The Security Council as Global Legislator by Vesselin Popovski & Trudy Fraser

Author:Vesselin Popovski & Trudy Fraser [Popovski, Vesselin & Fraser, Trudy]
Language: eng
Format: epub
Tags: Law, International, Political Science, General, International Relations, Security (National & International), Treaties, NGOs (Non-Governmental Organizations)
ISBN: 9780415743372
Google: 0j_1ngEACAAJ
Goodreads: 18700119
Publisher: Routledge
Published: 2014-01-15T13:42:38+00:00

Horizon scanning: going beyond “stating the obvious”

So far, this chapter has assumed a neo-realist point of view in disseminating the impact and efficacy of Security Council resolutions on Somali piracy, but let us step back from the particular case of Somalia to take a look at the bigger picture, and at the foreseeable future. For that purpose, it is necessary to introduce a concept developed in the context of the global “War on Terror”: maritime domain awareness (MDA). Prior to 9/11, governments had only a very hazy picture of what was happening out at sea, and beyond the radar horizon of our ports, with the notable exceptions of the Caribbean or the North Sea. Unlike other concepts developed in the wake of 9/11, MDA was more than a buzzword and translated into actionable policy. Several outcomes of MDA are technical—the Automated Identification System (AIS) and the Long-range Identification and Tracking System (LRIT). These tracking devices follow ships’ movements at sea. Arguably, the AIS and LRIT paint only a very grainy picture, but having any idea where vessels are and what they are doing is a step in the right direction with regard to maritime safety and security. These systems also have the potential to allow for timely interventions in the event of a vessel being in distress—whether that distress is caused by weather or waves, an engine fire or a pirate attack. Improved MDA results in better policing of the seas, which also improves maritime governance.

Fighting piracy and other crimes at sea such as drug smuggling, human trafficking, toxic waste dumping, or IUU is not easy from a practical perspective—the lessons learned off the shores of Somalia demonstrate that there are never enough ships, never enough helicopters, and never enough maritime patrol aircraft. However, these are technical and logistical problems that can be overcome, and there is a lot of effort being exerted in this direction. Legal issues, though, are much harder to overcome than technical and logistical problems. For example, UNCLOS Article 100 stipulates that “[all] States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State,”21 while Article 105 clarifies that any state’s navy or coast guard may seize a pirate ship on the high seas:

On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.22

The IMO Maritime Security Committee (MSC), however, added in its Circular 1444Interim Guidance for Flag States on Measures to Prevent and Mitigate Somalia-based

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