Human Rights and Piracy – Legal Research and Soft Law Development

090211-N-1082Z-111U.S. Navy photo by Mass Communications Specialist 2nd Class Jason R. Zalasky/Released

Human Rights and Piracy

Introduction

Human Rights at Sea (HRAS) is working closely with Dr. Anna Petrig for both the on-going legal research and development of ‘Human Rights and Piracy’ as part of the HRAS series of International Project programmes, and as a valued member of the HRAS Board of Advisors.

The depth of practical, legal and academic maritime expertise that HRAS is able to call upon is world-class. This programme is focused at further developing the Piracy subject matter area through the first-hand experience of international practitioners and providing a pro bono platform to showcase their contributions to the subject matter area.

HRAS provides web links to academic materials, but itself does not charge for any materials produced as part of the programme.

 


 

Aim

The Aim of the Human Rights and Piracy programme is to research and develop world-class soft law guidance in response to the global piracy issue with a specific focus on the application of human rights at sea.

 


 

Overview on “Human Rights and Piracy”

The UN Security Council has set an ambitious goal for itself: the full and durable eradication of piracy and armed robbery at sea. In order to achieve this goal, it has set up an ad hoc legal framework authorizing counter-piracy enforcement measures in Somali territorial waters and on its mainland (Security Council Resolutions 1846 and 1851 as prolonged). These resolutions supplement the existing legal instruments to combat piracy on the high seas – in particular the United Nations Convention on the Law of the Sea of 1982 (UNCLOS) and the Convention on the High Seas of 1958 (HSC).

Credit EU Navfor Flagship FS DE Grasse disrupts pirate action groupCredit-EU-Navfor-Flagship-FS-DE-Grasse-disrupts-pirate-action-group

The exercise of the rather far-reaching counter-piracy enforcement powers granted by vir­tue of the LOSC, the HSC and the respective Security Council Resolutions – notably interdiction, seizure, arrest, and the imposition of penalties – implies the use of force and coercion. But neither legal instrument indicates the allowable amount of force or coercion. And yet: even though the legal instruments governing counter-piracy operations do not explicitly mention the applicable human rights norms, enforcement powers cannot be exercised in a legal vacuum and ad libitum. Rather, their exercise is restricted by the application of general human rights law as confirmed by an increasing number of court decisions, most notably in the European Court of Human Rights (ECHR).

While there is general agreement today that human rights, as a set of fundamental guarantees, apply in the maritime environment, there is some legal uncertainty as to their application in concreto. As regards counter-piracy operations, various factors contribute to this uncertainty.

First of all, patrolling naval States generally exercise counter-piracy enforcement powers in maritime areas not under their sovereignty and thus extraterritorially. The requirements for the extraterritorial application of human rights in a maritime environment are not yet developed to the same extent as they are for land-based police operations beyond a State’s territory. Furthermore, within the specific context of maritime operations and most importantly, with enforcement measures being taken on board a ship far away from the domestic authorities, this raises the question to what extent deviations from ordinary standards are allowed and promoted through national maritime policies (for example, the applicability of the ordinary land time limit to bring a criminal suspect before a judge).

Another source of uncertainty is the fact that counter-piracy missions are often composed of military, rather than police forces. Often, domestic provisions constraining enforcement powers are applicable to police forces only and their extension ratione personae to military personnel is questionable.

Finally, counter-piracy operations are often directed by multinational missions composed of different contributing States and, at times, even involving the European Union or other international organization. This raises complex jurisdictional issues, notably as regards the applicable law and its potentially different interpretation by the various actors. Moreover, in case of alleged human rights violations, their attribution is an intricate question, which has not yet been answered in a uniform way by case law and doctrine.

Human Rights at Sea and its International Programme for Piracy works towards the clarification of issues in relation to the applicability of human rights to counter-piracy operations and the content of specific rights in this specific operational context. Its research contributes to the realization of the principle that human rights apply at sea as equally as they do on land.


 

Research on Human Rights and Piracy

Anna Petrig Book

Anna Petrig, Human Rights and Law Enforcement at Sea: Arrest, Detention and Transfer of Piracy Suspects, Brill/Nijhoff, 2014, 500 pages.

Abstract

Law enforcement at sea has become an increasingly important tool for combating transnational crime. Such law enforcement operations are commonly directed by multinational missions composed of military rather than police forces, and are often carried out in maritime areas not subject to national jurisdiction. Because of these characteristics, maritime law enforcement operations touch upon many unresolved human rights issues. In the present study, counter-piracy operations off the coast of Somalia and in the Indian Ocean serve as the quintessential example of how law enforcement measures taken at sea may fall short of international human rights standards.

An unprecedented number of national and multinational missions have been deployed to counter the phenomenon of piracy off the coast of Somalia and in the region. Their mandate includes the arrest, detention and transfer for prosecution of piracy suspects. The book at hand examines the procedures pertinent to the decision whether to release piracy suspects, prosecute them in the seizing State or transfer them to a third State, and the detention regime pending such decisions. The study provides a critical analysis of the compatibility of these procedures with international law, first and foremost human rights law. Using piracy as an example, it demonstrates that the characteristics of national and multinational law enforcement at sea may lead to a deviation from certain human rights standards – standards that the States in question readily accept and apply in their land-based, territorial law enforcement operations. At the centre of the analysis are two unique case studies, which provide insight into the arrest, detention and transfer procedures in both a multinational context and a purely interstate setting.

This work is a valuable contribution to legal scholarship dealing with the human rights dimension of maritime law enforcement operations. It is a useful, timely and innovative resource for both academics and legal practitioners alike, or any person interested in the applicability and scope of human rights norms in the maritime context.

LINK: www.brill.com/products/book/human-rights-and-law-enforcement-sea


 Petrig MARSAFENET 2

Anna Petrig, Transfers of Piracy Suspects – A Crucial Element of the Regional Prosecution Strategy in Light of Human Rights Law, in: Vázquez Gómez, Eva / Cinelli, Claudia (eds.), Regional Strategies to Maritime Security: A Comparative Perspective, Valencia 2014, pp. 247-268.


Petrig MARAFENET

Anna Petrig, Arrest, Detention and Transfer of Piracy Suspects: A Critical Appraisal of the German Courier Case Decision, in: Andreone, Gemma / Bevilacqua, Giorgia / Cataldi, Giuseppe / Cinelli, Claudia (eds.), Insecurity at Sea: Piracy and Other Risks to Navigation, Naples 2013, pp. 153-171.


 Piracy at Sea - Springer

Anna Petrig, Human Rights in Counter-Piracy Operations: No Legal Vacuum but Legal Uncertainty, in: Mejia, Maximo / Kojima, Chie / Sawyer, Mark (eds.), Piracy at Sea, Berlin 2013, pp. 31-45.
Abstract

The Security Council has set an ambitious goal for itself: the full and durable eradication of piracy. In order to achieve this objective, it has set up an ad hoc legal framework authorizing counter-piracy enforcement measures in Somali territorial waters and on its mainland. These powers supplement the existing legal instruments to combat piracy on the high seas. Even though the legal instruments governing counter-piracy operations do not explicitly mention the applicable human rights norms, enforcement powers cannot be exercised in a legal vacuum and ad libitum. Rather, their exercise is restricted by the application of general human rights law. This is insinuated by Security Council Resolution 1851 deciding that any measure based on the enforcement powers conferred by that Resolution “shall be undertaken consistent with applicable … human rights law”. However, considerable legal uncertainty arises from the absence of an explicit declaration that human rights apply and a reference to specific individual liberties to be respected in counter-piracy operations since it is far from clear what the applicable general human rights law is. This uncertainty results mainly from two factors: firstly, counter-piracy enforcement powers are generally exercised extraterritorially. Secondly, enforcement measures have thus far mainly been taken at sea. After providing a brief overview on the existing counter-piracy enforcement powers and the absence of specific human rights guarantees in this legal framework, the article discusses on what bases general human rights law, namely the European Convention on Human Rights, could apply in counter-piracy operations.

LINK: www.springer.com/gp/book/9783642396199


Piracy and Armed Robbery At Sea

Robin, Geiss, & Anna Petrig Piracy and Armed Robbery at Sea – The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden, Oxford University Press 2011, 344 pages (Part 3/III: Legal Constraints on Counter-Piracy Enforcement Powers).

LINK: www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199609529.001.0001/acprof-9780199609529