The International Maritime Organization (IMO) IMO is the specialized agency responsible for improving maritime safety and preventing pollution from ships. In 1948 a Convention establishing the IMO was adopted at an international conference in Geneva and eventually entered into force in 1958. The IMO first convened in 1959. Today, the agency, now based in London, has 167 Member States and three Associate Members. It pursues its main task of developing and maintaining a comprehensive regulatory framework for shipping, including maritime safety, environmental concerns, and legal-technical cooperation primarily through the promotion of international treaties, e.g. the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea, and the International Convention on Maritime Search and Rescue. The IMO is headed by a Council of 40, elected by an Assembly comprising all Member States. Other main organs include the Maritime Safety Committee, Legal Committee, Marine Environment Committee, Technical Co-operation Committee, and a Secretariat. Recent Develoment: Fighting Piracy, One Code at a Time Despite concerted international cooperation and action, including the deployment of various national and international naval forces in the region, piracy, in particular off the coast of Somalia, continues to pose a serious threat to the peace and security of one of the most-traveled waterways in the world, the neighboring states, and to the global economy. According to recent numbers, an estimated 21,000 ships pass through the Gulf of Aden on an annual basis. While the number of acts of piracy and armed robbery against ships[1] reported to the IMO to have occurred in 2008 was 306, against 282 during 2007, the first four months of 2009 alone resulted in 157 reported incidents[2] and a reversal of the trend currently still seems to be quite distant. Taking the extra costs to international shipping due to significantly increased insurance premiums, avoidance (i.e. choosing the alternate route around the Cape of Good Hope, which adds roughly 3,500 miles to the journey), and deterrence (e.g. heightening onboard security, deploying frigates etc.) into account, estimates of the direct and indirect costs of piracy to the global trade range from $1 billion to $16 billion.[3] In light of those realities, the IMO pursued a three-pronged approach, aiming at
As to fostering regional cooperation and coordinating governments' action, the IMO adopted a Code of Practice for the Investigation of Crimes of Piracy and Armed Robbery Against Ships[5], which, inter alia, urges governments to take action, in accordance with the Code, to investigate all acts of piracy and armed robbery against ships occurring in areas or on board ships under their jurisdiction and to report to the Organization pertinent information on all investigations and prosecutions concerning such acts. Apart from encouraging States to take necessary national legislative, judicial and law enforcement action as to be able to receive, prosecute or extradite any pirates or suspected pirates and armed robbers arrested by warships or military aircraft[6], the Code is meant to be a source of best practice and "to provide Member States with an aide-mémoire to facilitate the investigation of the crimes of piracy and armed robbery against ships".[7] Furthermore, in January 2009 IMO convened a meeting in Djibouti of states in the region, adopting a Code of Conduct Concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden (the Djibouti Code of Conduct)[8], in which the signatories declare their intention to cooperate to the fullest possible extent and in a manner consistent with international law, in the repression of such attacks against ships. The state signatories committed themselves towards sharing and reporting relevant information through a system of national focal points and information centers, interdicting ships suspected of engaging in acts of piracy and other attacks against ships, ensuring that persons committing or attempting to commit such prohibited acts are apprehended and prosecuted, and facilitating proper care, treatment, and repatriation for affected crews and passengers, particular those who have been subjected to violence. More specifically, according to Article 8 of the Djibouti Code of Conduct, in order to facilitate information sharing and coordination, participating States are requested to use the piracy information exchange centers established in Kenya, Tanzania, and Yemen, respectively. Furthermore, in order to allow for the prosecution, conviction and punishment of those involved in piracy or armed robbery against ships, and to facilitate extradition or handing over when prosecution is not possible, each participating State declares its intention "to review its national legislation with a view towards ensuring that there are national laws in place to criminalize piracy and armed robbery [...] and adequate guidelines for the exercise of jurisdiction, conduct of investigations, and prosecutions of alleged offenders."[9] Acknowledging that the current Djibouti Code of Conduct is mainly of declaratory value, Article 13 expresses the participating States' intention to consult, "within two years of the effective date of this Code of conduct[10] [...] with the assistance of IMO, with the aim of arriving at a binding agreement." Finally, realizing that successful regional cooperation also would depend on international naval assistance, the IMO has been at the forefront of organizations and states to bring the piracy problem to the attention of the UN Security Council[11], which, on November 30, 2009, adopted its latest resolution concerning the Situation in Somalia.[12] Recalling its previous resolutions with regard to Somalia, in SC Res. 1897 the Security Council, acting under Chapter VII of the UN Charter, decided to renew for an additional twelve months the authorization granted to Member States in preceding resolutions, pertaining to taking action against pirates also in Somali territorial waters ('hot pursuit') and extending the scope of permissible military force even to certain land-based operations in Somalia mainland. Based on these resolutions, states have intensified their presence in the Gulf of Aden, with the US, UK, French and Indian navies initially leading the way, now also joined by a Chinese naval deployment and the first-ever European Union-led naval force (EUNAVFOR) executing operation 'Atalanta'[13]. With presence however comes the problem of effective patrolling, which again is closely tied to the concept of jurisdiction and law enforcement. As a point of departure, piracy is considered to be the original universal jurisdiction crime and, as such, states apprehending pirates would be able to base their jurisdiction on that concept[14]. However, in practice, states patrolling the Gulf of Aden have shied away from prosecuting, sometimes even from arresting[15], suspected pirates due to anticipated legal difficulties and expenses. Yet, without serious and visible efforts at prosecution and punishment, the preventive and deterring effect of increased patrols is at best reduced. Some of the main concerns of states pertain to the rather small window of opportunity for catching suspected persons 'in the act', and the problematic status of pirates. Prior to the launch, a pirate vessel may merely appear as a fishing boat and by quickly disposing of weapons by throwing them overboard, any evidence to the contrary soon rests safely on the seabed. On the other hand, under international law pirates are considered to be non-combatants[16], which puts e.g. further constrains on navies' rules of engagement. Realizing the shortcomings and limitations of increased naval presence in the face of the 2009 attacks on the US vessels Maersk Alabama and Liberty Sun, a new legal initiative in the United States, building upon IMO's guidelines with respect to enhancing vessels' security level, intends to allow other mariners to defend their vessels and be protected by law when doing so. The H.R. 2984 United States Mariner and Vessel Protection Act of 2009[17], if passed, would provide US Mariners with immunity in US Courts if they wound or kill pirates whilst responding to a pirate attack. The Bill, proposed by Rep. Frank LoBiondo, charges the U.S. Coast Guard with certifying firearms training for merchant vessels and provides for any trained mariner using force plus owner, operator, or master of the respective vessels to be exempted from liability in US Courts as a result of such use of force. Furthermore, the Bill directs the U.S. to negotiate international agreements through IMO to provide similar exemptions from liability in other countries for the use of force by mariners and vessel owners, operators, and masters as well as to ensure that armed US crews can enter foreign ports. It also contains plans to authorize deployment of Coast Guard Maritime Safety and Security Teams (MSST) to ride aboard and defend US flagged vessels transiting piracy prone waters. The initiative is carried in an amendment to the National Defense Authorization Act. ***** While all attempts at containing the threats posed by piracy in general are laudable endeavors, the various initiatives and measures, initiated or adopted by the IMO and other national and international actors, display shortcomings to varying degrees. The Code of Practice represents little more than a handbook for investigating piracy crimes, stating best practices, but containing few commitments on the part of participating States. Likewise, the Djibouti Code of Conduct enlists important coordination and cooperation obligations, but a legally binding agreement is not to be expected until 2011. The MSC guidelines on the other hand include various immediately practical recommendations in regard to combating piracy and armed robbery, although the success of those measures also depends, to a certain extent, on the participation and coordination of international naval forces. Finally, considering dependence on (foreign) military cooperation, measures such as those stipulated in the United States Mariner and Vessel Protection Act of 2009 may be understandable. However, manning civilian vessels with armed seafarers (and encouraging the use of force to fight off presumed pirates with pledges of liability exemptions), may lead, once again, to a dangerously blurry line between civilians and combatants, while concomitantly contributing to an escalation of force on the High Seas. What had once been realized as a lethal dilemma of international law, culminating in the Laconia affair during World War II[18], might still be a non-commendable idea in the present circumstances. In any case, ultimately, as UN SC Res.1897 acknowledges, a solution to piracy off the coast of Somalia lies ashore. Tom Syring, UNE/Norwegian Immigration Appeals Board January 2010 Footnotes: 1 "Piracy" as defined in the 1982 United Nations Convention on the Law of the Sea (UNCLOS) (Article 101) in the main consists of "any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship [...] and directed: (i) on the high seas, against another ship [...]" or "against a ship [...] outside the jurisdiction of any State". Armed robbery against ships pertains to a similar description of unlawful acts taking place "within a State's jurisdiction over such offences", see Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships, IMO Resolution A.1025(26), Annex, para.2.2. 2 See Press Briefings, Maritime Safety Committee, 86th session, May 27 - June 5, 2009, available at http://www.imo.org/newsroom/mainframe.asp?topic_id=1773&doc_id=11478. 3 PETER CHALK, THE MARITIME DIMENSIONS OF INTERNATIONAL SECURITY: TERRORISM, PIRACY AND CHALLENGES FOR THE UNITED STATES 16 (2008). 4 Piracy and Armed Robbery against Ships in Waters off the Coast of Somalia, IMO MSC.1/Circ.1335, September 23, 2009, available at http://www.imo.org/includes/blastDataOnly.asp/data_id%3D26641/1335.pdf. 5 IMO Res. A.1025 (26) (Jan. 18, 2010, available at: http://www.imo.org/includes/blastDataOnly.asp/data_id%3D27434/1025.pdf. 6 Id., article 3.1. 7 Id., article 1. 8 Djibouti Code of Conduct, adopted Jan. 29, 2009, available at: http://www.fco.gov.uk/resources/en/pdf/pdf9/piracy-djibouti-meeting. 9 Id., article 11. 10 That is, by Jan. 29, 2011. 11 See also Tom Syring, UNHCR and IMO Address Plight of Refugees at Sea, New Threats Loom available at http://www.asil.org/rio/imo.html. 12 SC Res. 1897 (Nov. 30, 2009). 13 Council of the European Union, Council Joint Action 2008/851/CFSP O.J. (L 301) 33. 14 The right of every state to seize a pirate ship and prosecute acts of piracy is also established in Article 105 of the United Nations Convention on the Law of the Sea 1833 U.N.T.S. 3. 15 In 2008, the British Foreign Office e.g. reportedly instructed the Royal Navy not to turn pirates over to Somalia, in fact, not to take them on board at all, due to concerns they could claim asylum under European human rights law, see Marie Woolf Pirates Can Claim UK Asylum The Sunday Times (London) April 13, 2008, available at: http://www.timesonline.co.uk/tol/news/uk/article3736239.ece. 16 See Eugene Kontorovich, International Legal Responses to Piracy off the Coast of Somalia, ASIL INSIGHTS, Feb. 6, 2009, available at http://www.asil.org/insights090206.cfm. 17 Introduced on June 19, 2009, referred to the Subcommittee on Border, Maritime, and Global Counterterrorism on 7 July 2009, available at http://www.govtrack.us/congress/bill.xpd?bill=h111-2984. 18 Pertaining, roughly speaking, to the question of whether a submarine encountering an (armed) merchant ship, may treat that ship as a military vessel and its crew as combatants. |
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