Introduction
On April 8, 2009, a Danish owned ship manned by 21 Americans were captured by Somali pirates off the coast of Eyl, Somalia. The siege of the ship lasted for four days before a rescue mission of the US Navy killed off three of the four pirates and captured the fourth. Spawning a Hollywood movie, the seizure of the American flagged ship became the most publicized pirate attack in the world. Somalia was seen as a failed state overrun by rebels and terrorists on land and pirates at sea, with lawlessness rampant through the region. The barbarism of piracy in the 21st century was shocking to many who have not paid attention to maritime politics and the geopolitics of failed countries.
Nevertheless, piracy in the Gulf of Aden is not a series of isolated events, but a resilient crime wherever there is maritime commerce and lack of security. There have been different types of responses to these attacks, but with the creation of the United Nations, the international community set into motion the UN Convention of the Law of the Sea (UNCLOS) which provides a charter of international law that deals with piracy on the high seas. However, UNCLOS does not include many facets on the crime of piracy that will be explained later in this paper. When it comes to the global community, it is essential to re-define authority over piracy as the protection of vital state interests shared by the universal public, a perception misunderstood as universal jurisdiction.
Maritime Piracy
Unlike other international crimes, maritime piracy does not include any kind of trafficking contraband or involve an illegal market. According to the UN Organization on Drugs and Crime (UNODC), maritime piracy is a “violent, acquisitive crime.” It is a multinational issue because a ship is considered “the sovereign territory of the nation whose flag she flies.” The term piracy comprises of two definite sorts of crimes, the first is hijacking, where the target of the attack is to steal a maritime vessel or its shipment; the second is kidnapping, where the vessel and crew are held hostage until a ransom is paid.
Maritime piracy is an antique issue but after decades in decline, it was prominent in the Mediterranean because of the lucrative business since most trading happened through sailing. There is evidence throughout history in all parts of the world, from the Greeks to the Vikings, that piracy has been a part of dangers of sailing on the high seas where there is no policing. it rose dramatically in recent years. The International Maritime Organization (IMO), a specialized agency of the United Nations has recorded over 5,500 pirate attacks against international shipping since 1984. In 2009 alone, the IMO received over 400 reports of piracy, which was a 25% increase from 2008. Refer to the charts at end to see the statistics of pirate attacks in the world between 2000 and 2009. Of the 980 successful maritime piracy incidents during the five-year period between 2005-2009, 527 involved theft of goods on board a ship. Hijacking and kidnapping occurred 159 times during the same period. In 2009, 867 seafarers were captured and held for ransom off of the coast of Somalia.
Most naval pirates seek to steal goods on a ship, seize the vessel, and or ransom off the crew. For the most part, piracy involves armed robbery beyond the territorial sea of a state, and is apolitical. Along the coast of West Africa and especially Nigeria, rebels use piracy as a means to coerce redistribution of the nation's oil capital. Along the Gulf of Aden, pirates became active ever since the depletion of fish along the coast land. It originated from a survival need to a lucrative business. Maritime piracy is a function when there is a lack of governance on land in a state, when a government does not have a monopoly of force, illegal activities such as piracy is suddenly viable. Therefore, the most successful efforts to suppress piracy are land based political solutions, such as the piracy issue in the Malacca Straits.
As a domain primarily valuable for movement, the oceans have a great effect on world politics, demographics, and economics. Civilizations have emerged on the edges of large bodies of water and historically, port cities have prospered because the oceans are the world’s geopolitical glue. Tokyo, New York and London all provide pathways to the oceans and most of the population of the world congregate near the coastlines. Although the world oceans are interconnected, most piracy occurs only a few hundred miles from the shorelines of states. Pirates may raid ships on the high seas, but their base is along the coastline. This shows the clear correlation that states that do not have the monopoly of force most times will have pirates. Now the question is, because these pirates operate on the high seas, if captured, who has the jurisdiction, the ship that was attacked, the country of origin of the pirates, or the international community. There are laws on the oceans, international norms that countries follow, and the clear rules of the resolutions passed by the United Nations.
UNCLOS
The laws of the oceans predate contemporary transnational regulations and the rise of modern diplomacy. The rules of the high seas were a precursor to the 1648 Peace of Westphalia, which ended the Thirty Year’s War and led to the development of the modern law of nations.
According to international law, piracy takes place outside the standard jurisdiction of a state, without state authority, and is private, not political, through actions of illicit conflict, acts of rebellion, rebels and insurgents, and human trafficking have been outlined as piracy by national laws of numerous countries by particular treaties. The United Nations Security Council has outlined piracy as a threat to international peace and security, but as yet the United Nations Conventions on the Law of the Sea is considered an ambiguous treaty at best and a reactionary tool that limits international governance more than it actually helps. International law regulates the use of force at sea but many states have begun to individually adapt their laws to regulate piracy and it starting to become common that merchant ships are increasingly becoming more militarized to combat the threat of piracy. There are calls to either reform UNCLOS or to close the loopholes within the treaty so that it guarantees a balance between the safety of ships and the freedom of the sea.
International Community
Not many people know what global governance is or how it affects the world and individuals. Research has shown that norms create social structure, standards of appropriateness, and stability in international politics. The simple definition for global governance, as James Rosenau put it is “an order that lacks a centralized authority with the capacity to enforce decisions on a global scale”. Global governance is an institution in which international actors, such as states, can interact on a transnational scale to achieve a common set of goals. Global governance has been around since civilizations have first been dealing with other civilizations, but it has evolved since early times to the effect states can work together to deal with issues such as genocides, arms trafficking, trafficking in people, and other issues that cross international borders.
The biggest challenge to global governance is state sovereignty. For global governance to work states must cooperate on a global scale to pursue a common set of goals, which means all actors must adhere to a set of rules. However, if a state violates a rule, there can be nothing done unless the government of that country allows it. Due to state sovereignty, other states cannot do anything if that state does not allow it. Only when the issue crosses international borders can the international community step in and stop what is happening. The only time that state sovereignty has become infringed upon is when the problem crosses borders and starts to affect other countries. Political sovereignty is still thought to be the highest authority. After the Thirty Years War, which lasted from 1618 until 1648 and wiped approximately half of Europe’s population, the Treaty of Westphalia was created. The Treaty of Westphalia led to the development of the modern state system and state sovereignty. Since the Treaty of Westphalia, states have been careful not to violate state sovereignty to avoid another devastating war.
Global governance should not be limited for the main reason that it exists for the protection of everyone. Global governance happens because states collaborate to achieve a positive outcome. In terms of maritime jurisdiction, the international community have international governance but there are so many holes in the charter of UNCLOS that there is no cohesive answer to maritime piracy. However, states know that any action that they take will be supported by the international community because of the vagueness of how to deal with pirates. This presents its own set of issues at the individual level and at the state level. Can a country take a pirate and try them in their courts or will they present them to local authorities? This issue was presented with the hijacking of the American flagged ship in 2009. The surviving Somali pirate was sent and tried in New York and is serving in an American prison. Is the US violating the sovereignty of Somalia for trying a Somali citizen in American courts? Piracy is a complicated problem because there is no explicit deterrence and reactance effects. A comparative study of two areas of regional piracy will showcase the radical different reactionary policies that the international community has produced and the implications of such policies on the regions themselves and the precedent set for future pirate attacks.
The Malacca Strait is one of the most pirated regions of the world aside from the Gulf of Aden in Africa. Linking the Indian Ocean with the South China Sea, the Strait is surrounded by China in the north, Indonesia in the South and the Malay Peninsula on the West. It is one of the busiest shipping routes because it is the shortest commerce path between the Indian Ocean and the South China Sea. The Malacca Strait was the international hot spot for piracy before Somali piracy took over the playing field. Presently, approximately 45% of total world trade carried by 70,000 merchant vessels over 300 gross tons ply the South China Sea and about 20,000 oil tankers carrying one- third of the world’s crude oil passes through Malacca Strait annually.
This amount of travel is already an incentive for pirating but other facets of the problem are causes for pirating becoming a way of income for many people in the region. The physical aspects of the Strait are perfect for pirating as well. There are over 230 scattered islets, and many small rivers also feed into the Strait, rivers that pirates can hide in. There are also economic reasons for the piracy in the region, for many of these pirates are groups of men that attack the ships to feed their villages. There are villages that survive solely on the income from the loot because there are no employment opportunities for these people. “Piracy appears almost the “logical choice” for such fishers as they have the necessary maritime skills, local knowledge of the area, and the required equipment, including boats and long knives.” Piracy in the region has caused over $3 billion in losses for merchant ships and has increased tensions between the affected states, and the countries whose ships are being attacked.
There has been extensive military and state intervention in the region both historically and contemporarily. Historically with the piracy issue, Britain went into Malaysia to “stabilize” the region and for all intents and purposes, the issue of piracy decreased with British intervention. As the British had a long-term goal for the control of Malaysia, with their naval power, they were able to regulate the sea in the region and the Strait in particular.
Contemporarily, the high rise of unemployment and pervasive poverty has revived the practice of piracy in the region and there have been different military interventions to deal with the rise in attacks. The multilateral intervention that is dealing primarily with the piracy is MALSINDO (an acronym from the names of the countries involved, Malaysia, Singapore, and Indonesia). Began in 2004, it is a complex effort to “…the navies of the participants to commit five to seven ships to patrol the strait, and to establish a hotline that allowed the commands of the three navies to coordinate operations.” The exertion is fortified by joint aerial reconnaissance with the ‘Eye in the Sky’ Initiative that includes “regular reconnaissance sorties linked to a web-based information sharing network to allow better information sharing.” Another military intervention is the annual bilateral exercises created in 1995 and involves the US Pacific Fleet, and the naval powers of Singapore, Thailand, Brunei, Indonesia, the Philippines, Malaysia and Indonesia. The US Pacific Fleet exercises air, sea and land maneuvers at each stop of the host countries. The bilateral exercises are a deterrence against piracy but it essentially is not that much of a deterrence in the long run and is not a sustainable solution either.
Somalia
Somalia has had a turbulent history for much of the 1900’s. In 1969, a military coup overthrew the government of the time that had been put in place after colonization ended and put in place a Socialist authoritarian leader; Mohammed Siad Barre. After a difficult regime, in 1991 the United Somalia Congress overthrew President Mohammed Siad Barre. The United Somalia Congress was made up of clans and factions and soon after the coup the Congress broke up due to infighting by clans who did not want to share power with other clans they thought were their natural enemy. One resource for power for clan leaders was the manipulation of food storage. While also using violence, numerous clans used food as a way to control the people and use it as leverage against other clans. This manipulation of food during a time of drought led to famine and the starvation and deaths of thousands of Somalis and many more thousands fled to neighboring countries, such as Kenya where they still are to this day.
With such instability in the region, Somalia became a breeding ground for rebel groups to make a grasp for power. With no centralized government, groups like Al Shabab took over parts of the country and set up their own land. Another avenue of such power is maritime piracy. Somalia has had a massive surge of maritime piracy since 2000 and it’s not hard to see why because it was inevitable between having no central government and being in a prime position geopolitically.
With Somalia’s sovereignty obsolete, their sovereign waters were considered open to poachers from all over the world. Despite many Somalis fishing for a living, other countries and corporations also fished in Somalia’s territorial waters until the supply was depleted for the Somali people. While the fish economy was being destroyed, other corporate and state entities were dropping toxic waste in Somalia’s waters. The Somali people were facing a desperate situation. With no government to patrol the waters, there was no way to keep poachers away from Somalia. What started as some Somali boys patrolling their waters quickly escalated to ransoming ships. Somalis saw a lucrative business with the amount of massive ships holding millions of dollars of oil passing through the waters, and they were right. The average amount of money that pirates get with each haul is 2.7 million.
Looking at the map of Somalia, it can be seen that half of Somalia’s borders are coastline and that it sits in a very strategic region geopolitically. Children always learn the history of the importance of the Suez Canal to western powers as a gateway to China without going through the whole of Africa, but what is left out is that if a ship goes through the Suez Canal, they have to sail through the Red Sea, a sea which is bordered by the countries of Eritrea, Djibouti, Somalia, Saudi Arabia and Yemen. They then pass through the Gulf of Aden to get to the Indian Ocean. Once a ship is close to Somalia’s sovereign waters, the chance of a pirate attack rises exponentially, leading to many ships now being outfitted ready for war to avoid this predicament. These pirates for the most part do not have sophisticated weapons, they use Kalashnikovs to fire at a ship, board and then take the crew hostage. They do not have a complex organization but have still made hundreds of millions.
The international community has responded to the threat in the gulf with a military solution. Several countries and international organizations are deployed in the region. There are currently three navy missions in the greater Gulf of Aden region: The Combined Task Force 151 (CFT – 151) led by the USA, NATO’s “Operation Ocean Shield”, and “Operation Atalanta” under the European Union Naval Force (EU NAVFOR). There are legal ambiguities when it comes to trying pirates and not many countries have in the past let pirates go rather than extradite them to their country. This was soon solved when the EU entered into negotiations with Kenya, Djibouti, and other nations neighboring Somalia for these states to persecute the pirates that EU naval forces detain. These measures are all reactionary initiatives against the issue of piracy and is only a short-term solution.
Response to Piracy
The international community responded to the Malay and the Somali piracy attacks in distinctive ways but the contemporary way of governance on the high seas has been militarized, which brings many issues to the fore. The first is that these states are using asymmetric warfare against some a ragtag group of men with knives and Kalashnikovs. Asymmetric warfare is a type of warfare that has become increasingly significant in the last few decades of fighting in the world. When two belligerents are unmatched or unable to battle a war comparably is when asymmetric warfare comes into play. With asymmetric warfare, the line between combatants and civilians are blurred, and many are no longer following the rules of the Geneva Conventions or Just War Theory. “While particular generational delineations are somewhat arbitrary, they reflect an important trend: the blurring of the military front and the civilian rear. Accelerating this shift is the replacement of interstate war by armed conflict involving non-state actors such as insurgent groups, terrorist networks, militias, and criminal organizations.” Asymmetric warfare makes for a long war with no clear victors, which in the long run is a victory for the rebel groups, therefore in the end asymmetric warfare puts states in an untenable situation. States are using naval forces for a threat that won’t go away just because there are more bigger ships in the sea. This also restricts merchant ships and creates a tense situation between states.
Conclusion
The answer to the problem of piracy is two-fold and complex but can be done if the international community looks at more sustainable solutions rather than making sure individual ships pass unmolested through the oceans. The first is working with the individual states where piracy is a threat. There is a clear correlation between poverty, a weak state and the issue of maritime piracy. In order for this to work, strong states and entities such as the US and the EU need to make not military treaties but economic and bilateral relations that will allow states to strengthen economic opportunities. There needs to be push for a long-term solution to the threat that is on land, not on the seas. When Britain went into Malaysia, they treated the issue by looking at the causes of the problem, not reacting to the problem itself. The second issue that needs to be tackled is the problem of international governance on the oceans. There is no progress happening because of the inherent weaknesses of the law of the oceans. When states reform the Convention of the Law of the Seas to set strict regulations on the penalties of piracy, rather than leaving the issue to states, the structural framework will allow states to act more cohesively and sustainably against the threat of piracy.