Golden Gate University School of Law GGU Law Digital Commons Theses and Dissertations Student Scholarship 11-30-2017 Re-assessment of Acts of Piracy Under Contemporary International Law With Particular Reference to Activities of Somali Pirates Nutcha Sukhawattanakun Golden Gate University School of Law, [email protected] Follow this and additional works at: https://digitalcommons.law.ggu.edu/theses Part of the International Law Commons, and the Law of the Sea Commons Recommended Citation Sukhawattanakun, Nutcha, "Re-assessment of Acts of Piracy Under Contemporary International Law With Particular Reference to Activities of Somali Pirates" (2017). Theses and Dissertations. 79. https://digitalcommons.law.ggu.edu/theses/79 This Dissertation is brought to you for free and open access by the Student Scholarship at GGU Law Digital Commons. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. Re-assessment ofActs ofPiracy Under Contemporary International Law with Particular Reference to Activities ofSomali Pirates A Dissertation Submitted To The Committee of International Legal Studies In Candidacy for the Degree Of Scientiae Juridicae Doctor Department oflnternational Legal Studies GOLDEN GATE UNIVERSITY By Nutcha Sukhawattanakun San Francisco, California November 30, 2017 Copyright by Nutcha Sukhawattanakun 2017 i Golden Gate University The Dissertation Committee for Ms. Nutcha Sukhawattanakun Certifies that this is the Approved Version of the Following Dissertation: Re-assessment of Acts of Piracy Under Contemporary International Law With Particular Reference to Activities of Somali Pirates APPROVED BY SUPERVISING COMMITTEE CHAIR: _________________________________________ Professor Dr. Christian N. Okeke ii Re-assessment of Acts of Piracy Under Contemporary International Law with Particular Reference to Activities of Somali Pirates A Dissertation Submitted To The Committee of International Legal Studies In Candidacy for the Degree Of Scientiae Juridicae Doctor Department of International Legal Studies GOLDEN GATE UNIVERSITY By Nutcha Sukhawattanakun San Francisco, California November 30, 2017 iii Dissertation Committee Professor Dr. Christian N. Okeke, (COH) Doctor in de Rechtsgeleerdheid (Amsterdam) Professor of International & Comparative Law; Director, L.L.M. and S.J.D. Programs; Director Sompong Sucharitkhul Center for Advanced International Legal Studies, Golden Gate University School of Law /S/______________________________________________________________ Professor Dr. Ashmeed Ali Adjunct Professor Golden Gate University School of Law /S/_______________________________________________________________ Professor Dr. Chinyere Okpala Chukwuka Adjunct Professor Golden Gate University School of Law /S/__________________________________________________________ iv Abstract In 2008, Somali pirates began increasing their attacks off the East African coast, there- by, forcing ship owners and charterers to seek ways to reduce risk of capture and plun- der, and consequently avoiding the rapidly increasing “exception” insurance premiums for routes like the Gulf of Aden and expanding piracy zone in the Indian Ocean. To date, no ship with armed security has been successfully hijacked. In 2015, pirates claimed over $170 million in ransom money for hijacked vessels and their crews. That figure represents an increase since 2010 when, according to a report by United Nation Office of Drugs and crime (UNODC), ransoms paid amounted to over $110 million. Ransom money is increasingly flowing into the legal financial system, while laundering the proceeds of piracy is causing consumer prices to rise steeply in the Horn of Africa and surrounding areas. According to a review conducted by UNODC, in twenty countries, 1,116 Somali men are currently facing criminal proceedings for pira- cy, while 688 are being handled within the region. This research reveals there is no au- thority in the international system that enforces the law in international waters, nor is there a true legislative organ. All rights and responsibilities of the States and the rules regarding sea piracy that are stipulated in the International Law of the sea is based on the consent and readiness of States. Therefore, identifying issues and formulating law is a time-consuming process. Moreover, this study identifies the legal issues that might prevent a ship owner from recovering its losses to Somali pirates. As a result, international organizations such as the United Nations, the Interna- tional Maritime Organization, have submitted many drafts concerning the codification of the development of International Law regarding piracy acts committed in territorial waters, and the actions under the command of the UN general assembly or naval forces. Furthermore, International Law does not permit extension of those waters beyond 12 v nautical miles, as discussed in the second chapter. The major maritime powers and the coastal States have found a need for a new legal framework concerning the jurisdiction of chase and arrest duty at sea. The maritime powers, for instance, desire a new law that would deal with the use of force on the high seas, while not infringing upon a state's sovereignty. The study establishes reasonable regulations on suppressing piracy and closing legal loopholes through which pirates have managed to elude the law. The cornerstone of regulations to address maritime security is placed in many conventions and agree- ments; for instance, the International Convention, UNCLOS and IMO, which are regu- lations mandated to make trade and travel by sea as safe as possible, extends to mari- time security. Organizations such as the United Nations, or international maritime or- ganization, should respond to threats in two ways; by developing appropriate regula- tions and guidance through its Maritime Safety Committee, and through capacity- building work. These organizations have been addressing maritime piracy for some time and a series of measures, developed in cooperation with member States and the shipping in- dustry, have helped significantly reduce piracy in the troubled spots of the world. Since 2005, regional co-operation has addressed piracy off the coast of Somalia, in the Gulf of Aden and the Indian Ocean, and is currently implementing a strategy for en- hancing maritime security in West and Central Africa. In 2009, the IMO propagated the Djibouti Code of Conduct, and the IMO’s SUA treaties were adopted in 1988, and underwent a comprehensive revision in 2005. These treaties provide an international legal framework to ensure that appropriate action is taken against persons committing unlawful acts against ships. These unlawful acts listed in the treaties include the seizure of ships by force, acts of violence against vi persons on board ships, and placing devices on board a ship that could destroy or dam- age it. This research suggests that the member States of UNCLOS should have agreed to review their national legislation to ensure the existence of laws that criminalize pira- cy and armed robbery against ships. In the case that prosecution is not possible, the code would dictate that States should extradite or hand over the pirates. Furthermore, State parties must agree to cooperate in a manner consistent with the International Law, in the investigation, prosecution and arresting pirates, and with respect to the interdic- tion and seizure of suspected pirate ships. The international community should promote the implementation of the resolutions adopted by the UN Security Council regarding the repression of Somali piracy. Seizure of piracy funding must be available to commit resources to this field, which will undoubtedly lead to successful prosecution and the seizure of funds in juris- dictions outside Somalia as an interim measure while its legal system is strengthened. Piracy-related business currently represents the main income source for much of the coastal communities, without which the communities may become destitute. Efforts must be made to develop an alternative viable economy within Somalia, in addition to interdicting the illegitimate economic system as stated in the final chapter of this work. The heads of state and government in West Africa stressed the importance of political leadership and the coordinating role of regions in combating the increasing threat posed by piracy and other forms of organized maritime crime in the Gulf of Aden. On the other hand, to make efforts more effective, maritime nations need broad- er international support. The commission was tasked to develop a holistic strategic maritime policy framework to guide future actions and cooperation and strengthen col- laboration. Addressing the growing problem of piracy off the coast of Somalia, and im- vii proving the regional capacity to counter-piracy, should be done by developing and en- hancing regional cooperation and coordination, all of which are based on the four pil- lars of Legislation, Training, Capacity Building, and Information Sharing. In this work, I present a range of guidance aimed at addressing maritime securi- ty which concerns Somali piracy and armed robbery against ships; this includes guid- ance to governments, ship owners and ship operators, shipmasters and crews on pre- venting and suppressing piracy and armed robbery against ships; investigation of of- fences and the use of armed personnel should be granted and enacted into law which are binding