Somali Piracy-Implications for Oceanborne Commerce and Regional Security and Challenges to International Law

• Author: Ademun Odeke
• Position: Visiting Research Professor in International Maritime Law and Policy, Maritime Research Centre, School of Maritime Studies, Southampton Solent University, Southampton, UK. An earlier version of this paper was first presented at the combined International Law/Maritime Law Sections of the 2010 Annual Conference of the Society of Legal Scholars, 1...
• Pages: 134-160

(2011) 25 A&NZ Mar LJ

SOMALI PIRACY – EFFECTS ON OCEANBORNE COMMERCE AND REGIONAL

SECURITY AND CHALLENGES TO INTERNATIONAL LAW AND WORLD ORDER

Ade mun O d e ke *

The article analyses the nature, history and causes of Somali piracy in social-economic, geo-political and

panoramic context. It also examines its commercial, economic and security threats and challenges to oceanborne

trade and traditional doctrines of international law. The article focuses on eight major areas: examination of the

threats to maritime commerce, strategic sealanes and vital energy sources; threats to maritime, regional and global

security; challenges to international law and existing world order; threats to international financial order; threats

to international economic order; outline of future prospects for the piracy and proposed international solution; and

concluding remarks.

1 Introduction – Somali pira cy

1.1 Nature and extent

For nearly a decade now, Somalia has been synonymous with piracy and lawlessness. Yet Somali piracy accounts

for only 15 per cent of reported global piracy and robbery at sea incidents for 2005 – 2010.1 The remaining 85 per

cent being accounted for by the Far East (23 per cent), South East Asia (19 per cent), Rest of Africa (17 per cent),

Southern Asia (9 per cent), South America (8 per cent) and the Rest of the World (2 per cent).2 E ven within the

Continent, piracy in the rest of Africa accounted for only 25 per cent of global incidents: 2 per cent more than

Somalia.3 So why has Somali piracy monopolised global attention? The answer lies in the country’s str ategic

position and the magnitude of the damage to merchant shipping and world trade caused, compared to the mere

numerical comparisons of repor ted piracy incident s. For instance, over the same per iod, over 250 merchant shipping

vessels wi th over 500 crew men and an estimated US$1.5 billion worth of cargo have been h ijacked through acts of

piracy and robbery at sea off the Somali coast alone.4 Since the International Maritime Organisation (IMO) started

keeping records on piracy in 1984, attacks have continued sometimes from as far as 600 – 1500 nautical miles out to

sea. More than 100 attacks were reported last year (2010) alone, and pirates have seized over 50 vessels, with more

than 800 seafarers and sailors having been kidnapped and held for ransom during that period.5 As of December

2010, over 30 ships and an estimated 150 seafarers from 25 countries were being held hostage in Somalia.6 Over 25

seafarers and at least 20 pirat es have died so far. In th e process, the pirat es have netted over US$500 million in

ransom money from ship owners, cargo owners or operators this year.7

* Visiting Research Professor in International Maritime Law and Policy, Maritime Research Centre, School of Maritime Studies, Southampto n

Solent Uni versity, Sout hampton, UK. An earlier ver sion of this pa per was first presented at t he combined I nternational Law/Maritime Law

Sections of the 2010 Annual Conference of the Society of Legal Scholars, 13-16 September 2010, Southampton University. The author is grateful

to the Royal Irish Academy and the National University of Ireland Millennium Fund for the generous su pport for the field re search visits and to

Professor s Charles Odidi Okidi (Univer sity of Nair obi) and Ted McDorma (Unive rsity of Vict oria-Canada) for their valuable comments at the

draft stage of the article. However, responsibilities for any shortcomings and views expressed in the article remain with author.

That is m ore than th e total loss d uring the

Malacca Strai ts and South China Sea piracy attack s in the last decade, preceding Somali piracy. In view of th e

notor iety and monetar y values involved, S omali pirac y has dwarfed and r eplaced Asian pir acies, which accoun ted

for 28 per cent of global incidents (nearly twice the Somali record). From mid 2009, almost all of the world’s most

1 One Earth World, ‘Maritime Piracy Around the World’ (Fact Sheet No 5, Oceans Beyond Piracy Project Report, 2010).

2 Ibid.

3 Ibid.

4 Although generically referred to as Somali piracy, the incidents occur in the whole region which includes the north-we stern India n Ocean, i. e.

the Gulf of Aden, the Persian Gulf, the entrance to the Red Sea, the Somali and the south west and south east Indian Ocean as far south as the

Seychell es. It originated from th e Gulf of Aden and spr ead south following co ncerted intervent ion from the allied navies that drove them away

from the N orth West. Alt hough other na tionalities a re involved i n the piracy, S omalis do it predominantly . See also P Le hr and H Leh mann,

‘Somalia : Pirates new Paradise’ in P Lehr (ed), Violence at Sea: Piracy in the Age of Global Terrorism (Routledge, 2007) 1-22.

5 The practice is to hold vessels and crew then negotiate ransom of up to $30 million although only 10 per cent payment is normally received. $1

million was paid for the British cou ple, half of that by So malis who felt ashamed by their compatriot s’ actions. Howev er, the highest payme nt has

been $9 milli on for a South Korean tank er.

6 These are held in pirate ports especially Haradeera, in the autonomous Puntland beyond the jurisdiction of the TFG but the crew is normally

held in th e hinterland t o avoid daring rescue missi ons.

7 A new breed of professionals have developed, especially in London and the Middle East, specialising in contacting and negotia ting with pirates

on behalf of owners and insurers.

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Som ali Pirac y – Effec ts and Cha lleng e s

(2011) 25 A&NZ Mar LJ

powerful navies and governments8 have been pinned down and unable to contain the phenomenon caused by a rag-

tag army of Somali youths, some barely in their teens, sailing in sometimes rusty ‘motherships’9 and using skiffs

and speedboats and armed with AK47s, hand and shoulder held rocket propelled gr enades;10

the favouri te pirate

weapons. Wh ere did it all come from and wha t caused it?

1.2 Developments and ca uses

A number of fact ors have contri buted to the developmen t and facilita tion of the piracy. I n the first inst ance Somalia

is one of th e world’s poorest countries, an under resourced , predominantly barren country with a hostile

environment, prone to drought and famine and therefore unable to support her 10 million inhabitants. Secondly, the

country’s unique position in the Gulf of Aden, its long coastlines, the vastness of t he Western In dian Ocean an d its

strategic geographical location vis-à-vis vital sealanes and access routes to the Wes t’s energy sources, make anti-

piracy pa trols around i t almost imp ossible.

Against that general background, the mediate causes of th e piracy have been the cold war riva lry between the US

(the West) and the former Soviet Union (the East) in the 1970s and 1980s which pitched Somalia and Ethiopia

against ea ch other, often s witching sid es at least twice each. This, in turn, led to two border wars between the two

countries; Somalia apparently over the disputed Ogaden, a region administratively part of Ethiopia but inhabited by

ethnic Somalis who wished to join Siad Barre’s Greater Somalia Vision. Somalia came off worse in that rivalry.

Ravaged a nd unabl e to survi ve, the C entral Gover nment col lapsed i n 1991 lea ving near ly three mi llion for merly

state employees unemployed and destitute. With that collapse went the administrative, political, economic, social

and judicial institutions. Consequently, the country degenerated into lawlessness with the vacuum filled by warlords

and clan heads. That eventually led to Somalia’s disintegration into three separate semi-autonom ous regi ons and th e

emergence of insurgency and Al Qaeda affiliated terrorism first by the Islamic Courts Union and later by the Al

Shabab militias.

Thus in a span of about 10 years, the seeds of Somali Piracy were sown. Consequent upon, and building on that, the

immediate ca uses of the piracy can reasonably be attributed to: the large scale internally displaced population (IDP)

victims of famine following long drought coinciding with the government collapse and the ongoing civil wars;

availability of abundant easy arms supply; support from and funding by the insurgency; ascendency and influence of

warlords an d clan heads; the depl etion of formerly ri ch Somali fisheri es and other marin e resources by large sca le

and often illegal over-fishing by foreign trawlers; the dumping of toxic and hazardous wastes in Somali waters and

coastline by Western multinational corporations; consequent environmental damage and degradation from such

dumping; large-scale unemployment of former fishermen and armed forces (navy, ar my, marine, poli ce, prison and

other paramilitaries); the perceived feeling of abandonment of Somalia by the international community; the envy

and acute fr ustration of de sperate an d destitute Soma lis seeing West ern owned vess els carryin g cargoes and

‘unlawfully’ fishing through Somali waters and coastline.11

This is putting it simply as matters are probably more

complex than this. In addition these are not to excuse p iracy, but rather mitigating factors. However, even these do

not explain why the piracy is very different from anything else known before.

8 That is mor e than the tot al loss durin g the Malacca Straits and Sou th China Sea piracy attack s in the last decade, prece ding Somali piracy. In

view of the notoriety and monetary values involved, Somali pira cy has dwarfed and repla ced Asian piracie s, which accounted f or 28 per cent of

global incidents (nearly twice the Somali record). From mid 2009, almost all of the world’s most powerful navies have been involved in t he anti-

piracy patr ols in the I ndian Ocean.

9 Somali pirates use relatively small vessels as ‘motherships’ from where the speedboats are launched to attack and board larger merchant ve ssels.

No informa tion is availa ble regardin g registry, sa fety, equipme nt and origin of these vessel s but they ar e effective. T hey are often disguised as

trawlers and several times when approached, they have claimed to be fishermen until the boat is searched and its lethal cargo reveal ed. The

‘mothershi ps’ carry provisio ns and sophisticat ed communicatio n equipment to liaise with land-based command centres and sometimes foreign

based agent s.

10 The preferred and most effective weapon of the pirates, all of which are available very cheaply in Somalia and the region, a result of the

collapse of the estimated 300 000 strong Somali armed forces, several border wars with Ethiopia and ongoing civil wars and insurgency. See also

Katherine Houreld, ‘Somali Pirates carrying AK-47s, RPGS storm ship, seizing 21 Filipinos aboard; 326 crew now held’, Associated Press, 21

April 2010.

11 See Ademu n-Odeke, ‘So mali Piracy - History and Developments’, forthcoming in the African Journal of International and Comparative Law;

‘Somali Piracy, Jurisdictional over Pirates in Third Countries for Offences committed in the High Seas’ forthcoming in the Journal of

International Mar itime Law and ‘ Somali Piracy-Agreements to Pr osecute in T hird Countrie s’ forthcoming in the International and Comparative

Law Quarterly.

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