Failing Somalia, Trapped in the Vicious Circle of Unsolved Old Issues and Rampant “New Piracy”. Current Legal Challenges (Part II)

Somalia has recaptured the international community’s attention in recent years, above all since it has become a base and haven for pirates preying on international shipping. Recent reiterated and rampant attacks occurring in the Gulf of Aden off the Somali coast (identified under the neologism “new piracy” because of their difficult qualification under traditional legal category of piracy), poses a significant threat to States and industry and may also have significant geopolitical repercussions besides placing in direct peril crewmembers. Parallel to the rise in the threat originating from the contemporary Somali piracy, over the last five years significant development of the necessary tools to catch pirates has proceeded in the private, national and international spheres. Shippers have indeed redesigned their defense policies and upgraded their onboard deterrents, while States have collaborated to dispatch naval warships to the Gulf of Aden. Moreover, the UN has reinforced these (operational) efforts with several initiatives at the normative level, with resolutions obliging – inter alia – coastal States Parties to the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) to accept SUA offenders for prosecution unless they explain why the Convention does not apply. In addition, the applicable Security Council resolutions reaffirm the power of navies to pursue pirates, even expanding these powers by authorizing pursuit on land. Against this background this study, gives a short preliminary overview of the legal framework of piracy (para 5.1), before illustrating the above mentioned regulatory as well as operational development of the tools to catch pirates. In this respect, it deals, first (at para. 5.2 and 5.3 below), with the identification and analysis of the more recent practice of counter – “piracy” measures off the Somali coast (particularly, with the initiatives aimed at fighting and repressing it adopted by the United Nations and/or by States-individually or under some original cooperative mechanisms recently adopted by the international community). Afterwards, (at para. from 6.1 to 6.4) it examines the actual options available in prosecuting pirates and then finally discusses the complex legal issues at stake in respect to the debate on counter-piracy law enforcement and the Laws of War (para. 7 and 8).