Security Council Debates Maritime Piracy

Under India’s presidency, the UN Security Council debated the global phenomenon of maritime piracy on November 19.  The outcome was a presidential statement, not a resolution.  Although not binding, it highlights future trends in the Security Council’s approach to piracy.   Unlike prior Security Council actions that have been region specific, Monday’s debate reflects the global dimensions of the issue including references to the spike in attacks off the oil rich coast of the Gulf of Guinea.

The Security Council’s involvement in matters of piracy goes back several years now, when piracy off the coast of Somalia became a major international problem.  Under Security Council resolution 1816, the Council famously authorized states to enter the territorial waters of Somalia, limiting the sovereignty of Somalia with regards to this crime that historically was linked to the high seas.   Since then, the Council has authorized limited incursions onto land, and has generally been a prime mover on legal approaches to the problem, although always circumscribing its resolutions to the situation at hand.  Resolution 1816, for example, is carefully worded to apply only to Somalia, and the resolution explicitly notes it is not indicative of a new customary international rule.  Another resolution in which the Security Council asserted a decidedly legal approach was Resolution 2020, which highlights the link between attacks at sea and conspiracies and criminal networks on land, and urges states to establish anti-piracy courts.

The November 19 debate is notable for a few reasons.  First, the statement encouraged the development of new rules of deployment for private security contractors.  It appears that the IMO is leading the charge in this regard, and some interesting recommendations can be found on its website.  Second, there was some concern prior to the debate about whether to include a reference to illegal fishing and dumping in the statement.  The presidential statement does not, in the end, refer to these related issues although several countries highlighted them in their speeches.  Third, Argentina took issue with the Security Council’s assertion of jurisdiction.   The representative said that “unless a situation had engendered Council action under Chapter VII for other reasons, such as the situation in Somalia, piracy was not under the competence of the body; it was, rather under the framework of the Convention on the Law of the Sea.”

I have been observing the Security Council’s response to piracy for several years now, and I have been repeatedly surprised by the heavy overlay of law in its resolutions on this topic.  Indeed, in my opinion, the piracy resolutions are distinctive in their multiple concrete references to laws and legal institutions.  For example, one sees references to the Djibouti code of conduct on human rights, anti-piracy courts, methods to strengthen domestic criminal laws, and of course, to the overarching legal framework created by UNCLOS and SUA.  This preambular paragraph from Resolution 2020 illustrates the Security Council’s legalistic approach:

 “Recognizing the need to investigate and prosecute not only suspects captured at sea, but also anyone who incites or intentionally facilitates piracy operations, including key figures of criminal networks involved in piracy who illicitly plan, organize, facilitate, or finance and profit from such attacks and reiterating its concern over a large number of persons suspected of piracy having to be released without facing justice, reaffirming that the failure to prosecute persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia undermines anti-piracy efforts of the international community and being determined to create conditions to ensure that pirates are held accountable…”

I wonder whether others see the Security Council as exercising a particularly overt legal role in the realm of piracy as well, even if the Council is attempting to curb the impression its resolutions are precedent setting.   And I wonder whether the Security Council’s legal bid in the field has prompted countries like Argentina to retaliate by opposing general Security Council jurisdiction over matters of piracy.