UNCLOS, but No Cigar: Overcoming Obstacles to the Prosecution of Maritime Piracy
The United States did not sign UNCLOS,76 but remains a party to Geneva LOS.77 UNCLOS superseded the Geneva LOS conventions as to parties of both treaties.78 Those parties include the major players in the fight against maritime piracy. Somalia, Kenya, Seychelles, Yemen, Denmark, France, Germany, the United Kingdom, China, India, and Japan are all parties to UNCLOS.79 Indeed, UNCLOS currently has 160 state parties,80 a sufficiently large proportion of all states for it to constitute a codification of customary international law.81 Additionally, submission for ratification gives UNCLOS force as between the United States and other state parties, and the United States has stated its intention to respect the rules of UNCLOS on “navigation and other matters.”82
UNCLOS parties would have several options if they desired to clarify this point. The International Tribunal for the Law of the Sea (ITLOS) has competence to issue an advisory opinion on the provision’s meaning.91 However, ITLOS lacks competence to try suspected pirates themselves.92 Despite calls to permit such trials through amendment to the statute of ITLOS or additional UNCLOS protocols,93 converting a judicial body initially designed to settle interpretive disputes among states relating to UNCLOS into a criminal tribunal remains unprecedented and impractical.94 UNCLOS article 105 would nonetheless preclude this possibility at ITLOS and other inter- national courts, such as the International Criminal Court, which also lack the mandate to hear piracy cases.95 Parties could alternatively amend UNCLOS to suit their needs through formal procedure by convening a consensus-seeking conference, or through simplified procedure, followed by adoption of an amendment and signature, ratification, or accession to it.96
Several factors make naval patrols the only true legal and practical option.117 Only warships can seize pirates under UNCLOS,118 and the IMO strongly cautions against arming merchant ship crews or carrying private security forces on-board because of the possibility for escalation of violence during pirate attacks.119 Moreover, Somalia lacks the power to control its own maritime territory, and so international antipiracy efforts necessarily do the job for it. The UNCLOS provisions that protect coastal states’ sovereignty would hamper antipiracy efforts. Since UNCLOS permits the establishment of a state’s territorial sea at the waters within twelve nautical miles from the coastal low-water line,120 and Somalia is a signatory of the treaty,121 pirates operating in a vast area around Somalia’s long coastline could theoretically harass and hijack ships with a manner of double impunity. States have thus gone to great lengths to address that obstacle. Yet safeguarding their ability to exercise jurisdiction in foreign territorial waters for enforcement purposes did not provide the broad and flexible adjudica- tive jurisdiction states today require.
The Somali Transitional Federal Government (TFG) and other semi-autonomous regions within Somalia are actively en- gaging with antipiracy efforts.122 Somalia went further than waiving its expulsion right under UNCLOS.123 It actively requested international assistance to combat unlawful acts in its waters and piracy,124 perhaps because it could not do so itself, but also because neither UNCLOS nor SUA would otherwise permit foreign navies to intervene in its waters.125 The Security Council subsequently passed a number of resolutions on the matter, which have authorized a robust use of military force.126 Notably, Resolution 1816 provides authorization for foreign states cooperating with the TFG to enter its territorial waters for the purpose of repressing piracy, provided the TFG notifies the Secretary General in advance of the agreement.127 Resolu- tion 1950 provides the most recent extension of that permission from the date of its adoption.128 Further, Resolution 1851 argu- ably extends that permission to land-based operations as well, which the French military has undertaken.129