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December 2, 2008

Security Council passes new piracy resolution

The UN Security Council today acted to strengthen international efforts to fight piracy off the coast of Somalia by expanding the mandate of States and regional organizations working with Somali officials towards that aim.

To what extent the Security Council blessing will encourage more countries to deploy more assets against the pirates--and use them more vigorously--only time will tell. What follows is pretty much the full text of the official UN Press release, followed by the text of the resolution. It all comes down to how governments decide to interpret such phrases as " all necessary means" and "disposing of" ...

The Council decided that during the next 12 months States and regional organizations cooperating with the Somali Transitional Federal Government (TFG) may enter Somalia's territorial waters and use "all necessary means" -- such as deploying naval vessels and military aircraft, as well as seizing and disposing of boats, vessels, arms and related equipment used for piracy -- to fight piracy and armed robbery at sea off the Somali coast, in accordance with relevant international law.

States and regional organizations cooperating with Somali authorities were also requested to provide the Council and the Secretary-General with a progress report on their actions within nine months.

The Council expressed its concern over the findings of a November 20 report of the Monitoring Group on Somalia that escalating ransom payments were fuelling a growth in piracy off the Somali coast. It called upon States, the International Maritime Organization (IMO), and the shipping and insurance industries to appropriately advise and guide ships on how to avoid, evade and defend themselves against attack, as well as provide Somalia and nearby coastal States with technical assistance to ensure coastal and maritime security.

The text agreed by the Council affirms that the authorizations apply only with respect to the situation in Somalia. It underscores, in particular, that the resolution shall not be considered as establishing customary international law and, further, that the authorizations have been provided only following the receipt of a November 20 letter conveying the consent of the Transitional Federal Government.

The resolution also welcomes initiatives by Canada, Denmark, France, India, Netherlands, Russian Federation, Spain, United Kingdom and the United States, and by regional and international organizations, to counter piracy off the Somalia coast pursuant to resolutions 1814 (2008), 1816 (2008) and 1838 (2008), as well as the decision by the European Union to launch for a period of 12 months from December 2008 a naval operation to protect World Food Programme (WFP) maritime convoys bringing humanitarian assistance to Somalia, and other vulnerable ships.

After adoption of the resolution, Zhang Yesui ( China) noted that piracy had become more rampant and was posing increasingly grave threats to international humanitarian assistance and navigational security, with dire consequences for the international economy and the lives of Somalians. However, piracy was merely a symptom of a larger Somali crisis, and it was important not to lose sight of its root causes. A reconciliation process was needed to resolve disputes between Somalia's various factions and promote economic development. He called on the international community to truly support the work of the African Union Mission to Somalia (AMISOM), as well as on the Council to heed the appeal of Somali and African Union officials to support early deployment of a United Nations peacekeeping force and for the various factions involved to create favourable conditions for deployment.

Marty Natalegawa (Indonesia) strongly supported flag States and others that had fallen prey to piracy, saying there should be "no doubt on the importance of enhancing cooperation" among States to curb such acts. Resolution 1816 (2008) and subsequent resolutions provided a strong legal foundation for States to meet that objective. Piracy in Somalia was due to political conflict, lawlessness and poor law enforcement. The international community must translate words into deeds on the ground, with greater immediate support to AMISOM and the political process, as well as international military resources over the long term. The Council must pay more attention to those issues, including at its ministerial meeting later in the month. He said his support for the resolution was based on the understanding that its provisions would not affect the rights, obligations and responsibilities of Member States under the United Nations Convention on the Law of the Sea and should not be considered as establishing customary international law.

Vitaly Churkin (Russian Federation) also expressed concern over the increasing sophistication and strength of the pirates. The Russian Federation was involved in international anti-piracy efforts that had already rebuffed several attacks, and it was considering sending more naval forces to add strength to the international fleet. The United Nations, States, regional organizations and the IMO played an important role in curbing piracy and warding off future attacks. That required proper coordination, he said, noting that the resolution adopted today was a step forward. Combating piracy required greater focus and the appropriate jurisdiction for bringing the culprits to justice. However, a long-term solution to the Somali problem would only be possible through a comprehensive political settlement in that country, aided by the United Nations and the African Union.

In a similar vein, Aldo Mantovani (Italy) said that, in adopting the resolution, the Council had made the fight against piracy stronger, more coordinated and more effective. It also had provided for clear guidelines to Member States already involved in the anti-piracy effort such as States members of the North Atlantic Treaty Organization (NATO). Piracy off the coast of Somalia resulted from Somalia's dire humanitarian and political crisis during the last nine years, he said, stressing that it was incumbent upon the Council to bring peace and stability to that country. He also expressed hope that the Council's ministerial meeting in mid-December would provide an opportunity to change gears, with the aim of truly helping the Somali people who had suffered for more than 15 years.

The meeting began at 11:25 a.m. and ended at 11:40 a.m.

Council Resolution

The full text of resolution 1846 (2008) reads, as follows:

"The Security Council,

"Recalling its previous resolutions concerning the situation in Somalia, especially resolutions 1814 (2008), 1816 (2008) and 1838 (2008),

"Continuing to be gravely concerned by the threat that piracy and armed robbery at sea against vessels pose to the prompt, safe and effective delivery of humanitarian aid to Somalia, to international navigation and the safety of commercial maritime routes, and to other vulnerable ships, including fishing activities in conformity with international law,

"Reaffirming its respect for the sovereignty, territorial integrity, political independence and unity of Somalia,

"Further reaffirming that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982 ("the Convention"), sets out the legal framework applicable to combating piracy and armed robbery at sea, as well as other ocean activities,

"Taking into account the crisis situation in Somalia, and the lack of capacity of the Transitional Federal Government ("TFG") to interdict pirates or patrol and secure either the international sea lanes off the coast of Somalia or Somalia's territorial waters,

"Taking note of the requests from the TFG for international assistance to counter piracy off its coasts, including the 1 September 2008 letter from the President of Somalia to the Secretary-General of the United Nations expressing the appreciation of the TFG to the Security Council for its assistance and expressing the TFG's willingness to consider working with other States and regional organizations to combat piracy and armed robbery at sea off the coast of Somalia, the 20 November 2008 letter conveying the request of the TFG that the provisions of resolution 1816 (2008) be renewed, and the 20 November request of the Permanent Representative of Somalia before the Security Council that the renewal be for an additional 12 months,

"Further taking note of the letters from the TFG to the Secretary-General providing advance notification with respect to States cooperating with the TFG in the fight against piracy and armed robbery at sea off the coast of Somalia and from other Member States to the Security Council to inform the Council of their actions, as requested in paragraphs 7 and 12 of 1816 (2008), and encouraging those cooperating States, for which advance notification has been provided by the TFG to the Secretary-General, to continue their respective efforts,

"Expressing again its determination to ensure the long-term security of World Food Programme (WFP) maritime deliveries to Somalia,

"Recalling that in its resolution 1838 (2008) it commended the contribution made by some States since November 2007 to protect (WFP) maritime convoys, and the establishment by the European Union (EU) of a coordination unit with the task of supporting the surveillance and protection activities carried out by some member States of the European Union off the coast of Somalia, as well as other international and national initiatives taken with a view to implementing resolutions 1814 (2008) and 1816 (2008),

"Emphasizing that peace and stability within Somalia, the strengthening of State institutions, economic and social development and respect for human rights and the rule of law are necessary to create the conditions for a full eradication of piracy and armed robbery at sea off the coast of Somalia,

"Welcoming the signing of a peace and reconciliation Agreement ("the Djibouti Agreement") between the TFG and the Alliance for the Re-Liberation of Somalia on 19 August 2008, as well as their signing of a joint ceasefire agreement on 26 October 2008, noting that the Djibouti Agreement calls for the United Nations to authorize and deploy an international stabilization force, and further noting the Secretary-General's report on Somalia of 17 November 2008, including his recommendations in this regard,

"Commending the key role played by the African Union Mission to Somalia (AMISOM) in facilitating delivery of humanitarian assistance to Somalia through the port of Mogadishu and the contribution that AMISOM has made towards the goal of establishing lasting peace and stability in Somalia, and recognizing specifically the important contributions of the Governments of Uganda and Burundi to Somalia,

"Welcoming the organization of a ministerial meeting of the Security Council in December 2008 to examine ways to improve international coordination in the fight against piracy and armed robbery off the coast of Somalia and to ensure that the international community has the proper authorities and tools at its disposal to assist it in these efforts,

"Determining that the incidents of piracy and armed robbery against vessels in the territorial waters of Somalia and the high seas off the coast of Somalia exacerbate the situation in Somalia which continues to constitute a threat to international peace and security in the region,

"Acting under Chapter VII of the Charter of the United Nations,

"1. Reiterates that it condemns and deplores all acts of piracy and armed robbery against vessels in territorial waters and the high seas off the coast of Somalia;

"2. Expresses its concern over the finding contained in the 20 November 2008 report of the Monitoring Group on Somalia that escalating ransom payments are fuelling the growth of piracy off the coast of Somalia;

"3. Welcomes the efforts of the International Maritime Organization ("IMO") to update its guidance and recommendations to the shipping industry and to Governments for preventing and suppressing piracy and armed robbery at sea and to provide this guidance as soon as practicable to all Member States and to the international shipping community operating off the coast of Somalia;

"4. Calls upon States, in cooperation with the shipping industry, the insurance industry and the IMO, to issue to ships entitled to fly their flag appropriate advice and guidance on avoidance, evasion, and defensive techniques and measures to take if under the threat of attack or attack when sailing in the waters off the coast of Somalia;

"5. Further calls upon States and interested organizations, including the IMO, to provide technical assistance to Somalia and nearby coastal States upon their request to enhance the capacity of these States to ensure coastal and maritime security, including combating piracy and armed robbery at sea off the Somali and nearby coastlines;

"6. Welcomes initiatives by Canada, Denmark, France, India, the Netherlands, the Russian Federation, Spain, the United Kingdom, the United States of America, and by regional and international organizations to counter piracy off the coast of Somalia pursuant to resolutions 1814 (2008), 1816 (2008) and 1838 (2008), the decision by the North Atlantic Treaty Organization (NATO) to counter piracy off the Somalia coast, including by escorting vessels of the WFP, and in particular the decision by the EU on 10 November 2008 to launch, for a period of 12 months from December 2008, a naval operation to protect WFP maritime convoys bringing humanitarian assistance to Somalia and other vulnerable ships, and to repress acts of piracy and armed robbery at sea off the coast of Somalia;

"7. Calls upon States and regional organizations to coordinate, including by sharing information through bilateral channels or the United Nations, their efforts to deter acts of piracy and armed robbery at sea off the coast of Somalia in cooperation with each other, the IMO, the international shipping community, flag States, and the TFG;

"8. Requests the Secretary-General to present to it a report, no later than three months after the adoption of this resolution, on ways to ensure the long-term security of international navigation off the coast of Somalia, including the long-term security of WFP maritime deliveries to Somalia and a possible coordination and leadership role for the United Nations in this regard to rally Member States and regional organizations to counter piracy and armed robbery at sea off the coast of Somalia;

"9. Calls upon States and regional organizations that have the capacity to do so, to take part actively in the fight against piracy and armed robbery at sea off the coast of Somalia, in particular, consistent with this resolution and relevant international law, by deploying naval vessels and military aircraft, and through seizure and disposition of boats, vessels, arms and other related equipment used in the commission of piracy and armed robbery off the coast of Somalia, or for which there is reasonable ground for suspecting such use;

"10. Decides that for a period of 12 months from the date of this resolution States and regional organizations cooperating with the TFG in the fight against piracy and armed robbery at sea off the coast of Somalia, for which advance notification has been provided by the TFG to the Secretary-General, may:

(a) Enter into the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law; and

(b) Use, within the territorial waters of Somalia, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law, all necessary means to repress acts of piracy and armed robbery at sea;

"11. Affirms that the authorizations provided in this resolution apply only with respect to the situation in Somalia and shall not affect the rights or obligations or responsibilities of Member States under international law, including any rights or obligations under the Convention, with respect to any other situation, and underscores in particular that this resolution shall not be considered as establishing customary international law; and affirms further that such authorizations have been provided only following the receipt of the 20 November letter conveying the consent of the TFG;

"12. Affirms that the measures imposed by paragraph 5 of resolution 733 (1992) and further elaborated upon by paragraphs 1 and 2 of resolution 1425 (2002) do not apply to supplies of technical assistance to Somalia solely for the purposes set out in paragraph 5 above which have been exempted from those measures, in accordance with the procedure set out in paragraphs 11 (b) and 12 of resolution 1772 (2007);

"13. Requests that cooperating States take appropriate steps to ensure that the activities they undertake pursuant to the authorization in paragraph 10 do not have the practical effect of denying or impairing the right of innocent passage to the ships of any third State;

"14. Calls upon all States, and in particular flag, port and coastal States, States of the nationality of victims and perpetrators of piracy and armed robbery, and other States with relevant jurisdiction under international law and national legislation, to cooperate in determining jurisdiction, and in the investigation and prosecution of persons responsible for acts of piracy and armed robbery off the coast of Somalia, consistent with applicable international law including international human rights law, and to render assistance by, among other actions, providing disposition and logistics assistance with respect to persons under their jurisdiction and control, such victims and witnesses and persons detained as a result of operations conducted under this resolution;

"15. Notes that the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation ("SUA Convention") provides for parties to create criminal offences, establish jurisdiction, and accept delivery of persons responsible for or suspected of seizing or exercising control over a ship by force or threat thereof or any other form of intimidation; urges States parties to the SUA Convention to fully implement their obligations under said convention and cooperate with the Secretary-General and the IMO to build judicial capacity for the successful prosecution of persons suspected of piracy and armed robbery at sea off the coast of Somalia;

"16. Requests States and regional organizations cooperating with the TFG to inform the Security Council and the Secretary-General within nine months of the progress of actions undertaken in the exercise of the authority provided in paragraph 10 above;

"17. Requests the Secretary-General to report to the Security Council within 11 months of adoption of this resolution on the implementation of this resolution and on the situation with respect to piracy and armed robbery in territorial waters and the high seas off the coast of Somalia;

"18. Requests the Secretary-General of the IMO to brief the Council on the basis of cases brought to his attention by the agreement of all affected coastal States, and duly taking into account the existing bilateral and regional cooperative arrangements, on the situation with respect to piracy and armed robbery;

"19. Expresses its intention to review the situation and consider, as appropriate, renewing the authority provided in paragraph 10 above for additional periods upon the request of the TFG;

"20. Decides to remain seized of the matter."


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