Modern notions of piracy are tainted with romanticism; however, by ancient definition, pirates are in fact hostis humani generis — “enemies of the human race.” Today, pirates originating from Somalia have been left to act upon their own devices, unchecked in power, they have shifted attention from the southern coast to one of the most lucrative channels of trade — the Gulf of Aden. This year alone pirates have hijacked at least 30 ships from the Gulf of Aden. These waters are a major artery used by 20,000 vessels yearly. 700 million tonnes pass through the canal and account for more than 9 per cent of global shipping.

In response, a multilateral force has been assembled along with the navies of Operation Ensuring Freedom patrolling the high seas. India has dispatched one of its latest warships to protect its trade. Roughly $100 billion of Indian sea trade passes through the Gulf of Aden; the current situation costs up to $450,000 of revenues per month.  

As a consequence, attention has been brought to one of the oldest forms of trade and of criminality. The Joint War Committee of Lloyd’s Market Association has designated the channel at high risk of “war, strikes of terrorism and related perils.” The International Maritime Bureau (IMB) has from 2006 pointed out developments in Somalia indicating a “hot spot” for piracy. This fell on deaf ears in the international community till the 7th October passage of a resolution allowing for states to “cooperate” with the Somali Transitional Federal Government (TFG) to enter the country’s territorial waters and use “all necessary means” to repress acts of piracy and armed robbery at sea. This permission is granted for a limited period of 6 months — the broader issue of combating piracy it still undefined.

There is a reason why the issue is undefined: the issue arises from the lack of definition of a pirate itself. The act of piracy falls under international law, whereby both piracy and armed robbery at sea remains illegal as specified in the United Nations Convention on the Law of the Sea (UNCLOS). However, when is a pirate defined as a pirate? Is the act of piracy the same as the intent to commandeer? There are grey areas in this debate very similar to the debate on defining terrorism. Similarities develop — the question is why it has taken this long for attention to be drawn to the similarities between pirates of the early modern era to terrorists of the post modern era. Can terrorism and piracy be defined as one and the same?

The post 9/11 world has seen the development of discourse on terrorism. It has been defined as an act akin to war; in fact it has a plethora of definitions — and operates within a set framework. A group or an organisation suspected of terrorism is liable to international jurisdiction as they are in fact neither from a state nor apart from the state. The debate involves state and non-state actors. Terrorists (like pirates) are non-state actors and therefore have a “hybrid status in the law.” They are thus outside the protection of the state and of the nation; the term given is homo sacer — “the sacred man, who may be killed and yet not sacrificed.” However, contemporary political thought has gone beyond the traditional state and non-state debate and attempts are being made to provide an overall framework to define and analyse terrorism and terrorist activity.

Understanding of piracy’s international context hasn’t gone so far. There is recognition of the duty of all nations to cooperate in the repression of piracy, included in the 1958 Geneva Convention on the High Seas and the 1982 Law of the Seas Convention. These laws state: “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.” But this is catch-22. A pirate is not a pirate until he has hijacked a ship — and when he has done so he is only subject to international law when it is outside the jurisdiction of a state. The majority of recent hijackings have occurred around 20 miles offshore — legally placing them under the rule of the Somali government. Warnings have been issued to vessels to stay beyond 50-75 miles; however the act of commandeering has frequently taken place with the mother ship operating within the confines of international law.

The Security Council has tried to respond. It recently passed a resolution allowing vessels from international countries to patrol Somalia’s water and repress pirates “by all necessary means”. However, this month saw record seizures — four vessels in 48 hours. Ad hoc methods don’t work. The world needs a unified approach to reforming law five hundred years old. And the evidence suggests that in order to combat piracy that approach needs to use the systems we’re developing for terrorism for something that is, in so many ways, terrorism of the sea.

alia.allana@expressindia.com