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Somali Piracy Exposes Weakness in UN Law of the Sea

The explosion of piracy off the coast of Somalia in recent years has exposed a weakness in the United Nations maritime law that makes high seas piracy illegal throughout the world.

In the waters off Somalia's nearly 4,000-kilometer-long coast, warships from more than a dozen countries have formed what U.N. Secretary General Ban Ki-moon recently described as "one of the largest anti-piracy flotillas in modern history."

Ships from NATO, European Union member states, and others have been dispatched there in recent months to fight a sharp upsurge in the hijacking of vessels and crew for ransom. The United Nations says the 111 pirate attacks that took place last year in the sea corridor linking the Suez Canal and the Indian Ocean represent an increase of nearly 200 percent over 2007.

Operating from remote fishing communities in northeastern and central Somalia, pirates have earned tens - perhaps even hundreds - of millions of dollars in ransom. They have disrupted global trade and have caused untold damage to the world's economy.

Horn of Africa analyst at Chatham House in London, Roger Middleton, says the international community must take some of the blame for the calamity.

"Part of the thing is that people looked at Somalia and said, 'This country is so messed up, there is no point in worrying about it. They will just fight among themselves and there will be no consequences for the rest of the world.' And actually there are consequences for the rest of the world, which we are beginning to see now," Middleton said.

In 1991, Somalia descended into war after the fall of the regime of dictator Mohamed Siad Barre. During the next decade, some European and Asian countries took advantage of the chaos in Somalia and sent their commercial fleets to fish in Somali waters. Other European countries sent to Somalia thousands of drums of toxic waste, including nuclear waste, to be dumped at sea.

Without a coast guard to monitor and prevent such illegal activities, Somali fishermen began organizing and arming themselves to confront waste dumpers and to collect fees from foreign vessels taking fish out of their waters. Middleton says what began as a legitimate fight against foreign exploitation turned into a criminal enterprise when everyone discovered its lucrative potential.

"Lots of people who are pirates now are not from coastal villages. They are not fishermen. They are from inside, former militiamen and they are motivated entirely by money. The fact that illegal fishing and dumping of toxic waste still goes on in Somalia is excellent PR [public relations] for the pirates. It means that when they capture a ship and they talk to a news organization and say, 'We are just defending Somali waters,' and so on, that plays very well in the communities they need to get support from along the coast," he said.

The warships patrolling the Gulf of Aden and the Indian Ocean are doing so under the legal framework of the United Nations Convention on the Law of the Sea and Security Council resolutions.

Signed in 1982 by more than 150 countries, the Law of the Sea defines piracy as illegal acts committed on the high seas for private ends. It also states that all countries have a right to seize and prosecute those committing pirate acts on the high seas.

But maritime law specialists say the convention clearly did not consider the emergence of failed states like Somalia, and neglected to address the question of what happens if a pirate attack takes place not on the high seas, but within a country's territorial waters or in its neighbor's waters.

The international law on piracy assumes that individual states would assume the responsibility of policing and patrolling their own waters and to prosecute those seized in the act of piracy. But not all states have the resources and capacity to ensure maritime security within their waters. This is now being highlighted by the on-going piracy problem in Somalia, which after 18 years is still trying to establish a functioning government.

In recent months, Somalia's neighbor, Kenya, has signed memorandums of understanding with the United States, Britain, and the European Union to accept suspected pirates and to prosecute them in Kenya. But those agreements have come under fire from local and international human rights groups and lawyers, who argue that Kenya has yet to pass relevant laws regarding piracy and that its corrupt judicial system cannot be trusted to conduct free and fair trials.

Kenya's Foreign Minister Moses Wetangula has defended the government's position, saying Kenya is making an important contribution toward restoring maritime security in east Africa. But in a speech before a gathering of foreign envoys in Nairobi last December, he acknowledged the piracy problem is likely to continue unless Somalia achieves political stability.

"Partly, this menace is born out of our collective failure to resolve the problems of Somalia," he said. "It is the lawlessness of Somalia that has given the breeding ground for what is now an unprecedented threat to trade activities, to cruise ships, to many things."

The international community agrees that a multilateral approach is needed to tackle the piracy issue. Within the United Nations, there has been serious debate about whether to create a maritime peacekeeping force for Somalia.

Somalis say they believe if the international community had cared about what was happening off the coast of Somalia in the 1990s, there would be no crisis to resolve now.