Piracy Exercise

MEMORANDUM

TO: Pr. Cheryl KrusenFROM: Peter GrenzowRE: Piracy, Security and Maritime Spaces Assignment 2DATE: 7 December 2015

INTRODUCTION

In order for the USS Rescue to have been legally justified in undertaking hot pursuit and

capturing the pirates in the territorial waters and land of Subland, it must have done so pursuant

to a prior expression of consent by Subland, including in the form of a Shiprider Agreement or

U.N. Security Council (UNSC) Resolution. If the U.S. can establish jurisdiction over the pirates,

the U.S. may prosecute them, transfer them to another country for prosecution or let them go

altogether. Finally, because Mergeland and Oneland have a duty to repress the piracy in their

territorial waters, they should conclude law enforcement agreements between them and with

third States to combat such piracy.

I. THE USS RESCUE COULD JUSTIFIABLY UNDERTAKE THE HOT PURSUIT AND CAPTURE OF THE PIRATES IN THE TERRITORY OF SUBLAND PURSUANT TO A PRIOR EXPRESSION OF CONSENT BY SUBLAND.

The USS Rescue’s dispatched vessel was justified in undertaking hot pursuit and

capturing the pirates in the territory of Subland if it did so pursuant to a prior expression of

consent by Subland. First, even though the USS Rescue and its dispatched vessel are flagged to

the U.S., it is still subject to the principles of the U.N. Convention on the Law of the Sea

(UNCLOS), as UNCLOS is widely regarded as an embodiment of customary international law.

While the record does not state where the pirate boat was when the hot pursuit started, hot

pursuit normally “must be commenced when the foreign ship or one of its boats is within the

internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing

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State.”1 However, it may also commence in the exclusive economic zone or on the continental

shelf for violations of laws applicable under UNCLOS in such zones.2 Nonetheless, the right to

hot pursuit ends “as soon as the ship pursued enters the territorial sea of its own State or of a

third State.”3 Accordingly, absent the prior consent of Subland to the pursuit and arrest of the

pirates by the USS Rescue’s dispatched vessel on Subland’s territory, the vessel did not have the

right to continue the hot pursuit of the pirates into Subland’s territorial waters.

The first basis on which the USS Rescue’s vessel could have justifiably continued the hot

pursuit of the pirates and arrested them in the territory of Subland consists in the customary

international law doctrine of consent. Specifically, the International Law Commission’s (ILC)

Draft Articles on the Responsibility of States for Internationally Wrongful Acts are considered to

be a codification of the customary international law of State responsibility.4 Accordingly, under

customary international law the “[v]alid consent by a State to the commission of a given act by

another State precludes the wrongfulness of that act in relation to the former State to the extent

that the act remains within the limits of that consent.”5 Thus, the USS Rescue’s vessel was

justified in pursuing and arresting the pirates on the coastline of Subland, if Subland gave their

prior valid consent to the commission of such actions by the vessel. This consent may have been

expressed in the form of a Shiprider Agreement or in a UNSC Resolution.

1 U.N. Convention on the Law of the Sea art. 111 para. 1, Dec. 10, 1982, 1833 U.N.T.S. 397.

2 Id. at art. 111 para. 2.


4 Rep. of the Int’l Law Comm’n, 53d Sess., U.N. Doc. A/56/10, at 31 (2001).

5Responsibility of States for Internationally Wrongful Acts art. 20, G.A. Res. 56/83, U.N. GAOR, 56th Sess. Supp. 10, U.N. Doc. A/56/10 (2002); See also Case Concerning Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment, 2005 I.C.J. 168 (Dec. 19).

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The pursuit and capture of the pirates on the coastline of Subland by the USS Rescue’s

vessel was justified if Subland expressed its consent to such actions prior to their commission

through a Shiprider Agreement. The UNSC has invited States and regional organizations

combatting piracy off the coast of Somalia, under similar conditions as to those experienced in

Subland’s waters, to conclude Shiprider Agreements with each other—in order to facilitate the

investigation and prosecution of pirates.6 A good example of a Shiprider Agreement pertains to

the Agreement between the Government of Barbados and the United States.7 The Agreement sets

out a combined law enforcement program, wherein Barbados consents to U.S. law enforcement

vessels entering Barbados waters, with a Barbados shiprider—or law enforcement official—

embarked on the U.S. vessels, in order to enforce the laws of Barbados in its waters.8

Additionally, the U.S. consents to Barbados law enforcement vessels entering U.S. waters, with

the prior authorization of a U.S. shiprider, to enforce U.S. laws in its waters. 9 A Shiprider

Agreement such as that between the US and the Bahamas would be another possibility, while it

only allows U.S. law enforcement vessels to assist Bahamian law enforcement officials in

Bahamian waters, with prior authorization from a Bahamian shiprider—and not vice versa.10

Thus, if Subland ratified a Shiprider Agreement with the U.S. authorizing U.S. law enforcement

vessels—such as the USS Rescue’s vessel—to pursue and arrest pirates in Subland’s territory, in

the manner that the USS Rescue’s vessel did, the pursuit and arrest of the pirates was lawful. 6 U.N. Doc. S/RES/1851, ¶ 3 (Dec. 16, 2008).

7Agreement Between the Government of Barbados and the Government of the United States of America Concerning Co-Operation in suppressing Illicit Maritime Drug Trafficking (Oct. 11, 1998), available at http://www.state.gov/documents/organization/101684.pdf.

8Id. at art. 3 § 6.

9Id. at art. 3 § 7

10Agreement Between the Government of the United States of America and the Government of the Commonwealth of the Bahamas Concerning Cooperation in Maritime Law Enforcement (June 29, 2004), available at http://www.state.gov/documents/organization/108940.pdf.

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Nonetheless, while it appears from the record the pirates were nationals of Subland, if

any of them were nationals of a third State, the U.S. will have to assert the sovereignty of

Subland in order to be justified in arresting the pirates pursuant to a Shiprider Agreement.

Specifically, under the doctrine pacta tertiis nec nocent nec prosunt, a Shiprider Agreement does

not establish obligations for third States unless such states expressly accept such obligations in

writing.11 Accordingly, the U.S. could not express its jurisdiction over third State nationals solely

under a Shiprider Agreement with Subland, absent the express consent to such Agreement by the

third State concerned. However, absent such consent, the U.S. could justifiably express its

jurisdiction over third State nationals, if it asserts the sovereignty of Subland under UNCLOS in

its territorial waters and land—expressed through the USS Rescue’s vessel pursuant to a

Shiprider Agreement.12 Consequently, if Subland concluded a Shiprider Agreement with the U.S.

articulating its consent, prior to its commission, to the pursuit and arrest of the pirates on its

coastline by the USS Rescue’s dispatched vessel, such pursuit and arrest were justified.

Furthermore, if there was a prior UNSC Resolution expressing the consent of Subland to

the extension of the right of hot pursuit and arrest of pirates by the USS Rescue’s dispatched

vessel into Subland’s territory, then such hot pursuit and arrest were justified. The UNSC has the

power under Chapter VII of the U.N. Charter to authorize “such action by air, sea, or land forces

as may be necessary to maintain or restore international peace and security.”13 Recognizing the

unique situation in Somalia, the proliferation of piracy off Somalia’s coast, and Somalia’s

incapacity to repress such piracy by itself, the UNSC took action in 2008 under its Chapter VII

powers. Specifically, the UNSC authorized States cooperating with the Transitional Federal

11 Vienna Convention on the Law of Treaties art. 35, May 23, 1969, U.N. Doc. A/Conf. 39/27.

12 U.N. Convention on the Law of the Sea art. 2, Dec. 10, 1982, 1833 U.N.T.S. 397.

13U.N. Charter art. 42.

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Government of Somalia (TFG) to enter Somalia’s territorial waters and therein use “all necessary

means to repress acts of piracy and armed robbery.”14 Thus, States cooperating with the TFG

were authorized to extend their right to hot pursuit to Somalia’s territorial sea to repress piracy,

under UNCLOS committed in the high seas,15 or armed robbery committed within Somalia’s

jurisdiction.16

Later in 2008 the UNSC extended the right of hot pursuit of States and regional

organizations cooperating with the TFG “in the fight against piracy and armed robbery at sea off

the coast of Somalia . . . .” to the use of “all necessary measures that are appropriate” in the

territory of Somalia “for the purpose of suppressing acts of piracy and armed robbery at

sea . . . .”17 This extension of the right of hot pursuit to the territory of Somalia has subsequently

been renewed annually by the UNSC through the time of writing.18 However, because the

situation in Somalia is unique, the UNSC has expressed that the extension of the right of hot

pursuit in Somalia is not to be considered as establishing a rule of customary international law

and only applies to the situation in Somalia.19 Nonetheless, there are many similarities between

the situation in Somalia and the situation in Subland. Specifically, like Somalia, Subland is a

state that the international community has deemed to be ungovernable, and thus not likely to be

able to suppress piracy by itself. Also like Somalia, many of Subland’s nationals partake in acts

of piracy in the high seas off its coast—escaping to the sanctuary of Subland’s territorial waters. 14 U.N. Doc. S/RES/1816, ¶ 7 (June 2, 2008).

15U.N. Convention on the Law of the Sea art. 101(a), Dec. 10, 1982, 1833 U.N.T.S. 397.

16IMO Doc A 22/Res.922 (Jan. 22, 2002), Annex, para. 2.2.

17U.N. Doc. S/RES/1851, ¶ 6 (Dec. 16, 2008).

18See, e.g., U.N. Docs. S/RES/1897, ¶ 7 (Nov. 30, 2009); S/RES/1950, ¶ 7 (Nov. 27, 2010); S/RES/2020, ¶ 9 (Nov. 22, 2011); S/RES/2077, ¶ 12 (Nov. 22, 2012); S/RES/2184, ¶ 13 (Nov. 12, 2014); S/RES/2246, ¶ 14 (Nov. 10, 2015).

19U.N. Doc. S/RES/1838, ¶ 8 (Oct. 7, 2008).

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Accordingly, Subland offers a unique situation, like Somalia, in which it is foreseeable the

UNSC would draft resolutions extending the right to hot pursuit of States and regional

organizations cooperating with Subland to Subland’s territory. If such a UNSC Resolution

existed prior to the USS Rescue’s dispatched vessel’s pursuit and arrest of the pirates on the

coastline of Subland, and the USS Rescue’s vessel was authorized by such Resolution, the vessel

was justified in arresting the pirates on Subland’s coastline.

Additionally, as in Somalia, an international anti-pirate Task Force is active in the waters

off the coast of Subland. In Somalia the creation of such ant-pirate regional organizations was

encouraged by the UNSC to combat piracy in Somalia.20 Many regional organizations and

operations were subsequently created, under the authorization of the aforementioned UNSC

Resolutions, to carry out the mandates of the Resolutions in the waters and territory of Somalia.

Specifically, the Contact Group on Piracy off the Coast of Somalia (CGPCS), the EU Naval

Force (NAVFOR) Somalia (Operation Atalanta),21 the Combined Task Force (CTF)-151—

including Australia, Pakistan, South Korea, Turkey, the U.K. and the U.S.—and NATO

Operation Ocean Shield were all implemented pursuant to cited UNSC Resolutions to combat

piracy off the coast of Somalia and into its territory. Thus, if the creation of the international

anti-pirate Task Force—which the USS Rescue is a part of—was similarly called for, and its

arrest of pirates in the territory of Subland was authorized by a UNSC Resolution with the

consent of Subland, then the USS Rescue’s dispatched vessel was justified in pursuing and

arresting the pirates on Subland’s coastline.

20 U.N. Doc. S/RES/1851, ¶ 4 (Dec. 16, 2008).

21Created by Council Joint Action 2008/851/CFSP (Nov. 10, 2008) on a European Union Military Operation to Contribute to the Deterrence, Prevention and Repression of Acts of Piracy and Armed Robbery off the Somali Coast.

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However, even if there was prior consent by Subland, articulated in the form of a

Shiprider Agreement, UNSC Resolution or other agreement, to the USS Rescue’s dispatched

vessel’s pursuit and arrest of the pirates on its coastline, the arrest was only justified if the

dispatched vessel was clearly identifiable as a government vessel and there were adequate

grounds for the seizure. Specifically, under UNCLOS an arrest of pirates or seizure of their ship

“may be carried out only by warships or military aircraft, or other ships or aircraft clearly

marked and identifiable as being on government service and authorized to that effect.”22

Additionally, a warship, or the boat it sends “under the command of an officer”23 is only justified

in boarding a ship if there is “reasonable ground for suspecting that . . .[the] ship is engaged in

piracy . . . .”24 Without such adequate grounds, the State boarding the suspect ship is liable to the

suspect ship’s flag State “for any loss or damage caused by the seizure.”25 Thus, the USS

Rescue’s dispatched vessel must have been clearly marked as a government vessel authorized to

make arrests in order to have been justified in pursuing and arresting the pirates. Additionally,

the USS Rescue must have had reasonable grounds for believing the speedboat it pursued was

engaged in piracy—which it likely did, as the pirates had boarded the crew of the commercial

vessel flagged to Florida on their vessel. Nonetheless, if the USS Rescue did not have adequate

grounds for believing the ship its dispatched vessel pursued was engaged in piracy, the U.S. is

liable for damages caused by the seizure to the pirate vessels’ flag State.


23Id. at art. 110 para. 2.

24Id. at art. 110 para. 1.

25Id. at art. 106.

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II. THE PIRATES ARRESTED AND TAKEN INTO THE CUSTODY OF THE USS RESCUE MAY BE PROSECUTED BY THE U.S., TRANSFERRED TO ANOTHER STATE FOR PROSECUTION, OR SET FREE.

A. If the U.S. Establishes Jurisdiction over the Pirates, the U.S. May Prosecute Them or Transfer Them to Another State for Prosecution.

If the U.S. establishes jurisdiction over the pirates, the USS Rescue may ship the pirates

back to the U.S. for prosecution, or transfer them to another State. In either situation however, in

order to prosecute the pirates, the prosecuting State will have to determine the nationality of the

pirates’ speedboat. Specifically, while it appears from the record that the pirates are nationals of

Subland, as they “head[ed] back to their territorial waters and land [in Subland],” it is unclear

what nationality their speedboat was. First, the pirates’ speedboat has “the nationality of the State

whose flag [it is] entitled to fly. There must exist a genuine link between the State and the

ship.”26 While it appears from the face of UNCLOS that a genuine link between the speedboat

and its flag State is thus required for the pirates to claim the nationality of such State for the

speedboat, the International Tribunal for the Law of the Sea (ITLOS) decided in M/V Saiga (No.

2) (St. Vincent v. Guinea) that such a requirement was not included in UNCLOS “to establish a

criteria by reference to which the validity of the registration of ships in a flag State may be

challenged . . . .”27 Nonetheless, if the pirates’ speedboat sailed “under the flags of two or more

States, using them according to convenience” the speedboat “may be assimilated to a ship

without nationality.”28 Accordingly, the pirates’ speedboat will have the nationality of the State it

is registered to, or may have no nationality at all—if it flew under more than one flag according

to convenience.26 U.N. Convention on the Law of the Sea art. 91 para. 1, Dec. 10, 1982, 1833 U.N.T.S. 397.

27 M/V Saiga (No. 2) (St. Vincent v. Guinea), Case No. 2, Judgement of Jul. 1, 1999, 2 ITLOS Rep. 4, ¶ 83.


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Furthermore, the U.S. may claim jurisdiction to prosecute the pirates under UNCLOS.

Specifically, UNCLOS grants the right to prosecute pirates to the “court of the State which

carried out the seizure . . . .” of such pirates.29 The U.S. 4th Circuit has upheld this right, and the

definition of piracy under UNCLOS, in the recent case of United States v. Said, citing the crime

found under 18 U.S.C. § 1651 (2015) which states “[w]hoever, on the high seas, commits the

crime of piracy as defined by the law of nations, and is afterwards brought into or found in the

United States, shall be imprisoned for life.”30 Accordingly, because the U.S. was the State that

seized the pirates, its courts “may decide upon the penalties to be imposed . . . .” on the pirates

arrested on the coastline of Subland.31

Additionally, the U.S. or another State may claim jurisdiction to prosecute the pirates

arrested in Subland under the theory of universal jurisdiction. First, historically pirates have been

regarded as “the enemy of all mankind—hostis humani generis—whom any nation may in the

interest of all capture and punish.”32 The U.S. 4th Circuit has also recognized pirates “as hostis

humani generis—enemies of all mankind—because they attack vessels on the high seas, and thus

outside of any nation’s territorial jurisdiction, with devastating effect to global commerce and

navigation.”33 Moreover, UNCLOS codifies this right to universal jurisdiction over pirates by

providing “every State may seize a pirate ship . . .and arrest the persons and seize the property on

board.”34 Accordingly, because the pirates attacked the commercial vessel on the high seas, the

29 Id. at art. 105.

30 18 U.S.C. § 1651 (2015); United States v. Said, 798 F.3d 182 (4th Cir. 2015).

31U.N. Convention on the Law of the Sea art. 105, Dec. 10, 1982, 1833 U.N.T.S. 397.

32The Case of the S.S. “Lotus”, PCIJ, Ser. A, No. 10, ¶ 249 (Sep. 7, 1927).

33(internal quotations omitted) United States v. Said, 798 F.3d 182, 199 (4th Cir. 2015).


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U.S. or another State could claim jurisdiction to prosecute the pirates under UNCLOS or the

customary international law right to universal jurisdiction over pirates. However, the U.S. likely

will not claim jurisdiction under a universal jurisdiction theory, as it has many other ways to

claim jurisdiction, and only 1/42 countries had claimed jurisdiction over pirates on a universal

jurisdiction theory as of March 26, 2012.35

The U.S. may also claim jurisdiction to prosecute the pirates under the Convention for the

Suppression of Unlawful Acts against the Safety of Maritime Navigation’s (SUA Convention)

codification of the passive personality principle—or the principle that a State can prosecute

persons who harm its nationals. The SUA Convention, which is codified at 18 U.S.C. 2280

(2015), gives the U.S. jurisdiction over persons who “unlawfully and intentionally . . .seize[] or

exercise[] control over a ship by force or threat thereof . . .perform[] an act of violence against a

person on board a ship if that act is likely to endanger the safe navigation of that ship . . . .” or

attempts or conspires to commit such acts;36 if such acts are committed “against or on board a

vessel of the United States or a vessel subject to the jurisdiction of the United States . . . .”37 or

“during the commission of such activity, a national of the United States is seized, threatened,

injured or killed . . . .”38 The United States also has jurisdiction under the SUA Convention if the

aforementioned acts were “committed in an attempt to compel the United States to do or abstain

from doing any act.”39 Accordingly, the U.S. could first claim jurisdiction to prosecute the pirates

35U.N. Doc. S/2012/177 (Mar. 26, 2012).

3618 U.S.C. § 2280(a)(1) (2015).

3718 U.S.C. § 2280(b)(1)(A)(i) (2015).

3818 U.S.C. § 2280 (b)(1)(B) (2015); see also Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation art. 6 para. 2(b), Mar. 1, 1992, 1678 U.N.T.S. 171.

3918 U.S.C. § 2280(b)(3) (2015).

10

under the SUA Convention as they attacked a commercial vessel which was flagged to Florida,

United States. Alternatively, the U.S. could claim jurisdiction over the pirates if the crew which

the pirates seized were nationals of the U.S. Finally, the U.S. could claim jurisdiction over the

pirates if the pirates captured the crew of the commercial vessel with the intent to compel the

United States to do/abstain from any act.

Similarly, the U.S. could claim jurisdiction to prosecute the pirates under the

International Convention against the Taking of Hostages (Hostages Convention). First, the

Hostages Convention obliges State Parties, including the U.S., to establish their jurisdiction for

all enumerated offenses committed “on board a ship or aircraft registered in that State . . . .” or

against a “hostage who is a national of that State . . . .”40 The U.S. has heeded this obligation in

the codification of 18 U.S.C. § 1203 (2015) which provides the U.S. jurisdiction to prosecute

persons who “whether inside or outside the United States, seize[] or detain[] and threaten[] to

kill, or to continue to detain another person in order to compel a third person or a governmental

organization to do or abstain from doing any act . . . .”41 when either “the offender or the person

seized or detained is a national of the United States . . . .” or “the governmental organization

sought to be compelled is the Government of the United States.”42 Accordingly, if the crew the

pirates seized were nationals of the United States, and the pirates threatened to continue to detain

or kill them in order to compel a third person or government to do/abstain from doing any act,

the U.S. could prosecute the pirates. Alternatively, if the pirates seized the crew, and threatened

to kill or to continue to detain them, to compel the United States to do/abstain from doing

something, the U.S. could prosecute the pirates. 40 International Convention against the Taking of Hostages, art. 5 para. 1, June 3, 1983, 213 U.N.T.S. 222.

41 18 U.S.C. § 1203(a) (2015).

4218 U.S.C. § 1203(b)(1) (2015).

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The USS Rescue could also transfer the pirates to a third state for prosecution pursuant to

a Memorandum of Understanding. In the case of Somalia, similar to that of Subland, the UNSC

requested States and regional organizations “to consider . . .measures aimed at facilitating the

transfer of suspected pirates for trial . . .including through relevant transfer agreements . . . .”43

Pursuant to this request the CGPCS developed a legal toolbox for the transfer of pirates, and the

chairman of its Working Group 2 was consulted for the Report of the Secretary-General on

Specialized Anti-Piracy Courts in Somalia and Other States in the Region—detailing “procedural

arrangements required for transfer of apprehended pirates and related evidence . . . .”44

Additionally, the U.N. Office of Drugs and Crime (UNODC) drafted guidance for requesting the

transfer of Somalian piracy suspects to Kenya.45 Further, Memoranda of Understanding detailing

the transfer of pirates arrested by the EU, U.S., and British Navies to Kenya for prosecution were

concluded between Kenya and the EU,46 Kenya and the U.S., and Kenya and the U.K.47 The

transfer of Somalian pirates to Kenya is attractive to the aforementioned States and regional

organizations, as it allows them to avoid the monetary and other costs associated with shipping

the pirates to their respective countries for prosecution, and the risk of such pirates gaining

asylum in their respective States.48 Moreover, the Kenyan Penal Code Article 20(1) allows for

43 U.N. Doc. S/RES/1976, ¶ 20 (Apr. 11, 2011).

44Report of the Secretary-General on specialized anti-piracy courts in Somalia and other States in the region, S/2012/50, ¶ 1 (Jan. 20, 2012).

45James Kraska, Contemporary Maritime Piracy: International Law, Strategy, and Diplomacy at Sea, at 171 (1st Ed., Praeger Security International 2011).

46Exchange of Letters between the European Union and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy and detained by the European Union-led naval force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya and for their treatment after such transfer, OJ L79/49 (Mar. 25, 2009). 47 James Kraska, Contemporary Maritime Piracy: International Law, Strategy, and Diplomacy at Sea, at 179 (1st Ed., Praeger Security International 2011).

48To be elaborated upon below.

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the prosecution of persons committing and complicit in piracy, Kenya uses the UNCLOS

definition of piracy, and has recognized jurisdiction over pirates transferred from other States to

Kenya.49 Accordingly, the USS Rescue may choose to transfer the pirates to Kenya or another

State with whom the U.S. or the Task Force has a Memorandum of Understanding detailing the

transfer of pirates.

Finally, the U.S. may transfer the pirates to another State pursuant to the SUA

Convention. Specifically, the SUA Convention allows “[t]he master of a ship of a State Party . . .

[to] deliver to the authorities of any other State Party . . .any person who he has reasonable

grounds to believe has committed one of the offences set forth in article 3.”50 Accordingly, if the

master of the USS Rescue has reasonable grounds to believe the pirates have violated article 3 of

the SUA Convention,51 he/she may transfer the pirates to another State Party to the SUA

Convention for prosecution.

B. The U.S. or Another State Will Have to Prove the Elements of Piracy, Armed Robbery, or Related Offenses against the Pirates.

In order to convict the pirates, the U.S., or the State to whom the USS Rescue transfers

the pirates, will have to prove the elements of piracy, armed robbery, or related offenses under

UNCLOS, customary international law, the SUA Convention or the Hostages Convention. First,

the U.S. adopts the definition of piracy under UNCLOS in 18 U.S.C. § 1651 (2015), which has

been upheld recently by the U.S. 4th52 and 9th53 Circuits. Thus, in order to prove the actus reus of

49 Judgment of the High Court of Kenya, Crim. App. 198-207 (2008), Hassan M. Ahmed v. Republic, at 12.

50Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation art. 8 para. 1, Mar. 1, 1992, 1678 U.N.T.S. 171.

51 See Supra at Footnote 36.

52 United States v. Said, 798 F.3d 182 (4th Cir. 2015).

53 Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 725 F.3d 940, 943 (9th Cir. 2013).

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piracy, the U.S. will first have to prove the pirates committed “any illegal acts of violence or

detention, or any act of depredation . . . .”54 The U.S. 9th Circuit has found that “[r]amming

ships, fouling propellers and hurling fiery and acid-filled projectiles easily qualify as violent

activities . . . .”55 In addition, the High Court of Kenya has found sufficient acts of violence under

cited UNCLOS definition when pirates roughed-up the crew of the victim ship and took control

of the ship.56 Accordingly, the Subland pirates’ actions capturing the vessel and crew of the

commercial vessel flagged to Florida, and boarding the crew on their speedboat, might be found

sufficient to satisfy illegal acts of violence or detention under the UNCLOS piracy definition.

In order to prove the actus reus of piracy, the U.S. or another State will also have to

prove that the acts of violence or detention were “committed for private ends by the crew or the

passengers of a private ship . . . .”57 The U.S. 9th Circuit has found that private ends under

UNCLOS “include those pursued on personal, moral or philosophical grounds . . . .” or otherwise

not on behalf of any State.58 Further, under UNCLOS warships are otherwise immune from

prosecution for piracy unless the warship or government ship’s “crew has mutinied and taken

control of the ship . . . .”59 Consequently, the U.S. will be able to prove piracy under UNCLOS if

the pirates detained the crew of the commercial vessel for their own personal grounds and either

the pirates’ speedboat was not a government ship, or if it was the pirates mutinied and took

control of it.



56Judgment of the High Court of Kenya, Crim. App. 198-207 (2008) Hassan M. Ahmed v. Republic, at 12.




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In addition, in order to prove the actus reus of piracy, the U.S. or another State will have

to show that the pirates directed their illegal acts of violence or detention “on the high seas,

against another ship . . .or against persons or property on board such ship . . .[or] against a ship . .

.persons or property in a place outside the jurisdiction of any State . . . .”60 Moreover, in so far as

the prosecution of the pirates is not incompatible with the rules of the exclusive economic zone

under UNCLOS, the U.S. or another State could prove the actus reus of piracy if the pirates’

illegal acts were committed in the exclusive economic zone of Subland.61 However, this may not

be necessary, as the record states that the commercial vessel was attacked and its vessel and crew

captured while they were on the high seas off Subland.

The U.S. or another State will also have to either prove the mens rea of intent to convict

the pirates under UNCLOS, or alternatively their complicity in the piratical acts. Specifically,

UNCLOS defines piracy as the “voluntary participation in the operation of a ship . . .with

knowledge of facts making it a pirate ship . . . .”62 UNCLOS also states, a “ship . . .is considered

a pirate ship . . .if it is intended by the persons in dominant control to be used for the purpose of

committing one of the acts referred to in article 101.”63 Additionally, for the U.S. or another State

to prove complicity under UNCLOS, they must prove the pirates committed “any act of inciting

or of intentionally facilitating an act . . . .” cited above as piracy under UNCLOS. 64 Thus, the

U.S. or another State will have to prove the pirates either intended the illegal acts of violence or

60Id. at art. 101(a).


62 (emphasis added) U.N. Convention on the Law of the Sea art. 101(b), Dec. 10, 1982, 1833 U.N.T.S. 397.

63 (emphasis added) Id. at art. 103.

64 Id. at art. 101(c).

15

detention they committed against the crew of the commercial vessel, or that they incited or

intentionally facilitated such acts, in order to convict them of piracy.

The U.S. or another State could also charge the pirates with armed robbery, or complicity

in armed robbery, as they took the detained crew through the territorial waters of Subland. The

crime of armed robbery is defined, similar to piracy, as “any illegal act of violence or

detention . . .or threat thereof . . .committed for private ends and directed against a ship or against

persons or property on board such a ship . . . .” inside the internal waters, archipelagic waters or

territorial sea of a State.65 Moreover, complicity in armed robbery is defined as “any act of

inciting or of intentionally facilitating an act . . . .” of armed robbery.66 Accordingly, because the

pirates detained the crew inside the territorial sea of Subland, the U.S. or another State may be

able to convict the pirates for armed robbery, or complicity in armed robbery, if they cannot

prove piracy.

Finally, the U.S. or another State Party to the SUA Convention or the Hostages

Convention may be able to convict the pirates for crimes committed under either or both

Conventions. In the U.S., under the SUA Convention codified at 18 U.S.C. § 2280 (2015), the

U.S. could convict the pirates if it proves the pirates “intentionally . . . seize[d] or exercise[d]

control over [the commercial vessel] by force or threat thereof or any other form of

intimidation;” or alternatively “intentionally . . .perform[ed] an act of violence against a person

on board a ship if that act is likely to endanger the safe navigation of that ship . . . .” 67

Alternatively, the U.S. could convict the pirates under the Hostages Convention codified at 18

U.S.C. § 1203 (2015) if is shows the pirates “seize[d] or detain[ed] or threaten[ed] to kill, or to 65 IMO Doc. A 26/Res. 1025, Annex para. 2.2 (Jan. 18, 2010).

66IMO Doc. A 26/Res. 1025, Annex para. 2.2 (Jan. 18, 2010).

6718 U.S.C. § 2280(a)(1) (2015).

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continue to detain . . . .” the crew of the commercial vessel “in order to compel a third person or

a governmental organization to do or abstain from doing any act as an explicit or implicit

condition for the release of the person detained. . . .”—if the crew were nationals of the U.S. or

the pirates sought to compel the U.S. Government.68 Accordingly there are many avenues

through which the U.S., or a State to whom the USS Rescue transfers the pirates, could prosecute

and convict them for attacking the commercial vessel and detaining its crew.

C. Even If the U.S. or another State Could Successfully Prosecute the Pirates, They May Set the Pirates Free Nonetheless.

Even though there are many avenues through which the U.S. or another State could

prosecute and convict the pirates, they may set the pirates free for many reasons. First, the U.S.

or another State may set the pirates free if it finds that the U.S. officials from the USS Rescue

violated any restrictions on the use of force in arresting or detaining the pirates. Many Shiprider

Agreements explicitly restrict the use of force in law enforcement actions taken by the States

concerned. For example, in the Agreement between the U.S. and the Bahamas, force may only be

used if there are no other feasible means to resolve the situation, the force is proportional to the

objective sought, and the force used is the minimum reasonably necessary under the

circumstances.69 Similarly, the ITLOS in M/V Saiga (No. 2) (St. Vincent v. Guinea) found that, in

law enforcement operations at sea, “the use of force must be avoided as far as possible and,

where force is unavoidable, it must not go beyond what is reasonable and necessary in the 6818 U.S.C. § 1203(a) (2015). 69 Agreement Between the Government of the United States of America and the Government of the Commonwealth of the Bahamas Concerning Cooperation in Maritime Law Enforcement, art. 16 (June 29, 2004), available at http://www.state.gov/documents/organization/108940.pdf.

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circumstances.”70 Furthermore, the 2005 Protocol to the SUA Convention provides that, in law

enforcement actions at sea “[a]ny use of force . . .shall not exceed the minimum degree of force

which is necessary and reasonable under the circumstances.”71 Thus, if the U.S. or another

prosecuting State finds the U.S. officials from the USS Rescue used more than the minimum

force reasonably necessary under the circumstances to arrest the pirates, they may set the pirates

free.

Alternatively, the U.S. or another State may set the pirates free because of human rights

concerns. First, the UNSC reiterated the application of international human rights law to the

prosecution and detention of pirates in the situation of Somalia, in 2012 calling on States

involved to cooperate to determine jurisdiction over and prosecute pirates “consistent with

applicable international law including international human rights law to ensure that all pirates

handed over to judicial authorities are subject to judicial process . . . .”72 The International Court

of Justice (ICJ) has also recognized the extra-territorial application of international human rights

law in situations where a State exercises its jurisdiction outside of its territory.73 Further, under

UNCLOS such situations where a State exercises its jurisdiction outside of its territory include

onboard ships sailing under its flag.74 The European Court of Human Rights (ECtHR) in

Bankovic v. Belgium explicitly recognized this “extra-territorial exercise of jurisdiction by a

State [in] cases involving the activities . . .on board craft and vessels registered in, or flying the

70M/V Saiga (No. 2) (St. Vincent v. Guinea), Case No. 2, Judgement of Jul. 1, 1999, para. 155.

71IMO Doc. LEG/CONF.15/21, Protocol of 2005 to the Convention for the Suppression of Unlawful Acts of Violence against the Safety of Maritime Navigation art. 8bis para. 9, Jul. 28, 2010. 72 U.N. Doc. S/RES/2077, ¶ 17 (Nov. 22, 2012).

73See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 180 (Jul. 9).


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flag of, [a] State.”75 Accordingly, the provisions of international human rights law likely apply to

the USS Rescue’s detention of the pirates.

Because international human rights law likely applies to the detention of the pirates by

the USS Rescue and their subsequent prosecution, the U.S. or another State might set the pirates

free if they believe or determine the pirates’ human rights have been or might be violated.

Specifically, under international human rights law persons arrested by government officials must

be promptly informed of the charges against them at the time of arrest and “brought promptly

before a judge or other officer authorized by law to exercise judicial power . . . .” 76 In the case of

persons arrested at sea, the ECtHR in Medvedyev v. France found that 13 days is prompt enough

to satisfy the similar requirement found under article 5 § 3 of the European Convention on

Human Rights;77 however, taking 40 days to bring the suspects before a judge has been found to

breach the obligation to bring them promptly.78 Additionally, under international human rights

law the pirates have many other rights, including the right to a fair trial,79 and the right not to be

subject to “torture or to cruel, inhuman or degrading treatment or punishment.”80 Consequently,

the U.S. or another State may set the pirates free if it determines the USS Rescue did not bring

them to a judge promptly, if it believes the crew of the USS Rescue may have subjected the

pirates to torture or cruel, inhuman or degrading treatment, that the pirates will not receive a fair

75Bankovic v. Belgium et al., App. No. 52207/99, Grand Chamber Decision, Eur. Ct. H.R., ¶ 73 (Dec. 12, 2001); see also Case of Medvedyev and Others v. France, 3394/03 Eur. Ct. H.R., ¶ 67 (2010).76 International Covenant on Civil and Political Rights art. 9, Mar. 23, 1976, 999 U.N.T.S. 171.

77Case of Medvedyev and Others v. France, 3394/03 Eur. Ct. H.R., ¶ 128-134 (2010).

78 The “Cygnus” Case (Somali Pirates), 145 ILR 491, 499-500 (2010).

79 International Covenant on Civil and Political Rights art. 14, Mar. 23, 1976, 999 U.N.T.S. 171.

80 Id. at art. 7.

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trial, or that any of the pirates’ other human rights may have been or might be violated in the

future.

The U.S. or another State might also set the pirates free, because it doesn’t want to risk

undertaking the obligation to grant the pirates asylum in its State. Under international human

rights law the obligation of non-refoulement includes the obligation that “[n]o State . . .shall

expel, return (‘refouler’) or extradite a person to another State where there are substantial

grounds for believing that he would be in danger of being subjected to torture.”81 Accordingly, if

the U.S. or another State prosecutes the pirates, it runs the risk of the pirates gaining asylum in

their State, and not being able to return the pirates to Subland—where there may be grounds for

believing the pirates would be subjected to torture. Consequently, the U.S. or another State may

set the pirates free, instead of running this risk.

Finally, the USS Rescue may set the pirates free, as their transfer to the U.S. or another

State may require a large diversion in the USS Rescue’s course, leaving other vessels off the

coast of Subland relying on the USS Rescue’s protection unprotected. This served as a legitimate

concern for many States in the situation of the capture of pirates off the coast of Somalia.82

Additionally, the aforementioned concerns of States instigated a State practice of setting

Somalian pirates free, recognized by the UNSC in 2012 when it reiterated “its concern over

persons suspected of piracy having to be released without facing justice . . . .” in Somalia.83 Thus,

even though there are many avenues through which the U.S. or another State might prosecute the

81U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3 para. 1, June 26, 1987, 1465 U.N.T.S. 85. 82 Evans, Malcolm D. and Sofia Galani, The Law and Practice of Piracy at Sea: European and International Perspectives, chapter 15 (Hart Publishing 2014).

83U.N. Doc. S/RES/2077, preambular para. 5 (Nov. 22, 2012).

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pirates for their attack and capture of the commercial vessel’s crew, the pirates might

nevertheless be set free.

III. MERGELAND AND ONELAND SHOULD USE LAW ENFORCEMENT AGREEMENTS TO COMBAT PIRACY IN THEIR TERRITORIAL WATERS AND STRAIGHTS.

While it appears Mergeland and Oneland do not want to allow the Task Force to enter

their territorial waters to combat piracy, they should conclude alternative law enforcement

agreements to combat the piracy in their territorial seas—especially considering their duty to

combat piracy in their territorial waters. Specifically, States have a duty under many different

international law instruments to suppress acts of piracy and related acts perpetrated within their

jurisdictions. First, under UNCLOS States have a duty to “cooperate to the fullest possible extent

in the repression of piracy . . . .”84 Additionally, onboard ships flying a State’s flag, the flag State

has a duty to prosecute pirates, as a flag State is obligated to “exercise its jurisdiction and control

in administrative, technical and social matters over ships flying its flag.”85 Further, if another

State believes “proper jurisdiction and control with respect to a ship have not been

exercised . . . .” with regard to a flag State’s ship, and reports this belief to the flag State, the flag

State has a duty to “investigate the matter and, if appropriate, take any action necessary to

remedy the situation.”86

In addition, the UNSC has called “upon all states to criminalize piracy under their

domestic law and to favourably consider the prosecution of suspected, and imprisonment of

84U.N. Convention on the Law of the Sea art. 100, Dec. 10, 1982, 1833 U.N.T.S. 397.

85 U.N. Convention on the Law of the Sea art. 94 para. 1, Dec. 10, 1982, 1833 U.N.T.S. 397; See also James Kraska, Contemporary Maritime Piracy: International Law, Strategy, and Diplomacy at Sea, at 168 (1st Ed., Praeger Security International 2011).


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convicted, pirates . . . .”87 The International Maritime Organization (IMO) has also urged

governments to “take all necessary legislative, judicial and law-enforcement action . . . .” to

facilitate the successful prosecution of pirates.88 Moreover, under both the Hostages Convention

and the SUA Convention, State Parties have a duty to enact legislation giving them jurisdiction

over persons who violate the offenses enumerated by each Convention,89 and have the duty to

either extradite the alleged offenders or prosecute them.90 Finally, under international human

rights law States have the duty to protect the lives of persons in their territorial seas and on board

their flagged vessels, as they have the “positive duty to take appropriate steps to safeguard the

lives of individuals within [their] jurisdiction[s].”91 Accordingly, while State practice in

Somalia92 and the phrase “every State may seize a pirate ship . . . .”93 in UNCLOS imply that the

duty to arrest and prosecute pirates on the High Seas is weak or nonexistent, the duty to arrest,

prosecute or extradite pirates within a State’s territorial seas stems from multiple sources of

international law. Thus, Mergeland and Oneland should conclude law enforcement agreements to

combat the piracy in their territorial seas.

87U.N. Doc. S/RES/2077, ¶ 18 (Nov. 22, 2012).

88IMO Assembly Resolution A 1044(27), ¶ 8(n) (Dec. 20, 2011).

89International Convention against the Taking of Hostages art. 5, June 3, 1983, 213 U.N.T.S. 222; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation art. 5, Mar. 1, 1992, 1678 U.N.T.S. 171.

90 International Convention against the Taking of Hostages art. 8 para. 1, June 3, 1983, 213 U.N.T.S. 222; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation art. 10 para. 1, Mar. 1, 1992, 1678 U.N.T.S. 171.

91Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Ben Emmerson, A/HRC/20/14, ¶ 18 (2012); see also International Covenant on Civil and Political Rights art. 6 para. 1, Mar. 23, 1976, 999 U.N.T.S. 171.

92See, e.g., U.N. Doc. S/RES/2077, preambular para. 5 (Nov. 22, 2012).


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As it appears from the record that Mergeland and Oneland are resistant to the presence of

the Task Force in their territorial waters, and that, unlike Subland, they have not been deemed by

the international community to be ungovernable, they will likely not agree to any form of UNSC

Resolution granting third States or international organizations access to their territorial waters to

combat piracy—as in the aforementioned case of Somalia. Nonetheless, Mergeland and Oneland

could choose from an array of law enforcement measures that would allow them to maintain

their sovereignty over their territorial waters. First, Mergeland and Oneland should coordinate

their navies—as the Malaysian Maritime Enforcement Agency (MMEA), Republic of Singapore

Navy (RSN), and Indonesian Navy (TNI-AL) have done—to combat the piracy in their territorial

waters. Additionally, Mergeland and Oneland could establish within their navies a joint rapid

response deployment team, as Malaysia and Indonesia have done,94 to ensure a quick response to

and prevention of piratical acts.

Mergeland and Oneland should alternatively draft an agreement with the flag States of

the international carriers which are being attacked in their straights, such as the Regional

Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (2004)

(ReCAAP).95 ReCAAP sets up the Information Sharing Center (ISC), which Contracting Parties

have a duty to notify of the relevant information they receive from their flagged vessels

pertaining to piracy and armed robbery.96 Additionally, under ReCAAP a “Contracting Party

may request any other Contracting Party, through the Center or directly, to take appropriate

94Singapore Straits Piracy Attempt Foiled, The Maritime Executive (Sep. 2, 2015), available at http://www.maritime-executive.com/article/singapore-straits-piracy-attempt-foiled.

95 Concluded between the 20 Contracting Parties including: Australia, Bangladesh, Brunei, Cambodia, China, Denmark, India, Japan, Korea, Laos, Myanmar, Netherlands, Norway, Philippines, Singapore, Sri Lanka, Thailand, U.K., U.S., and Vietnam.

96Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, art. 9 (2004).

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measures, including arrest or seizure, against . . . .” pirates or persons who have committed

armed robbery against ships.97 Further, the “Contracting Party, which has received the

request . . . .” has the duty to “make every effort to take effective and practical measures for

implementing such request.”98 ReCAAP also provides extradition99 as well as capacity-building

measures to enhance the abilities of the Contracting Parties to combat piracy and armed robbery

in their waters.100 Accordingly, Mergeland and Oneland should draft an agreement like ReCAAP

with the flag States of the ships which are attacked in their territorial waters, as: 1) it would help

build Mergeland and Oneland’s capacity to combat the piracy in their waters by facilitating

greater cooperation with the other States involved, 2) it would encourage Mergeland and

Onelands’ navies to receive technical and military training from other States whose navies may

be more experienced in combatting piracy, 3) it would increase communication between the

carriers, their flag States, Mergeland and Oneland, allowing Mergeland and Oneland to respond

faster to reports of pirate attacks, and 4) it would allow Mergeland and Oneland to maintain

complete sovereignty over their territorial seas by not permitting third State navies to enter them

to combat piracy.

Another law enforcement mechanism Mergeland and Oneland should alternatively utilize

to combat the piracy in their territorial waters pertains to a Shiprider Agreement, preferably in

the form of the Agreement between Barbados and the U.S. Specifically, the Barbados-U.S.

Shiprider Agreement gives Barbados shipriders—or Barbados law enforcement officials who

embark on U.S. law enforcement vessels—the authority to authorize U.S. law enforcement

97Id. at art. 10.

98Id. at art. 11.

99 Id. at art. 12.

100Id. at art. 14.

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vessels to enter Barbados territorial waters, and enforce the laws of Barbados in such waters. 101

The Barbados-U.S. Shiprider Agreement also gives U.S. shipriders—or U.S. law enforcement

officials who embark on Barbados law enforcement vessels—the authority to authorize Barbados

law enforcement vessels to enter U.S. territorial waters, and enforce U.S. laws in such waters.102

Further, all law enforcement activities conducted pursuant to the Barbados-U.S. Agreement are

done so under the control of the law enforcement authorities of the government whose territorial

waters the activities are conducted in.103 This type of agreement is preferable, and may be

attractive to both Mergeland and Oneland, as it is a fully reciprocal agreement. It also may be

attractive to Mergeland and Oneland, as it would allow the States to utilize the law enforcement

resources of each other and third States to combat the piracy in their territorial waters, while

maintaining sovereignty and control over law enforcement activities in their waters. Thus,

Shiprider Agreements offer another method through which Mergeland and Oneland should

alternatively work to combat piracy in their territorial waters and straights.

Moreover, Mergeland and Oneland should utilize the resources of the International

Maritime Bureau (IMB) of the International Chamber of Commerce (ICC), the IMO, and the

International Chamber of Shipping (ICS) to augment the repression of piracy in their territorial

waters. First, Mergeland and Oneland should encourage the shipmasters of the carriers travelling

through their straights to report any suspected or actually pirate attacks that occur in the straights

101 Agreement Between the Government of Barbados and the Government of the United States of America Concerning Co-Operation in suppressing Illicit Maritime Drug Trafficking, art. 3 § 6 (Oct. 11, 1998), available at http://www.state.gov/documents/organization/101684.pdf.

102 Id. at art. 3 § 7.

103Agreement Between the Government of Barbados and the Government of the United States of America Concerning Co-Operation in suppressing Illicit Maritime Drug Trafficking, art. 3 § 8 (Oct. 11, 1998), available at http://www.state.gov/documents/organization/101684.pdf.

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to the IMB’s Piracy Reporting Centre (PRC).104 Reporting attacks to the PRC is helpful, as it

allows the PRC to report trends in attacks and where they occur, so shipmasters may avoid high-

risk areas. It is also essential to report attacks to the PRC, as the PRC is able to relay the

information it receives from shipmasters to local law enforcement agencies, to decrease response

time; the PRC can also notify vessels in the region of the attack, to put them on alert to the

danger. Further, recognizing the importance of the PRC, four of the States with the most ships

flying their flags—Liberia, the Marshall Islands, Panama and the Bahamas—signed the

Declaration Condemning Acts of Violence Against Seafarers (Aug. 3, 2011), wherein the States

affirmed their commitment to relay the reports of piracy or armed robbery they receive from

their flagged vessels to the PRC.105 Accordingly, Mergeland and Oneland should encourage an

increase in communication with the PRC, in order to augment the repression of piracy and armed

robbery within their territorial waters.

Mergeland and Oneland should also augment the repression of piracy in their waters by

implementing the International Ship and Port Facility Security (ISPS) Code.106 The ISPS Code

sets out responsibilities for States, shipping companies and port facility personnel to take

measures to prevent security incidents in port facilities. Thus, its implementation by Mergeland

and Oneland would contribute to reducing the incidence of armed robbery in their respective

ports.

104 International Chamber Commerce, International Maritime Bureau Piracy Reporting Centre Website, https://icc-ccs.org/piracy-reporting-centre (last visited Dec. 6, 2015).

105 Declaration Condemning Acts of Violence against Seafarers (Aug. 3, 2011), available at http://www.safety4sea.com/images/media/pdf/The%20Washington%20Declaration.pdf.

106 International Ship and Port Facility Security (ISPS) Code (Jul. 1, 2004).

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Additionally, Mergeland and Oneland should follow the request of the IMO107 and

implement the IMO’s Code of Practice for the Investigation of Crimes of Piracy and Armed

Robbery against Ships (Code of Practice).108 The implementation of the IMO’s Code of Practice

would augment Mergeland and Oneland’s apprehension and prosecution of suspected

perpetrators of piracy or armed robbery, as the Code of Practice provides extensive guidance on

topics including: the training of investigators, investigative strategy, responding to a report of an

attack—including the preservation of life, prevention of the escape of offenders, warning of

other ships in the vicinity, and protection of the crime scene—and conducting successful

investigations.109

Finally, Mergeland and Oneland should encourage the carriers who travel through their

straights to implement the International Chamber of Shipping’s Best Management Practices for

Protection against Somalia Based Piracy (BMP4).110 Implementing BMP4 would help in the

repression of piracy in the straights of Mergeland and Oneland, as BMP4 outlines typical pirate

attack profiles, provides guidelines for shipmaster planning and crew drilling, and outlines

numerous ship protection measures, including: watch-keeping, the use of razor wire on railings,

the use of water-spray, and the construction of citadels.111 BMP4 also outlines vulnerabilities of

commercial ships, such as low speed, bad preparation and low freeboard, which can be changed

to better prevent successful pirate attacks.112 Additionally, many States have recognized the 107IMO Doc A 26/Res.1025, ¶ 3 (Jan. 18, 2010), available at http://www.imo.org/blast/blastDataHelper.asp?data_id=29986&filename=A1025(26).pdf.

108 IMO Doc A 26/Res.1025, Annex (Jan. 18, 2010).

109Id. 110International Chamber of Shipping, Best Management Practices for Protection against Somalia Based Piracy (BMP4) (Aug. 2011), available at http://www.ics-shipping.org/docs/default-source/resources/safety-security-and-operations/best-management-practices-4.pdf?sfvrsn=12.

111 Id.

112Id.

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importance of the Best Management Practices by signing the New York Declaration (Sep. 9,

2009), committing themselves to the promulgation of the Practices within the vessels on their

registers. Accordingly, Mergeland and Oneland should encourage the carriers traveling through

their territorial waters to implement BMP4 in order to reduce the incidence of piracy and armed

robbery within their straights.

CONCLUSION

The USS Rescue could undertake hot pursuit and capture the pirates in the territorial

waters and land of Subland only pursuant to the prior consent of Subland, expressed in a form

such as a UNSC Resolution or a Shiprider Agreement. Further, the pirates arrested and taken into

the custody of the USS Rescue may be prosecuted by the United States, or transferred to another

country for prosecution. However, given State practice in Somalia and the many monetary and

other costs associated with prosecuting pirates, the U.S. might decide to set the pirates free.

Finally, considering their duty to combat piracy in their territorial waters, Mergeland and

Oneland should draft law enforcement agreements between themselves and with third States,

such as Shiprider Agreements or agreements like ReCAAP, to repress piracy in their straights.

Mergeland and Oneland should also implement the IMO’s Code of Practice; and, they should

encourage carriers travelling through their waters to report all attempted or actual instances of

armed robbery or piracy to the IMB and implement the International Chamber of Shipping’s Best

Management Practices.

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Piracy Exercise

Documents

Transcript of Piracy Exercise