Pirates of the Aden: A Tale of Law's Impotence
Gopalan, Sandeep and Switzer, Stephanie (2009) Pirates of the Aden: A Tale of Law's Impotence. Working Paper Series.
Maritime piracy entails significant economic and humanitarian costs and poses a truly international problem. The vastness of the area affected and the incongruence of interests means that unilateral state action is unlikely to be successful. Differences in capacities and incentives at the state level make cooperation and coordination beneficial. International law offers a focal point for such cooperation and coordination. If, as is argued in this paper, UNCLOS and other international legal instruments offer a sufficiently clear legal regime for the prosecution of pirates, the only problem that remains is the reluctance of states to exercise prosecutorial jurisdiction. Simply reiterating that states have universal jurisdiction to prosecute pirates and lamenting their unwillingness to do so is useless. States have no exogenous reasons to prosecute pirates, and their unwillingness to exercise universal jurisdiction might be for good reasons - political compulsions, concern about free-riding, fear about pirates taking advantage of procedural loopholes, evidentiary difficulties, backlogs in domestic courts, and resource constraints. Regardless of the merits of these reasons, this paper argues that it is unnecessary to resolve them. Bilateral and multilateral agreements with states proximate to the piratical incidents offer a more efficient alternative. The bilateral agreements between Kenya and the U.S., U.K., and the E.U. are strong evidence of this reality. This paper is organised as follows. Part I analyses the international legal regime applicable to piracy to determine if there are deficiencies. Part II examines some of the concerns of European states in refusing to prosecute captured pirates to show that their concerns may be justified, and that the European Convention on Human Rights might apply in certain situations. Part III argues that given the legal and evidentiary problems associated with bringing captured pirates to Europe or the United States for prosecution, bilateral or multilateral agreements with states like Kenya to prosecute may offer a suitable alternative. Ideally, prosecution ought to be in a specially designated court in that country's judicial system with a guarantee of minimum human rights protections. States entering into such agreements would be wise to employ special agents from Kenya to actually make the arrest to protect against claims that the United Nations Convention on the Law of the Sea does not authorise rendition to third countries.
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