Introduction
In recent years the high seas off various states especially those of Somalia and their territorial waters have become a dangerous place: cruise-liners have been shot at, aid deliveries jeopardized and the crews of fishing, recreational and aid vessels have been taken hostage for ransom. Therefore piracy has become a widespread phenomenon as many ships from different states have been attacked or hijacked in various places of the world especially around the Indian and the Pacific Ocean.
According to the final report of the experts group convened in November 2008 by U.N. Special Representative to Somalia Ahmedou Ould-Abdallah, “poverty, lack of employment, environmental hardship, pitifully low incomes, reduction of pastoralist and maritime resources due to drought and illegal fishing and a volatile security and political situation all contribute to the rise and continuance of piracy in Somalia.”[1] While the profitability of piracy appears to be the primary motivating factor for most pirates, other observers argue that since conditions in Somalia make survival difficult for many and prosperity elusive for most, the relative risk of engagement in piracy seems diminished. [2]
In the Indian and Pacific Oceans, maritime piracy costs shipping companies some $13–$15 billion annually in losses. 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, abetting corruption, and empowering private armies. Left unchecked, the cumulative effect of piracy eventually can lead to the decline of vibrant commercial centers.[3]
Due to this facts and because piracy has become a threat to the international peace and security, several documents were adopted at the international level in order to combat piracy, among which several resolutions of the Security Council that will be analized in the following sections.
I. The Concept of Piracy
Piracy, slave trading and persecution of minorities were proscribed by the international community as early as the mid-19th century.[4] Despite this, nowadays, piracy remains a curse in several parts of the world.[5]
The United Nation Convention on the Law of the Sea defines piracy as:
(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).[6]
The essence of piracy under international law is that it must be committed for private ends. In other words, any hijacking or takeover for political reasons is automatically excluded from the definition of piracy. Similarly, any acts committed on the ship by the crew and aimed at the ship itself or property or persons on the ship do not fall within this category.[7]
According to international law robbery is not essential of piracy and a frustrated attempt to commit robbery is equally piracy.[8]
II. Measures provided by the United Nation Convention on the Law Of the Sea in order to fight agains piracy
Piracy is one of the international offenses submitted to universal jurisdiction. Under the international conventions and under customary law, all states may take action on the high seas or in a place outside the jurisdiction of any state, against individuals and vessels involved in act of piracy. [9] It was stated that a pirate under the law of nations is an enemy of the human race and being the enemy of all, he is liable to be punished by all. [10] Therefore any state can exercise jurisdiction on pirate ships in order to prosecute the pirates and rescue the crew.
If a warship of any state finds a pirate ship on the high seas, the warship is entitled under article 105 of the United Nation Convention on the Law of the Sea to seize the pirate vessel.
Article 105 refers to seizures or arrests made on the high seas „or in a place ouside the jurisdiction of anu state”. It does not authorize seizure of a pirate ship or aircraft in territorial waters, archipelagic waters of an archipelagic state, or in territorial waters even for acts that fall within the definition of piracy that have been committed on the high sea. With regard to the Economic Exclusive Zone, any right to seizure a pirate ship would operate through article 58 paragraph. 2 of the United Nation Convention on the Law of the Sea, which applies the provisions of art.105 in the Economic Exclusive Zone as long as they are compatible to part V of the Convention.
The second sentence of art.105 implies that the national Courts of the state carrying out the seizure will apply national law, including where appropriate, the national rules governing the conflict of laws. The expression “the rights of third parties acting in good faith” will extend to all third-party rights under the rules of maritime and admiralty law applicable in the Competent Court, whether by virtue of national law or by virtue of any international treaty to which the state seizing the pirate ship is party.[11]
General State practice[12] shows that that seizured ships from high seas or territorial waters are returned to the flag State. It would be proper to conclude that the same rules should be applied to pirate ships and pirates according to article 105 trialed in the municipal courts of the state of seizure.
III. The Role of the Security Council in the fight agains Piracy
The UN Charter established the Security Council as a political organ with primary responsibility for international peace and security. Like other institutions in the UN system, it was given the responsibility for determining its own competence: its decisions are binding on all states but not subject to formal review by any other institution.[13]
Following the September 11, 2001, attacks in the United States, the Council assumed even greater importance on international level. In this way the Security Council has grown beyond its initial role as a political forum and frequently serves important legal functions: establishing binding rules of general application, making determinations of law or fact, and overseeing the implementation of its decisions. These new roles – as legislator, judge, and executive – have made possible swift and decisive action in response to perceived threats to international peace and security on the basis of international law.
1.Security Council Resolution Under Chapter VII
Security Council has been entitled by Chapter VII of the United Nations Charter with the collective use of force in order to restore and maintain international peace and security and Resolutions drafted under Chapter VII are binding upon all United Nation state members.
1.1.The Review of Chapter VII Resolutions
The Security Council cannot behave arbitrarily when acting under Chapter VII. The powers of the Council, as exceptional as they may be in the realm of the maintenance of international peace and security, are limited by the principle of legality.[14]. Therefore, any resolution adopted under Chapter VII that violates fundamental norms of the Charter is to be considered ultra vires and consequently illegal. Resolutions under Chapter VII can be submitted to a review to different Courts.
The ICJ could review the Security Council decisions either on the occasion of a contentious case or through an advisory opinion. [15] Thus, when a dispute arises between two or more states, the legality of a Chapter VII resolution can be challenged by way of exception. It happened in the Lockerbie cases[16], where Libya invoked the invalidity of two resolutions relied upon by the defendants, the United States and the United Kingdom.
On the other hand, the General Assembly or even the Security Council itself can make a request for advisory opinion concerning the legal validity or the legal effects of certain decisions adopted in matters involving the maintenance of international peace and security. The only advisory opinion asked for by the Council in the Namibia case[17] is such an example.
In first instance, the European Court of Justice respected the special priority status of the UNCharter and the binding resolutions of the Security Council taken under Chapter VII, and it indicated that it had no authority to review whether Security Council resolutions were consistent with fundamental rights.[18] However, in a remarkable subsequent move, the European Court empowered itself to check whether the Security Council resolutions were consonant with norms of jus cogens, since, the Court said, these rules have a higher status, are non-derogable, and are binding on all subjects of international law, including the organs of the United Nations.[19]
The Security Council were submitted to rewiev on the first cases of the International Criminal Tribunals- namely International Criminal Tribunal for the former Yugoslavia [20] and International Criminal Tribunal for Rwanda.[21]
2. Security Council Resolutions regarding piracy
In recent years, the Security Council emphasized the importance of cooperation in repressing piracy through routine patrols to deter the crime, as well as collaborative action—after the pirates are caught—to bring them to justice.[22]
At the prompting of the secretary-general of the International Maritime Organisation, in 2008 the Security Council turned its attention toward combating piracy and adopted four key resolutions under chapter VII of the U.N. charter, authorizing “all necessary measures.”
Resolution 1816 .Beginning with Resolution 1816[23], the Security Council faced the issue of defeating piracy emanating from a fragile or failed state. For years, pirates in the Horn of Africa eluded capture at sea by fleeing into the jurisdictional protection of Somalia’s 12-nautical mile territorial sea.[24] Resolution 1816 authorized naval forces entry into Somali’s territorial waters to pursue pirates. Since its adoption, the resolution has been extended to permit operations on the land territory of Somalia. The resolution also emphasized cooperation for logistics and prosecution by calling on states to collectively determine jurisdiction in the investigation and prosecution of persons committing acts of piracy off the coast of Somalia.
Moreover, the resolution also encouraged states to increase and coordinate their efforts to deter acts of piracy in conjunction with the Transitional Federal Government of Somalia, a ruling authority inside the fractured state. Since Somalia has no maritime law enforcement capability, the resolution also called on states, the International Maritime Organisation and other international organizations to build a partnership to develop coastal security forces.
Resolution 1816 attracted most attention by the fact that it uses the words ‘all necessary means’—commonly associated with a general authorization to use military force[25]— and adds to those few occasions when the Council has authorized interdiction operations in a State’s territorial sea.[26] Resolution 1816 also require authorized international measures to be undertaken in accordance with humanitarian and human rights laws.
Resolution 1838. Next, the Security Council adopted Resolution 1838[27], expressing its grave concern over the proliferation of acts of piracy and armed robbery at sea against vessels off the coast of Somalia, and the threat it poses to the delivery of World Food Program shipments to Somalia. The resolution called upon states to take part in actively fighting piracy by deploying naval vessels and aircraft to the Gulf of Aden and surrounding water. The Security Council also reaffirmed that the Law of the Sea Convention embodies the rules applicable to countering piracy and armed robbery at sea.
Resolution 1846. Security Council Resolution 1846[28] of December broadened the international political support and legal capabilities to combat piracy off the Somali coast. The resolution suggests states consider application of the 1988 Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) to facilitate the extradition and prosecution of pirates. In most cases, Resolution 1846 and SUA Convention provide a firm legal basis for fighting agains piracy, and states should ensure their domestic authorities are consistent with the resolution and treaty. [29]
Resolution 1851. Two weeks later since the previous resolution the Security Council adopted Resolution 1851[30], authorizing states to take action against piracy safe havens on the shore in Somalia. The authority is likely to be cautiously implemented, however, since major land operations in the country could be perilous. This extraordinary permission is a legal innovation limited to Somalia and the Gulf of Aden, and other states adjacent to international waterways insisted that it did not necessarily set a precedent. But this innovative resolution demonstrates that there are already some useful models in place for addressing piracy.[31] The resolution also invited the states with maritime forces in the area and the regional states to conclude “shiprider” agreements or arrangements so that local law enforcement officials could embark on board foreign warships patrolling the area. The regional countries are particularly important in this regard because they are ideally situated to conclude the endgame — conducting a criminal investigations and criminal trials.
Regarding the supply of thnical asistance and weapons, Resolution 1846 authorized the provision of technical assistance to Transitional Federal Government of Somalia personnel and forces enhance the capacity of states to ensure coastal and maritime security” in accordance with procedures outlined in Resolution 1772[32]. Under paragraphs 11 and 12 of Resolution 1772, the supply of technical assistance to Somali “security sector institutions” is authorized provided that prior case-by-case notification is made to the U.N. arms embargo Committee for Somalia.
Resolution 1851 provides similar authorization to weapons and military equipment destined for the sole use of Member States and regional organizations undertaking authorized anti-piracy operations in Somali waters. The transfer of weaponry to Somali maritime security forces would require separate authorization from the Security Council. The African Union’s Peace and Security Council and the Transitional Federal Government long requested that the broader U.N. arms embargo be amended or lifted in order to improve the capabilities of forces fighting Islamist insurgents. On May 26, 2009, the United Nations Security Council unanimously adopted Resolution 1872[33], granting new authorization for members states to participate in the training and equipping of the Transitional Federal Government security forces in accordance with Resolution 1772. [34]
Based on Resolution 1851, the Bush Administration led the formation of a multilateral Contact Group on Piracy off the Coast of Somalia (CGPCS) made up of 24 member governments and five regional and international organizations. The Contact group held its first meeting in January 2009 and identified six tasks for itself:
1) improving operational and information support to counter-piracy operations,
2) establishing a counter-piracy coordination mechanism,
3) strengthening judicial frameworks for arrest, prosecution and detention of pirates,
4) strengthening commercial shipping self-awareness and other capabilities,
5) pursuing improved diplomatic and public information efforts, and
6) tracking financial flows related to piracy.[35]
In support of these goals, four working groups make recommendations at periodic meetings of the Contact Group secretariat on relevant military/operational, judicial, diplomatic, and public information aspects of regional and international anti-piracy efforts. The goals of the working groups’ efforts are to improve operational coordination, information sharing, and the effectiveness of legal enforcement activities among all regional and international actors combating piracy in the region.[36]
Conclusions
In recent years the high seas off various states especially those of Somalia and their territorial waters have become a dangerous place: cruise-liners have been shot at, aid deliveries jeopardized and the crews of fishing, recreational and aid vessels have been taken hostage for ransom. Therefore piracy has become a widespread phenomenon as many ships from different states have been attacked or hijacked in various places of the world especially around the Indian and the Pacific Ocean.
According to the final report of the experts group convened in November 2008 by U.N. Special Representative to Somalia Ahmedou Ould-Abdallah, “poverty, lack of employment, environmental hardship, pitifully low incomes, reduction of pastoralist and maritime resources due to drought and illegal fishing and a volatile security and political situation all contribute to the rise and continuance of piracy in Somalia.”[1] While the profitability of piracy appears to be the primary motivating factor for most pirates, other observers argue that since conditions in Somalia make survival difficult for many and prosperity elusive for most, the relative risk of engagement in piracy seems diminished. [2]
In the Indian and Pacific Oceans, maritime piracy costs shipping companies some $13–$15 billion annually in losses. 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, abetting corruption, and empowering private armies. Left unchecked, the cumulative effect of piracy eventually can lead to the decline of vibrant commercial centers.[3]
Due to this facts and because piracy has become a threat to the international peace and security, several documents were adopted at the international level in order to combat piracy, among which several resolutions of the Security Council that will be analized in the following sections.
I. The Concept of Piracy
Piracy, slave trading and persecution of minorities were proscribed by the international community as early as the mid-19th century.[4] Despite this, nowadays, piracy remains a curse in several parts of the world.[5]
The United Nation Convention on the Law of the Sea defines piracy as:
(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).[6]
The essence of piracy under international law is that it must be committed for private ends. In other words, any hijacking or takeover for political reasons is automatically excluded from the definition of piracy. Similarly, any acts committed on the ship by the crew and aimed at the ship itself or property or persons on the ship do not fall within this category.[7]
According to international law robbery is not essential of piracy and a frustrated attempt to commit robbery is equally piracy.[8]
II. Measures provided by the United Nation Convention on the Law Of the Sea in order to fight agains piracy
Piracy is one of the international offenses submitted to universal jurisdiction. Under the international conventions and under customary law, all states may take action on the high seas or in a place outside the jurisdiction of any state, against individuals and vessels involved in act of piracy. [9] It was stated that a pirate under the law of nations is an enemy of the human race and being the enemy of all, he is liable to be punished by all. [10] Therefore any state can exercise jurisdiction on pirate ships in order to prosecute the pirates and rescue the crew.
If a warship of any state finds a pirate ship on the high seas, the warship is entitled under article 105 of the United Nation Convention on the Law of the Sea to seize the pirate vessel.
Article 105 refers to seizures or arrests made on the high seas „or in a place ouside the jurisdiction of anu state”. It does not authorize seizure of a pirate ship or aircraft in territorial waters, archipelagic waters of an archipelagic state, or in territorial waters even for acts that fall within the definition of piracy that have been committed on the high sea. With regard to the Economic Exclusive Zone, any right to seizure a pirate ship would operate through article 58 paragraph. 2 of the United Nation Convention on the Law of the Sea, which applies the provisions of art.105 in the Economic Exclusive Zone as long as they are compatible to part V of the Convention.
The second sentence of art.105 implies that the national Courts of the state carrying out the seizure will apply national law, including where appropriate, the national rules governing the conflict of laws. The expression “the rights of third parties acting in good faith” will extend to all third-party rights under the rules of maritime and admiralty law applicable in the Competent Court, whether by virtue of national law or by virtue of any international treaty to which the state seizing the pirate ship is party.[11]
General State practice[12] shows that that seizured ships from high seas or territorial waters are returned to the flag State. It would be proper to conclude that the same rules should be applied to pirate ships and pirates according to article 105 trialed in the municipal courts of the state of seizure.
III. The Role of the Security Council in the fight agains Piracy
The UN Charter established the Security Council as a political organ with primary responsibility for international peace and security. Like other institutions in the UN system, it was given the responsibility for determining its own competence: its decisions are binding on all states but not subject to formal review by any other institution.[13]
Following the September 11, 2001, attacks in the United States, the Council assumed even greater importance on international level. In this way the Security Council has grown beyond its initial role as a political forum and frequently serves important legal functions: establishing binding rules of general application, making determinations of law or fact, and overseeing the implementation of its decisions. These new roles – as legislator, judge, and executive – have made possible swift and decisive action in response to perceived threats to international peace and security on the basis of international law.
1.Security Council Resolution Under Chapter VII
Security Council has been entitled by Chapter VII of the United Nations Charter with the collective use of force in order to restore and maintain international peace and security and Resolutions drafted under Chapter VII are binding upon all United Nation state members.
1.1.The Review of Chapter VII Resolutions
The Security Council cannot behave arbitrarily when acting under Chapter VII. The powers of the Council, as exceptional as they may be in the realm of the maintenance of international peace and security, are limited by the principle of legality.[14]. Therefore, any resolution adopted under Chapter VII that violates fundamental norms of the Charter is to be considered ultra vires and consequently illegal. Resolutions under Chapter VII can be submitted to a review to different Courts.
The ICJ could review the Security Council decisions either on the occasion of a contentious case or through an advisory opinion. [15] Thus, when a dispute arises between two or more states, the legality of a Chapter VII resolution can be challenged by way of exception. It happened in the Lockerbie cases[16], where Libya invoked the invalidity of two resolutions relied upon by the defendants, the United States and the United Kingdom.
On the other hand, the General Assembly or even the Security Council itself can make a request for advisory opinion concerning the legal validity or the legal effects of certain decisions adopted in matters involving the maintenance of international peace and security. The only advisory opinion asked for by the Council in the Namibia case[17] is such an example.
In first instance, the European Court of Justice respected the special priority status of the UNCharter and the binding resolutions of the Security Council taken under Chapter VII, and it indicated that it had no authority to review whether Security Council resolutions were consistent with fundamental rights.[18] However, in a remarkable subsequent move, the European Court empowered itself to check whether the Security Council resolutions were consonant with norms of jus cogens, since, the Court said, these rules have a higher status, are non-derogable, and are binding on all subjects of international law, including the organs of the United Nations.[19]
The Security Council were submitted to rewiev on the first cases of the International Criminal Tribunals- namely International Criminal Tribunal for the former Yugoslavia [20] and International Criminal Tribunal for Rwanda.[21]
2. Security Council Resolutions regarding piracy
In recent years, the Security Council emphasized the importance of cooperation in repressing piracy through routine patrols to deter the crime, as well as collaborative action—after the pirates are caught—to bring them to justice.[22]
At the prompting of the secretary-general of the International Maritime Organisation, in 2008 the Security Council turned its attention toward combating piracy and adopted four key resolutions under chapter VII of the U.N. charter, authorizing “all necessary measures.”
Resolution 1816 .Beginning with Resolution 1816[23], the Security Council faced the issue of defeating piracy emanating from a fragile or failed state. For years, pirates in the Horn of Africa eluded capture at sea by fleeing into the jurisdictional protection of Somalia’s 12-nautical mile territorial sea.[24] Resolution 1816 authorized naval forces entry into Somali’s territorial waters to pursue pirates. Since its adoption, the resolution has been extended to permit operations on the land territory of Somalia. The resolution also emphasized cooperation for logistics and prosecution by calling on states to collectively determine jurisdiction in the investigation and prosecution of persons committing acts of piracy off the coast of Somalia.
Moreover, the resolution also encouraged states to increase and coordinate their efforts to deter acts of piracy in conjunction with the Transitional Federal Government of Somalia, a ruling authority inside the fractured state. Since Somalia has no maritime law enforcement capability, the resolution also called on states, the International Maritime Organisation and other international organizations to build a partnership to develop coastal security forces.
Resolution 1816 attracted most attention by the fact that it uses the words ‘all necessary means’—commonly associated with a general authorization to use military force[25]— and adds to those few occasions when the Council has authorized interdiction operations in a State’s territorial sea.[26] Resolution 1816 also require authorized international measures to be undertaken in accordance with humanitarian and human rights laws.
Resolution 1838. Next, the Security Council adopted Resolution 1838[27], expressing its grave concern over the proliferation of acts of piracy and armed robbery at sea against vessels off the coast of Somalia, and the threat it poses to the delivery of World Food Program shipments to Somalia. The resolution called upon states to take part in actively fighting piracy by deploying naval vessels and aircraft to the Gulf of Aden and surrounding water. The Security Council also reaffirmed that the Law of the Sea Convention embodies the rules applicable to countering piracy and armed robbery at sea.
Resolution 1846. Security Council Resolution 1846[28] of December broadened the international political support and legal capabilities to combat piracy off the Somali coast. The resolution suggests states consider application of the 1988 Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) to facilitate the extradition and prosecution of pirates. In most cases, Resolution 1846 and SUA Convention provide a firm legal basis for fighting agains piracy, and states should ensure their domestic authorities are consistent with the resolution and treaty. [29]
Resolution 1851. Two weeks later since the previous resolution the Security Council adopted Resolution 1851[30], authorizing states to take action against piracy safe havens on the shore in Somalia. The authority is likely to be cautiously implemented, however, since major land operations in the country could be perilous. This extraordinary permission is a legal innovation limited to Somalia and the Gulf of Aden, and other states adjacent to international waterways insisted that it did not necessarily set a precedent. But this innovative resolution demonstrates that there are already some useful models in place for addressing piracy.[31] The resolution also invited the states with maritime forces in the area and the regional states to conclude “shiprider” agreements or arrangements so that local law enforcement officials could embark on board foreign warships patrolling the area. The regional countries are particularly important in this regard because they are ideally situated to conclude the endgame — conducting a criminal investigations and criminal trials.
Regarding the supply of thnical asistance and weapons, Resolution 1846 authorized the provision of technical assistance to Transitional Federal Government of Somalia personnel and forces enhance the capacity of states to ensure coastal and maritime security” in accordance with procedures outlined in Resolution 1772[32]. Under paragraphs 11 and 12 of Resolution 1772, the supply of technical assistance to Somali “security sector institutions” is authorized provided that prior case-by-case notification is made to the U.N. arms embargo Committee for Somalia.
Resolution 1851 provides similar authorization to weapons and military equipment destined for the sole use of Member States and regional organizations undertaking authorized anti-piracy operations in Somali waters. The transfer of weaponry to Somali maritime security forces would require separate authorization from the Security Council. The African Union’s Peace and Security Council and the Transitional Federal Government long requested that the broader U.N. arms embargo be amended or lifted in order to improve the capabilities of forces fighting Islamist insurgents. On May 26, 2009, the United Nations Security Council unanimously adopted Resolution 1872[33], granting new authorization for members states to participate in the training and equipping of the Transitional Federal Government security forces in accordance with Resolution 1772. [34]
Based on Resolution 1851, the Bush Administration led the formation of a multilateral Contact Group on Piracy off the Coast of Somalia (CGPCS) made up of 24 member governments and five regional and international organizations. The Contact group held its first meeting in January 2009 and identified six tasks for itself:
1) improving operational and information support to counter-piracy operations,
2) establishing a counter-piracy coordination mechanism,
3) strengthening judicial frameworks for arrest, prosecution and detention of pirates,
4) strengthening commercial shipping self-awareness and other capabilities,
5) pursuing improved diplomatic and public information efforts, and
6) tracking financial flows related to piracy.[35]
In support of these goals, four working groups make recommendations at periodic meetings of the Contact Group secretariat on relevant military/operational, judicial, diplomatic, and public information aspects of regional and international anti-piracy efforts. The goals of the working groups’ efforts are to improve operational coordination, information sharing, and the effectiveness of legal enforcement activities among all regional and international actors combating piracy in the region.[36]
Conclusions
Piracy has become during recent years a phenomenon spread especially off coast of Somalia as many ships transporting various goods- even food or aid deliveries- have been attacked and taken hostage for randsom.
Piracy off coast of Somalia has become a threat to the international peace and security due to the fact that Somalia has bcome a failed state[37]- it lacks control over the means of piracy, and cannot create peace or stability for their populations or control its territory, it cannot ensure economic growth or any reasonable distribution of social goods. For this reason the Security Council adopted four resolutions under the provisions of Chapter VII, some of them leading to the adoption of other measures in order to fight agains piracy.
Chapter VII resolutions on piracy are binding upon all state members. Hovewer The International Court of Justice- and other international judicial bodies- is competent to declare invalid such a binding resolution of the Security Council, on the ground of being either ultra vires the UN Charter or incompatible with peremptory norms of international law- jus cogens.[38] But the essence of the fight agains piracy remains the cooperation between the members of the international community.
List of sources
INTERNATIONAL LEGAL INSTRUMENTS
· International Expert Group on Piracy off the Somali Coast, Final Report: Workshop commissioned by the Special Representative of the Secretary General of the UN to Somalia Ambassador Ahmedou Ould-Abdallah, November 10-12, 2008, Nairobi, Kenya;
· Statement of Contact Group on Piracy off the Coast of Somalia, New York, January 14 2009;
· United Convention on the Law of the Sea;
· United Nations Charter;
· United Nation Security Council Resolution 1772 from 20 August 2007;
· United Nation Security Council Resolution 1816 from 2 july 2008;
· United Nation Security Council Resolution 1838 from 7 Octomber 2008;
· United Nation Security Council Resolution 1846 from 2 December 2008;
· United Nation Security Council Resolution 1851 from 16 December 2008;
· United Nation Security Council Resolution 1872 from 26 May 2009.
CASES OF INTERNATIONAL COURTS/TRIBUNALS
A) International Court of Justice
Legal Consequences for states of the continued presence of South Africa in Namibia( South-West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971;
Questions of interpretation and application of the 1971 Montreal Convention arising from the aerial incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998.
B) Arbitrary decision
· Claim of the British Ship “I’m Alone” vs. United States, Arbitral Award of 30 June 1933, Reports of International Arbitral Awards, Volume 3.
C) International Tribunal for Law of the Sea
· ITLOS: The "Camouco" Case (No. 5), (Panama v. France), Judgment of 07.02.2000;
· The "Juno Trader" Case (No. 13), (Saint Vincent and the Grenadines v. Guinea-Bissau), Judgment of 18.12.2004.
D) International Criminal Tribunal for the former Yugoslavia
· ICTY: (Appeals Chamber), Prosecutor v. Tadiç, Decision on Jurisdiction, 2 October 1995.
E) International Criminal Tribunal for Rwanda
· ICTR : Prosecutor v. Kanyabashi, Decision on Jurisdiction, 18 June 1997.
F) European Court of Justice
· ECJ: Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council and Commission, Case T 306/01;
· ECJ: Yassin Abdullah Kadi v. Council and Commission, Case T 315/01.
Municipal decisions
· US: U.S. vs. Smith (5 Wheaton 153), 1820.
BOOKS AND TREATIES
· Aust. A, (2005), „Handbook of international law”, Cambridge: Cambridge University Press
· Barry Hart Dubner, (1980), ”The law of international sea piracy- Developements in international law 2” ,The Hague: Martinus Nijhoff Publishers
· Dinstein, Yoram, (2001), “War, Aggression and Self Defense”, Cambridge, Cambridge University Press, 3rd edition
· Evans. M.D.,(2006), “International Law”, Second Edition, Oxford: Oxford University Press
Myron H. Nordquist,Shabtai Rosenne, Satya N. Nandan,University of Virginia. Center for Oceans Law and Policy, (2002), „United Nations Convention on the Law of the Sea, 1982: a commentary”, Vol. 3, The Hague: Martinus Nijhoff Publishers
· Shaw, M. (2003), “International Law”, 5’th Edition, Cambridge: Cambridge University Press
PERIODICALS
· Brad Poore,(2009) Somaliland: Shackled to a Failed State in Stanford Journal of International Law, 2009 vol 117 no.45;
· Douglas Gouilfoyle, (2008), Piracy off Somalia- UN Security Council Resolution 1816 and IMO regional counter piracy efforts, in International and Comparative Law Quarterly, 2008, vol 57;
· F. Morgenstern,(1976), Legality in International Organizations, 48 British Yearbook of International Law (1976/1977);
· International Law – Piracy iure gentium- actual robbery not an essential element - Reference under the Judicial Committee Act, 1833; Re Piracy lure Gentium in 1934 Texas Law Rewiew, 1934, Vol. 51 no.12;
· Ioana Petculescu, (2005), The review of the United Nations Security Council Decisions by the International Court Of Justice, in Netherlands International Law Review, 2005, LII: 167-195;
James Kraska and Brian Wilson,(2008), Fighting Pirates: The Pen and the Sword, in World Policy Journal, Winter, 2008/09;
· James Kraska, Brian Wilson,(2009) Fighting piracy- International coordination is key to countering modern-day freebooters, in Journal of Armed Forces, February 2009;
· Larissa van Den Herik, (2007), The Security Council’s Targeted Sanctions Regimes: In Need of Better Protection of the Individual, in Leiden Journal of International Law, 2007, no.20;
· Lauren Ploch, Christopher M. Blanchard, Ronald O'Rourke, R. Chuck Mason, Rawle O. King,(2009), Piracy off the Horn of Africa, Congressional Research Service, September 28, 2009;
· McLaughlin,(2002), United Nations Mandated Naval Interdiction Operations in the Territorial Sea?, International and Comparative Law Quarterly 2002, vol. 51;
· Sarkin, J. (2009), The Role of the United Nations, the African Union and Africa’s Sub-Regional Organizations in Dealing with Africa’s Human Rights Problems: Connecting Humanitarian Intervention and the Responsibility to Protect in Journal of African Law, 2009, vol.53 no.1;
· Simon Chesterman,(2009), I’ll Take Manhattan: The International Rule of Law and the United Nations Security Council, Hague Journal on the Rule of Law,2009, no.1;
· Tiffany Basciano,(2009), „Contemporary Piracy: Consequences and Cures -A Post-Workshop Report”, October 2009;
· Virginia Morris (1998), Prosecutor v. Kanyabashi - Decision of International Criminal Tribunal for Rwanda on its jurisdiction and the powers of the UN Security Council in American Journal of International Law, Vol. 92, No. 1.
[1] International Expert Group on Piracy off the Somali Coast, Final Report: Workshop commissioned by the Special Representative of the Secretary General of the UN to Somalia Ambassador Ahmedou Ould-Abdallah, November 10-12, 2008, Nairobi, Kenya.
[2] Lauren Ploch, Christopher M. Blanchard, Ronald O'Rourke, R. Chuck Mason, Rawle O. King,(2009), Piracy off the Horn of Africa, Congressional Research Service, September 28, 2009, p.8
[3] James Kraska and Brian Wilson,(2008), Fighting Pirates: The Pen and the Sword, in World Policy Journal, Winter, 2008/09, p.43
[4] Sarkin, J. (2009), The Role of the United Nations, the African Union and Africa’s Sub-Regional Organizations in Dealing with Africa’s Human Rights Problems: Connecting Humanitarian Intervention and the Responsibility to Protect in Journal of African Law, 2009, vol.53 no.1, p.13
[5] Aust. A, (2005), „Handbook of international law”, Cambridge: Cambridge University Press, p.269
[6] Article 101 of the 1982 United Nation Convention On the Law of the Sea
[7] Shaw, M. (2003), “International Law”, 5’th Edition, Cambridge: Cambridge University Press; p.549
[8] International Law – Piracy iure gentium- actual robbery not an essential element - Reference under the Judicial Committee Act, 1833; Re Piracy lure Gentium in 1934 Texas Law Rewiew, 1934, Vol. 51 no.12, p.1
[9] Evans. M.D.,(2006), “International Law”, Second Edition, Oxford: Oxford University Press, p.637
[10] Barry Hart Dubner, (1980), ”The law of international sea piracy- Developements in international law 2” ,The Hague: Martinus Nijhoff Publishers, , p.45; U.S. vs. Smith (5 Wheaton 153), 1820, p. 7-8
[11] Myron H. Nordquist,Shabtai Rosenne, Satya N. Nandan,University of Virginia. Center for Oceans Law and Policy, (2002), „United Nations Convention on the Law of the Sea, 1982: a commentary”, Vol. 3, The Hague: Martinus Nijhoff Publishers, p.212
[12] ITLOS: The "Camouco" Case (No. 5), (Panama vs. France), Judgment of 07.02.2000, para.72; ITLOS: The "Juno Trader" Case (No. 13), (Saint Vincent and the Grenadines v. Guinea-Bissau), Judgment of 18.12.2004, para.97; Claim of the British Ship “I’m Alone” vs. United States, Arbitral Award of 30 June 1933, Reports of International Arbitral Awards, Volume 3, p.1609
[13] Simon Chesterman,(2009), I’ll Take Manhattan: The International Rule of Law and the United Nations Security Council, Hague Journal on the Rule of Law,2009, no.1, p.70
[14] F. Morgenstern,(1976), Legality in International Organizations, 48 British Yearbook of International Law (1976/1977), pp. 241-257.
[15] Ioana Petculescu, (2005), The review of the United Nations Security Council Decisions by the International Court Of Justice, in Netherlands International Law Review, 2005, LII: 167-195 p.178
[16] CIJ: Questions of interpretation and application of the 1971 Montreal Convention arising from the aerial incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 9
[17] CIJ: Legal Consequences for states of the continued presence of South Africa in Namibia( South-West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971
[18] ECJ: Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council and Commission, Case T 306/01;para.260-276; ECJ: Yassin Abdullah Kadi v. Council and Commission, Case T 315/01, para. 209-225.
[19] Larissa van Den Herik, (2007), The Security Council’s Targeted Sanctions Regimes: In Need of Better Protection of the Individual, in Leiden Journal of International Law, 2007, no.20, p.801
[20] ICTY: (Appeals Chamber), Prosecutor v. Tadiç, Decision on Jurisdiction, 2 October 1995, para. 29, 105 ILR (1997) p. 465.
[21] ICTR : Prosecutor v. Kanyabashi, Decision on Jurisdiction, 18 June 1997, p. 4 in Virginia Morris (1998), Prosecutor v. Kanyabashi - Decision of International Criminal Tribunal for Rwanda on its jurisdiction and the powers of the UN Security Council in American Journal of International Law, Vol. 92, No. 1 pp. 66-70
[22] James Kraska and Brian Wilson,(2008), Fighting Pirates: The Pen and the Sword, in World Policy Journal, Winter, 2008/09, p.48
[23] United Nation Security Council Resolution 1816 from 2 july 2008
[24] James Kraska, Brian Wilson,(2009), Fighting piracy- International coordination is key to countering modern-day freebooters, in Journal of Armed Forces, February, 2009
[25] Douglas Gouilfoyle, (2008), Piracy off Somalia- UN Security Council Resolution 1816 and IMO regional counter piracy efforts , in International and Comparative Law Quarterly, 2008, vol 57, p.695
[26] McLaughlin,(2002), United Nations Mandated Naval Interdiction Operations in the Territorial Sea?’, International and Comparative Law Quarterly 2002, vol. 51, p. 249.
[27] United Nation Security Council Resolution 1838 from 7 Octomber 2008
[28] United Nation Security Council Resolution 1846 from 2 December 2008
[29] James Kraska, Brian Wilson,(2009), Fighting piracy- International coordination is key to countering modern-day freebooters, in Journal of Armed Forces, February, 2009
[30] United Nation Security Council Resolution 151 from 16 December 2008
[31] Tiffany Basciano,(2009), „Contemporary Piracy: Consequences and Cures -A Post-Workshop Report”, October 2009 p.9
[32] United Nation Security Council Resolution 1772 from 20 August 2007
[33] United Nation Security Council Resolution 1872 from 26 May 2009
[34] Lauren Ploch, Christopher M. Blanchard, Ronald O'Rourke, R. Chuck Mason, Rawle O. King,(2009), Piracy off the Horn of Africa, Congressional Research Service, September 28, 2009, p.18
[35] Statement of Contact Group on Piracy off the Coast of Somalia, New York, January 14, 2009.
[36] Lauren Ploch, Christopher M. Blanchard, Ronald O'Rourke, R. Chuck Mason, Rawle O. King,(2009), Piracy off the Horn of Africa, Congressional Research Service, September 28, 2009, p.18
[37] Brad Poore,(2009) Somaliland: Shackled to a Failed State in Stanford Journal of International Law, 2009 vol 117 no.45, p.2
[38] Dinstein, Yoram, (2001), “War, Aggression and Self Defense”, Cambridge, Cambridge University Press, 3rd edition; p.282
(HORUS)
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