A Pirate and a Refugee: Reservations and Responses in the Fight Against Piracy

Abstract

Despite concerted international cooperation and action, including the deployment of various national and international naval forces in the region, piracy, in particular off the coast of Somalia, continues to pose a serious threat to the peace and security of one of the most-traveled waterways in the world, the neighboring states, and to the global economy.

Naval deterrence depends on effective patrolling, which again is closely tied to the concept of jurisdiction and law enforcement. As a point of departure, piracy is considered to be the original universal jurisdiction crime and, as such, states apprehending pirates would be able to base their jurisdiction on that concept. However, in practice, states patrolling the Gulf of Aden have shied away from prosecuting, sometimes even from arresting, suspected pirates due to anticipated legal difficulties of prosecution, high expenses connected with transporting suspects to the national courts of the apprehending forces, and concerns of potential asylum claims being made by pirates.

Some of those claims may be rejected based on the Exclusion Clause in Article 1F of the 1951 Refugee Convention, stipulating that refugee status may be denied to persons who have committed certain serious crimes. The majority of arrests, however, by necessity pertains to unsuccessful pirates and hence involves inchoate acts on the grounds of which a potential asylum claim, nevertheless, may not as readily be denied.

While failure to adequately address the problem of piracy on the high seas may reinforce the threat to security in the region and beyond, insufficiently prepared prosecutions in the various cooperating states’ national courts may add to the fear of not only harboring a pirate, and lending incentives to future ones, but potentially in this fashion inviting criminal gangs, or sleeper cells, with even more serious agendas into the country. Assessing the legal basis of those fears and evaluating ways to counter the level of threat posed by piracy will be at the core of this article.

Keywords: Piracy, Refugees, Exclusion Clause, Refugee Convention, Universal Jurisdiction, UNCLOS, Somalia