DRAFT UN SECURITY COUNCIL RESOLUTION ON SOMALI

UNCLAS SECTION 01 OF 04 STATE 115229

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: UNSC PREL PHUM PHSA EWWT KCRM SO XA XW
SUBJECT: DRAFT UN SECURITY COUNCIL RESOLUTION ON SOMALI
PIRACY

REF: SAHA 11-02-09 E-MAIL RE: PIRACY RESOLUTION RENEWAL


1. Action Request: USUN is instructed to share the draft
resolution in paragraph 2 with the members of the Security
Council, and to report reactions to the Department. End
request.


2. Begin text of draft UN Security Council 1846/1851 renewal
resolution:

-- The Security Council,

-- i. Recalling its previous resolutions concerning the
situation in Somalia, especially resolutions 1814 (2008),
1816 (2008),1838 (2008),1844 (2008),1846 (2008),and 1851
(2008),(PP1 1851 updated)

ii. Continuing to be gravely concerned by the ongoing threat
that piracy and armed robbery at sea against vessels pose to
the prompt, safe, and effective delivery of humanitarian aid
to Africa, to international navigation and the safety of
commercial maritime routes, and to other vulnerable ships,
including fishing activities in conformity with international
law and the extended range of the piracy threat into the
western Indian Ocean, (PP2 1846 updated)

iii. Reaffirming its respect for the sovereignty, territorial
integrity, political independence and unity of Somalia, (PP3
1846)

iv. Further reaffirming that international law, as reflected
in the United Nations Convention on the Law of the Sea of 10
December 1982 ("The Convention"),sets out the legal
framework applicable to combating piracy and armed robbery at
sea, as well as other ocean activities, (PP4 1846 and 1851)

v. Again taking into account the crisis situation in
Somalia, and the lack of capacity of the Transitional Federal
Government (TFG) to interdict, or upon interdiction to
prosecute pirates or to patrol or secure the waters off the
coast of Somalia, including the international sea lanes and
Somalia's territorial waters, (PP5 1851)

vi. Noting the several requests from the TFG for
international assistance to counter piracy off its coast,
including the letter of 2 November 2009 from the President of
the TFG expressing the appreciation of the TFG to the
Security Council for its assistance, expressing the TFG's
willingness to consider working with other States and
regional organizations to combat piracy and armed robbery off
the coast of Somalia, and requesting that the provisions of
resolutions 1846 (2008) and 1851 (2008) be renewed for an
additional twelve months, (PP6 1851 updated and shortened)

vii. Commending the efforts of the EU operation Atalanta,
NATO operations Allied Protector and Ocean Shield, Combined
Maritime Forces' Combined Task Force 151, India, Iran, Japan,
Malaysia, People's Republic of China, Russia, Saudi Arabia,
Seychelles, Yemen and other States acting in a national
capacity in cooperation with the TFG and each other, to
suppress piracy and to protect vulnerable ships transiting
through the waters off the coast of Somalia, (PP7 1851
updated)

viii. Noting with concern that the continuing lack of
capacity and domestic legislation to facilitate the custody
and prosecution of suspected pirates after their capture, has
hindered more robust international action against the pirates
off the coast of Somalia, and in some cases has led to
pirates being released without facing justice, even when
there is sufficient evidence to support prosecution, and
reiterating that the 1988 Convention for the Suppression of
Unlawful Acts Against the Safety of Maritime Navigation ("SUA
Convention") provides for parties to create criminal
offences, establish jurisdiction, and accept delivery of
persons responsible for or suspected of seizing or exercising
control over a ship by force or threat thereof or any other
form of intimidation, and stressing the need for all states
to criminalize piracy under their domestic law and to
favorably consider the prosecution of suspected pirates when
their national interests are affected, (updated PP 9 1851)

ix. Commending the Republic of Kenya's significant efforts
to prosecute suspected pirates in its national courts, and
noting with appreciation the assistance being provided by the
United Nations Office of Drugs and Crime (UNODC) and other

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international organizations and donors, in coordination with
the Contact Group on Piracy off the Coast of Somalia, to
support Kenya and other states in the region taking steps to
prosecute or incarcerate captured pirates consistent with
applicable international human rights law, (new PP)

x. Further noting with appreciation the ongoing efforts by
UNODC and UNDP to support the authorities of the TFG,
Somaliland and Puntland in their efforts to enhance the
capacity of their corrections system to incarcerate convicted
pirates consistent with applicable international human rights
law, (new PP)

xi. Welcoming the adoption of the Djibouti Code of Conduct
concerning the Repression of Piracy and Armed Robbery
against Ships in the Western Indian Ocean and the Gulf of
Aden, the International Trust Fund Supporting Initiatives of
the Contact Group on Piracy off the Coast of Somalia, and the
establishment of the International Maritime Organization
(IMO) Djibouti Code of Conduct Trust Fund, and recognizing
the efforts of signatory states to develop the appropriate
regulatory and legislative frameworks to combat piracy,
enhance their capacity to patrol the waters of the region,
interdict suspect vessels, and prosecute suspected pirates,
and the wider benefits these capacity-building efforts will
have for a range of maritime security threats to the region,
(new PP)

xii. Emphasizing that peace and stability within Somalia, the
strengthening of State institutions, economic and social
development and respect for human rights and the rule of law
are necessary to create the conditions for a full eradication
of piracy and armed robbery at sea off the coast of Somalia,
(PP 10 1846)

xiii. Determining that the incidents of piracy and armed
robbery against vessels in the waters off the coast of
Somalia exacerbate the situation in Somalia, which continues
to constitute a threat to international peace and security in
the region, (shortened PP 14 and 11 1846 and 1851)

-- Acting under Chapter VII of the Charter of the United
Nations, (PP 15 1846 and PP12 1851)


1. Reiterates that it condemns and deplores all acts of
piracy and armed robbery against vessels in the waters off
the coast of Somalia; (OP 1 1846 and 1851)


2. Notes again its concern regarding the findings
contained in the 10 December 2008 report of the Monitoring
Group on Somalia (S/2008/769, page 55) that escalating ransom
payments are fueling the growth of piracy off the coast of
Somalia, (OP 9 1851 revised)


3. Renews its call upon States and regional organizations
that have the capacity to do so, to take part in the fight
against piracy and armed robbery at sea off the coast of
Somalia, in particular, consistent with this resolution and
international law, by deploying naval vessels, arms and
military aircraft and through seizures and disposition of
boats, vessels, arms and other related equipment used in the
commission of piracy and armed robbery at sea off the coast
of Somalia, or for which there are reasonable grounds for
suspecting such use; (OP 9 1846)


4. Welcomes the formation of the Contact Group on Piracy
off the Coast of Somalia ("CGPCS") as a mechanism through
which members may, in addition to sharing information through
bilateral channels or through the United Nations, coordinate
their efforts to deter acts of piracy and armed robbery at
sea off the coast of Somalia, in cooperation with each other,
the IMO, flag States, and the TFG; (New OP, but includes
elements from OP 7 1846)


5. Calls upon States and interested organizations,
including the IMO, to provide technical assistance to Somalia
(including regional authorities) and nearby coastal States
upon their request to enhance the capacity of these states to
ensure coastal and maritime security, including combating
piracy and armed robbery at sea off the Somali and nearby
coastlines; (edited OP5 1846)


6. Invites all States and regional organizations fighting
piracy off the coast of Somalia to conclude special
agreements or arrangements with countries willing to take
custody of pirates in order to embark law enforcement
officials (&shipriders8) from the latter countries, in
particular countries in the region, to facilitate the
investigation and prosecution of persons detained as a result
of operations conducted under this resolution for acts of
piracy and armed robbery at sea off the coast of Somalia,

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provided that the advance consent of the TFG is obtained for
the exercise of third state jurisdiction by shipriders in
Somali territorial waters and that such agreements or
arrangements do not prejudice the effective implementation of
the SUA Convention; (OP 3 1851)


7. Encourages Member States to continue to cooperate with
the TFG in the fight against piracy and armed robbery at sea,
notes the primary role of the TFG in the fight against piracy
and armed robbery at sea, and decides that for a period of
twelve months from the date of this resolution, States and
regional organizations cooperating with the TFG in the fight
against piracy and armed robbery at sea off the coast of
Somalia, for which advance notification has been provided by
the TFG to the Secretary-General, may:

a. Enter into the territorial waters of Somalia for the
purpose of repressing acts of piracy and armed robbery at
sea, in a manner consistent with such action permitted on the
high seas with respect to piracy under relevant international
law;

b. Use, within the territorial waters of Somalia, in a
manner consistent with such action permitted on the high seas
with respect to piracy under relevant international law, all
necessary means to repress acts of piracy and armed robbery
at sea; and

c. For the purpose of repressing acts of piracy and armed
robbery at sea, undertake all necessary measures that are
appropriate in Somalia, pursuant to the request of the TFG,
provided, however, that any measures undertaken pursuant to
the authority of this paragraph shall be undertaken
consistent with applicable international humanitarian and
human rights law; (combined OP 10 of 1846 and OP 6 1851)


8. Affirms that the authorizations provided in this
resolution apply only with respect to the situation in
Somalia and shall not affect the rights or obligations or
responsibilities of Member States under international law,
including any rights or obligations, under the Convention,
with respect to any other situation, and underscores in
particular that this resolution shall not be considered as
establishing customary international law; and affirms further
that such authorizations have been provided only following
the receipt of the 2 November 2009 letter conveying the
consent of the TFG; (Updated OP 11 1846 and OP 10 1851)


9. Affirms that the measures imposed by paragraph 5 of
resolution 733 (1992) and further elaborated upon by
paragraphs 1 and 2 of resolution 1425 (2002) do not apply to
weapons and military equipment destined for the sole use of
Member States and regional organizations undertaking measures
in accordance with paragraph 7 above or to supplies of
technical assistance to Somalia solely for the purposes set
out in paragraphs 5 above which have been exempted from those
measures in accordance with the procedure set out in
paragraphs 11 (b) and 12 of resolution 1772 (2007); (OP 12
1846 and OP 11 1851 combined)


10. Requests that cooperating States take appropriate steps
to ensure that the activities they undertake pursuant to the
authorization in paragraph 7 do not have the practical effect
of denying or impairing the right of innocent passage to the
ships of any third State; (OP 13 1846)


11. Calls on Member States to assist Somalia, at the
request of the TFG and with notification to the
Secretary-General, to strengthen capacity in Somalia to bring
to justice those who are using Somali territory to plan,
facilitate, or undertake criminal acts of piracy and armed
robbery at sea, and stresses that any measures undertaken
pursuant to this paragraph shall be consistent with
applicable international human rights law; (updated OP 7 1851)


12. Calls upon all States, and in particular flag, port,
and coastal States, States of the nationality of victims and
perpetrators of piracy and armed robbery, and other States
with relevant jurisdiction under international law and
national legislation, to cooperate in determining
jurisdiction, and in the investigation and prosecution of
persons responsible for acts of piracy and armed robbery off
the coast of Somalia, consistent with applicable
international law including international human rights law,
and to render assistance by, among other actions, providing
disposition and logistics assistance with respect to persons
under their jurisdiction and control, such as victims and
witnesses and persons detained as a result of operations
conducted under this resolution; (updated OP 14 1846)


13. Urges States parties to the SUA Convention to fully

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implement their obligations under said Convention and
cooperate with the Secretary-General and the IMO to build
judicial capacity for the successful prosecution of persons
suspected of piracy and armed robbery at sea off the coast of
Somalia; ( shortened OP 15 1846)


14. Welcomes the revisions by the IMO to its
recommendations and guidance on preventing and suppressing
piracy and armed robbery against ships, and urges States in
collaboration with the shipping and insurance industries, and
the IMO to continue to implement and develop avoidance,
evasion, and defensive best practices and advisories to take
when under attack or when sailing in the waters off the coast
of Somalia, and further urges States to make their citizens
and vessels available for forensic investigation as
appropriate at the first port of call immediately following
an act or attempted act of piracy or armed robbery at sea or
release from captivity; (updated OP 12 1851)


15. Requests States and regional organizations cooperating
with the TFG to inform the Security Council and the
Secretary-General within nine months of the progress of
actions undertaken in the exercise of the authority provided
in paragraph 7 above; (updated OP 16 1846)


16. Requests the Secretary-General to report to the
Security Council within 11 months of the adoption of this
resolution on the implementation of this resolution and on
the situation with respect to piracy and armed robbery at sea
off the coast of Somalia; (edited 1846 OP 17)


17. Expresses its intention to review the situation and
consider, as appropriate, renewing the authority provided in
paragraph 7 above for additional periods upon the request of
the TFG; (OP 19 1846)


18. Decides to remain seized of the matter. (OP 20 1846 and
OP 13 1851)

End Text.
CLINTON