Piracy jure gentium in territorial seas: a perspective from the East African seaboard.

Abstract

The brazen acts of Somali pirates against international shipping transiting through the Gulf of Aden and around the Horn of Africa drew global media attention between 2006 and 2012. As a countermeasure, foreign and international naval resources were deployed to the region in an attempt to interdict the perpetrators and prevent further acts, particularly because Somalia possessed no capacity to police the waters adjacent to its coast. States are granted universal jurisdiction over acts of piracy committed on the high seas or exclusive economic zones of coastal states in terms of the United Nations Convention on the Law of the Sea (UNCLOS). However, the perpetrators often committed similar piratical attacks in the territorial sea or found refuge in the territorial sea after descent from the high seas. The universal jurisdiction conferred by UNCLOS on all states does not apply in the territorial sea, where the coastal state exercise exclusive and sovereign jurisdiction. To circumvent this, the United Nations Security Council passed a series of resolutions authorising foreign naval intervention in the territorial sea. Some piratical acts could fall outside the geographical and temporal limitations of the resolutions and the study accordingly proposes the need for a permanent and binding universal enforcement regime which would extend into territorial seas in specified circumstances. The study considers two approaches to achieve this. The first approach suggests a modification of the UNCLOS provisions to extend the universal enforcement jurisdiction granted under article 105 into territorial seas. The details and procedure of such modification is set out in the study. However, it will be shown how states are protective of their sovereign rights over their respective territorial sea and their preference to maintain the current UNCLOS regime. Thus attempts to modify UNCLOS would be adversely perceived by states as an erosion of sovereign rights and would be unlikely to be adopted. A contribution of the study is to challenge this perception of states regarding the erosion of their sovereign rights over the territorial sea. The study will reveal through an exegesis and revisit of legal scholarship and juridical doctrine that the notion of absolute and exclusive sovereignty is built upon a hollow historical foundation and there is an evolving contemporary jurisprudence to suggest an erosion of traditional concepts of maritime sovereignty. The second approach turns to the east African seaboard and reveals from a continental perspective that there is a movement away from these traditional notions of sovereignty in the direction of the facilitation of international and regional cooperation, collaboration, intervention and pooling of resources in respect of maritime security. Against this background the second approach in this study proposes a model which is complementary to the existing UNCLOS regime and has a permanent and wide geographical application. Under this model, the role of the African Union to intervene in member states is highlighted. The proposed model facilitates the exercise of universal enforcement jurisdiction over piratical acts committed in the territorial sea by descent from the high seas or exclusive economic zone. This special jurisdiction is exercised under specified circumstances under the aegis of the African Union and through its institutional framework, particularly the African Standby Force and Continental Early Warning System.