It is several years that the territorial sovereignty effective exercise in Somalia is undermined by a the civil war spreading in different areas of its territory. At the current stage a particularly weak transitional government is artificially in force according to the United Nations specific purpose to avoid that the Somali territory is acquired for occupation, as it happened in the colonial countries in the past. The political instability and the increasing poverty in Somalia as well as in other coastal parts of Africa have contributed to the fervent and awful resurgence of the maritime piracy crime, which is particularly marked where the governments are not able to watch the territorial waters off their coasts. Much of the international effort to face has focused on prevention and prosecution of the hostilities at sea that affect the security of vessels transiting the piracy infested areas. Indeed, international law provides States with considerable powers when interested in persecuting such crime. In particular, according to the customary principle set forth in Article 105 of the United Nations Convention on the Law of the Sea, in international waters, a pirate ship and its crew may be subject to the jurisdiction of any State. However, the significant human and economic damages generated by modern piracy are still increasing nowadays, whereas the effective exercise of universal jurisdiction before domestic courts is not enforced yet and suspected pirates are consequently persecuted very rarely. In order to overcome the obstacles to respond to maritime piracy arising from the non-exercise of sovereignty on land as well as on territorial waters of the so called failed states, the new practice of adopting regional cooperation agreements is becoming more and more common. More in detail, a wide range of such agreements, well encouraged by the International Maritime Organisation, is signed on the one side by Western-Countries which engage their military forces to patrol the piracy high risk areas and, on the other side, by African countries, which agree both to persecute and, possibly, to put in prison suspected pirates. Moreover, proper forms of regional jurisdiction, contemplated in specific programmes aimed at creating specialised tribunals in Puntland and in other federal regions in Somalia as well as in other neighbouring countries, including Kenya, Seychelles and, as from September 2012, Mauritius, prove the increasing trend towards the overcome of the territorial dimension of the jurisdiction. In theory, several and significant advantages can arise from such regional cooperation agreements. It seems predictable, however, a further erosion of the internal sphere of competence of States as a consequence of the increasing influence of the international rules. It is also predictable, in conclusion, the possible breach of human right of suspected pirates in the absence of specific rules clarifying who would be possibly responsible, and consequently, who would exercise the relevant jurisdiction, in the case of violation of such rights.
New Forms of Regional Cooperation as Counter-Piracy Measures beyond the Territory of Somalia
Giorgia Bevilacqua
2015
Abstract
It is several years that the territorial sovereignty effective exercise in Somalia is undermined by a the civil war spreading in different areas of its territory. At the current stage a particularly weak transitional government is artificially in force according to the United Nations specific purpose to avoid that the Somali territory is acquired for occupation, as it happened in the colonial countries in the past. The political instability and the increasing poverty in Somalia as well as in other coastal parts of Africa have contributed to the fervent and awful resurgence of the maritime piracy crime, which is particularly marked where the governments are not able to watch the territorial waters off their coasts. Much of the international effort to face has focused on prevention and prosecution of the hostilities at sea that affect the security of vessels transiting the piracy infested areas. Indeed, international law provides States with considerable powers when interested in persecuting such crime. In particular, according to the customary principle set forth in Article 105 of the United Nations Convention on the Law of the Sea, in international waters, a pirate ship and its crew may be subject to the jurisdiction of any State. However, the significant human and economic damages generated by modern piracy are still increasing nowadays, whereas the effective exercise of universal jurisdiction before domestic courts is not enforced yet and suspected pirates are consequently persecuted very rarely. In order to overcome the obstacles to respond to maritime piracy arising from the non-exercise of sovereignty on land as well as on territorial waters of the so called failed states, the new practice of adopting regional cooperation agreements is becoming more and more common. More in detail, a wide range of such agreements, well encouraged by the International Maritime Organisation, is signed on the one side by Western-Countries which engage their military forces to patrol the piracy high risk areas and, on the other side, by African countries, which agree both to persecute and, possibly, to put in prison suspected pirates. Moreover, proper forms of regional jurisdiction, contemplated in specific programmes aimed at creating specialised tribunals in Puntland and in other federal regions in Somalia as well as in other neighbouring countries, including Kenya, Seychelles and, as from September 2012, Mauritius, prove the increasing trend towards the overcome of the territorial dimension of the jurisdiction. In theory, several and significant advantages can arise from such regional cooperation agreements. It seems predictable, however, a further erosion of the internal sphere of competence of States as a consequence of the increasing influence of the international rules. It is also predictable, in conclusion, the possible breach of human right of suspected pirates in the absence of specific rules clarifying who would be possibly responsible, and consequently, who would exercise the relevant jurisdiction, in the case of violation of such rights.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
