(Cedricmuhammad.com) If one ever wanted to see a classic example of how the same individuals, circumstances, events, and institutions can be interpreted so radically and differently, we have found one in the recent controversy over Somali ‘pirates’ (a friend of mine insists they should only be called ‘unemployed teenage youth’).

What we are witnessing is a classic episode of what one may call commercial linguistic warfare, where the pen (or broadcast cable news) is always mightier than the sword.

Economist Reuven Brenner perhaps put it best when he wrote that when public agreement and consensus are lacking, “people will play games with words and swords.”

In fuller context, here is what Mr. Brenner wrote in his forgotten classic, History – The Human Gamble:.

“There is an old clause in the laws of the Ine of Wessex: if fewer than seven men attack private property they are thieves, if between seven and thirty-five, they are a gang, if more than thirty-five, they are a military expedition…How can one interpret this law? How do we make the distinction between crime, terrorism, and the struggle for freedom? The answer seems straightforward: if the majority agrees through its laws and customs with the allocation of property rights, an attack against the allocated property will be viewed as a criminal act. But what if there is no agreement on the allocation of property rights…It will then be unclear whether an act is considered a crime or an act of liberation. When no such agreement exists people will play with words and swords.”

And herein lies the ultimate barrier to a satisfactory solution to the cultural, political, military, and economic problem around the Horn of Africa – the United Nations has failed the people of Somalia, its fisherman; and the international maritime industry in its self-proclaimed role as international standard-bearer for justice, commercial property rights, and peace.

There is no clear expectation and agreement on what the UN will enforce as a violation of its Convention on the Law of the Sea, dated December 10, 1982.

A dynamic document that lays out the freedom of the seas doctrine and the evolution of attitudes towards it, the Convention clearly lays out a rule of law regarding the limits of sovereignty and commercial activity.

If properly enforced it represents the best working model to address issues of sea piracy, toxic waste dumping, and illegal fishing which are at the center of the debate regarding recent events in the Gulf of Aden and the Indian Ocean.

While the international commercial shipping community (backed by coverage from the Western media) has made formidable arguments that piracy has taken place in some instances, against its property what is less clear (due to the inability of the relatively weaker progressive, viral, and African media to break through the ‘mainstream’) is that these acts are taking place in the larger context of a documented history of illegal fishing and dumping that have been taking place along the coastland of Somalia.

[For more on this see:

- Time Magazine’s April 18, 2009 “How Somalia’s Fishermen Became Priates”
(http://www.time.com/time/printout/0,8816,1892376,00.html)

- the AFP’s June 25, 2008 “UN Envoy Decries Illegal Fishing, Waste Dumping Off Somalia,” (http://afp.google.com/article/ALeqM5gVV_gQDsp1m8v7nPcumVc5McYV-Q)

- The Final Call’s “Somalia Piracy And The Untold Story” (http://www.finalcall.com/artman/publish/article_5903.shtml)

- The African Executive’s “Somalia Piracy: The Two Faces (Part I: http://www.africanexecutive.com/modules/magazine/articles.php?article=4060) and (Part 2: http://www.africanexecutive.com/modules/magazine/articles.php?article=4070);

- CBC’s April 6, 2009 “Pirates of Somalia” (http://www.cbc.ca/national/blog/video/internationalus/pirates_of_somalia.html)]

The “United Nations Convention On The Law of The Sea of 10 December 1982” (http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm#Protection%20of%20the%20Marine%20Environment ) addresses all of these concerns, if applied equally to the international commercial shipping community and Somalians, and enforced.

The Convention’s provisions on dumping are clearly outlined in a section called “Protection of the Marine Environment,” where six main sources of ocean pollution are addressed including ocean dumping.

The Convention’s key provisions also address the all-important exclusive economic zones (EEZs) which recognize the rights of coastal states “to exploit, develop, manage, and conserve all resources – fish or oil, gas or gravel, nodules or sulphur – to be found in the waters, on the ocean floor and in the subsoil of an area, extending 200 miles from its shore.”

In response to the crisis the UN has ignored the substantive and credible cries of Somalis regarding toxic dumping and illegal fishing activity while it has responded forcefully to the allegations of piracy against the international commercial community.

Never was this more clear than in UN Security Council Resolutions 1816 (Adopted June 2, 2008) and UN Security Council Resolution 1838 (Adopted October 7, 2008) which cite and “reaffirm 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,” yet make no mention of ocean dumping or illegal fishing.

In the name of The Law Of the Sea these two resolutions rally the entire world to military action against piracy off the coast of Somalia yet offer not a single word of acknowledgement, intention to further investigate, or to provide redress or enforcement of the Law’s provisions pertaining to ocean dumping and illegal fishing.

While many have called Somalia a lawless state, that designation may also apply to the United Nations, in its selective application.

Interestingly, in justifying its call to ‘States interested in the security of maritime activities…whose naval vessels and military aircraft operate on the high seas and airspace off the coast of Somalia to use on the high seas and airspace off the coast of Somalia the necessary means, in conformity with international law, as reflected in the Convention, for the repression of acts of piracy;” Resolution 1816 acknowledges that Somalia’s Transitional Federal Government lacks the ability to protect its coastline [“Taking into account the crisis situation in Somalia, and the lack of capacity of the Transitional Federal Government (TFG) to interdict pirates or patrol and secure either the international sea lanes off the coast of Somalia or Somalia’s territorial waters…”]

Yet, it does not apply that logic to the obvious reality that Somalia’s “lack of capacity…to…patrol or secure either the international sea lanes off the coast of Somalia or Somalia’s territorial waters…” translates into ocean dumping and illegal fishing as well as piracy.

So with a state-less Somalia in a helpless condition, and a law-less U.N. encouraging military activity to protect international commerce what is the response of Somalian fishermen?

From the Somalia focused media outlet Mareeg.com (http://www.mareeg.com/) we read in an article “Somalia: Pirates Say They Kill French and U.S. Citizens” (http://www.mareeg.com/fidsan.php?sid=11495&tirsan=3) the following, “Jamac Siad, one of the pirate members based at Haradhere coastal town in central Somalia said they are determined to kill the Americans and the French…’We are not pirates, we are young teenagers who stood up to defend their coastal areas from foreign ships that are dumping toxic waste to Somalia’s coast…in the future, we will behead Americans and French,’ he added.”

When injustice and inequality under law abound, property rights are the first casualty.

We can choose to address property right violations in the present, or the acts of injustice and inequality that preceded them (and still continue).

But the first step, is to acknowledge that standards do exist and agreements do matter, and without them the categorical lines blur between ‘criminals,’ ‘terrorists,’ and ‘freedom fighters,’ especially in commerce.

Here, the United Nations has failed both Somalia and the world of commerce.

Cedric Muhammad is Publisher of BlackElectorate.com (http://www.blackelectorate.com) and a Delegate-Member of the African Union’s First Congress of African Economists. His blog can be read regularly at: http://www.cedricmuhammad.com

April 16, 2009

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