Piracy Somalia

[JoeMcFriday]

By My2Cents:-
"Won’t happen. Firstly because, thanks to the UN, piracy is no longer recognized as a crime, so the pirates will have to be charge with battery, kidnapping, or theft. They will get a couple years at most for that. Secondly, because of the language in the EU Constitution and several Human Rights Treaties, the pirates, and any witnesses called on their behalf from Somalia, will automatically qualify as economic and political refugees, fully eligible for all the benefits available, including the legal benefits that make them almost impossible to expel or stop them from bringing in additional family members. Note, these are the EU Constitution and inter-European treaties, not a country’s laws that can be simply overridden by the legislature.
Also, because trials must take place under the laws of a host country, the trials can only take place if the vessel is ‘flagged’ by the same nation as that holding the trials."

Here's link to the UNs articles on the freedom of the seas:-
PREAMBLE TO THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
According to the article 105 reproduced below, it's the State's laws of the seizing [anti-pirate] vessel which apply, not the UN.
Articles 99 to 111 are of particular interest determining piracy and what may be done about it.
"Article105
Seizure of a pirate ship or aircraft
On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith."

As there are references within the Articles to those being "guilty" of piracy, I fail to see where the UN has declared piracy a non-crime and would appreciate it if you could point me to a UN text that clarifies the points you've made.
Cheers,
Mac

 

[My2Cents]

Unlos

Article100
Duty to cooperate in the repression of piracy
All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.

High seas – i.e. outside the 200 mile limit, only. Inside the limit piracy must be defined and enforced by country with jurisdiction. Enforcement can also be permitted by those with formal agreements with the country of jurisdiction to that effect, but as this involves yielding some sovereignty most 3rd world countries are unwilling to do so.

Article101
Definition of piracy
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

Again, the UNLOS does not apply inside the 200 mile limit, unlike the Admiralty Laws that it supersedes. Inside the 200 mile limit it is only piracy if the state with jurisdiction deems it so.

Article104
Retention or loss of the nationality of a pirate ship or aircraft
A ship or aircraft may retain its nationality although it has become a pirate ship or aircraft. The retention or loss of nationality is determined by the law of the State from which such nationality was derived.

Article105
Seizure of a pirate ship or aircraft
On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.

Courts of a state are restricted to handle only cases originating within the state, or involving citizens of the state as victims or perpetrators. This means that the courts in Country A have no jurisdiction in a piracy case unless it taking place in Country A’s territorial waters, or involves the attempted piracy of a vessel operating under Country A’s flag, or injury to a citizen of Country A, or piracy by a citizen of Country A. As such courts of a State in Country A has no jurisdiction to try a cases against pirates from Country B but detained by a warship of Country A caught committing an act of piracy against a ship flagged and crewed by Country C. So Country A’s warship has no choice except for ‘catch-and-release’.

Attempts to go beyond this are classified as ‘Universal Jurisdiction’, and attempts to create law implementing them at the country level were immediately abused by litigators so badly that all have been re-restricted to the above standard. International Courts (ICC, ICT, and tribunals) are also highly restricted as to the cases and locations they can accept. Currently, none of them can accept piracy cases, nor does is seem likely. There is also the problem with the refuge laws in the states where the courts are located.

Article106
Liability for seizure without adequate grounds
Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure.

This has been interpreted by the lawyers as you can only stop a ship and inspect it for piracy equipment if you have seen it engaging in an attempted act of piracy. Needless to say, this has hamstrung attempts to suppress piracy.

So there are a few of the problems with UNLOS. It is the product of bureaucrats more concerned with creating/maintaining national sovereignty and the rights of minorities (the pirates), than creating practical and enforceable international law.:hitwall

 

[JoeMcFriday]

My2Cents,
I can certainly agree with you that the work of bureaucrats considerably complicates anything, especially those who interpret the written word. This is why I asked could you refer to a UN document/s which indicate their interpretation which would support your explanation.
I can't as yet find one and have e-mailed a contact at the UN for assistance, as she's not connected with UNCLOS this may take some time.

You make many strong points but they are based on the 200m limit denying international law. In the absence of further UN documentation, I respectfully contend the opposite.

Insofar as the 200m limit is concerned, there are multiple references in UNCLOS to international passages [trade routes] being regarded as "the high seas", even though such routes lie within any EEZ or confined straits.
eg. [partic. sect. 2, which largely refers to piracy as we know]

"Article 58
Rights and duties of other States in the exclusive economic zone
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.

2. Articles 88 to 115 and other pertinent rules of international law
apply to the exclusive economic zone in so far as they are not incompatible with this Part.

3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part."

It is quite clear from this article that an EEZ doesn't preclude "high seas" provisions, there are other articles providing for search by warships etc.

I take your point that the searcher may be liable for costs incurred by the searched [delayed] vessel. How many Somali "fishermen" are going to the Hague to press a law suit over a 30 minute delay in their "fishing". Maybe even to be recompensed for AKs and RPGs they threw overboard?

Back to article 58, as you infer, UN interpretation which would of course affect the ROE is critical and it is this UN interpretation I would like to see.

Does it in anyway affect the [UNs] status of the pirates attacking vessels outside said zone, such as near Sri Lanka or Madagascar?
Cheers,
Mac

 

[HKP]

wether in international waters or not if a pirate ship is sighted or reported immidiate action should take place for any available military force nearby and conduct an attack. Just as the South Korean commandos did and other rescue teams done in the past, the civilized nations should not tolerate this piracy in high seas. They should be met with force until them pirates no longer find it feasible in terms of their safety to engage in this kind of business. Besides its no excuse for a poor man to join pirates, what the somali people need to do is organize a political group or party and put up a legitimate government and ask for help from UN to put up their own small Navy and coast guard and they can start being a productive nation and feed their poor people other than that. a pirate is a pirate and he chose to be this way and so he will have to pay the consequences. The hell with the bureaucrats, there is a need for more actions. Imagine yourself if you are one of the sailors being held hostage.

 

[greendeath539]

piracy

hello forum,i am myself a private contractor engaged by a shipping company that operates in the indian ocean,the somali pirates are extremely savvy and well equipped (navigation,intel etc) also have much improved vessels & range,problem is very severe... i think only the private sector can tackle the problem effectively .

 

[JoeMcFriday]

hello forum,i am myself a private contractor engaged by a shipping company that operates in the indian ocean,the somali pirates are extremely savvy and well equipped (navigation,intel etc) also have much improved vessels & range,problem is very severe... i think only the private sector can tackle the problem effectively .

Hello greendeath539,
To navigate on the open ocean does require some savvy, I'll agree, though when equipped with even a simple GPS hand held device it's not quite astral navigation in complexity and doesn't need years of training.

To plot an intercept course when in a slower or similar speed vessel also requires some basic skill, less if an onshore contact with cellphone or computer gives exact sailing times, passage times and destination, even less if a homing device is on board the target vessel.

None of the above though seem to match "extremely savvy" for the pirate's skillset.
So what am I missing that elevates them to the higher level of skills? In other words, can you give examples of why they are "extremely savvy" with the emphasis on extremely?

Also I'm curious to know why you feel that only the private sector "can tackle the problem effectively"?
I'm sure that more than one of us would be interested in your views.

IMO, in a perfect world, Pirates caught in the act would never get back to shore, shore-side informants, facilitators and financiers etc would be found in a gutter, victims of a "mugging". Alas it's not a perfect world.

Cheers,
Mac

 

[John Sansom]

hello forum,i am myself a private contractor engaged by a shipping company that operates in the indian ocean,the somali pirates are extremely savvy and well equipped (navigation,intel etc) also have much improved vessels & range,problem is very severe... i think only the private sector can tackle the problem effectively .

Hi, GD539, and welcome.

Like Joe McF, I'd be interested in a little detail on the potential of the private sector in "handling" the pirates problem. I'm assuming you're referring to private security firms....and that you might have some definitive information on the legalities involved, the levels of training required, equipment needed, and hoped-for cost benefits within the business of merchant shipping.

Others have had in-put on all this, but it might be helpful to hear from a contractor in somewhat more detail.

Oh, yes. There's no question that the indigent fishermen are those taking the risk on the high seas (as Swerve has pointed out), but they are not the guys negotiating the ransoms, organizing the other on-shore matters, and generally keeping this nastiness viable.

And, yes, I am still on my on-shore interdiction rant. Have a good one.
:daz

 

[greendeath539]

hi

in response to joe's post my use of the word extreme was in reference to the more experienced individuals who re invest some of the gains in very first world equipment!!, not as i made it sound everyone involved including the classic tv news image of a 15year old holding an ak thats nearly the same size as he is!! sorry for any confusion

 

[JoeMcFriday]

in response to joe's post my use of the word extreme was in reference to the more experienced individuals who re invest some of the gains in very first world equipment!!, not as i made it sound everyone involved including the classic tv news image of a 15year old holding an ak thats nearly the same size as he is!! sorry for any confusion

No worries Mate, I don't think any of us are under the impression that a bunch of 15yo fishermen are behind it all. LOL

We'd still be interested in whatever insights you could share with the forum on the situation as you see it.

eg. Are any of the raids suspected of being inside jobs? etc.

Welcome to the forum.
Cheers,
Mac

 

[My2Cents]

I can certainly agree with you that the work of bureaucrats considerably complicates anything, especially those who interpret the written word. This is why I asked could you refer to a UN document/s which indicate their interpretation which would support your explanation.
I can't as yet find one and have e-mailed a contact at the UN for assistance, as she's not connected with UNCLOS this may take some time.

See if she can get anything from the ‘Contact Group for Piracy of the Coast of Somalia’. But do not expect them to address the operation of war vessels in territorial waters without the permission of the sovereign government. That is settled law.

Back to article 58, as you infer, UN interpretation which would of course affect the ROE is critical and it is this UN interpretation I would like to see.

UN rulings are hard to come by, because very little has reached that stage of adjudication. Almost everything on this subject will be opinions expressed by individuals and governments on what the language means. Most of the opinions I present here are from articles covering pronouncements from the US, UK, and EU.

You make many strong points but they are based on the 200m limit denying international law. In the absence of further UN documentation, I respectfully contend the opposite.

Insofar as the 200m limit is concerned, there are multiple references in UNCLOS to international passages [trade routes] being regarded as "the high seas", even though such routes lie within any EEZ or confined straits

eg. [partic. sect. 2, which largely refers to piracy as we know]

"Article 58
Rights and duties of other States in the exclusive economic zone
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.

2. Articles 88 to 115 and other pertinent rules of international law
apply to the exclusive economic zone in so far as they are not incompatible with this Part.

3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part."

It is quite clear from this article that an EEZ doesn't preclude "high seas" provisions, there are other articles providing for search by warships etc.

After an extensive search I found no references to “international passages” in UNCLOS. I suspect that you are confusing it with the right of transit passage and the right of innocent passage. These most explicitly DO NOT allow military operations (i.e. anti-pirate) without permission of the sovereign state.

I take your point that the searcher may be liable for costs incurred by the searched [delayed] vessel. How many Somali "fishermen" are going to the Hague to press a law suit over a 30 minute delay in their "fishing". Maybe even to be recompensed for AKs and RPGs they threw overboard?

Actually, it may be possible to claim a human rights violation [no one has allowed this to be tried yet, the complainant gets paid off (bribed) to drop the case]. That is not cheap, and frequently the ship captain involved will be reassigned, like a cop involved in a justifiable shooting, and for the same reasons.

Does it in anyway affect the [UNs] status of the pirates attacking vessels outside said zone, such as near Sri Lanka or Madagascar?

Yes. Also Nigeria, China, and the Straits of Malacca to name a few others.

 

[JoeMcFriday]

My2Cents,
"After an extensive search I found no references to “international passages” in UNCLOS. I suspect that you are confusing it with the right of transit passage and the right of innocent passage. These most explicitly DO NOT allow military operations (i.e. anti-pirate) without permission of the sovereign state."
No mate, I'm not confusing those definitions at all and my understanding of the articles is diametrically opposite to yours, so it's better to agree to disagree with on these points. The full rules are available as a .pdf file from their website.

Article 58 sect.2 is very specific to me, so I guess only the UNs written interpretation of where warships can combat piracy will break the deadlock, there's no point in spending more time on it.

Thanks for your advice on where to look, I'll pass it on.

Cheers,
Mac

 

[gf0012-aust]

Article 58 sect.2 is very specific to me, so I guess only the UNs written interpretation of where warships can combat piracy will break the deadlock, there's no point in spending more time on it.

Thanks for your advice on where to look, I'll pass it on.

Cheers,
Mac

as a practical example.

indonesia and malaysia have denied the rights for any other country (except singapore which has shared responsibility) permission to go into the Straits and help pursue or police pirates. it may be an international passageway with rights of way for commercial traffic, but they have the right to deny any military vessel access if they push the point - another example would be the dardanelles.

 

[JoeMcFriday]

as a practical example.

indonesia and malaysia have denied the rights for any other country (except singapore which has shared responsibility) permission to go into the Straits and help pursue or police pirates. it may be an international passageway with rights of way for commercial traffic, but they have the right to deny any military vessel access if they push the point - another example would be the dardanelles.

Thanks GF,
The articles dealing with confined straits and archepelagic passages are dealt with elsewhere and i agree are as you and My2Cents say.

However he is contending:-
a/ that the UN has deemed piracy not to be a crime.
"Firstly because, thanks to the UN, piracy is no longer recognized as a crime" post #42
I disagree with that interpretation of UNCLOS see post#44

b/"Also, because trials must take place under the laws of a host country, the trials can only take place if the vessel is ‘flagged’ by the same nation as that holding the trials." ibid
I disagree with that interpretation of UNCLOS ibid

c/"High seas – i.e. outside the 200 mile limit, only. Inside the limit piracy must be defined and enforced by country with jurisdiction. Enforcement can also be permitted by those with formal agreements with the country of jurisdiction to that effect, but as this involves yielding some sovereignty most 3rd world countries are unwilling to do so." Post#45
I disagree on that definition of "the high seas" and am contending that the UNCLOS articles I cited [Post#46] allow action within the 200m EEZ limit.

UNCLOS actually goes into a lot of detail limiting the "legal rights" of the coastal state in this zone and in its territorial sea. While I can't remember the article offhand, I think that "hot pursuit" must be terminated when the target enters the territorial sea NOT the EEZ of a nation. By inference then the pursuit must been legally occurring in the EEZ.

We do agree on the rights of nations adjoining confined passages etc., and I agree with a lot of what he has written, it is on the above points that informed third party advice to clarify a muddy situation would be appreciated.

Cheers,
Mac

 

[gf0012-aust]

it is on the above points that informed third party advice to clarify a muddy situation would be appreciated.

Cheers,
Mac

I've sent a PM to someone first hand familiar with this, so hopefully they'll respond

as a further, australia has chased poachers out of the EEZ and across the indian ocean and by using co-operative arrangements arranged for south african commandos to effect an arrest in sth african EEZ.

I would have thought that the caveats governing and about effecting arrest in the EEZ would also have a parallel with piracy...

but, I'm not confident of my position here...

when my daughter was involved with PMC-MS the ships captain was more than happy to turn around a 65000 tonne vessel, aim and make a direct run for the pirate skiffs - not exactly rule book stuff, but Italian commercial captains can be feisty.. He must have got a reputation because his vessel was left alone after a few charging events...

 

[JoeMcFriday]

GF,

"He must have got a reputation because his vessel was left alone after a few charging events... "

It is that sort of earned reputation I can admire. I dips me lid to him!

Thanks for your involvement, the printed word can appear specific but we both know how "interpretations" of the rule book, as per your examples, can distort them.

I hope you can get some clarification for us, thanks for trying.

Cheers,
Mac

 

[My2Cents]

"Also, because trials must take place under the laws of a host country, the trials can only take place if the vessel is ‘flagged’ by the same nation as that holding the trials." ibid
I disagree with that interpretation of UNCLOS ibid

I should have been clearer when I said:

Courts of a state are restricted to handle only cases originating within the state, or involving citizens of the state as victims or perpetrators. This means that the courts in Country A have no jurisdiction in a piracy case unless it taking place in Country A’s territorial waters, or involves the attempted piracy of a vessel operating under Country A’s flag, or injury to a citizen of Country A, or piracy by a citizen of Country A. As such courts of a State in Country A has no jurisdiction to try a cases against pirates from Country B but detained by a warship of Country A caught committing an act of piracy against a ship flagged and crewed by Country C. So Country A’s warship has no choice except for ‘catch-and-release’.

These are the current standards of judicial standing for courts to accept a case in all western nations. They are not part of UNCLOS.

c/"High seas – i.e. outside the 200 mile limit, only. Inside the limit piracy must be defined and enforced by country with jurisdiction. Enforcement can also be permitted by those with formal agreements with the country of jurisdiction to that effect, but as this involves yielding some sovereignty most 3rd world countries are unwilling to do so." Post#45
I disagree on that definition of "the high seas" and am contending that the UNCLOS articles I cited [Post#46] allow action within the 200m EEZ limit.

"Article 58
Rights and duties of other States in the exclusive economic zone
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.

2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.

3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part."

The critical words are “so far as they are not incompatible with this Part”, otherwise the coastal state would automatically sacrifice their rights under Article 88. It does not change the classification of the EEZ to ‘high seas’.

There is also the language in the 3rd item about “States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State”. That means that warships have the right of transit, not the right to conduct military operations, unless they are in agreement with the coastal state.

High seas are defined in Article 86 as any part of the sea that is not part of an EEZ, territorial sea, or internal water.

PART VII

HIGH SEAS
--------------------------------------------------------------------------------
Article86

Application of the provisions of this Part

The provisions of this Part {High seas} apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58.

 

[greendeath539]

hi all

thank you for your questions,although i am finding the posts very informative i am merely an operator for a psc... not a maritime lawyer, but have no doubts your opinions and statements are valid & accurate..i can only pass on what my rules of engagement are, i am part of a 4 man armed security escort, the vessel on which i am tasked with protecting has many anti boarding measures,a full blown armed contact with pirates has not occured as yet. some of the measures are of course sensitive some very workman like razor wire/ nitesun lightalls etc etc,try to look upon it through the eyes of a burglar if all the houses have an alarm box & a beware of the dog sign but 1 has no visible deterrent & an open window its not rocket science to work out which 1 is going to get robbed!!..this is how the private sector can help like us or loathe us we offer a local solution,of course expense is involved but a responsible shipping company values its assets whether its personnel or equipment and of course cargo & reputation.given the vast area of ocean its a better bet than waiting for the cavalry to steam over the horizon

 

[JoeMcFriday]

thank you for your questions,although i am finding the posts very informative i am merely an operator for a psc... not a maritime lawyer, but have no doubts your opinions and statements are valid & accurate..i can only pass on what my rules of engagement are, i am part of a 4 man armed security escort, the vessel on which i am tasked with protecting has many anti boarding measures,a full blown armed contact with pirates has not occured as yet. some of the measures are of course sensitive some very workman like razor wire/ nitesun lightalls etc etc,try to look upon it through the eyes of a burglar if all the houses have an alarm box & a beware of the dog sign but 1 has no visible deterrent & an open window its not rocket science to work out which 1 is going to get robbed!!..this is how the private sector can help like us or loathe us we offer a local solution,of course expense is involved but a responsible shipping company values its assets whether its personnel or equipment and of course cargo & reputation.given the vast area of ocean its a better bet than waiting for the cavalry to steam over the horizon

I don't have a problem with private security, so long as they're professional and not thugs in disguise.
Understood that you can't be specific but what are your ROE if threatened?. ie must you wait to be fired upon or is an attempted boarding enough reason to engage the boarders?
Cheers,
Mac

 

[John Sansom]

thank you for your questions,although i am finding the posts very informative i am merely an operator for a psc... not a maritime lawyer, but have no doubts your opinions and statements are valid & accurate..i can only pass on what my rules of engagement are, i am part of a 4 man armed security escort, the vessel on which i am tasked with protecting has many anti boarding measures,a full blown armed contact with pirates has not occured as yet. some of the measures are of course sensitive some very workman like razor wire/ nitesun lightalls etc etc,try to look upon it through the eyes of a burglar if all the houses have an alarm box & a beware of the dog sign but 1 has no visible deterrent & an open window its not rocket science to work out which 1 is going to get robbed!!..this is how the private sector can help like us or loathe us we offer a local solution,of course expense is involved but a responsible shipping company values its assets whether its personnel or equipment and of course cargo & reputation.given the vast area of ocean its a better bet than waiting for the cavalry to steam over the horizon

Ta muchly. This is a working perspective that adds to the sum of available knowledge and reminds us....well, me at any rate...of the makeup of the weave in the fabric.:dance

 

[My2Cents]

Understood that you can't be specific but what are your ROE if threatened?. ie must you wait to be fired upon or is an attempted boarding enough reason to engage the boarders?

Those would be sensitive items. You really want and need to keep the pirates guessing.:gun