SOMALI PIRATES IN TROUBLED WATERS OR A LEGAL BLOW AGAINST THE UNCLOS, 1982 : Credibility of UNSC resolutions in a failed State

Despite that Somalia enjoys territorial integrity and political independence, it has no representative government locally and internationally, no central government to look into the affairs of the State. Turmoil, chaos, disorder and anarchy prevail at its highest with insurgents, terrorists, warlords and piracy as a new scourge since 1991 when functional government ceased to exist in Somalia. Multiple sub State (Somaliland and Puntland) groups control various sections and layers of the territory or segments of the population.
UNSC resolutions give mandates to States to repress acts of piracy and armed robbery on the high seas with respect to piracy under relevant international law (UNSC Resolution 1816) but they never cater for those as to who should prosecute the pirates? In the same line the UNCLOS, 1982 does not contain any definition of when an individual can be categorized as a pirate. UNSC Resolution 1851 declares that States must cooperate with the STFG to ‘undertake all necessary measures that are appropriate in Somalia for the purpose of suppressing acts of piracy and armed robbery at sea” but STFG is neither a State nor a functional government elected by its people for its people and has certainly no authority to rule Somalia and it has never been mandated by the Somali people to speak or to represent them. How can States cooperate with the STFG that has no power, unlike a State with a proper government per se, to, inter alia, negotiate and ratify treaties, covenants and resolutions? It is trite law that any State cannot enter into international agreements without a representative government. And this is what is happening in a divided Somalia. Under Article 39 of the UN Charter the UNSC (Chapter VII) may use force in any State provided it satisfies a sole criterion: that the State is a threat to peace and security to the international community and there is no need to have the consent of that State. However, ironically UNSC passed Resolution 1851 which stipulates that foreign troops may enter Somalia to repress and arrest pirates provided that the STFG has consented. Here, some authors suggested that UNSC resolutions are superfluous (Treves, 2009).
UN passed a certain number of resolutions (Resolution 1816, 1836, 1844, 1846, 1851 and Resolution 1897) to confirm the sovereignty of Somali. However, it is undisputed that Somalia is a ‘failed State’ (supra) which lacks government, as explained (supra), and is not in a position to negotiate actually with other States in any way. After the extradition of pirates from the Victim State or Seizure State back to Somali according to transfer of suspected persons (EU-Kenya Transfer Agreement and the EU-Seychelles Transfer Agreement for example) who will look after them since all institutions have collapsed and there is no functional police or judiciary?
Under UNSC Resolution 1851 States who still wish to cooperate with the STFG may enter Somalia to arrest pirates. UNSC Resolution 1846 (10) provides that States and organizations which are cooperating with the STFG may enter into the ‘territorial waters’ of Somalia for the purpose of repressing acts of piracy and armed robbery at sea with all necessary means to repress such acts. Apart from the undisputed fact that this amounts to a violation of a State’s sovereignty (supra) who will prosecute suspected pirates once they have been captured in Somali or outside Somalia? To this question, first all institutions have collapsed and there are no courts and administrative buildings at all. Second, which States would like to enter in the troubled waters of Somali to chase pirates, civil-war insurgents, terrorists, warlords capable of engaging themselves into non-international armed conflicts. It is important to point out here that both the ReCAAP (Article 2 (5)), which is an international legal binding instrument, and the Djibouti Code of Conduct (Article 15(j)) deny any right of foreign vessels to enter another State’s territorial waters in order to counter piracy. And in no way is Somalia an exception to the general rule.
Major Problems in Somalia Unsolved
The UN fails to handle the main problems facing Somalians: poor socio-economic development; Illegal, Unreported and Unregulated fishing (IUU); maritime poaching, free and fair election to settle back a government to deal with its socio-economic problems. Western countries, the US principally, are not willing to give support and financial aid to a country like Somalia where there is no economic benefit and material gain unlike in Iraq or Israel. One of the main offences of piracy is primarily armed robbery at sea; and where there may eventually be attacks, murder and wounds and blows; but this concept of armed robbery at sea does not even appear in the UNCLOS, 1982. Western countries have not yet participated (except the US-led Combined Task Force 151 which is deployed in the Horn of Africa and the Gulf of Aden) actively or with an intent to commit to a cause in Africa where there is no material, economic of financial gain like in Irak or strategic benefit like the Chagos Archipelagos for example. Nevertheless, NATO, the US-led Combined Task Force 151 and The European Union Naval Force Operation Atlanta have been deployed within the framework of the European Security and Defense Policy to protect maritime trade (piracy alone in the Indian and Pacific Oceans result in the loss of $ 13-15 billion annually due to maritime piracy on vessels, tankers, ransom payment which ranges from $3 to $ 5 million, and loss of materials and logistics) after an Internationally Recommended Transit Corridor has been established. The International Maritime Bureau (IMB) is also playing a vital role in communication and information to eradicate piracy (329 piracy cases were reported worldwide, 23 ships were attacked by Somali pirates in 2005 with 440 hostages taken, in 2007 111 piracy cases were reported in Somalia and 217 in 2009. Pirate attacks may provoke oil leakage and oil/petrol/hazardous and dangerous products spill-over in our seas and beaches with disastrous impacts on our tourism sector and consequently income of this emerging sector in Mauritius. Maritime trade occupies approximately 80% of international trade and it is time to reflect on it now before it is too late. Finally, as far as the UNCLOS, 1982 is concerned is it obsolete? Probably yes!

References
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Geib R. and Petrig A. (2010), Piracy and Armed Robbery at Sea, Volume I, Oxford University Press.
Gordon R. E. (1995), Some legal problems with trusteeships, 28 Cornell International Law Journal 301 at 332
Gunputh R.P. (2013): Dilemma of Somali Pirates and SIDS in the Indian Ocean -The Mauritian Case Study-Global Maritime Annual Conference 2013, Gujarat National Law University, Gujarat, India
Gunputh R.P. (2013), Prosecution of Non-State Actors under Municipal Law according to International Maritime Law. Some Legal Implications in a Failed State- The Somali Piracy Case Study-
Gunputh R.P.(2013): Pirates of Aden v. Governments of Eden: Myth or reality? Organised by the University of Lancashire (UClan), UK, September 2013, Garden Flower, Port-Louis, Book of Abstracts
Gunputh R.P (2013), International Law in a ‘Failed State’ -The Indian Ocean Somali Piracy Case Study-
Iyi J-M (2011), Somali Piracy, UNSC Resolutions 1816-1851: dilemma of state failure and the burden of legitimacy, p. 47-78, African Yearbook on International Humanitarian Law, Juta

Source: Le Mauricien.com