The fall of the Berlin wall should have heralded a new world order in which war was nothing more than a dream1. Other writers, however, made the opposite prediction.
The fall of the Berlin wall should have heralded a new world order in which war was nothing more than a dream1. Other writers, however, made the opposite prediction. They foresaw a world governed by anarchy2 and barbarism;3 in short a world faced with new threats4 which would challenge the international system in what would appear to be a lot of juxtaposed sovereignties. Political violence had been put to rest a little too soon. It has resurfaced with force today on the seas with the almost exponential increase in piracy along the coasts of Somalia, reminding us that formerly, the partisans of Garibaldi had already had recourse to taking hostages at sea. This political violence is forcefully taking shape in a lawless zone, where legally there is no authority which is legitimately recognized by all, with a population as desperate as it is accustomed to war, indicating in passing that a correlation exists between political tensions and the development of threats.
In many respects, Somalia seems to fit into this very real perspective. It seems to have become, at the very least, a terra nullius, a land ruled by no one. It is therefore not surprising that the zone bordering this country has become one of the most exposed in the world to acts of piracy. In 2007, 31 acts of piracy were identified in this zone, compared with 10 in 2006, thereby infringing the freedom of navigation5. A very symbolic act of piracy attests to this new reality. On 15 November 2008, Somali pirates seized a massive Saudi oil tanker. As huge as an American aircraft carrier, the Sirius Star was transporting to the United States two million barrels of crude oil, a quarter of daily Saudi exports.
The almost exponential increase in piracy in this zone can certainly be explained by the fact that this country is an important junction on the route linking the Indian Ocean to the Red Sea and the Suez canal. In other words, it is a vital route for international trade through which 16,000 ships pass each year. The European Union alone has 30% of its oil supplies shipped through the Bab El-Mandeb strait, which links the Suez Canal to the Middle East. That said, the North-East coast, which is the shipping transit lane, seems less affected than the southern part of the coast, which is further away from the big merchant routes. The phenomenon is not in itself surprising, when one knows that a marinization of economies is taking place: 80% of global trade and 40% of the production of hydrocarbons are being transported by sea6.
On 2 June 2008, in reaction to the repeated infringements of the freedom of navigation, the Security Council of the United Nations, acting by virtue of Chapter VII of its Charter, unanimously adopted resolution 1816 aimed at acts of piracy and armed robbery along the coasts of Somali. This resolution was proposed by the United States and France with the agreement of Somalia’s Transition Government. It was a direct result of the attack on the Ponant, on 4 April 2008, a ship flying the French flag, on the high seas off the coast of Somalia. The thirty people on board were subsequently released by the pirates, after many negotiations. At the same time, a French commando proceeded to arrest six of the pirates on Somali territory; this with the agreement of Somalia’s Transitional Government. This episode will have been of some concern to any observer of the laws applicable to maritime piracy. While the laws on piracy come from the Convention of Montego Bay of 10 December 1982, it is nevertheless true that this legal corpus has been altered by the extension of contractual law instituted by resolution 1816, which infringes to some degree the sovereignty of many States; Somalia being the first in line.
Customary law, like the Law of the Sea resulting from the Convention of Montego Bay, recognizes as acts of piracy only those acts committed on the high seas or in a place that does not come under the jurisdiction of any State7. This means that a pirate can be arrested on the high seas by the ships of any State and he can, consequently, be tried by the courts of the State at the origin of this arrest. It follows that piracy results in a universal competence of police and justice. In line with this, on Tuesday 21 April 2009, there appeared before the Federal Court in Manhattan a young Somali, Abduwali Muse, who was part of a group of four Somalis who had hijacked a ship of the American merchant navy on 8 April 2009 while it was making the journey between Djibouti and Mombassa. He faces being sentenced to life imprisonment.
It must be realized that, while according to the Convention of Montego Bay, piracy takes place on the high seas, this has developed into a threat and has been revealed as a form of banditry along many coastlines; as far as we are concerned, Somalia’s. The result is that piracy is no longer a purely maritime phenomenon. The installation on the coast of Somalia of numerous bases, from which piracy missions are launched and towards which the captured crews and ships are subsequently brought back, is part of this revolution of the modus operandi of piracy. Is there still any need to recall that, in our day, maritime criminality is more rife in the waters under the jurisdiction of States than on the high seas, the only locality of legal piracy! So we are witnessing a displacement of piracy from the high seas to national waters. The reason for this is simple: the coastal States concerned are revealed to be without resources. Piracy having become a virtual industry, they sometimes do not have the intention or the will to repress it. Thus the definition of piracy given by the Convention of Montego Bay seems ill-adapted with regard to the nature of the acts committed and the place where the offences are committed. It is indeed because the fight against piracy is taking on new forms, which foster terrorism, that it must be exercised wherever the threat exists. With the intention of taking hold of this new order, the Security Council of the United Nations has adopted resolution 1816, which is the subject of our debate8.
With this resolution, the Security Council would proceed to extend pre-existing contractual law. In fact, the international limits for the repression of piracy were extended to the territorial waters of Somalia9. As a general rule, States have sole competence over their territorial waters, notably for the repression of piracy. The law of pursuit sanctioned in article 111 of the Convention of Montego Bay on the Law of the Sea, begins in the waters under national jurisdiction and must cease as soon as the pursued enters the territorial sea of the State to which it belongs or that of another State. Resolution 1816 authorizes States which cooperate with Somalia’s Transitional Government to enter the territorial waters of Somalia in order to repress piracy and armed robbery at sea. This right of pursuit can be exercised not only from the high seas, but also from Somali waters since its purpose is to repress piracy as well as armed robbery. It is not trivial to recall that the project established by Harvard Research in International Law10 foresaw a right of pursuit of pirate ships if the pursuit was undertaken by a State in its territorial waters, or in a place that did not come under the jurisdiction of any State. In this scenario, the pursuit could then be extended to the territorial waters of another State and the seizure could take place in these territorial waters, on condition that the neighbouring State did not forbid it. The effectiveness of resolution 1816 was nevertheless subject to the support of the international community.
On 5 June 1981, an American scientific journal, Morbidity and Mortality Weekly Report, announced to the world that five cases of a rare form of pneumonia due to pneumocystis carinii, which was only...
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