Tuesday May 5, 2009

Column:

The equation is simple: pirates capture, companies pay.

Millions and millions of dollars have been paid out as ransom to pirates who capture vessels on the high sea. The story has repeated itslef many times over the past few months. The glaring turth is that the modern world is extremely under-prepared to battle piracy.

The world has changed, but piracy hasn't.

Centuries ago civilized nations were held hostage by pirates, much as we are today. Centuries ago civilized nations were virtually powerless to act against piracy, much as we are today. Centuries ago it was fear that gripped the civilized world, today, that fear is mixed with law.

Historically piracy was never considered political. It was never seen as a form of terror. It was seen through the prism of thievery. Pirates were self motivated. They wanted money. They still want money. But in today's world, if pirates are helping a government and that government, in turn, helps them continue to kidnap ships the law says that the pirates are outside the boundary of the the international law of the high seas and of UNCLOS.

The UN Convention on the Law Of the Sea (UNCLOS) defines piracy as
"any illegal acts of violence or detention, committed for private ends by the crew or passengers of a private ship"
"on the high seas"
"outside the jurisdiction of any state"
This is the definition of piracy as laid down in international law. It is Article 101 a,b,c. It is simple, direct and woefully incomplete.

Imagine this situation: a NATO ship captures an entire pirate crew, captures them red handed, with their weapons, with the goods and even saves the day by freeing the hostages and returning the captured vessel to the crew. After a spectacular rescue the NATO team has the pirates and the pirate vessel. The crack NATO team confiscates the weapons, searches for more weapons, finds and takes those, too and then - then the NATO team releases the pirates. Why? Because according to the law NATO does not have jurisdiction. NATO cannot arrest pirates, NATO cannot bring pirates to trial and NATO cannot punish pirates.

The reality is that legally, not only NATO has no jurisdiction. Almost no country will arrest pirates, that is the unwritten rule of the sea and it is a rule that pirates know well. The exception to that rule is in those rare cases in which the rescue team is from the same country as the captured crew. In other words, the only way that pirates will be arrested is if, by chance, the host nation is around and sails to the rescue. Why? Because that way there is no jurisdictional challenge. And that almost never happens.

According to this inadequate definition of piracy, the Somalian pirates plying their trade within the territorial waters of Somalia, are not practising piracy. And according to this definition, pirates who pay tribute to local governments and leadership are not practising piracy either. The act of paying tribute transforms the illegal action from an international act to a local act. Jurisdiction is then covered locally because the pirates have linked themselves to a particular cause and political leader. In the eyes of the law they have been transformed from money and booty seekers to political or governmental activists.

These laws must be changed.

These antiquated perceptions of piracy help the pirate, defend the pirate and lend no incentive to stop the pirate.

When looking at the situation around Somalia it becomes clear that the Somalian government is powerless. The government of Somalia is too weak to stop the piracy and the government of Somalia does not want to stop the piracy because the government gains from the piracy. Rather than stop the pirates, local governments offer the pirates protection, safe haven and refuge.

During the 19th century Barbary Pirates ruled the seas. Civilized countries paid regular ransoms to insure that either their ships were protected in advance or that the vessels would return safely after being boarded and abducted. It was Teddy Roosevelt who said enough, and charged the United States Marine Corps with the responsibility of crushing piracy. Rooselvelt asserted that neither the free world nor the world economy should be brought to its knees by a handful of sea pirates.

The Marine Corps is still capable of handling the job. They just need international law behind them. The time has come to update the law and put down the piracy.

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