Andreas von Arnauld

Die moderne Piraterie und das Völkerrecht

Section: Treatises
Archiv des Völkerrechts (AVR)

Volume 47 () / Issue 4, pp. 454-480 (27)

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Modern piracy poses challenges to international law. Long-standing customary rules, as codified in art. 100–107 and 110 UNCLOS, are being confronted with changing realities and with a change of normative contexts. In this light, the essay comments on the key questions regarding the seizure of pirate ships and treatment of pirates. While the narrow definition of piracy in art. 101 UNCLOS is helpful in pressing for a differentiated strategy in the repression of piracy on the one hand and of terrorism on the other, it is clearly hampered by excluding piracy outside the high seas and the exclusive economic zone. With respect to the right to seizure, the case of Somalia has proven that it is possible to extend the operating range even to the coastal waters of failed states via chapter VII of the U.N. Charter without sacrificing state sovereignty as such. More problematic is the limitation on the duty to cooperate in the repression of piracy as laid down in art. 100 UNCLOS. Still, art. 100 implies that a coastal state must not give safe haven to pirates operating on the high seas. Furthermore, the coastal state is obliged by general principles of international law to undertake reasonable efforts to protect foreign ships against attacks in its own territorial waters. These obligations, however, could and should be spelled out in more detail – either by a specific treaty or by a U.N. Security Council resolution akin to Res. 1373 (2001). With regard to the treatment of pirates, the traditional notion of hostis humani generis is somewhat outdated and should only be used in metaphorical sense today. Repressing piracy is not combatting an enemy. Police actions should not be mixed up with war. There is no reason to repeat the fateful errors in the so-called war on terrorism. Also the idea of an outlaw does not fit into the human rights context of modern international law. Mapping out a multinational anti-piracy mission surely is a major strategic and logistic endeavour. However, there should be room for an integration of the human rights aspects, e.g. by including rules on the treatment of arrested pirates or incorporating a judicial component into the mission. In the end, an international court dealing with piracy might prove a viable solution. Policing the seas, however, only means dealing with symptoms. The operations off the coast of Somalia may be a fine example of multilateralism in action. But to deal with the causes of modern piracy more multilateral action is needed. Necessary progressive development notwithstanding, international law already has the guiding principles for this process.

Andreas von Arnauld ist Inhaber des Lehrstuhls für Öffentliches Recht mit Schwerpunkt Völker- und Europarecht und Direktor des Walther-Schücking-Instituts an der Christian-Albrechts-Universität zu Kiel.