Problem I:

     The absence of an effective government in Somalia created yet a new source of international instability in the form of Somali piracy off the Horn of Africa. Beginning around 2005, groups of young men, armed with machine guns and other weapons, began to hijack ships carrying humanitarian aid to Somalia as well as other commercial vessels passing near Somalia’s coast and hold the crews for ransom. The International Maritime Organization, a specialized UN agency, alerted the Security Council to the problem, leading to several resolutions of the Council.

     In Resolution 1816 of June 2, 2008, the Council, acting under Chapter VII of the Charter, urged all states to cooperate in preventing and responding to piracy. The resolution noted that the so-called Transitional Federal Government of Somalia (TFG) – a collection of Somalis supported by key foreign powers but in control of only part of Somalia’s capital -- had consented to assistance in controlling the territorial and international waters beyond its shores. The resolution included the following paragraph:

7. Decides that for a period of six months from the date of this resolution, States cooperating with the TFG . . . may:

(a) Enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law; and

(b) Use, within the territorial waters of Somalia, in a manner consistent with action permitted on the high seas with respect to piracy under relevant international law, all necessary means to repress acts of piracy and armed robbery.

An additional paragraph stated that the Council

9. Affirms that the authorization provided in this resolution applies only with respect to the situation in Somalia and shall not affect the rights or obligations or responsibilities of member states under international law, including any rights or obligations under [UNCLOS], with respect to any other situation, and underscores in particular that it shall not be considered as establishing customary international law, and affirms further that this authorization has been provided only following receipt of the letter . . . conveying the consent of the TFG.

     Resolution 1851 of December 2, 2008, called upon states with military capacity “to take part actively in the fight against piracy . . . by deploying naval vessels and military aircraft and through seizure and and disposition” of itsm used for piracy. It then extended the authorization to use force off Somalia for another year and went further than the other resolutions in adding:

6. In response to the letter from the TFG of 9 December 2008, encourages Member States to continue to cooperate with the TFG in the fight against piracy and armed robbery at sea, notes the primary role of the TFG in rooting out piracy and armed robbery at sea, and decides that . . . States and regional organizations cooperating in the fight against piracy . . . for which advance notification has been provided by the TFG to the Secretary-General may undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy . . . pursuant to the request of the TFG, provided, however, that any measures . . . shall be undertaken consistent with applicable international humanitarian and human rights law.

     By the fall of 2009, the European Union, the United States, and other powers had deployed naval vessels to prevent and intercept pirates; the EU subsequently concluded an agreement with Kenya to allow some suspected pirates to be prosecuted in Kenyan courts. Piracy continued, however, with ransoms still paid by shipowners for the release of crews.

Notes and Questions:

1. What is the effect of paragraph 7 of Resolution 1816 on the regime of territorial waters off Somalia? Was it legally necessary for the Security Council to pass this resolution in light of the TFG’s consent to the deployment of foreign ships?

2. What is the purpose of paragraph 9 of that resolution? Can the Security Council declare that one of its resolutions will not affect the evolution of customary international law?

3. Article 101 of UNCLOS defines piracy as certain acts against shipping on the high seas or “outside the jurisdiction of any state.” Article 105 states, “On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board.” Is UNCLOS poorly designed to handle piracy that emanates from one state’s territory or territorial seas? Does the Somalia case suggest a need to review the Convention’s provisions on piracy?

Problem II.E.: Note on Dispute Resolution Under UNCLOS

     On May 30, 2006, the European Court of Justice ruled in favor of the European Commission. It found that Ireland, by instituting proceedings against the UK in the UNCLOS mechanisms, had violated article 292 of the EC treaty, which prohibits members from submitting disputes under Community law to any method of settlement other than those set forth in the treaty. For the full text, click here.

Problem III.C.:

     The division of the continental shelf in the Arctic region began to assume greater importance as experts on climate change stated that Arctic ice might melt enough to create a continuous passage for ships through the Arctic sea. Such a passage would expedite global shipping and, more significantly for Arctic region states, open up large areas of the continental shelf to oil and gas exploitation. Norway, Iceland, and Denmark (which has sovereignty over Greenland, for now) have recently filed new submissions with the UN Commission on the Continental Shelf; Canada is expected to do so within the next several years; and Russia may file another submission. Some of these states’ claims overlap with the claims of others. Because the United States has not ratified UNCLOS, it may not make any submissions to the Commission. Proponents of U.S. ratification have added the Arctic claims controversy to their list of reasons for immediate approval of the treaty, which has now been before the Senate for 15 years. For a review, see Carlson, Hubach, and Long, The Scramble for the Arctic: The United Nations Convention on the Law of the Sea (UNCLOS) and Extending National Seabed Claims , Paper prepared for presentation at the 2009 Annual Meeting of the Midwest Political Science Association, available here.