Piracy and armed robbery at sea : the legal framework for counter-piracy operations in Somalia and the Gulf of Aden / Robin Geiss, Anna Petrig.
2011
HV6433.786.S58 G45 2011 (Map It)
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Author
Title
Piracy and armed robbery at sea : the legal framework for counter-piracy operations in Somalia and the Gulf of Aden / Robin Geiss, Anna Petrig.
Published
Oxford ; New York : Oxford University Press, 2011.
Call Number
HV6433.786.S58 G45 2011
ISBN
9780199609529
0199609527
0199609527
Description
vxiii, 321 pages ; 24 cm
System Control No.
(OCoLC)701807872
Bibliography, etc. Note
Includes bibliographical references (pages [297]-312) and index.
Record Appears in
Added Author
Table of Contents
Preface
v
Acknowledgments
vii
List of abbreviations
xvi
Introduction
1
pt. 1
Current Efforts to Counter Piracy in Somalia and the Gulf of Aden
I.
Piracy in the Gulf of Aden
6
A.
The Gulf of Aden
6
B.
The Upsurge of Pirate Attacks in the Gulf of Aden since 2008
6
C.
Somali Pirates: Who Are They?
9
D.
Pirate Attacks: The Modus Operandi
10
E.
Ransom Payments: A Factor Fueling the Growth of Piracy
12
F.
The Situation in Somalia
13
II.
Efforts to Counter Piracy in the Gulf of Aden
17
A.
Naval Enforcement Missions Operating in the Region
17
1.
European Union Naval Force Operation Atalanta
18
2.
Consecutive NATO Operations
22
a.
Operation Allied Provider
22
b.
Operation Allied Protector
23
c.
Operation Ocean Shield
23
3.
United States-Led Combined Maritime Forces
24
B.
Coordination of National and Multinational Efforts to Counter Piracy
25
1.
Contact Group on Piracy off the Coast of Somalia
26
2.
Shared Awareness and Deconfliction
27
3.
Operation Atalanta Maritime Security Centre -- Horn of Africa
28
4.
United Kingdom Maritime Trade Organization Office in Dubai and the Maritime Liaison Office
29
C.
Criminal Repression of Piracy and Armed Robbery at Sea
29
1.
Catch-and-Release-Practices
29
2.
Criminal Prosecutions in Seizing States and Non-Seizing Victim States
30
3.
Criminal Prosecutions in Regional States
32
III.
Conclusion
35
pt. 2
Historic Evolution of Legal Rules Relating to Piracy, Armed Robbery at Sea and Other Forms of Maritime Violence
I.
Codification of Piracy Rules in the 20th Century
37
A.
Codification Efforts under the Auspices of the League of Nations
37
B.
Harvard Draft Convention on Piracy of 1932
38
C.
Convention on the High Seas of 1958
39
D.
United Nations Convention on the Law of the Sea of 1982
40
II.
Counter-Terrorism Rules Relevant for Violence against Ships and Persons on Board
41
A.
SUA Convention
42
B.
Hostage Convention
43
III.
Regional Instruments
44
A.
Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP)
45
B.
Djibouti Code of Conduct
48
IV.
Conclusion
51
pt. 3
Counter-Piracy Enforcement Powers and their Legal Constraints
I.
Scope of Counter-Piracy Enforcement Powers
55
A.
Enforcement Powers Granted by UNCLOS
55
1.
Article 110(1)(a) UNCLOS: The Right of Visit
55
a.
Ships that May be Visited
56
b.
Types of Enforcement Measures Authorized: Stopping, Boarding and Searching
57
2.
Article 105 UNCLOS: The Right to Arrest and Seize Pirate Ships
58
a.
Personal Scope of Enforcement Powers under Article 105 UNCLOS
59
aa.
Article 103 UNCLOS: The Definition of Pirate Ships
59
1.
Article 101 UNCLOS: The Definition of Piracy
59
i.
Illegal Acts of Violence
60
ii.
Acts Committed for Private Ends
61
iii.
The "Two-Ship-Requirement"
62
iv.
Acts Committed on the High Seas or in a Place Outside the Jurisdiction of Any State
63
2.
Remaining Definitional Ambiguities with Regard to Pirate Ships
64
bb.
Ships Taken by Piracy and Under the Control of Pirates
66
cc.
Persons and Property on Board
66
b.
Geographical Scope of Enforcement Powers under Article 105 UNCLOS
67
c.
Types of Enforcement Measures Authorized under Article 105 UNCLOS
68
B.
Extension of Enforcement Powers through Security Council Resolution 1846
70
1.
Extension of the Personal Scope of Enforcement Powers
71
a.
The Relationship between Piracy and Armed Robbery at Sea
72
b.
The Definition of Armed Robbery at Sea
73
2.
Extension of the Geographical Scope of Enforcement Powers: Authorizing Enforcement Powers within Somalia's Territorial Waters
76
3.
Types of Enforcement Measures Authorized under Security Council Resolution 1846
76
4.
A Hypothetical: An Ideal Maritime Law Enforcement Regime for the Repression of Piracy
77
5.
Conclusion
78
C.
Extension of Enforcement Powers through Security Council Resolution 1851
80
1.
Extension of the Personal Scope of Enforcement Powers
81
2.
Extension of the Geographical Scope of Enforcement Powers: Paving the Way onto Somalia's Mainland
81
3.
Types of Enforcement Measures Authorized under Security Council Resolution 1851
83
4.
Conclusion
83
D.
Authorization of Additional Enforcement Powers via Somalia's Specific Consent?
84
II.
Shiprider Agreements
85
A.
Specificities of Counter-Piracy Shiprider Agreements
87
1.
Common Rationale for the Use of Shipriders: Extending Enforcement Powers
87
2.
Context Specific Rationale for the Use of Shipriders: Facilitating Regional Criminal Prosecution of Pirates and Armed Robbers at Sea
87
3.
A Further Rationale for the Use of Shipriders: Enhancing Policing Skills and Capacity Building
89
B.
Legal Problems Potentially Arising from the Use of Shipriders
90
1.
"One Ship, One Law" Principle Put to Test
90
2.
A Challenge to the Rationale of Article 107 UNCLOS
92
3.
Risk of Circumventing Human Rights Obligations
93
C.
Conclusion
94
III.
Legal Constraints on Counter-Piracy Enforcement Powers
95
A.
General Safeguards Applicable to Maritime Interception Operations
96
1.
Safeguards Developed in International Case Law
96
a.
Safeguards Pertaining to Ship-to-Ship Operations
96
b.
Safeguards Pertaining to Operations on Board of Intercepted Vessels
98
2.
Future Article 8bis of the SUA Convention
98
3.
Caribbean Regional Agreement
99
4.
Towards a Minimum Safeguard Standard for Maritime Interception Operations
100
B.
Confines Derived From Human Rights Law
101
1.
Extraterritorial Application of Human Rights to Counter-Piracy Operations at Sea
102
a.
Application of Human Rights to Arrested Suspects Held on Military Ships
104
aa.
Application of Human Rights Directly Via the Flag State Principle
104
bb.
The "Quasi-Territoriality" of a Ship
105
cc.
Effective Control Exercised on Military Ships
105
b.
Application of Human Rights Law during the Interception-Phase
106
aa.
Effective "Area" Control at Sea: The Operational Radius of Military Ships
107
bb.
Effective Control Over Individuals: Individual Persons Within the Reach of a Military Ship
109
1.
Ship-to-Ship Operations Prior to Boarding a Pirate Ship
110
2.
Boarding and Searching a Pirate Ship and Arresting Persons on Board
111
c.
Relevance of Somalia's Consent to Counter-Piracy Operations for the Applicability of Human Rights Law
113
d.
A Hypothetical: Towards a Coherent Human Rights Protection in Multinational Law Enforcement Operations
114
2.
Multiple Layers in United Nations-Mandated (Multinational) Operations: The Attributability of Human Rights Violations
116
a.
The "Ultimate Authority and Control"-Test
116
b.
Dual or Multiple Attribution
126
3.
Application of International Humanitarian Law to Enforcement Operations against Piracy and Armed Robbery at Sea?
131
a.
Reference to International Humanitarian Law in Security Council Resolution 1851
131
b.
Requirements for the Application of International Humanitarian Law
132
c.
Law Enforcement Character of Current Counter-Piracy Operations
132
pt. 4
The Criminal Prosecution of Pirates and Armed Robbers at Sea
I.
Adjudicative Jurisdiction over Pirates and Armed Robbers at Sea
137
A.
Prosecuting Piracy
139
1.
Substantive Criminal Norms for Prosecuting Piracy
139
2.
Jurisdictional Bases for Prosecuting Piracy
143
a.
Jurisdictional Basis Derived from Customary Law
143
aa.
Piracy as the Paradigmatic Universal Jurisdiction Crime
143
bb.
Universal Jurisdiction Rationale in the Case of Piracy
145
1.
Heinousness of the Crime
145
2.
De-Nationalization of Pirates
146
3.
Special Locus Delicti of Piracy
147
b.
Jurisdictional Basis Conferred by Article 105 UNCLOS?
148
aa.
Article 105 UNCLOS: (Limited) Universality Principle?
149
bb.
Article 105 UNCLOS: Conflict-of-Law Rule?
151
cc.
Article 105 UNCLOS: Reaffirming that Prosecution Is Based on Domestic Criminal Law and Procedure
151
3.
Acts of Piracy: Duty to Extradite or Prosecute?
151
4.
Conclusion
152
B.
Prosecuting Armed Robbery at Sea
153
1.
Substantive Criminal Norms for Prosecuting Armed Robbery at Sea
153
a.
SUA Convention
153
aa.
Offenses Defined in Article 3 SUA Convention
153
bb.
Geographical Area in Which the SUA Offenses Can Take Place
155
cc.
Obligation to Enact Domestic Criminal Provisions
155
b.
Hostage Convention
156
2.
Jurisdictional Bases for Prosecuting Armed Robbery at Sea
156
a.
SUA Convention
156
aa.
Active Personality Principle
157
bb.
Territoriality Principle
157
cc.
Flag State Principle
158
dd.
Passive Personality Principle
159
ee.
Protective Principle
161
b.
Hostage Convention
161
3.
Armed Robbery at Sea: Duty to Extradite or Prosecute?
163
4.
Conclusion
164
C.
Impact of Security Council Resolutions 1846, 1851 and 1897 on the Criminal Prosecution of Pirates and Armed Robbers at Sea
165
1.
Conferring a Jurisdictional Basis?
165
2.
Establishing a Duty to Prosecute or Extradite?
166
3.
A Mere Call for Enhanced Interstate Cooperation in Criminal Matters
167
II.
Possible Venues for the Criminal Prosecution of Piracy Suspects
168
A.
The Regional Approach
170
1.
Regional Options to Further the Prosecution and Imprisoning of Persons Responsible for Acts of Piracy and Armed Robbery at Sea
170
a.
Prosecution in Regular Domestic Courts of Regional States
170
b.
The "Lockerbie Model" -- A Somali Court Sitting in the Territory of a Third State
172
c.
Specialized Piracy Chambers in the Domestic Courts of Regional States
172
2.
A Practical Example: Piracy Trials in Kenya
174
a.
The Human Rights Situation in the Judicial and Penitentiary System in Kenya
174
b.
Kenyan Criminal Law -- Hurdles to Overcome
177
B.
International Venues under Discussion
179
1.
International Piracy Tribunal Established by Virtue of a Chapter VII-Based Security Council Resolution
180
2.
A Regional Piracy Tribunal Set Up on the Basis of a Multilateral Agreement among Regional States
181
3.
International UN-Assisted Piracy Tribunal Based on an Agreement between the United Nations and a Regional State(s)
182
4.
Prosecuting Piracy in Existing International Judicial Fora
182
C.
General Questions Relating to International(ized) Prosecution of Pirates and Armed Robbers at Sea
183
D.
Conclusion
184
III.
Transfers of Suspects of Piracy or Armed Robbery at Sea
186
A.
Transfers as a Means to Bring a Suspect within another Jurisdiction for Criminal Prosecution
186
1.
The Necessity for Transfers: Seizing States Rarely Prosecute
186
2.
How a Change in Jurisdiction Is Obtained
187
a.
Extradition
187
b.
Art. 8 SUA Deliveries
187
c.
Transfers and Handovers
191
B.
Characteristics and Forms of Transfers in the Counter-Piracy Context
192
1.
Main Characteristics of Transfers
192
2.
Entities Deciding About Transfers of Piracy Suspects
194
a.
EUNAVFOR
194
b.
Nato
195
c.
National Contingents
195
3.
Receiving Entity
196
C.
The Normative Framework Pertaining to Transfers
196
1.
Law of the Sea: Does 105 UNCLOS Allow for Transfers to Third States?
197
2.
Transfer Agreements: Specific Rules on Transfers in the Somali Counter-Piracy Context
198
a.
Transfer Agreements Concluded Among States
198
b.
EU Transfer Agreements
199
aa.
Legal Basis: Article 12 Council Joint Action Operation Atalanta
199
bb.
Existing Transfer Agreements -- A Closer Look
200
1.
EU-Kenya Transfer Agreement
200
i.
Scope of Application: "Transferred Persons"
200
ii.
Main Content
201
iii.
Transfers Based on the Agreement
203
2.
Exchange of Letters between the Seychelles and European Union
204
i.
Scope of Application
204
ii.
Main Content
205
cc.
Ongoing Negotiations
206
3.
The Principle of Non-Refoulement in the Piracy Context
207
a.
Refugee Law
207
b.
International Humanitarian Law
209
c.
International Human Rights Law
209
aa.
The Scope of the Principle of Non-Refoulement
210
1.
Convention against Torture
210
2.
International Covenant on Civilian and Political Rights
213
3.
European Convention on Human Rights
216
bb.
Diplomatic Assurances in the Context of Counter-Piracy Operations
217
D.
Conclusion
220
Conclusion
221
Appendix
227
Bibliography
297
Index
313