Piracy poses a serious threat to peace and security of the international community.
In the first half of 2016, the International Maritime Bureau (IMB) recorded 72 vessels boarded, 5 hijackings and 12 attempted attacks by pirates.
The issue at stake is whether, pursuant to the UN Charter, the resort to the use of force may be admitted to face this threat provided that piracy attacks are carried out (i) by non-state actors (ii) throughout actions that might not properly be described as “armed aggressions”.
According to the International Court of Justice’[1] interpretation of article 51 of the UN Charter[2], which sets forth factual requirements permitting self defence by Member States, these two circumstances would not lawfully admit any armed reaction under the collective security system.
There is, however, a different way to look at the whole issue.
The International Court does not seem to appreciate that the provisions contained in article 51 of the UN Charter, referencing an hypothetical armed attack against a Member of the United Nations, were predicated upon dramatically diverse historical circumstances and formulated to address conventional military confrontations between States.
The sovereign purpose of the Charter drafters pursued in 1944 consisted in setting up a balanced security system, conceptually designated to ensure peace and security to the international community.
To achieve the purpose, the Charter drafters established a functional interaction between article 2, paragraph 4[3] – that provides for the refrain from the threat or use of force – and article 51 – that guarantees the “inherent right of individual or collective self defence” – in which context the express reference to an armed attack against a Member of the United Nations simply reflected the general habituation to those typical combat scenarios.
Ostensibly, they could not envisage nor anticipate contemporary types of threatening scenarios in which actors and strategies have radically changed. And there is no reasonable ground to affirm that, if they could, they would have in any event excluded non-state actors’ unconventional threats from the scope of the referred provisions.
In recent decades, the employment by States of irregular army forces in armed conflicts (a widespread practice adopted since late 1960’s), terrorism and guerrilla movements’ hostile acts, piracy hijackings as well as humanitarian military interventions in regional conflicts have substantially replaced the conventional State-to-State engagement rules. And such non-state actors’ conducts do equal armed attacks which are expressly referenced in the UN Charter as typical circumstances allowing the lawful resort to the use of force.
If the sovereign goal pursued by the UN Charter consisted in protecting the international community from any threats to its peace and security, we should consistently look at what the literal provisions substantially meant, and still mean, and apply them to said transformed patterns which do not eliminate the phenomenon, thus deserving equal treatment in terms of lawful remedies.
The UN Charter does not require States to maintain a supine or indifferent attitude when an actual threat to the international community is provoked by non- state actors throughout innovative offensive methods.
In the immediate aftermath of September 11th 2011 terrorist attacks, the UN Security Council did take this view.
On September 12th 2011, the Security Council resolved – in Resolution 1368 – that the terrorist attacks to the Twin Towers and to the Pentagon, launched by non-state actors, constituted “a threat to peace and international security”.
When it comes to piracy attacks launched over the last decade in Somalia, Security Council Resolution 1851/2008did rest on consistent legal ground when authorizing “all necessary measures that are appropriate in Somalia for the purpose of suppressing acts of piracy and armed robbery at sea”. Including the use of force.
The progressive interpretation of the UN Charter provisions underlying that wording is not to be underrated. When similar authorizations are routinely granted to face non-state threats equally affecting the international community security, the formation of a customary rule of international law will be a concrete matter of discussion.
The assent granted to States to resort to the use of force against piracy is the key approach to corroborate the role of positive International Law as the most effective weapon against threats to international peace and security rather than just as the icon of interpretative parameters no longer adequate to rule unregulated situations having, nonetheless, considerable attitude to dramatically threaten the peaceful international relations.
The juridical qualification of piracy acts and the application of the UN Charter provisions to such contemporary threats should in no case disregard the factual, con-textual elements of the occurred events and the relevance of their effects against the whole international community.
The efficacy and actuality of International Law should always descend from an essential interpretation of its principles which are, by definition, aimed at ensuring the constant adhesion of the rule of law to the manifold and evolving variety of events detrimentally impacting on international relations.
Pietro Cuomo & Simona Semmola
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[1]International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua vs United States of America), judgement January 27, 1986 and International Court of Justice, Legal Consequences of the construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion July 9, 2006, in ICJ Report, 2004.
[2]UN Charter, Art. 51: <<Nothing in the present Charter shall impair the inherent right of individual or collective self defence if an armed attack occurs against a Member of the United Nations […]>>.
[3]UN Charter, Art. 2(4): <<All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations>>.
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