MO Conference on Capacity-building
(15 May 2012, London)
Statement by Mr. Stephen Mathias,
Assistant-Secretary-General for Legal Affairs
Capacity-building to counter piracy and armed robbery at sea off the coast of Somalia
Your Excellency, Mr. Koji Sekimizu, Secretary-General of the International Maritime Organization,
Ladies and gentlemen
It is a great pleasure to address this distinguished group of participants, including government officials, representatives of international organizations and representatives from the shipping industry.
The priority and importance that the United Nations Office of Legal Affairs gives to countering piracy and armed robbery at sea reflects the international community’s close attention to these serious issues. I would like to acknowledge from the outset as well the important role of the IMO in this regard. IMO is a specialized agency of the United Nations, which under the 1982 United Nations Convention on the Law of the Sea (referred to as “UNCLOS”) is recognized as the competent international organization on issues relating to the safety and security of shipping and the prevention and control of marine pollution by ships. IMO promotes maritime security through developing the international regulatory framework, and its vital capacity-building efforts on the ground in the region. It also plays an important role in combating piracy and armed robbery against ships at the global level and has spearheaded several successful regional initiatives, including the Djibouti Code of Conduct.
The human cost of piracy off the coast of Somalia is incalculable, with killings and widespread hostage-taking. Although the success rate of such attacks has declined, the large numbers of hostages, increasing levels of violence, and the expanding geographical scope of the attacks are still extremely worrying.
The problem of piracy clearly demonstrates the increasing interdependence of States and people in a globalised world. The human, commercial and security interests under threat engage a large number of States and international and regional organisations with a stake in finding a solution.
The United Nations has been actively involved in anti-piracy efforts through a broad range of initiatives. The Secretary-General has consistently pressed the UN and other international organisations to do more to contribute to a solution to this complex problem that causes such serious human and economic costs. For example, as far back as March of 2009, he dispatched the UN Legal Counsel, Ms Patricia O’Brien, to Kenya to discuss the issue with the Kenyan authorities and the UN offices active on the ground. In April 2011, he dispatched her again to represent him at the Conference organised and hosted by the Government of the United Arab Emirates: Global Challenge, Regional Responses: Forging a Common Approach to Maritime Piracy. The Secretary-General himself attended the London Conference on Somalia in February this year.
Throughout this time, the UN Office of Legal Affairs has forged a strong collaboration with the IMO, and with UNODC and UNDP, to make sure that the Security Council and UN Headquarters are fully up to speed with important developments on the ground, and are able to respond accordingly.
In my remarks today, I would like to highlight two areas of work of the Office of Legal Affairs: first, our close collaboration with UNODC and UNDP who are working with regional States to build their capacity to prosecute suspected pirates and imprison those convicted. This collaboration has enabled us to prepare three reports to the Security Council on behalf of the Secretary-General; and second, the capacity-building work undertaken by the Division for Ocean Affairs and Law of the Sea (known as DOALOS), including in collaboration with the IMO and other international partners.
The Secretary-General’s reports to the Security Council
The information and analysis set out in the Secretary-General’s three reports demonstrate the progress that has been made by the United Nations and international partners in assisting States in the region, including, critically, Somalia itself, to prosecute and imprison those responsible for acts of piracy. The United Nations began this work in 2009 through the UNODC programme of assistance to States in the region to prosecute and imprison persons suspected of acts of piracy. The programme focuses in particular on States that have agreed to receive suspects arrested by naval forces. It involves legislative assistance, the training of judges, prosecutors, police investigators, defence counsel and prison staff, and investment in courthouses, prisons and other infrastructure.
The first of the Secretary-General’s reports, which issued in July 2010 (UN document S/2010/394), dealt with “possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia”. The Council requested a menu of possible options for consideration, ranging from an international or regional tribunal, “hybrid” courts, and special chambers within domestic jurisdictions.
The report identified “Option 1” as the enhancement of United Nations assistance to build the capacity of regional States to prosecute and imprison persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia. By comparison with the various other options involving some form of international or hybrid tribunal, the report underlined that Option 1 was already ongoing, and had achieved some success. At that stage, Kenya was the principal regional State undertaking piracy prosecutions. The Security Council was invited to consider continuing, and building on, its role in encouraging and supporting the efforts of the regional States. The longer term development of Somalia’s capacity to prosecute and imprison was identified as a key consideration for the future.
The second report, which issued in June 2011 (UN document S/2011/360), focused on the modalities for the establishment of specialized Somali anti-piracy courts, both in Somalia, and located extraterritorially in another State in the region. As the Special Adviser of the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia, Mr. Jack Lang, had noted in his report (Annex to UN document S/2011/30), the strengthening of the rule of law in Somalia was the guiding principle that should underlie any proposal for the establishment of Somali specialized anti-piracy courts.
The report identified a number of legal and practical challenges faced by Somalia that would impact both on the development of anti-piracy prosecutions within Somalia, namely, in “Puntland” and “Somaliland”, and also on the proposal for the establishment of a Somali anti-piracy court in a third State in the region. These challenges included the need for adequate criminal and procedural legislation for the prosecution of pirates, sufficient numbers of trained judges and other legal professionals, security, imprisonment facilities, and financing.
The report drew on the experience of UNODC and UNDP, and the capacity-building that they had already delivered in “Puntland” and “Somaliland”, to give indications of the time and resources that would be necessary for the functioning of such Somali courts. Annexes to the report described the political and legal framework within Somalia, and the security situation, the numbers and level of training of judges, prosecutors, defence lawyers and police investigators in each of the regions of Somalia, and information about legal professionals among the Somali diaspora.
The report also set out in an annex an update of capacity-building work being undertaken in other regional States. At that stage, assistance was being provided in Kenya and Seychelles, who were conducting piracy prosecutions, and was due to extend to Mauritius. A needs assessment had been completed at the request of the Government of Tanzania.
A further major conclusion in this second report, which reflects a theme common to each of the Secretary-General’s reports, was that increasing the capacity of “Somaliland”, “Puntland” and other States in the region to prosecute piracy suspects in accordance with international standards would meet a bottleneck if there were insufficient corresponding prison arrangements meeting international standards. Increasing the capacity of “Puntland” and “Somaliland” to receive piracy prisoners was, and remains, a major priority.
Following consideration of the first and second reports, the Security Council’s third request to the Secretary-General in resolution 2015 (2011) focused on specialised anti-piracy courts within the domestic jurisdictions of regional States: Seychelles, Kenya, Tanzania, Mauritius and the Puntland and Somaliland regions of Somalia. It asked the Secretary-General to consult these regional States on the kind of international assistance required to help make such courts operational, their projected case capacity, and the projected timeline and costs. These consultations were carried out by UNODC, UNDP and OLA, in close collaboration.
The report, which issued in January 2012 (UN document S/2012/50), concluded that if international capacity-building assistance to the six jurisdictions were maximised, collectively they could achieve a total of around 125 piracy prosecutions per year, with up to ten suspects in each case. In other words, through the capacity-building efforts of UNODC, UNDP and other international partners, up to 1,250 piracy suspects could be prosecuted in accordance with international standards each year in these regional States.
This increase in capacity could be achieved within two years in “Puntland” and “Somaliland”, with an additional year of mentoring and monitoring; and within one year in each of the other jurisdictions, although the assistance should be maintained beyond one year in order to sustain the results. The cost of the assistance for prosecutions set out in the report over a three year period in “Puntland” and “Somaliland” would total a little more than $7 million; and over a two year period in the four remaining regional States would total around $9.5 million.
Ladies and gentlemen
What I would like to highlight in this part of my intervention today, is the major impact that this capacity-building work can have on the ability of States in the region to prosecute and imprison those responsible for acts of piracy. The potential is for more suspects to be prosecuted each year in these five regional States than the total number of piracy suspects prosecuted globally since 2006, and at a cost that is modest compared to that of any of the existing international or hybrid tribunals.
This latest report by the Secretary-General was presented to the Security Council by the Legal Counsel on 22 February this year, and the issue is with the Council members for consideration of any action or further requests that they may wish to make.
Capacity-building work undertaken by DOALOS
Ladies and gentlemen
I will move on now to the second part of my intervention, concerning the capacity-building work carried out by the DOALOS, including in cooperation with IMO and UNODC. I would wish to note here that DOALOS has a mandate to “promote the uniform and consistent application” of the provisions of UNCLOS, including those relating to the repression of piracy.
In this regard, the Security Council in its resolutions relating to piracy off the coast of Somalia has reaffirmed that international law, as reflected in UNCLOS, in particular its articles 100, 101 and 105, sets out the legal framework applicable to combating piracy and armed robbery at sea, as well as other ocean activities.
You will recall that the Security Council in its resolutions 1950 (2010), 2015 (2011) and 2020 (2011) has called upon all States to criminalize piracy under their national law. It has also called upon international partners to assist States in developing legislation on piracy.
In resolution 2015 (2011), the Security Council requested the Secretary-General to compile and circulate information received from Member States on the measures they have taken to criminalize piracy under their domestic law and to prosecute and support the prosecution of individuals suspected of piracy off the coast of Somalia and the imprisonment of convicted pirates. My Office prepared a compilation of the information submitted by 42 member States. This document will be circulated as a document of the Security Council soon.
DOALOS has a long history of cooperation with the IMO, as well as the UNODC on various matters related to the implementation of UNCLOS as well as of relevant IMO and UNODC instruments. In the wake of the increase in piracy and armed robbery incidents off the coast of Somalia, the cooperation among these Offices has increased, including with regard to capacity-building activities related to national legislation on piracy.
With regard to the development of national anti-piracy legislation, I would also like to recall that my Office, through DOALOS continues to cooperate with the IMO and UNODC, including through capacity-building training workshops on national anti-piracy legislation for signatory States to the Djibouti Code of Conduct. IMO and UNODC have held such workshops in Djibouti and Nairobi in 2011.
Additionally, IMO issued circular letter No. 3180 of 17 May 2011, containing information and guidance on elements of international law relating to piracy that might be useful to States that are either developing national legislation on piracy or reviewing existing legislation. The material in the circular letter was prepared by DOALOS, the IMO secretariat, the United Nations Office on Drugs and Crime, and the Government of Ukraine.
You may recall that pursuant to a request of the Security Council in resolution 1976 (2011), the Secretary-General prepared a report on the protection of Somali natural resources and waters. This report, to which my Office contributed, was issued in October 2011 as document S/2011/661. In the report, the Secretary-General called on the Transitional Federal Government, working in tandem with the Transitional Federal Parliament, to declare an exclusive economic zone in accordance with UNCLOS, to which Somalia has been a party since 1994. Such a proclamation, together with the adoption of enabling legislation, would clarify the legal basis for the protection of the sovereign rights of Somalia with respect to natural resources and its jurisdiction over the marine environment.
My Office is ready to support the Transitional Federal Government and the Transitional Federal Parliament in this regard, and, we stand ready to assist in preparation of the corresponding national legislation.
It is my hope that these brief remarks have provided you with an overview of the level of engagement my Office has with regard to counter-piracy efforts, particularly capacity-building initiatives, including in cooperation with other UN entities. As you may know, the Secretary-General of the United Nations met with Mr. Sekimizu in January this year to discuss how to enhance the UNs role in capacity-building in Somalia and other countries in the region, building on IMOs existing activities under the Djibouti Code of Conduct and its associated Trust Fund.
I would therefore like to close these remarks by underlining that the Secretary-General and the United Nations remain deeply concerned by the scourge of piracy off the coast of Somalia, and that the Office of Legal Affairs and other relevant UN offices are committed to remaining closely engaged, and to deepening collaboration with the IMO and other relevant stakeholders, with a view to finding practical and sustainable solutions to this complex problem. In that regard we welcome the many initiatives of IMO with regard to the Djibouti Code of Conduct including most recently, its proposed project on the Protection of the Southern Shipping Lane.
We stand ready to assist the IMO and the international community in any way that we can as capacity-building initiatives are developed and implemented.
I wish the Conference successful deliberations.