargo that includes 12% of the worlds daily oil supply.
Though it is thought that it is impossible to completely eradicate maritime
piracy, the threat can be greatly reduced if we broaden efforts to work with
international partners. Significantly reducing criminal acts at sea in an area
that stretches the distance from Cape Town to Mombasa or Miami to Maine,
however, poses significant logistical, operational, and political challenges
which require maritime enforcers to work smarter, not harder. This means that
although there have been greater calls for expanded naval patrols in the Western
Indian Ocean, these efforts will not be effective until the enforcers change the
way they address the problem.
What is needed now is negotiation of a network of shipping states, regional
partners and major maritime powers that can collaborate on how to respond to
piracy attacks.
Reducing criminal acts at sea in an area that stretches the distance similar to
Miami to Maine, however, poses significant logistical, operational,and political
challenges which require authorities to work smarter, not harder. This means
that although there have been greater calls for expanded naval patrols in the
Western Indian Ocean, these efforts will not be effective until the way they
address the problem is changed. What is needed now is negotiation of a network
of shipping states, regional partners and major maritime powers that can
collaborate on how to respond to piracy attacks.

Recent Developments:

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Piracy in the Gulf of Aden is out of control, reports Captain Pottengal
Mukundan, Director of the International Maritime Bureau. The area features the
highest risk of maritime piracy in the world. To counter the threat, nations
have for the first time begun to employ maritime (naval) power in the Horn of
Africa. Warships from NATO and the European Union have deployed to the Gulf of
Aden to participate in the multinational Combined Task Force 150. Naval forces
from the United Kingdom, Denmark, the Netherlands, France, Pakistan, India,
Iran, Russia and other countries patrol the area. Furthermore, private military
security contractor Blackwater has made available to commercial shippers the
services of a security escort ship in the Gulf of Aden that includes a
helicopter.

These patrols have had limited success. In November, Russia, Britain, and India
separately thwarted multiple piracy attacks. During the summer and fall, the
U.S. 5th Fleet repelled two dozen pirate attacks.1 But for every success there
are many attacks that go undeterred and the pirates have only become bolder.
Naval forces have been unable to prevent most attacks. Moreover, once pirates
successfully board and hijack a ship, they take the crew hostage and threaten to
sink the vessel, limiting options by on-scene warships to rescue the crew and
free the vessels. Incredibly, 250 seafarers and dozens of ships are being held
for ransom by pirates in the area of Harardhere, Somalia, a situation
reminiscent of the Barbary pirates. Vice Admiral Gortney, commander of the U.S.
Fifth Fleet, said that coalition warships that patrol the Gulf of Aden have been
so frustrated by piracy attacks against merchant shipping that the vessels will
have to assume that if they are attacked they are on their own.2
After Sirius Star was seized, Odfjell, a leading Norwegian shipping group,
suspended transits through the area due to concerns over safety. Danish shipper
Maersk, one of the worlds largest, is considering forgoing the Suez Canal and
routing ships around the Cape of Good Hope in order to avoid piracy-prone
Somalia. In either case, the cost of shipping and the time of transit would
increase.

In 2006, the British Parliament concluded that the growth in piracy over the
past decade represents an appalling amount of violence against the maritime
community. Maritime piracy, which includes hostage-taking or kidnapping, and
even murder, imposes human and economic costs on shippers which deter legitimate
marine commerce. In the Indian Ocean and Pacific Ocean, the cost of maritime
piracy costs shipping companies between $13 billion and $15 billion annually in
losses.3 Beyond the immediate threat to crews, property and ships, maritime
piracy endangers sea lines of communication, interferes with freedom of
navigation and the free flow of commerce, and undermines regional stability.
Piracy also is corrosive to political and social development in Africa,
interrupting capital formation and economic development. Left unchecked, the
cumulative effect of piracy eventually can lead to the decline of vibrant
commercial centers.
It was further observed that in the late sixteenth century, for example, piracy
from Algerian and Tunisian corsairs triggered an irreversible decline in the
viability of Venice as a trading city state.

The American Strategy:

Since its founding, the United States has fought maritime piracy and championed
freedom of the seas. Piracy prompted President George Washington to launch the
Navy by building six frigates to operate against the corsairs that preyed on
shipping in the Mediterranean. Many of the most important federal court cases in
the 19th century were piracy cases. But the large naval forces in Europe kept a
check on piracy and the sea lanes open during the first half of the 20th
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century, and the superpowers contained piracy throughout the Cold War. After a
long decline, piracy returned as a concern only during the last decade. In 2006,
an American warship, the USS Churchill thwarted an attack off the Somali coast,
detaining 10 pirates. After the Churchills interdiction, Navy lawyers in the
Pentagon conducted a review maritime and international law and policy, and
proposed a national policy to articulate U.S. interests in combating maritime
piracy. The result was development of a comprehensive and sweeping piracy policy
governing diplomatic and legal action to fight piracy, which President Bush
signed in the summer of 2007. The policy was annexed to the National Strategy
for Maritime Security and establishes the framework for warships that encounter
or interrupt acts of maritime piracy and armed robbery at sea, as well as for
agencies charged with facilitating the prosecution of perpetrators and the
repatriation of victims and witnesses. The document sets forth several national
goals, including prevention of piracy, deterrence through maritime presence,
vulnerability assessments, accountability, preservation of freedom of the seas,
protection of sea lines of communication, and a commitment to broaden
international efforts to combat piracy. Perhaps most importantly, the US policy
emphasizes collaborative strategies by states and the maritime sector to prevent
pirate attacks and other criminal acts of violence against US vessels, persons
and interests.
To fulfill the goals of the policy, United States should accelerate efforts to
partner with shipping states, regional coastal states and major port states to
create a more effective international legal network returned as a concern only
during the last decade. In 2006, an American warship, the USS Churchill thwarted
an attack off the Somali coast, detaining 10 pirates. After the Churchills
interdiction, Navy lawyers in the Pentagon conducted a review maritime and
international law and policy, and proposed a national policy to articulate U.S.
interests in combating maritime piracy. The result was development of a
comprehensive and sweeping piracy policy governing diplomatic and legal action
to fight piracy, which President Bush signed in the summer of 2007. The policy
was annexed to the National Strategy for Maritime Security and establishes the
framework for warships that encounter or interrupt acts of maritime piracy and
armed robbery at sea, as well as for agencies charged with facilitating the
prosecution of perpetrators and the repatriation of victims and witnesses. The
document sets forth several national goals, including prevention of piracy,
deterrence through maritime presence, vulnerability assessments, accountability,
preservation of freedom of the seas, protection of sea lines of communication,
and a commitment to broaden international efforts to combat piracy. Perhaps most
importantly, the US policy emphasizes collaborative strategies by states and the
maritime sector to prevent pirate attacks and other criminal acts of violence
against US vessels, persons and interests.
To fulfill the goals of the policy, United States should accelerate efforts to
partner with shipping states, regional coastal states and major port states to
create a more effective international legal network.

The United States experience further suggests that articulation of a succinct
and consolidated government policy pertaining solely to piracy refines
interagency coordination and clarifies what is important. The process of
developing a national piracy policy further focused the interagency community on
reaching agreement on defining the problem and creating a common set of goals
and objectives and the means to achieve them.

There are also a number of related US efforts that support piracy repression.One
with great potential to expand international cooperation and engagement is the
Global Maritime Partnership. The concept embraces a figurative 1,000-ship
navy, representing the idea that no nation can do it alone. The goal of GMP
is to leverage the benefits of working together, and capitalizing on
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international law to facilitate closer collaboration among states. Admirals from
Ghana, India, Indonesia, Japan, the Netherlands and Norway, among others, have
recognized the potential value of the concept in relation to increasing
effective international cooperation to counter piracy.
Admirals from Ghana, India, Indonesia, Japan, the Netherlands and Norway, among
others, have recognized the potential value of the concept in relation to
increasing effective international cooperation to counter piracy.4 Recently the
Chief of Naval Operations reemphasized the importance of international
collaboration in his 2009 guidance, and piracy is an ideally fertile area for
increased cooperation.5

What to do with PUCs. The problems detainers are faced with:

A tremendously difficult problem naval powers face with piracy is not a lack of
operational resources to counter the threat,but what to do with the perpetrators
if they are caught. Once pirates are detained and become persons under
control, or PUCs, there are currently no good options.
What does the dog do when it catches the cat? Additionally, what should be done
with victims and witnesses, some who may be injured? Determining which state
should prosecute pirates that are seized at sea in international waters is
particularly vexing.
It is typical of the vessels attacked by Somali pirates that the ship is
registered in one state, such as Greece, owned by a corporation located in
another state, such as South Korea, and operated by a crew comprised of
nationals of several additional states, such as the Philippines and Pakistan.
Furthermore, the vessel is likely to be transporting either containerized cargo
or bulk commodities owned by companies in yet another country, and the piracy
attack may have been interrupted by a warship from yet another state. Although
any state may assert jurisdiction in the case of a universal crime, each of
these countries has a special interest in the outcome of the prosecution. On the
high seas or in any other place outside the jurisdiction of a state, such as an
ungoverned area like Somalias territorial seas, any nation may take action
against piracy. Pirated ships may be boarded, the pirates can be detained and
the property on board the vessel can be seized and submitted to admiralty and
criminal courts.

Effective Jurisdictional question:

The question then becomes: On whose shoulder does the authority or
responsibility to prosecute such culprit fall?
Only warships and military aircraft or vessels in government service, however,
may exercise this authority. And criminal courts and warships and military
aircraft or vessels in government service, may exercise this authority.

Boarding hijacked vessels or pirate ships may be conducted under a variety of
legal rationales, including the consent of the flag state under Articles 92 and
94 of the Law of the Sea, the exercise of the right of self-defense under
article 51 of the United Nations (UN) Charter, the right of visit a vessel under
article 110 of the Law of the Sea if there are reasonable grounds to believe it
is engaged in piracy, and in some cases, the extension of port state control
measures.
Under international law, any of these nations could assert jurisdiction,
including the state of registry or flag of the attacked vessel, the nationality
of any of the victim crew, and in some cases coastal and port states in the
region.
Typically, none of the above mentioned legal authorities are great options
because of the time it takes to sort the logistics and legal issues. Under the
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same token captured pirates cannot be turned over to local authorities in
Somalia because in many cases there are no responsible local authorities in the
failed state. Moreover, some tribal regions might either let the pirates go or
impose excessive, disproportionate punishments under tribal justice or Islamic
law. The great expense and logistical and legal burdens of transporting the
pirates to a Western country for prosecution are daunting. Flag states, often a
country with an open registry but few judicial and logistic resources such as
Panama or Liberia, often have limited capacity to prosecute.
In 2006, the difficulties to prosecute caused the United States to provide
temporary custody for Somali pirates on board US warships for months at a time.
These difficulties with PUCs are the reason several countries, including France
and Britain, have simply returned captured pirates to the beach without taking
any legal action. Yet the same difficulty, have also caused some rogue navy
officials to deliver irrational rough justice on captured pirates and dispose
off the culprits at sea in frustration.

Although it is always preferable to work through regional states to conduct
piracy prosecutions, the countries on the east coast of Africa have nascent
legal systems and are notoriously lacking in resources for law enforcement and
the judiciary. The former chairman of the Mongla Port Authority in Bangladesh
suggested that a major difficulty in combating maritime robbery in the country
is that there are no national laws to apprehend and prosecute pirates.6. Thus,
while piracy is a universal crime, states that lack vessels and aircraft to
patrol their coastal zone or the legal infrastructure to bring pirates to
justice are not able to play a constructive role in solving the crisis.
Secondly, these states also see piracy as not their problem, since it often
occurs off in the open seas, far off from the East African coasts, often
involving foreign vessels.

Effective action against piracy requires immediate action to develop policy
frameworks and legal capacity of these states. In January 2006 an Indian dhow,
the Delta Ranger, was overtaken in international waters by Somali pirates armed
with rocket-propelled grenades and AK-47s. The USS Winston S. Churchill (DDG 81)
was in the vicinity and seized control of the vessel and detained the pirates.
The pirates were transferred to Mombasa, Kenya and later convicted and sentenced
to confinement for seven years. This was a noteworthy example of effective
police and legal action, and replicating this success should be our focus.
Currently, however, each case is addressed in ad hoc fashion and there is no
mechanism to untangle the diplomatic and logistical knot.

Untangling the International Legal red tape with Coordination:

How do we shorten the legal procedures and move quickly to prosecute the
maritime criminals? Coordination, not kinetics, will solve the piracy problem.
Maritime piracy is a violation of international law and a universal crime that
imposes a duty on all states to take action. But it must also be remembered
that, those states that have ineffective or no navies, do not have such laws on
their legal system menu. The United Nations Convention on the Law of the Sea,
the constitution for the worlds oceans, defines maritime piracy as an illegal
act of violence or detention committed for private ends. This is distinguished
from maritime terrorism, which is committed for political ends. While any State
may lawfully act to suppress maritime piracy, only major maritime powers that
operate blue water fleets and naval aviation have the capability to patrol sea
lanes for long periods.
However, international law is now leading to further developments in the form of
organizations or bodies like International Maritime Organization (IMO).

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International Maritime Organization (IMO):

Developing the modern legal capacity and frameworks in international law
necessary to defeat piracy begins at the International Maritime Organization
(IMO) in London. The IMO is the specialized UN agency for maritime matters and
has 167 member states. Because the organization is technical rather than
political, and operates under a consensus decision making rules, it has served
as an effective, no-nonsense venue for making shipping safer and more secure. In
2005, the IMO adopted Resolution A.979(24), which strongly urged nations to take
legislative, judicial and law enforcement action to receive and prosecute or
extradite pirates arrested by warships or other government vessels and to
continue consultations by which technical assistance can be brought to regional
states to enhance their capacity for repressing piracy. Addressing the problem
of piracy off the coast of Somalia, in November 2007 the IMO adopted Resolution
A.1002(25) which called up regional states in East Africa to conclude an
international agreement to prevent, deter and suppress piracy. , which strongly
urged nations to take legislative, judicial and law enforcement action to
receive and prosecute or extradite pirates arrested by warships or other
government vessels and to continue consultations by which technical assistance
can be brought to regional states to enhance their capacity for repressing
piracy.

Last summer, and at the prompting of the IMO, the UN Security Council turned its
attention toward combating piracy, adopting Resolution 1816. Acting under
Chapter VII, the Security Council called on flag, port and coastal states of the
victims and perpetrators of piracy to cooperate extensively in counter-piracy
actions off the Somali coast. In particular, states should cooperate in
determining jurisdiction, and in the investigation and prosecution of pirates.
It is especially important that once a piracy attack is disrupted at sea states
coordinate to provide real-time disposition and logistics assistance with
respect to the suspected pirates, victims and witnesses.
The Security Council resolution does not compel a state to accept suspected
pirates, victims or witnesses, all referred to as persons under control, or
PUCs, from a warship, but it provides an umbrella of political legitimacy that
should make it easier to participate in collective action.

The coordination provisions of resolution 1816 emphasize the importance of
cooperation in repressing piracy through routine patrols to deter the crime, as
well as action after the pirates are caught to bring them to justice.
In the past, coordination on disposition and logistics issues associated with
PUCs was ad hoc and unfolded haphazardly, but that could change with the
declaration from the Security Council that strengthens multilateral
expectations. Disposition and logistics assistance includes provision of medical
care to injured persons, conducting interviews and an investigation of the
incident, providing a venue for detention and prosecution of suspects, arranging
lodging and repatriation from crew who invariably hail from disparate regions
and vessel services.
The resolution also solved one of the most vexing issues associated with piracy
pirates capitalizing on the lack of Somali government control over territorial
waters by grabbing ships and hostages in international waters and then fleeing
inside territorial waters to evade capture. Now, warships have a mechanism under
the auspices of the Security Council to cooperate with the Transitional Federal
Government of Somalia and conduct hot pursuit of pirates that seek refuge in
Somalias territorial sea.

Recent collaboration to develop international law to suppress maritime piracy
has exceeded the most optimistic predictions of even a few years ago, laying the
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groundwork for new authorities and partnerships. Collaboration is particularly
vital because most of the oceans surface is not under state jurisdiction, and
no single nation has the naval capability to effectively patrol the vast areas
affected by piracy.
Although the UN and the IMO have taken steps to broaden international legal
authorities available to suppress maritime piracy, much more can be done. The
fight against piracy should be recalibrated to become even more effective. The
next step requires a smarter approach to counter-piracy operations, logistics
and the legal endgame by developing agreements among the major shipping nations
and regional states to enable real-time coordination for dealing with PUCs.

Further New Developments:

In the United States, the interagency community resolves difficult national-
level maritime issues pursuant to a maritime operational threat response (MOTR)
plan that facilitates rapid and real-time communication among the Department of
State, the Department of Defense, the Coast Guard and other agencies. Each
agency is required to operate continuously a tactical watch center that can make
agency decisions arising from time-sensitive maritime diplomatic issues on short
notice. In the U.S. government, the MOTR process is used to quickly form
administration positions and courses of action on the full range of maritime
exigencies, including interdiction of foreign drug trafficking fast boats,
interception of migrants at sea and PUCs obtained during counter-piracy
operations in the Western Indian Ocean. Internationally, the problem of PUCs can
be solved through development of an international MOTR plan that contains 24-
hour points of contact in shipping states and regional partners for the national
police, coast guard or naval forces, foreign ministries and departments of
justice who can quickly make decisions on behalf of the concerned government.

Models for achieving greater international collaboration during time maritime
security operations already exist. For more than a decade, the United States has
worked with countries throughout the Caribbean and South America under maritime
counterdrug agreements. There are nearly thirty such agreements, which commit
nations to expedite communication on legal and jurisdictional issues associated
with emergent counterdrug operations at sea.
The Proliferation Security Initiative (PSI) is another successful international
analogue that continues to yield improvements in the operational capabilities
and legal infrastructure of partner nations. Under PSI, states commit to share
information and disrupt the transfer or transport of weapons of mass destruction
in accordance with a set of principles. States participating in PSI agree to
review and work to strengthen relevant national legal authorities and to
strengthen international law to facilitate those commitments. Some of the
nations with the largest shipping registries in the world, including Panama,
Liberia and Malta, have signed PSI ship boarding agreements with the United
States. These reciprocal agreements facilitate real time collaboration,
requiring parties to make quick and binding decisions on questions of
interdiction, diversion and boarding.

Although many of the counterdrug and PSI agreements are bilateral, the IMO has
been instrumental in bringing states together in multilateral operational
maritime agreements that facilitate rapid collaboration.
In 1985, four heavily armed terrorists from the Palestine Liberation
Organization hijacked the Italian cruise ship Achille Lauro and murdered a
disabled American passenger, pushing his wheelchair into the sea. At the time,
states lacked adequate criminal statutes to prosecute vessel hijacking. In
response to the attack, the IMO brought together member states to develop a
maritime criminal law treaty, and the Convention for the Suppression of Unlawful
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Acts against the Safety of Maritime Navigation (SUA Convention) was signed three
years later. The treaty entered into force in 1992. The SUA Convention requires
state parties to criminalize acts that endanger the safe navigation of ships. In
2005, a diplomatic conference at IMO adopted the SUA Protocols to the treaty
that created a legal framework for combating the proliferation of weapons of
mass destruction and their delivery systems on board vessels and fixed
platforms, such as oil platforms on board vessels and fixed platforms, such as
oil platforms.7 The SUA Protocol provides a framework for criminalizing the
maritime transport terrorists or weapons of mass destruction at sea. For the
first time, an explicit regime for conducting boarding of suspect vessels, and a
mandate for state parties to prosecute or extradite suspects.8

Now Resolution 1816 encourages exactly the type of partnering that landed the
Delta Ranger pirates in a Kenyan jail. States should operationalize the UN
mandate with an international MOTR process and negotiation of bilateral or
multilateral disposition assistance agreements among naval powers, flag states
and regional partners. Just as more than 90 states have agreed as part of PSI to
examine and strengthen their domestic legal and policy authorities and crisis
response decision making capacity, they could commit to broader support for the
full spectrum counter piracy operations. By preparing agreements and obtaining
commitments for rapid decision making before an incident develops, states will
be able to quickly resolve questions about PUC management, prosecution and legal
claims without waiting for an emergency to begin to think through these
challenges. 9

Disposition support agreements also should identify available regional medical
facilities so that states do not have to search indiscriminately for available
care for sick and injured persons. Furthermore, agreements should codify
expectations regarding what support a state can provide, and importantly, reduce
uncertainty to accelerate decision making and facilitate cooperation.

The IMO has also conducted an anti-piracy project consisting of a number of
regional centers and workshops, with participants coming largely from piracy-
infested areas of the world. The project includes a number of evaluation and
assessment missions to areas particularly affected by piracy. In 2001-02,
missions were held in Jakarta, Indonesia, Singapore, Guyaquil, Ecuador and
Accra, Ghana. The IMO also hosted regional meetings in Sanaa, Yemen in April
2005 and Oman in January 2006, for nations in the Gulf of Aden and Red Sea
areas. These efforts are focused on opening up the possibility of regional
international agreements to implement anti-piracy measures.

Finally, the IMO developed a draft regional agreement on cooperation for
preventing and suppressing acts of piracy and armed robbery against ships. This
draft agreement is an ideal model for use by states who are seeking to work more
closely together. Provisions of the draft include procedures for states to
conduct boarding and searches of suspected vessels, and provisions for criminal
enforcement and determining choice of jurisdiction among coastal and flag
states wishing to implement anti-piracy measures.

Regional cooperation, coupling states with greater capacity with those who are
still developing capacity will work. A regional approach to piracy in the
Straits of Malacca and Singapore has led to significant reductions in the
incident of maritime piracy.

Facilitated by the IMO under the leadership of Japan in 2004, 16 nations signed
the Regional Agreement on Combating Piracy and Armed Robbery (ReCAAP) against
ships in Asia, the first treaty dedicated solely to combating piracy. The pact,
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which entered into force in 2006, established the Information Sharing Centre in
Singapore to share piracy-related information among member states. Seeking to
replicate the success of ReCAAP, the IMO sponsored meetings in Tanzania and
Yemen to reach agreement among the regional states of the Horn of Africa for
developing a treaty against piracy in the western Indian Ocean.

On the other side of Africa, the IMO also has been instrumental in helping the
twenty-five nation Maritime Organization of West and Central Africa (MOWCA) more
effectively cooperate to improve maritime security.
Since its inception in 1975, MOWCA has served as a forum for achieving limited
objectives in the maritime domain, such as port management.
In 2006, MOWCA conducted a forum in Dakar, Senegal in conjunction with the IMO
for establishing an integrated coast guard network. This work paid of, leading
to development of a functional MOU on the establishment of a Sub-regional Coast
Guard Network for the West and Central African region in July 2008. The
comprehensive agreement establishes an institutional framework for close
cooperation on suppression of piracy and armed robbery at sea, countering
terrorism at sea, illegal, unreported, and unregulated (IUU) fishing, drug
trafficking, fuel theft and smuggling and pipeline security and maritime
accident response. The agreement also provides guidelines for coastal
surveillance, maintaining presence in the exclusive economic zones, and
enforcement of international treaties, especially the Law of the Sea Convention
and implementing IMO instruments or international treaties, especially the Law
of the Sea Convention and implementing IMO instruments.

In 2006, the United States and India affirmed their commitment to address piracy
and armed robbery at sea in the Indo-U.S. Framework for Maritime Security
Cooperation. The agreement calls for regular meetings on maritime security
between the Washington and New Delhi and could serve as a basis for expanding
bilateral cooperation against piracy and other transnational maritime threats in
the western Indian Ocean.

Maritime powers should forge ahead with the build-out of international maritime
partnerships, creating a network to facilitate a collaborative approach to
maritime security. It was observed that Indian navy is one of the largest and
most capable on the planet, and many of the victims of piracy are Indian-flagged
vessels or operated by Indian nationals. The Indo-U.S. maritime security
framework should focus on countering piracy in the Western Indian Ocean as its
first substantive activity. It is clear that regional partnerships are needed to
effectively counter piracy. In Asia, ReCAAP has resulted in a dramatic reduction
in piracy.

West Africa has surged ahead of East Africa in developing mechanisms for
cooperation. MOWCA has been reenergized after decades of under achievement, and
the new coast guard network for West Africa is promising. The IMO has initiated
negotiations among East African states to finalize an international agreement to
facilitate cooperation on boarding and PUC disposition logistics.
Second, the maritime nations should support the regional East African agreement,
making legal capacity building in the area a priority. If nations in East Africa
develop the legal architecture to deal with piracy, including the lawyers,
courtrooms and confinement facilities, they will be more willing and better able
to enforce the maritime rule of law in the neighborhood. The counterdrug and PSI
bilateral agreements, and the multilateral 2005 SUA Protocols, provide an ideal
model for negotiating this agreement, which should include support from nations
with large shipping registries and other maritime powers.

The need for an International MOTR:
12
There is need for an international MOTR. The U.S. government is able to make
well-coordinated decisions arising from maritime exigencies at any time of day
or night under the MOTR process. This process enables the various Executive
departments and agencies to develop a single position and advise the National
Security Council in a time-sensitive fashion. The SUA Convention and Protocol
provide a ready-made structure for an international MOTR process that could be
annexed to the treaties. This annex could serve as an international phone book
that provides 24-hour contact information for shipping states, regional partners
and major maritime powers so that these states can quickly coordinate issues
regarding on-scene interdiction of vessels hijacked by pirates and pirate
mother ships, as well as more deliberative questions regarding PUC disposition
and logistics-sensitive fashion.

THE CONCLUSION:

Conclusion, Personal Observations and Suggestions:

As observed earlier in this work, it must first be known that Somalia, the
country from which the pirates stem, is a failed and lawless state. The culprits
involved in this activity are sophisticated and more powerful that the Somali
government itself. It therefore follows that maritime piracy is their way to
earn a living and garner revenue. So long as Somalia remains in its lawless
state then piracy will always subsist in the East African regional waters.
Further observation will confirm to us that the failure of political
administration in Somalia is fast turning it into an inviting hotbed and
breeding grounds for international religious fanatics and terrorist. This work
may not be meant to point out or address that countrys political merits or
demerits but this has a bearing on this subject in issue.
International collaboration is the only way to go.
International Collaboration can begin with the African Union putting together
resources and regional strategies that can be helpful. But again many African
Union member states, though they have a good knowledge of the terrain, can be
lacking on the resources like leadership and effective technological equipment.
For a start as I write this, the African Union member countries have contributed
military personnel under its continental flag in Somalia, with Burundi and
Uganda leading the way. Uganda and Burundi may not have navies of their own, but
this is a good start and achievement and African gesture to help the stricken
country. We hope that better equipped continental member states will soon add
their weight and blessing to this African task.

We earlier observed that models for achieving greater international
collaboration during time maritime security operations already exist. For more
than a decade, the United States has worked with countries throughout the
Caribbean and South America under maritime counterdrug agreements. There are
nearly thirty such agreements, which commit nations to expedite communication on
legal and jurisdictional issues associated with emergent counterdrug operations
at sea.
The Proliferation Security Initiative (PSI) is another successful international
analogue that continues to yield improvements in the operational capabilities
and legal infrastructure of partner nations. Under PSI, states commit to share
information and disrupt the transfer or transport of weapons of mass destruction
in accordance with a set of principles. States participating in PSI agree to
review and work to strengthen relevant national legal authorities and to
strengthen international law to facilitate those commitments.

The IMO has been instrumental in bringing states together in multilateral
operational maritime agreements that facilitate rapid collaboration.
13
The IMO brought together member states to develop a maritime criminal law
treaty, and the Convention for the Suppression of Unlawful Acts against the
Safety of Maritime Navigation (SUA Convention) was signed three years later. The
treaty entered into force in 1992. The SUA Convention requires state parties to
criminalize acts that endanger the safe navigation of ships. In 2005, a
diplomatic conference at IMO adopted the SUA Protocols to the treaty that
created a legal framework for combating the proliferation of weapons of mass
destruction and their delivery systems on board vessels and fixed platforms,
such as oil platforms. The SUA Protocol provides a framework for criminalizing
the maritime transport terrorists or weapons of mass destruction at sea. For the
first time, an explicit regime for conducting boarding of suspect vessels, and a
mandate for state parties to prosecute or extradite suspects now exists.

To date Resolution 1816 encourages exactly the type of partnering that landed
the Delta Ranger pirates in a Kenyan jail. States should operationalize the UN
mandate with an international MOTR process and negotiation of bilateral or
multilateral disposition assistance agreements among naval powers, flag states
and regional partners. Just as more than 90 states have agreed as part of PSI to
examine and strengthen their domestic legal and policy authorities and crisis
response decision making capacity, they could commit to broader support for the
full spectrum counter piracy operations. By preparing agreements and obtaining
commitments for rapid decision making before an incident develops, states will
be able to quickly resolve questions about PUC management, prosecution and legal
claims without waiting for an emergency to begin to think through these
challenges.

It is further suggested that regional powers should also identify available
regional medical facilities so that states do not have to search
indiscriminately for available care for sick and injured persons. Furthermore,
agreements should codify expectations regarding what support a state can
provide, and importantly, reduce uncertainty to accelerate decision making and
facilitate cooperation.

We further observed that, the IMO has also conducted an anti-piracy project
consisting of a number of regional centers and workshops, with participants
coming largely from piracy-infested areas of the world. The project includes a
number of evaluation and assessment missions to areas particularly affected by
piracy. In 2001-02, missions were held in Jakarta, Indonesia, Singapore,
Guyaquil, Ecuador and Accra, Ghana. The IMO also hosted regional meetings in
Sanaa, Yemen in April 2005 and Oman in January 2006, for nations in the Gulf of
Aden and Red Sea areas. These efforts are focused on opening up the possibility
of regional international agreements to implement anti-piracy measures.

The IMO also developed a draft regional agreement on cooperation for preventing
and suppressing acts of piracy and armed robbery against ships. This draft
agreement is an ideal model for use by states who are seeking to work more
closely together, Article 8bis.10 Provisions of the draft include procedures for
states to conduct boarding and searches of suspected vessels, and provisions for
criminal
enforcement and determining choice of jurisdiction among coastal and flag
states wishing to implement anti-piracy measures.

In the past, regional cooperation, coupling states with greater capacity with
those who are still developing capacity will work. For example, regional
approach to piracy in the Straits of Malacca and Singapore has led to
significant reductions in the incident of maritime piracy.

14
In 2004 under the leadership of Japan, 16 nations signed the Regional Agreement
on Combating Piracy and Armed Robbery (ReCAAP) against ships in Asia, the first
treaty dedicated solely to combating piracy. The pact, which entered into force
in 2006, established the Information Sharing Centre in Singapore to share
piracy-related information among member states. Under the same token, the IMO
sponsored meetings in Tanzania and Yemen to reach agreement among the regional
states of the Horn of Africa for developing a treaty against piracy in the
western Indian Ocean.

On the Western part of Africa, the IMO also has been instrumental in helping the
twenty-five nation Maritime Organization of West and Central Africa (MOWCA) more
effectively cooperate to improve maritime security.
Since its inception in 1975, MOWCA has served as a forum for achieving limited
objectives in the maritime domain, such as port management.
In 2006, MOWCA conducted a forum in Dakar, Senegal in conjunction with the IMO
for establishing an integrated coast guard network. This work paid of, leading
to development of a functional MOU on the establishment of a Sub-regional Coast
Guard Network for the West and Central African region in July 2008. The
comprehensive agreement establishes an institutional framework for close
cooperation on suppression of piracy and armed robbery at sea, countering
terrorism at sea, illegal, unreported, and unregulated (IUU) fishing, drug
trafficking, fuel theft and smuggling and pipeline security and maritime
accident response. This has gone a long way.

The United States and India affirmed their commitment to address piracy and
armed robbery at sea in the Indo-U.S. Framework for Maritime Security
Cooperation. The agreement which was affirmed in 2006, calls for regular
meetings on maritime security between Washington and New Delhi and could serve
as a basis for expanding bilateral cooperation against piracy and other
transnational maritime threats in the western Indian Ocean.

Maritime powers should forge ahead with the build-out of international maritime
partnerships, creating a network to facilitate a collaborative approach to
maritime security. It was observed that Indian navy is one of the largest and
most capable on the planet, and many of the victims of piracy are Indian-flagged
vessels or operated by Indian nationals. It is clear that regional partnerships
are needed to effectively counter piracy. In Asia, ReCAAP has resulted in a
dramatic reduction in piracy.

The West African regional powers have surged ahead of East Africa in developing
mechanisms for cooperation. MOWCA has been reenergized after decades of under
achievement, and the new coast guard network for West Africa is promising. The
IMO has initiated negotiations among East African states to finalize an
international agreement to facilitate cooperation on boarding and PUC
disposition logistics.
It is further suggested that the maritime nations should support the regional
East African agreement, making legal capacity building in the area a priority.
If nations in East Africa develop the legal architecture to deal with piracy,
including the lawyers, courtrooms and confinement facilities, they will be more
willing and better able to enforce the maritime rule of law in the neighborhood.
The counterdrug and PSI bilateral agreements, and the multilateral 2005 SUA
Protocols, provide an ideal model for negotiating this agreement, which should
include support from nations with large shipping registries and other maritime
powers.

An international MOTR is required. While it is noted that the U.S. government is
able to make well-coordinated decisions arising from maritime exigencies at any
15
time of day or night under the MOTR process. This process enables the various
Executive departments and agencies to develop a single position and advise the
National Security Council in a time-sensitive fashion. The SUA Convention and
Protocol provide a ready-made structure for an international MOTR process that
could be annexed to the treaties. This annex could serve as an international
phone book that provides 24-hour contact information for shipping states,
regional partners and major maritime powers so that these states can quickly
coordinate issues regarding on-scene interdiction of vessels hijacked by pirates
and pirate mother ships, as well as more deliberative questions regarding PUC
disposition and logistics-sensitive fashion.

In Conclusion, international law has become the most effective force multiplier
for developing maritime security. Naval air and sea operational contributions
from the most capable maritime powers have been unable to arrest Somali piracy
because they cannot prosecute the endgame. Piracy flourishes at the seams of
globalization because, as observed earlier in my introduction to this work,
jurisdiction is unclear and pirates exploit the inherent isolation of individual
vessels and nations. Somalia is a lawless failed state and the pirates are more
powerful than the ruling government. Regional powers have underdeveloped law
enforcement and judicial systems and suffer from a severe chronic lack of
resources. Not only do they have insufficient numbers of lawyers and judges and
confinement facilities, they lack essential items and equipment such as
communications systems, computers and printers, and even are missing basic
office supplies. In this setting, international law is more important than
adding another warship to the equation. An international MOTR process would
create a network of interested states that could begin to coordinate in real
time, working effectively across legal and jurisdictional lines of demarcation
to bring collective action against this threat.
Therefore, in conclusion, as observed earlier at the inception of this essay, no
single answer is enough to thwart the threat of this maritime calamity off the
East African coast. It will take, among other things: Effective regional
leadership, Effective International and regional cooperation, Equipment and
know-how, International Law and cooperation.
It must also be accepted that, No single national navy will tackle and defeat
Western Indian Ocean piracy alone, be it an imposing Western super power with
its readily available technology and warships, without cooperation and equipping
of regional leadership on the ground. This topic may be about a single country,
Somalia, but it is as diverse as the war on terror itself, requiring the
cooperation of multiple players, if it is to be won.


Robert O. Cwinya-ai*.








THE END






16

Bibliography:


* Robert Ongom Cwinya-ai: BA(LAW)(Uniswa),LL.B.(Natal), LL.M. Admiralty &
Maritime Law(Tulane). E-mail: rocwinyaai@yahoo.co.uk, Tel: 1-504-957-7364.
The views expressed here are those of the author and do not reflect the official
policy or position of any official authorities of any kind. Author would be
pleased to hear suggestions or contributions from interested parties.

1. Mohamed Olad Hassan and Steve Gutterman, Russian, British ships repel Somali
pirate attack, Guardian.co.uk, November 15, 2008.

2. Philip Ewing, Zappin Pirates, Navy Times, November 10, 2008, page 8.

3. Margaret Ryan, Captain Counts the Cost of Piracy, BBC News (Feb. 2, 2006),
available at http://news.bbc.co.uk/1/hi/world/africa/4669050.stm.

4. The Commanders Respond, UNITED STATES NAVAL INSTITUTE PROCEEDINGS (Apr.
2006), 34, 40-51.

5. A single most powerful navy cannot do in alone. world Dominance is not just
about combat power; it is also our ability to work with other nations to provide
global maritime security and prevent conflictOur relationships with other
navies and nations are integral to our Maritime StrategyWe must evolve and
establish international relationships to increase security and achieve common
interests in the maritime domain. CNO Guidance for 2009, Executing our Maritime
Strategy, November 2008.

6. Commodore Md. Khurshed Alan ndc, psc, BN (Retd), Curbing Maritime Piracy in
Bangladesh,January20,2006;http://www.thedailystar.net/strategic/2006/01/02/strat
egic.htm

7. Amendments to the Suppression of Unlawful Acts (SUA) were approved at a
diplomatic conference at the IMO in the fall of 2005 and will enter into force
after ratification by 12 States. To date, Fiji, Spain, the Republic of the
Marshall Islands have ratified the Protocols.

8. 2005 Protocol to the SUA Convention:
Among the unlawful acts covered by the SUA Convention in Article 3 are the
seizure of ships by force; acts of violence against persons on board ships; and
the placing of devices on board a ship which are likely to destroy or damage it.

9. Article 8 of the SUA:
Boarding Provisions: Article 8 of the SUA Convention covers the responsibilities
and roles of the master of the ship, flag State and receiving State in
delivering to the authorities of any State party any person believed to have
committed an offense under the convention, including the furnishing of evidence
pertaining to the alleged offense.

10. A new Article 8bis in the 2005 Protocol:
The new Article in the 2005 Protocol, covers cooperation procedure to be
followed if the State Party desires to board the ship flying the flag of the
State Party when the requesting Party has reasonable grounds to suspect that the
ship or a person on board the ship is, has been, or is about to be involved in,
the commission of an offense under the convention.
17
The authorization and cooperation of the flag State is required before such a
boarding. The State party may notify the IMO Secretary-General it would allow
authorization to board and search the ship flying its flag, its cargo and
persons on board if there is no response from the flag State within four hours