Title:
To what extent is the UN Convention on the Law of the Sea capable of adequately dealing with modern piracy? An analysis of the international legal community’s response following the incidents off the coast of Somalia between 2008 and 2011, and the need for reform of international law in this respect.
Aims:
- To evaluate how far the UN Convention on the Law of the Sea 1982 (UNCLOS) is capable of responding to modern piracy, focusing on incidents off the coast of Somalia between 2008 and 2011 and also more recent incidents in the area; and whether the content of the Convention is relevant to piracy in the current climate. As such, the primary aim of the research is to ask whether UNCLOS is an anachronism insofar as it contains the international law on piracy, and if so, how far and in what sense reform of the law is needed. In this regard, the work aims to evaluate reform proposals already made in the academic literature, synthesise these proposals, and make novel recommendations as appropriate.
- In order to do this, the work will undertake a black letter analysis of relevant primary sources which govern piracy, including Articles 100-107 and 110 of UNCLOS, Chapter VII UN Charter 1945, relevant Articles in the Geneva Convention on the High Seas 1958 and a number of Security Council Resolutions in respect of piracy off the coast of Somalia. The aim of the analysis will be to place UNCLOS within the wider context of international law on piracy in order to inform the evaluation of its ability to deal with recent piracy, focusing on the situation in Somalia. This black letter analysis will be supported with a socio-legal discussion, not merely of the rationale behind the primary sources and their application and treatment by States, but the context within which modern piracy takes place. It will as such be necessary to evaluate the practical circumstances in which modern piracy occurs, beginning with Treve’s assertions that piracy off the coast of Somalia has developed in the context of “a lack of effective government” (2009, p.400), the growth of terrorist activities and political instability in Somalia and the surrounding region (Treve, 2009, p.400). Thus, by evaluating not merely the content of relevant primary sources, but synthesising commentator views on their application and the practical context within which modern piracy occurs, the work aims to ask whether it would be desirable to amend current definitions and the scope of piracy (Xu, 2007, p.640-643) within current legislative instruments, and what form any such reform should take.
- As the methodologies employed will be entirely secondary, ethical issues are limited to ensuring comprehensive referencing and do not require further examination.
Objectives:
Research Questions and Chapter Outlines:
Introduction
This will set the parameters for the work and provide a brief literature review in relation to the scope of the work, as detailed in the chapter outlines below.
Chapter 1
In order to provide context for analysis of the merits of the UNCLOS Articles insofar as they relate to piracy and how far and in what manner reform may be required, it will be necessary to discuss the incidents which have occurred off the coast of Somalia since 2008 (Dahir, 2009, p.24 and Guilfoyle, 2012, p.82-90) within the wider setting of piracy as an international crime; and to ask whether the threat from piracy has changed (Cooper, 2012, p.84-86) since the entering into force of UNCLOS so that its provisions are of limited relevance to the nature of the threat today. As such, the work asks how the provisions in UNCLOS, insofar as they attempt to deal with piracy, fit within the international legal framework and policy, both on the part of bodies such as the UN, and States (UN Division for Ocean Affairs and the Law of the Sea, 2012), in terms of dealing with piracy.
In this regard, the chapter will examine piracy as an evolving crime, evaluating its historic operation, perspectives of piracy as an “out-dated eighteenth Century concept of chiefly historical interest” (Petrig, 2015, p.843), and recent understandings of piracy as a crime within modern society. This discussion aims to inform analysis of the extent to which UNCLOS is capable of adequately dealing with modern piracy, and whether there is any merit in the views of commentators such as Petrig that the development of UNCLOS in line with perspectives of piracy as being an historical crime has led to a need for supplementation of those rules with further legislative initiatives (2015, p.844). In this regard, the views of scholars such as Guilfoyle that “confusion” (2010, p.142) is inherent in the international law on piracy will be examined. The focus of the discussion here is the framework at the macro level, whilst the content of the law at a micro level will be examined within chapter 2.
Chapter 2
Building on the discussion in the previous chapter relating to the interplay between different areas of international law in dealing with piracy, the focus of this chapter will be to ask how, notwithstanding the changes in the type of threat posed (as discovered in the preliminary research in preparing the aims of chapter 1 in this proposal), various aspects of the law attempt to deal with piracy.
The focus will be on the content of UNCLOS and how far perspectives about piracy during its drafting have limited the extent to which its Articles are capable of dealing with modern piracy; and in terms of the interplay between UNCLOS, domestic State law, and other mechanisms of international law, including how far the codified law on piracy is no longer applicable customary law, and yet remains in an out-dated Convention (Guilfoyle, 2009, online version). The chapter will also examine the development of UN Security Council Resolutions in respect of piracy in Somalia. The analysis will assess whether these Resolutions have effectively become part of customary law, notwithstanding statements to the contrary (Security Council Resolution 1816/2008), and the associated implications for the development of the international law relating to piracy. Regardless of the conclusions reached here, the chapter will ask what their implications are in terms of the general treatment of piracy as a crime which occurs on the High Seas, as opposed to territorial waters (Fry, 2014, p.349), and what this means for the scope of piracy as a crime as framed in UNCLOS. This analysis will necessarily involve a consideration of the role of the State and jurisdictional issues in dealing with international piracy; analysis of the application of international human rights Conventions, such as the European Convention on Human Rights 1950, when States have taken control over a pirate ship (Guilfoyle, 2009, online version); and the role of international judicial bodies.
Discussion of EUNAVFOR Operation Atlanta and the role of the EU in dealing with Somalian piracy (Papastavridis, 2015, p.536-541), and the implications for the role of international law will also be examined. The chapter also asks to what extent discourses which suggest that the Security Council Resolutions have done little but provide permission for using force to counter specific incidents of piracy (Treve, 2012, p.412-414 and Guilfoyle, 2008, p.695-696) have merit, and what the implications of this may be in terms of UNCLOS’ ability to deal with modern piracy.
Chapter 3
This chapter discusses whether reform is needed to improve the manner in which UNCLOS, within the framework of international law, is capable of dealing with modern piracy. The chapter will examine any existing reform proposals, evaluating their merits. In this regard, it will assess arguments made by commentators such as Fry in terms of the desirability of developing an international tribunal to deal specifically with piracy (2014, passim). Proposals for reform of UNCLOS and the international legal framework will be made based on the conclusions reached in the first two chapters of the work with a view to presenting novel solutions to any problems with the law identified throughout the work.
Initial Conclusions:
It is envisaged that the research will reach the following conclusions:
- The international legal framework insofar as it relates to piracy is unclear. The interplay between the Articles of UNCLOS and this framework is currently incoherent and the Articles themselves are not capable of dealing with modern piracy.
- Clarity is needed in terms of the scope of the definition of piracy; jurisdictional issues; the development of customary law notwithstanding the fact that the recent Resolutions do not appear to have formed new customs; and the type of tribunals which should deal with piracy.
- Conclusions regarding the type of reform recommended are not possible to draw until the research has been completed.
Self-Reflective Note:
Ensure that analysis throughout focuses not only on the text of UNCLOS but its operation in practice, making links between the context in which it was drafted and the context in which piracy off the coast of Somalia occurred, both between 2008 and 2011, and in respect of more recent incidents. Be careful to make sure that any proposed reforms of international law are justified not just with relevance to difficulties with piracy in Somalia, but in the wider sense of modern piracy. The synthesis of materials should go beyond being a mere literature review, but provide critical analysis of the arguments made in that literature in order to reach novel conclusions and proposals.
Relevant Primary Sources Used Within this Proposal:
International Conventions:
- European Convention on Human Rights 1950
- Geneva Convention on the High Seas 1958.
- UN Charter 1945.
- UN Convention on the Law of the Sea 1982 (UNCLOS).
Other Relevant Primary Sources:
European Court of Human Rights Case Law:
- Al-Skeini v United Kingdom (2011) 53 EHRR 18 (Application No 55721/07)
Security Council Resolutions Including:
- Security Council Resolution 1816/2008 The Situation in Somalia (UN)
- Security Council Resolution 1838/2008 The Situation in Somalia (UN)
- Security Council Resolution 1846/2008 The Situation in Somalia (UN)
- Security Council Resolution 1851/2008 The Situation in Somalia (UN)
- Security Council Resolution 1897/2009 The Situation in Somalia (UN)
- Security Council Resolution 1918/2010 The situation in Somalia (UN)
- Security Council Resolution 1950/2010 The Situation in Somalia (UN)
- Security Council Resolution 1976/2011 The Situation in Somalia (UN)
- Security Council Resolution 2015/2011 The Situation in Somalia (UN)
- Security Council Resolution 2020/2011 The Situation in Somalia (UN)
Secondary Sources Used Within This Proposal
Articles:
- Cooper A (2012), Somali Piracy: A Legal Maelstrom Cov LJ 17(2) 83-92
- Dahir N (2009), Jurisdictional Problems in Controlling Piracy Cov LJ 14(2) 23-27.
- Fry JD (2014), Towards an International Piracy Tribunal: Curing the Legal Limbo of Captured Pirates AJICL 22(3) 341-468.
- Guilfoyle D (2008), Piracy off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-Piracy Efforts ICLQ 57(3) 690-699.
- Guilfoyle D (2010), Counter-Piracy Law and Human Rights ICLQ 59(1) 141-169.
- Guilfoyle D (2012), Somali Pirates as Agents of Change in International Law-Making and Organisation CJICL 1(3) 81-106.
- Treves T (2009), Piracy, Law of the Sea and use of Force: Development Off the Coast of Somalia EJIL 20(2) 399-414.
- Papastavridis E (2015), EUNAVFOR Operation Atlanta off Somalia: the EU in Unchartered Legal Waters? ICLQ 64(3) 533-568.
- Petrig A (2015), Piracy, Chapter 37 in Rothwell D, Oude Elfernink AC, Scott KN and Stephens T, The Oxford Handbook of the Law of the Sea Oxford University Press.
- Xu J (2007), Piracy as a Maritime Offence: Some Public Policy Considerations JBL Sep 639-655.
Further Likely Secondary Sources
Books:
- Dixon M (2013), Textbook on International Law Seventh Edition, Oxford University Press.
- Kraska J (2011), Contemporary Maritime Piracy: International Law, Strategy and Diplomacy at Sea
Articles, Reports and Other Sources:
