Piracy Exercise

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MEMORANDUM
TO: Pr. Cheryl Krusen
FROM: Peter Grenzow
RE: Piracy, Security and Maritime Spaces Assignment 2
DATE: 7 December 2015
INTRODUCTION
In order for the USS Rescue to have been legally justified in undertaking hot pursuit and
capturing the pirates in the territorial waters and land of Subland, it must have done so pursuant to
a prior expression of consent by Subland, including in the form of a Shiprider Agreement or U.N.
Security Council (UNSC) Resolution. If the U.S. can establish jurisdiction over the pirates, the
U.S. may prosecute them, transfer them to another country for prosecution or let them go
altogether. Finally, because Mergeland and Oneland have a duty to repress the piracy in their
territorial waters, they should conclude law enforcement agreements between them and with third
States to combat such piracy.
I. THE USS RESCUE COULD JUSTIFIABLY UNDERTAKE THE HOT PURSUIT
AND CAPTURE OF THE PIRATES IN THE TERRITORY OF SUBLAND
PURSUANT TO A PRIOR EXPRESSION OF CONSENT BY SUBLAND.
The USS Rescue’s dispatched vessel was justified in undertaking hot pursuit and capturing
the pirates in the territory of Subland if it did so pursuant to a prior expression of consent by
Subland. First, even though the USS Rescue and its dispatched vessel are flagged to the U.S., it is
still subject to the principles of the U.N. Convention on the Law of the Sea (UNCLOS), as
UNCLOS is widely regarded as an embodiment of customary international law. While the record
does not state where the pirate boat was when the hot pursuit started, hot pursuit normally “must
be commenced when the foreign ship or one of its boats is within the internal waters, the

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archipelagic waters, the territorial sea or the contiguous zone of the pursuing State.”1 However, it
may also commence in the exclusive economic zone or on the continental shelf for violations of
laws applicable under UNCLOS in such zones.2 Nonetheless, the right to hot pursuit ends “as soon
as the ship pursued enters the territorial sea of its own State or of a third State.”3 Accordingly,
absent the prior consent of Subland to the pursuit and arrest of the pirates by the USS Rescue’s
dispatched vessel on Subland’s territory, the vessel did not have the right to continue the hot pursuit
of the pirates into Subland’s territorial waters.
The first basis on which the USS Rescue’s vessel could have justifiably continued the hot
pursuit of the pirates and arrested them in the territory of Subland consists in the customary
international law doctrine of consent. Specifically, the International Law Commission’s (ILC)
Draft Articles on the Responsibility of States for Internationally Wrongful Acts are considered to
be a codification of the customary international law of State responsibility.4 Accordingly, under
customary international law the “[v]alid consent by a State to the commission of a given act by
another State precludes the wrongfulness of that act in relation to the former State to the extent
that the act remains within the limits of that consent.”5 Thus, the USS Rescue’s vessel was justified
in pursuing and arresting the pirates on the coastline of Subland, if Subland gave their prior valid
consent to the commission of such actions by the vessel. This consent may have been expressed in
the form of a Shiprider Agreement or in a UNSC Resolution.
1 U.N. Convention on the Law of the Sea art. 111 para. 1, Dec. 10, 1982, 1833 U.N.T.S. 397.
2 Id. at art. 111 para. 2.
4 Rep. of the Int’l Law Comm’n, 53d Sess., U.N. Doc. A/56/10, at 31 (2001).
5Responsibility of States for Internationally Wrongful Acts art. 20, G.A. Res. 56/83, U.N. GAOR, 56th Sess. Supp.
10, U.N. Doc. A/56/10 (2002); See also Case Concerning Armed Activities on the Territory of the Congo (Dem.
Rep. Congo v. Uganda),Judgment, 2005 I.C.J. 168 (Dec. 19).

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The pursuit and capture of the pirates on the coastline of Subland by the USS Rescue’s
vessel was justified if Subland expressed its consent to such actions prior to their commission
through a Shiprider Agreement. The UNSC has invited States and regional organizations
combatting piracy off the coast of Somalia, under similar conditions as to those experienced in
Subland’s waters, to conclude Shiprider Agreements with each other—in order to facilitate the
investigation and prosecution of pirates.6 A good example of a Shiprider Agreement pertains to
the Agreement between the Government of Barbados and the United States.7 The Agreement sets
out a combined law enforcement program, wherein Barbados consents to U.S. law enforcement
vessels entering Barbados waters, with a Barbados shiprider—or law enforcement official—
embarked on the U.S. vessels, in order to enforce the laws of Barbados in its waters.8 Additionally,
the U.S. consents to Barbados law enforcement vessels entering U.S. waters, with the prior
authorization of a U.S. shiprider, to enforce U.S. laws in its waters.9 A Shiprider Agreement such
as that between the US and the Bahamas would be another possibility, while it only allows U.S.
law enforcement vessels to assist Bahamian law enforcement officials in Bahamian waters, with
prior authorization from a Bahamian shiprider—and not vice versa.10 Thus, if Subland ratified a
Shiprider Agreement with the U.S. authorizing U.S. law enforcement vessels—such as the USS
6 U.N. Doc. S/RES/1851, ¶ 3 (Dec. 16, 2008).
7Agreement Between the Government of Barbados and the Government of the United States of America Concerning
Co-Operation in suppressing Illicit Maritime Drug Trafficking (Oct. 11, 1998), available at
http://www.state.gov/documents/organization/101684.pdf.
8Id. at art. 3 § 6.
9Id. at art. 3 § 7
10Agreement Between the Government of the United States of America and the Government of the Commonwealth
of the Bahamas Concerning Cooperation in Maritime Law Enforcement (June 29, 2004), available at

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Rescue’s vessel—to pursue and arrest pirates in Subland’s territory, in the manner that the USS
Rescue’s vessel did, the pursuit and arrest of the pirates was lawful.
Nonetheless, while it appears from the record the pirates were nationals of Subland, if any
of them were nationals of a third State, the U.S. will have to assert the sovereignty of Subland in
order to be justified in arresting the pirates pursuant to a Shiprider Agreement. Specifically, under
the doctrine pacta tertiis nec nocent nec prosunt, a Shiprider Agreement does not establish
obligations for third States unless such states expressly accept such obligations in writing.11
Accordingly, the U.S. could not express its jurisdiction over third State nationals solely under a
Shiprider Agreement with Subland, absent the express consent to such Agreement by the third
State concerned. However, absent such consent, the U.S. could justifiably express its jurisdiction
over third State nationals, if it asserts the sovereignty of Subland under UNCLOS in its territorial
waters and land—expressed through the USS Rescue’s vessel pursuant to a Shiprider Agreement.12
Consequently, if Subland concluded a Shiprider Agreement with the U.S. articulating its consent,
prior to its commission, to the pursuit and arrest of the pirates on its coastline by the USS Rescue’s
dispatched vessel, such pursuit and arrest were justified.
Furthermore, if there was a prior UNSC Resolution expressing the consent of Subland to
the extension of the right of hot pursuit and arrest of pirates by the USS Rescue’s dispatched vessel
into Subland’s territory, then such hot pursuit and arrest were justified. The UNSC has the power
under Chapter VII of the U.N. Charter to authorize “such action by air, sea, or land forces as may
be necessary to maintain or restore international peace and security.”13 Recognizing the unique
11 Vienna Convention on the Law of Treaties art. 35, May 23, 1969, U.N. Doc. A/Conf. 39/27.
12 U.N. Convention on the Law of the Sea art. 2, Dec. 10, 1982, 1833 U.N.T.S. 397.
13U.N. Charter art. 42.

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situation in Somalia, the proliferation of piracy off Somalia’s coast, and Somalia’s incapacity to
repress such piracy by itself, the UNSC took action in 2008 under its Chapter VII powers.
Specifically, the UNSC authorized States cooperating with the Transitional Federal Government
of Somalia (TFG) to enter Somalia’s territorial waters and therein use “all necessary means to
repress acts of piracy and armed robbery.”14 Thus, States cooperating with the TFG were
authorized to extend their right to hot pursuit to Somalia’s territorial sea to repress piracy, under
UNCLOS committed in the high seas,15 or armed robbery committed within Somalia’s
jurisdiction.16
Later in 2008 the UNSC extended the right of hot pursuit of States and regional
organizations cooperating with the TFG “in the fight against piracy and armed robbery at sea off
the coast of Somalia . . . .” to the use of “all necessary measures that are appropriate” in the territory
of Somalia “for the purpose of suppressing acts of piracy and armed robbery at sea . . . .”17 This
extension of the right of hot pursuit to the territory of Somalia has subsequently been renewed
annually by the UNSC through the time of writing.18 However, because the situation in Somalia is
unique, the UNSC has expressed that the extension of the right of hot pursuit in Somalia is not to
be considered as establishing a rule of customary international law and only applies to the situation
in Somalia.19 Nonetheless, there are many similarities between the situation in Somalia and the
14 U.N. Doc. S/RES/1816, ¶ 7 (June 2, 2008).
15U.N. Convention on the Law of the Sea art. 101(a), Dec. 10, 1982, 1833 U.N.T.S. 397.
16IMO Doc A 22/Res.922 (Jan. 22, 2002), Annex, para. 2.2.
17U.N. Doc. S/RES/1851, ¶ 6 (Dec. 16, 2008).
18See, e.g., U.N. Docs. S/RES/1897, ¶ 7 (Nov. 30, 2009); S/RES/1950, ¶ 7 (Nov. 27, 2010); S/RES/2020, ¶ 9 (Nov.
22, 2011); S/RES/2077, ¶ 12 (Nov. 22, 2012); S/RES/2184, ¶ 13 (Nov. 12, 2014); S/RES/2246, ¶ 14 (Nov. 10,
2015).
19U.N. Doc. S/RES/1838, ¶ 8 (Oct. 7, 2008).

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situation in Subland. Specifically, like Somalia, Subland is a state that the international community
has deemed to be ungovernable, and thus not likely to be able to suppress piracy by itself. Also
like Somalia, many of Subland’s nationals partake in acts of piracy in the high seas off its coast—
escaping to the sanctuary of Subland’s territorial waters. Accordingly, Subland offers a unique
situation, like Somalia, in which it is foreseeable the UNSC would draft resolutions extending the
right to hot pursuit of States and regional organizations cooperating with Subland to Subland’s
territory. If such a UNSC Resolution existed prior to the USS Rescue’s dispatched vessel’s pursuit
and arrest of the pirates on the coastline of Subland, and the USS Rescue’s vessel was authorized
by such Resolution, the vessel was justified in arresting the pirates on Subland’s coastline.
Additionally, as in Somalia, an international anti-pirate Task Force is active in the waters
off the coast of Subland. In Somalia the creation of such ant-pirate regional organizations was
encouraged by the UNSC to combat piracy in Somalia.20 Many regional organizations and
operations were subsequently created, under the authorization of the aforementioned UNSC
Resolutions, to carry out the mandates of the Resolutions in the waters and territory of Somalia.
Specifically, the Contact Group on Piracy off the Coast of Somalia (CGPCS), the EU Naval Force
(NAVFOR) Somalia (Operation Atalanta),21 the Combined Task Force (CTF)-151—including
Australia, Pakistan, South Korea, Turkey, the U.K. and the U.S.—and NATO Operation Ocean
Shield were all implemented pursuant to cited UNSC Resolutions to combat piracy off the coast
of Somalia and into its territory. Thus, if the creation of the international anti-pirate Task Force—
which the USS Rescue is a part of—was similarly called for, and its arrest of pirates in the territory
20 U.N. Doc. S/RES/1851, ¶ 4 (Dec. 16, 2008).
21Created by Council Joint Action 2008/851/CFSP (Nov. 10, 2008) on a European Union Military Operation to
Contribute to the Deterrence, Prevention and Repression of Acts of Piracy and Armed Robbery off the Somali
Coast.

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of Subland was authorized by a UNSC Resolution with the consent of Subland, then the USS
Rescue’s dispatched vessel was justified in pursuing and arresting the pirates on Subland’s
coastline.
However, even if there was prior consent by Subland, articulated in the form of a Shiprider
Agreement, UNSC Resolution or other agreement, to the USS Rescue’s dispatched vessel’s pursuit
and arrest of the pirates on its coastline, the arrest was only justified if the dispatched vessel was
clearly identifiable as a government vessel and there were adequate grounds for the seizure.
Specifically, under UNCLOS an arrest of pirates or seizure of their ship “may be carried out only
by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being
on government service and authorized to that effect.”22 Additionally, a warship, or the boat it sends
“under the command of an officer”23 is only justified in boarding a ship if there is “reasonable
ground for suspecting that . . .[the] ship is engaged in piracy . . . .”24 Without such adequate
grounds, the State boarding the suspect ship is liable to the suspect ship’s flag State “for any loss
or damage caused by the seizure.”25 Thus, the USS Rescue’s dispatched vessel must have been
clearly marked as a government vessel authorized to make arrests in order to have been justified
in pursuing and arresting the pirates. Additionally, the USS Rescue must have had reasonable
grounds for believing the speedboat it pursued was engaged in piracy—which it likely did, as the
pirates had boarded the crew of the commercial vessel flagged to Florida on their vessel.
Nonetheless, if the USS Rescue did not have adequate grounds for believing the ship its dispatched
23Id. at art. 110 para. 2.
24Id. at art. 110 para. 1.
25Id. at art. 106.

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vessel pursued was engaged in piracy, the U.S. is liable for damages caused by the seizure to the
pirate vessels’ flag State.
II. THE PIRATES ARRESTED AND TAKEN INTO THE CUSTODY OF THE USS
RESCUE MAY BEPROSECUTED BY THE U.S., TRANSFERRED TO ANOTHER
STATE FOR PROSECUTION, OR SET FREE.
A. If the U.S. Establishes Jurisdiction over the Pirates, the U.S. May Prosecute
Them or Transfer Them to Another State for Prosecution.
If the U.S. establishes jurisdiction over the pirates, the USS Rescue may ship the pirates
back to the U.S. for prosecution, or transfer them to another State. In either situation however, in
order to prosecute the pirates, the prosecuting State will have to determine the nationality of the
pirates’ speedboat. Specifically, while it appears from the record that the pirates are nationals of
Subland, as they “head[ed] back to their territorial waters and land [in Subland],” it is unclear what
nationality their speedboat was. First, the pirates’ speedboat has “the nationality of the State whose
flag [it is] entitled to fly. There must exist a genuine link between the State and the ship.”26 While
it appears from the face of UNCLOS that a genuine link between the speedboat and its flag State
is thus required for the pirates to claim the nationality of such State for the speedboat, the
International Tribunal for the Law of the Sea (ITLOS) decided in M/V Saiga (No. 2) (St. Vincent
v. Guinea) that such a requirement was not included in UNCLOS “to establish a criteria by
reference to which the validity of the registration of ships in a flag State may be challenged . . .
.”27 Nonetheless, if the pirates’ speedboat sailed “under the flags of two or more States, using them
27 M/V Saiga (No.2) (St. Vincent v. Guinea),Case No. 2, Judgement of Jul. 1, 1999, 2 ITLOS Rep. 4, ¶ 83.

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according to convenience” the speedboat “may be assimilated to a ship without nationality.”28
Accordingly, the pirates’ speedboat will have the nationality of the State it is registered to, or may
have no nationality at all—if it flew under more than one flag according to convenience.
Furthermore, the U.S. may claim jurisdiction to prosecute the pirates under UNCLOS.
Specifically, UNCLOS grants the right to prosecute pirates to the “court of the State which carried
out the seizure . . . .” of such pirates.29 The U.S. 4th Circuit has upheld this right, and the definition
of piracy under UNCLOS, in the recent case of United States v. Said, citing the crime found under
18 U.S.C. § 1651 (2015) which states “[w]hoever, on the high seas, commits the crime of piracy
as defined by the law of nations, and is afterwards brought into or found in the United States, shall
be imprisoned for life.”30 Accordingly, because the U.S. was the State that seized the pirates, its
courts “may decide upon the penalties to be imposed . . . .” on the pirates arrested on the coastline
of Subland.31
Additionally, the U.S. or another State may claim jurisdiction to prosecute the pirates
arrested in Subland under the theory of universal jurisdiction. First, historically pirates have been
regarded as “the enemy of all mankind—hostis humani generis—whom any nation may in the
interest of all capture and punish.”32 The U.S. 4th Circuit has also recognized pirates “as hostis
humani generis—enemies of all mankind—because they attack vessels on the high seas, and thus
outside of any nation’s territorial jurisdiction, with devastating effect to global commerce and
29 Id. at art. 105.
30 18 U.S.C. § 1651 (2015); United Statesv. Said, 798 F.3d 182 (4th Cir. 2015).
31U.N. Convention on the Law of the Sea art. 105, Dec. 10, 1982, 1833 U.N.T.S. 397.
32The Case of the S.S. “Lotus”, PCIJ, Ser. A, No. 10, ¶ 249 (Sep. 7, 1927).

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navigation.”33 Moreover, UNCLOS codifies this right to universal jurisdiction over pirates by
providing “every State may seize a pirate ship . . .and arrest the persons and seize the property on
board.”34 Accordingly, because the pirates attacked the commercial vessel on the high seas, the
U.S. or another State could claim jurisdiction to prosecute the pirates under UNCLOS or the
customary international law right to universal jurisdiction over pirates. However, the U.S. likely
will not claim jurisdiction under a universal jurisdiction theory, as it has many other ways to claim
jurisdiction, and only 1/42 countries had claimed jurisdiction over pirates on a universal
jurisdiction theory as of March 26, 2012.35
The U.S. may also claim jurisdiction to prosecute the pirates under the Convention for the
Suppression of Unlawful Acts against the Safety of Maritime Navigation’s (SUA Convention)
codification of the passive personality principle—or the principle that a State can prosecute
persons who harm its nationals. The SUA Convention, which is codified at 18 U.S.C. 2280 (2015),
gives the U.S. jurisdiction over persons who “unlawfully and intentionally . . .seize[] or exercise[]
control over a ship by force or threat thereof . . .perform[] an act of violence against a person on
board a ship if that act is likely to endanger the safe navigation of that ship . . . .” or attempts or
conspires to commit such acts;36 if such acts are committed “against or on board a vessel of the
United States or a vessel subject to the jurisdiction of the United States . . . .”37 or “during the
commission of such activity, a national of the United States is seized, threatened, injured or killed
33(internal quotations omitted) United Statesv. Said, 798 F.3d 182, 199 (4th Cir. 2015).
35U.N. Doc. S/2012/177 (Mar. 26, 2012).
3618 U.S.C. § 2280(a)(1) (2015).
3718 U.S.C. § 2280(b)(1)(A)(i) (2015).

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. . . .”38 The United States also has jurisdiction under the SUA Convention if the aforementioned
acts were “committed in an attempt to compel the United States to do or abstain from doing any
act.”39 Accordingly, the U.S. could first claim jurisdiction to prosecute the pirates under the SUA
Convention as they attacked a commercial vessel which was flagged to Florida, United States.
Alternatively, the U.S. could claim jurisdiction over the pirates if the crew which the pirates seized
were nationals of the U.S. Finally, the U.S. could claim jurisdiction over the pirates if the pirates
captured the crew of the commercial vessel with the intent to compel the United States to
do/abstain from any act.
Similarly, the U.S. could claim jurisdiction to prosecute the pirates under the International
Convention against the Taking of Hostages (Hostages Convention). First, the Hostages
Convention obliges State Parties, including the U.S., to establish their jurisdiction for all
enumerated offenses committed “on board a ship or aircraft registered in that State . . . .” or against
a “hostage who is a national of that State . . . .”40 The U.S. has heeded this obligation in the
codification of 18 U.S.C. § 1203 (2015) which provides the U.S. jurisdiction to prosecute persons
who “whether inside or outside the United States, seize[] or detain[] and threaten[] to kill, or to
continue to detain another person in order to compel a third person or a governmental organization
to do or abstain from doing any act . . . .”41 when either “the offender or the person seized or
detained is a national of the United States . . . .” or “the governmental organization sought to be
3818 U.S.C. § 2280 (b)(1)(B) (2015); see also Convention for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation art. 6 para. 2(b), Mar. 1, 1992, 1678 U.N.T.S. 171.
3918 U.S.C. § 2280(b)(3) (2015).
40 International Convention against the Taking of Hostages,art. 5 para. 1, June 3, 1983, 213 U.N.T.S. 222.
41 18 U.S.C. § 1203(a) (2015).

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compelled is the Government of the United States.”42 Accordingly, if the crew the pirates seized
were nationals of the United States, and the pirates threatened to continue to detain or kill them in
order to compel a third person or government to do/abstain from doing any act, the U.S. could
prosecute the pirates. Alternatively, if the pirates seized the crew, and threatened to kill or to
continue to detain them, to compel the United States to do/abstain from doing something, the U.S.
could prosecute the pirates.
The USS Rescue could also transfer the pirates to a third state for prosecution pursuant to
a Memorandum of Understanding. In the case of Somalia, similar to that of Subland, the UNSC
requested States and regional organizations “to consider . . .measures aimed at facilitating the
transfer of suspected pirates for trial . . .including through relevant transfer agreements . . . .”43
Pursuant to this request the CGPCS developed a legal toolbox for the transfer of pirates, and the
chairman of its Working Group 2 was consulted for the Report of the Secretary-General on
Specialized Anti-Piracy Courts in Somalia and Other States in the Region—detailing “procedural
arrangements required for transfer of apprehended pirates and related evidence . . . .”44
Additionally, the U.N. Office of Drugs and Crime (UNODC) drafted guidance for requesting the
transfer of Somalian piracy suspects to Kenya.45 Further, Memoranda of Understanding detailing
the transfer of pirates arrested by the EU, U.S., and British Navies to Kenya for prosecution were
4218 U.S.C. § 1203(b)(1) (2015).
43 U.N. Doc. S/RES/1976, ¶ 20 (Apr. 11, 2011).
44Report of the Secretary-General on specialized anti-piracy courts in Somalia and other States in the region,
S/2012/50, ¶ 1 (Jan. 20, 2012).
45James Kraska, Contemporary Maritime Piracy: International Law, Strategy, and Diplomacy at Sea, at 171 (1st Ed.,
Praeger Security International 2011).

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concluded between Kenya and the EU,46 Kenya and the U.S., and Kenya and the U.K.47 The
transfer of Somalian pirates to Kenya is attractive to the aforementioned States and regional
organizations, as it allows them to avoid the monetary and other costs associated with shipping the
pirates to their respective countries for prosecution, and the risk of such pirates gaining asylum in
their respective States.48 Moreover, the Kenyan Penal Code Article 20(1) allows for the
prosecution of persons committing and complicit in piracy, Kenya uses the UNCLOS definition
of piracy, and has recognized jurisdiction over pirates transferred from other States to Kenya.49
Accordingly, the USS Rescue may choose to transfer the pirates to Kenya or another State with
whom the U.S. or the Task Force has a Memorandum of Understanding detailing the transfer of
pirates.
Finally, the U.S. may transfer the pirates to another State pursuant to the SUA Convention.
Specifically, the SUA Convention allows “[t]he master of a ship of a State Party . . .[to] deliver to
the authorities of any other State Party . . .any person who he has reasonable grounds to believe
has committed one of the offences set forth in article 3.”50 Accordingly, if the master of the USS
Rescue has reasonable grounds to believe the pirates have violated article 3 of the SUA
46Exchange of Letters between the European Union and the Government of Kenya on the conditions and modalities
for the transfer of persons suspected ofhaving committed acts of piracy and detained by the European Union -led
naval force (EUNAVFOR), and seized property in the possession ofEUNAVFOR, from EUNAVFOR to Kenya and
for their treatment after such transfer, OJ L79/49 (Mar. 25, 2009).
47 James Kraska, Contemporary Maritime Piracy: International Law, Strategy, and Diplomacy at Sea, at 179 (1st
Ed., Praeger Security International 2011).
48To be elaborated upon below.
49 Judgment of the High Court of Kenya, Crim. App. 198-207 (2008), Hassan M. Ahmed v. Republic,at 12.
50Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation art. 8 para. 1, Mar. 1,
1992, 1678 U.N.T.S. 171.

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Convention,51 he/she may transfer the pirates to another State Party to the SUA Convention for
prosecution.
B. The U.S. or Another State Will Have to Prove the Elements of Piracy, Armed
Robbery, or Related Offenses against the Pirates.
In order to convict the pirates, the U.S., or the State to whom the USS Rescue transfers the
pirates, will have to prove the elements of piracy, armed robbery, or related offenses under
UNCLOS, customary international law, the SUA Convention or the Hostages Convention. First,
the U.S. adopts the definition of piracy under UNCLOS in 18 U.S.C. § 1651 (2015), which has
been upheld recently by the U.S. 4th52 and 9th53 Circuits. Thus, in order to prove the actus reus of
piracy, the U.S. will first have to prove the pirates committed “any illegal acts of violence or
detention, or any act of depredation . . . .”54 The U.S. 9th Circuit has found that “[r]amming ships,
fouling propellers and hurling fiery and acid-filled projectiles easily qualify as violent activities .
. . .”55 In addition, the High Court of Kenya has found sufficient acts of violence under cited
UNCLOS definition when pirates roughed-up the crew of the victim ship and took control of the
ship.56 Accordingly, the Subland pirates’ actions capturing the vessel and crew of the commercial
vessel flagged to Florida, and boarding the crew on their speedboat, might be found sufficient to
satisfy illegal acts of violence or detention under the UNCLOS piracy definition.
51 See Supra at Footnote 36.
52 United Statesv. Said, 798 F.3d 182 (4th Cir. 2015).
53 Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 725 F.3d 940, 943 (9th Cir. 2013).
56Judgment of the High Court of Kenya, Crim. App. 198-207 (2008) Hassan M. Ahmed v. Republic, at 12.

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In order to prove the actus reus of piracy, the U.S. or another State will also have to prove
that the acts of violence or detention were “committed for private ends by the crew or the
passengers of a private ship . . . .”57 The U.S. 9th Circuit has found that private ends under
UNCLOS “include those pursued on personal, moral or philosophical grounds . . . .” or otherwise
not on behalf of any State.58 Further, under UNCLOS warships are otherwise immune from
prosecution for piracy unless the warship or government ship’s “crew has mutinied and taken
control of the ship . . . .”59 Consequently, the U.S. will be able to prove piracy under UNCLOS if
the pirates detained the crew of the commercial vessel for their own personal grounds and either
the pirates’ speedboat was not a government ship, or if it was the pirates mutinied and took control
of it.
In addition, in order to prove the actus reus of piracy, the U.S. or another State will have
to show that the pirates directed their illegal acts of violence or detention “on the high seas, against
another ship . . .or against persons or property on board such ship . . .[or] against a ship . . .persons
or property in a place outside the jurisdiction of any State . . . .”60 Moreover, in so far as the
prosecution of the pirates is not incompatible with the rules of the exclusive economic zone under
UNCLOS, the U.S. or another State could prove the actus reus of piracy if the pirates’ illegal acts
were committed in the exclusive economic zone of Subland.61 However, this may not be necessary,
60Id. at art. 101(a).

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as the record states that the commercial vessel was attacked and its vessel and crew captured while
they were on the high seas off Subland.
The U.S. or another State will also have to either prove the mens rea of intent to convict
the pirates under UNCLOS, or alternatively their complicity in the piratical acts. Specifically,
UNCLOS defines piracy as the “voluntary participation in the operation of a ship . . .with
knowledge of facts making it a pirate ship . . . .”62 UNCLOS also states, a “ship . . .is considered a
pirate ship . . .if it is intended by the persons in dominant control to be used for the purpose of
committing one of the acts referred to in article 101.”63 Additionally, for the U.S. or another State
to prove complicity under UNCLOS, they must prove the pirates committed “any act of inciting
or of intentionally facilitating an act . . . .” cited above as piracy under UNCLOS.64 Thus, the U.S.
or another State will have to prove the pirates either intended the illegal acts of violence or
detention they committed against the crew of the commercial vessel, or that they incited or
intentionally facilitated such acts, in order to convict them of piracy.
The U.S. or another State could also charge the pirates with armed robbery, or complicity
in armed robbery, as they took the detained crew through the territorial waters of Subland. The
crime of armed robbery is defined, similar to piracy, as “any illegal act of violence or detention . .
.or threat thereof . . .committed for private ends and directed against a ship or against persons or
property on board such a ship . . . .” inside the internal waters, archipelagic waters or territorial sea
of a State.65 Moreover, complicity in armed robbery is defined as “any act of inciting or of
62 (emphasis added) U.N. Convention on the Law of the Sea art. 101(b), Dec. 10, 1982, 1833 U.N.T.S. 397.
63 (emphasis added) Id. at art. 103.
64 Id. at art. 101(c).
65 IMO Doc. A 26/Res. 1025, Annex para. 2.2 (Jan. 18, 2010).

17
intentionally facilitating an act . . . .” of armed robbery.66 Accordingly, because the pirates detained
the crew inside the territorial sea of Subland, the U.S. or another State may be able to convict the
pirates for armed robbery, or complicity in armed robbery, if they cannot prove piracy.
Finally, the U.S. or another State Party to the SUA Convention or the Hostages Convention
may be able to convict the pirates for crimes committed under either or both Conventions. In the
U.S., under the SUA Convention codified at 18 U.S.C. § 2280 (2015), the U.S. could convict the
pirates if it proves the pirates “intentionally . . . seize[d] or exercise[d] control over [the commercial
vessel] by force or threat thereof or any other form of intimidation;” or alternatively “intentionally
. . .perform[ed] an act of violence against a person on board a ship if that act is likely to endanger
the safe navigation of that ship . . . .”67 Alternatively, the U.S. could convict the pirates under the
Hostages Convention codified at 18 U.S.C. § 1203 (2015) if is shows the pirates “seize[d] or
detain[ed] or threaten[ed] to kill, or to continue to detain . . . .” the crew of the commercial vessel
“in order to compel a third person or a governmental organization to do or abstain from doing any
act as an explicit or implicit condition for the release of the person detained. . . .”—if the crew
were nationals of the U.S. or the pirates sought to compel the U.S. Government.68 Accordingly
there are many avenues through which the U.S., or a State to whom the USS Rescue transfers the
pirates, could prosecute and convict them for attacking the commercial vessel and detaining its
crew.
66IMO Doc. A 26/Res. 1025, Annex para. 2.2 (Jan. 18, 2010).
6718 U.S.C. § 2280(a)(1) (2015).
6818 U.S.C. § 1203(a) (2015).

18
C. Even If the U.S. or another State Could Successfully Prosecute the Pirates, They
May Set the Pirates Free Nonetheless.
Even though there are many avenues through which the U.S. or another State could
prosecute and convict the pirates, they may set the pirates free for many reasons. First, the U.S. or
another State may set the pirates free if it finds that the U.S. officials from the USS Rescue violated
any restrictions on the use of force in arresting or detaining the pirates. Many Shiprider Agreements
explicitly restrict the use of force in law enforcement actions taken by the States concerned. For
example, in the Agreement between the U.S. and the Bahamas, force may only be used if there are
no other feasible means to resolve the situation, the force is proportional to the objective sought,
and the force used is the minimum reasonably necessary under the circumstances.69 Similarly, the
ITLOS in M/V Saiga (No. 2) (St. Vincent v. Guinea) found that, in law enforcement operations at
sea, “the use of force must be avoided as far as possible and, where force is unavoidable, it must
not go beyond what is reasonable and necessary in the circumstances.”70 Furthermore, the 2005
Protocol to the SUA Convention provides that, in law enforcement actions at sea “[a]ny use of
force . . .shall not exceed the minimum degree of force which is necessary and reasonable under
the circumstances.”71 Thus, if the U.S. or another prosecuting State finds the U.S. officials from
the USS Rescue used more than the minimum force reasonably necessary under the circumstances
to arrest the pirates, they may set the pirates free.
69 Agreement Between the Government of the United States of America and the Government of the Commonwealth
of the Bahamas Concerning Cooperation in Maritime Law Enforcement, art. 16 (June 29, 2004), available at
70M/V Saiga (No. 2) (St. Vincent v. Guinea), Case No. 2, Judgement of Jul. 1, 1999, para. 155.
71IMO Doc. LEG/CONF.15/21, Protocol of 2005 to the Convention for the Suppression of Unlawful Acts of
Violence against the Safety of Maritime Navigation art. 8bis para. 9, Jul. 28, 2010.

19
Alternatively, the U.S. or another State may set the pirates free because of human rights
concerns. First, the UNSC reiterated the application of international human rights law to the
prosecution and detention of pirates in the situation of Somalia, in 2012 calling on States involved
to cooperate to determine jurisdiction over and prosecute pirates “consistent with applicable
international law including international human rights law to ensure that all pirates handed over to
judicial authorities are subject to judicial process . . . .”72 The International Court of Justice (ICJ)
has also recognized the extra-territorial application of international human rights law in situations
where a State exercises its jurisdiction outside of its territory.73 Further, under UNCLOS such
situations where a State exercises its jurisdiction outside of its territory include onboard ships
sailing under its flag.74 The European Court of Human Rights (ECtHR) in Bankovic v. Belgium
explicitly recognized this “extra-territorial exercise of jurisdiction by a State [in] cases involving
the activities . . .on board craft and vessels registered in, or flying the flag of, [a] State.”75
Accordingly, the provisions of international human rights law likely apply to the USS Rescue’s
detention of the pirates.
Because international human rights law likely applies to the detention of the pirates by the
USS Rescue and their subsequent prosecution, the U.S. or another State might set the pirates free
if they believe or determine the pirates’ human rights have been or might be violated. Specifically,
under international human rights law persons arrested by government officials must be promptly
informed of the charges against them at the time of arrest and “brought promptly before a judge or
72 U.N. Doc. S/RES/2077, ¶ 17 (Nov. 22, 2012).
73See, e.g., Legal Consequencesof the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, 2004 I.C.J. 136, 180 (Jul. 9).
75Bankovic v. Belgiumet al., App.No. 52207/99, Grand Chamber Decision, Eur. Ct. H.R., ¶ 73 (Dec. 12, 2001); see
also Case of Medvedyev and Others v. France, 3394/03 Eur. Ct. H.R., ¶ 67 (2010).

20
other officer authorized by law to exercise judicial power . . . .”76 In the case of persons arrested
at sea, the ECtHR in Medvedyev v. France found that 13 days is prompt enough to satisfy the
similar requirement found under article 5 § 3 of the European Convention on Human Rights;77
however, taking 40 days to bring the suspects before a judge has been found to breach the
obligation to bring them promptly.78 Additionally, under international human rights law the pirates
have many other rights, including the right to a fair trial,79 and the right not to be subject to “torture
or to cruel, inhuman or degrading treatment or punishment.”80 Consequently, the U.S. or another
State may set the pirates free if it determines the USS Rescue did not bring them to a judge
promptly, if it believes the crew of the USS Rescue may have subjected the pirates to torture or
cruel, inhuman or degrading treatment, that the pirates will not receive a fair trial, or that any of
the pirates’ other human rights may have been or might be violated in the future.
The U.S. or another State might also set the pirates free, because it doesn’t want to risk
undertaking the obligation to grant the pirates asylum in its State. Under international human rights
law the obligation of non-refoulement includes the obligation that “[n]o State . . .shall expel, return
(‘refouler’) or extradite a person to another State where there are substantial grounds for believing
that he would be in danger of being subjected to torture.”81 Accordingly, if the U.S. or another
State prosecutes the pirates, it runs the risk of the pirates gaining asylum in their State, and not
76 International Covenant on Civil and Political Rights art. 9, Mar. 23, 1976, 999 U.N.T.S. 171.
77Case of Medvedyev and Others v. France, 3394/03 Eur. Ct. H.R., ¶ 128-134 (2010).
78 The “Cygnus” Case (Somali Pirates),145 ILR 491, 499-500 (2010).
79 International Covenant on Civil and Political Rights art. 14, Mar. 23, 1976, 999 U.N.T.S. 171.
80 Id. at art. 7.
81U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3 para. 1,
June 26, 1987, 1465 U.N.T.S. 85.

21
being able to return the pirates to Subland—where there may be grounds for believing the pirates
would be subjected to torture. Consequently, the U.S. or another State may set the pirates free,
instead of running this risk.
Finally, the USS Rescue may set the pirates free, as their transfer to the U.S. or another
State may require a large diversion in the USS Rescue’s course, leaving other vessels off the coast
of Subland relying on the USS Rescue’s protection unprotected. This served as a legitimate
concern for many States in the situation of the capture of pirates off the coast of Somalia.82
Additionally, the aforementioned concerns of States instigated a State practice of setting Somalian
pirates free, recognized by the UNSC in 2012 when it reiterated “its concern over persons
suspected of piracy having to be released without facing justice . . . .” in Somalia.83 Thus, even
though there are many avenues through which the U.S. or another State might prosecute the pirates
for their attack and capture of the commercial vessel’s crew, the pirates might nevertheless be set
free.
III. MERGELAND AND ONELAND SHOULD USE LAW ENFORCEMENT
AGREEMENTS TO COMBAT PIRACY IN THEIR TERRITORIAL WATERS
AND STRAIGHTS.
While it appears Mergeland and Oneland do not want to allow the Task Force to enter their
territorial waters to combat piracy, they should conclude alternative law enforcement agreements
to combat the piracy in their territorial seas—especially considering their duty to combat piracy in
their territorial waters. Specifically, States have a duty under many different international law
instruments to suppress acts of piracy and related acts perpetrated within their jurisdictions. First,
82 Evans, Malcolm D. and Sofia Galani, The Law and Practice of Piracy at Sea: European and International
Perspectives,chapter 15 (Hart Publishing 2014).
83U.N. Doc. S/RES/2077, preambular para. 5 (Nov. 22, 2012).

22
under UNCLOS States have a duty to “cooperate to the fullest possible extent in the repression of
piracy . . . .”84 Additionally, onboard ships flying a State’s flag, the flag State has a duty to
prosecute pirates, as a flag State is obligated to “exercise its jurisdiction and control in
administrative, technical and social matters over ships flying its flag.”85 Further, if another State
believes “proper jurisdiction and control with respect to a ship have not been exercised . . . .” with
regard to a flag State’s ship, and reports this belief to the flag State, the flag State has a duty to
“investigate the matter and, if appropriate, take any action necessary to remedy the situation.”86
In addition, the UNSC has called “upon all states to criminalize piracy under their domestic
law and to favourably consider the prosecution of suspected, and imprisonment of convicted,
pirates . . . .”87 The International Maritime Organization (IMO) has also urged governments to
“take all necessary legislative, judicial and law-enforcement action . . . .” to facilitate the successful
prosecution of pirates.88 Moreover, under both the Hostages Convention and the SUA Convention,
State Parties have a duty to enact legislation giving them jurisdiction over persons who violate the
offenses enumerated by each Convention,89 and have the duty to either extradite the alleged
84U.N. Convention on the Law of the Sea art. 100, Dec. 10, 1982, 1833 U.N.T.S. 397.
85 U.N. Convention on the Law of the Sea art. 94 para. 1, Dec. 10, 1982, 1833 U.N.T.S. 397; See also James Kraska,
Contemporary Maritime Piracy: International Law, Strategy, and Diplomacy at Sea, at 168 (1st Ed., Praeger
Security International 2011).
87U.N. Doc. S/RES/2077, ¶ 18 (Nov. 22, 2012).
88IMO Assembly Resolution A 1044(27), ¶ 8(n) (Dec. 20, 2011).
89International Convention against the Taking of Hostages art. 5, June 3, 1983, 213 U.N.T.S. 222; Convention for
the Suppression of Unlawful Acts against the Safety of Maritime Navigation art. 5, Mar. 1, 1992, 1678 U.N.T.S.
171.

23
offenders or prosecute them.90 Finally, under international human rights law States have the duty
to protect the lives of persons in their territorial seas and on board their flagged vessels, as they
have the “positive duty to take appropriate steps to safeguard the lives of individuals within [their]
jurisdiction[s].”91 Accordingly, while State practice in Somalia92 and the phrase “every State may
seize a pirate ship . . . .”93 in UNCLOS imply that the duty to arrest and prosecute pirates on the
High Seas is weak or nonexistent, the duty to arrest, prosecute or extradite pirates within a State’s
territorial seas stems from multiple sources of international law. Thus, Mergeland and Oneland
should conclude law enforcement agreements to combat the piracy in their territorial seas.
As it appears from the record that Mergeland and Oneland are resistant to the presence of
the Task Force in their territorial waters, and that, unlike Subland, they have not been deemed by
the international community to be ungovernable, they will likely not agree to any form of UNSC
Resolution granting third States or international organizations access to their territorial waters to
combat piracy—as in the aforementioned case of Somalia. Nonetheless, Mergeland and Oneland
could choose from an array of law enforcement measures that would allow them to maintain their
sovereignty over their territorial waters. First, Mergeland and Oneland should coordinate their
navies—as the Malaysian Maritime Enforcement Agency (MMEA), Republic of Singapore Navy
(RSN), and Indonesian Navy (TNI-AL) have done—to combat the piracy in their territorial waters.
90 International Convention against the Taking of Hostages art. 8 para. 1, June 3, 1983, 213 U.N.T.S. 222;
Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation art. 10 para. 1, Mar. 1,
1992, 1678 U.N.T.S. 171.
91Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms
while Countering Terrorism, Ben Emmerson, A/HRC/20/14, ¶ 18 (2012); see also International Covenant on Civil
and Political Rights art. 6 para. 1, Mar. 23, 1976, 999 U.N.T.S. 171.
92See, e.g., U.N. Doc. S/RES/2077, preambular para. 5 (Nov. 22, 2012).

24
Additionally, Mergeland and Oneland could establish within their navies a joint rapid response
deployment team, as Malaysia and Indonesia have done,94 to ensure a quick response to and
prevention of piratical acts.
Mergeland and Oneland should alternatively draft an agreement with the flag States of the
international carriers which are being attacked in their straights, such as the Regional Cooperation
Agreement on Combating Piracy and Armed Robbery against Ships in Asia (2004) (ReCAAP).95
ReCAAP sets up the Information Sharing Center (ISC), which Contracting Parties have a duty to
notify of the relevant information they receive from their flagged vessels pertaining to piracy and
armed robbery.96 Additionally, under ReCAAP a “Contracting Party may request any other
Contracting Party, through the Center or directly, to take appropriate measures, including arrest or
seizure, against . . . .” pirates or persons who have committed armed robbery against ships.97
Further, the “Contracting Party, which has received the request . . . .” has the duty to “make every
effort to take effective and practical measures for implementing such request.”98 ReCAAP also
provides extradition99 as well as capacity-building measures to enhance the abilities of the
Contracting Parties to combat piracy and armed robbery in their waters.100 Accordingly,
Mergeland and Oneland should draft an agreement like ReCAAP with the flag States of the ships
94Singapore StraitsPiracy Attempt Foiled, The Maritime Executive (Sep. 2, 2015), available at
http://www.maritime-executive.com/article/singapore-straits-piracy-attempt-foiled.
95 Concluded between the 20 Contracting Parties including: Australia, Bangladesh, Brunei, Cambodia, China,
Denmark, India, Japan, Korea, Laos, Myanmar, Netherlands, Norway, Philippines, Singapore, Sri Lanka, Thailand,
U.K., U.S., and Vietnam.
96Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, art. 9 (2004).
97Id. at art. 10.
98Id. at art. 11.
99 Id. at art. 12.
100Id. at art. 14.

25
which are attacked in their territorial waters, as: 1) it would help build Mergeland and Oneland’s
capacity to combat the piracy in their waters by facilitating greater cooperation with the other
States involved, 2) it would encourage Mergeland and Onelands’ navies to receive technical and
military training from other States whose navies may be more experienced in combatting piracy,
3) it would increase communication between the carriers, their flag States, Mergeland and
Oneland, allowing Mergeland and Oneland to respond faster to reports of pirate attacks, and 4) it
would allow Mergeland and Oneland to maintain complete sovereignty over their territorial seas
by not permitting third State navies to enter them to combat piracy.
Another law enforcement mechanism Mergeland and Oneland should alternatively utilize
to combat the piracy in their territorial waters pertains to a Shiprider Agreement, preferably in the
form of the Agreement between Barbados and the U.S. Specifically, the Barbados-U.S. Shiprider
Agreement gives Barbados shipriders—or Barbados law enforcement officials who embark on
U.S. law enforcement vessels—the authority to authorize U.S. law enforcement vessels to enter
Barbados territorial waters, and enforce the laws of Barbados in such waters.101 The Barbados-
U.S. Shiprider Agreement also gives U.S. shipriders—or U.S. law enforcement officials who
embark on Barbados law enforcement vessels—the authority to authorize Barbados law
enforcement vessels to enter U.S. territorial waters, and enforce U.S. laws in such waters.102
Further, all law enforcement activities conducted pursuant to the Barbados-U.S. Agreement are
done so under the control of the law enforcement authorities of the government whose territorial
101 Agreement Between the Government of Barbados and the Government of the United States of America
Concerning Co-Operation in suppressing Illicit Maritime Drug Trafficking, art. 3 § 6 (Oct. 11, 1998), available at
102 Id. at art. 3 § 7.

26
waters the activities are conducted in.103 This type of agreement is preferable, and may be attractive
to both Mergeland and Oneland, as it is a fully reciprocal agreement. It also may be attractive to
Mergeland and Oneland, as it would allow the States to utilize the law enforcement resources of
each other and third States to combat the piracy in their territorial waters, while maintaining
sovereignty and control over law enforcement activities in their waters. Thus, Shiprider
Agreements offer another method through which Mergeland and Oneland should alternatively
work to combat piracy in their territorial waters and straights.
Moreover, Mergeland and Oneland should utilize the resources of the International
Maritime Bureau (IMB) of the International Chamber of Commerce (ICC), the IMO, and the
International Chamber of Shipping (ICS) to augment the repression of piracy in their territorial
waters. First, Mergeland and Oneland should encourage the shipmasters of the carriers travelling
through their straights to report any suspected or actually pirate attacks that occur in the straights
to the IMB’s Piracy Reporting Centre (PRC).104 Reporting attacks to the PRC is helpful, as it
allows the PRC to report trends in attacks and where they occur, so shipmasters may avoid high-
risk areas. It is also essential to report attacks to the PRC, as the PRC is able to relay the information
it receives from shipmasters to local law enforcement agencies, to decrease response time; the PRC
can also notify vessels in the region of the attack, to put them on alert to the danger. Further,
recognizing the importance of the PRC, four of the States with the most ships flying their flags—
Liberia, the Marshall Islands, Panama and the Bahamas—signed the Declaration Condemning
103Agreement Between the Government of Barbados and the Government of the United States of America
Concerning Co-Operation in suppressing Illicit Maritime Drug Trafficking, art. 3 § 8 (Oct. 11, 1998), available at
104 International Chamber Commerce, International Maritime Bureau Piracy Reporting Centre Website, https://icc-
ccs.org/piracy-reporting-centre (last visited Dec. 6, 2015).

27
Acts of Violence Against Seafarers (Aug. 3, 2011), wherein the States affirmed their commitment
to relay the reports of piracy or armed robbery they receive from their flagged vessels to the
PRC.105 Accordingly, Mergeland and Oneland should encourage an increase in communication
with the PRC, in order to augment the repression of piracy and armed robbery within their
territorial waters.
Mergeland and Oneland should also augment the repression of piracy in their waters by
implementing the International Ship and Port Facility Security (ISPS) Code.106 The ISPS Code
sets out responsibilities for States, shipping companies and port facility personnel to take measures
to prevent security incidents in port facilities. Thus, its implementation by Mergeland and Oneland
would contribute to reducing the incidence of armed robbery in their respective ports.
Additionally, Mergeland and Oneland should follow the request of the IMO107 and
implement the IMO’s Code of Practice for the Investigation of Crimes of Piracy and Armed
Robbery against Ships (Code of Practice).108 The implementation of the IMO’s Code of Practice
would augment Mergeland and Oneland’s apprehension and prosecution of suspected perpetrators
of piracy or armed robbery, as the Code of Practice provides extensive guidance on topics
including: the training of investigators, investigative strategy, responding to a report of an attack—
including the preservation of life, prevention of the escape of offenders, warning of other ships in
the vicinity, and protection of the crime scene—and conducting successful investigations.109
105 Declaration Condemning Acts of Violence against Seafarers (Aug. 3, 2011), available at
http://www.safety4sea.com/images/media/pdf/The%20Washington%20Declaration.pdf.
106 International Ship and Port Facility Security (ISPS) Code (Jul. 1, 2004).
107IMO Doc A 26/Res.1025, ¶ 3 (Jan. 18, 2010), available at
http://www.imo.org/blast/blastDataHelper.asp?data_id=29986&filename=A1025(26).pdf.
108 IMO Doc A 26/Res.1025, Annex(Jan. 18, 2010).
109Id.

28
Finally, Mergeland and Oneland should encourage the carriers who travel through their
straights to implement the International Chamber of Shipping’s Best Management Practices for
Protection against Somalia Based Piracy (BMP4).110 Implementing BMP4 would help in the
repression of piracy in the straights of Mergeland and Oneland, as BMP4 outlines typical pirate
attack profiles, provides guidelines for shipmaster planning and crew drilling, and outlines
numerous ship protection measures, including: watch-keeping, the use of razor wire on railings,
the use of water-spray, and the construction of citadels.111 BMP4 also outlines vulnerabilities of
commercial ships, such as low speed, bad preparation and low freeboard, which can be changed
to better prevent successful pirate attacks.112 Additionally, many States have recognized the
importance of the Best Management Practices by signing the New York Declaration (Sep. 9, 2009),
committing themselves to the promulgation of the Practices within the vessels on their registers.
Accordingly, Mergeland and Oneland should encourage the carriers traveling through their
territorial waters to implement BMP4 in order to reduce the incidence of piracy and armed robbery
within their straights.
CONCLUSION
The USS Rescue could undertake hot pursuit and capture the pirates in the territorial waters
and land of Subland only pursuant to the prior consent of Subland, expressed in a form such as a
UNSC Resolution or a Shiprider Agreement. Further, the pirates arrested and taken into the
custody of the USS Rescue may be prosecuted by the United States, or transferred to another
110International Chamber of Shipping, Best Management Practices for Protection against Somalia Based Piracy
(BMP4) (Aug. 2011), available at http://www.ics-shipping.org/docs/default-source/resources/safety-security-and-
operations/best-management-practices-4.pdf?sfvrsn=12.
111 Id.
112Id.

29
country for prosecution. However, given State practice in Somalia and the many monetary and
other costs associated with prosecuting pirates, the U.S. might decide to set the pirates free. Finally,
considering their duty to combat piracy in their territorial waters, Mergeland and Oneland should
draft law enforcement agreements between themselves and with third States, such as Shiprider
Agreements or agreements like ReCAAP, to repress piracy in their straights. Mergeland and
Oneland should also implement the IMO’s Code of Practice; and, they should encourage carriers
travelling through their waters to report all attempted or actual instances of armed robbery or piracy
to the IMB and implement the International Chamber of Shipping’s Best Management Practices.

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