A “Global War on Piracy?” International Law and the Use of Force against Sea Pirates

Abstract

In 2008, the United Nations Security Council passed a series of resolutions that authorized states to take “any means necessary” to combat piracy and armed robbery at sea in the area off the coast of Somalia. Such language, commonly understood to be an authorization for the use of military force, raises the question of whether, or under what circumstances, the international law of armed conflict can or should apply to the international effort to suppress piracy, as well as how the potential implication of this body of law might affect how states choose to address the problem of piracy in the Gulf of Aden area. Put another way, do these resolutions and subsequent state practice suggest that the global effort to combat piracy is legally tantamount to a “global war on piracy,” akin to the “global war on terror”? This chapter will argue that despite the authorizations of force adopted by the UN Security Council, the law of armed conflict does not currently apply to the global effort to suppress piracy, is not intended by states to apply, and would only do so under a very limited set of empirical circumstances. The chapter proceeds in three parts: Part I summarizes the evolution of the law of piracy from the classic law of nations to the contemporary regime centered on the United Nations Convention on the Law of the Sea (UNCLOS), wherein I observe that the use of military force against pirates has effectively been outlawed under the current regime. Part II examines whether the Security Council resolutions that purport to authorize the use of force against pirates were intended by the Council to implicate the law of armed conflict, as well as whether this body of law would prima facie apply to the anti-piracy activities off the coast of Somalia. Part III examines whether recent anti-piracy operations by states of off the coast of Somalia rise to the level of armed conflict and suggests that it would not be in states’ interests to escalate counter-piracy operations to this level.