Best

The phenomenon of Piracy off the Coast of Somalia:
Challenges and Solutions of the International

Community
by
Abbas Daher Djama

United Nations – The Nippon Foundation Fellow
New York, December 2011
ii
DISCLAIMER
The views expressed herein are those of the author and do not necessarily reflect the views
of the Government of Djibouti, the United Nations, the Nippon Foundation of Japan or the
University of Columbia.
iii
Abstract
The phenomenon of Somali piracy has appeared several years ago and continues to pose a
serious challenge to the international community. Even if piracy is an international crime
for which the universal jurisdiction principle applies, states patrolling off the coast of
Somalia are facing major problems in prosecuting the pirates. The doctrine of universal
jurisdiction provides that any court has jurisdiction to try certain offenders who have
committed international crimes like piracy.
Nevertheless the specificity of Somali piracy is closely linked to the political situation of
the country which is devastated by a civil war since 1991 and whose Government controls
only one part of the capital. The problem is exacerbated by the geography of Somalia.
More than 40% of world trade must pass through the narrow straight between the Horn of
Africa and the Arabian Peninsula. The chaotic humanitarian situation in Somalia
encourages more and more people to commit acts of piracy and, due to the phenomenon of
Somali piracy's considerable magnitude, this make it increasingly difficult to implement the
solutions envisaged by the international community.
The purpose of this research is to examine the specificity of Somali piracy, to highlight the
solutions hitherto proposed and applied. Furthermore, the research tempts to envisage the
role of the region in solving this issue.
iv
WORKING TITLE:
The phenomenon of Piracy off the Coast of Somalia: Challenges and solutions of the
International Community
SUPERVISORS:
Prof. Lori Damrosch
Dr. Francois Bailet
v
Acronyms
AMISOM African Union Mission In Somalia

ASEAN Association of Southeast Asian Nations
AU African Union
BCN weapons Biological, Chemical, Nuclear weapons
BMP Best Management Practice
CGPCS Contact Group on Piracy off the Coast of Somalia
COMESA Common Market for Eastern and Southern Africa
EAPCCO Eastern Africa Police Chiefs Cooperation Organisation
EASSy Eastern African Submarine Cable System
ECA Economic Commission for Africa
EEZ Exclusive Economic Zone
ESA-IO The Eastern and Southern Africa - Indian Ocean
FAO Food and Agriculture Organization
GDP Gross Domestic Product
GPS Global Positioning System
GPML Global Programme against Money Laundering
IGAD Intergovernmental Authority on Development
ILO International Labour Organization
IMB International Maritime Bureau
IUU Illegal Unreported and Unregulated
IAEA International Atomic Energy Agency (IAEA)
LOSC Law of the Sea Convention
IAMSP International Association of Maritime Security Professionals
IMO International Maritime Organization
IPOA International Peace Operations Association
MSP Malacca Strait Patrols
NATO The North Atlantic Treaty Organization
NGOs Non Government Organizations
PCASP Privately Contracted Armed Security Personnel
vi
PMASC Private Military Security Companies
ReCAAP The Regional Cooperation Agreement on Combating Piracy and Armed
Robbery against Ships in Asia
SOLAS Safety Of Life At Sea
UNCLOS United Nations Convention on the Law of the Sea
UN United Nations
UNDP United Nations Development Programme
UNEP United Nations Environment Programme
UNODC United Nations Office on Drugs and Crime
UNOPS United Nations Office for Project Services
UNSCR United Nations Security Council Resolutions
UNTOC United Nations Convention Against Transnational Organized Crime
USD United States Dollar
SUA Convention for the Suppression of Unlawful Acts of Violence against the
Safety of Maritime Navigation
TFG Transitional Federal Government
VHS Video Home System
VTS Vessel Traffic System
WFP World Food Programme
vii
Acknowledgements
It has been a great experience being a United Nations-Nippon Foundation Fellow. I would
like to deeply thank the Nippon Foundation for awarded me this unique opportunity.
I would like to extend my deepest and most sincere appreciation to Dr. François Bailet for
his continuous support and endless help during the fellowship. I would like to convey my
sincere gratitude to the Division for Ocean Affairs and Law of the Sea (DOALOS) and all
DOALOS staff member for their warm welcome.
I also would like to express my profound gratitude to the Government of Djibouti,

especially H.E M. Mohamed-Siad Doualeh, Ambassador, Permanent Representative of the
Republic of Djibouti to the United Nations for supporting me towards this fellowship.
I sincerely express my appreciation to Prof. Lori Damrosch, Professor of International Law

at Columbia University and my Co-Supervisor, for her support and guidance during the
first segment of the fellowship.
This acknowledgment would have not been complete without thanking the International
Program of Columbia Law School and in particular Mr. Brian Gibson and Jason Nasrallah
for their support, affection and friendship.
viii
Table of Contents
LIST OF FIGURES .............................................................................................................................................. XI

LIST OF TABLES ................................................................................................................................................ XI
INTRODUCTION....................................................................................................................................................1
PART ONE:..............................................................................................................................................................4
CHAPTER 1: INTERNATIONAL LAW ..........................................................................................................5
SECTION A: INTERNATIONAL LAW .....................................................................................................5
Paragraph 1: Classic Law of Nations ........................................................................................................................ 5
Paragraph 2: Customary International Law of Piracy............................................................................................ 9
II- United Nations Convention on the Law of the Sea (UNCLOS) .................................................................. 11
III- Suppression of Unlawful Acts (SUA) ......................................................................................................... 20
IV- International Law and Piracy....................................................................................................................... 28
SECTION B: INTERNATIONAL ORGANIZATIONS...........................................................................36
Paragraph 1: United Nations ................................................................................................................................... 36
I- United Nations Security Council Resolutions (UNSCR)............................................................................. 36
II- United Nations Office on Drugs and Crimes (UNODC) ............................................................................. 48
III- International Maritime Organisation (IMO) ................................................................................................ 52
I- Contact Group on Piracy Off the Coast of Somalia (CGPCS)..................................................................... 56
II- North Atlantic Treaty Organization (NATO) .............................................................................................. 57
III- African Union.............................................................................................................................................. 58
IV- Interpol ........................................................................................................................................................ 59
CHAPTER 2: REGIONAL AND NATIONAL LAW.....................................................................................61
SECTION A: REGIONAL LAW................................................................................................................61
Paragraph 1: Asian Cooperation ............................................................................................................................. 61
I- Asian regional cooperation.......................................................................................................................... 61
Paragraph 2: Gulf of Aden Cooperation................................................................................................................. 69
I- The component of the Gulf of Aden Cooperation ....................................................................................... 69
II- The Eastern and Southern Africa - Indian Ocean (ESA-IO) Regional Strategy and Regional Plan of
Action .......................................................................................................................................................... 73
III- Eastern Africa Police Chiefs Cooperation Organisation (EAPCCO)........................................................... 75
IV- Intergovernmental Authority on Development (IGAD) .............................................................................. 76
V- Regional cooperation and specificities of Somali piracy ............................................................................. 77
SECTION B: NATIONAL LAW ................................................................................................................81
Paragraph 1: Review of national law ...................................................................................................................... 81
I- Djibouti ....................................................................................................................................................... 82
II- Seychelles.................................................................................................................................................... 83
III- Yemen ......................................................................................................................................................... 84
IV- Madagascar.................................................................................................................................................. 84
V- Somalia........................................................................................................................................................ 85
VI- Tanzania ...................................................................................................................................................... 85
VII- Kenya .......................................................................................................................................................... 86
PART TWO:...........................................................................................................................................................90
CHAPTER 1: ECONOMIC AND FINANCIAL IMPACT................................................................................91
SECTION A: ECONOMIC COSTS ..........................................................................................................................91
Paragraph 1: Direct Economic Costs of Piracy .........................................................................................91
I- Ransom Costs.................................................................................................................................................. 91
II- Insurance Costs ............................................................................................................................................... 92
III- The Cape of Good Hope.................................................................................................................................. 97
IV- The cost of security equipments...................................................................................................................... 98
V- Other costs ...................................................................................................................................................... 99
Paragraph 2: Indirect Economic Costs of Piracy ....................................................................................101
I- Regional impact ............................................................................................................................................ 101
ix
II- Global Economic Impact............................................................................................................................... 103
Paragraph 1: Financial System in Somalia ..............................................................................................105
I- Hawala System.............................................................................................................................................. 105
II- The Hawala system and piracy...................................................................................................................... 109
Paragraph 2: The Emergence of New Businesses ....................................................................................114
I- Logistics on the Ground ................................................................................................................................ 114
II- Private Military Army and Security Companies (PMASC) .......................................................................... 115
III- Private Negotiators........................................................................................................................................ 120
IV- The New Safety Equipments......................................................................................................................... 121
CHAPTER 2: ROOT CAUSES ..........................................................................................................................124
SECTION A: ONSHORE DEVELOPMENT ............................................................................................................124
Paragraph 1: The “high economic potential areas” in Somalia .............................................................125
I- Agriculture .................................................................................................................................................... 125
II- Telecommunications ..................................................................................................................................... 128
III- Fishery........................................................................................................................................................... 130
V- Other resources ............................................................................................................................................. 133
Paragraph 2: Local development ..............................................................................................................134
I- Development of a local economy .................................................................................................................. 134
II- Social aspects of Piracy................................................................................................................................. 135
III- Initiatives of the International Community ................................................................................................... 136
FINAL REMARKS..............................................................................................................................................139
BIBLIOGRAPHY ................................................................................................................................................141
ANNEXE 1: MAIN PIRATES GROUPS...........................................................................................................146
ANNEXE 2: EXPANSION OF PIRACY OPERATION ..................................................................................147
ANNEXE 3: NATIONAL LAWS RELATED TO PIRACY............................................................................148
ANNEXE 4: INTERNATIONAL CONVENTIONS STATUS ON NOVEMBER 2011 ................................149
ANNEXE 5: GLOBAL PIRACY PROSECUTIONS (UPDATED BY UNODC ON 12 OCTOBER 2011) .151
x
List of Figures
Figure 1: Map of Somalia ...................................................................................................... 2
Figure 2: Somalian Piracy Treath Map................................................................................ 36
Figure 3: War Risk Area ...................................................................................................... 95
Figure 4: MK 38 MOD 2 Tactical Laser System............................................................... 122
Figure 5: Juba and Shabelle Rivers.................................................................................... 127
List of Tables
Table 1: Cost of Ransoms .................................................................................................... 92
Table 2: K&R insurers companies....................................................................................... 94
Table 3: War Risk insurer companies.................................................................................. 95
Table 4: Agriculture products in Somalia.......................................................................... 125
Table 5: Fish species Off the coast of Somalia.................................................................. 130
Table 6: Natural ressources products in Somalia............................................................... 133
xi
INTRODUCTION
The phenomenon of piracy has been known since antiquity. The ancient Egyptians already
experienced pirate attacks against merchant ships.
During the late 19th century, the phenomenon was marginal, affecting only a small part of
trade merchants and mostly located in specific areas such as Southeast Asia.
Somali piracy is a very specific phenomenon mainly due to the triple realities that are
making the problem difficult to fully grasp and infinitely complex to solve.
First, the political situation in the country. Somalia is a State within a permanent civil war
in which the periods of lull are few and many peace processes have yielded very little
result.
To better understand the Somali context, one should keep in mind that Somalia is
composed of a considerable number of tribes, clans and sub-clans that form a social
nucleus deeply rooted in society and above which the State Somalis have been imputed.
The period in office of President Siad Barreh increased tribal and clan tensions and led to
an implosion of the State and to a geographical division based on tribes and for which the
capital Mogadishu is the sad example.
The religious component is a primary factor that determines social relations and customs in
the country. This is particularly true in Somalia that religious people have taken
considerable place and have benefit from the chaos to organize themselves into a political
and military force, along with foreign interventions, has become fundamentally radical.
1
The current situation of Somalia is characterized by Somaliland in the northwest region of
Somalia which proclaimed its independence, the Puntland region of North is seen by some
as the epicenter of piracy and southern Somalia composed of different regions more or less
independent from the central Government along with religious militias.
Figure 1: Map of Somalia

Source: United Nations
The emergence and increase of the number of piracy is closely related to the situation of
anarchy into which Somalia is and the lack of capacity of the elected Government (TFG)
who controls only a small part of the capital with the vital support of AMISOM troops.
The second aspect which emphasizes the complexity of Somali piracy is the geographical
position of Somalia. Highly strategic country off the Gulf of Aden, the mouth of the Red
Sea where 40% of global marine transportation transits including oil for western countries.
2
The third point is the length of the Somali coast. The country has 3,000 km of the coastal
strip which make it the first country in Africa in terms of access to water and is an
extremely difficult area to monitor for the international forces patrolling off the coast of
Somalia.
If the exact beginning of piracy in this region can not be considered accurate (probably
early 2000) the reasons advanced by pirates to explain their actions are well known.
The IUU and the dumping of toxic waste are two reasons that have been often raised.
Fishermen living mainly from the fishing sector have repeatedly expressed their tidal and
tired of seeing their fishery resources plundered by foreign fishing vessels who take
advantage of the lack of law enforcement forces.
The toxic waste dumping is itself a delicate matter, often seen as rumors and for which no
evidence had been presented. However, the 2005 tsunami, including the huge waves that
have reached the coast of Somalia raised from the seabed barrels of chemicals beaching
them on the coast.
These barrels are, according to the locals, the main cause of the malformation of young
children born near of the coast.
The first part of this study will look at the legal tools available to the international
community in order to address this well known phenomenon, which for the reasons
mentioned above, makes it very complex to efficiently address.
The second part of the study will analyze the economic, social and financial aspects of
Somali piracy.
3
PART ONE:
LEGAL ASPECTS
4
CHAPTER 1: INTERNATIONAL LAW
SECTION A: INTERNATIONAL LAW
Paragraph 1: Classic Law of Nations
Piracy is without doubt one of the oldest international crimes. For several centuries
maritime transport was the main way of trade between nations and was certainly much
safer than transporting on land.
Attracted by the lure of money, the pirates stormed the transport ships, in particular
merchant ships.
Faced with increasing incidents of piracy affecting all ships without distinction at sea and
the threat they posed to the economy, the major maritime nations decided to establish
piracy as a serious crime whose sentence was mostly death.
Therefore, as naval operations increased, piracy started being seen as hostis humani
generic, which means a threat to all humans. This interpretation suggests that all States and
their naval forces are allowed and even encouraged to fight all acts of piracy occurring in
high seas.
It’s in the eighteenth century that States extended their authority by including the arrest of
pirates and pirate ships without any nationality link with the State that proceeded to the
seizure; this is the definition of the current principle of universal jurisdiction.
5
Thus, Piracy is the "original" crime which founded the current concept of universal
jurisdiction. In addition to piracy, international law includes other practices as hostis
humani generic, such as slavery, torture, genocide etc.1
For a very long time, the fight against piracy was characterized by rapid executions. The
sentence for pirates arrested on the high seas was applied immediately without any trial and
consisted, in most of the cases, of death by hanging.2 The speed of the executions was due
to the high cost of a trial but was also motivated by technical reasons. Considering that
some acts of piracy were occurring far from the coast, few commanders wanted to carry
pirates who would need food and water for sometimes many weeks.
Of course hanging is no longer a common a method used to punish piracy, but the legacy of
cooperation among States in combating piracy is reflected in current international law.
Some courts, in their attempts to define acts of piracy, have highlighted certain practices
and actions that can be interpreted as acts of piracy thus allowing the prosecution of
persons suspected of such acts.
This is the case in the United States where, through the case United States v. Smith the
Supreme Court in 1820, after recalling the constitutional ability of Congress to define and
punish piracy, defines piracy as an act of robbery at sea.3 This decision is an initial
assessment by U.S domestic law of acts that may constitute an act of piracy.
The U.K has produced several acts relating to piracy and defined piracy as intent to kill or
attempt on the life of those on board.4 The act of trading, communicating, throwing goods
1
Yearbook of the ILC, 1966, vol.II, p.248.
2
Royal Naval Museum Library, A brief history of piracy, 2002.
3
United States v. Smith, 1820 ND 5 Wheat. 153 153.
4
The National Archives, Piracy Act 1837, UK Public General Acts, Section 2.
6
belonging to a merchant ship overboard or not defending oneself against pirates is an act of
piracy.5
Similarly, the French law of 10 April 1825 defines acts of piracy in relation to the crew or
the captain of the ship and says that acts of piracy are "hostile acts" as is taking control of a
French vessel by fraud or violence or committing armed acts of depredation or violence
against French ships or vessels of a State with which France is not at war with.6
In 1932, the Harvard Research Group established a document composed of 19 articles

which refer to all sources related to piracy, using the conventions, international practices,
the practices of law recognized by nations at the time, judicial decisions and publications
by the most eminent specialists of the time.7
This famous document from the Harvard School is called the Harvard Draft Convention.
This is the first study undertaken in order to codify and harmonize the practices of States at
sea.
Pursuant to the General Assembly Resolution 174 (II) dated 21 November 1947; the
International Law Commission is responsible for developing and codifying international
law. In 1956, the Commission prepared Draft Articles in which it attempts to codify the
international law of the sea8. Articles 38 to 47 of the Draft Articles deal specifically with
piracy and are largely inspired by the Harvard Draft Convention.
In this report, the Commission recommends holding a conference attended by

plenipotentiaries to examine the law of the sea, taking into account that the convention
5
The National Archives, Piracy Act 1721, Acts of the Parliament of Great Britain, section 1.
6
Legifrance, Law n°1825-04-10 of 10 April 1825 for the safety of navigation and maritime trade,
Title 1, art. 2.
7
Barry Hart Dubner, The law of international sea piracy, P.103.
8
Yearbook of the international law commission, volume II, 1956, pp.282-285.
7
should address “not only the legal but also the technical, biological, economic and political
aspects of the problem.”
This will be undertaken in 1958 by the Convention on the High Seas. 9
9
Convention on the High Seas, Entered into force on 30 September 1962.United Nations,
Treaty Series, vol. 450, p. 11, p. 82.
8
Paragraph 2: Customary International Law of Piracy
World War II and the devastating consequences it engendered convinced nations of the
need to increase cooperation between States in order to protect future generations from the
scourge of war. This period was the beginning of the codification of international practices
particularly on the high seas.
This consolidation was intended to give more importance to multilateral structure and
multilateral negotiations in international relationships.
The Law of the Sea is a component of international law that has evolved to a consolidation
of rights and practices. The first instrument is the Convention on the High Seas which has
been replaced by UNCLOS in 1982.
Twenty years later, the international community has seen the limits of UNCLOS
dispositions against the new kind of violent acts against ships at sea. SUA is born from the
international community commitment to develop an instrument that would complement the
International Convention of Law of the Sea.
I- Convention On the High Seas
The major nations agreed on codified standards and practices at sea, including an
appropriate definition of piracy directly inspired by the draft convention prepared by the
Harvard Group. This is the Convention on the High Seas. The Convention on the High Seas
in Article 15 defines piracy as follows:
Piracy consists of any of the following acts:

(1) Any illegal acts of violence, detention or any act of depredation,
committed for private ends by the crew or the passengers of a
private ship or a private aircraft, and directed:
9
(a) On the high seas, against another ship or aircraft, or against
persons or property on board such ship or aircraft;
(b) Against a ship, aircraft, persons or property in a place outside
the jurisdiction of any State;
(2) Any act of voluntary participation in the operation of a ship or
of an aircraft with knowledge of facts making it a pirate ship or
aircraft;
(3) Any act of inciting or of intentionally facilitating an act
described in subparagraph 1 or subparagraph 2 of this article.
The agreement excludes acts of mutiny10 and recalling the principle that acts of piracy can
take place only on the high seas or outside the jurisdiction of a State. The State that has
seized the pirates may decide how to proceed to sentence the alleged pirates and “actions to
be taken with regard to the ships, aircraft or property, subject to the rights of third parties
acting in good faith”11.
It is also stated that the seizure of a vessel may be made only by warships or other ships
from a State with authority to perform this task.12 The following dispositions specify the
conditions of seizure of a merchant ship for which must exist “reasonable grounds for
suspecting that the ship is engaged in piracy”.13
Many countries, particularly in the Soviet block, have highlighted the fact that "the
definition of piracy as formulated in the agreement is not consistent with international law
and does not meet the need for freedom of navigation on the high seas."14
10
Convention on the High Seas, Article 16, P.5.
11
Id., Article 19, P.6.
12
13
14
Multilateral Treaties deposited with the Secretary-General, 2001, Volume 2, Part 1, pp.212-217.
10
II- United Nations Convention on the Law of the Sea (UNCLOS)
The discussions about the drafting of a convention on the law of the sea began in 1973
under the aegis of the United Nations. This convention has been created in order to
incorporate the international rules already established by the four treaties on the subject
signed in Geneva:
 Convention on the Territorial Sea and Contiguous Zone, entry

into force: 10 September 1964;
 Convention on the Continental Shelf, entry into force: 10 June
1964;
 Convention on the High Seas, entry into force: 30 September
1962; and,
 Convention on Fishing and Conservation of Living Resources of
the High Seas, entry into force: 20 March 1966.
The agreement now called the United Nations Convention on the Law of the Sea
(UNCLOS) was opened for signature on 10 December 1982 and came into force on 16
November, 1996.15
1- Definition of piracy
UNCLOS contains the exact same provisions pertaining to piracy as those established by
the Convention on the High Seas of 1958. These provisions contained in articles 100 to
107, are seen as customary international law.
Thus, any illegal act of violence or detention, or depredation committed by the crew or
passengers of a ship or a private aircraft, is an act of piracy. Three conditions must be met:
15
United Nations Convention on the Law of the Sea, opened for signature at Montego Bay, Jamaica, on 10
December 1982, United Nations, Treaty Series , vol. 1833, p. 3.
11
 This act must be performed by the crew or passengers of another
vessel;
 Acting for private ends; and,
 That the act occurs in high seas.16
The need for two ships
Article 101 clearly states that an act of piracy may only be performed by "the crew or
passengers of a ship or a private aircraft." This is intended to exclude acts of violence,
detention or depredation committed by the team or crew of a ship towards his own ship.
This scenario does not fall under the definition of what constitutes an act of piracy and
therefore limits the intervention of a foreign warship, and clearly gives jurisdiction to the
country's flag ship.
However, a vessel captured by pirates and which would subsequently be used to commit
other acts of piracy falls within the definition of piracy established by UNCLOS.
Acting for private ends
Neither the Convention on the High Seas nor even UNCLOS give a clear definition of the
term "private ends".
The accuracy of an act of piracy in a purpose of private ends tends to exclude other
motivations. Many scholars believe that private ends means private acts of violence,
detention or depredation, "animus furandi"17. But this definition now seems incomplete as
acts of violence against ships may also be motivated by revenge18. The focus of Article 101
on the criteria of private purposes serves mainly to exclude political motivations.
16
UNCLOS, Article 101.
17
Commentary to Art. 398, Yearbook of the International Law Commission, 1956, volume II, p.282.
18
Report of the Sub-Committee of the League of Nations, cited by the Harvard ``Draft Convention on
Piracy’’, note 41 above, p. 789.
12
Acts occur on the high seas
The act of piracy can only occur on the high seas and outside the jurisdiction of a State. In
this case, all States and in accordance with Article 105 of the UNCLOS can "seize a pirate
ship or aircraft or a ship or aircraft taken as a result of an act of piracy and the hands of
pirates, and arrest the persons and seize the property on board." 19
However, if acts of violence, detention, and depredation are committed in an area under the
jurisdiction of a State, then the courts of the coastal State are empowered to prosecute
persons under the definition for such acts in the coastal State’s domestic law.
Right of Visit
No State has jurisdiction over a ship when it is in an area under the jurisdiction of another
State (territorial waters)20. Similarly, on the high seas, no State has jurisdiction over a ship
unless it is flying the flag of the warship.
However, as we have seen, there are exceptions to this principle allocating jurisdiction to
States over a ship in the high sea. These include a) piracy but also other crimes such as: b)
slavery, c) used for unauthorized emissions, d) is without nationality or the same
nationality as the warship though flying another flag and refuses to fly its flag.21 This right
is limited to the immunity of warships or vessels belonging to a State and intended to be
used for non-commercial public service22.
Upon seizure of the ship or aircraft taken in order to arrest the persons and seize the
property on board, States must comply with the UNCLOS provisions, namely:
19
UNCLOS, article 105.
20
UNCLOS, article 27, p.33.
21
Id, article 110, p.63.
22
Id, article110, para.1.
13
 The seizure may be carried out only by warships or other vessels
“authorized ships clearly marked and identifiable as being on
Government service and duly authorized to do so’’;23
 Naval ships and vessels "belonging to a State or operated by one
and used exclusively for Government non-commercial public
service"24 enjoy immunity vis-à-vis all other States; and,
 In case of unfounded boarding, the vessel shall be compensated
"for any loss or any damage [...] provided it has not committed
any act making it suspect". 25
Jurisdiction
The issue of the prosecution of pirates is crucial, especially in the case of piracy off the
coast of Somalia since it determines the competent courts to judge and imprison pirates.
A) Universal Jurisdiction
The principle of universal jurisdiction refers to commit crimes of such gravity that they are
internationally regarded as harmful and are therefore the responsibility of all States without
any effect on the location or the nationality of perpetrators or victims.
This principle is based on several principles that define universal jurisdiction. Thus,
universal jurisdiction should be a jurisdiction:
 Based on the crime regardless of the location or nationality of

perpetrators or victims or link with the State exercising universal
jurisdiction;
23
Ibid, article 107, p.62.
24
25
Ibid, article10, para. 3, p.28.
14
 This must be performed by the judiciary body of a State against a
person accused of committing serious crimes;
 Which a State may invoke as a basis to demand the extradition of
a person charged or prosecuted for crimes under international
law. People who have been extradited will be tried and punished
in accordance with the norms of international law concerning the
protection of human rights;
 While exercising universal jurisdiction, the State requesting the
extradition must respect the procedural norms including the
rights of defendants and victims, of procedural fairness, of the
independence and impartiality of justice; and,
 A State must exercise universal jurisdiction in good faith and in
accordance with the rights and obligations under international
law. 26
What are international crimes that are subject to universal jurisdiction? These are:
 Slavery; and,
 Piracy.
With the extension of international human rights many other crimes have been added to the
list of international crimes, these are the acts of:
 Genocide;
 Crimes against humanity;
 War crimes; and,
 Torture
26
Princeton University Program in Law and Public Affairs, Princeton Principles on Universal Jurisdiction,
2001, Human Rights Library.
15
B) Universal Jurisdiction and piracy
As we have seen previously, piracy is considered the enemy of all human beings (hostis
humani generic) as such, customary international law, including UNCLOS provide an
opportunity for all States to seize the vessels and those who have engaged in acts of piracy.
Similarly, every State has the opportunity to prosecute those suspected of having
committed acts of piracy, even if these acts have no connection with the State, provided
that the courts invoke the universal jurisdiction27.
However, the trial of pirates based on universal jurisdiction remains extremely rare.
Universal jurisdiction for piracy off the coast of Somalia is mainly exercised by countries
other than Western countries28.
2- Maritime Zones
UNCLOS was also intended to resolve the important question of delimitation of territorial
waters of the States. Thus, UNCLOS established the boundaries corresponding to specific
newly created maritime zones.
The delimitation of maritime zones and the identification of waters under the sovereignty
of a State is an essential element in determining the judicial competence of States.
Thus, UNCLOS defines several maritime zones around a coastal State with, for each area,
specific characteristics such as width but also the rights and obligations:
27
It is the case of Kenya Courts which have decided to prosecute pirates even though they were no nexus
between Kenya and the pirates.
28
ASIL Agora : An empirical examination of universal jurisdiction for piracy, Eugene Kontorovitch and
Steven Art, 2010, Volume 104, Number 3, p.436-453.
16
 Internal waters: Inland waters correspond to waters "below the baseline of the
territorial sea"; they correspond to waters located inside the coastal zone. For inland
waters, States have the rights to make laws, establish regulation and are not subject to
any right of passage.29
 The archipelagic waters: the archipelagic waters include the waters within
archipelagic lines measured by "the extreme points of the outermost islands and drying
reefs of the archipelago." These lines must not exceed 100 nautical miles. The State
exercises its sovereignty over these waters, but concedes a right of innocent passage
through archipelagic waters.30
 The territorial waters: The territorial waters should not exceed 12 nautical miles and
are also subject to regulation and national laws of the coastal State who has the right to
use the resources of these waters. States have a right of innocent passage which means
it must be continuous and expeditious and should not undermine the peace, good order
or security of the coastal State.
 The contiguous zone: The contiguous zone shall not exceed 24 nautical miles which
must be measured from the same point as that used for measuring the territorial waters
(baselines). In the contiguous zone, the coastal State exercises control in order to
"prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations in its territory or in its territorial sea.”31
 The Exclusive Economic Zone (EEZ): exclusive economic zone shall not exceed "200
nautical miles from the baselines from which the breadth of the territorial sea is
measured”. In this zone the coastal State has rights such as economic exclusive
exploitation of natural resources. All States have the freedoms of navigation and over
flight and the freedom to lay underwater pipelines and targets. While exercising their
29
30
31
Ibid article 33, p.35.
17
rights, the States have an obligation to respect the rights and obligations of coastal
States.32
 The Continental Shelf: The continental shelf is regarded as "natural extension" of

territorial waters should not exceed "200 nautical miles from the baselines from which
the breadth of the territorial sea is measured". The outer limit must not exceed “350
nautical miles from the baselines from which the breadth of the territorial sea is
measured or at a distance not exceeding 100 nautical miles from the 2,500 m isobath,
which is the line connecting the depth of 2500 meters.” The coastal State comprises the
continental shelf resources located in “the seabed and subsoil”. 33
Exclusive Economic Zone and piracy
The extension of the jurisdiction of coastal States as stipulated by UNCLOS complicated a

little more the problem of piracy. The example of the EEZ, formerly part of the high seas,
is the most telling. The piracy provisions of UNCLOS are entirely from the Geneva
Convention on the High Seas of 1958 which clearly states that acts of piracy occur only
outside the jurisdiction of a coastal State.34 The question is therefore whether the UNCLOS
provisions apply in the EEZ as residual rights and obligations despite the fact that the EEZ
is under the jurisdiction of a coastal State. This issue is even more problematic since
Article 86 of UNCLOS excludes from the scope EEZ provisions relating to piracy.
However, Article 58 (2) states:
“Articles 88 to 115 and other pertinent rules of international law

apply to the exclusive economic zone in so far as they are not
incompatible with this Part.”
32
33
34
See supra note 16.
18
In accordance with this Article, the provisions relating to piracy apply to the EEZ in so far
as they are not inconsistent with the rights and obligations of States (the freedom of
navigation and overflight and the freedom to lay targets and submarine pipelines) but also
be compatible with the laws and regulations drafted by the coastal State.
Article 58 (3) further clarifies that:
“In exercising their rights and performing their duties under this
Convention in the exclusive economic zone, States shall have due
regard to the rights and duties of the coastal State and shall comply
with the laws and regulations adopted by the coastal State in
accordance with the provisions of this Convention and other rules
of international law in so far as they are not incompatible with this
Part.”
This article complements article 56 (2) of UNCLOS on the rights of the coastal State in the
EEZ which stipulates the rights and obligations of States that the coastal State is complied
to respect.
It is argued that Article 58 (3) which refers to the rights and obligations of the coastal State
does not limit the applicability of articles 100 to 107 of UNCLOS in the sense that these
economic rights must be respected by States fighting piracy, but in no way do they confer a
“regulatory power of the coastal State on the performing rights of all States eliminate
piracy in the EEZ.” 35
In the case of Somali piracy, naval operations engaged in the fight against piracy operate in
the EEZ of Somalia as well as in the territorial and internal waters under the UN
resolutions with the consent of the Transitional Federal Government (TFG) (this part will
be examined later).
35
ASIL Agora : Countering piracy off Somalia international law and international institutions, J.Ashley
Roach, 2010, Volume 104, Number 3, p.398-399.
19
UNCLOS is a synthesis of State practice for hundreds of years and is the main legal
instrument currently used by States to fight against the phenomenon of piracy.
III- Suppression of Unlawful Acts (SUA)
In 1989, the Achille Lauro, a ship flying under Italian flag which shuttled between
Alexandria and Port Said had been seized by a group of Palestinian fighters who demanded
the release of 50 Palestinian fighters by Israel with the threat to kill the hostages if their
demand was not honored. After the refusal of Israel, the group killed an American citizen.
The case of the Achille Lauro is tragic example of the limits of the definition of piracy
under international law. For while some jurisdictions have qualified this act as an act of
piracy (which is the case of the American courts36) the nature of the facts and the definition
of piracy under international law contradict that position.
The aim of the commando was not guided by "private ends" as stated by Article 101 of
UNCLOS but it was more politically motivated. According to the definition of piracy the
Achille Lauro seizure does not constitute an act of piracy. Moreover, the definition
provides for the intervention of an additional vessel but in our case there was only one
vessel involved where once again, the difficulty of translating these acts as acts of piracy.
This case showed the limits of the definition of piracy as contained in UNCLOS and
highlighted the need to fight against these acts of maritime violence so as the
implementation of a tool to criminalize such acts. That was Italy’s stand, which has urged
the international community to fill gaps in the fight against international terrorism37.
It is precisely to overcome the shortcomings of UNCLOS and to increase the ability to

legally pursue the perpetrators of crimes that the international community, headed by Italy,
36
Affairs and Cooperation in Combatting International Terrorism 24 I.L.M. 1509, 1554-57 (1985).
37
Ronzitti, note 72 above, p. 2.
20
Egypt and Austria proposed the Convention for the Suppression of Unlawful Acts of
Violence against The Safety of Maritime Navigation (SUA Convention).38
The SUA came into force on 1 March 1988 and focuses on appropriate action to be taken
against people who commit illegal acts against ships. The agreement covers unlawful acts
such as the seizure of ships with the use of force, acts of violence against persons on board
ship and to introduce equipment on board of aircraft likely to destroy or damage the ship.
The United States and other delegations have raised the idea that the platforms installed in
their continental shelves must be protected from unlawful acts and therefore covered by the
SUA Convention. The latter proposal is incorporated into the protocol called “Protocol for
the Suppression of Unlawful Acts against the Safety of platforms located in the continental
shelf.”39
1- Illegal acts by the Convention
The SUA Convention provides a list of actions that must be considered illegal. These acts
are the result of:
“(a) seizes or exercises control over a ship by force or threat thereof

or any other form of intimidation; or
(b) performs an act of violence against a person on board a ship if
that act is likely to endanger the safe navigation of that ship; or
(c) destroys a ship or causes damage to a ship or to its cargo which
is likely to endanger the safe navigation of that ship; or
(d) places or causes to be placed on a ship, by any means
whatsoever, a device or substance which is likely to destroy that
ship, or cause damage to that ship or its cargo which endangers or is
likely to endanger the safe navigation of that ship; or
38
Convention for the Suppression of Unlawful Acts of Violence against The Safety of Maritime Navigation,
Entered into Force on 1 March 1992, treaties series, vol.1678, Nos. 28991-29006.
39
Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation, adopted on 1 February 2005, LEG/CONF.15/21.
21
(e) destroys or seriously damages maritime navigational facilities
or seriously interferes with their operation, if any such act is likely
to endanger the safe navigation of a ship; or
(f) communicates information which he knows to be false, thereby
endangering the safe navigation of a ship; or
(g) injures or kills any person, in connection with the commission
or the attempted commission of any of the offences set forth in
subparagraphs (a) to (f).
2. Any person also commits an offence if that person:
(a) attempts to commit any of the offences set forth in paragraph 1;
or
(b) abets the commission of any of the offences set forth in
paragraph 1 perpetrated by any person or is otherwise an
accomplice of a person who commits such an offence; or
(c) threatens, with or without a condition, as is provided for under
national law, aimed at compelling a physical or juridical person to
do or refrain from doing any act, to commit any of the offences set
forth in paragraph I, subparagraphs (b), (c) and (e), if that threat is
likely to endanger the safe navigation of the ship in question. “ 40
2- The geographic scope of the SUA Convention
Unlike UNCLOS, SUA does not limit in maritime areas. The SUA applies everywhere in
the sea, except for the internal waters of a coastal State, but also “if the ship is navigating
of is scheduled to navigate into, through or from waters beyond the outer limit of the
territorial sea of a single State, or the lateral limits of its territorial sea with adjacent
States.” 41
The agreement covers an area larger than UNCLOS and aims to reduce the impunity of
40
SUA Convention, article 3, p.224.
41
22
perpetrators of acts punishable under the agreement who, by entering into a territorial area,
escape from foreign naval forces. And it is precisely to fight against impunity for
perpetrators seeking refuge in the territorial waters of a State that the SUA provides certain
obligations which States parties must comply.
3- Obligations of States under the Convention
Prevention
The SUA Convention in its Article 13, provides that all States shall take measures to
prevent illegal acts in or outside its territory, exchange information with the aim of
preventing illegal acts and finally when an illegal act is committed in the territory of a
Member State, the latter must take all steps to ensure that cargo, passengers or crew is not
unduly detained or delayed.42
It is also the duty of a Member State that has reason to believe that an unlawful act will
occur to provide information as quickly as possible to States which have established
jurisdiction to entertain such actions.
Jurisdiction
The most important provision of the SUA Convention is arguably the principle of
extradition or prosecution. This principle requires all Member States of the SUA
Convention, an international obligation to prosecute offenders within its territory to its own
jurisdiction even if the act allegedly occurred in the territory of the State or in another
place.43
42
43
SUA Convention, article 6, para.1-2, p.226 ; article 10, p.229.
23
The Convention obliges States, where the State within which the offender is found shall not
initiate legal proceedings, to extradite offenders to a third State who has exercised his right
under the Convention.44
The SUA Convention provides several criteria through which a State may invoke its
jurisdiction principle and the principle of prosecution or extradition, they are:
 The jurisdiction based on territorial aspect: a State may express

its jurisdiction based on where the illegal act was committed
(including territorial waters);
 The jurisdiction based on nationality: This jurisdiction is based
on the nationality of offenders or the flag of the vessel against
which the assault was committed;
 The jurisdiction passive: A State may claim jurisdiction against
offenders where one or more of the victims of illegal acts are
nationals of that State;
 The universal jurisdiction (see above);
 The jurisdiction based on habitual residence: A State may invoke
its jurisdiction when the offender or the victims had their
habitual residence in that State; and,
 The jurisdiction based on the State target: The court may be
raised if the act is intended to compel a State to act or prevent
them from doing an act.
States parties are also obliged to arrest, to ascertain the offender's presence at his trial,
cooperate and exchange information and evidence needed to conduct the procedure.45
44
Ibid, para 4, p.227.
45
Ibid, article 7, p.227; article 13, para (b), p.231.
24
In the aftermath of 11 September 2001, it became urgent for the international community to
build the capacity to fight acts of violence against ships or ports and the prospect of using
seized vessels and to commit acts of violence.
Thus, a reform was seen as paramount need and the SUA was proposed by many States
under the auspices of the IMO which decided to arrange a major conference to revise the
1988 SUA in 2002 in London.
4- The 2005 Protocol
In the preamble, the Protocol of 2005 stressed that terrorist acts threaten international peace
and security. The protocol is responsible for extending the provisions of the SUA
Convention by introducing additional measures in order to fight against all acts against the
safety and security of navigation.
Additional definition of an unlawful act
Article 3bis was added by the protocol and expands the illegal acts of the SUA Convention.
Without an agreement on the concept of terrorism, States have decided to describe the
illegal acts that could be added to the agreement.46
Therefore, any person who commits an act which, by its nature and context, is to
“intimidate a population or compel a Government or an international organization to do or
abstain from doing any act” commits an offense under the SUA Convention.47
An act means:
 “The use against or on board a ship or to spill from a ship

explosives, radioactive material or BCN weapon, oil, liquefied
natural gas or other hazardous or noxious substances in a
46
2005 Protocol, article 3bis, p.6.
47
Ibid, article 3bis, para.1, sub-para.(a), p.6.
25
manner or in quantities or concentrations which cause or
threaten to cause serious injury or damage;
 The use of a vessel in a manner that causes death or serious
bodily injury or property damage or threat to commit an
offense stated above with or without a requirement according
to the domestic law;
 The transportation of explosives or radioactive materials;
equipment, materials or software or related technologies that
contribute significantly to the design, manufacture or delivery
of a BCN weapon; BCN weapons designed to cause or threaten
to cause death, serious injury or damage;
 The transportation of raw materials or special fissionable
material, equipment or material especially designed or prepared
for the processing, use or production of special fissionable
material while being fully aware that these materials are
intended to be used for a nuclear explosive activity and is not
subject to IAEA safeguards; and,
 The deliberate and illegal transport of a person on board a ship
knowing that this person has committed one of the offense
listed above.” 48
Is in violation of the SUA Convention, any person who intentionally kills or injures
someone while it is in connection with any of the previous offenses, attempts or abets an
offense; organizes or contributes to the achievement of one or more offenses.49
Right to board
As opposed to piracy, slavery and other crimes, unlawful acts as defined in Article 3 of the
SUA Convention do not establish the universal jurisdiction. If certain acts of Article 3 can
48
2005 SUA protocole, article.3ter.
49
Ibis, article 3quater, p.8.
26
constitute acts of international crimes they may, however, not be perceived as such.
Unlawful acts do not give the opportunity to a warship to board over a ship flying under a
foreign flag.
Thus, and to respond to this constraint of international law, States have introduced an
additional provision in the Protocol of 2005: Article 8bis.50 This article provides the
procedures and cooperation that must be followed by a State party to board a ship flying
under a foreign flag which it has reasonable grounds to believe that either the boat or the
people on board have been or are about to be involved in the commission of an offense to
the SUA Convention.
In case "the law enforcement officers or agents" of a State Party has substantial grounds for
believing that a vessel flying under the flag of another State off the territorial sea
committed or is about to commit one or more violations of the agreement then that State
must respect the procedure. Article 8a (5) provides that the State must require from (a) The
State flag of the vessel a declaration of nationality, (b) in case of confirmation, demand
permission to board and search the vessel, its cargo and persons on board, and to interview
people on board.51
It falls under the flag State to decide how to proceed, but any transaction is subject to the
express authorization of the latter without which it is strictly forbidden to take measures
against a ship. This last point may be flexible in a case where a ship is witnessing the on
going of any act contrary to the SUA Convention.
When submitting the instrument of ratification, acceptance, approval or accession, a State

Party may notify its position vis-à-vis vessels flying its flag or displaying its mark of
registry:52
50
Ibid, article 8bis, P.10.
51
2005 SUA protocol, article 8bis.
52
Ibid, art 8bis, para.(d), p.13.
27
 If there is no reply within a period of four hours after the
accused received the request for a declaration of nationality,
the State claiming the authority is entitled to proceed with
measures involving the boarding, riding board, search and
question people; and,
 A State Party which requires a permit is authorized to “board
and search a ship, its cargo and persons on board, and to
interview people on board to determine whether an offense
under section 3, 3a, 3b or 3c has been, is being or is about to be
committed.”53
Regarding piracy, the SUA and its 2005 Protocol, complement the provisions of UNCLOS
including expanding the acts of violence against ships, by extending the geographic scope
of the SUA Convention and including an obligation on States Parties to pursue the
perpetrators of unlawful acts in case they found refuge in the territory of that State.
IV- International Law and Piracy
1- Modern Piracy
Modern piracy represents a significant challenge to international law because of its

complex nature, the importance of maritime transport and the context of economic
interdependence of States.
Most countries where offshore piracy is occurring are developing countries, least
developed countries or failed countries. These countries are suffering for the vast majority
of lack of facilities, equipment, qualified human resources and financial means to
implement control forces offshore.
53
Ibid, art 8bis, para.(e), p.14.
28
Pirates take advantage of the current difficulties of the State to settle on the coast in order
to conduct their activities sometimes with the complicity of local authorities.
Financial revenues from these practices are huge and make harder the fight against this
phenomenon by the Governments of these States.
The diversity of the crew of the pirate ships and the sophistication of the equipment they
use have also increased the difficulty. The specificity of a pirate crew is not in the number
of pirates on board, which is often low, but rather in the technicality of its elements.54
A pirate ship is composed of sailors familiar with modern navigation and capable of sailing
on large size ships; some former military and negotiators polyglot and experienced.
In addition, it appears that some of the pirates are familiar with the principles of
international law and in particular their shortcomings. Asian piracy is a perfect example of
the ability of pirates to seek refuge within the territorial waters of States or its inland waters
with the certainty that foreign warships have no right to penetrate inside these areas.
The spectacular development of maritime transport is a crucial factor in determining the

issues of piracy in particular off the coast of Somalia.
Approximately 80% of trade is by sea and a little less than 40% of global transport flows
through the East Africa. From 1980 to 2010 the world merchant transmission has increased
by 86%, and erecting the safety of merchant ships as a top economic priority. 55
Economic interdependence of States is widely reflected in ships crossing the Gulf of Aden.
It is thus very common for a merchant ship that the crew, the flag, and cargo are of various
nationalities. This point deserves attention because it is essential to the jurisdiction of the
State which wishes to exercise its jurisdiction over suspected pirates.
54
Idarat Maritime, New Tactics & Equipments in the Somali Pirates’ Compaign, 2009.
55
UNCTAD Statistic, Maritime Transport, World Merchant fleet, 2011.
29
2- International Law
There are many points especially on piracy to which international law provides no clear
answer or for which the response is inadequate. With particular regard to the situation off
the coast of Somalia, customary international law does not meet the requirements to fight
against modern piracy. Several points are worth noting:
A) The Geographical aspect
The geographical limitation of acts of piracy to the high seas, pursuant to UNCLOS, is
based on the principle that acts occurring within the territorial waters of a State are subject
to the jurisdiction of the latter which must therefore take actions to fight against such acts.
The logic behind this provision was to preserve the sovereignty of States even though
piracy is the responsibility of all. However, UNCLOS did not address the scenario of a
State unable, for economic or political reasons, to repress such acts occurring in its
territorial waters.
It did not foresee that acts of piracy, operating in States mainly composed of islands and
therefore require 12 nautical miles of territorial waters, makes the area under national
sovereignty extremely wide and makes the suppression of such acts more difficult.56
SUA extends the geographical scope to the territorial waters. However, the ability of
warships to operate in these waters is necessarily subject to obtaining the authorization by
the coastal State. The latter can, according to its capacity, respond before the deadline to
the declaration of nationality and authorization request or send a ship to arrest the
suspected persons.
56
For instance piracy in the Strait of Malacca.
30
However, the agreement also ignores the scenario of a State, because of limited capacity
which can neither respond to the request for authorization or a declaration of nationality
within the prescribed time, nor send a warship to the waters. In this case, seizure, arrest and
search of vessels are illegal and would give rise to compensation.
In addition, SUA is limited by the fact that if the flag State is not a signatory to the SUA
Convention, warships have no authority to stop, seize, search the ship or interview people
on board.
B) Body of evidence
UNCLOS defines the pirate ships as vessels which people intend to use to commit acts of
piracy. However, the agreement does not specify which evidence shows that people intend
to use the ships for piracy. This lack of precision could be explained by the wide large of
manoeuvre given to the domestic tribunals to introduce and set up a more clear and precise
definition.
This legal vacuum is the cause of the “catch and release” practice of warships patrolling off
the coast of Somalia, who release the alleged pirates even though they have found on board
with evidence suggesting that they are about to commit acts of piracy.57
The fact of carrying weapons is not itself unlawful, even though the weapons, the ship, the
origin of the people and the area in which people navigate as a body of evidence suggests
that these people will or are about to commit an act punishable under Article 101 of
UNCLOS.
International law allows domestic courts to define the evidence that could determine the
57
See, e.g., Report of the Special Adviser to the Secretary-General pursuant on Legal Issues Related to Piracy
off the Coast of Somalia, UN Doc. S/2011/30*, (25 January 2011).
31
nature of the ship arrested.58 The warships off the coast of Somalia must be familiar with
the domestic law of the State to which the alleged pirates will be sent.
To overcome this difficulty, it is proposed to introduce bilateral agreements between States

which would contain equipment articles that will list the weapons that may constitute a
body of evidence to arrest the ship and people on board under the grounds that the ship is
intended to be used to commit an act of piracy. 59
This proposal is based on the equipment articles established by Great Britain in the 19th
century to fight against the slave trade. The fact of finding chains and any other items on
board was grounds to arrest the ship and people on board unless the owner of the ship
proves the use for which these instruments were intended.60
C) Jurisdiction
International Law and judicial cooperation agreements
UNCLOS stipulates that in case of seizure of a ship or pirate in an area outside the
jurisdiction of a State by a ship of war, international law gives the State arresting the
possibility “to apprehend the persons and seize the property on board. The courts of the
State which carried out the seizure may decide the penalties to be imposed, as well as
measures to be taken regarding the ship, aircraft or property, subject to third parties in good
faith.”61
According to this article, the courts of the State which carried out the seizure are competent
to exercise jurisdiction over acts of piracy having occurred on the high seas
however, the term “may” is interpreted differently by different specialists. While some
consider that this term is merely a possibility left to the arresting State to deal with crimes
58
SUA Convention, article 9, p.228; article 10, p.229.
59
Eugene Kontorovich, Equipment Articles: An International Evidence Rule for Piracy, (2011).
60
Id., p.2.
61
See supra note 19.
32
committed on the high sea,62 others believe that the convention by not including any other
jurisdiction, allocates responsibility of prosecution to the State that carried out the
seizure.63
For the proponents of this latter interpretation, the comments of the International Law
Commission on Article 43 of the Draft Article reproduced in the Convention on the High
Seas and UNCLOS in article 105 reinforce this hypothesis.
The Commission shall record that the right to seize a pirate ship and pirated ship and see
the pirates be tried by its court may not fall under the jurisdiction of another State.
This last sentence is at the center of many contradictory analyses on the legal consequences
for the State carrying out the seizure.
Some scholars interpret the annotation as the allocation by the Commission of exclusive
jurisdiction to the State that arrests the people and seizes property on the ship.
Others believe that the endorsement of the Commission in no way constitutes an obligation
for the courts of the arresting States since the Commission only stresses the obligation of a
seizure only occurs outside the jurisdiction of a State. They interpret the endorsement of the
Commission as an effort to expand the jurisdiction of the coastal State even though it
would not have itself made the seizure of the vessel pirated or pirate ship.
This interpretation of the jurisdiction of the State which carried out the seizure is a central
matter for the naval forces fighting against piracy off the coast of Somalia since it
determines whether or not the fact that arresting pirates automatically opens a judicial
procedure in the courts of the State which carried out the seizure, even though another State
exercises universal jurisdiction in order to prosecute these pirates.
62
See supra note 35, note 42.
63
Id. at note 38.
33
This legal issue is one of the reasons explaining the practice of "catch and release"
practiced by a number of warships off the coast of Somalia when they seize a vessel for
which however there are reasonable grounds to suspect that the vessel is involved in piracy.
The provisions of the Convention on the high seas are directly inspired by the Draft
Convention prepared by the Harvard Group which lists the practices and rights of the
powerful maritime States of the 19th century.
As noted above the will of the international community for greater codification of legal
rights gave rise in 1982 to the adoption of UNCLOS, which itself incorporated several
provisions of the Convention on the High Seas of 1958 in particular those related to piracy.
The provisions of UNCLOS related to piracy are subject to criticism mainly due to its
definition of piracy which require a certain number of factors to be fulfilled and which
arguably make these provisions obsolete vis-à-vis modern piracy.
As mentioned above, it is to deal more efficiently with these new threats that numerous
countries decided to ratify SUA, which includes provisions supplementing UNCLOS’
provisions with respect to the geographical scope and also adds provisions regarding the
transfer of alleged suspects of illegal acts to other member States that make the requests.
However, when it comes to Somali piracy, the context of the country, not party to the SUA,
and the incapacity of the Government to control its coasts are new challenges to the
international community.
Indeed, the provisions of UNCLOS provide precisely that piracy can only be described as
acts occurring on high seas and not into coastal States maritime zones (EEZ, territorial
water, internal water). However, much of the piracy acts occurring in Gulf of Aden are
happening in the Somalia maritime zones.
34
In addition, the context of the absence of State institutions forced the international
community to provide a specific response to piracy off the coast of Somalia.
This response must pass through the establishment of an international legal framework to
overcome the constraints explained above and the establishment of a better interaction with
the various organizations of the United Nations in charge of different aspects of Somali
piracy.
35
SECTION B: INTERNATIONAL ORGANIZATIONS
Paragraph 1: United Nations
I- United Nations Security Council Resolutions (UNSCR)
Since 2005, the Secretary-General of the UN was alerted by the alarming number of acts of
piracy off the Somali coast and the threat that the increase of such acts posed to national
economies but also to the maritime trade in general.
The Security Council took up the issue of piracy under Chapter VII of the UN Charter
which provides that the Council may make recommendations to maintain and restore
international peace and security in case of threat to the peace, breaches of the peace and
acts of aggression.
Figure 2: Somalian Piracy Threat Map

Source: Wikipedia
36
1- The question of jurisdiction in Somali waters
The Security Council of the UN aware of the limits of international law in particular
regarding the inability of States to seize, search or arrest persons who have committed an
act of piracy in an area under the jurisdiction of a State, decided to adopt a resolution aimed
at filling this gap.
On 2 June 2008, the Security Council of the UN adopted Resolution 1816 under Chapter
VII of the UN Charter. The resolution provides the possibility for States to enter the
territorial and internal waters of Somalia for the purpose of repressing acts of piracy “in a
manner consistent with action permitted on the high seas in cases of piracy under the law
applicable international.”64
This special permission granted to the international community should apply only in
accordance with applicable international law on the high seas; this is the case of UNCLOS.
International humanitarian law and human rights are also provisions of applicable
international law including trial but also imprisonment of suspects.
This resolution raised many reservations from States that are facing acts of piracy and who
do not want to see the provisions of this resolution becoming customary international law
provisions which would lead to a decrease of the sovereignty of States in their territorial
and internal waters.
To address this concern, the resolution States in paragraph 9 that the resolution does not
establish a customary international law and it is responding to a request by the TFG in
order to help him fight against this phenomenon.
This authorization is only granted for a period of six months and only to States whose TFG
64
SC. Res.1816, para.7 (a), (2 June 2008), UN Doc. S/RES/1816.
37
has provided the names to the Secretary-General and for the purpose of protecting
humanitarian convoys.65
On 7 October 2008, the Security Council unanimously adopted Resolution 1838 tasked
with completing resolution 1816.
Thus, the Security Council calls upon “States whose naval vessels and military aircraft
operate on the high seas and airspace off the coast of Somalia to use on the high seas and
airspace off the coast of Somalia the necessary means.”66
This latest resolution followed a surge in piracy off the Somali coast and in particular the
attack on ships such as the French yacht Ponant. At the initiative of France, the Security
Council took up this issue and reminded the international community of the importance of
cooperation of States and organizations for the prevention, operations involving the use of
strength and a technical assistance to Somali authorities.
In this resolution, the Security Council expressed its willingness to renew the provisions of
Resolution 1816 which was limited to six months but also introduces the possibility of
using the Somali airspace for military operations.
2- Cooperation and Technical Assistance
On 2 December 2008, two months after resolution 1838, the Security Council was again
seized with the issue of piracy and adopted Resolution 1846 which governs the means of
action to curb the phenomenon.
The resolution extends the possibility of intervention by States, whose list has been
provided by the TFG, to 12 months and plans to extend it beyond.67
65
Id. at, para.7.
66
SC.Res.1838, para.2, (7 October 2008), UN Doc. S/RES/1838.
67
SC. Res.1846, para.10, (2 December 2008), UN Doc. S/RES/1846.
38
As all previous resolutions, this new resolution calls for collaboration and cooperation
among States and also provides assistance to States and regional organizations to help
implement measures to fight against piracy.
This resolution calls on States “to issue to ships entitled to fly their flag appropriate advice
and guidance on avoidance, evasion, and defensive techniques and measures to take if
under the threat of attack or attack when sailing in the waters off the coast of Somalia.”68
It also provides technical assistance to coastal States and regional organizations to develop
their institutional capacity to monitor and control coastal sea.
Resolution 1846 urges all States to cooperate in order to determine legal jurisdiction but
also to take legal action against perpetrators of acts of piracy in particular through
“logistics assistance with respect to persons under their jurisdiction and control, such
victims and witnesses and persons detained as a result of operations conducted under this
resolution.”69
The resolution recalls that States parties to the 1988 Convention have an obligation to
criminalize such acts as “seizing or exercising control over a ship by force or threat thereof
or any other form of intimidation.”70
On 16 December 2008, the Security Council expressed its concerned about the increasing
acts of piracy and adopted Resolution 1851 which mandated States to strengthen key
aspects in the fight against piracy.
Again, the issue of cooperation between States but also with international and regional
organizations is emphasized. Thus, States are requested in paragraph 4 of this resolution to
68
Id. at para.9.
69
Id. at para.14.
70
Id. at para.15.
39
“establish an international cooperation mechanism to act as a common point of contact
between and among States, regional and international organizations on all aspects of
combating piracy and armed robbery at sea off Somalia’s coast”.71 To do so, the resolution
encourages States to establish a regional center in order to coordinate information relevant
to piracy and armed robbery at sea off the coast of Somalia.
This resolution gives great importance to judicial cooperation including the prompt
conclusion of agreements and arrangements between States and international organizations
to end impunity for pirates. This resolution calls for embarkation on naval vessels
patrolling in the Gulf of Aden of "officers of the fight against crime" particularly from the
region. This is to facilitate criminal investigations and proceedings and reduce the practice
of “catch and release”.72
In the same line as resolution 1846, the resolution calls upon the international community
to support the TFG, including allowing him “to strengthen its operational capacity to bring
to justice those who are using Somali territory to plan, facilitate or undertake criminal acts
of piracy and armed robbery at sea.”73
The unanimous adoption of UNSCR 1851 is explained by the concern prompted by the
exponential increase of the number of attacks and the expanding areas of occurrence of the
acts of piracy.
Resolution 1897 adopted on 30 November 2009 by the Security Council extends

authorization for intervention on the territory of Somalia States previously listed by the
TFG.74
71
SC. Res.1851, para., (16 December 2008), UN Doc. S/RES/1851.
72
See supra note 57.
73
See supra note 71, para.7.
74
SC. Res.1897, para.7, (30 November 2009), UN Doc. S/RES/1897.
40
3- The legal component
Pursuant to Resolution 1897, the UN Secretary-General presented a report summarizing the

various measures taken by the international community and this in accordance with
previous resolutions adopted by the Security Council.75 It appears from this report that the
issue of prosecutions against perpetrators of piracy remains the weak point of the system
put in place off the Somali coast.
This reflects the fact that the little agreement or arrangement relating to judicial
cooperation among States whose vessels patrolling in East Africa and the countries of the
region remain very poor and the practice of "catch and release" is still widespread. In
addition most States, including those in the region, either do not define in their national
legislation piracy offence or do not have sufficient provisions allowing for effective
prosecution.
To remedy this, and to prevent impunity of pirates, the Security Council under the Russian
proposal unanimously adopted resolution 1918 on 27 April 2010 which requested the
Secretary-General “to present to the Security Council within 3 months a report on possible
options to further the aim of prosecuting and imprisoning persons responsible for acts of
piracy and armed robbery at sea off the coast of Somalia, including, in particular, options
for creating special domestic chambers possibly with international components, a regional
tribunal or an international tribunal and corresponding imprisonment arrangements, taking
into account the work of the CGPCS, the existing practice in establishing international and
mixed tribunals, and the time and the resources necessary to achieve and sustain
substantive results.”76
75
See, e.g., Report of the Secretary-General pursuant to Security Council resolution 1897, UN Doc
S/2010/556* (27 October 2010).
76
SC. Res.1918, para.4, (27 April 2010) UN Doc. S/RES/1918.
41
On 26 July 2010, the UN Secretary-General presented seven options for the international
community to make sure to bring to justice the perpetrators of acts of piracy:77
Option 1: Strengthen capacity of States in the region in the prosecution and incarceration
with the assistance of the United Nations: raising for instance the high security chamber
Shimo la Tewa (Kenya) Secretary-General expressed the wish to retain this option even
strengthening it and highlights the need for political involvement from States of the region.
Option 2: Court extraterritorial area with or without UN participation: In the opinion of the
Secretary-General this option requires a relatively long time for its implementation and
raises the question of capacity and the ability of the Somali judicial system to effectively
respond to acts of piracy.
Option 3: Special national chamber, or shared between several States in the region, without
the participation of the UN: This option may, according to the Secretary-General, establish
justice "two speed" in the State or States concerned and stressed that this option would
have real value only if it was to be established in Somalia.
Option 4: Special Chamber within domestic legislation or shared between several States in
the region, with the participation of the UN: This raises the question of changing the laws
of some States and is more expensive than the previous option, while having the same
drawbacks.
Option 5: Regional Court based on a multilateral agreement between States in the region,
with the participation of the UN: The Secretary-General stresses that this option has the
advantage of strengthening the capacity of States in the region, the proximity for the
77
See, e.g., Report of the Secretary-General on possible options to further the aim of prosecuting and
imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia,
including, in particular, options for creating special domestic chambers possibly with international
components, a regional tribunal or an international tribunal and corresponding imprisonment arrangements,
taking into account the work of the Contact Group on Piracy off the Coast of Somalia, the existing practice in
establishing international and mixed tribunals, and the time and resources necessary to achieve and sustain
substantive results, UN Doc. S S/2010/394* (26 July 2010).
42
transfer to the place of trial and incarceration and the greatest ability than a special chamber
within a domestic jurisdiction. However, the costs, time for implementation and risk of
reduction of capacity of jurisdiction of the States of the region are the disadvantages of this
option.
Option 6: International Tribunal based on an agreement between a State in the region and
the UN: This option is for the Secretary-General an expensive one and relatively less
effective than previous options. It carries with it the benefits of Option 4 "to a lesser degree
probably" and the disadvantages of Option 5.
Option 7: International Tribunal created through a resolution of the Security Council under
Chapter VII of the UN Charter: This option has the advantage of having a capacity larger
than a special chamber, but the cost and the time their implementations are important
dimensions.
To better establish which options may be selected by the international community, the
Secretary-General appointed a Special Adviser to identify measures that can be
implemented to allow States to take legal action against those who are involved in piracy
activities.
The Special Adviser presented his report 18 January 2011 in which he offers 25
recommendations based on “a comprehensive and multifaceted" with the simultaneous use
of three levers: economic, security and judicial / prison.78
The Special Adviser emphasizes the important role of Somalia in the eradication of this
phenomenon by proposing the creation of two specialized courts and prisons located in
Puntland and Somaliland. It also retains the Option 2 of United Nations Secretary-General
78
See Letter dated 24 January 2011 from the Secretary-General to the President of the Security Council, UN
Doc. S/2011/30 (25 January 2011).
43
through the creation of an extraterritorial tribunal that could be installed in Arusha,
Tanzania.79
Following the example of the Secretary-General, the Special Adviser highlights the
importance of preventive measures including increasing local development in Somalia so
as to reduce the attractiveness of piracy to the Somalis. This measure, he says, can be
effective with the combination of three major aspects: the disappearance of the impunity of
pirates who must always be tried and imprisoned, an upstream prevention of such vessels
through the introduction of measures stipulated in the Best Management Practices and
capacity building of police but also coastguards of the countries in the region, particularly
Somalia.80
The Special Adviser emphasizes the need of a harmonized legal, police and prison States in
the region which, in his report, have a key role to play.
On 11 April 2011, the Security Council adopted Resolution 1976 which provides for the
establishment of a broad legal framework to fight against the phenomenon of piracy off the
Somali coast.
In line with the report of the Special Adviser, the resolution gives a large place in Somalia
in the suppression of acts of piracy and provides:
 strengthening the capacities of countries, particularly through

the possibility of creating specialized courts of Somalia and the
possibility of a court extraterritorial;
 Improve domestic law through the adoption of laws with the
assistance of UNODC and UNDP to assist Somalia to provide
judicial and police capacity to intervene on the ground;
79
Id. at para.10, p.3.
80
Id. at, para.4, p.9; para.80, p.28; para.34, p.18.
44
 The conclusion of agreements for transfer between States so as to
transfer the suspects to a place of trial and eventually to the place
of incarceration;
 The construction of prison in Puntland and Somaliland and the
training of prison unit; and,
 Strengthen the capacities of coast guards including providing
means for monitoring coastal land.
Resolution 1976 also highlights the various measures to be undertaken by the international
community to strengthen the legal corpus such as:
The need to establish piracy as a criminal offense under the domestic law of countries and
calls on countries to prosecute perpetrators of acts of piracy under the universal jurisdiction
but also encouraging, facilitating and understanding in to commit an act of piracy:
 The importance of investigating and prosecuting even imposed

sanctions against the sponsors of such acts;81
 Improve the procedural setting for collecting and preserving
evidence and facilitate the transmission thereof to the
competent authorities;
 In accordance with international law, it is asked to UNDOC
and INTERPOL to consider a legal framework for the retention
of the alleged pirates at sea; and,82
 Calls upon States to fight against illegal fishing and illegal
deposits of hazardous materials.83
81
SC. Res. 1976, para.16, (11 April 2011), UN Doc. S/RES/1976.
82
Id. at para.16.
83
Id. at para.7.
45
The resolution urges the Secretary-General to prepare a report within two months spelling
out the conditions of institution of a special court both in Somalia and outside Somali
territory pursuant to the recommendations of the Special Adviser.84
The Secretary-General presented his report on 15 June 2011, detailing the conditions of
institution of a special court in Somalia and outside Somali territory.
The Secretary-General indicated that for Somalia, the courts of Puntland and Somaliland
would be appropriate to judge the alleged pirates.85 The report stresses out that several
prerequisite measures must be taken:
 The creation of a criminal and procedural framework in

compliance with international treaties;
 The construction of adequate premises and allocation of
equipment and materials;
 The training of judges, prosecutors, police investigators and
defense counsels on specific piracy-related criminal procedures
and provisions, with the assistance of international experts;
 Security guarantee to persons involved in the process, and
which should be integrated into the costs;
 The increase of prison capacities in the two regions and
training of prison units to be consistent with international
standards in this domain;
 Cooperation between Somalia and the forces patrolling off the
coast to ensure the transfer of prisoners (currently inexistent
with the exception of Seychelles); and,
 Harmonization of the collection and the admissibility of
evidences between the States of the region and Somalia. 86
84
Id. at para.26
85
See, e.g., Report of the Secretary-General on the modalities for the establishment of specialized Somali
anti-piracy courts, para. 7, UN Doc. S/2011/360* (15 June 2011).
86
Id. at para.14, 16, 17, 26, 28; 32, 34.
46
The costs to run such a court would stand at $24,434,720 USD over three years.87
An extraterritorial court would require an analysis of the different elements to be able to

define its terms and conditions:
 The position of the States of the region in relation to this

solution: The Somali federal authorities and Somali authorities
in Puntland are reluctant. Somaliland expressed no objection,
but does not wish to host it. Tanzania indicated that it could
host the court; however, several points should be clarified;
 The legal and judicial implications of this action: Depending
on the nature of this extraterritorial court, Somali authorities
(federal and regional) will have to examine its compatibility
with other legal instruments (Constitution), ratify an agreement
with the host State, spell out the competences of the authorities
responsible for investigations in an extraterritorial court, and an
adequate legislative framework for the host State;
 The legal framework of the court: The court should apply the
criminal laws of Somalia, which must be modified to include
an anti-piracy law;
 Security and premises: Security is one of the crucial points and
requires the implementation of various preventive measures.
The premises of the ICTR for Rwanda, should the Tanzania
option be retained, should be available as well as various other
premises;
 Training of judges, prosecutors, police investigators and
defense counsels: Judges may be multi-racial (Somali and
87
Id. at para.42.
47
international judges) and may include judges from the Somali
Diaspora;
 Cooperation with the States patrolling (as with the Somali
court) and,
 Incarceration and collection of evidence: The court should have
incarceration facilities to detain alleged pirates before and
during their trial. Whereas, the facilities in Tanzania do not
meet international standards. The Common Law-based method
of collection of evidence applicable in Somalia should be the
reference. The main difficulty is the presentation of witnesses
(videoconferencing posing obvious technical problems). 88
According to the report, it is difficult to estimate the cost of such an operation and the time
needed for its implementation.
II- United Nations Office on Drugs and Crimes (UNODC)
The UNDOC’s mandate is to assist countries in the fight against illicit drugs, crime and
terrorism through capacity building of member countries; seeking to increase countries'
expertise in the field of drug and crimes and assistance in the establishment of national and
international legal instruments.
Encouraged by resolution 1851 of the Security Council of UN, UNDOC took the initiative
“to achieve effective Measures to remedy the cause, capacities and incidents of piracy and
armed robbery off the coast of Somalia.”89 UNDOC has published papers and implemented
various measures to help Somalia but also the countries of the region.
88
Id at paras. 53-88.
89
See supra note 71.
48
1- The UNDOC counter-Piracy program
The counter-piracy program has been commonly launched by the European Commission
and UNDOC and it is based in Nairobi. This program aims to enhance the legal capacities
of Somalia and its neighbouring countries in order to conduct in these countries trials in
compliance with international treaties.90
The strategy of UNODC is to assist countries who express the desire to improve their
ability to judge and imprison people convicted through the provision of equipment,
implementation of training activities and dissemination of advice.
The program is intended to help, in addition to Somalia, countries of the region that express
the wish to conduct a fair trial and to improve conditions of detention of persons who have
been found guilty in accordance with international law.
In addition to Somalia, Kenya is the second country in the region that has requested the
expertise of UNODC in May 2009 in order to adapt its legal system to meet the
requirements of piracy. Seychelles, Mauritius, Tanzania and the Maldives also benefit from
this assistance program of UNDOC.
In Kenya's case, the assistance of UNODC is reflected, among others, by training advisers
appointed by the State Attorney General who led the prosecution against those suspected of
piracy; by assistantship in the testimony of victims; and interpretation.91
90
UNODC, counter-Piracy program, UNODC.COM, February 2011, at
http://www.unodc.org/documents/easternafrica/piracy/20110209.UNODC_Counter_Piracy_February_Issue.p
df.
91
See, ASIL Agora: Kenya’s Piracy Prosecutions, James Thuo Gathii, 2010, Volume 104, p.433.
49
2- Piracy Prisoner Transfer Programme (PPTP)
In addition to technical assistance, UNODC, acting pursuant to the report of the Special
Adviser for piracy which advocated a "Somalization" of solutions of piracy, launched the
Prisoner Transfer Program (PPTP). This is a program returning sentenced pirates to their
home countries after their conviction in a third country.92
Such an operation requires an agreement that provides for transfer arrangements between
States whose vessels patrolling off the Somali coast and the recipient State. These
agreements may take the form of bilateral or multilateral.
Kenya, for example, has concluded bilateral agreements with several countries including
Great Britain, the United States, European Union and Denmark and so on.
The agreement with the European Union States, for instance, that Kenya is bound by the
provisions of international law including the provisions of human rights including the
prohibition of the use of torture and other inhuman treatment, the prohibition of arbitrary
detention and in accordance with the conditions of a fair trial: “humanely shall conduct free
and in international human rights obligations, including the prohibition against torture and
cruel, inhumane and degrading treatment or punishment, the prohibition of arbitrary
detention and in accordance with the requirement to have a fair trial”.93
UNDOC plays a facilitating role by providing technical support for the conclusion of an
agreement between States such as that recently concluded between the Seychelles and the
TFG and two other countries in the region.94
Through this program, UNDOC also responsible for the renovation, even the building of
92
See supra note 90, p.10 (The PPTP is part of the Counter-Piracy strategy).
93
EU-Kenya, Mar. 6, 2009, 2009 O.J. (L 79) 49 at
http://ec.europa.eu/world/agreements/downloadFile.do?fullText=yes&treatyTransId=13445.
94
Nation, Seychelles signs historic accord on transfer of jailed Somali pirates, Nation.sc, February 12, 2011,
at http://www.nation.sc/index.php?art=22405. There is a Transfer agreement signed between Seychelles and
Mauritius on 21 July 2011 at http://www.eturbonews.com/24134/seychelles-and-mauritius-sign-pirates-
transfer-agreement.
50
penitentiaries for the holding of those convicted of piracy. In Kenya, it is the Shimo la
Tewa prison located in Mombasa which contains the alleged pirates awaiting their trial.95
UNOPS has begun construction of two prisons in Somalia, one in Somaliland and
Puntland, and the other is scheduled to be completed in early 2012.96 The agency was also
busy renovating the prison in Hargeisa, Somaliland and also the one of Bossaso in
Puntland.
95
UNODC, Shimo La Tewa: the centre of Kenya's fight against piracy, 31 March 2011, at
http://www.unodc.org/unodc/en/frontpage/2011/March/shimo-la-tewa-the-centre-of-kenyas-fight-against-
piracy.html.
96
UNOPS is undertaking the construction of two prisons as part of the Rule of Law & Security (ROLS) set
up by UNDP Somalia. at http://www.so.undp.org/index.php/Rule-of-Law-Security.html.
51
III- International Maritime Organisation (IMO)
The IMO is one of the most important international organizations in charge of maritime
safety and security. 169 Member States comprise this United Nations agency who plays a
crucial role in the prevention and dissemination of information between Member States and
the maritime industry groups.
Its mandate includes “to provide machinery for Cooperation among Governments in the
Field of Governmental regulation and Practices Relating to Technical Matters Affecting All
kinds of shipping Engaged in international trade, to encourage adoption and Facilitate the
General of the highest practicable standards in maritime safety regarding matters,
efficiency of navigation and prevention and control of marine pollution from ships.”97
Since the 80's, the IMO has considered the issue of maritime security because of piracy
activities threatening shipping in the Strait of Malacca. The agency developed a set of
measures to fight against these practices and facilitate the cooperation of States in the
region of Southeast Asia by providing a wide range of expertise.
One of them was in the ratification of regional cooperation agreement entrusted with
creating instruments to coordinate actions of the countries in the region affected by the
phenomenon (The Regional Cooperation Agreement on Combating Piracy and Armed
Robbery Against Ships in Asia: RECAAP).98
The IMO is one of the first organizations to become alarmed at number of attacks against
merchant ships off the coast of Somalia and who took a series of decisions, establishing a
number of guides and practical and facilitate the adoption of multilateral agreements
including:
97
The IMO Convention, article 1(a), entered into force in 1958 and has been signed by 170 States.
98
Available at http://www.recaap.org.
52
1- Resolution A.1026 (26)99
The Assembly of the IMO on December 2nd, 2009 adopted the resolution A.1026 (26)
which incorporates the essential parts of the draft resolution submitted by the Sub-
Committee on Safety of Navigation (NAV), entitled piracy and armed robbery Against
Ships in waters off the coast of Somalia.
The resolution supports the resolutions of the UN Security Council, in particular the
extension for a period of 12 months of the authorization of entry on Somali territory, and
calls upon parties:
“to assist to take action, within the provisions of international

law, to ensure that […] all acts or attempted acts of piracy and
armed robbery against ships are terminated forthwith and any
plans for committing such acts are abandoned; and any
hijacked ships, seafarers serving in them and any other persons
on board are immediately and unconditionally released and that
no harm is caused to them.”100
The resolution recommends that vessels to sail through the international transit corridor
(also contained in the Best Management Practice) and call upon the States parties to take
legal and judicial measures to enable “to receive, prosecute or extradite any pirates or
suspected pirates and armed robbers.”101
2- MSC.1/Circ.1333 1334
On 4 August 2010 the IMO’ Secretary-General provides the Circular MSC.1/Circ.1333 and
1334 which established a number of recommendations to Governments and a guide for
99
IMO. Res. A 26/Res.1026, (3 December 2009).
100
Id at para.2.
101
Id at para.5 (l).
53
ships owners and ships operators so as to prevent and suppress acts of piracy off the Somali
coast and in the region of the Arabian Sea..102
This practical guide provides a number of measures of prevention, some of them are
contained in the report of the Special Adviser of the Secretary-General of the United
Nations, including sailing at high speed, setting up turret, corridor, water hose, barbed wire
etc ... it is worth to note that the presence of these instruments of prevention are reflected in
insurance contracts.
3- SN.1/Circ.281
On 3 August 2009, the IMO transmitted to Member States Circular 281 which provides
information on international transit corridor and urges member States to take appropriate
measures to inform ships owners, ships operators and crew to implement measures
contained in the Circular so as the provisions of previous circulars (MSC.1/Circ.1334,
MSC.1/Circ.1332, MSC.1/Circ.1302).103
4- Djibouti Code of Conduct
The Djibouti code of conduct is a document of Regional Cooperation adopted in 2009 in

Djibouti and for which the IMO has contributed with its expertise and experience (it will be
more extensively discussed in the next section).104
102
See, Circular MSC.1/Circ.1333 Available at
http://www5.imo.org/SharePoint/blastDataHelper.asp/data_id%3D25884/1333.pdf.
103
NAV, Circular SN.1/Circ.281, (3 August 2009).
104
Available at http://www.imo.org/OurWork/Security/PIU/Documents/DCoC%20English.pdf.
54
IV- UNPOS
UNPOS, created in 1995, has a mandate to support the efforts of the UN Secretary-General
for establishing peace and national reconciliation through the preparation of reports and
guides as well as building relationships with Somali personalities.
Convinced that solutions to fight against piracy is the stabilization of Somalia, the former
UN Special Representative for Somalia, Mr. Ould-Abdallah called on the international
community “to bring an appropriate and new support to the Somali authorities to help them
address effectively the root causes of piracy.”105
UNPOS attends meetings of CGPCS and its role is to support the process of pacification
and the strengthening of capacities of the Somali Government in order him to fulfil some of
its sovereign prerogatives.
The reports of the Special Representative constitute elements of appreciation of the

situation in Somalia from which the international community develops new decisions.
105
UNPOS, Latest acts of piracy are renewed provocations, Press Release 012 (2009).
55
Paragraph 2: Other Organizations
I- Contact Group on Piracy Off the Coast of Somalia (CGPCS)
In accordance with Resolution 1851 which provides for the establishment of a mechanism
for international cooperation to serve “as a common point of contact between States and
between them and regional and international organizations”,106 the international community
decided to create the Contact Group on piracy off the Coast of Somalia.
The group is composed of 60 States, international organizations and industry groups and is
responsible for coordinating the various aspects of the fight against piracy.
The CGPCS consists of five working groups, each chaired by a country:
 Working Group 1: Military and Operational Coordination,

Information Sharing, and Capacity Building, chaired by the
United Kingdom, focuses on force generation, operational
coordination and capacity-building;
 Working Group 2: Judicial Issues, chaired by Denmark,
focuses on judicial mechanisms for deterring piracy;
 Working Group 3: Strengthening Shipping Self-Awareness
and Other Capabilities, chaired by the United States
(Republic of Korea in March 2012), works closely with the
commercial shipping industry to enhance awareness and
improve capabilities;
 Working Group 4: Public Information, chaired by Egypt,
seeks to make clear to the world, and especially to the Somali
public, the damage being done by pirates; and,
106
See supra note 71, para.4
56
 Working 5: Financial Flows, chaired by Italy, focuses on the
illicit financial flows associated with piracy in order to disrupt
the pirate enterprise ashore. 107
The CGPCS meets three times a year at UN headquarters in New York and its working
groups frequently publish their views on issues related to the area studied.
The group's mandate is to facilitate operational coordination of naval forces to create a

partnership with industry groups to reduce the risks of pirate attacks through the
establishment of preventive measures and monitor expenditures related to the procedures
legal action against perpetrators of acts of piracy.
II- North Atlantic Treaty Organization (NATO)
NATO is a military organization comprising 28 countries and in charge of the military

defence of its members.
In accordance with UN resolutions calling on States and international organizations to fight

against piracy in particular off the coast of Somalia, the command of NATO deployed
naval forces in the Horn of Africa. 108
NATO naval forces were in charge of escorting WFP ships through Operation Allied
Protector, which lasted from March to August 2009.
The command of NATO in 2009 launched Operation Ocean Shield. This new operation has
a broader mandate than its predecessor, including “to help regional States that so request, to
develop their own capacity to fight against piracy activities.” 109
107
See at http://www.state.gov/t/pm/ppa/piracy/contactgroup/index.htm.
108
See at http://www.nato.int/cps/en/natolive/topics_48815.htm.
109
See at http://www.au.int/en/about/nutshell.
57
110
The command in charge of coordinating the activities is based in Bahrain.
III- African Union
The African Union in its capacity as a continental organization is responsible for

“strengthening the unity and solidarity of African States, coordinate and intensify
cooperation for development to defend the sovereignty and territorial integrity of Member
States, and to foster international cooperation in the framework of the UN.” 111
In accordance with its mandate, the African Union adopted the Abuja Declaration on
Maritime Transport and the African Maritime Transport Charter. 112
The declaration stipulates that Member States should cooperate at the bilateral, regional
and international levels in order to remove the illegal acts, acts of piracy, terrorism, etc.
Article 26 of the declaration stresses the need for States to take all measures to fight against
acts of piracy, armed robbery and illegal acts through cooperation with international
bodies.
This Charter provides in Chapter VII of cooperation, information exchange and mutual
assistance by Member States to ensure the safety and maritime security in particular
through the establishment of mechanism for cooperation and harmonization of laws
national. African Union is currently developing an African Integrated Maritime Strategy to
facilitate implementation of the Charter, with emphasis on threats to maritime security such
as piracy.113
110
The charter has been adopted by the African Minister of Transport during the second African Union
Conference which take place in Durban, South Africa, the Revised version of the Charter has been adopted on
36 July 2010; charter available at http://www.au.int/en/content/revised-african-maritime-transport-charter.
111
Id at article 12, para.4.
112
Id at article 26, para.2.
113
African Union, “Maritime security and safety in Africa: moving from talking to taking concrete
action” Press release Nº47/2010.
58
IV- Interpol
Interpol is a police cooperation organization with 187 members and aims to prevent and
arrest the perpetrators of international crimes.
Request by the interior ministers of the G-8, Interpol through his Secretary-General said it
114
is ready to join international agencies that fight against piracy off the Somali coast.
Interpol calls for stronger legal capacities of States to facilitate the work of organizations
fighting against piracy in that it allows to “establish links between boxes to facilitate
apprehension of potential suspects and to support The Prosecution."115
In 2006, Interpol has developed the project BADA against maritime piracy in Asia, and
provides “to identify members of gangs, existing hierarchies, Areas of operation, modus
operandi and links to other criminal activities.” 116
The agency provides technical assistance to teams of investigators from countries in the
region, particularly Kenya and Somalia through training activities regarding investigative
techniques facilitating the judicial process (fingerprint readers, smart phone etc. ...). 117
In January 2010, Interpol hosted an international conference on combating financial piracy.

This conference aimed to coordinate cooperation in financial investigations through the
creation of a task force that would coordinate activities to combat piracy of such order “to
uncover the main financing networks and traffic pattern money.” 118
114
Interpol Press release, available at http://www.interpol.int/News-and-media/News-media-
releases/2009/PR052.
115
Id.,
116
Available at http://www.un.org/depts/los/consultative_process/mar_sec_submissions/interpol.pdf.
117
Interpol News, “INTERPOL/UNODC analysis training boosts East Africa capacity to investigate
maritime piracy”, (2011) available at
https://www.interpol.int/Public/ICPO/PressReleases/PR2011/News20110207.asp.
118
Available at http://www.interpol.int/News-and-media/News-media-releases/2010/PR004.
59
The Security Council also urged the various UN agencies to work together to fight against
this phenomenon and to implement an instrument of coordination between the different
actors involved in the fight against piracy including the CGPCS.
Following the request of the international community, the Secretary-General proposed

different solutions to solve the difficult problems regarding the trials location and the
incarceration of pirates as reflected in the reports described above.
It appears that most of these proposals are oriented towards a regionalization of the
solutions and the involvement of two regions of Somalia. These solutions imply the
establishment of regional structure to coordinate various activities and national structures
that would work with regional institutions.
It would be useful to make a comparison of a successful regional structure and to study the
regional structures already implemented in the Gulf of Aden and the legal provisions of
States at the national level and their degree of implication in the fight against Somali piracy
and the organizers behind it.
60
CHAPTER 2: REGIONAL AND NATIONAL LAW
SECTION A: REGIONAL LAW
Paragraph 1: Asian Cooperation
Regional cooperation is one of the key aspects of the mechanisms implemented by the
international community to fight against piracy. It supplements the provisions of
international law and constitutes a major component in the prevention and suppression of
pirate attacks as well as the rescue of ships sailing off the Gulf of Aden.
To clearly understand the components and challenges of regional cooperation, it is useful to

consider the Asian regional cooperation in its response to piracy acts.
I- Asian regional cooperation
Since the 1990’s, there has been a revamp or upsurge of piracy acts, notably with the piracy
acts in Southeast Asia. The total number of incidents recorded between 1984 and 2002
stands at 2626 and this figure has tripled in ten years. Indonesia was ranked as the country
with the highest pirate-infested maritime zone and in 2000 Asian piracy represented 65% of
the total incidents at sea.119
Faced with this scourge, various international organizations, including the IMO and the
United Nations, appealed to the countries of the region to cooperate and implement a set of
coordination mechanisms to help, on the one hand, overcome all the legal and physical
119
Zou Keyuan, “Seeking effectiveness for the crackdown of piracy at sea”, Journal of International
Affairs; Fall 2005; 59, 1; ABI/INFORM Global.
61
barriers and, on the other hand, to repress this feeling of impunity enjoyed by pirates as a
result of the lack of coordination, notably, legal.
Regional agreements are critical as they supplement the provisions of international law. An
example is the pursuit of ships: pursuant to Article 111 of UNCLOS, the pursuit of a
foreign ship may only ensue should the ship be sailing in the territorial waters, contiguous
zones or EEZ of a coastal State, in violation of the rights applicable in the area (see
maritime zones above). The pursuit must be ended if the foreign ship enters the territorial
sea of its State or that of another State.
Similarly, the advocacy of the existence in international law of extradition agreements

between two States for the transfer of one or more piracy act suspect, where a request is
made by a third country interested in, and competent to hear the case, may contribute to the
impunity of the pirates. The request of the third State is often rejected in the absence of
such an agreement and where the State of origin of the suspects does not initiate any legal
proceedings.
Consequently, in a bid to overcome these shortcomings, the countries of the Southern

Asian region adopted a series of measures to enhance cooperation between the States of the
region. The instant response of the coastal countries explains their fear to see their
sovereignty diminished with the intervention of foreign countries in their territorial waters
and economic zones to suppress piracy acts themselves.
Efforts to fight against piracy acts off the Strait of Malacca mobilized more countries other
than the countries of the region and were implemented at several levels: national, bilateral,
trilateral and multilateral.
1- National Mobilization
Coastal countries deployed more efforts to fight against this phenomenon. In addition to the
desire of Governments to ascertain their resolve, these countries were able to demonstrate
62
their response capabilities to the international community. The economic costs ensuing
from the fight against piracy acts are not inconsiderable, which justifies the efforts made by
the Governments of coastal countries to eliminate this phenomenon.
Thus, Indonesia instituted Special Patrols and Forces specifically devoted to the fight
against piracy. The Government set up a command center liaising directly with commercial
maritime industries and is resolved to fight against poverty, which promotes piracy acts in
the coastal areas.120
Similarly, the Government of Malaysia in 2005 took a series of security measures (creation
of special anti-piracy task force), strengthened the capacities of coast guards (Malaysian
Maritime Enforcement Agency) and acquired modern equipment (boat, radar, etc.).121
In Singapore, the authorities also implemented new security measures, notably improving
the systems of surveillance and information exchange and building the capacities of Coast
Guards.
2- Bilateral cooperation
At the level of the coastal countries, Malaysia and Indonesia as well as Indonesia and
Singapore concluded bilateral agreements aimed at enhancing cooperation, notably through
joint patrols in areas under their jurisdictions, and exchange of information.
Other countries also contributed to the efforts of the countries of the region. Japan granted
three patrol boats to the Indonesian Navy in December 2007, plus 15 million USD on 7
November 2008 “to increase its ability to promote safety of navigation in the straits of
120
Prof. DR. Hasjim Djalal, “The Development of Cooperation on the Straits of Malacca and
Singapore”, Nippon Foundation, November 2011.
121
Id.,
63
Malacca and Singapore by establishing Vessel Traffic System (VTS) in Batu Ampar and a
number of sensor stations to collect information on the traffic”.122
The United States equally contributed by providing 15 patrol boats to the Indonesian Navy
and training of Malaysian Coast Guards (20 to 26 October 2008 in Detroit and cities in
California).
3- Trilateral Cooperation
A) Cooperation Mechanism
A meeting was held in Kuala Lumpur from 18 to 20 September 2006, during which a
decision was taken to put in place a cooperation mechanism between the coastal States and
the countries that use the Straits of Malacca for Maritime Security and Environment
Protection “for burden sharing.”123
Several meetings (Batam, Jakarta, Kuala Lumpur) were held to confirm the implementation
of cooperation mechanisms and spell out the principles under which these cooperation
mechanisms will operate:
 Recognition of the territorial sovereignty and jurisdictional

sovereignty of the coastal State;
 Pursuant to Article 43 of UNCLOS; and,
 The TTEG (Tripartite Technical Experts Group) will be the
focus points for activities undertaken in the Strait.
122
Id., Para.38
123
See supra note 119 para.11.
64
The cooperation mechanism includes three components:
 Cooperation Forum (CF) for dialogue and open discussion

among the coastal States and the users;
 Project Coordination Committee (PCC) for the
implementation of cooperative programs in cooperation with
the sponsors of the project; and,
 Aids to Navigation Fund (ANF).
It was agreed that the implementation, structure and process of these cooperation
mechanisms must be flexible and simple, and should not hinder the institution of bilateral
agreements or creation of specific projects.
These provisions result from negotiations between the different countries affected by piracy
and are intended to ponder on the concerns of States, notably the fear of States of losing
their sovereignty within their territorial waters.
B) Malacca Strait Patrols
The Malacca Strait Patrols (MSP) is a set of cooperative security measures primarily
initiated by the coastal countries (Malaysia, Singapore, and Indonesia), which Thailand
joined in 2008:
 In 2004, the Southeastern Asian countries most affected by

piracy mobilized 17 warships to patrol their respective
territorial waters and economic zones. This operation dubbed
"MALSINDO" laid the foundation of a multilateral agreement
later called Malacca Straits Sea Patrols (MSSP);
 Eyes in the sky (EIS) was an operation launched in September
2005 and made up of air patrols responsible for identifying
suspicious ships and crafts. Unlike the previous patrols, these
65
air patrols are authorised to fly over the airways of
participating countries and each country should provide two
patrols per week. Countries that are not MSP members may
take part in these operations; however, no country outside the
region has been involved so far;
 The third component is the Intelligence Exchange Group (IEG)
launched in 2006. This covers cooperation between State
Parties intelligence services to help in analyzing information
and enhance the efficiency of naval operations. To this end,
State Parties implemented the Malacca Straits Patrol
Information System (MSP-IS), an information system that
allows users to exchange information in real time and help
improve the speed of data transmission and,
 Joint Coordinating Committee (JCC) is the transmission,
information exchange and coordination channel for all the
activities undertaken by Member States.
4- Multilateral Cooperation
A) The Regional Cooperation Agreement on Combating Piracy

and Armed Robbery against Ships in Asia (ReCAAP)
The need to reach a multilateral agreement for the implementation of information exchange
mechanisms was increasingly advocated as acts of piracy multiplied and became more
elaborate, such as the attack against the Alondra Rainbow.
At the ASEAN Summit in November 2001, Japan proposed the adoption of a legal
document to enhance cooperation between the countries of the region for a more efficient
fight against piracy. In November 2004, following Japan’s initiative, many countries of the
region (ASEAN countries including Japan, Bangladesh, South Korea, India and China) met
66
in Tokyo to adopt the first multilateral regional agreement: the Regional Cooperation
Agreement on Combating Piracy and Armed Robbery Against Ships in Asia, ReCAAP.
The agreement includes several forms and categories of regional cooperation, notably
through the creation of the Information Sharing Centre (ISC) in charge of collecting,
compiling and analyzing information related to piracy acts and armed robbery, and
preparing statistics and reports based on this information. Based in Singapore, the center
will equally be responsible for disseminating early warning signals to contracting parties.
The center shall be built on three pillars:
 Information Sharing: The agreement provides the creation of a

national focus point in charge of transmitting information to
ships; cooperation between the contracting parties for the
detection and arrest of people guilty of acts prohibited by the
Agreement; seizure of ships used for such acts or even the
rescue of ships and victims of such acts;
 Capacity building: The Parties shall cooperate to improve
capacities for the prevention and suppression of acts of piracy,
notably through the training of coast guards, allocation of
equipment and materials, technical assistance and simulated
training; and,
 Mutual Legal Assistance and Extradition: The contracting
Parties shall cooperate to mitigate the impunity enjoyed by
pirates by extraditing persons suspected of a crime or crimes
prohibited by the agreement, following a request made by
another contacting party. The agreement also provides legal
assistance to any contracting party that will directly make the
request to another party.
67
B) Information Fusion Centre (IFC)124
Based in Singapore since 27 April 2009, IFC is a center that analyzes information on
maritime safety and intended to strengthen national and multilateral cooperation. Its role is
to collect, consolidate and analyze information obtained with the collaboration of ISC-
ReCAAP, Western Pacific Naval Symposium, Regional Maritime Information Exchange or
the Malacca Straits Patrols Information System.
The center uses this information to enhance methods of detecting threats to maritime safety
and build the analytical capacities of reinforcement units such as the coast guards.
IFC, which is operational since 2010, is located in the Changi C2 Centre of the Changi
Naval Base. The center works in close collaboration with different intelligence agencies
such as the United States or Australian intelligence services, which provide technical
support and facilitate the coordination and exchange of information.
124
The center has set up a website which post information in live : https://www.infofusioncentre.gov.sg.
68
Paragraph 2: Gulf of Aden Cooperation
I- The component of the Gulf of Aden Cooperation
1- National
Seychelles obtains assistance from UNODC, in collaboration with the European Union, for
its police forces, coast guards, prosecutors, prisons and courts by providing them with
Somali interpreters.125
Germany, Canada and Australia launched a cooperation program, which includes training
security forces on legal proceedings and evidence collection, and allocating up-to-date
equipment. Seychelles also receives support from China, India and the United States. 126
Mauritius is assisted by India, which in April 2009 trained several squads on the fight
against piracy and the deployment of warships to jointly contribute to the surveillance of
Mauritian maritime zones against piracy acts and illegal fishing. Following its acceptance
in 2010 to prosecute pirates, Mauritius has benefited, via UNODC, from the training of its
Coast Guards and allocation of equipment and materials (vehicles, computers, radios, video
conferencing etc.). Mauritius’s Coast Guard security forces are trained by the United
States, while France and the United Kingdom train the gendarmerie forces.127
The European Union and UNDOC have pledged to support the Kenyan Government’s
desire to prosecute and imprison pirates. As a matter of fact, the courts of Kenya were the
first of the region that have prosecuted and convicted pirated. UNDOC provides technical
125
UN news center.
http://www.un.org/apps/news/story.asp?NewsID=34601&Cr=piracy&Cr1=&Kw1=piracy&Kw2=&Kw3=
126
Two frigates arrived in Seychelles on the 12th April, 2011, at http://www.eturbonews.com/22279/china-
and-seychelles-solidify-fight-against-piracy.
127
US are providing trainings to Mauritius coast guards, available at US Department State’s website at
http://www.state.gov/r/pa/ei/bgn/2833.htm; The Navy (Indian Naval Marine Commandos) trained Mauritius’s
Coast Guards, at http://www.stratpost.com/navy-trains-mauritius-cg-in-anti-piracy-ops.
69
assistance and equipment through the construction and rehabilitation of prisons, training of
coast guards and strengthening of laws. Kenyan courts equally receive technical assistance
(interpreters, online resources etc.). 128
Tanzania’s legal framework is currently under review and the country should also benefit
from the support of UNDOC and the international community to strengthen its capacity to
judge and imprison pirates.129
2- Bilateral
There are very few bilateral agreements between or among countries of the Gulf of Aden
and the Indian Ocean. The region of Puntland announced on 12 May 2011 its intention to
receive the Somali pirates detained in Seychelles prisons.130
Djibouti ratified a bilateral extradition agreement with Ethiopia and made the commitment
to extradite under specific conditions persons guilty of crimes punishable by the local laws
of both countries.131
Moreover, UNODC’s strategy to fight against piracy includes a prisoner transfer program,
making it possible to transfer persons found guilty of piracy.132
128
At http://www.unodc.org/easternafrica/en/about-unodc-eastern-africa/ongoing-projects.html.
129
Tanzania as well as Maldives benefits from UNDOC assistance in the field of Judicial, prisons building,
police programmes, available at
http://www.unodc.org/documents/easternafrica//piracy/UNODC_Brochure_final25.05.11.pdf .
130
http://www.unodc.org/documents/easternafrica//piracy/CPP_Brochure_4.pdf.
131
Africa South of the Sahara, Europa Publications, (33rd Edition. 2004).
132
See supra note 90.
70
3- Multilateral
A) Djibouti Code of Conduct
The Djibouti Code of Conduct was adopted on 29 January 2009 following a conference
held in Djibouti under the auspices of the IMO.133
Similar to the ReCAAP, the Djibouti Code of Conduct institutes a series of legal provisions
that allow its members to enhance their cooperation in several areas to fight more
efficiently against Somali piracy:
 Legal cooperation: Signatories to this agreement commit to

cooperate in the investigation, arrest and prosecution of
persons over who hang serious suspicions of acts of piracy,
armed robbery and ship capture, as well as the rescue of ships
victim of acts of piracy. The courts of the State that made the
arrest are competent with regards to the ship and the property.
This "preliminary" right may be waived in favour of the courts
of another State signatory to the agreement; 134
 Cooperation in information exchange: The Code requires
that parties cooperate in improving information exchange for
the prevention and elimination of acts of piracy. It recommends
the appointment by each party of a national representative, who
will facilitate the transmission of information on the attacks of
ships and other information on the situation of national
legislations, and their transmission to information exchange
centres located in three countries of the region (Kenya, Yemen
and Tanzania) and a regional training centre in Djibouti. These
centers will be responsible for (like the ReCAAP-ISC)
133
See supra note 104.
134
Djibouti Code of Conduct, article 2, article 4.
71
collecting, compiling and analyzing the information provided
by the parties and preparing statistics and reports that will be
presented to the parties, the maritime community and the
Secretary-General the International Maritime Organization;
and,135
 Technical assistance and cooperation: the Djibouti Code of
Conduct appended to document N°.2 appeals to member States
of the IMO and of many international organizations to support,
directly or via the IMO, parties’ endeavours to efficiently
implement the provisions of the Code of Conduct.
The States signatories to this agreement have expressed their intention
“to review their national legislations to ensure that the laws

applicable in their countries help to prosecute persons guilty of
criminal acts of piracy and armed robbery against ships [...]
appropriate policies to ensure the exercise of the judicial
power, conduct of investigations and prosecution of the alleged
offenders”.136
The memorandum of agreement for the construction of the Djibouti training centre was
signed on 31 May 2011 pursuant to Article 1 of the appended document N°3 of the
Djibouti Code of Conduct, which provides that the centre will organise training sessions to
enhance the knowledge Government officers of the States signatories to the agreement and
improve he harmonisation of provisions of the Code.
The Code of Conduct is not binding; however, member States must meet two years after
the effectiveness of the Djibouti Code of Conduct to establish a binding agreement.137
135
Id. article 8, article 9.
136
Id, article 11.
137
Id. Article 13.
72
The Code was ratified by 18 countries out of the 21 eligible; France, Mozambique and
South Africa are yet to sign.
II- The Eastern and Southern Africa - Indian Ocean (ESA-IO)

Regional Strategy and Regional Plan of Action
A critical meeting was held on 7 October 2010 in Grand Bay (Mauritius) between different
States of the region and representatives of the European Union. This meeting was an
opportunity for representatives of ministries to make a joint statement recommending the
creation of a regional strategy to serve as framework for the prevention and repression of
acts of piracy and armed robbery.
This statement advocates an approach founded on three pillars:
 “Develop, agree and implement a Somalia Inland Action Plan

to counter and prevent piracy”.138 The development and
implementation of the action plan was entrusted to IGAD,
which is a regional organisation with the mission to “Promote
and maintain peace and security and humanitarian affairs”;139
 Encourage States of the region to apprehend and prosecute
pirates with the support of the international community; and,
 Strengthen the capacities of States to help control their
maritime zones.
138
Joint Communiqué from the Eastern and Southern Africa – Indian Ocean Ministers and European Union
High Representative, Grand Bay, Republic of Mauritius, (7th October 2010).
139
Mission of IGAD at http://igad.int.
73
The statement also advocates the implementation of a regional action plan to help
materialise the regional strategy, notably in the area of “exchange of information,
cooperation, joint action, and capacity-building as cross-cutting principles.”140
It equally suggests that the ESA-IO interregional coordination committee should serve as
secretariat for the new coordination mechanism in charge of planning and implementing
the regional strategy and regional action plan. However, it seems the States taking part in
the meeting are unable to reach consensus; consequently, the proposal is at a deadlock.
140
See supra note 138.
74
III- Eastern Africa Police Chiefs Cooperation Organisation (EAPCCO)
The EAPCCO is an East African State’s police cooperation organisation founded in

Kampala in 1998, with the aim of improving cooperation and uniting the efforts of the
police forces to fight against transnational crimes.141
It consists of eleven members including Kenya, Seychelles, Djibouti, Tanzania and

Somalia. It aims at strengthening cooperation between police units, developing strategies to
improve collaboration, sharing information between members and making
recommendations to Governments on aspects that could enhance effective collaboration,
and organising regional training programmes.142
Transnational crimes targeted by the organization include:
 Anti-terrorism;
 Motor vehicle theft;
 Anti-drugs;
 Economic crimes and corruption;
 Illegal firearms;
 Cattle rustling;
 Environmental and Wildlife crime; and,
 Trafficking in human beings and Illegal immigrants.143
The organization is founded on a number of principles such as the respect of sovereignty,

compliance with human rights and equality among police units.
141
Available at https://www.interpol.int/Public/ICPO/SRB/EAPCCO.pdf.
142
EAPCCO’s Constitution, article 3.
143
See supra note 141.
75
Interpol is one of the key partners of EAPCCO; the countries’ national offices are the units
liaising with the organization and Interpol’s regional office serves as secretariat to the
organisation (Nairobi, Kenya).
IV- Intergovernmental Authority on Development (IGAD)
Made up of six countries of the Horn of Africa (Djibouti, Ethiopia, Eritrea, Kenya, Uganda,
Somalia and Sudan), the Intergovernmental Authority on Development was founded in
1996 and is based in Djibouti. Its mission includes:
 Food Security and environmental protection;

 Promotion and maintenance of peace and security and
humanitarian affairs; and,
 Economic cooperation and integration.144
As a regional organization, IGAD is especially active in the peace process in Somalia and
the implementation of actions to curb the phenomenon of piracy, which stands as a threat to
the Somali population that is dependent on humanitarian assistance and transportation in
general.
In its attempt to harmonize the policies of its member States and facilitate regional
cooperation, notably in the judicial sector to fight against international crimes, the
organization proposed two agreements on mutual assistance in criminal matters and
extradition to members States.
The conventions adopted by the Council of Ministers at the 33rd Session of IGAD, under
the supervision of the Anti-Terrorism Capacity Building Program, spell out the conditions
and procedures for mutual assistance and extradition of persons suspected of crime.145
144
See supra note 139.
76
The agreement on extradition specifies the grounds for a State to refuse to extradite one of
its citizens to another State Party that shall make the request.
“When the offense requiring extradition has been committed

outside the territory of both the State party and requesting State,
and where the law of the State party does not authorise the
prosecution of persons for similar offenses committed outside its
territory.” 146
This last point excludes offenses committed outside the territory of the State Party and that
of the requesting State: in this case, the notion of territory may be defined as the territorial
waters and EEZ. This aspect of the Agreement excludes acts committed in areas outside the
jurisdiction of a State Party, which is the case of most acts of piracy in the Gulf of Aden.
One disadvantage of this agreement is the fact that it is limited to the States Parties, which
excludes thereof key stakeholders such as Seychelles, Mauritius and France (Reunion).
However, it illustrates the existence of a regional political will for more enhanced regional
cooperation, notably for criminal matters.
V- Regional cooperation and specificities of Somali piracy
There are major differences between the Asian piracy and the Somali piracy, which explain
the difficulties in implementing an efficient regional cooperation in the East Africa region
based on the Asian model of regional cooperation.
145
The 33rd Session of the Council of Ministers was held in Djibouti from December 7th and 8th, 2009, at
http://igad.int/attachments/155_Council_Communique_General_FINAL.pdf.
146
IGAD Convention of Extradition, article 6, para. 2.
77
1- Level of development
There is a significant development gap between the Asian countries affected by piracy and
the countries of the Gulf of Aden.
The development gap is equally significant among the Asian countries affected by acts of
piracy, both in relation to the HDI and GDP per capita, and the degree of integration of
their economies into the global market. Consequently, this group consists of highly
developed countries (Singapore, Japan, and South-Korea), relatively developed countries
(Malaysia) and developing countries (Indonesia, Thailand).147
The presence of developed countries accounts for the level of efficiency of these
coordination mechanisms, which receive material and human resources from these
countries. For example, the IFC and ISC are based in Singapore, which enjoys several
modern facilities and installations. This facilitates the coordination of actions against
piracy, notably for the distribution of information among countries.
In the Horn of Africa, the possibility of making use of the facilities of another country in
the region is hampered by the fact that these countries are among the least developed
countries and lack the required human and material resources, which limits the
effectiveness of regional cooperation.
2- Lack of experience in regional cooperation
Anti-piracy regional operations in Asia have benefited from an existing regional

cooperation among Asian countries in other areas other than maritime safety. In 1967, ten
countries of Southeast Asia created a political, economic and cultural organisation aimed at
147
HDI has been implemented by UNDP as measure tool. Data are available at
http://hdr.undp.org/en/statistics.
78
strengthening cooperation, mutual assistance and security between member countries of the
ASEAN region.148
This organization recorded several achievements that were materialised by the creation of a
free trade area (ASEAN Free Trade Area), a regional parliament (ASEAN Inter-
parliamentary Organization) and several other cultural activities to promote the cultural
specificity of member countries.
The ASEAN provided a useful platform to develop the model in the fight against piracy
between countries affected by piracy in Southeast Asia, for many administrative sectors in
these countries had some experience in regional cooperation.
The countries in the Horn of Africa do not enjoy such an advanced regional integration.
Admittedly, there exist regional organizations operating in various sectors (IGAD, ECA,
and COMESA); however, there is no specific organization involving all the countries of the
region affected by Somali piracy activities and most of these regional organizations were
founded twenty years ago or less.
National administrations’ lack of significant experience in regional coordination makes it

difficult to transpose the Asian regional cooperation model into countries of the Gulf of
Aden.
3- The specificity of Somalia
It is obvious that the political and security situation of Somalia is the key to the
implementation of an effective regional cooperation. Asian countries were assisted
materially and technically by regional and extra-regional countries; this strengthened their
surveillance and control capacities along their coasts.
148
Aims and purposes of ASEAN available at: http://www.asean.org/64.htm.
79
In the case of Somalia, the difficulty faced was the powerlessness of the Transitional
Federal Government, which controls only a part of the capital, the risk of misappropriation
of the materials allocated for other purposes as well as the risk that the newly trained
members of the units reinforcing controls along the Somali coast could decide to join one
of the several Somali armed groups.
The Somali context, characterized by the absence of an efficient administration and lack of
resources to ensure the application of laws and regional provisions, is an obstacle to
regional integration which requires constant collaboration and a stable environment.
80
SECTION B: NATIONAL LAW
Paragraph 1: Review of national law
The last aspect of the legislative plan for the fight against piracy is the criminalization of
piracy acts in the domestic law. The IMO distinguishes between acts of piracy (which only
occur on high seas pursuant to customary international law) and armed robbery which
occurs in an area under the jurisdiction of a State.149
The incorporation of provisions of international treaties into domestic laws varies

depending on countries’ legal systems. In some cases, it is unnecessary to enact new laws
to implement the provisions of a treaty that are applicable in the national court upon their
entry into force. The monist legal system provides that in case of contradiction between the
treaty and the domestic law, the latter should be amended to ensure it complies with
international law.150
However, the dualist system provides that the international law and the domestic law are
separate entities and, prior to any application, the treaty must be incorporated into the
domestic law. In this dualist system, national judges are only bound by the provisions of
the treaty after their incorporation into the domestic law (act of transformation), even
though the obligations of the treaty are applicable to the country upon it’s signing and entry
into force. The two systems are applicable in the countries of the Gulf of Aden and the
Indian Ocean.
149
Definition available at http://www.maritimeterrorism.com/definitions.
150
Brînduça Marian, The dualist and monist theories. International law’s comprehension of these theories,
Vol.1-2, (2007).
81
I- Djibouti
Djibouti inherited the French legal system (monist) and, thus, uses a definition of piracy
similar to the definition contained in the code of Maritime Affairs of the old French Law151
of 18 January 1982152. Section 208 of the Code defines a pirate as any:
 Crew member of a Djiboutian ship, who has committed or

intends to commit an act of degradation or violence against a
Djibouti-registered ship or other ship sailing under the flag of a
State with which Djibouti is not at war;
 Crew member of a foreign ship with which Djibouti is not in
war, who commits or intends to commit the acts described
above against a ship Djibouti; and,
 Crew member of a Djiboutian ship, who tries to take control of
a ship either through fraudulent means or through violence on
the master.
The act of “seizing or forcefully taking or violently threatening to take control of an

aircraft, ship or other means of transport [...] is punishable by 20 years imprisonment.” 153
If the acts described in section 385 are accompanied “by torture or acts of barbarism, or
result in the death of a person”, the code provides for life imprisonment154.
The Djibouti Maritime Code is limited to its territorial waters and is not applicable outside
this zone unless the victim or perpetrator is a Djibouti national.
151
See supra note 6.
152
Law n°212/AN/82 of 18 janvier 1982 on Maritime Affairs Code.
153
Id., article 385.
154
Id. Article 386.
82
Djibouti signed on 5 January, 2009, a bilateral agreement with the European Union on the
status of the European anti-piracy forces (Atalanta) in the Djibouti territory. According to
this bilateral agreement, EU forces are exempt of paying customs, dues, visa purchases,
they benefit of immunity from Djiboutian jurisdiction and have the right of freedom
movement within, territory of Djibouti including territorial waters and airspace for the
purposes of operation. 155
II- Seychelles
Seychelles inherited the English legal system and equally has laws that criminalize piracy.
These laws are a direct calque of the English law.
The National Assembly adopted a law on 11 March 2010, to modify the penal code and
provide a number of provisions relating mainly to piracy156. The amendment incorporates
the key provisions of UNCLOS157 and provides that the security forces of Seychelles “shall
on the high seas, or may in other places outside the jurisdiction of any State, seize a pirate
ship […] arrest the persons and seize the property on board.”
The amendment gives the courts of Seychelles universal jurisdiction by providing that "the
courts of Seychelles shall have jurisdiction to try an offence of piracy whether the offence
is committed within the territory of Seychelles or outside the territory of Seychelles”158.
The code provides for the prosecution of persons suspected of committing or attempting to
commit acts prohibited by the Penal Code, and equally provides a sentence of up to 30
years of imprisonment and a fine amounting to 1 million Rupee ( USD $76,000).
155
Bilateral agreement between the European Union and the Republic of Djibouti on the status of the
European Union-led forces in the Republic of Djibouti in the framework of the EU military operation
Atalanta, EU-Djibouti, Jan.01, 2009 O.J. (L33) 41 (2009).
156
Penal Code Amendment Bill N°5 of 2010 available at http://ddata.over-
blog.com/xxxyyy/0/50/29/09/Docs-Textes/CodePenalSeychellesAmend-Sey100311.pdf.
157
Id. Titre 2 para 4.
158
Id Titre 2 para (a).
83
Seychelles and the European Union have an exchange of letters on the terms and conditions
of transfer of persons suspected of acts of piracy and armed robbery159. Seychelles signed a
similar transfer agreement with the United States and Denmark. 160
III- Yemen
The Yemen penal code criminalizes piracy acts and Yemeni courts have jurisdiction to
judge crimes perpetrated within and without its territorial waters.
Persons found guilty of acts of piracy in Yemen are sentenced to death, which is an
obstacle to the transfer of convicted prisoners to Yemen pursuant to international human
rights standards.
IV- Madagascar
The Maritime Code is the main legal document used by Malagasy judges to hear cases of
piracy acts.
The Malagasy Maritime Code includes anti-piracy provisions similar to those contained in
UNCLOS.161 The code also provides a definition of a pirate as follows:
 Any person traveling with no documents;

 Any person in possession of commissions granted by several
powers or States;
159
Exchange of Letters between the European Union and the Republic of Seychelles on the Conditions and
Modalities for the Transfer of Suspected Pirates and Armed Robbers from EUNAVFOR to the Republic of
Seychelles and for their Treatment after such Transfer, EU-Seychelles, Oct.26, 2009 O.J. L315 35 (2009).
160
The United States and Seychelles signed a Memorandum of Understanding about the transfer of suspected
pirates from US custody to the Seychelles to incarceration on 14 July 2010.On 25 March 2011, Denmark
signed an agreement with Seychelles to hand over pirates to be prosecuted.
161
Law n°99-028 of 3 February 2000 portant refonte du Code maritime, Chapter 5.
84
 Any person who commits acts of depredation or violence
against ships;
 Any person who commits acts of hostility under a false flag;
 Any person who commits acts of fraud or violence against a
captain in a bid to seize a Malagasy ship; and,
 Any person who hands over a Malagasy ship to pirates or to the
enemy. 162
The penalty incurred by pirates in most of these cases is hard labour for life (with the
exception of persons traveling without documents, where crew members are sentenced to
hard labour for a limited duration, unlike the officers who are sentenced for life.)
V- Somalia
The federal and regional parliament did not adopt any anti-piracy law. Puntland’s
legislation is not compatible with the definition of piracy of UNCLOS.163
However, the federal parliament is expected to adopt an anti-piracy legislation which
would allow prosecuting and imprisoning convicted pirates.164
VI- Tanzania
Tanzania is signatory of UNCLOS and penalizes acts of piracy in its penal code165. In May
2010, the Tanzanian parliament adopted an amendment to the anti-piracy law to make for
the prosecution of persons arrested in international waters. Tanzanian Courts will therefore
be competent to judge acts of piracy occurring outside the territorial waters. The
amendment reads as follows:
162
Id. Chapter13.
163
See supra note 78.
164
CGPCS, tenth plenary session, New York, 17 November 2011.
165
At http://www.thecitizen.co.tz/news/4-national-news/1861-uk-lauds-tanzania-for-enacting-anti-piracy-
law.html.
85
6.-(1) The jurisdiction of the Courts of Tanzania for the purposes
of this Code extends to-
(a) every place and within the territorial waters; any offence
committed by a citizen of Tanzania in any place outside
Tanzania; any offence committed by any person on an. aircraft
registered in Tanzania; and,
(d) offences committed by any person on the high seas.
(2) For the purposes of this section the term “high seas” means
the open seas of the world outside the jurisdiction of any State.166
Since the entry into force of this Act, 11 people have been tried and convicted.167
An important point in the amendment is that section 66 (3) provides that no prosecuting
would be started if the pirate ship is not registered in Tanzania, “unless there is special
arrangement between the arresting State or agency and Tanzania.” The following paragraph
is more specific and spells out that no prosecution will be started without the consent of
“the Director of Public Prosecutions.” 168
The European Union formally urged Tanzania to integrate the prosecution of persons
arrested to help fight against piracy.
VII- Kenya
Kenya inherited its legal system from Great Britain (Common Law). The country is
signatory to UNCLOS.
166
THE WRITTEN LAWS (MISCELLANEOUS AMENDMENTS) (NO.2) ACT, 2010
http://www.parliament.go.tz/Polis/PAMS/Docs/11-2010.pdf.
167
At http://www.thecitizen.co.tz/news/51-other-news/8446-eleven-pirates-serving-jail-terms-in-tanzania.
168
See supra note 166, section 66(3).
86
Article 69 of the Kenyan Penal Code, inherited from the colonial English law, prohibited
acts of piracy. Article 69 was replaced by the Merchant Shipping Act in June 2009, which
provides a broader and more modern definition of piracy. 169
Article 369 of Merchant Shipping Act provides a definition of piracy similar to the one
under Article 101 of UNCLOS. This law also provides a broader definition of piracy which
includes acts spelled out in the SUA Convention of 1988. Additionally, it also provides an
opportunity for courts to hear and judge crimes committed in Kenya or elsewhere:
(a) Whether the ship […] is in Kenya or elsewhere.

(b) Whether any such acts […] is committed in Kenya or
elsewhere
(c) Whatever the nationality of the person committing the act.170
Article 371 provides that:
Any person who-

(a) commits any act of piracy ;
(b) in territorial waters, commits any act of armed robbery
against ships shall be liable, upon conviction, to
imprisonment for life.
169
See supra note 91 p.429.
170
See the Merchant Shipping Act 2009, Article 370 (4).
87
Chapter Summary
Customary international law included as reflected in UNCLOS provides number of

provisions relating to the fight against piracy, but it appears they are not fit to new forms of
piracy, particularly piracy off the coast of Somalia.
To address these deficits, the Security Council of the United Nations has adopted a number
of resolutions to circumvent the limits imposed by UNCLOS but also tried to try and
provide solutions to piracy off the coast of Somalia.
Thus, Resolution 1816 and 1838 allow ships pre-authorized by the TFG to enter Somali
territorial waters and to use its airspace in order to fight against piracy in accordance with
the human rights and humanitarian law provisions.
In addition, the Council called for increased cooperation between States and international
organizations and for the establishment of cooperation mechanisms to coordinate strategies.
Thus, the international community has implemented a three level cooperation.
Internationally, the CGPCS was established in order to coordinate the actions of States,
international organizations and industry groups in the fight against piracy.
At the regional level, at the initiative of the IMO which has been inspired by Asian
cooperation, 18 countries from the Indian Ocean region have ratified the Djibouti Code of
Conduct aimed to strengthen the cooperation between the countries of the region on legal
aspect, exchange of information and technical assistance. We have seen that the
adaptability of the Asian model to the countries in the Indian Ocean region had several
difficulties due to the specificities of these countries. A similar problem of adaptability is
evident among States Parties to the Djibouti Code.
At the bilateral level, countries that have expressed a desire to prosecute and imprison those
88
suspected of acts of piracy benefit from the expertise of various specialized international
organizations (discussed above). Some States in the region such as Kenya and Seychelles
have received assistance from countries whose vessels are patrolling off the Gulf of Aden
with whom they have signed bilateral transfer agreements.
With respect to prosecutions the Security Council, taking into account the Secretary-
General reports, adopted several resolutions such as resolution 1976 which considers the
possibility of creating an extraterritorial court which could be based in Tanzania,
rehabilitate and building prisons in Somalia and strengthening the Coast Guard capacity.
However, numerous questions remain concerning the capacity of trials of this court, the
lack of bilateral transfer agreements between States whose vessels arrest suspected pirates
on the high seas and possibly Tanzania and Somalia that are incarcerating these pirates.
There also remain some challenges including the rejection of the TFG to the creation of an
extraterritorial court and the will of Somaliland to imprison only the citizens of Somaliland.
The international community agrees that the legal actions can only be effective by
combining them with the establishment of alternative activities ashore.
In an attempt to better understand the issues of piracy, we will try to look at the economic
and financial aspects of piracy are examined with respect to the costs but also the financial
system that underlies the phenomenon of Somali piracy. Development of Somalia through
which the international community can try to offer alternative activities other than piracy to
Somali people, will also be examined.
89
PART TWO:
OTHER ASPECTS OF PIRACY

AND ROOT CAUSES
90
Chapter 1: Economic and Financial Impact
Section A: Economic costs
Paragraph 1: Direct Economic Costs of Piracy
I- Ransom Costs
Ransoms have been on the increase, as well as the attacks against ships and sizes of the latter.
The average ransom paid for a ship and its crew in 2005 stood at USD 150 000 compared to
USD 5.4 million per ship in 2010.171
To some this trend will continue if the situation remains unchanged, and the amounts will
soar from USD 75 million to USD 238 million by 2010, and USD 400 million by 2015. 172
Ransoms are mostly paid in cash and in notes of small denomination ($100 or $50); some of
these ransoms are dropped off directly by air using helicopters or delivered directly by a
person designated for the purpose (some private security companies are employed for these
tasks).173
However, some countries (e.g. the United States and States members of the European Union)
prohibit the payment of ransoms that could be used to finance terrorism.174
The International Maritime Bureau described the first quarter of 2011 as the worst period in
terms of attacks against ships off the Somali coast, reaching a record level of more than 166
attacks in such a short time.175
171
Ocean Beyond Piracy, The Economic Cost of Maritime Piracy, One Earth Future, December 2010, p.9.
172
Gulfnews, “The Spoil of Piracy”, May 2011 available at http://gulfnews.com/business/features/the-spoils-of-
piracy-1.804626.
173
Modupe Ogunbayo, War on Piracy: The Enemies Within, NewsWatch Magazine, (2009).
174
Patriots Act of 2001, H.R 3162, 107th cong. §805 (2001).
175
ICC, Attacks off the Somali coast drive piracy to record high, reports IMB, at http://www.icc-
ccs.org/news/441-attacks-off-the-somali-coast-drive-piracy-to-record-high-reports-imb.
91
It is difficult to accurately estimate the amount of ransoms paid throughout 2011 due to the
inability to obtain information on the payments made in 2011, as well as the exact number of
successful attacks perpetrated in the Indian Ocean. However, based on the number of attacks
identified by IMB in July 2011 and the average payments contained in the study by
OceanBeyondPiracy, we have been able to come up with the following data has been
compiled as an estimated amount of ransoms paid throughout 2011.
Based on the similar approximations made in the OceanBeyondPiracy study, it is more

accurate to multiply the figures by two to get an approximate cost of ransoms paid in 2010
and 2011, roughly $1.012 billion.
Table 1: Cost of Ransoms
Average Ransom Total number of Cost of Ransoms
Successful
Hijackings
2010 $5,4 million 44 $238 million
2011 $4 million 67176 $268 million
Cost of Ransom 2010 and 2011 $506 million
II- Insurance Costs
Insurance costs are crucial in determining piracy costs. Actually, insurance companies
covering ships, crews and cargo against all incidents, including piracy, have significantly
adjusted their rates proportionally to the increase of piracy acts notably off the Gulf of Aden.
It is estimated that Ship-owners pay USD120 million to London-based insurance companies

to cover their ships against piracy risks. 177
These companies offer ship-owners four types of insurance policies to protect ships crossing
the Gulf of Aden: War Risk, Kidnap & Ransom Insurance (K&R), Cargo, Hull and
Machinery Marine Risk (H&M) and Protection and Indemnity (P&I).
176
38 hijackings in July 2011 according to the IMB live piracy map, 5 successful hijackings per month.
177
Edmonton journal, Piracy insurance costs shipowners $120M, 23 June 2011.
92
1- K&R insurance
The K&R policy covers the crew and ship against piracy risks by refunding the ransom paid
within a period consented by the parties.
The classic K&R policy covers the repayment of ransoms paid to free crew members and not
the ship. However, the singularity of the Somali piracy, notably the fact that Somali pirates
demand a single ransom covering both the ship and its crew, companies offering the K&R
policy were requested to equally include the ships in the ransom repayments.
The classic K&R policy comprises the repayment of:
 Ransoms for the release of crew members;

 Fees for a public relations consultant;
 Fees for interpretation;
 Fees for an independent negotiator;
 Medical and psychiatric fess; and,
 Travel costs for the insured.178
Not all ship-owners take out the K&R insurance, chiefly because there is an alleged overlap
between the war risk insurance and the K&R. But companies offering K&R insurance argue
that their companies work with a network of professional consultants used to negotiating with
pirates, whereas, these consultants are additional costs to other insurance companies.
Below is a list of major insurance companies offering K&R insurance and the professional
consultants working with them:
178
March, ‘Piracy – the insurance implications’, June 2011 available at
http://documents.marsh.com/documents/piracywhitepaper07-11-11.pdf.
93
Table 2: K&R insurers companies
Insurer Response Consultant

Aspen AKE Group
Catlin Security Exchange
Chartis Clayton Consultants
CV Starr Neil Young Associates
Griffin BGN Risk
Hiscox Control Risks
Travelers ASI Global
In general, a K&R insurance costs at most $5 million for a 14-knot ship, whereas; a ship at
least five meters long equipped with minimum security, including a water jet and citadel,
costs between $12,000 and US $18,000 for a trip along the Gulf of Aden. 179
2- War Risk
The War risk insurance is an additional fee comprising a transit in an area listed as a war risk
area. In March 2011, the area classified war risk area was extended by the Joint War
Committee of the London Insurance Market. This area was extended as follows:
 “On the north-west, by the Red Sea, south of Latitude 15° N

 On the west of the Gulf of Oman by Longitude 58° E
 On the east, Longitude 78° E
 And on the south, Latitude 12° S” 180
179
Id., P.9.
180
UK War Risks, Renewal of the Association’s cover for the policy year available at:
http://www.ukwarrisks.com.
94
Figure 3: War Risk Area
Source: UK War Risk
The UK Ship-owners also extended the zone in which piracy acts are most likely to occur. 181
Insurance companies offering War Risk insurance propose to reduce the amounts based on
the following:
 If a K&R insurance has been taken out;
 Characteristics of the ship (speed, ballast or laden);
 Use of PMCS; and,
 All strategies aimed at reducing risks.
The following table presents the major companies offering this insurance:
Table 3: War Risk insurer companies

Insurers182 Country of Origine
Lloyd’s syndicates (Liberty, O’Farrell, Watkins and UK
XL Syndicates)
GAREX France
Hellenic War Risks Association Greece
Den Norske Krigsforsikring for Skib Norway
181
UK ship-owners extending the existing ‘high risk’ piracy area into the Indian Ocean.
182
95
The Japanese War Pool Japan
the Arab War Risks Insurance Syndicate the Arab states in the Arabian Gulf
the Combined Group of War Risks Associations UK
3- Hull and Machinery Marine risk (H&M)
The H&M marine risk covers ships against damage during the trip. This damage may be
collision, shipwreck, or other damage resulting from a confrontation with pirates, etc.
Another specificity of the H&M marine risk is the repayment of ransoms to the limit
consented. We discovered in the case of the Somali piracy that pirates generally make no
distinction between the crew and the ship.
Several questions are raised in the insurance industry concerning, notably, the seeming
overlap between the H&M Marine Risk and the War Risk, particularly in relation to the
repayment of ransoms. The fees for an H&M Marine risk depend on several factors; however,
these fees can be estimated using the following formula:
Number of ships transiting through the Gulf of Aden yearly: 28,000
Number of ships hijacked in 2010: 44

Number of ships hijacked in 2011: 67
Average amount of ransoms for the year 2010: 5.4 million

Average amount of ransoms for the year 2011: 5.4 million
Average amount for negotiations, equipment transportation: 3 million
The average amount for a H&M Marine Risk would be:

 For 2010: 5.4 million + 3million × 44 ÷ 28 000 = USD $13 200
 For 2011: 5.4 million + 3million × 67 ÷ 28 000 = USD $20 100
96
4- Cargo insurance
Cargo insurance covers goods and other commodities transported by the ship. The resurgence
of piracy acts also led to an increase in cargo insurance fees.
5- Protection and Indemnity (P&I)
The Protection and Indemnity policy covers the ship owner against a third party.
Thus, the P&I covers:

 Loss of life;
 Personal Injury;
 Crew replacement; and,
 Effect of losing a crew.183
However, the P&I Club remarked that if a ship-owner is not legally bound to pay a ransom,
then the P&I insurance will not pay or repay the ransom. Insurance costs have been estimated
at USD $ 3, 213 billion for 70% of those who purchase insurance premiums or USD $459
million for 10% of ship-owners who purchase insurance premiums.184
III- The Cape of Good Hope
The Gulf of Aden has become one of the most dangerous areas for ships wishing to cross the
Suez Canal to reach Europe or elsewhere. The costs of ransoms, insurance policies and other
security measures have become so high that some ship-owners are considering transiting via
the Cape of Good Hope off the coast of South Africa.
This detour also entails additional costs primarily due to the duration of the journey. It takes
on average an additional 10 to 12 days to a ship wishing to bypass the Gulf of Aden.185
183
See supra note 178, p.10.
184
185
Jonathan Saul, “Somali pirate threat diverting grains shipments”, 14 January 2011, Reuters.
97
Fuel prices have significantly increased over the last ten years, mainly due to the global
geopolitical situation.186 Ship-owners should equally take these costs into account in
calculating their profitability before taking the decision to deviate via the Cape of Good
Hope.
Despite the piracy risks, a good number of ship-owners deem that the costs of rerouting via
the Cape of Good Hope are rather too high; they choose to implement security measures
(BMP, PMASC, etc.) and try their luck through the Gulf of Aden.
According to the study conducted by One Earth Future in 2010, the cost ship-owners will
have to incur if they decide to transit through the Cape of Good Hope stands at USD
$1,000,000 for ten days. 187 However, a recent study by the same institution advanced that the
number of vessels crossing the Cape of Good Hope has been overestimated and should be
reviewed and reduced. 188
IV- The cost of security equipments
Ship-owners implemented a series of security measures to reduce the risk in having their
ships hijacked. The Best Management Practice proposed in 2010 provides a list of measures
aimed at enhancing the security of ships and reducing risks of attacks.189
These measures are also among the recommendations of the Special Adviser of the Secretary-
General of the United Nations, Mr. Jack Lang, to ship-owners. The Special Adviser added
that insurance companies must play a key role in the implementation of these measures by
encouraging ship-owners to follow the BMP recommendations.190 A few of these measures
should be implemented by the ships prior to crossing the Gulf of Aden; these include notably
the installation of citadels, water jets or barbed wire around the ship.
186
Business Insider “Global Cost of Piracy is now $12 Billion Per Year: Oil Industry No.1 Target” 23
March 2011.
187
See supra note 171.
188
Geopolicity, “The Economics of Piracy”, May 2011.
189
Best Management Practices for Protection against Somalia Based Piracy available at:
http://www.mschoa.org/bmp3/Documents/BMP4%20low%20resolution%20(3).pdf.
190
98
Other measures are a series of actions that ships must comply with, such as sailing at top
speed in the area concerned, or calling on convoy escorts and enjoying the presence of
warships of some countries along the Gulf of Aden.
It has been estimated in 2010 that the cost of implementation of these measures by ship
owners at USD $363 million for 10% of the ships, or USD $2.5 billion for 70% of the ships
transiting through the Gulf of Aden annually.191
These estimates were made by taking five of the security measures mostly used by ship
owners:
 Licensed Security Guards;
 Sonic Deterrent Equipment;
 Barbed/Razor Wire;
 Sandbags; and,
 Electric Fences. 192
V- Other costs
The equivalent costs for the deployment of warships off the Gulf of Aden to deter pirates
from attacking, escort of merchant ships and escort of humanitarian ships were estimated at
$2 billion spent each year.
Moreover, the international community through UNDOC and the CGPCS Trust Fund, has
undertaken to assist willing States in taking legal actions against people arrested for piracy
acts.
This materialized in the signing of MOUs between countries whose ships sail off the Gulf of
Aden and countries of the region (see above). The costs incurred for legal actions taken
against persons accused of piracy acts were estimated in 2010 at $31 289 199. 193
191
See supra note 171.
192
193
Id., P.19.
99
The costs incurred in running the various organizations set up to fight against this
phenomenon have been estimated at $24.5 million (this includes the ReCAAP that deals with
piracy in Asia; the cost of the Somali piracy stands at $22.5 million, if we consider that the $5
million from UNDOC have been totally allocated to countries of the Indian Ocean).
100
Paragraph 2: Indirect Economic Costs of Piracy
I- Regional impact
The lack of studies and accurate and comprehensive data on the actual impact of piracy on the
economies of the countries of the region makes it difficult to come up with reliable and
comprehensive estimates on the impact of piracy on the various sectors of the countries of the
Gulf of Aden and the Indian Ocean. However, some countries have published national
estimates of this impact or provided some background information through their official
representatives.
1- Tanzania
The Livestock Development and Fisheries Deputy Minister, Benedict Ole-Nangoro, specified
the impact of piracy in the Ocean Indian on the revenue obtained from the license fees of
fishing vessels, which was estimated at USD $2,074,400 for 71 fishing vessels instead of
USD $4,000;000 for 120-150 fishing vessels registered in 2010/2011.194
It should be noted that the licence fee is different depending on whether it is a foreign fishing
vessel (USD 12 000 for three months and USD $2,000 per year) or a local vessel (USD
$4,500 for three month and USD 300 per year).195
2- Kenya
It is difficult to give the exact figures of the impact on the fishery sector in Kenya. However,
it is clear that piracy is at the root of the increase in the prices of seafood, which has greatly
impacted the lifestyle of the people living along the coast and for whom seafood are the main
source of feeding (eg Mombasa).
Piracy has also had an unexpected impact on the local fishing sector. The upsurge of piracy
acts has reduced large-scale fishing in the area; whereas some people assert that the local
194
Natalia Real, “Piracy concerns obstruct fishing activities”, available at http://www.fis-
net.com/fis/worldnews/worldnews.asp?monthyear=6-2011&day=17&id=43681&l=e&country=&special=&ndb=1&df=0
195
Tanzania Govt: Piracy impacting on fishing vessel registration, By IN2EASTAFRICA, June 16th 2011.
101
fishing sector is in good shape and that local fishermen are making more abundant catches
since the decrease in the number of large-capacity fishing vessels. 196
However, it would be more cautious to moderate these statements, mainly because the period
of resurgence of piracy acts, may be estimated from 2007 to 2010, seems to me too short to
bring about a huge abundance of fish resources.
3- Seychelles
The Seychelles is one of the countries greatly hit by the piracy acts perpetrated in the Indian
Ocean, for most of its economy depends on fishing products (11.2% of GDP) and tourism
(25.5 % of GDP), two sectors seriously affected by the Somali piracy, and 95% of its trade is
by sea. The impact of piracy on the economy of Seychelles is as follows:
 “Revenue from Fishing is down by 30%;

 Revenue from Tourism is down by 15%;
 Revenue from Shipping has decreased by 30%; and,
 Fuel and bunkering receipts are down by 35%”.197
The Minister for the Environment and Natural Resources has projected that the impact of
piracy activities on fishing and the other sectors of Seychelles’s economy will be to the tune
of USD 10, 5 billion per year. 198
4- Yemen
Like the other countries of the region, Yemen is affected by the upsurge of piracy acts and
expansion of the geographical zones of operation of Somali pirates who operate close to the
Yemeni coast. Yemeni officials have estimated that piracy acts have cost USD 150 million to
the Yemeni economy, mainly due to lack of revenues from the fishing sector. 199
196
Jason Straziuso, Kenya fishermen see upside to pirates: more fish, 11 January 2010.
197
The Secretariat of the African, Caribbean and Pacific Group of States Documents, Piracy the Seychelles.
198
See supra note 171.
199
Piracy costs Yemen’s fishery sector USD 150 million, Yemen Times,15 November 2010.
102
5- Djibouti
Like the other countries of the region, it is difficult to estimate the actual direct impact of
piracy on the economy of Djibouti. However, the country's economy is directly linked to the
activities of its port, one of the largest in the region, which is directly affected by the piracy
acts. The recent expansion of the War Risk Area to Djibouti will affect the number of ships
stopping at the port of Djibouti and, consequently, reduce State revenues.200
6- Egypt
It is clear that the global economic crisis slowed down global maritime traffic and,
consequently, reduced the revenues Egypt obtained from the Suez Canal. The fees for
crossing the Suez Canal are between USD 200,000 and USD 600,000 per vessel.201 An
average of 28 000 ships sail through the Suez Canal each year, which for Egypt corresponds
to revenues between USD 7 billion and USD 16, 8 billion per year. It is also estimated that
3,000 ships decide to go round the Gulf of Aden and, thus, the Suez Canal. These 3,000 ships
represent for Egypt a shortfall between USD 600 million and USD 1.8 billion per year.
It is difficult to obtain accurate data due to the vagueness of the exact number of ships
transiting via Cape of Good Hope and the exact percentage of reduction of global marine
traffic caused by the global economic crisis.
II- Global Economic Impact
The cost of piracy in 2010 was estimated at USD 4.9 billion and USD 8.3 billion. 202 This
estimate, which is modifiable due to the gradual increase of piracy acts and amounts of
ransoms, may have been obtained by an addition of the following:
 Ransom costs;
 Insurance costs;
 Costs of rerouting via the Cape of Good Hope;
200
See supra note 180.
201
Marad, “Economic Impact of Piracy in the Gulf of Aden on Global Trade”.
202
See supra note 188.
103
 Costs of equipping the ship with security devices;
 Expenses related to the presence of warships in the region;
 Operating costs of organizations in charge of fighting against the phenomenon;
and,
 Costs on regional economies.
104
Section B: Financial Aspects
Paragraph 1: Financial System in Somalia
The international community’s paramount concern is to know how the ransoms given to
pirates are used and how they are reinvested by the latter.
The fight against piracy off the Somali coast inevitably entails controlling the use of the
money paid for ransoms. However, tracking down these ransoms is seemingly extremely
delicate and difficult due to the fact that the money transits via a rather complex route out of
Somalia and the chaos in the country stops any on-site intervention.
I- Hawala System
1- Origin of the System
The Hawala system comes from Asia and the Middle-East; it is a traditional system of
payment used by merchants several centuries ago. Hawala is based on the trust in each
member of the system. This financial tool, traditionally used by merchants to pay off their
suppliers, has many obvious security advantages, for it prevents the merchants from
transporting this money personally thus curtailing the risk of being robbed.
The Hawala system, although more ancient than the modern financial systems, is still often
employed in Asia and the Middle-East, and has been developed in Africa and in countries of
the North.203
2- System Operation
The system’s operation is very simple and is based on the speed of communication between
two agents. The person wishing to send a certain amount of money to a certain destination
203
Mohammed E.Q, Samuel M.M, John F.W, “Informal Funds Transfer Systems: An Analysis of the
Informal Hawala System” The International Monetary Fund and the World Bank, 24 March 2003.
105
goes to the office of an agent using this system; the latter (for a fee) contacts the agent closest
to the destination of the beneficiary, who receives the money sent by the agent.
This system relies mainly on trust and commitment. Thus, the agent who receives the money
first knows that the agent on the spot has sufficient funds and that the latter will also provide
the amount requested to the beneficiary. In return, the partner is convinced that his partner
who sent the payment request will also pay back the amount advanced. The only condition is
that the agents must periodically match their statements and work out the accounts among the
agents, notably to pay back the difference in any form.
3- System Advantages
Hawala helps not only to apply exchange rates different from the current rate, but also to be
exempt from taxes and regulations. Today, this system has many advantages making it more
preferable than a traditional bank:
 Exchange rates and sending charges are cheaper;

 The transaction is fast, on average the same day or the next day;
 Complex operations can be made easily;
 Lack of administrative procedures (few documents required);
 The difficulty to know the agents who are members of the system (the advantage
of not having to issue bills); and,
 Non-requirement for officers to pass any information to the authorities (eg
taxation department).
This system is widely used not only by the Diaspora living in northern countries to send
money to their families, but also by businessmen in Asia, the Middle East and Africa. This
system is specifically interesting to those who, out of fear of instability, want to transfer
money abroad without having to justify their transactions before their local authorities. It
should be noted that this system is mostly practiced in countries that have a high number of
their people coming from Asia and the Middle East, but also countries in the Gulf, where
there are many business activities.
106
In 2003, it was estimated that the global amount of the Hawala system transactions had
reached USD $100,000 million204. This amount does not fully reflect the reality, for a number
of countries do not have the resources to identify the amounts transferred.
4- Legality of the system
The Hawala system in itself is not illegal. It is an important financial tool for communities
wishing to transfer funds rapidly, and businessmen wanting to avoid traditional administrative
bottlenecks, notably in developing countries.
It is essential to distinguish between Black Hawala and White Hawala. White Hawala is the
traditional transfer of funds used in most cases; it is a key financial instrument in the life of
many communities. Conversely, Black Hawala is the perversion of this system for illegal
purposes, such as money laundering and the financing of illegal activities such as terrorism
and piracy.
In some Asian countries, the system is not illegal; however, applying an exchange rate
different from the current official rate is illegal. Moreover, these countries require a clear
administrative follow-up procedure to better identify the transactions.
It is prohibited in some countries (United-States), but tolerated in other countries (Great

Britain). Paradoxically, the hard regulations of a country increase the activities of this system
which offers an alternative to people.
5- Hawala and illegal activities
This system is particularly known to and followed by Interpol investigators, who see it as a
new system of money laundering or financing of terrorist activities. Actually, this system was
singled out after the September 11 attacks as one of the means through which the terrorists
obtained large sums of money necessary to carry out the attacks.205
204
Roger Ballard, “A background report on the operation of informal value transfer systems (Hawala)”,
6 April 2003
205
BBC news “Hawala system under scrutiny”, 8 November 2001.
107
The inability to track the funds, identify the members of the network, state the amounts
received or even intercept these payments complicates the fight against transnational crimes
(which greatly benefit from this system). Interpol has identified three phases in the money
laundering process in which the Hawala system can be integrated:206
Phase 1: Placement
Placement is the first step in the money laundering process. This is a cash deposit made in a
bank, but at an amount lower than the amount from which the bank is required to carry out an
investigation. These deposits are "disguised" and justified by the depositors as legal revenues
made from restaurants or other legal activities. Consequently, the process consists in
falsifying legal business accounts, often adjusted upwards to include the amounts received
from other illegal activities.
In the Hawala system, most of the agents have legal activities, which they use as a cover. In
most cases, they prefer to have money in cash rather than draw the attention of bank
authorities.
Phase 2: Layering
This second step consists of a series of complex banking operations between different bank
accounts, different banks or countries. These operations are generally justified by the
purchase or repurchase of goods or commodities in one or more countries with the intent to
render extremely tasking the tracking of these payments. The complexity of these operations
often relates not only to the amounts committed but also the level of organization of
criminals. The difficulty faced by the criminals is that if a transaction were to draw the
attention of the bank authorities, the latter would be able to follow the transaction, thanks to
the "paper trail", right to the initial depositor and, thus, uncover all the criminals.
However, in the case of the Hawala system, given that no document is issued throughout the
transfer process and that the system involves an international money transfer network
206
INTERPOL, “The hawala alternative remittance system and its role in money laundering”, January
2000.
108
justified by the mixture of legal and illegal activities; it is specifically difficult to track down
these transactions.
Step 3: Integration
This is the final step in the process; it consists in depositing the funds in bank accounts. These
funds are thus considered "clean" and can be used to make purchases or used otherwise in any
country. For example, the Hawala system can be used to send money withdrawn from an
account to people, who may reinvest it in illegal activities or through legal activities already
existing in other illegal activities.
II- The Hawala system and piracy
The Hawala system is used by people involved in piracy activities to transfer funds obtained
from ransoms out of Somalia and also to reinvest these funds in various legal or illegal
activities.207
Through the system described above, ransoms paid transit via countries in which the Hawala
system is widely used. These funds are thereon distributed to pirate groups that may then
reinvest in other activities.208 It is stated that the percentage of ransoms transferred out of
Somalia could be roughly 40% to 60%; that is, if we refer to the amount of ransoms paid in
2010 (USD 238 million), then USD 95 million have been transferred out of the country. 209
1- Transfer of funds
Since the fall of Siad Barre’s Government, several million Somalis have fled Somalia and
sought refuge in countries of the region and beyond. Somalis are present in almost every
continent and the vast majorities are integrated into their host countries.
207
BBC “Chasing the Somali piracy money trail” 24 May 2009.
208
Jay Bahadur “Deadly Waters, Inside The Hidden World Of Somalia's Pirates” Profile Books, 02 June
2011, ISBN: 9781846683633.
209
Financial Action Task Force , Organised Maritime Piracy and Related Kidnapping for Ransom, July
2011.
109
A good number of Somalis live in neighboring Kenya, and in the Middle East (Yemen, UAE,
Saudi Arabia, etc), Europe (Britain, Netherlands, the Scandinavian countries, etc) Asia-
Pacific (Australia) and North America (Canada and United States).
Because the Hawala system is community-based, its agents use this very important network
of Somali expatriates to transfer funds from one country to another. As a result, the Somali
Hawala is one of the communities that make most use of this financial tool with Pakistanis,
Indians, Afghans and Bangladeshis.
The Hawala system is particularly extensive in countries where the Somali community owns
legal businesses (Nairobi, Dubai, London, etc). These places are sometimes used to transit
funds. 210 It should be noted that this system is in most cases legal and used for commercial
purposes and to send money to families left behind.
However, the system is also perverted by persons involved in piracy activities, who take
advantage of the "underground" nature of this system to launder the funds obtained from
ransoms.
2- Reinvestment of ransoms
Once transferred out of Somalia and "legalized" through the mechanism described above, the
ransom can be reinvested. Persons involved in piracy activities invest in different sectors out
of Somalia:
 Real estate: this is the main investment sector; persons involved

in piracy activities buy houses, buildings or other estates. In
some countries of the region, the extensive acquisition of
properties significantly increased market prices and made access
to property extremely expensive for the local population211.
Regarding the specific case of Kenya, it is estimated that piracy
210
See supra note 205.
211
Available at http://www.voanews.com/english/news/africa/Kenyan-Government-Investigates-Possible-Pirate-
Ties-to-Real-Estate-Boom-94607164.html.
110
has no real impact on the rise of estate prices given the pirates’
other functional expenses. 212
 Legal activities (import-export businesses, telephone shops, etc):
the financial groups created by piracy activities also invest in
other activities and establish legal businesses in many countries,
including countries of the north.
Ransoms are also used to reinvest in Somalia including in the following:
 Weapons;
 Navigational technologies (GPS and VHS radio);
 Fast fiberglass boats;
 Satellite cell phones;
 Manpower (translators and people who can use automatic tracking devices); and,
 Khat and cars.
3- Fight against money laundering
The fight against the trafficking of finances obtained from piracy acts is an essential
component in the international anti-piracy strategy.
The international community has recognized that the fight against illicit financing is as
important as the fight at high seas, and many countries and organizations have endeavored to
appeal to the international community to take effective measures to prevent the laundering of
money obtained from ransoms.213
This explains why the Security Council adopted the Resolution 1950 in November 2010,
urging States "to further investigate international criminal networks involved in piracy off the
coast of Somalia, including those responsible for illicit financing and facilitation."214
212
See supra note 208.
213
CGPCS, First plenary session, New York, January 14, 2009.
214
SC. Res. 1950, para.16, (23 November 2010), UN Doc. S/RES/1950.
111
Similarly, the Working Group Number 2 chaired by the Denmark within the CGPCS reflected
the financial aspect of piracy as a key component in the fight against the phenomenon of
piracy off the Somali coast. As the anti-piracy international strategies coordinating body,
CGPCS during its workshop on Judicial Issues reflected on illegal financial flows in close
collaboration with other organizations responsible for the financial aspects of piracy, such as
UNDOC, UNTOC and EUROPOL.215 During the meeting of CGPCS on 10 June, 2010, the
working group decided to convene a meeting of experts as part of the Financial Action Task
Force to promote and develop national and international policies to fight against money
laundering.216
Resolution 1950 calls on States to cooperate with Interpol (see the role of the organization
above) in investigations on these practices.
As a police organization, Interpol has technical resources and a network that make it
indispensable in assisting States in investigations. Moreover, the organization agreed to an
international conference on this issue on 19 to 20 January 2010, sponsored by the United
States and intended to provide States with a platform for information exchange and alert, and
tools to help identify networks and money flows. 217 In this regard, Interpol created a global
database to disseminate information and share proofs to help strengthen anti-piracy measures
in cooperation with Europol (Office Intergovernmental bureau bringing together the police
forces of the European Union).
UNDOC equally held a meeting in Nairobi on 17 and 19 May 2011 to address the issue of
piracy and its links with illegal funding.218 The Global Programme Against Money
Laundering (GPML), a program under the supervision of the UNDOC, was founded in 1997.
In 2008, it included another component into the programme: Countering Financing Terrorism
(CFT). Its role is to "Assist States in building effective Legal, Regulatory and law
enforcement capacities in compliance with anti-money laundering / countering the financing
of terrorism worldwide-Accepted standards."219
215
CGPCS, Ninth Session, Seychelles, 14 July 2011.
216
CGPCS, Sixth Session, New York, 10 June 2010.
217
Interpol Media Release, http://www.interpol.int/Public/ICPO/PressReleases/PR2010/News20100119.asp.
218
UNODC “Awash with money - organized crime and its financial links to Somali piracy”, 25 May 2011.
219
GPML, Final Report, Project number GLOU40, February 2011 available at
http://www.unodc.org/documents/commissions/WG-
GOVandFiN/Final_Report_on_the_Evaluation_of_GPML_9Feb2011.pdf.
112
During the meeting in Seoul on 29 June, 2011, the ad hoc committee requested the GPML to
produce a report on illicit financial flows linked to piracy off the coast of Somalia, in
collaboration with the World Bank.
113
Paragraph 2: The Emergence of New Businesses
Over the past six years, piracy acts off the coast of Somalia have soared considerably and had
great impact on global and regional economies.
The escalation of these acts and steady pace of hostage-taking operations suggest that a solid
organization has been put in place both in Somalia and elsewhere.
Hostage-taking, the logistics required for their captivity (food and others), the negotiation and
payment of the ransom are all aspects that have generated new "jobs" and new "markets".
I- Logistics on the Ground
The rate of piracy acts off the Somali coast, the ever increasing number of hostages and the
huge sums paid to pirates incite the people living around these pirates to organize themselves
and also enjoy the income generated from these activities. Piracy has an impact on the social
structure and economic reality of the surrounding villages.
1- Social Impact
The massive inflow of money and ever increasing number of young people engaged in piracy
activities have altered the social landscape of the areas surrounding the coasts where pirates
operate.
Their lifestyles, often characterized by heavy drinking, drug abuse and use of prostitutes,
break all the taboos of the Somali society that is extremely codified and marked by strict
respect of Muslim precepts. 220
The Somali people, rather inflexible when it comes to tradition and principles, are becoming
accustomed to mingling with people whose lifestyles are in contradiction with their own, in
addition to the non-negligible force of attraction of these newly rich people to young and
underprivileged women. This issue is particularly raised when we suggest the possible
existence of a partnership between the pirates and Muslim extremist groups. The latter
220
Rudoplh Atallah “Pirate Financing: Understanding and Combating a Complex System”
114
advocate a life guided by the respect of a rigid interpretation of Islam, which is the exact
opposite of the life lived by the young pirates. However, it is clear that the amounts of money
involved are large enough to give rise to selective agreements.
2- Economic Impact
Piracy activities have real economic benefits on the villages surrounding the area controlled
by the pirates, who have received a large inflow of money.
The villages through the elders receive a share (5%) of the ransoms for granting pirates the
221
right to dock near their coasts. These populations are directly or indirectly involved in
piracy activities by:
 Selling food to pirates and hostages;

 Sometimes watching over hostages;
 Setting stalls and opening shops around the area; and,
 Leasing the areas on which pirates dock.
II- Private Military Army and Security Companies (PMASC)
“Legally established international firms offering services that

involve the potential to exercise force in a systematic way and by
military or paramilitary means, as well as the enhancement, the
transfer, the facilitation, the deterrence, or the defusing of this
potential, or the knowledge required to implement it, to
clients.”222
Although the number of PMASC has not increased as such, their area of expertise has, on the
other hand completely changed and led to a substantial diversification of the services they
offer to their clients.
221
Id.,
222
Ortiz, Carlos, Private Armed Forces and Global Security: A Guide to the Issues (Santa Barbara, Denver,
Oxford: Praeger, March 2010), page 48.
115
Several PMASC were for many years specialized in providing services to private transport
companies to ensure the safety of their crew members and goods. The escalation of piracy
acts off the Gulf of Aden opened a new market for these companies, where they can sell out
their customized services to several private transport companies.
1- Who are they?
There are several private security companies; most of them are specialized in security
services such as providing armed men or bodyguards for risky areas.
A large majority of these PMASC operate in very dangerous areas. The increase of piracy
acts encouraged a good number of security companies to venture into this new market by
offering services to marine companies whose vessels crossed the Gulf of Aden. Not all
PMASC are made up of professionals; you also find people with no specific qualifications
attracted by the huge sums that are paid by the shipping companies to the PMASC. These
people offer their services at amounts much lower than those charged by the PMASC
recognized.
To help deal with this situation, the PMASC implemented a code of ethics: the International
Association of Maritime Security Professionals (IAMSP). This code of conduct ensures that
the PMASC that are signatories are properly trained, understand the procedures and
regulations, and are ethically beyond reproach. The IAMSP has 400 members.223
In April 2001, the International Peace Operations Association (IPOA) was created to support
the young industry of private security companies. Based in Washington, the IPOA imposes a
number of principles to its members such as compliance with ethical standards, transparency
and dialogue with the authorities and compliance with international legal instruments. The
IPOA has 58 active members since the departure of the controversial Blackwater Worldwide
following the scandals in Iraq.
223
Available at http://iamsponline.org/
116
2- Services offered
A) Surveys and Recommendations
The PMASC propose an inspection of the ports, ships and other marine facilities in order to
come up with recommendations to correct deficiencies, strengthen systems and improve the
overall security of the ships and crew members. These services rely on international
regulations in this domain such as the IMO Best Management Practice (BMP), The
International Code of Conduct for Private Security Service Providers, UNCLOS or the IMO.
B) Counter-piracy services
Most of the PMASCs specialised in counter-piracy activities offer services designed for ship
companies in order to reduce risks of attacks and possibilities to be high-jacked. These
include having armed groups on board. The group is “scalable, dependent on vessel size,
type, freeboard and speed”224. The PMASC also provide for the management of incidents
such as conducting negotiations in the case of kidnapping, transit monitoring and operation
management.
C) Training
Training is one of the common components of the PMASC. They offer custom-designed
training programmes to their clients in compliance with international regulations and the code
of conduct. When it comes to piracy, they use the Best Management Practices and IMO’s
regulation as basis for their training programmes.
D) Cash couriers
An increasing number of PMASC recommend ship owners to deliver ransoms to pirates

directly on site. Ransoms may be deposited either by air or transported by land.
224
Aegis Maritime Security available at http://www.aegisworld.com/index.php/maritime-services-2
117
E) Fees
It is difficult to determine exactly the amount that is paid to the PMASC because most
maritime transport companies tend to be secretive on the use of such services, but also
because the amounts depend on many variables such as the size of the ship.
However, it is reasonable to estimate that the amount for a private security force on board
varies between USD $4,000 and USD $9,000 per day, that is, about USD $55,000 to USD
$100,000 to cross the Gulf of Aden.225
3- The sensitive nature of the PMASC
The use of the PMASC remains a sensitive issue due to the lack of transparency and the
limited control exercised by public authorities on their activities. Most of them are based in
difficult countries where there is little or no control and monitoring of their activities.
It is estimated that the defence of public interests and use of force should be the prerogative
of public authorities and not entrusted to private entities.
The presence of armed men in merchant vessels amplifies the threat of an upsurge of violence
and risk of an even heavier exchange of gunfire between pirates and the armed groups, and
considerable risks for the safety of crew members, the merchant ship and the goods.
Moreover, there are persistent doubts about the training of the armed groups who board the
ships, for if it is insufficient it may lead to a disproportionate use of violence and countless
consequences for the safety of the people around. Additionally, the many and repeated
scandals of illegal and violent actions undertaken by members of security groups in war-torn
areas like Iraq have largely entertained the sensitive nature of this issue. 226
The very rigid laws regarding the presence of weapons in some ports and boats force some
PMASC to sign agreements with local agencies whereby the latter provide them with
weapons, which they throw into sea prior to their arrival at the ports of destination. These
practices are denounced as enhancing arms trafficking where the PMASC operate. 227
225
Sandra Jontz, “Hired guns secure ships, stir controversy”, 15 February 2010.
226
Members of Blackwater opened fire on people in Nisour square in Baghdad. It turns out that they opened fire
without apparent justification, killing 17 civilians and wounded 24; BBC news, “Blackwater working again in
Iraq”, 21 September 2007.
227
Bradley Hope “Firearms an odd casualty of piracy”, 6 February 2011.
118
Finally, criticisms have been raised as to their cooperation with local Governments, who
provide them with agents and equipment, thus diverting these resources from their initial
public uses. 228
4- Standpoint of the international community on the issue
At the end of its 89th Session held from 11 to 20 May 2011, the Maritime Safety Committee
of the IMO published two documents intended to regulate "the employment of privately
contracted armed security personnel on board transiting the high-risk piracy area off the coast
of Somalia and in the Gulf of Aden and the wider Indian Ocean."229
The first document (MSC.1/Circ.1406) contains recommendations to Flag States on the use of
armed groups on board. It recommends Flag States to implement a legal framework that
spells out the conditions of use of the PMASC and urges them to consider the possibility of
an escalation of violence with the use of the PMASC.
The second document (MSC.1/Circ.1405) is intended for ship-owners and underscores the
enforcement of the rules and regulations implemented by the Flag States, which ship-owners
must comply with when employing the PMASC or PCASP (privately contracted armed
security personnel). The document stresses the complementary role of the PCASP, which
must under no circumstance replace the BMP and can be used only after an assessment of
risks with the involvement of the ship master. The document includes:
“sections on risk assessment, selection criteria, insurance cover,

command and control, management and use of weapons and
ammunition at all time when on board, and rules for the use of
force as agreed between the ship-owner, the private maritime
security company and the master.”230
In September 2011, the Committee held an intersessional meeting to present a guide for the
States, ports and coastal States. This document (MSC.1/Circ.1408) calls upon States, ports
and coastal states to facilitate the passage of private security companies’ ships escorting
228
Carolin Liss “Private Military and Security Companies in the Fight against Maritime Piracy” .
229
IMO media center, press briefing: 27, 20 May 2011 available at http://www.imo.org/mediacentre/pressbriefings/pages/27-
msc-89-piracy.aspx
230
Id.,
119
merchant vessels. This circular comes after the denial of Egypt, in September 2011, to let a
ship that was carrying weapons on board, cross through the Suez Canal.
The issue of the PMASC is still sensitive, and many countries do not authorise armed men in
ships flying their flag. However, some countries authorise the presence of armed men in
ships; these are Great Britain and more recently Italy231. Alternatively, some countries have a
rather vague legislation (e.g. France where there is not legislation about armed group). In the
United States, the issue is being debated and the U.S. Congress is yet to rule on the
authorisation of armed men on board ships, which is prohibited to date. United Kingdom
authorizes armed groups on board in British ships.232
III- Private Negotiators
It seems necessary to look into the negotiation mechanism. Piracy, like any other activity, is
perceived by pirates as a business in which instead of negotiating goods, they negotiate
human lives. It is important to consider this aspect to better understand how pirates act,
notably, vis-à-vis the hostages.
The primary objective of pirates is to be paid a satisfactory amount for the release of the ship
and crew members. Consequently, it is not in their interest to kill hostages or damage the
goods contained in the ship. Surprisingly, pirates honour their commitments. Once the
amount of the ransom is stated and paid to the pirates, the latter release the ship and crew
members. Honouring a commitment made is part of a business principle; they have no reason
not to honour their commitments, for this could put at risk the entire system.
Moreover, by killing hostages not only do they lose their credibility vis-à-vis the ship-owners,
but their action may also provoke the warships patrolling off the Somali coast to take radical
actions such as using force, whereas, they have so far rejected this option in favor of the
payment of a ransom. Admittedly, the deplorable conditions of captivity and psychological
consequences for those held hostage are considerable; however, the aim here is to understand
the viewpoint of the pirates to whom only the ransom counts.
231
Italie authorizes armed group since 13 July 2011 in high risk area
232
BBC news “Somali piracy: Armed guards to protect UK ships” 30 October 2011
120
Once the action groups have captured a boat, they endeavour to dock the boat on the Somali
coast where a well laid out scheme is provided to them. Once the pirates arrive at the coast,
they start negotiations with the ship-owner, which may sometimes take several months.
Negotiators are the people who negotiate with ship-owners on the amount of ransom
233
demanded by pirates for the release of the ship and its crew members. These negotiators
are selected primarily for their language skills and knowledge of negotiations. Actually, it is
sometimes surprising to realize that some negotiators speak English fluently; there has been at
least one case where an English teacher took part in the negotiations. 234
These negotiators can either be present in Somalia or come from other parts of Somalia, or be
found out of Somalia and negotiate with the ship-owners from abroad. These negotiators
receive a percentage of the amounts negotiated, which may reach 5% of the ransom. Given
the increase in ransoms, there is equally an increase in the number of negotiators who offer
their language skills to pirates.
These negotiators play a key role in the resolution of talks. In some cases, these negotiators
proposed to ship-owners to convince pirates to reduce the amount of the ransom, in return a
certain amount was paid into their private bank accounts. 235
IV- The New Safety Equipments
The increasing number of acts of piracy and the numerous consequences that generate for
crew member health are prompting more and more ship owners to use a variety of security
measures to reduce the threat. In January 2010, the British company Proform has developed a
non-lethal laser weapons that disorient assailants and could cause additional symptom such as
vomiting or dizziness.236 This laser was originally dedicated for commercial use and was
intended to exclude persons unwanted near to ships as it could be the case for paparazzi. This
same type of equipment is also used by the security department of the United States.
233
Stockbruegger, “The Mogadishu Roadmap: towards a joint maritime security policy for Somalia?” 15
October 2011, p.224
234
BBC news, “Inside story of Somali pirate attack” 4 June 2009
235
See supra note 207.
236
IMO, Maritime Knowledge Centre, Volume XXII . No. 1, January 2010, p.9
121
However, its functions are also useful to prevent pirate attacks off the Gulf of Aden. The
price of the unit is estimated at USD $ 85,000 and would have a reach of 4 km.
In January 2011, the British company BAE Systems announced it has developed a non-lethal
laser that can dazzle and blind the attacker temporarily from a distance of 1.5 km. This
weapon was developed, according to their inventors, to confuse pirates and encourage them to
retreat once the element of surprise did not take place.237
This weapon passed through a series of security checks in order to not have the consequence
for the attackers in the permanent loss of sight. Such equipment is strictly prohibited by the
United Nations Convention on Certain Conventional Weapons in it’s Protocol IV.
On 30 August 2011, the same British company presented its new safety equipment for ships
and intended to reduce risks from piracy.238 This is a laser cannon, the company has produced
in collaboration with Boeing, in partnership with the U.S Navy designs specifically to prevent
piracy.
Figure 4: MK 38 MOD 2 Tactical Laser System

Source: BAE System
The MK 38 MOD 2 Tactical Laser System is a highly sophisticated laser gun in charge if
identifying pre-determined targets (small vessel) and by using a laser beam of 10 kilowatts
burn the engine of the attackers.
237
BAE System News Release, “BAE Systems Develops Non-Lethal Laser to Defend Against Pirate Attacks
on Commercial Shipping”, 10 January 2011.
238
BAE system News Release, “BAE Systems Completes Successful Test of Mk 38 Tactical Laser System
Concept”, 30 August 2011.
122
Tested in the United States, this device is the most advanced non-lethal safety equipment. It is
intended to equip the United States Coast Guards. The safety equipments market has been
specially developed over the past ten years, it was particularly marked by innovation and
improving the physical characteristics of the safety equipments. These markets represent
several hundred million US dollars and are a growing sector mainly because of the resurgence
of piracy and the need for the ship owner to implement efficient security measures in order to
protect the ships and their crew members.
123
Chapter 2: Root causes
Section A: Onshore development
Piracy acts are only one of the consequences of the chaotic situation prevailing in Somalia,
characterised by the absence of a Government capable of meeting its sovereign obligations.
Recognising that long-term solutions must include a resolution of the situation on the ground,
the international community has repeatedly expressed through the resolutions of the United
Nations Security Council its desire to strengthen the capacities of the Somali Government.239
Since the fall of Siad Barre’s Government in 1992, the international community has attempted
various approaches to restore order and put an end to the ceaseless civil wars that are
devastating Somalia. Unfortunately, none of these measures has achieved any tangible
success and the scenes of killings and carnage are henceforth part and parcel of the Somali
society. However, it should be noted that an economy exists in Somalia, mainly thanks to the
240
funds sent by the Somali Diaspora and which is estimated at close to USD 1 billion.
Somalia has huge resources and industries that can help in the reconstruction of the Somali
State.
239
See supra note 67.
240
World Bank, Country Bief available at
http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/AFRICAEXT/SOMALIAEXTN/0,,menuPK:36
7675~pagePK:141132~piPK:141107~theSitePK:367665,00.html.
124
Paragraph 1: The “high economic potential areas” in Somalia
I- Agriculture
Prior to the civil war of Somalia, the country was a major exporter of agricultural products in
Africa and was famous for the production of banana (over 120 000 tons exported yearly) and
other products harvested from farms located in the south of the country. Agriculture is the
largest industry in the Somali economy, accounting for 65% of the GDP, standing at roughly
USD 5.896 billion in 2010. 241
The agricultural sector is critical for a large number of Somalis who live on these products
and which also constitute a source of income thanks to their exportation.
The products from agriculture are presented below:
Table 4: Agriculture products in Somalia
 bananas,  sugarcane,
 sorghum,  mangoes,
 corn,  sesame seeds,
 coconuts,  beans;
 rice,  cattle,
 sheep,  goats;
 fish
The agricultural sector is currently almost inexistent; the land used for agriculture is only a
small portion of the country's capacities. The central cause is evidently the civil war with the
use of military materials that are noxious to production, destroying all the crops in the space
of five years from the beginning of the civil war.
The insecurity experienced by farmers, the blocked roads making any attempts to transport
goods dangerous, the expropriation of land by armed militias, the departure of the most
experienced farmers, the lack of financial resources, the lack of transport infrastructures, and
the lack of land irrigation have all destroyed the agricultural activities in the country.
241
CIA worldfactbook available at https://www.cia.gov/library/publications/the-world-factbook/geos/so.html.
125
Agriculture has become a dangerous and marginal activity.242 However, Somalia has a large
agricultural potential, including the fertile areas for agriculture located around the two main
rivers of Juba and Shabelle.
1- Juba and Shebelle Rivers
Juba and Shabelle are the two largest rivers out of the nine in Somalia.
Juba and Shabelle run largely in Ethiopia but also across Somalia. River Juba stretches over
1,804 km, 804 km in Ethiopia and 1,004 km in Somalia. River Shabelle stretches over
2,526km (1,290km in Ethiopia and 1,236 km in Somalia).
The pre-war Government had undertaken a number of measures to optimally exploit the
resources of the two rivers with irrigation.
In 1988, the Minister of Agriculture had estimated that 222, 000 ha of land were irrigated
following the construction of canal systems on River Shabelle that measured 5,000 km
long.243
The extraction of water from River Juba had further increased since it was estimated that in
1990, 150-170 liters of water was extracted every second.
242
European Union, “Identification of the Agriculture Programme For Somalia” Contract No. 9 ACP SO
3/52, April 2010 p.2-9.
243
Water for Agriculture and Energy in Africa: the Challenges of Climate Change, Sirte, Libyan Arab
Jamahiriya, 15-17 December 2008.
126
Figure 5: Juba and Shabelle Rivers
Source : Swalim
The map shows the irrigation projects put in place before the war and the irrigation potentials
of the areas located around the Juba and Shabelle rivers. Irrigation infrastructures completely
collapsed after the civil war of 1991, and information on the hydrogeology formation and sub-
soils of the rivers is necessary.
In collaboration with the European Union, the FAO conducted a geological study of the area
and, notably, took an aerial photograph of the geographical and morphological structure of
area that revealed the enormous potentials of the rivers for Somalia’s agricultural sector.
The efficient exploitation of the areas surrounding the Juba and Shabelle rivers is one of
Somalia’s most important development projects, for it may help reduce risks of famine (such
as the one of 2011 that is ravaging Somalia and the wider sub-region) and also generate
income from the export of agricultural products.244
244
EU, FAO “Hydraulic Analysis of Rivers Juba and Shabelle in Somalia” Project Report No.W-13, August
2009.
127
II- Telecommunications
Telecommunications is one of the growing sectors in Somalia; despite the war, the sector
records net growth in terms of activities and subscriptions.
Before the civil war of Somalia, the sector was not particularly developed mainly due to the
State’s control of the network and services and because the Ministry of Telecommunications
was the sole provider and regulator of telecommunication services.
After the war, and with the absence of any regulatory organ, private telecommunication
companies emerged. According to some this demonstrated there was a genuine demand from
Somalis who wished to have information on the political situation in the different regions of
the country. The current Government is trying its best to enforce some rules in
telecommunications services in Somalia to attract investors, but the task seems difficult
insofar as companies have become accustomed to operating without any regulation, and
consumers are accustomed to very low prices. 245
Consequently, on 10 April 2011, the Parliament of Somaliland (self-proclaimed republic)

adopted the Telecommunications Act, which seeks to regulate telecommunications services in
the region. This initiative will help the region to implement a legal framework for the
collection of taxes from activities undertaken by telecommunications companies and also
attract foreign investors to whom the issue of regulation is central.
There are several major telecommunications providers in Somalia, who are competing
aggressively to get market share:
 Hurmuud Telecom Inc.;

 Telecom Somalia;
 Nationlink Telecom;
 Somafone Telecommunications Service Co; and,
 Olympic.
245
Reuters Africa “Somalia to regulate, tax telecoms sector – minister”, 14 January 2011.
128
Telecom Somalia was the first to provide landlines and mobile services, followed by
Hurmuud Nationlink and Telecom. The lines are installed in just three days compared to the
several days or weeks seen in some countries around the world; local calls are free for a
monthly sum of USD 0.04. 246
In 2005, the three largest telephone companies (Hurmuud, Nationlink and Olympic) agreed to
set their prices and extend access to their networks. Thus, these companies offer extremely
low and competitive prices adapted to subscribers’ incomes (70% of the population has less
than $2 per day to live). This is also possible because of the absence of a State institution that
would demand taxes. The cost of a telephone call is $ 0.03 per minute, which is one of the
lowest rates in Africa. 247
These telephone companies are also successful because everyone benefits from the services
offered by them, a central tool to communicate both inside and out of Somalia. About 1.5
million people use telephone services in Somalia; these services are used by much of the
population, including armed groups who have every reason to look forward to the
development of these services.
However, there are sometimes disagreements between the armed groups and the
telecommunications companies as the former request companies to pay them a certain
percentage for operating in their areas of control. Some companies have been banned from
operating in these areas and forced to turn off their signals. 248
In the capital and in several cities around Somalia, there are several cybercafés offering
Internet access ranging from 11mb/s to 150mb/s depending on the location. This connection
speed will certainly increase following the intention of the Somali Government to get
connected to the Eastern African Submarine Cable System (EASSy) fiber optic cable.249
246
BBC news “Telecoms thriving in lawless Somalia”, 19 November 2004.
247
Somalia Telecommunication Companies Reduce Calling Rates, 21 February 2011 available at
http://www.bar-kulan.com/2011/02/21/somalia-telecommunication-companies-reduce-calling-rates.
248
Somaliland press “SOMALIA: Financial dispute leaves thousands without communication”, 4 August
2011.
249
Available at: http://www.eassy.org/network_overview.html.
129
Additionally, there are many mobile services offered by telecommunications companies,
including mobile-banking that offers quick payments via the mobile phone, to which a
number of money transfer companies are associated. 250
The Telecommunications sector is undoubtedly a booming industry which, unlike other

economic sectors of the country, has developed considerably due to the lack of a regulatory
body. This sector is ever growing and employing many more Somalis. It is truly an asset for
the reconstruction of Somalia, for it allows traders to continue their business transactions, the
Diaspora to continue sending money on which depend a vast majority of Somalis, and also
constitutes a valuable income-generator both for the telecommunications companies and the
local authorities if a tax is imposed.
III- Fishery
The fishery sector in Somalia is undoubtedly one of the sectors with the highest development
potential.
Somalia has 3,000 km of coastline, making it the first African country in terms of length of
coastline; it is estimated that 30,000 people depend mainly on fishery products and 60,000
people as additional products. 251
According to a survey conducted in 1981, the most abundant number of small pelagic fish
was observed off the Somali coast, between Ras Asir and Ras Hafun. The fish species found
off the coast of Somalia include:
Table 5: Fish species Off the coast of Somalia
 Indian oil sardine (Sardinella  Tuna
longiceps),
 round herring (Decapterus  Sharks and Rays
macrosoma)
 scads (Decapterus merudsi)  Spiny lobster,
250
University of Oxford “Dahabshiil and Somalia's Telecommunications Revolution”, 29 June 2011
251
Istanbul conference on Somalia, 21 – 23 May 2010.
130
 snappers  shrimp,
 Porgies  turtles,
 groupers  oysters,
 pony fishred  crabs
 sea herders  Other species252
The Somali fishery sector in the 80's already produced well below its potential with 30,000
tons per year, whereas the country has an annual capacity of 1 million tons. Fishing was done
traditionally and mainly under the supervision of the Somali Fishermen Cooperative, which
had 700 boats of 6m to 8m long and private fishermen with about 100 boats of similar sizes.
The country’s sole commercial company was owned by the State (Somalfish) and had at that
time 11 ships of 23 to 27 metres long. 253
The State created 19 cooperatives of fishermen, which were charge, inter alia, setting the
price of catches that ranged between USD 0.24 and USD 0.80 / Kg. The products are mainly
for domestic consumption, even though sales were constrained by the habits of the people
who preferred other meats and the prices of fish that were considered high despite the
campaigns of the Somali Government. Somalia exported very few fish to foreign countries,
mainly Italy.
In the 80's, the Government of Somalia put in place several ventures that granted access to the
fishing vessels of certain countries to fish in the country’s territorial waters. These were Italy
(Italian Somali-venture), Iraq (Siadco), and USSR in 1974. The country received several aids
from States and international organisations and these aids amounted to about USD 22
million:254
 The Danish Government through The Danish International
Development Agency;
 The German Government (Federal Republic of Germany);
 The Japanese Government;
252
Mohamed Yassin, “Somali fisheries development and management”, June 1981.
253
Foreign Fishery Developments, “Somali Fishing Industry Has Potential for Growth” Marine Fisheries
Review, December 1982.
254
Id.,
131
 The Swedish Government through The Swedish International
Development Agency;
 The British Government; and,
 UNDP.
Currently, fishing represents about 2% of the GDP of Somalia, with a total production of
18,000 tons in 2008255. Somalia’s fishing sector faces several constraints such as the lack of
infrastructure dedicated to fishing (cold room, etc), fishing equipment (boats, nets, etc),
institutional problems (lack of electricity, no authority issuing licenses, etc), lack of
knowledge in the commercialisation of goods and specific legislation.
The fishery sector in Somalia represents a high potential for the development of the coastal
areas of Somalia and is also part of the strategy of the international community in a bid to
reduce piracy by offering people living along the coast an alternative to piracy.
This sector is also vital to help reduce food insecurity faced by the local population, especially
during severe drought.
It is also worth mentioning that many accuse foreign vessels of dumping toxic waste off the
coast of Somalia. If these accusations were to be confirmed by the United Nations, it would
be necessary to conduct studies to determine the impact of these spills on the current stock of
fish and, obviously, their reactivity rate to establish how dangerous they are to the health of
the final consumers. These studies may be conducted by UNEP in collaboration with the
FAO.
Additionally, IUU fishing activities are also of great importance for the development of the
sector. It is estimated that USD 95 million worth of export revenue is lost due to IUU fishing.
255
ACP fish II, http://acpfish2-eu.org/index.php?page=somalia&hl=en
132
V- Other resources
Somalia also has natural resources it could exploit and export. These include:
Table 6: Natural resources products in Somalia
Salt Natural gas (5663 billion cu m)
Zinc Gypsum
Copper Tin
Manganese Uranium
Iron ore Oil
These reserves are currently not exploited, but they represent an important foreign exchange
earner, notably considering the price of some resources like copper.
133
Paragraph 2: Local development
I- Development of a local economy
Over the past 20 years, the international community has focused its development efforts in
Somalia on the institution of a central Government capable of restoring order and undertaking
its sovereign duties.
Unfortunately, most of these initiatives have proven to be a failure. According to some

experts, this failure is due to the international community’s tendency to ignore the inter-clan
competitions that undermine Somalia and impede all attempts to restore order.256
It is also advanced that development projects should incorporate these specific aspects of the
Somali society by supporting the emergence of local economic initiatives that could be an
alternative to piracy, especially among the youths.
The special nature of the Somali situation characterised by a territorial division based on
criteria such as the strong presence of a clan in local decision-making organs or the mistrust
of the Government are certainly factors that must be taken into account in the development
strategy for Somalia.
Consequently, experts have proposed the implementation of a global local strategy that would
include a strategy for infrastructure, economic and human development, strengthening the
institutions of local communities and building the capacities of forces of law and order.
Some experts claim that international aid to Somalia tends to go through the central
Government which, given the context, needs too much time to be efficient. They reckon that
the aid must be allocated directly to the local communities that are made up of various actors
capable of executing this aid effectively:257
 Public-Private Partnerships;
256
Martin N. Murphy and Joseph Saba, “Countering Piracy: The Potential of Onshore Development”
257
Lange Schermerhorn “The Man from Minnesota: A Model for Local Economic Development?”
134
 international and local NGOs;
 philanthropic foundations;
 trade and affinity associations;
 social service;
 Organization; and,
 Members of the ethnic diasporas.258
This strategy is also founded on the development of a number of sectors such as

telecommunications, fishery, agriculture, natural resources exploitation and development of
transport infrastructures to open up the regions.
This point of view centred on local development has several advantages:
 Avoiding the slowness of the central administration;

 Improved identification of local needs;
 Immediate visibility of project’s efficiency;
 Immediate impact on the communities (creating jobs, etc); and,
 Greater involvement of the Diaspora.
However, some criticisms can be raised. Direct aid to the local populations and local initiative
groups may further weaken the central Government and encourage more regions and different
groups concentrated in one geographical area to disaffiliate from it.
II- Social aspects of Piracy
As mentioned above, the Somali society is one in which traditions and social relations are
largely based on the respect of Islamic principles. The Somali culture is ancient and chiefly
drawn from Arabic culture that introduced Islam in the 10th Century AD.
The lives lived by pirates are contrary to the culture and tradition of the Somali people, for a
good number of pirates consume alcohol and drugs, and are involved with prostitution. These
258
Id.,
135
practices are condemned by the elders who, faced with the huge sums of money obtained
from ransoms and their economic situations, remain silent.
This situation is most displeasing to the community, notably because it is currently

established that more and more youths are involved in piracy activities, with the risk that
these teenagers could go to sea and never return. Several hundreds of young people have
disappeared at sea; this situation affects notably the communities that depend on fishing, with
the demographic and social consequences that ensue.
The Somali culture, notably for those living along the coastline, has experienced tremendous
changes over the past five years. The massive inflow of money, young girls’ attraction to
these young relatively wealthy pirates and the lifestyles of pirates are all having a severe
impact on the principles binding these communities, notably for the elders.
A number of people think elders have an important role to play: firstly, by dissuading young
Somalis from indulging in these activities, and secondly, by endeavouring to change the
perception the Somali people have of piracy.
III- Initiatives of the International Community
1- International Labour Organization (ILO)
In collaboration with the UK Department for International Development (DFID), the

International Labour Organization is proposing the implementation of a programme in
Somalia to turn the people away from piracy.
This program complements the strategy of the international community in its fight against
piracy by improving the living standards of the Somali people. This program, dubbed ILO
Employment-Intensive Job Creation Program and aims at involving the local communities
through employment-generating projects by improving access and infrastructure, reviving
local markets and building local skills and capacities. 259
259
ILO press and media center “Somalia: addressing the root causes of piracy and warlordism,” 13 October
2009
136
Therefore, the objective is to train Somalis in infrastructure project management, to create
jobs, open up the local regions, promote dialogue between communities and facilitate trade.
The program has launched several initiatives, such as the construction of new roads between
the Allula and Baargaal districts, and created 1,900 new jobs. 260
260
Id.,
137
Chapter Summary
Piracy represents a significant cost for the international community. It results in direct costs
related to ransom, insurance, diversion via the Cape of Good Hope and the cost of safety
equipment and other related costs. But also indirect costs that represents the impact on
countries in the region. In 2010, the cost of piracy off the coast of Somalia was estimated
between USD 4.9 billion to USD 8.3 billion.
It is also worth noting that acts of piracy have different financial impacts including an
increase of new security equipment, private security companies and new businesses such as
negotiators have emerged.
If the financial aspects of piracy and particularly to the ransoms paid to pirate are examined, it
is clear that the system used by pirates to transfer the money out of Somalia is based on a
"traditional" transfer system osed in Asia and the Middle East and Asia for centuries: hawala.
Through this system of funds transfer, financiers and others directly involved in piracy
reinvest these funds in various activities ranging from legal activities to the purchase of
various technologies to be used to commit acts of piracy.
In response, The Security Council and the CGPCS called for further collaboration between
States and international organizations to fight against illegal financial flows.
Somalia has many onshore development capabilities which can be developed by the States
and international organizations to offer alternatives activities to Somali people.
138
Final Remarks
It has been demonstrated that even though the customary international law provisions
contained in UNCLOS specifically address piracy, the definition of piracy, the geographical
scope or the question of jurisdiction do not seem to be able to respond to the threat of modern
piracy and particularly piracy off the coast of Somalia.
The international community tried to address the lack of adaptability of customary

international law through the adoption by the Security Council of several resolutions
including the authorization to enter Somali territorial waters (with the request of the
Transitional Federal Government), the call for international cooperation and capacity building
of countries in the region.
The solution to the thorny problem of the location of trial and incarceration of suspects seems
to be moving towards the creation of an extraterritorial court and the construction and
rehabilitation of prisons in Somalia (Somaliland and Puntland).
Many challenges and questions remain concerning the capacity of this new tribunal, the
hostility of the Federal Government of Somalia, the will of Somaliland only to incarcerate its
citizens, the lack of transfer agreements between the countries of the region or the need for
prisons in Somalia to comply with international law on the treatment of prisoners (hard to
guarantee).
However, these difficulties must be overcome as soon as possible seen the growing costs of
piracy which continue to pose a serious threat to international shipping. In 2010, piracy off
the coast of Somalia cost between USD $4.9 and USD $8.3 billion to the international
community and this figure could increase along with the insurance costs and ransoms, not to
mention the cost of shipping thus ultimately the cost of consumer goods worldwide.
The organizational capacity of financial pirates clearly demonstrate the sophistication of the
system in place in Somalia and the urgent need for a more precise international community
response through a deeper involvement of regional countries with the participation of
specialized international organizations.
139
Piracy also creates parallel activities that are developing along with the increase in acts of
piracy. These activities, private security companies would be the perfect example, reap
substantial benefits.
Most countries agree that the military measures, judicial and other measures can be only
effective by incorporating them into a larger system that would encompasses the
establishment of alternative activities onshore.
Somalia has important natural resources and there are promising industries which need to be
developed. For now, there are few activities undertaken by the international community on
the ground.
Acts of piracy off the coast of Somalia will be eradicated only through a comprehensive and
multidimensional approach, including the establishment of alternative activities in Somalia,
the establishment of the judicial system to reduce impunity for pirates, an increase in
preventive measures for vessels transiting off the coast of Somalia and the conclusion of the
political peace process so that the country can establish institutions capable of ensuring its
sovereign prerogatives.
140
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144
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 Legifrance website: www.legifrance.gouv.fr
 International Chamber of Commerce website: http://www.icc-ccs.org/
 Europol website: https://www.europol.europa.eu/
 Contact Group on Piracy off the Coast of Somalia: http://www.thecgpcs.org/
 World Bank website: http://web.worldbank.org
 Central Intelligence Agency website: https://www.cia.gov/
 Afrique Caraibe Pacifique website: http://www.acpsec.org/
145
Annexe 1: Main pirates groups
Groups Leader names Location Comments

The National Garaad Mohamed Kismayu on
the Interception of small
Volunteer Coast southern coast.
boats and fishing
Guard vessels
The Marka group Sheikh Yusuf
Marka (South of They are organized,
Mohamed Siad Mogadishu) violent and are using
mother ships
Puntland Group unknown Puntland Small group but
located in a strategic
area
Somali marines Abdi Mohamed Puntland Well organized with
Afweyne a military structure
146
Annexe 2: Expansion of piracy operation
Source: EUNAVFOR/IMB
147
Annexe 3: National laws related to piracy
Country Law Year Articles Sentences

Djibouti n°212/AN/82 18 January 1982 Sections 208/ 385/ 386 20 years imprisonment to life
Code des Affaires Maritimes imprisonment
Seychelles Penal Code Amendment Bill N°5 of 2010 11 March 2010 Titre 2/ Para.4 30 years of imprisonment
and a fine amounting to 1
million Rupee.
Madagascar Loi n°99-028 Code maritime 3 February 2000 Chapter 5 and 13 Hard labour for life or for
limited duration.
Somalia none none none none
Tanzania THE WRITTEN LAWS (MISCELLANEOUS May 2010 Section 6/ 66 Life imprisonment
AMENDMENTS) (NO.2) ACT
Kenya Merchant Shipping Act June 2009 Articles 69/369/371 Life imprisonment
France LOI n° 2011-13 5 January 2011
South Africa Defence Act no.42 2002 Article 24-29 Life imprisonment
Mozambique Codigo Penal 31 August 2006 Article 162 sixteen to twenty years
imprisonment
Comoros Maritime Code Article 81
United Arab Commercial Maritime Law No.26 1981 Articles 208-210 Life imprisonment
Emirates
Oman Penal code 1974 Article 285 Life imprisonment
Mauritius The Merchant Bill 2006 Part X, sub-part I, Article 211 A term not exceeding 60
years
148
Annexe 4: International conventions status on November 2011
Country UNCLOS SUA SUA SUA UNTOC HC UNTFC UNCAC

88 05
Comoros 21 Jun 1994 4 Jun 2008 (a) NS 25 Sep 2003 25 Sep 2003 10 Dec 2003
 
(s)
Djibouti 8 Oct 1991 7 Sep 2004 (a)   20 Apr 2005 (a) 1 Jun 2004 13 Mar 2006 20 Apr 2005
Egypt 26 Aug 1983 8 Apr 1993   5 Mar 2004 2 Oct 1981 1 Mar 2005 25 Feb 2005
Eritrea NS NS   NS NS NS NS
Ethiopia NS NS   NS 16 Apr 2003 NS 26 Nov 2007
France 11 Apr 1996 1 Mar 1992   29 Oct 2002 9 Jun 2000 7 Jan 2002 11 Jul 2005
Jordan 27 Nov 1995 30 Sep 2004   NS 19 Feb 1986 28 Aug 2003 24 Feb 2005
Kenya 2 Mar 1989 21 Apr 2002 (a)   5 Jan 2005 (a) 8 Dec 1981 27 Jun 2003 9 Dec 2003
Madagascar 22 Au 2001 14 Dec 2006 (a)   15 Sep 2005 24 Sep 2003 24 Sep 2003 22 Sep 2004
Maldives 7 Sep 2000 NS   NS NS 20 Apr 2004 (a) 22 Mar 2007
Mauritius 4 Nov 1994 1 Nov 2004 (a)   24 Sep 2003 (a) 17 Oct 1980 14 Dec 2004 15 Dec 2004
Mozambique 13 Mar 1997 8 Apr 2003 (a)   20 Sep 2006 14 Jan 2003 14 Jan 2003 9 Apr 2008
Oman 17 Aug 1989 1 Mar 1992 (a)   13 May 2005 (a) 22 Jul 1988 NS NS
Saudi Arabia 24 Apr 1996 3 May 2006 (a)   20 Jul 2007 8 Jan 1991 23 Aug 2007 NS
Seychelles 16 Sep 1991 1 Mar 1992   22 Jun 2004 12 Nov 2003 30 Mar 2004 16 Mar 2006
Somalia 24 Jul 1989 NS NS NS 19 Dec 2001 NS
 
(S)
South Africa 23 Dec 1997 6 Oct 2005   20 Feb 2004 23 Sep 2003 1 May 2003 22 Nov 2004
Sudan 23 Jan 1985 20 Aug 2000 (a) NS 19 Jun 1990 5 May 2003 14 Jan 2005
 
(s)
Tanzania 30 Sep 1985 9 Aug 2005 (a) 24 May 2006 22 Jan 2003 22 Jan 2003 (a) 25 May 2005
  (a)
United Arab NS 14 Dec 2005 (a) NS 24 Sep 2003 23 Sep 2005 (a) 22 Feb 2006
 
Emirates
Yemen 21 Jul 1987 28 Sep 2000 (a)   NS 14 Jul 2000 3 Mar 2010 (a) 7 Nov 2005
149
UNCLOS: United Nations Convention for the Law of the Sea
SUA: Convention for the suppression of unlawful acts against the safety of maritime navigation, Rome, 10 March 1988
HC: International Convention Against the Taking of Hostages, New York, 17 December 1979
UNTOC: United Nations Convention Against Transnational Organized Crime, New York, 15 November 2000
TFC: International Convention for the Suppression of the Financing of Terrorism, New York, 9 December 1999*
UNCAC: United Nations Convention Against Corruption
(a): accession
(s): signature
NS: No Signatory
* There are no evidences that piracy off the coast of Somalia is financing terrorism.
150
Annexe 5: Global Piracy Prosecutions (updated by UNODC on 12 October 2011)
Country Number Held Notes

Belgium 1 1 convicted, final appeal expected
next week
Comoros 6
France 15
Germany 10
India 121
Japan 4
Kenya 143 50 Convicted
Madagascar 12
Malaysia 7
Maldives 34 Awaiting deportation in absence of
law under which to prosecute
Netherlands 29 10 convicted
Oman 12 All convicted
Seychelles 64 52 convicted
Somalia Puntland 290 Approximately 240 convicted
Somaliland 94 68 convicted (approximately 60
released)
South 18 Status of trial unclear
Central
Republic of Korea 5 5 convicted, appeal pending before
Supreme Court
Spain 2 Both convicted
Tanzania 12 6 convicted
United Arab Emirates 10
United States 28 17 convicted
Yemen 129 123 convicted and 6 acquitted
TOTAL STATES: 20 1046
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The phenomenon of Piracy off the Coast of Somalia:

Challenges and Solutions of the International

Abbas Daher Djama

AMISOM African Union Mission In Somalia

I also would like to express my profound gratitude to the Government of Djibouti,

I sincerely express my appreciation to Prof. Lori Damrosch, Professor of International Law

LIST OF FIGURES .............................................................................................................................................. XI

Figure 1: Map of Somalia

SECTION A: INTERNATIONAL LAW

Paragraph 1: Classic Law of Nations

In 1932, the Harvard Research Group established a document composed of 19 articles

In this report, the Commission recommends holding a conference attended by

This will be undertaken in 1958 by the Convention on the High Seas. 9

I- Convention On the High Seas

Piracy consists of any of the following acts:

 Convention on the Territorial Sea and Contiguous Zone, entry

The need for two ships

Acting for private ends

 Based on the crime regardless of the location or nationality of

 The Continental Shelf: The continental shelf is regarded as "natural extension" of

Exclusive Economic Zone and piracy

The extension of the jurisdiction of coastal States as stipulated by UNCLOS complicated a

However, Article 58 (2) states:

“Articles 88 to 115 and other pertinent rules of international law

Article 58 (3) further clarifies that:

III- Suppression of Unlawful Acts (SUA)

It is precisely to overcome the shortcomings of UNCLOS and to increase the ability to

1- Illegal acts by the Convention

“(a) seizes or exercises control over a ship by force or threat thereof

2- The geographic scope of the SUA Convention

3- Obligations of States under the Convention

 The jurisdiction based on territorial aspect: a State may express

4- The 2005 Protocol

Additional definition of an unlawful act

 “The use against or on board a ship or to spill from a ship

When submitting the instrument of ratification, acceptance, approval or accession, a State

IV- International Law and Piracy

Modern piracy represents a significant challenge to international law because of its

The spectacular development of maritime transport is a crucial factor in determining the

A) The Geographical aspect

To overcome this difficulty, it is proposed to introduce bilateral agreements between States

International Law and judicial cooperation agreements

Paragraph 1: United Nations

I- United Nations Security Council Resolutions (UNSCR)

Figure 2: Somalian Piracy Threat Map

2- Cooperation and Technical Assistance

Resolution 1897 adopted on 30 November 2009 by the Security Council extends

Pursuant to Resolution 1897, the UN Secretary-General presented a report summarizing the

 strengthening the capacities of countries, particularly through

 The importance of investigating and prosecuting even imposed

 The creation of a criminal and procedural framework in

An extraterritorial court would require an analysis of the different elements to be able to

 The position of the States of the region in relation to this

II- United Nations Office on Drugs and Crimes (UNODC)

“to assist to take action, within the provisions of international

4- Djibouti Code of Conduct

The Djibouti code of conduct is a document of Regional Cooperation adopted in 2009 in

The reports of the Special Representative constitute elements of appreciation of the