Somalian Pirates We!

In the battle against the ever-increasing threat of piracy off the coast of Somalia, a court has finally entered the fray. The court in question is Dutch, and in a recent decision stepped in to prevent a 14-year old girl from sailing off on her own to join the Somali pirates. Typically, the girl claimed she only wanted to break the record for the youngest solo circumnavigation of the world by sail. The truth however is painfully obvious: under the influence of torrent websites and Johnny Depp, youngsters from around the world are unable to resist the romance of piracy, and are setting sail to Somalia to sign up.

Striking a blow against Somali piracy, the momentous Dutch decision responded to a simple question: with no credible Somali government, who else was going to do it? And why shouldn’t a country enforce laws for someone else – look at Belgium’s fancy “universal jurisdiction” law. These questions go to a problem at the heart of public international law today: the “law is power” conundrum. In private international law, states in recent history have been moving further and further from a power-based model towards one founded on international comity. Globalisation rhetoric would have us believe that public international law is doing the same, but the Somali piracy issue belies this notion.

Somalia today, along with a handful of other places such as Pakistan’s tribal regions and Longueuil, provides the only instance outside of 18^th century political theory of a “state of nature”, a law-free area devoid of central authority. Unfortunately for Rousseau, these places have turned out to be distinctly Hobbesian. How is law to impose itself in the void? Simply put, it doesn’t. The only law in Somalia is power, and as money, weapons, and territory shift from one faction to another, so does the power and the law. After the movie “Black Hawk Down”, the international community gave up on creating a Somali government, and was content with chaos until it fostered the pirates now plaguing the international shipping world. So it once again became necessary to impose law – this time on Somalia’s seas.

How could the world of laws force pirates to abide by the rules? First there was the comedy comity approach: a year ago the UN Security Council imposed sanctions on the pirates, to be enforced by the titular Somali central government. Unfortunately, as one news source understated it, “enforcing the sanctions poses steep challenges […] as those responsible for much of the anarchy plaguing the country are well outside any traditional finance system.” So it became necessary to lay down the real law: power. This came in the form of Combined Task Force 150, a US-led international naval force (soon to include Canada’s HMCS Fredericton) patrolling the region around Somalia’s coast. Of course for good measure, the naval operation was given legal legitimacy by UN Security Council Resolution 1838. Resolution 1851 even allows states to conduct land-based operations in Somalia to combat piracy.

From a legal perspective, it’s more comforting to see a Dutch court take action against a teenage would-be she-pirate than it is to see unilateral military force deployed in a legal vacuum. Nevertheless, at the very least we can be reassured that the lawless Somali “state of nature” is restricted to affecting just the unfortunate residents of that non-state. The only problem is that in a world where law is power, a territory with no central authority is equally lawless for locals and foreigners.

Prior to the outbreak of large-scale Somali swashbuckling, some Europeans found it very convenient to have a legal no-man’s-land in Somalia. The UN Environmental Program found that Italian and Swiss companies dumped toxic waste in Somali waters in violation of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (BCCTMHWTD?). Other Western companies capitalized on the non-existence of a Somali government to help themselves to the fish, shrimp and lobster of Somalia’s territorial seas – and used prohibited fishing methods. The pirates with their brute force have been more effective than the “government” at combating these practices. The Belgians would understand: if the pirates didn’t enforce these laws, who else would?

The power dynamics that impel all public international law tend to be hidden (sometimes successfully, sometimes not) behind international dialogue. But in Somalia, where there is no one to have a dialogue with, the driving force at the core of public international law – power – is open for all to see. In this legal void foreigners can treat the territory as a restraint-free playground; pirates can then hijack foreign ships with (relative) impunity; and finally, foreign militaries can crack down on the pirates.

And with the Dutch ruling, so can foreign courts! Though if they had started sooner there might not be so many wannabe-pirates enjoying swashbuckler hospitality as we speak…

Circumnavigating the globe, eh?...

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