Counter-piracy encompasses the various methods employed to prevent maritime piracy, including evasion, patrol, and interdiction. UNCLOS does not directly address maritime piracy but does contain provisions relevant to maritime interdiciton operations.
Ratifying LOSC will also enhance U.S. counter-piracy efforts by improving America’s ability to shape the legal authorities the international community relies on to combat piracy, especially in instances where existing agreements do not account for advancements in technology. The United States, for example, relies increasingly on remote sensing systems and a fleet of low- and high-altitude remotely piloted vehicles to provide persistent surveillance where the United States lacks a sustained maritime presence. These technologies may help U.S. maritime officials track piracy activities and facilitate a faster response. However, as one analyst notes, use of these technologies may not be clearly protected within existing international maritime treaties, including LOSC: “[R]emote sensing from satellites and high-flying surveillance aircraft have for decades undertaken maritime scientific research and surveys in others[’] EEZs without the permission – or even the advance knowledge – required by the 1982 UNCLOS.”16 As the United States continues to field remotely piloted or semi-autonomous vehicles and sensors – including maritime ones – it will need to be prepared to challenge efforts to constrain or prohibit their use.
Not only does the Convention provide a clear definition of piracy and basis for capture and prosecution of pirates, it also imposes an affirmative obligation upon parties to make efforts to curtail piracy.144 Critics of the Convention argue that it actually impedes the United States’ ability to chase and capture pirates because a ship must cease pursuit if the ship it is chasing enters its own or a third state’s territorial waters.145 They assert that this provision provides pirates with a safe haven to retreat to undeterred, and that the Convention prevents non-territorial state ships from pursuing the pirates.146 This is troubling largely because of the strong presence of Somali pirates.147 For example, under this provision, Somali pirates can attack ships and if they risk getting captured, rush back into their own state’s territorial waters where they would be safe. Somalia, a nation plagued by its own problems of lawlessness and poverty, is in no position to apprehend these criminals.148 In such a circumstance, however, the United States can assert that Article 100 of Part VII of the Convention, which imposes upon member parties the duty to cooperate in the repression of piracy, gives it the authority to continue pursuit.149 Somalia is a party to the Convention and where it cannot assist in apprehending and trying pirates, it must cooperate with others who can. This includes permitting states that are working to repress piracy by pursuing pirates to do so within Somalia’s territorial waters.150 Furthermore, a December 2008 United Nations Security Council resolution called upon states to actively assist in combating piracy off of the coast of Somalia and gives them the authority to “undertake all necessary measures ‘appropriate in Somalia’ ” in furtherance of this end for a period of one year.151 In April of 2010, the United Nations Security Council adopted a resolution that calls upon states to criminalize piracy under their domestic law and consider prosecution of and imprisonment of apprehended Somali pirates.152 This resolution also seeks a report from the Secretary General of the United Nations to present options for purposes of “prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia.”153 Given this explicit guidance to counter piracy coupled with the Convention’s anti-piracy provisions, criticism that the Convention would preclude apprehending pirates does not hold up.
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
Ratifying LOSC will also enhance U.S. counter-piracy efforts by improving America’s ability to shape the legal authorities the international community relies on to combat piracy, especially in instances where existing agreements do not account for advancements in technology.