Somali Pirates Are Back?

After an almost five-year hiatus, Somali pirates are back.  On March 13, a dozen armed Somali pirates attacked and successfully hijacked a commercial oil tanker, Aris 13, which had been carrying fuel from Djibouti to Mogadishu.  The tanker is now apparently docked in the coastal Somali town of Xabo, and the pirates are beginning to negotiate a ransom payment in exchange for releasing the hijacked crew.  This attack underscores that the Somali piracy threat is real and that it can resurface at any time- and particularly, if “western” countries let their anti-piracy guard down.

Piracy attacks off the coast of Somalia skyrocketed between 2008-2011, when the maritime community witnessed hundreds of attacks per year.  In 2011, the world community experienced a total of 151 piracy attacks (down to just 17 in 2015).  Attacks in this region were fueled by several factors, including the fact that Somali coast, and in particular the Gulf of Aden, are a commonly used shipping route from Europe to Asia, that most commercial vessels sailed unarmed and unprotected and were thus easy targets, that shipping companies, and at times countries, seemed willing to pay multi-million dollar ransoms, and that Somalia has been a lawless country where pirates can freely dock their ships and hold their victims while awaiting ransom.  The first factor (geography) as well as the last (lawlessness in Somalia) have not changed until today.  What had changed and contributed significantly toward the decrease of piracy attacks were enhanced anti-piracy efforts by maritime nations, which have included the presence of armed guards onboard commercial vessels, as well as more careful routing of vessels, to avoid sailing too close to the Somali coast.  In addition, several maritime nations as well as NATO launched anti-piracy operations in the region (NATO Operation Ocean Shield), which were able to successfully deter attacks.  As I, and others, have written before, Somali piracy has always been a crime of opportunity fueled by poverty in Somalia and the ease at which piracy attacks were successfully executed, at least in the beginning of the modern-day piracy era.  With increased maritime surveillance and anti-piracy operations in the region and armed guards onboard vessels, Somali pirates halted their operations and apparently re-routed their efforts toward more lucrative endeavors such as arms trafficking.  But they did not go away and instead waited for the opportunity to resume piratical attacks off the coast of Somalia.

This opportunity to resume may have come now.  In December 2016, NATO officials announced that anti-piracy operations, which had been extremely successful, were no longer necessary as piracy attacks seemed to have practically disappeared.  Some shipping companies may have become less vigilant in their routing, allowing ships to sail closer to the Somali coast (as was the case of Aris 13), and some may have ceased using expensive armed guards (Aris 13 was not protected by armed guards).  According to a maritime industry analyst, today only about 35-40 per cent of ships have armed guards on board.  Thus, the perfect piracy opportunity may have arisen again and Somali pirates seized upon it.

This attack’s modus operandi is identical to the previous piracy model, where pirates go after unprotected commercial vessels sailing close to the Somali shore and hijack the vessel and its crew, in order to demand a multi-million dollar ransom.  In the present hijacking of Aris 13, the cargo (fuel) may be of additional value to the pirates as it can be somewhat easily resold on the black market.  In fact, hijacking oil tankers with the purpose of reselling the fuel has been the more specific modus operandi of Gulf of Guinea pirates, whose focus seemed to be less on hijacking crew members for ransom and more on the value of stolen cargo.  Somali pirates seem to be back – having perhaps learned from their West Africa counterparts that cargo can be valuable too – and the international community may have to re-engage in serious anti-piracy efforts, to ensure that piracy does not re-fluorish in 2017.

New Article on the MV Montecristo Trial

CHO Contributor Marta Bo has published a new article in the Italian Yearbook of International Law on the interplay between national and international law in the MV Montecristo trial.

The MV Montecristo, an Italian flagged bulk carrier, was hijacked by pirates on 10 October 2011 in international waters in the Indian Ocean about 620 miles east off the Somali coast. After being captured by British RFA Fort Victoria, operating under NATO Operation Ocean Shield, the suspected pirates were handed over and taken into custody by the ITS Andrea Doria, the Italian unit contributing to Operation Ocean Shield.

For our previous posts on the MV Montecristo incident and trial before Italian courts, see here and here.

The article scrutinizes the complex relationship between international law and national criminal law in the prosecution of piracy. It questions the suitability of the UNCLOS definition of piracy as a standalone legal basis for detention in light of the requirements of legal certainty that must be satisfied to permit the arrest and the “pre-transfer arrest” of piracy suspects.

Here is the link to the article (subscription required).

Are Sea Shepherds Pirates? The United States Supreme Court May Decide Soon

The Supreme Court of the United States may decide in the near future whether Sea Shepherds are pirates.  The Sea Shepherds, a marine conservationist not-for-profit organization, which has been the subject of an injunction requested by The Institute for Cetacean Research (ICR), a Japanese whaling company, and issued by the Ninth Circuit, has petitioned the Supreme Court for a writ of certiorari, asking the Court to review the Ninth Circuit’s decision to issue the injunction.  The Ninth Circuit had determined that the Sea Shepherds’ activities – attempts to interfere with whaling activities by throwing bottles of a foul-smelling but benign substance called butyric acid on the decks of whaling ships, towing lines across the bows of such vessels in an attempt to entangle their propellers and slow them, and piloting its own vessels near the whaling ships to impede whaling, in a way that rendered collision likely – constituted piracy.  Because of the piracy categorization, the Ninth Circuit proclaimed that it could assert extra-territorial jurisdiction for the purposes of supporting the injunction issued against Sea Shepherds (the injunction, issued sua sponte by the Ninth Circuit, prohibited Sea Shepherds from going near ICR vessels, from endangering the safe navigation of these vessels and from attacking them – activities that would occur outside the territorial jurisdiction of the United States).  The piracy label was thus crucial for the Ninth Circuit’s holding – that it could exercise extra-territorial jurisdiction and order compliance with this overseas injunction.  The piracy categorization, however, is controversial.  This post will explore two issues related to the Ninth Circuit’s view of piracy: whether the “private ends” requirement of the United Nations Convention on the Law of the Seas (UNCLOS) definition of piracy encompasses acts by private parties committed for non-pecuniary ends, and what threshold of violence is required for acts to rise to the level of piracy under the same treaty.

Other scholars and I had previously written on the issue of whether the Sea Shepherds’ actions – committed for non-pecuniary ends- constituted piracy under international law.  Eugene Kontorovich and Jon Bellish argued that as long as actions are committed by private parties, such actions would constitute “private ends” for the purposes of the piracy definition under UNCLOS.  According to Kontorovich and Bellish, it does not matter whether acts are committed for political, environmental, or pecuniary ends; as long as they are committed by private parties, they will satisfy the UNCLOS definition of piracy.  Kevin Jon Heller and yours truly had a different view, arguing that only acts committed for truly private ends could satisfy the definition of piracy, and that Sea Shepherds could not be considered pirates.  In this petition for a writ of certiorari, the Sea Shepherds are asking the Supreme Court to review the Ninth Circuit’s decision that Sea Shepherds are pirates because they are committing acts of violence for private ends, regardless of the fact that their goals are completely non-pecuniary.  The Ninth Circuit viewed piracy not as robbery at sea, but as somewhat violent acts committed by private parties at sea.  According to the petition for a writ of certiorari, the Supreme Court should review the Ninth Circuit’s decision because: “this case is not about piracy. It is about whether the federal courts may create new law and enforce it extraterritorially, without authorization by Congress, and in defiance of the mandates of this Court.”  The petitioners/Sea Shepherds are referring here to the infamous Kiobel case, which the United States Supreme Court handed down after the Ninth Circuit’s issuance of the injunction in this case.  A discussion of the Kiobel case is beyond the scope of this post, but it suffices to point out that the Kiobel case limited the ability of United States federal courts to exercise extra-territorial jurisdiction in suits arising under the Alien Tort Statute, which ICR/respondents had relied upon in this case in order to sue Sea Shepherds.  Moreover, Sea Shepherds/petitioners point out that while there is universal agreement that piracy is a fundamental crime under international law, the content of the piracy definition is not well-settled, as the above scholarly disagreement demonstrates.  It is unclear what the “private ends” requirement encompasses, and consequently, the content of the piracy definition/norm is not sufficiently clear to support jurisdiction under the Alien Tort Statute.

Less has been written about the threshold of violence necessary for a finding of piracy under international law.  The Sea Shepherds’ petition for writ of certiorari argues that the piracy norm under international law is not sufficiently clear to support jurisdiction under the Alien Tort Statute, because of disagreement as to what level of violence is necessary to support a finding of piracy.  The petition additionally argues that the Ninth Circuit was wrong in holding that a minimal level of violence would be sufficient for a finding of piracy under UNCLOS, because other courts and authorities have found that piracy, as a serious crime warranting extremely high penalties, requires a finding of overt violence of a sufficient degree, such as robbery, murder, destruction by fire, etc., committed on the high seas.

The petition thus requests the Supreme Court to review the Ninth Circuit’s decision on the following questions of law:

  1. Whether the Alien Tort Statute provides jurisdiction for an extraterritorial injunction regulating otherwise legal behavior on the high seas and in waters claimed by another sovereign, based on a norm of customary international law whose meaning is disputed within the international community.
  2. Whether a U.S. federal court may use its contempt power to sanction conduct that violates the “spirit,” but not the express terms, of an injunction.

For the purposes of piracy scholarship, the first question is the more interesting one.  It is unclear at this point whether the Supreme Court will accept this petition; if it does, stay tuned for additional posts on these fascinating issues.

Cambridge University Press Publishes “Prosecuting Maritime Piracy”

CUP Piracy Book

Professor Milena Sterio with a newly published copy of “Prosecuting Maritime Piracy”

Cambridge University Press just published a new collected volume on maritime piracy.  “Prosecuting Maritime Piracy: Domestic Solutions to International Crimes” (edited by Michael P. Scharf, Michael A. Newton and Milena Sterio) contains thirteen chapters.  The first four chapters (by Sandra L. Hodgkinson, Ved P. Nanda, and Milena Sterio) focus on the definition of the crime of piracy and issues related to universal jurisdiction over the piracy offense.  The next four chapters (by Laurie R. Blank, Mark V. Vlasic and Jeffrey Paul DeSousa, Frederick Lorenz and Laura Eshbach, and Milena Sterio) focus on the pursuit, arrest, and pre-trial treatment of suspected pirates.  The next three chapters (by Frederic Lorenz and Kelly Paradis, Michael A. Newton, and Jon Bellish) focus on legal issues in domestic pirate trials.  The last two chapters (by Eugene Kontorovich and Yvonne M. Dutton) discuss the sentencing and post-sentence treatment of convicted pirates.  The Introduction and Conclusion were contributed by Michael P. Scharf.

Happy reading!

Maritime Security at a Crossroads

It is our pleasure to introduce today’s contributor, Thomas Bennett, LLB MSc (Oxon) Solicitor.

bennett_master (4) publicity pgiThomas Bennett LLB MSc (Oxon) Solicitor. Thomas Bennett qualified as a corporate lawyer in 1995. He practiced corporate finance law in a ‘magic circle’ law firm in The City of London and has a higher business degree from the Saïd Business School at the University of Oxford. He was a legal adviser and business consultant to Protection Vessels International Limited thereafter Protection Group International Limited from 2010 until 2013. In 2012 Tom was a visiting professor of maritime security at the World Maritime University in Malmo Sweden. Tom is the owner of VHenry&Co. and VHenry&Co. Limited. The former is a legal practice, the latter an advisory business each specialising in the needs of the security sector (maritime, land and information security).

Somalia remains a failed state. Poverty, the absence of enforced law and psychopathy masquerading as a just cause foments an environment where money for gain, or money to finance terror, means that piracy in The Indian Ocean has not gone away. What started in the Somalian North as a tax on shipping is a continuing threat to global trade.
Still; maritime piracy has abated. Nation states have acted, armed guards have helped. The threat has been contained. Has it? It is a brave shipping company who sends an unprotected crew through the high risk area of The Indian Ocean. And if the rationale for piracy remains, then piracy remains. Somalia, lawless as it is, will wait.
Western powers will not finance armed forces to patrol the Indian Ocean indefinitely. The maritime industry will price the risk according to the threat. The probability of piracy has diminished. The business of maritime security must adjust. As the perception of threat falls, so will the cost of protection. Competition will force prices down and many armed security companies will not survive. Some will merge. Consolidation is inevitable. Or so it seems.
Maritime security is still big business. We estimate that total transit revenue in The Indian Ocean is $400 million a year. The supply chain ranges from nation states to former servicemen, maritime agents to legitimate dealers in arms. All vested interests. All of who take their piece of the whole. Today, prices for transits on vanilla routes are so low that it is hard to discern how a profit is achieved. If there is no more profit to be had, then competitive tension is designed to push all but a few players in this market to mutually assured destruction.

Regulation? Not Really
Gifting weapons to non-state actors is not without precedent. This gift does, however, breach most political theory as to who should have the right to bear arms. Regulation is and was inevitable. Law only works when it is applied to all; and regulation – the benchmark against which the use of lethal weapons is measured, should have the force of law. It does not. ISO28007 has not worked. Some have it; some do not. There are many buyers who do not require it. There are many sellers who do not bother. BIMCO’s recent endorsement of ISO28007 may help. It may be too late. Buying patterns are entrenched. Too many stand outside Anglo-centric regulatory initiatives. It is easy to do so, legally, practically. As former Royal Marines increasingly price themselves out of the market for guards, a once Anglo-centric market along with its regulatory attire, becomes increasingly irrelevant. ISO28007 may remain the standard for some; edicts from the UK may be the benchmark for others, but, economics is forcing this marketplace to change. There is a very long tail of buyers who have little time for edict; and an equally long tail of sellers who go along.
Who does; who can, police this market? Flag states perhaps. Yet the paradox of policing a market that pays well usually results in piecemeal regulation at best. After all, piracy is a diminishing threat – no vessels have been taken within corporate memory. So why change? Qui bono?
What of littoral states – those adjacent to the High Risk Area? Again, there are economic imperatives at work. Nation states and their agents do well out of maritime security. There is no overwhelming rationale for change.
What of Sri Lanka, the UAE and Oman? Sri Lanka’s place in maritime security is channelled through Avant Garde Maritime Services (AGMS) under a public private partnership with RALL. AGMS is being critically evaluated by the new government. The suggestion is that the Srisena government will change the way it regulates the way in which weapons and men are distributed to passing vessels. In which case, AGMS may lose control. But Sri Lanka, will not. Pre-AGMS, weapons were held on land and disseminated by the Sri Lankan Navy. Fees were paid. The state took control then; it may do so again.
As to Oman, or The UAE, or indeed any of the littoral states adjacent to the outflow of The Red Sea, there seems to be little real appetite to manage the risks attached to having floating armouries within sight. Floating armouries are, of course, in international waters and the UN Convention on the Law of the Sea makes a fist of keeping these states away, however, one need only ask what Her Majesty’s government might do if there was a floating armoury bobbing about within sight of Plymouth.
Which brings us back to regulation and market forces. Consolidation in the maritime security sector is inevitable. Or is it? It should be. Any standard business textbook on strategy will tell you that a market with multiple competitors will shrink to but a few. In a shrinking market, consolidation pressures are more intense. Companies will merge in order to marshal forces. Bankruptcy will emerge where sale, merger or deep pockets are absent.

Consolidation; What Consolidation?
Consolidation has not happened. Why? Some have tried to diversify (PGI). Some have gone bump (GOAGT). Some have divested then gone bump (Drum Cussac). Some are grabbing market share (Ambrey). Others do what they do, well (Diapolous). The long tail? All are out there, with shrinking margins, taking risks, fighting to the death. And it is, perhaps, in this last phrase, that the clue to this market is apparent. We have seen at first hand, how former soldiers start companies in the space and trade their fighting spirit from the military to the commercial. The enemy bears a different name. And absent commercial experience (which most do not have) the strategic confusion amongst alpha males in charge of such companies leads to a community of egos who cannot see the benefits of cooperation in a disparate market. Who, after all, if two companies merge, is going to step down and be subservient to the other? Better to die trying than take orders from someone else.
This is dangerous. In a poorly policed market, where the trade is civilians offering protection through resort to lethal force, a race to the bottom will result in cut corners. From four, to three; from two to one guard on a vessel – a poorly trained guard at that, economics and ego will force lip service to safety and the very reason guards are on vessels in the first place. Lose (no profit). Lose (no safety).

A Solution; What Solution?
Is there a solution that offers ship owners respite from this worst of all worlds; and offers the maritime security community respite from itself? There is. The answer lies in economies of scale. It lies in better logistics. It lies in cooperation and sometimes, in merger or sale. The market has already found the answer. Unfortunately it is, in its present guise, illegal and politically untenable.
The model is this. Put a cheap guard on a salary; put him on vessel after vessel with a kit box and float him around the Indian Ocean for a couple of months, avoid land, make fleeting visits to floating armouries and you have a highly efficient business with very high gross margins. Once a guard’s salary and costs are paid, the additional revenue is all gravy.
There is value in this (idealised) model. Most maritime companies do not have the infrastructure or the client base to support it. Instead, margins are decimated as a result of flights, agents’ fees, weapons storage costs, floating armoury charges, transfers, daily accommodation costs and hotels. If the next transit is a week away, profit may be lost altogether trying to keep guards in theatre. Profit will be lost sending them home. Weapons could be in the wrong place. Kit may be travelling in the wrong direction. Clever logistics management may help. But, fundamentally, a maritime security business trading on increasingly paper thin margins has to find efficiencies to survive.
Unless, of course, it has that critical mass of men, equipment and transit volume. If it has, then clever logistics and financial modelling are key. Critical mass is an absolute. And if critical mass is not an option, common sense, clear strategic thinking and sound commercial management should force decent maritime security companies to find partners to buy or merge with. Get it right and profit will increase as logistics, financial modelling, economies of scale and buying power combine to force gross and net margins up. Get it wrong and bankruptcy or closure looms. Many maritime security companies understand decent logistics, efficiencies and the bottom line. But, they have not the client base to action it. Instead, it is actioned in a piecemeal way. It is actioned in an illegal manner. These efficiencies have led to the sharing of men and in particular, weapons. Sharing weapons is illegal, it is politically charged, it is extremely dangerous.

Weapons For Hire – The Beginning of the End
Although no one has an absolutely precise figure to hand, we believe that there are at least 40,000 licensed weapons floating about or stored, ready for use, in The Indian Ocean. They sit on floating armouries, adjacent land or are in theatre under use. These weapons are not tracked on a real time basis. Companies are only put to proof when asked. In other words, regulation requires the sector to know what weapons they have and where they got them from.
Under UK law, weapons cannot be leased, or licensed, or ‘lent’. Heavy sanctions wait for those companies that do. But, the congruence of economic necessity and piecemeal regulation (many maritime security companies have nothing to do with the UK) means that weapons are passed between companies and used on a mate’s basis. For some, if weapons are not shared, the efficiencies that the smaller companies need to survive through sharing, will be lost. It is beg, borrow, or go bust.
Weapons swapping, sharing, hiring and licensing – it all leads to the same thing. It is not politically sustainable for enough arms to service a third world army to be bobbing about the sea with little idea as to who has what. The United Nations has taken notice, the US State Department has taken notice, the EU has worked it out and The British Foreign Office has been briefed.
Unless the gift of allowing private citizens to bear arms is to be taken away (or managed) by nation states once again, sensible actors within the maritime security space need to consider how best to service their shareholders and maximise profit in a highly responsible manner – merge, consolidate, sell. Choose economies of scale, clever logistics, astute modelling and commercial cooperation. There really is no alternative.
Weapons cannot and should not be traded at armouries or elsewhere. It is the beginning of the end. Equally, ship owners and charterers need to utilise their power and refuse to partake in this race to the bottom. It is, after all, the preservation of the safety of their men that is the end-game. And those that advise the maritime sector – its trade associations and the professional services who have done so well over the last five years, have to stand up for corporate social responsibility. We live in dangerous times. Somalia remains a failed state. Terrorism is prevalent in theatre. Meaningful regulation is piecemeal. Profit is being decimated. Corners are being cut. Weapons may start to go missing. There is a choice, a viable commercial solution for maritime security companies facing home truths. They must take it before it is too late.

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