Abstract
It is trite knowledge that the most significant problem in respect of piracy off Somalia is the assertion of jurisdiction over suspected pirates or armed robbers. States have been reticent to prosecute pirates and try them before their Courts. Amongst the other solutions that States have come up to, besides entering into Memoranda of Understanding with other countries in the region, as, for example, Kenya and Seychelles, is the employment of ‘ship-riders’. This option was included in the Djibouti Code of Conduct as well as in SC Resolutions 1851 and 1897. These instruments envisage that States will conclude special agreements with countries willing to take custody of pirates in order to embark law enforcement officials (“shipriders”) from the latter countries to facilitate the investigation and prosecution of persons detained as a result of counter-piracy operations.
The employment of ship-riders has been successfully tested in the Caribbean Sea with regard to drug-trafficking, but it has hardly been implemented in the context of piracy. This chapter assesses the employment of “ship-riders” in law-enforcement operations at sea against the background of international law and explores its potential utility in the context of counter-piracy operations. Special emphasis is placed upon the questions of international responsibility that may arise from such ship-rider operations.
The text was submitted on 1 November 2011 and reflects the law as it stood on that date.
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Notes
- 1.
See: United Nations Convention on the Law of the Sea, 1833 UNTS 397; entered into force 16 November 1994; as at 3 June 2011, LOSC has 162 parties, including the EC; see at <http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm#TheUnitedNationsConventionontheLawoftheSea> (last visited 26 October 2011) (hereinafter: LOSC).
- 2.
“On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith”, Article 105 LOSC.
- 3.
In the words of Kontorovich (2009), ‘[p]roving that a group of undocumented men in a boat are pirates could be difficult. Concerns include logistical difficulties, the possibility that pirates could request asylum from the prosecuting state, the possibility that they would invoke the Geneva Conventions, the difficulties of proving a criminal case when the arrest was made by military personnel, and other problems reminiscent of the Guantanamo debate’.
- 4.
See Exchange of Letters between the EU and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy (6 March 2009), 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 (2 December 2009).
- 5.
See UNSC Res. 1976 (2011), at para 26 and the Report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia Mr. Jack Lang (annex to document S/2011/30). See also Report of the Secretary-General on the modalities for the establishment of specialized Somali anti-piracy court S/2011/360/15 June 2011.
- 6.
See Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (2005), April 28, 2005, 829.
- 7.
See Guilfoyle (2010a), 149, at 169.
- 8.
See Code of Conduct concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden, adopted in Djibouti on 29 January 2009, available at <http://www.fco.gov.uk/resources/en/pdf/pdf9/piracy-djibouti-meeting>.
- 9.
The Djibouti Code is open for signature only by the 21 States referred to as ‘Participants’ in the Preamble of the Code. The list includes, inter alia Comoros, Djibouti, Egypt, Eritrea, Ethiopia, France, Kenya, Madagascar, Oman et al.
- 10.
See Geiss and Petrig (2011), 88.
- 11.
UNSC Res. 1851, para 3 and UN SC Res. 1897, para 6.
- 12.
See further information on SADC at <http://www.sadc.int/>.
- 13.
See Memorandum of Understanding on Piracy and Trans-Border Crime between South Africa and Mozambique, signed at 1 June 2011. For more information see at <http://www.info.gov.za/speech/DynamicAction?pageid=461&sid=18794&tid=34350> (last visited 30 October, 2011).
- 14.
See e.g. the Estonian VPD deployed on a French frigate taking part in Operation Atalanta; further information available at < http://www.eunavfor.eu/2011/05/french-naval-ship-embarks-an-estonian-vessel-protection-detachment/>.
- 15.
See for this term Framework Agreement on Integrated Cross Border Maritime Law Enforcement Operations between the Government of United States of America and the Government of Canada, adopted May 26, 2009, available at <www.dhs.gov/xlibrary/assets/shiprider_agreement.pdf>.
- 16.
See relevant discussion in Papastavridis (2010a), 75, at 89.
- 17.
See Geiss and Petrig (2011), supra n. 10, at 86.
- 18.
Agreement Concerning Co-operation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area, concluded on 10 April 2003, at San José, Costa Rica and entered into force on 18 September 2008. The text and a short commentary is found in W. Gilmore, Agreement Concerning Co-operation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area, (2005) (hereinafter: Caribbean Agreement).
- 19.
See also ibid, at 21. Provision is also made for the crew members of the vessel to assist in any such action, but only to the extent and in the manner requested. Such requests may only be made and acted upon if the action in question ‘is consistent with the applicable laws and procedures of both Parties’ (article 9 (4)).
- 20.
See International Narcotics Control Strategy Report (2011), at 48; available at <http://www.state.gov/documents/organization/156575.pdf>.
- 21.
A list of United States Maritime Law Enforcement Agreements updated until 21 May 2008 was kindly provided to the author by Mr. Brad Kieserman, US Coast Guard (on file with the author). According to this list, US have concluded agreements with Antigua Barbuda, the Bahamas, Barbados, Belize, Colombia, Cook Islands, Costa Rica, Dominica, Dominican Republic, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Nicaragua, Panama, St. Kits and Nevis, St. Lucia, St. Vincent and Grenadines, Suriname, Trinidad and Tobago, Venezuela and UK. See also the resent survey by Guilfoyle (2009), at 89.
- 22.
See Kramek (2000), 121, at 133.
- 23.
See: relevant analysis and relevant chart (valid as of 1999) with the categorization of the agreements to the respective models in J. Kramek, ibid, at 150. Also see: Davis-Mattis (2000), 381.
- 24.
According to J. Kramek, ‘the use of ship-riders is sometimes more attractive to nations that do not wish to grant the US Coast Guard blanket consent to enter their territorial seas or board their vessels on the high seas’; ibid, at 134 (fn. 81). See also Williams (2000), 163.
- 25.
In this Agreement ‘waters’ mean the territorial sea, archipelagic waters and internal waters and the airspace over such waters; see paragraph 3 of the US-Trinidad and Tobago Agreement. Interestingly in the US-Barbados Agreement only the territorial waters are mentioned (art. 1 (b)).
- 26.
See also, inter alia, the Agreements with the eastern Caribbean States, Antigua and Barbuda, St Kitts and Nevis, Dominica, Grenada, St. Lucia and St. Vincent and the Grenadines. For analysis see Davis-Mattis (2000), supra n. 23, at 382. On the high seas, however, the authority is granted by the ship-boarding element rather than by the ship-rider.
- 27.
See: article 8 (c) of the US-Trinidad and Tobago Agreement.
- 28.
- 29.
See: article 35 of VCLT, which provides that ‘an obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing’.
- 30.
See: in particular article 27 (1) (d) LOSC with regard to the suppression of illicit traffic in narcotic drugs, which should also be considered as reflective of customary law.
- 31.
See analysis of such cases is furnished by Kramek (2000), supra n. 22, at 139.
- 32.
In any case, the flag State of the intercepted vessel could give its ad hoc consent in this regard.
- 33.
See Geiss and Petrig (2011), supra n. 10, 86.
- 34.
Ibid, at 87.
- 35.
UN, UNODC, Annual Report 2009, available at <www.unodc.org/documents/about-unodc/AR09_LORES.pdf>, at 17.
- 36.
In 2011 there have been 20 incidents of armed robbery in Benin and 7 in Nigeria. See further information at ICC, International Maritime Bureau <http://www.icc-ccs.org/piracy-reporting-centre>.
- 37.
See supra n. 13. Unfortunately, the text of the agreement is not known to the author.
- 38.
‘Armed robbery at sea is defined any unlawful act of violence or detention or any act of depredation or threat thereof, other than an act of piracy, directed against a ship or against persons or property on board such a ship, within a state’s jurisdiction (emphasis added). See IMO, Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery against Ships, adopted 29 November 2001, Res A.922(22), art 2(2), <http://www.pmaesa.org/Maritime/Res%20A.922(22).doc>. Cf. also art 1 of the ReCAAP (2005), supra n. 6.
- 39.
Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, IMO Doc SUA/CONF/15, reprinted in 27 ILM (1988) 67. The SUA Convention was amended by a Protocol adopted in October 2005; IMO Doc LEG/ CONF.15/21, 1 November 2005, <http://www.state.gov/t/isn/trty/81727.htm>.
- 40.
See article 6(4) of SUA Convention.
- 41.
See relevant discussion in Papastavridis (2010b), 122, at 144.
- 42.
See Guilfoyle (2010a), supra n. 7, at 172.
- 43.
For example, Kenyan police have no powers at Kenyan law outside the territorial sea, see ibid, at 172.
- 44.
Ibid.
- 45.
See e.g. Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Operation Atalanta), signed at 27 July 2009; available at <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:202:0084:0089:EN:PDF>.
- 46.
Geiss and Petrig (2011), supra n. 10, at 90.
- 47.
An exception is the very interesting treatise of Wendel (2007).
- 48.
See article 1 of ILC Articles on Responsibility of States for Internationally Wrongful Acts, UN General Assembly Official Records; 56th Session, Supp. No. 10 at UN. Doc A/56/10; at 31 (hereinafter: ILC Articles); available at: <http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.>.
- 49.
See article 2 of ILC Articles.
- 50.
See Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries in Yearbook of the International Law Commission (2001- II), Part Two, at 31 (hereinafter: ILC Articles Commentary). On the distinction between ‘primary’ and ‘secondary’ rules see also Cassese (2005), at 244 and Linderfalk (2009), 53.
- 51.
Wendel (2007), supra n. 47, 223.
- 52.
Ibid.
- 53.
Ibid.
- 54.
- 55.
See Crawford (2002), at 151.
- 56.
See ILC Articles Commentary, at 66. On complicity in international law in general see also Quigley (1987), 57.
- 57.
According to the Commentary, in such cases, ‘each State is separately responsible for the conduct attributable to it’ and ‘responsibility is not diminished or reduced by the fact that one or more States are also responsible for the same act’; see ILC Articles Commentary, at 124. On the issue of joint commission of an internationally wrongful act, see inter alia, ICJ, Oil Platforms (Islamic Republic of Iran v. USA) (Merits) Judgment of 6 November 2003, Separate Opinion Judge Simma, para 74 and Chinkin (2008), 161, at 168 et seq.
- 58.
See e.g. article 5 (1) Treaty between the Kingdom of Spain and the Italian Republic to Combat Illicit Drug Trafficking at Sea 1990, 1776 UNTS 229. See also Guilfoyle (2009), supra n. 21, at 288.
- 59.
See article 7 of US Model Maritime Agreement, supra n. 54.
- 60.
See Geiss and Petrig (2011), supra n. 10, at 92.
- 61.
Note here that with regard to the VPDs of third States on board vessels of the EUNAVFOR there are special agreements addressing, inter alia, questions of responsibility. See e.g. supra n. 45.
- 62.
Further information is available at <http://www.consilium.europa.eu/showPage.aspx?id=1518&lang=EN>.
- 63.
On Operation Ocean Shield see also Geiss and Petrig (2011), supra n. 10, at 23.
- 64.
See ILC Draft Articles on the Responsibility of International Organizations (2011), available at <http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_11_2011.pdf> (hereinafter: ILC Draft Articles).
- 65.
See ICJ, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 ICJ Reports, 174 and ICJ, Difference relating to immunity from legal process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion ICJ Reports, 1999, at para. 66.
- 66.
- 67.
See in the regard inter alia ILC Draft Articles on the Responsibility of International Organizations with Commentaries (2011), available at <http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_11_2011.pdf>, Lagrange (2008), 85; Bell (2010), 501; Dannenbaum (2010), 113.
- 68.
See A/51/389, paras 17–18, p. 6 reported in ILC Draft Articles Commentary, ibid, at 23.
- 69.
Behrami and Behrami v. France and Saramati v. France, Germany and Norway (App. No.71412/01 and 78166/01), Decision on Admissibility (Grand Chamber), 2 May 2007, para 133.
- 70.
Βλ. Ilaz Kasumaj v. Greece, Decision of 5 July 2007, Application No. 6974/05. Cf. also Slavisa Gajic v. Germany, Decision of 28 August 2007, Application No. 31446/02; Dusan Beric and Others v. Bosnia and Herzegovina, Decision of 16 October 2007, Application Nos 36357/04 et al.
- 71.
- 72.
See Al-Jedda v. United Kingdom, Judgment (Grand Chamber), 7 July 2011, http://cimskp.echr.coe.int, para 56.
- 73.
See ILC Draft Articles Commentary, supra n. 61, at 25–26.
- 74.
Per this view was also the recent judgment of the District Court of The Hague concerning the attribution of the conduct of the Dutch contingent in the United Nations Protection Force (UNPROFOR) in relation to the massacre in Srebrenica. See Judgment of 5 July 2011, http://zoeken.rechtspraak.nl, especially paras 5.8 and 5.9 and comments, ibid, at 25.
- 75.
See relevant discussion in Talmon (2005), 405, at 411.
- 76.
Guilfoyle (2010b), 141, at 154.
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Papastavridis, E. (2013). The Use of ‘Ship-Riders’ to Assert Jurisdiction Over Piracy and Armed Robbery Off Somalia: Is the Gulf of Aden the Caribbean?. In: Mejia, Jr., M., Kojima, C., Sawyer, M. (eds) Piracy at Sea. WMU Studies in Maritime Affairs, vol 2. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-39620-5_5
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