Die Bekämpfung der Seepiraterie im Spiegel des Völkerrechts, des Europarechts und der deutschen Rechtsordnung

The heyday of sea piracy was to be found in the 17th and 18th century. However, the present era has seen a major return to lawlessness at sea. Off certain coasts of Africa, particularly off the coasts of Somalia which is a State with weak government and little maritime surveillance, modern pirates constitute not only a grave menace to the international community but also pose new challenges to the international legal order. Long-standing customary rules, as codified in Articles 100–110 UNCLOS, are being confronted with changing realities. For instance, the narrow definition in Article 101 UNCLOS clearly excludes piracy outside the high seas and the exclusive economic zone. Therefore, in cases where piracy occurs in internal waters of failed States, no seizure of pirates shall be done unless the international community extends its operating range even to the coastal waters. This is currently the case with Somalia where the Security Council via chapter VII of the UN Charter has extended the radius of international actions by several resolutions. These resolutions expressly authorize States and regional organizations to enter in the territorial sea of Somalia for the purpose of combating piracy. Against this background and in support of the Security Council resolutions, the European Union is, since almost two years, conducting the military operation Atalanta off the Somali coast. This operation, which is the first EU maritime operation, is carried out in the framework of the Common Security and Defence Policy and aims at contributing to the deterrence, prevention and repression of acts of piracy. Within this context, the European Union has also made an arrangement with Kenya, the latter being obliged to prosecute suspected pirates apprehended by Atalanta's warships. Also the Federal Republic of Germany is taking part in this European Union military operation. Since December 2008, the German Navy has taken position off the coast of Somalia after the Bundestag had previously approved this military action out of area by a large majority. Whereas the decisions taken by the UN Security Council and the Council of the EU are largely in accordance with the prerequisites established in international and in European Union law, there do remain some legal problems regarding the participation of the German Navy in the operation Atalanta. The Basic Law and, in particular, the ordinary statutes of the German legal order regularly make a sharp distinction between police actions on the one hand, and war actions on the other. It is therefore questionable whether the sending out of German military forces to the Gulf of Aden can be considered as being unassailably lawful. Furthermore it is doubtful whether the treatment of suspected pirates – who are, in several cases, firstly detained on Atalanta's warships and only after weeks surrendered to Kenya in order to face trial -, does fit into the human rights context of modern international law. Planning a multi-national anti-piracy mission is, in fact, a major strategic and logistic endeavour. However, in view of international human rights there is a strong need to elaborate rules on the treatment of arrested pirates, including norms which clearly provide for habeas corpus and due process. International law already offers the guiding principles for such an undertaking, and the creation of an international court dealing with piracy could presumably help to improve the current situation.