Recent Developments in Maritime Law

By Marian, Ilie | Geopolitics, History and International Relations, July 1, 2012 | Go to article overview

Recent Developments in Maritime Law


Marian, Ilie, Geopolitics, History and International Relations


ABSTRACT.

This study is grounded in the considerable body of scholarship examining the enforcement powers granted to coastal states to protect their specific interests in fishing and the marine environment, pirate attacks off the coast of Somalia, aspects of the framework of the law of the sea that have particular relevance for assessing maritime security, and the changing dynamics of exclusive and inclusive claims to ocean use. The overall results provide strong evidence for the problem of attacks on shipping off the Horn of Africa, key underlying causes of the Somali piracy phenomenon, the vulnerability of ships to piratical attack and sea robbery, the increasing threat posed by piracy over the last several years, and the world public order of the oceans.

Keywords: Somali piracy problem, security, ocean, sea

1. Introduction

This paper seeks to fill a gap in the current literature by examining the ship hijackings by Somali pirates, the effect of piracy on maritime trade, the interpretation and application of the law of the sea, and security interests in the oceans. Although researchers have discovered some important findings regarding the relationship between the suppression of piracy off Somalia, glaring vulnerabilities in the maritime domain and worldwide cargo chain, the laws of war in counter-piracy actions, the use of force in maritime police actions, and the increasing frequency of maritime piracy attacks, there is still a great deal that is unknown and that requires further empirical inquiry.

2. The Threat to International Peace and Security Posed by Piracy

Guilfoyle claims that pirate attacks have now escalated to hostage-taking for ransom: public international law grants all the authority needed for warships to engage in counter-piracy operations on the high seas. Piracy is an organized criminal activity, principally targeting foreign ships, and affecting regional trade and shipping. The laws of piracy carry with them a sufficient regime governing the use of force against pirates. The fight against piracy is a law enforcement operation (the applicable rules are those of police powers), as pirates are ordinary criminals.

It follows from this that applying the laws of armed conflict to pirates would be counter-productive. Guilfoyle stresses that the laws of armed conflict have no application to the case of Somali piracy. Somali pirates operate against randomly targeted vessels of disparate nationalities to compel private parties to pay large ransoms, and are not engaged in an international armed conflict, and are not direct participants in an internal armed conflict.1

Guilfoyle holds that conflict in Somalia has extended its reach into the waters off its coasts: the situation in Somalia constitutes the threat to international peace and security. The eventual disposition of criminals captured in Somalian territorial waters is either a matter for Somalia or for the interdicting State. As Guilfoyle puts it, rules governing the conduct of high seas interdictions remain embryonic. Customary international law permits any State finding a pirate within its territory to prosecute him or her as an exercise of universal jurisdiction, but that does not mean they will be eager to or will have appropriate national laws. Pirates are criminals because their acts impinge upon States' monopoly on legitimate violence and their interests in freedom of navigation.2

Dutton observes that the number of maritime piracy attacks is spiraling ever upward (piracy attacks are increasing at an alarming rate), and maritime pirates are getting paid huge sums for their violent activities. Pirates cannot be deterred from their violent and criminal activities unless the world community shares the burden, expense, and difficulty of trying them. The international community is engaged in naval operations designed to repress acts of maritime piracy, expending time, energy, and resources in an effort to prevent and combat maritime piracy. …

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