piracy exercise
TRANSCRIPT
MEMORANDUM
TO: Pr. Cheryl KrusenFROM: Peter GrenzowRE: Piracy, Security and Maritime Spaces Assignment 2DATE: 7 December 2015
INTRODUCTION
In order for the USS Rescue to have been legally justified in undertaking hot pursuit and
capturing the pirates in the territorial waters and land of Subland, it must have done so pursuant
to a prior expression of consent by Subland, including in the form of a Shiprider Agreement or
U.N. Security Council (UNSC) Resolution. If the U.S. can establish jurisdiction over the pirates,
the U.S. may prosecute them, transfer them to another country for prosecution or let them go
altogether. Finally, because Mergeland and Oneland have a duty to repress the piracy in their
territorial waters, they should conclude law enforcement agreements between them and with
third States to combat such piracy.
I. THE USS RESCUE COULD JUSTIFIABLY UNDERTAKE THE HOT PURSUIT AND CAPTURE OF THE PIRATES IN THE TERRITORY OF SUBLAND PURSUANT TO A PRIOR EXPRESSION OF CONSENT BY SUBLAND.
The USS Rescue’s dispatched vessel was justified in undertaking hot pursuit and
capturing the pirates in the territory of Subland if it did so pursuant to a prior expression of
consent by Subland. First, even though the USS Rescue and its dispatched vessel are flagged to
the U.S., it is still subject to the principles of the U.N. Convention on the Law of the Sea
(UNCLOS), as UNCLOS is widely regarded as an embodiment of customary international law.
While the record does not state where the pirate boat was when the hot pursuit started, hot
pursuit normally “must be commenced when the foreign ship or one of its boats is within the
internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing
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State.”1 However, it may also commence in the exclusive economic zone or on the continental
shelf for violations of laws applicable under UNCLOS in such zones.2 Nonetheless, the right to
hot pursuit ends “as soon as the ship pursued enters the territorial sea of its own State or of a
third State.”3 Accordingly, absent the prior consent of Subland to the pursuit and arrest of the
pirates by the USS Rescue’s dispatched vessel on Subland’s territory, the vessel did not have the
right to continue the hot pursuit of the pirates into Subland’s territorial waters.
The first basis on which the USS Rescue’s vessel could have justifiably continued the hot
pursuit of the pirates and arrested them in the territory of Subland consists in the customary
international law doctrine of consent. Specifically, the International Law Commission’s (ILC)
Draft Articles on the Responsibility of States for Internationally Wrongful Acts are considered to
be a codification of the customary international law of State responsibility.4 Accordingly, under
customary international law the “[v]alid consent by a State to the commission of a given act by
another State precludes the wrongfulness of that act in relation to the former State to the extent
that the act remains within the limits of that consent.”5 Thus, the USS Rescue’s vessel was
justified in pursuing and arresting the pirates on the coastline of Subland, if Subland gave their
prior valid consent to the commission of such actions by the vessel. This consent may have been
expressed in the form of a Shiprider Agreement or in a UNSC Resolution.
1 U.N. Convention on the Law of the Sea art. 111 para. 1, Dec. 10, 1982, 1833 U.N.T.S. 397.
2 Id. at art. 111 para. 2.
3 Id. at art. 111 para. 3.
4 Rep. of the Int’l Law Comm’n, 53d Sess., U.N. Doc. A/56/10, at 31 (2001).
5Responsibility of States for Internationally Wrongful Acts art. 20, G.A. Res. 56/83, U.N. GAOR, 56th Sess. Supp. 10, U.N. Doc. A/56/10 (2002); See also Case Concerning Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment, 2005 I.C.J. 168 (Dec. 19).
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The pursuit and capture of the pirates on the coastline of Subland by the USS Rescue’s
vessel was justified if Subland expressed its consent to such actions prior to their commission
through a Shiprider Agreement. The UNSC has invited States and regional organizations
combatting piracy off the coast of Somalia, under similar conditions as to those experienced in
Subland’s waters, to conclude Shiprider Agreements with each other—in order to facilitate the
investigation and prosecution of pirates.6 A good example of a Shiprider Agreement pertains to
the Agreement between the Government of Barbados and the United States.7 The Agreement sets
out a combined law enforcement program, wherein Barbados consents to U.S. law enforcement
vessels entering Barbados waters, with a Barbados shiprider—or law enforcement official—
embarked on the U.S. vessels, in order to enforce the laws of Barbados in its waters.8
Additionally, the U.S. consents to Barbados law enforcement vessels entering U.S. waters, with
the prior authorization of a U.S. shiprider, to enforce U.S. laws in its waters. 9 A Shiprider
Agreement such as that between the US and the Bahamas would be another possibility, while it
only allows U.S. law enforcement vessels to assist Bahamian law enforcement officials in
Bahamian waters, with prior authorization from a Bahamian shiprider—and not vice versa.10
Thus, if Subland ratified a Shiprider Agreement with the U.S. authorizing U.S. law enforcement
vessels—such as the USS Rescue’s vessel—to pursue and arrest pirates in Subland’s territory, in
the manner that the USS Rescue’s vessel did, the pursuit and arrest of the pirates was lawful. 6 U.N. Doc. S/RES/1851, ¶ 3 (Dec. 16, 2008).
7Agreement Between the Government of Barbados and the Government of the United States of America Concerning Co-Operation in suppressing Illicit Maritime Drug Trafficking (Oct. 11, 1998), available at http://www.state.gov/documents/organization/101684.pdf.
8Id. at art. 3 § 6.
9Id. at art. 3 § 7
10Agreement Between the Government of the United States of America and the Government of the Commonwealth of the Bahamas Concerning Cooperation in Maritime Law Enforcement (June 29, 2004), available at http://www.state.gov/documents/organization/108940.pdf.
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Nonetheless, while it appears from the record the pirates were nationals of Subland, if
any of them were nationals of a third State, the U.S. will have to assert the sovereignty of
Subland in order to be justified in arresting the pirates pursuant to a Shiprider Agreement.
Specifically, under the doctrine pacta tertiis nec nocent nec prosunt, a Shiprider Agreement does
not establish obligations for third States unless such states expressly accept such obligations in
writing.11 Accordingly, the U.S. could not express its jurisdiction over third State nationals solely
under a Shiprider Agreement with Subland, absent the express consent to such Agreement by the
third State concerned. However, absent such consent, the U.S. could justifiably express its
jurisdiction over third State nationals, if it asserts the sovereignty of Subland under UNCLOS in
its territorial waters and land—expressed through the USS Rescue’s vessel pursuant to a
Shiprider Agreement.12 Consequently, if Subland concluded a Shiprider Agreement with the U.S.
articulating its consent, prior to its commission, to the pursuit and arrest of the pirates on its
coastline by the USS Rescue’s dispatched vessel, such pursuit and arrest were justified.
Furthermore, if there was a prior UNSC Resolution expressing the consent of Subland to
the extension of the right of hot pursuit and arrest of pirates by the USS Rescue’s dispatched
vessel into Subland’s territory, then such hot pursuit and arrest were justified. The UNSC has the
power under Chapter VII of the U.N. Charter to authorize “such action by air, sea, or land forces
as may be necessary to maintain or restore international peace and security.”13 Recognizing the
unique situation in Somalia, the proliferation of piracy off Somalia’s coast, and Somalia’s
incapacity to repress such piracy by itself, the UNSC took action in 2008 under its Chapter VII
powers. Specifically, the UNSC authorized States cooperating with the Transitional Federal
11 Vienna Convention on the Law of Treaties art. 35, May 23, 1969, U.N. Doc. A/Conf. 39/27.
12 U.N. Convention on the Law of the Sea art. 2, Dec. 10, 1982, 1833 U.N.T.S. 397.
13U.N. Charter art. 42.
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Government of Somalia (TFG) to enter Somalia’s territorial waters and therein use “all necessary
means to repress acts of piracy and armed robbery.”14 Thus, States cooperating with the TFG
were authorized to extend their right to hot pursuit to Somalia’s territorial sea to repress piracy,
under UNCLOS committed in the high seas,15 or armed robbery committed within Somalia’s
jurisdiction.16
Later in 2008 the UNSC extended the right of hot pursuit of States and regional
organizations cooperating with the TFG “in the fight against piracy and armed robbery at sea off
the coast of Somalia . . . .” to the use of “all necessary measures that are appropriate” in the
territory of Somalia “for the purpose of suppressing acts of piracy and armed robbery at
sea . . . .”17 This extension of the right of hot pursuit to the territory of Somalia has subsequently
been renewed annually by the UNSC through the time of writing.18 However, because the
situation in Somalia is unique, the UNSC has expressed that the extension of the right of hot
pursuit in Somalia is not to be considered as establishing a rule of customary international law
and only applies to the situation in Somalia.19 Nonetheless, there are many similarities between
the situation in Somalia and the situation in Subland. Specifically, like Somalia, Subland is a
state that the international community has deemed to be ungovernable, and thus not likely to be
able to suppress piracy by itself. Also like Somalia, many of Subland’s nationals partake in acts
of piracy in the high seas off its coast—escaping to the sanctuary of Subland’s territorial waters. 14 U.N. Doc. S/RES/1816, ¶ 7 (June 2, 2008).
15U.N. Convention on the Law of the Sea art. 101(a), Dec. 10, 1982, 1833 U.N.T.S. 397.
16IMO Doc A 22/Res.922 (Jan. 22, 2002), Annex, para. 2.2.
17U.N. Doc. S/RES/1851, ¶ 6 (Dec. 16, 2008).
18See, e.g., U.N. Docs. S/RES/1897, ¶ 7 (Nov. 30, 2009); S/RES/1950, ¶ 7 (Nov. 27, 2010); S/RES/2020, ¶ 9 (Nov. 22, 2011); S/RES/2077, ¶ 12 (Nov. 22, 2012); S/RES/2184, ¶ 13 (Nov. 12, 2014); S/RES/2246, ¶ 14 (Nov. 10, 2015).
19U.N. Doc. S/RES/1838, ¶ 8 (Oct. 7, 2008).
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Accordingly, Subland offers a unique situation, like Somalia, in which it is foreseeable the
UNSC would draft resolutions extending the right to hot pursuit of States and regional
organizations cooperating with Subland to Subland’s territory. If such a UNSC Resolution
existed prior to the USS Rescue’s dispatched vessel’s pursuit and arrest of the pirates on the
coastline of Subland, and the USS Rescue’s vessel was authorized by such Resolution, the vessel
was justified in arresting the pirates on Subland’s coastline.
Additionally, as in Somalia, an international anti-pirate Task Force is active in the waters
off the coast of Subland. In Somalia the creation of such ant-pirate regional organizations was
encouraged by the UNSC to combat piracy in Somalia.20 Many regional organizations and
operations were subsequently created, under the authorization of the aforementioned UNSC
Resolutions, to carry out the mandates of the Resolutions in the waters and territory of Somalia.
Specifically, the Contact Group on Piracy off the Coast of Somalia (CGPCS), the EU Naval
Force (NAVFOR) Somalia (Operation Atalanta),21 the Combined Task Force (CTF)-151—
including Australia, Pakistan, South Korea, Turkey, the U.K. and the U.S.—and NATO
Operation Ocean Shield were all implemented pursuant to cited UNSC Resolutions to combat
piracy off the coast of Somalia and into its territory. Thus, if the creation of the international
anti-pirate Task Force—which the USS Rescue is a part of—was similarly called for, and its
arrest of pirates in the territory of Subland was authorized by a UNSC Resolution with the
consent of Subland, then the USS Rescue’s dispatched vessel was justified in pursuing and
arresting the pirates on Subland’s coastline.
20 U.N. Doc. S/RES/1851, ¶ 4 (Dec. 16, 2008).
21Created by Council Joint Action 2008/851/CFSP (Nov. 10, 2008) on a European Union Military Operation to Contribute to the Deterrence, Prevention and Repression of Acts of Piracy and Armed Robbery off the Somali Coast.
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However, even if there was prior consent by Subland, articulated in the form of a
Shiprider Agreement, UNSC Resolution or other agreement, to the USS Rescue’s dispatched
vessel’s pursuit and arrest of the pirates on its coastline, the arrest was only justified if the
dispatched vessel was clearly identifiable as a government vessel and there were adequate
grounds for the seizure. Specifically, under UNCLOS an arrest of pirates or seizure of their ship
“may be carried out only by warships or military aircraft, or other ships or aircraft clearly
marked and identifiable as being on government service and authorized to that effect.”22
Additionally, a warship, or the boat it sends “under the command of an officer”23 is only justified
in boarding a ship if there is “reasonable ground for suspecting that . . .[the] ship is engaged in
piracy . . . .”24 Without such adequate grounds, the State boarding the suspect ship is liable to the
suspect ship’s flag State “for any loss or damage caused by the seizure.”25 Thus, the USS
Rescue’s dispatched vessel must have been clearly marked as a government vessel authorized to
make arrests in order to have been justified in pursuing and arresting the pirates. Additionally,
the USS Rescue must have had reasonable grounds for believing the speedboat it pursued was
engaged in piracy—which it likely did, as the pirates had boarded the crew of the commercial
vessel flagged to Florida on their vessel. Nonetheless, if the USS Rescue did not have adequate
grounds for believing the ship its dispatched vessel pursued was engaged in piracy, the U.S. is
liable for damages caused by the seizure to the pirate vessels’ flag State.
22 U.N. Convention on the Law of the Sea art. 107, Dec. 10, 1982, 1833 U.N.T.S. 397.
23Id. at art. 110 para. 2.
24Id. at art. 110 para. 1.
25Id. at art. 106.
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II. THE PIRATES ARRESTED AND TAKEN INTO THE CUSTODY OF THE USS RESCUE MAY BE PROSECUTED BY THE U.S., TRANSFERRED TO ANOTHER STATE FOR PROSECUTION, OR SET FREE.
A. If the U.S. Establishes Jurisdiction over the Pirates, the U.S. May Prosecute Them or Transfer Them to Another State for Prosecution.
If the U.S. establishes jurisdiction over the pirates, the USS Rescue may ship the pirates
back to the U.S. for prosecution, or transfer them to another State. In either situation however, in
order to prosecute the pirates, the prosecuting State will have to determine the nationality of the
pirates’ speedboat. Specifically, while it appears from the record that the pirates are nationals of
Subland, as they “head[ed] back to their territorial waters and land [in Subland],” it is unclear
what nationality their speedboat was. First, the pirates’ speedboat has “the nationality of the State
whose flag [it is] entitled to fly. There must exist a genuine link between the State and the
ship.”26 While it appears from the face of UNCLOS that a genuine link between the speedboat
and its flag State is thus required for the pirates to claim the nationality of such State for the
speedboat, the International Tribunal for the Law of the Sea (ITLOS) decided in M/V Saiga (No.
2) (St. Vincent v. Guinea) that such a requirement was not included in UNCLOS “to establish a
criteria by reference to which the validity of the registration of ships in a flag State may be
challenged . . . .”27 Nonetheless, if the pirates’ speedboat sailed “under the flags of two or more
States, using them according to convenience” the speedboat “may be assimilated to a ship
without nationality.”28 Accordingly, the pirates’ speedboat will have the nationality of the State it
is registered to, or may have no nationality at all—if it flew under more than one flag according
to convenience.26 U.N. Convention on the Law of the Sea art. 91 para. 1, Dec. 10, 1982, 1833 U.N.T.S. 397.
27 M/V Saiga (No. 2) (St. Vincent v. Guinea), Case No. 2, Judgement of Jul. 1, 1999, 2 ITLOS Rep. 4, ¶ 83.
28 U.N. Convention on the Law of the Sea art. 92 para. 2, Dec. 10, 1982, 1833 U.N.T.S. 397.
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Furthermore, the U.S. may claim jurisdiction to prosecute the pirates under UNCLOS.
Specifically, UNCLOS grants the right to prosecute pirates to the “court of the State which
carried out the seizure . . . .” of such pirates.29 The U.S. 4th Circuit has upheld this right, and the
definition of piracy under UNCLOS, in the recent case of United States v. Said, citing the crime
found under 18 U.S.C. § 1651 (2015) which states “[w]hoever, on the high seas, commits the
crime of piracy as defined by the law of nations, and is afterwards brought into or found in the
United States, shall be imprisoned for life.”30 Accordingly, because the U.S. was the State that
seized the pirates, its courts “may decide upon the penalties to be imposed . . . .” on the pirates
arrested on the coastline of Subland.31
Additionally, the U.S. or another State may claim jurisdiction to prosecute the pirates
arrested in Subland under the theory of universal jurisdiction. First, historically pirates have been
regarded as “the enemy of all mankind—hostis humani generis—whom any nation may in the
interest of all capture and punish.”32 The U.S. 4th Circuit has also recognized pirates “as hostis
humani generis—enemies of all mankind—because they attack vessels on the high seas, and thus
outside of any nation’s territorial jurisdiction, with devastating effect to global commerce and
navigation.”33 Moreover, UNCLOS codifies this right to universal jurisdiction over pirates by
providing “every State may seize a pirate ship . . .and arrest the persons and seize the property on
board.”34 Accordingly, because the pirates attacked the commercial vessel on the high seas, the
29 Id. at art. 105.
30 18 U.S.C. § 1651 (2015); United States v. Said, 798 F.3d 182 (4th Cir. 2015).
31U.N. Convention on the Law of the Sea art. 105, Dec. 10, 1982, 1833 U.N.T.S. 397.
32The Case of the S.S. “Lotus”, PCIJ, Ser. A, No. 10, ¶ 249 (Sep. 7, 1927).
33(internal quotations omitted) United States v. Said, 798 F.3d 182, 199 (4th Cir. 2015).
34 U.N. Convention on the Law of the Sea art. 105, Dec. 10, 1982, 1833 U.N.T.S. 397.
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U.S. or another State could claim jurisdiction to prosecute the pirates under UNCLOS or the
customary international law right to universal jurisdiction over pirates. However, the U.S. likely
will not claim jurisdiction under a universal jurisdiction theory, as it has many other ways to
claim jurisdiction, and only 1/42 countries had claimed jurisdiction over pirates on a universal
jurisdiction theory as of March 26, 2012.35
The U.S. may also claim jurisdiction to prosecute the pirates under the Convention for the
Suppression of Unlawful Acts against the Safety of Maritime Navigation’s (SUA Convention)
codification of the passive personality principle—or the principle that a State can prosecute
persons who harm its nationals. The SUA Convention, which is codified at 18 U.S.C. 2280
(2015), gives the U.S. jurisdiction over persons who “unlawfully and intentionally . . .seize[] or
exercise[] control over a ship by force or threat thereof . . .perform[] an act of violence against a
person on board a ship if that act is likely to endanger the safe navigation of that ship . . . .” or
attempts or conspires to commit such acts;36 if such acts are committed “against or on board a
vessel of the United States or a vessel subject to the jurisdiction of the United States . . . .”37 or
“during the commission of such activity, a national of the United States is seized, threatened,
injured or killed . . . .”38 The United States also has jurisdiction under the SUA Convention if the
aforementioned acts were “committed in an attempt to compel the United States to do or abstain
from doing any act.”39 Accordingly, the U.S. could first claim jurisdiction to prosecute the pirates
35U.N. Doc. S/2012/177 (Mar. 26, 2012).
3618 U.S.C. § 2280(a)(1) (2015).
3718 U.S.C. § 2280(b)(1)(A)(i) (2015).
3818 U.S.C. § 2280 (b)(1)(B) (2015); see also Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation art. 6 para. 2(b), Mar. 1, 1992, 1678 U.N.T.S. 171.
3918 U.S.C. § 2280(b)(3) (2015).
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under the SUA Convention as they attacked a commercial vessel which was flagged to Florida,
United States. Alternatively, the U.S. could claim jurisdiction over the pirates if the crew which
the pirates seized were nationals of the U.S. Finally, the U.S. could claim jurisdiction over the
pirates if the pirates captured the crew of the commercial vessel with the intent to compel the
United States to do/abstain from any act.
Similarly, the U.S. could claim jurisdiction to prosecute the pirates under the
International Convention against the Taking of Hostages (Hostages Convention). First, the
Hostages Convention obliges State Parties, including the U.S., to establish their jurisdiction for
all enumerated offenses committed “on board a ship or aircraft registered in that State . . . .” or
against a “hostage who is a national of that State . . . .”40 The U.S. has heeded this obligation in
the codification of 18 U.S.C. § 1203 (2015) which provides the U.S. jurisdiction to prosecute
persons who “whether inside or outside the United States, seize[] or detain[] and threaten[] to
kill, or to continue to detain another person in order to compel a third person or a governmental
organization to do or abstain from doing any act . . . .”41 when either “the offender or the person
seized or detained is a national of the United States . . . .” or “the governmental organization
sought to be compelled is the Government of the United States.”42 Accordingly, if the crew the
pirates seized were nationals of the United States, and the pirates threatened to continue to detain
or kill them in order to compel a third person or government to do/abstain from doing any act,
the U.S. could prosecute the pirates. Alternatively, if the pirates seized the crew, and threatened
to kill or to continue to detain them, to compel the United States to do/abstain from doing
something, the U.S. could prosecute the pirates. 40 International Convention against the Taking of Hostages, art. 5 para. 1, June 3, 1983, 213 U.N.T.S. 222.
41 18 U.S.C. § 1203(a) (2015).
4218 U.S.C. § 1203(b)(1) (2015).
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The USS Rescue could also transfer the pirates to a third state for prosecution pursuant to
a Memorandum of Understanding. In the case of Somalia, similar to that of Subland, the UNSC
requested States and regional organizations “to consider . . .measures aimed at facilitating the
transfer of suspected pirates for trial . . .including through relevant transfer agreements . . . .”43
Pursuant to this request the CGPCS developed a legal toolbox for the transfer of pirates, and the
chairman of its Working Group 2 was consulted for the Report of the Secretary-General on
Specialized Anti-Piracy Courts in Somalia and Other States in the Region—detailing “procedural
arrangements required for transfer of apprehended pirates and related evidence . . . .”44
Additionally, the U.N. Office of Drugs and Crime (UNODC) drafted guidance for requesting the
transfer of Somalian piracy suspects to Kenya.45 Further, Memoranda of Understanding detailing
the transfer of pirates arrested by the EU, U.S., and British Navies to Kenya for prosecution were
concluded between Kenya and the EU,46 Kenya and the U.S., and Kenya and the U.K.47 The
transfer of Somalian pirates to Kenya is attractive to the aforementioned States and regional
organizations, as it allows them to avoid the monetary and other costs associated with shipping
the pirates to their respective countries for prosecution, and the risk of such pirates gaining
asylum in their respective States.48 Moreover, the Kenyan Penal Code Article 20(1) allows for
43 U.N. Doc. S/RES/1976, ¶ 20 (Apr. 11, 2011).
44Report of the Secretary-General on specialized anti-piracy courts in Somalia and other States in the region, S/2012/50, ¶ 1 (Jan. 20, 2012).
45James Kraska, Contemporary Maritime Piracy: International Law, Strategy, and Diplomacy at Sea, at 171 (1st Ed., Praeger Security International 2011).
46Exchange of Letters between the European Union and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy and detained by the European Union-led naval force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya and for their treatment after such transfer, OJ L79/49 (Mar. 25, 2009). 47 James Kraska, Contemporary Maritime Piracy: International Law, Strategy, and Diplomacy at Sea, at 179 (1st Ed., Praeger Security International 2011).
48To be elaborated upon below.
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the prosecution of persons committing and complicit in piracy, Kenya uses the UNCLOS
definition of piracy, and has recognized jurisdiction over pirates transferred from other States to
Kenya.49 Accordingly, the USS Rescue may choose to transfer the pirates to Kenya or another
State with whom the U.S. or the Task Force has a Memorandum of Understanding detailing the
transfer of pirates.
Finally, the U.S. may transfer the pirates to another State pursuant to the SUA
Convention. Specifically, the SUA Convention allows “[t]he master of a ship of a State Party . . .
[to] deliver to the authorities of any other State Party . . .any person who he has reasonable
grounds to believe has committed one of the offences set forth in article 3.”50 Accordingly, if the
master of the USS Rescue has reasonable grounds to believe the pirates have violated article 3 of
the SUA Convention,51 he/she may transfer the pirates to another State Party to the SUA
Convention for prosecution.
B. The U.S. or Another State Will Have to Prove the Elements of Piracy, Armed Robbery, or Related Offenses against the Pirates.
In order to convict the pirates, the U.S., or the State to whom the USS Rescue transfers
the pirates, will have to prove the elements of piracy, armed robbery, or related offenses under
UNCLOS, customary international law, the SUA Convention or the Hostages Convention. First,
the U.S. adopts the definition of piracy under UNCLOS in 18 U.S.C. § 1651 (2015), which has
been upheld recently by the U.S. 4th52 and 9th53 Circuits. Thus, in order to prove the actus reus of
49 Judgment of the High Court of Kenya, Crim. App. 198-207 (2008), Hassan M. Ahmed v. Republic, at 12.
50Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation art. 8 para. 1, Mar. 1, 1992, 1678 U.N.T.S. 171.
51 See Supra at Footnote 36.
52 United States v. Said, 798 F.3d 182 (4th Cir. 2015).
53 Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 725 F.3d 940, 943 (9th Cir. 2013).
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piracy, the U.S. will first have to prove the pirates committed “any illegal acts of violence or
detention, or any act of depredation . . . .”54 The U.S. 9th Circuit has found that “[r]amming
ships, fouling propellers and hurling fiery and acid-filled projectiles easily qualify as violent
activities . . . .”55 In addition, the High Court of Kenya has found sufficient acts of violence under
cited UNCLOS definition when pirates roughed-up the crew of the victim ship and took control
of the ship.56 Accordingly, the Subland pirates’ actions capturing the vessel and crew of the
commercial vessel flagged to Florida, and boarding the crew on their speedboat, might be found
sufficient to satisfy illegal acts of violence or detention under the UNCLOS piracy definition.
In order to prove the actus reus of piracy, the U.S. or another State will also have to
prove that the acts of violence or detention were “committed for private ends by the crew or the
passengers of a private ship . . . .”57 The U.S. 9th Circuit has found that private ends under
UNCLOS “include those pursued on personal, moral or philosophical grounds . . . .” or otherwise
not on behalf of any State.58 Further, under UNCLOS warships are otherwise immune from
prosecution for piracy unless the warship or government ship’s “crew has mutinied and taken
control of the ship . . . .”59 Consequently, the U.S. will be able to prove piracy under UNCLOS if
the pirates detained the crew of the commercial vessel for their own personal grounds and either
the pirates’ speedboat was not a government ship, or if it was the pirates mutinied and took
control of it.
54U.N. Convention on the Law of the Sea art. 101(a), Dec. 10, 1982, 1833 U.N.T.S. 397.
55 Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 725 F.3d 940, 944 (9th Cir. 2013).
56Judgment of the High Court of Kenya, Crim. App. 198-207 (2008) Hassan M. Ahmed v. Republic, at 12.
57U.N. Convention on the Law of the Sea art. 101(a), Dec. 10, 1982, 1833 U.N.T.S. 397.
58 Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 725 F.3d 940, 944 (9th Cir. 2013).
59 U.N. Convention on the Law of the Sea art. 102, Dec. 10, 1982, 1833 U.N.T.S. 397.
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In addition, in order to prove the actus reus of piracy, the U.S. or another State will have
to show that the pirates directed their illegal acts of violence or detention “on the high seas,
against another ship . . .or against persons or property on board such ship . . .[or] against a ship . .
.persons or property in a place outside the jurisdiction of any State . . . .”60 Moreover, in so far as
the prosecution of the pirates is not incompatible with the rules of the exclusive economic zone
under UNCLOS, the U.S. or another State could prove the actus reus of piracy if the pirates’
illegal acts were committed in the exclusive economic zone of Subland.61 However, this may not
be necessary, as the record states that the commercial vessel was attacked and its vessel and crew
captured while they were on the high seas off Subland.
The U.S. or another State will also have to either prove the mens rea of intent to convict
the pirates under UNCLOS, or alternatively their complicity in the piratical acts. Specifically,
UNCLOS defines piracy as the “voluntary participation in the operation of a ship . . .with
knowledge of facts making it a pirate ship . . . .”62 UNCLOS also states, a “ship . . .is considered
a pirate ship . . .if it is intended by the persons in dominant control to be used for the purpose of
committing one of the acts referred to in article 101.”63 Additionally, for the U.S. or another State
to prove complicity under UNCLOS, they must prove the pirates committed “any act of inciting
or of intentionally facilitating an act . . . .” cited above as piracy under UNCLOS. 64 Thus, the
U.S. or another State will have to prove the pirates either intended the illegal acts of violence or
60Id. at art. 101(a).
61 Id. at art. 58 para. 2.
62 (emphasis added) U.N. Convention on the Law of the Sea art. 101(b), Dec. 10, 1982, 1833 U.N.T.S. 397.
63 (emphasis added) Id. at art. 103.
64 Id. at art. 101(c).
15
detention they committed against the crew of the commercial vessel, or that they incited or
intentionally facilitated such acts, in order to convict them of piracy.
The U.S. or another State could also charge the pirates with armed robbery, or complicity
in armed robbery, as they took the detained crew through the territorial waters of Subland. The
crime of armed robbery is defined, similar to piracy, as “any illegal act of violence or
detention . . .or threat thereof . . .committed for private ends and directed against a ship or against
persons or property on board such a ship . . . .” inside the internal waters, archipelagic waters or
territorial sea of a State.65 Moreover, complicity in armed robbery is defined as “any act of
inciting or of intentionally facilitating an act . . . .” of armed robbery.66 Accordingly, because the
pirates detained the crew inside the territorial sea of Subland, the U.S. or another State may be
able to convict the pirates for armed robbery, or complicity in armed robbery, if they cannot
prove piracy.
Finally, the U.S. or another State Party to the SUA Convention or the Hostages
Convention may be able to convict the pirates for crimes committed under either or both
Conventions. In the U.S., under the SUA Convention codified at 18 U.S.C. § 2280 (2015), the
U.S. could convict the pirates if it proves the pirates “intentionally . . . seize[d] or exercise[d]
control over [the commercial vessel] by force or threat thereof or any other form of
intimidation;” or alternatively “intentionally . . .perform[ed] an act of violence against a person
on board a ship if that act is likely to endanger the safe navigation of that ship . . . .” 67
Alternatively, the U.S. could convict the pirates under the Hostages Convention codified at 18
U.S.C. § 1203 (2015) if is shows the pirates “seize[d] or detain[ed] or threaten[ed] to kill, or to 65 IMO Doc. A 26/Res. 1025, Annex para. 2.2 (Jan. 18, 2010).
66IMO Doc. A 26/Res. 1025, Annex para. 2.2 (Jan. 18, 2010).
6718 U.S.C. § 2280(a)(1) (2015).
16
continue to detain . . . .” the crew of the commercial vessel “in order to compel a third person or
a governmental organization to do or abstain from doing any act as an explicit or implicit
condition for the release of the person detained. . . .”—if the crew were nationals of the U.S. or
the pirates sought to compel the U.S. Government.68 Accordingly there are many avenues
through which the U.S., or a State to whom the USS Rescue transfers the pirates, could prosecute
and convict them for attacking the commercial vessel and detaining its crew.
C. Even If the U.S. or another State Could Successfully Prosecute the Pirates, They May Set the Pirates Free Nonetheless.
Even though there are many avenues through which the U.S. or another State could
prosecute and convict the pirates, they may set the pirates free for many reasons. First, the U.S.
or another State may set the pirates free if it finds that the U.S. officials from the USS Rescue
violated any restrictions on the use of force in arresting or detaining the pirates. Many Shiprider
Agreements explicitly restrict the use of force in law enforcement actions taken by the States
concerned. For example, in the Agreement between the U.S. and the Bahamas, force may only be
used if there are no other feasible means to resolve the situation, the force is proportional to the
objective sought, and the force used is the minimum reasonably necessary under the
circumstances.69 Similarly, the ITLOS in M/V Saiga (No. 2) (St. Vincent v. Guinea) found that, in
law enforcement operations at sea, “the use of force must be avoided as far as possible and,
where force is unavoidable, it must not go beyond what is reasonable and necessary in the 6818 U.S.C. § 1203(a) (2015). 69 Agreement Between the Government of the United States of America and the Government of the Commonwealth of the Bahamas Concerning Cooperation in Maritime Law Enforcement, art. 16 (June 29, 2004), available at http://www.state.gov/documents/organization/108940.pdf.
17
circumstances.”70 Furthermore, the 2005 Protocol to the SUA Convention provides that, in law
enforcement actions at sea “[a]ny use of force . . .shall not exceed the minimum degree of force
which is necessary and reasonable under the circumstances.”71 Thus, if the U.S. or another
prosecuting State finds the U.S. officials from the USS Rescue used more than the minimum
force reasonably necessary under the circumstances to arrest the pirates, they may set the pirates
free.
Alternatively, the U.S. or another State may set the pirates free because of human rights
concerns. First, the UNSC reiterated the application of international human rights law to the
prosecution and detention of pirates in the situation of Somalia, in 2012 calling on States
involved to cooperate to determine jurisdiction over and prosecute pirates “consistent with
applicable international law including international human rights law to ensure that all pirates
handed over to judicial authorities are subject to judicial process . . . .”72 The International Court
of Justice (ICJ) has also recognized the extra-territorial application of international human rights
law in situations where a State exercises its jurisdiction outside of its territory.73 Further, under
UNCLOS such situations where a State exercises its jurisdiction outside of its territory include
onboard ships sailing under its flag.74 The European Court of Human Rights (ECtHR) in
Bankovic v. Belgium explicitly recognized this “extra-territorial exercise of jurisdiction by a
State [in] cases involving the activities . . .on board craft and vessels registered in, or flying the
70M/V Saiga (No. 2) (St. Vincent v. Guinea), Case No. 2, Judgement of Jul. 1, 1999, para. 155.
71IMO Doc. LEG/CONF.15/21, Protocol of 2005 to the Convention for the Suppression of Unlawful Acts of Violence against the Safety of Maritime Navigation art. 8bis para. 9, Jul. 28, 2010. 72 U.N. Doc. S/RES/2077, ¶ 17 (Nov. 22, 2012).
73See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 180 (Jul. 9).
74 U.N. Convention on the Law of the Sea art. 92 para. 1, Dec. 10, 1982, 1833 U.N.T.S. 397.
18
flag of, [a] State.”75 Accordingly, the provisions of international human rights law likely apply to
the USS Rescue’s detention of the pirates.
Because international human rights law likely applies to the detention of the pirates by
the USS Rescue and their subsequent prosecution, the U.S. or another State might set the pirates
free if they believe or determine the pirates’ human rights have been or might be violated.
Specifically, under international human rights law persons arrested by government officials must
be promptly informed of the charges against them at the time of arrest and “brought promptly
before a judge or other officer authorized by law to exercise judicial power . . . .” 76 In the case of
persons arrested at sea, the ECtHR in Medvedyev v. France found that 13 days is prompt enough
to satisfy the similar requirement found under article 5 § 3 of the European Convention on
Human Rights;77 however, taking 40 days to bring the suspects before a judge has been found to
breach the obligation to bring them promptly.78 Additionally, under international human rights
law the pirates have many other rights, including the right to a fair trial,79 and the right not to be
subject to “torture or to cruel, inhuman or degrading treatment or punishment.”80 Consequently,
the U.S. or another State may set the pirates free if it determines the USS Rescue did not bring
them to a judge promptly, if it believes the crew of the USS Rescue may have subjected the
pirates to torture or cruel, inhuman or degrading treatment, that the pirates will not receive a fair
75Bankovic v. Belgium et al., App. No. 52207/99, Grand Chamber Decision, Eur. Ct. H.R., ¶ 73 (Dec. 12, 2001); see also Case of Medvedyev and Others v. France, 3394/03 Eur. Ct. H.R., ¶ 67 (2010).76 International Covenant on Civil and Political Rights art. 9, Mar. 23, 1976, 999 U.N.T.S. 171.
77Case of Medvedyev and Others v. France, 3394/03 Eur. Ct. H.R., ¶ 128-134 (2010).
78 The “Cygnus” Case (Somali Pirates), 145 ILR 491, 499-500 (2010).
79 International Covenant on Civil and Political Rights art. 14, Mar. 23, 1976, 999 U.N.T.S. 171.
80 Id. at art. 7.
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trial, or that any of the pirates’ other human rights may have been or might be violated in the
future.
The U.S. or another State might also set the pirates free, because it doesn’t want to risk
undertaking the obligation to grant the pirates asylum in its State. Under international human
rights law the obligation of non-refoulement includes the obligation that “[n]o State . . .shall
expel, return (‘refouler’) or extradite a person to another State where there are substantial
grounds for believing that he would be in danger of being subjected to torture.”81 Accordingly, if
the U.S. or another State prosecutes the pirates, it runs the risk of the pirates gaining asylum in
their State, and not being able to return the pirates to Subland—where there may be grounds for
believing the pirates would be subjected to torture. Consequently, the U.S. or another State may
set the pirates free, instead of running this risk.
Finally, the USS Rescue may set the pirates free, as their transfer to the U.S. or another
State may require a large diversion in the USS Rescue’s course, leaving other vessels off the
coast of Subland relying on the USS Rescue’s protection unprotected. This served as a legitimate
concern for many States in the situation of the capture of pirates off the coast of Somalia.82
Additionally, the aforementioned concerns of States instigated a State practice of setting
Somalian pirates free, recognized by the UNSC in 2012 when it reiterated “its concern over
persons suspected of piracy having to be released without facing justice . . . .” in Somalia.83 Thus,
even though there are many avenues through which the U.S. or another State might prosecute the
81U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3 para. 1, June 26, 1987, 1465 U.N.T.S. 85. 82 Evans, Malcolm D. and Sofia Galani, The Law and Practice of Piracy at Sea: European and International Perspectives, chapter 15 (Hart Publishing 2014).
83U.N. Doc. S/RES/2077, preambular para. 5 (Nov. 22, 2012).
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pirates for their attack and capture of the commercial vessel’s crew, the pirates might
nevertheless be set free.
III. MERGELAND AND ONELAND SHOULD USE LAW ENFORCEMENT AGREEMENTS TO COMBAT PIRACY IN THEIR TERRITORIAL WATERS AND STRAIGHTS.
While it appears Mergeland and Oneland do not want to allow the Task Force to enter
their territorial waters to combat piracy, they should conclude alternative law enforcement
agreements to combat the piracy in their territorial seas—especially considering their duty to
combat piracy in their territorial waters. Specifically, States have a duty under many different
international law instruments to suppress acts of piracy and related acts perpetrated within their
jurisdictions. First, under UNCLOS States have a duty to “cooperate to the fullest possible extent
in the repression of piracy . . . .”84 Additionally, onboard ships flying a State’s flag, the flag State
has a duty to prosecute pirates, as a flag State is obligated to “exercise its jurisdiction and control
in administrative, technical and social matters over ships flying its flag.”85 Further, if another
State believes “proper jurisdiction and control with respect to a ship have not been
exercised . . . .” with regard to a flag State’s ship, and reports this belief to the flag State, the flag
State has a duty to “investigate the matter and, if appropriate, take any action necessary to
remedy the situation.”86
In addition, the UNSC has called “upon all states to criminalize piracy under their
domestic law and to favourably consider the prosecution of suspected, and imprisonment of
84U.N. Convention on the Law of the Sea art. 100, Dec. 10, 1982, 1833 U.N.T.S. 397.
85 U.N. Convention on the Law of the Sea art. 94 para. 1, Dec. 10, 1982, 1833 U.N.T.S. 397; See also James Kraska, Contemporary Maritime Piracy: International Law, Strategy, and Diplomacy at Sea, at 168 (1st Ed., Praeger Security International 2011).
86 U.N. Convention on the Law of the Sea art. 94 para. 6, Dec. 10, 1982, 1833 U.N.T.S. 397.
21
convicted, pirates . . . .”87 The International Maritime Organization (IMO) has also urged
governments to “take all necessary legislative, judicial and law-enforcement action . . . .” to
facilitate the successful prosecution of pirates.88 Moreover, under both the Hostages Convention
and the SUA Convention, State Parties have a duty to enact legislation giving them jurisdiction
over persons who violate the offenses enumerated by each Convention,89 and have the duty to
either extradite the alleged offenders or prosecute them.90 Finally, under international human
rights law States have the duty to protect the lives of persons in their territorial seas and on board
their flagged vessels, as they have the “positive duty to take appropriate steps to safeguard the
lives of individuals within [their] jurisdiction[s].”91 Accordingly, while State practice in
Somalia92 and the phrase “every State may seize a pirate ship . . . .”93 in UNCLOS imply that the
duty to arrest and prosecute pirates on the High Seas is weak or nonexistent, the duty to arrest,
prosecute or extradite pirates within a State’s territorial seas stems from multiple sources of
international law. Thus, Mergeland and Oneland should conclude law enforcement agreements to
combat the piracy in their territorial seas.
87U.N. Doc. S/RES/2077, ¶ 18 (Nov. 22, 2012).
88IMO Assembly Resolution A 1044(27), ¶ 8(n) (Dec. 20, 2011).
89International Convention against the Taking of Hostages art. 5, June 3, 1983, 213 U.N.T.S. 222; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation art. 5, Mar. 1, 1992, 1678 U.N.T.S. 171.
90 International Convention against the Taking of Hostages art. 8 para. 1, June 3, 1983, 213 U.N.T.S. 222; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation art. 10 para. 1, Mar. 1, 1992, 1678 U.N.T.S. 171.
91Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Ben Emmerson, A/HRC/20/14, ¶ 18 (2012); see also International Covenant on Civil and Political Rights art. 6 para. 1, Mar. 23, 1976, 999 U.N.T.S. 171.
92See, e.g., U.N. Doc. S/RES/2077, preambular para. 5 (Nov. 22, 2012).
93 U.N. Convention on the Law of the Sea art. 105, Dec. 10, 1982, 1833 U.N.T.S. 397.
22
As it appears from the record that Mergeland and Oneland are resistant to the presence of
the Task Force in their territorial waters, and that, unlike Subland, they have not been deemed by
the international community to be ungovernable, they will likely not agree to any form of UNSC
Resolution granting third States or international organizations access to their territorial waters to
combat piracy—as in the aforementioned case of Somalia. Nonetheless, Mergeland and Oneland
could choose from an array of law enforcement measures that would allow them to maintain
their sovereignty over their territorial waters. First, Mergeland and Oneland should coordinate
their navies—as the Malaysian Maritime Enforcement Agency (MMEA), Republic of Singapore
Navy (RSN), and Indonesian Navy (TNI-AL) have done—to combat the piracy in their territorial
waters. Additionally, Mergeland and Oneland could establish within their navies a joint rapid
response deployment team, as Malaysia and Indonesia have done,94 to ensure a quick response to
and prevention of piratical acts.
Mergeland and Oneland should alternatively draft an agreement with the flag States of
the international carriers which are being attacked in their straights, such as the Regional
Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (2004)
(ReCAAP).95 ReCAAP sets up the Information Sharing Center (ISC), which Contracting Parties
have a duty to notify of the relevant information they receive from their flagged vessels
pertaining to piracy and armed robbery.96 Additionally, under ReCAAP a “Contracting Party
may request any other Contracting Party, through the Center or directly, to take appropriate
94Singapore Straits Piracy Attempt Foiled, The Maritime Executive (Sep. 2, 2015), available at http://www.maritime-executive.com/article/singapore-straits-piracy-attempt-foiled.
95 Concluded between the 20 Contracting Parties including: Australia, Bangladesh, Brunei, Cambodia, China, Denmark, India, Japan, Korea, Laos, Myanmar, Netherlands, Norway, Philippines, Singapore, Sri Lanka, Thailand, U.K., U.S., and Vietnam.
96Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, art. 9 (2004).
23
measures, including arrest or seizure, against . . . .” pirates or persons who have committed
armed robbery against ships.97 Further, the “Contracting Party, which has received the
request . . . .” has the duty to “make every effort to take effective and practical measures for
implementing such request.”98 ReCAAP also provides extradition99 as well as capacity-building
measures to enhance the abilities of the Contracting Parties to combat piracy and armed robbery
in their waters.100 Accordingly, Mergeland and Oneland should draft an agreement like ReCAAP
with the flag States of the ships which are attacked in their territorial waters, as: 1) it would help
build Mergeland and Oneland’s capacity to combat the piracy in their waters by facilitating
greater cooperation with the other States involved, 2) it would encourage Mergeland and
Onelands’ navies to receive technical and military training from other States whose navies may
be more experienced in combatting piracy, 3) it would increase communication between the
carriers, their flag States, Mergeland and Oneland, allowing Mergeland and Oneland to respond
faster to reports of pirate attacks, and 4) it would allow Mergeland and Oneland to maintain
complete sovereignty over their territorial seas by not permitting third State navies to enter them
to combat piracy.
Another law enforcement mechanism Mergeland and Oneland should alternatively utilize
to combat the piracy in their territorial waters pertains to a Shiprider Agreement, preferably in
the form of the Agreement between Barbados and the U.S. Specifically, the Barbados-U.S.
Shiprider Agreement gives Barbados shipriders—or Barbados law enforcement officials who
embark on U.S. law enforcement vessels—the authority to authorize U.S. law enforcement
97Id. at art. 10.
98Id. at art. 11.
99 Id. at art. 12.
100Id. at art. 14.
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vessels to enter Barbados territorial waters, and enforce the laws of Barbados in such waters. 101
The Barbados-U.S. Shiprider Agreement also gives U.S. shipriders—or U.S. law enforcement
officials who embark on Barbados law enforcement vessels—the authority to authorize Barbados
law enforcement vessels to enter U.S. territorial waters, and enforce U.S. laws in such waters.102
Further, all law enforcement activities conducted pursuant to the Barbados-U.S. Agreement are
done so under the control of the law enforcement authorities of the government whose territorial
waters the activities are conducted in.103 This type of agreement is preferable, and may be
attractive to both Mergeland and Oneland, as it is a fully reciprocal agreement. It also may be
attractive to Mergeland and Oneland, as it would allow the States to utilize the law enforcement
resources of each other and third States to combat the piracy in their territorial waters, while
maintaining sovereignty and control over law enforcement activities in their waters. Thus,
Shiprider Agreements offer another method through which Mergeland and Oneland should
alternatively work to combat piracy in their territorial waters and straights.
Moreover, Mergeland and Oneland should utilize the resources of the International
Maritime Bureau (IMB) of the International Chamber of Commerce (ICC), the IMO, and the
International Chamber of Shipping (ICS) to augment the repression of piracy in their territorial
waters. First, Mergeland and Oneland should encourage the shipmasters of the carriers travelling
through their straights to report any suspected or actually pirate attacks that occur in the straights
101 Agreement Between the Government of Barbados and the Government of the United States of America Concerning Co-Operation in suppressing Illicit Maritime Drug Trafficking, art. 3 § 6 (Oct. 11, 1998), available at http://www.state.gov/documents/organization/101684.pdf.
102 Id. at art. 3 § 7.
103Agreement Between the Government of Barbados and the Government of the United States of America Concerning Co-Operation in suppressing Illicit Maritime Drug Trafficking, art. 3 § 8 (Oct. 11, 1998), available at http://www.state.gov/documents/organization/101684.pdf.
25
to the IMB’s Piracy Reporting Centre (PRC).104 Reporting attacks to the PRC is helpful, as it
allows the PRC to report trends in attacks and where they occur, so shipmasters may avoid high-
risk areas. It is also essential to report attacks to the PRC, as the PRC is able to relay the
information it receives from shipmasters to local law enforcement agencies, to decrease response
time; the PRC can also notify vessels in the region of the attack, to put them on alert to the
danger. Further, recognizing the importance of the PRC, four of the States with the most ships
flying their flags—Liberia, the Marshall Islands, Panama and the Bahamas—signed the
Declaration Condemning Acts of Violence Against Seafarers (Aug. 3, 2011), wherein the States
affirmed their commitment to relay the reports of piracy or armed robbery they receive from
their flagged vessels to the PRC.105 Accordingly, Mergeland and Oneland should encourage an
increase in communication with the PRC, in order to augment the repression of piracy and armed
robbery within their territorial waters.
Mergeland and Oneland should also augment the repression of piracy in their waters by
implementing the International Ship and Port Facility Security (ISPS) Code.106 The ISPS Code
sets out responsibilities for States, shipping companies and port facility personnel to take
measures to prevent security incidents in port facilities. Thus, its implementation by Mergeland
and Oneland would contribute to reducing the incidence of armed robbery in their respective
ports.
104 International Chamber Commerce, International Maritime Bureau Piracy Reporting Centre Website, https://icc-ccs.org/piracy-reporting-centre (last visited Dec. 6, 2015).
105 Declaration Condemning Acts of Violence against Seafarers (Aug. 3, 2011), available at http://www.safety4sea.com/images/media/pdf/The%20Washington%20Declaration.pdf.
106 International Ship and Port Facility Security (ISPS) Code (Jul. 1, 2004).
26
Additionally, Mergeland and Oneland should follow the request of the IMO107 and
implement the IMO’s Code of Practice for the Investigation of Crimes of Piracy and Armed
Robbery against Ships (Code of Practice).108 The implementation of the IMO’s Code of Practice
would augment Mergeland and Oneland’s apprehension and prosecution of suspected
perpetrators of piracy or armed robbery, as the Code of Practice provides extensive guidance on
topics including: the training of investigators, investigative strategy, responding to a report of an
attack—including the preservation of life, prevention of the escape of offenders, warning of
other ships in the vicinity, and protection of the crime scene—and conducting successful
investigations.109
Finally, Mergeland and Oneland should encourage the carriers who travel through their
straights to implement the International Chamber of Shipping’s Best Management Practices for
Protection against Somalia Based Piracy (BMP4).110 Implementing BMP4 would help in the
repression of piracy in the straights of Mergeland and Oneland, as BMP4 outlines typical pirate
attack profiles, provides guidelines for shipmaster planning and crew drilling, and outlines
numerous ship protection measures, including: watch-keeping, the use of razor wire on railings,
the use of water-spray, and the construction of citadels.111 BMP4 also outlines vulnerabilities of
commercial ships, such as low speed, bad preparation and low freeboard, which can be changed
to better prevent successful pirate attacks.112 Additionally, many States have recognized the 107IMO Doc A 26/Res.1025, ¶ 3 (Jan. 18, 2010), available at http://www.imo.org/blast/blastDataHelper.asp?data_id=29986&filename=A1025(26).pdf.
108 IMO Doc A 26/Res.1025, Annex (Jan. 18, 2010).
109Id. 110International Chamber of Shipping, Best Management Practices for Protection against Somalia Based Piracy (BMP4) (Aug. 2011), available at http://www.ics-shipping.org/docs/default-source/resources/safety-security-and-operations/best-management-practices-4.pdf?sfvrsn=12.
111 Id.
112Id.
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importance of the Best Management Practices by signing the New York Declaration (Sep. 9,
2009), committing themselves to the promulgation of the Practices within the vessels on their
registers. Accordingly, Mergeland and Oneland should encourage the carriers traveling through
their territorial waters to implement BMP4 in order to reduce the incidence of piracy and armed
robbery within their straights.
CONCLUSION
The USS Rescue could undertake hot pursuit and capture the pirates in the territorial
waters and land of Subland only pursuant to the prior consent of Subland, expressed in a form
such as a UNSC Resolution or a Shiprider Agreement. Further, the pirates arrested and taken into
the custody of the USS Rescue may be prosecuted by the United States, or transferred to another
country for prosecution. However, given State practice in Somalia and the many monetary and
other costs associated with prosecuting pirates, the U.S. might decide to set the pirates free.
Finally, considering their duty to combat piracy in their territorial waters, Mergeland and
Oneland should draft law enforcement agreements between themselves and with third States,
such as Shiprider Agreements or agreements like ReCAAP, to repress piracy in their straights.
Mergeland and Oneland should also implement the IMO’s Code of Practice; and, they should
encourage carriers travelling through their waters to report all attempted or actual instances of
armed robbery or piracy to the IMB and implement the International Chamber of Shipping’s Best
Management Practices.
28