Page last updated at 11:51 GMT, Sunday, 12 April 2009 12:51 UK

Could 19th-Century plan stop piracy?

International efforts to thwart Somali piracy would appear to be floundering. Perhaps words from the 19th Century could offer a solution, writes the BBC News website's world affairs correspondent Paul Reynolds.

Viscount Palmerston
Palmerston did not hesitate to send in the gunboats

If the navies of the world need some advice on ways to stop piracy off Somalia, they could look to Lord Palmerston, British Foreign Secretary in 1841.

"Taking a wasps' nest... is more effective than catching the wasps one by one," he remarked.

Palmerston, the great advocate of gunboat diplomacy, was speaking in support of a British naval officer, Joseph Denman.

Denman had attacked and destroyed slave quarters on the West African coast and had been sued by the Spanish owners for damages.

It was British policy to try to destroy the slave trade, but this sometimes ran into legal complications.

The British attorney general, in a gem of delicate legal advice, declared the following year that he "cannot take it upon himself to advise... that the instructions to Her Majesty's naval officers are such as can with perfect legality be carried into execution...

"[He] is of the opinion that the blockading of rivers, landing and destroying buildings and carrying off of persons held in slavery... cannot be considered as sanctioned by the law of nations."

Denman, a hero of the anti-slave trade campaign, was eventually vindicated and the Royal Navy carried on with its anti-slavery operations.

Suspected Somali pirates guarded by Kenyan police after they were charged in a Mombasa court, March 2009
The legal system in Kenya cannot deal with suspected pirates

James Walvin notes in his book Black Ivory: "Between 1820 and 1870 the Royal Navy seized almost 1,600 ships and freed 150,000 slaves."

With Somali piracy still threatening shipping, it sounds as if modern navies need a few Captain Joseph Denmans, or the like-minded American, Commodore Stephen Decatur.

Sent to attack the Barbary pirates off North Africa in 1815, Decatur simply captured the flagship of the Algerian Bey [ruler] and forced a capitulation.

When the Bey later tried to repudiate the agreement, the British and Dutch bombarded Algiers.

No such action against the "wasps' nests" along the Somali coast is possible today, even though the UN Security Council has authorised the use of the "necessary means" to stop pirates on the high seas and hot pursuit into Somali territorial waters.

Law of the sea

However, the resolutions that made these actions permissible (1838 and 1846) also contain restrictions.

Everything has to be done in accordance with "international law" and this is interpreted as complying with the conditions of the International Law of the Sea Convention.

This convention, in article 105, does permit the seizure of a pirate ship, but article 110 lays down that, in order to establish that a ship is indeed a pirate vessel, the warship - and it may only be a warship - has to send a boat to the suspected ship first and ask for its papers.

This is hardly a recipe for a Denman or Decatur-type action.

Add to this legal restriction the relative lack of warships in the seas off Somalia - more than there were, but still insufficient - and the reluctance to tackle the pirates in their home bases, throw in the chaos in Somalia, where there is no effective government, and you have perfect conditions for piracy.

BBC map

Even if they are caught, they are simply handed over to Kenya whose legal system is not designed to deal with them.

The German navy transported another batch of captured pirates to Kenya recently. But nobody knows how long they will be in custody there.

And the UN Monitoring Group on Somalia issued a damning report last December in which it castigated ship owners for paying ransom.

"Exorbitant ransom payments have fuelled the growth of [pirate] groups," it stated.

The report also expressed concern about "the apparent complicity in pirate networks of Puntland administration officials at all levels."

Puntland is a self-declared autonomous region of Somalia, right at the tip of the Horn of Africa.

(Update: The French have adopted a different policy - that of trying to rescue hostages and capturing pirates, taking them back to France for trial. This was successful until recently, when commandos stormed a yacht and in the process the yacht's owner was killed, though his wife and young son were rescued.)

Since writing in December last year about the legal problems involved, I have had a lot of e-mails from people angry at the ineffectiveness of the measures taken so far and proposing their own solutions.

These include:

  • Convoys. Already done in the case of aid ships going into Kenyan and Somali ports
  • Arming the crews. The crews might not want this, though in the latest case the American crew of cargo ship Maersk Alabama did fight back
  • Arming merchant ships with heavy guns. Ship owners might not want to risk an engagement at sea
  • luring pirates into attacking apparently unarmed ships which then declared themselves as warships. Would this be in "accordance with international law"?

Other ideas suggested would appeal to officers Denman and Decatur.

(Update: I have had a flood of further e-mails, for which many thanks. The plans proposed range from having submarines on stand-by to surface when needed, to 'Q-ships' (armed, disguised merchantmen), to immediate sinking, to blockades, to invasion. The general feeling is that governments and navies are too weak. There have been a few writers, though, who say that the real problem is in Somalia itself and that the pirates take to their trade because they cannot make a living in other ways.)

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