GUIDANCE: ADOPTION OF UNSC RESOLUTION RENEWING

UNCLAS STATE 121333

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: UNSC PREL PHUM PHSA EWWT KCRM KPIR SO XA XW
SUBJECT: GUIDANCE: ADOPTION OF UNSC RESOLUTION RENEWING
UNSCR 1846 AND 1851

REF: STATE 117724


1. USUN is instructed to join consensus on the U.S. drafted
UN Security Council Resolution renewing UNSC resolutions 1846
and 1851 to be adopted on November 30 (para 2). USUN should
also seek out co-sponsors for the resolution. USUN should
refer any further substantive changes on the Resolution to
the Department prior to joining consensus for adoption.


2. Begin text:

-- 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),

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 Somalia and the region, 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,

iii. Reaffirming its respect for the sovereignty,
territorial integrity, political independence and unity of
Somalia, including Somalia's rights with respect to offshore
natural resources, including fisheries, in accordance with
international law,

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,

v. Again taking into account the crisis situation in
Somalia, and the limited 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,

vi. Noting the several requests from the TFG for
international assistance to counter piracy off its coast,
including the letters of 2 and 6 November 2009 from the
Permanent Representative of Somalia to the United Nations
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 at sea off
the coast of Somalia, and requesting that the provisions of
resolutions 1846 (2008) and 1851 (2008) be renewed for an
additional twelve months,

vii. Commending the efforts of the EU operation Atalanta
which the European Union is committed to extending until
December 2010, North Atlantic Treaty Organization operations
Allied Protector and Ocean Shield, Combined Maritime Forces'
Combined Task Force 151, 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,

viii. Noting with concern that the continuing limited
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, regardless of
whether there is sufficient evidence to support prosecution,
and reiterating that, consistent with the provisions of the
Convention concerning the repression of piracy, 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 states to criminalize piracy under
their domestic law and to favorably consider the prosecution,
in appropriate cases, of suspected pirates consistent with
applicable international law,

ix. Commending the Republic of Kenya's 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
international organizations and donors, in coordination with
the Contact Group on Piracy off the Coast of Somalia
("CGPCS"),to support Kenya, Somalia, and other States in the
region, including Seychelles and Yemen, to take steps to
prosecute or incarcerate in a third state after prosecution
elsewhere captured pirates consistent with applicable
international human rights law,

x. Noting the ongoing efforts within the CGPCS to explore
possible additional mechanisms to effectively prosecute
persons suspected of piracy and armed robbery at sea off the
coast of Somalia,

xi. Further noting with appreciation the ongoing efforts by
UNODC and UNDP to support efforts to enhance the capacity of
the corrections system in Somalia, including regional
authorities, to incarcerate convicted pirates consistent with
applicable international human rights law,

xii. 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, and
the establishment of the International Maritime Organization
(IMO) Djibouti Code Trust Fund (Multi-donor trust fund -
Japan initiated),as well as the International Trust Fund
Supporting Initiatives of the CGPCS, 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,

xiii. Emphasizing that peace and stability within Somalia,
the strengthening of State institutions, economic and social
development and respect for human rights and rule of law are
necessary to create conditions for a durable eradication of
piracy and armed robbery at sea off the coast of Somalia, and
further emphasizing that Somalia's long-term security rests
with the effective development by the TFG of the National
Security Force and Somali Police Force, in the framework of
the Djibouti Agreement and in line with a national security
strategy,

xiv. Determining that the incidents of piracy and armed
robbery at sea off the coast of Somalia exacerbate the
situation in Somalia, which continues to constitute a threat
to international peace and security in the region,

xv. Acting under Chapter VII of the Charter of the United
Nations,


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


2. Notes again its concern regarding the findings contained
in the 20 November 2008 report of the Monitoring Group on
Somalia (S/2008/769, page 55) that escalating ransom payments
and the lack of enforcement of the arms embargo established
by resolution 733 (1992) are fueling the growth of piracy off
the coast of Somalia, and calls upon all States to fully
cooperate with the Monitoring Group on Somalia;


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;


4. Commends the work of the CGPCS to facilitate coordination
in order to deter acts of piracy and armed robbery at sea off
the coast of Somalia, in cooperation with the IMO, flag
States, and the TFG, and urges States and international
organizations to continue to support these efforts;


5. Acknowledges Somalia's rights with respect to offshore
natural resources, including fisheries, in accordance with
international law, and 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 their
capacity to ensure coastal and maritime security, including
combating piracy and armed robbery at sea off the Somali and
nearby coastlines, and stresses the importance of
coordination in this regard through the CGPCS;


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 ("shipriders") 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,
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;


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 to renew the
authorizations as set out in paragraph 10 of resolution 1846
(2008) and paragraph 6 of resolution 1851 (2008) granted to
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;


8. Affirms that the authorizations renewed 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 renewed only following the
receipt of the 2 and 6 November letters conveying the consent
of the TFG,


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 paragraph 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);


10. Requests that cooperating States take appropriate steps
to ensure that the activities they undertake pursuant to the
authorizations 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;


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, including regional
authorities, 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;


12. Calls upon all States, and in particular flag, port, and
coastal States, States of the nationality of the 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,
to ensure that all pirates handed over to judicial
authorities are subject to a judicial process, 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;


13. Commends in this context the decision by the CGPCS to
establish an International Trust Fund to support its
initiatives and encourages donors to contribute to it;


14. Urges States parties to the Convention and the SUA
Convention to fully implement their relevant obligations
under these Conventions and customary international law and
cooperate with the UNODC, IMO, and other States and other
international organizations to build judicial capacity for
the successful prosecution of persons suspected of piracy and
armed robbery at sea off the coast of Somalia;


15. 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 develop and implement 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;


16. 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 authorizations
provided in paragraph 7 above and further requests all States
contributing through the CGPCS to the fight against piracy
off the coast of Somalia, including Somalia and other States
in the region, to report by the same deadline on their
efforts to establish jurisdiction and cooperation in the
investigation and prosecution of piracy;


17. 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;


18. Requests the Secretary-General of the IMO to brief the
Council on the basis of cases brought to his attention by the
agreement of all affected coastal States, and duly taking
into account the existing bilateral and regional cooperative
arrangements, on the situation with respect to piracy and
armed robbery;


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


20. Decides to remain seized of the matter.
CLINTON