The Piracy Conundrum

06 September 2010 by Kenneth Manusama

On 25 August 2010, the UN Secretary-General published a report at the behest of the UN Security Council (UNSC), on the available 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.’ This report can be seen as a summary of a debate that was started in 2009 within the confines of the Contact Group on Piracy off the Coast of Somalia.

When it comes to piracy, states whose sophisticated navies patrol the Indian Ocean seem stuck between not wanting to deal with Somalia itself and not wanting to prosecute pirates domestically. The international legal regime on piracy offers a definition, the exceptional authority to stop and seize vessels on the high seas, and provides for universal jurisdiction, i.e. the authority for any state to prosecute acts of piracy.

Yet, states are not obligated to prosecute and states mostly decline to do so for various reasons. In 2009, as the number of piracy incidents continued to rise, international efforts focused first on domestic prosecutions by all states and secondly on prosecution by states in the region resulting in controversial transfer agreements between most prominently the EU and Kenya (and later the Seychelles).

In time, the capacity Kenya to absorb and prosecute transferred pirates came under severe strain, however. The Netherlands, Russia and Germany therefore argued in favour of an international mechanism to prosecute pirates, based on the existing legal regime.

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