Somali Piracy in 2026: What International Law Allows States to Do
- Edmarverson A. Santos
- 13 hours ago
- 20 min read
Introduction
Somali piracy has again become a significant maritime security concern in the Gulf of Aden and surrounding waters in 2026. On 24 August, the International Maritime Organization reported that six vessels were being held by pirates and armed robbers and that more than 90 seafarers remained captive (IMO, 2026). The renewed attacks have prompted calls for sustained international naval cooperation, but the legal authority to respond depends on the character and location of each incident rather than on the seriousness of the threat alone.
The starting point is the United Nations Convention on the Law of the Sea. Article 101(a) defines the core form of piracy through several cumulative elements, including illegal acts of violence, detention, or depredation committed for private ends by the crew or passengers of a private ship and directed against another ship on the high seas or in another place outside the jurisdiction of any state (United Nations, 1982). An attack against a ship within a coastal state's territorial sea does not qualify as piracy under Article 101(a) and is ordinarily classified by the IMO as armed robbery against ships. Primary enforcement authority then rests with the coastal state, subject to any valid consent or other applicable legal basis for foreign action.
This distinction does not confine piracy to waters beyond every exclusive economic zone. Article 58(2) makes Articles 88–115 of UNCLOS, including the piracy provisions, applicable in the EEZ insofar as they are compatible with the EEZ regime (United Nations, 1982, art. 58(2)). A qualifying attack beyond the territorial sea may consequently amount to piracy even when it occurs within Somalia's or another coastal state's EEZ. Treating every incident beyond 12 nautical miles as occurring on the “high seas” obscures the legal structure and can distort the analysis of enforcement jurisdiction.
Once conduct qualifies as piracy, international law permits forms of intervention that would normally be unavailable against foreign vessels. Article 110 allows a warship to exercise the right of visit where there are reasonable grounds to suspect piracy, while Article 105 permits any state to seize a pirate ship or a ship taken by piracy and under pirate control. Article 107 limits such seizures to warships, military aircraft, and other clearly identifiable government vessels or aircraft authorized for that purpose (United Nations, 1982, arts. 105, 107, 110). Arrest, detention, prosecution, the use of force, and the treatment of captured suspects raise further questions that cannot be resolved simply by invoking universal jurisdiction.
Somali territorial waters impose the clearest jurisdictional limit. Beginning with Security Council Resolution 1816 in 2008, exceptional measures adopted on the basis of Somali consent allowed cooperating states to take counter-piracy action inside Somalia's territorial sea. The final renewal under Resolution 2608 expired on 3 March 2022 after Somalia declined to request a further extension (UNSC, 2008; UNSC, 2021; Somalia, 2022). The legal position in 2026 is consequently different from the framework that governed the earlier peak of Somali piracy. Foreign naval forces retain substantial counter-piracy powers outside territorial waters, while coercive action inside Somali waters requires a separate lawful basis. The governing question is which state may take a particular measure, in which maritime zone, and subject to what legal limits.
1. Somali Piracy in 2026 and the Legal Question
The renewed wave of Somali-linked attacks in 2026 is commonly described as a resurgence of piracy. As a regional security label, that description is understandable. As a legal classification, it is incomplete. International law attaches different consequences to maritime attacks according to where they occur, and recent incidents have taken place at materially different distances from the coasts of Somalia and Yemen. Similar methods and apparent objectives can accordingly fall under different jurisdictional regimes.
The attack on the Palau-flagged tanker HONOUR 25 illustrates the problem. IMO reporting placed the incident on 21 April approximately six nautical miles from the Somali coast, within Somalia's territorial sea. By contrast, the tanker SIBU 1, identified by the IMO as SEAMULL, was reportedly hijacked on 20 August approximately 136 nautical miles east of Al Mukalla, Yemen (IMO, 2026; Associated Press, 2026). The first attack falls outside the geographical scope of piracy under UNCLOS Article 101(a). The second occurred well beyond the territorial sea and may fall within the UNCLOS piracy regime if the other elements of Article 101 are satisfied.
The nationality or geographic origin of the attackers does not determine which maritime regime applies. Nor does the location where a hijacked vessel is eventually anchored. A qualifying attack committed outside territorial waters does not lose its original legal characterization merely because the captured vessel is later brought close to the Somali coast. An attack beginning inside territorial waters likewise does not become piracy under Article 101(a) simply because the perpetrators later sail outward.
Later conduct must still be assessed separately. Continued detention of the crew, use of the captured vessel as a mothership, or subsequent attacks launched from it may raise distinct questions under Articles 101 and 103 of UNCLOS. The classification of the original incident and the legal consequences of later conduct are related, but they are not interchangeable.
Location also determines what enforcement powers are available when a naval force intervenes. A foreign warship may encounter a vessel after the original offense has taken place in one maritime zone and after the pirates have moved it into another. The governing question is which enforcement authority exists at the place where interception, boarding, seizure, or arrest is contemplated. That distinction separates the international law of piracy from the broader maritime-security phenomenon described as Somali piracy.
2. Piracy Under UNCLOS: The Article 101 Test
Article 101 of UNCLOS supplies the legal definition of piracy. Under Article 101(a), the core offense includes illegal acts of violence or detention, or acts of depredation, committed for private ends by the crew or passengers of a private ship or aircraft and directed against another ship or aircraft, or against persons or property aboard it, on the high seas. The provision also covers such conduct against a ship, aircraft, persons, or property in another place outside the jurisdiction of any state. Article 101(b) separately addresses knowing participation in the operation of a pirate ship or aircraft, while Article 101(c) covers incitement and intentional facilitation (United Nations, 1982).
The conventional offense in Article 101(a)(i) contains the familiar two-ship structure. Violence committed by persons already aboard the victim vessel does not satisfy that particular ship-against-ship formulation merely because the conduct would otherwise resemble piracy. Internal maritime hijackings can instead fall within other legal regimes. Article 3 of the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, for example, criminalizes the seizure or exercise of control over a ship by force, threat of force, or other intimidation without requiring an attacking second vessel (SUA Convention, 1988).
“Private ends” is more difficult. Somali ransom piracy ordinarily fits comfortably within the traditional conception because the seizure of ships and crews for private financial gain presents little interpretive difficulty. The broader meaning of the phrase remains disputed. One approach treats politically motivated conduct as falling outside piracy, while another reads “private” principally in opposition to public or state-authorized action, allowing some politically motivated private conduct to remain within Article 101 (Petrig, 2015). The Convention itself does not reduce private ends to financial profit alone.
Geography is equally decisive. An attack occurring within a state's territorial sea does not fall within Article 101(a)'s geographical definition of piracy. Such incidents are ordinarily classified by the IMO as armed robbery against ships. The distinction affects jurisdiction as well as terminology because the universal enforcement powers associated with piracy do not arise within territorial waters simply because similar conduct would qualify as piracy farther offshore.
The exclusive economic zone presents a different legal position. An EEZ is a distinct maritime zone rather than part of the high seas, but Article 58(2) provides that Articles 88 to 115 apply there insofar as they are compatible with Part V of UNCLOS. The piracy provisions, including Articles 100–107 and 110, consequently operate within the EEZ (United Nations, 1982, art. 58(2)). A qualifying attack 50 or 100 nautical miles from the coast may thus constitute piracy even while occurring inside a coastal state's EEZ. The coastal state retains the sovereign rights and jurisdiction conferred by Part V, but those competences do not displace the Convention's piracy regime.
3. Boarding and Seizure Beyond Territorial Waters
Piracy operates as an exception to the ordinary jurisdictional structure governing ships at sea. Article 92 provides that ships on the high seas are generally subject to the exclusive jurisdiction of their flag state, except in cases expressly provided for by UNCLOS or another international treaty. Through Article 58(2), much of this framework also applies in the EEZ. The piracy provisions create exceptional enforcement powers, but they do not authorize indiscriminate boarding in areas associated with pirate activity.
Article 110 governs the right of visit. A warship encountering a foreign ship on the high seas, other than one entitled to complete immunity under Articles 95 and 96, may exercise that right where there are reasonable grounds for suspecting one of the situations specified in the Convention, including piracy. The process is investigative. The warship may send a boat under the command of an officer to verify the vessel's right to fly its flag and, if suspicion remains after the documents have been checked, proceed to further examination consistent with the Convention (United Nations, 1982, art. 110).
Reasonable suspicion does not itself establish pirate status. The right of visit allows a warship to investigate circumstances that justify interference with the ordinary rule of flag-state jurisdiction. Seizure under Article 105 is a separate and more intrusive legal step.
Article 105 permits every state, on the high seas or in another place outside the jurisdiction of any state, to seize a pirate ship or aircraft and a ship or aircraft taken by piracy and under pirate control. Persons aboard may be arrested and property may be seized. The courts of the state carrying out the seizure may determine the penalties to be imposed and decide what is to be done with the vessel or property, subject to the rights of third parties acting in good faith (United Nations, 1982, art. 105). Article 58(2) makes these piracy powers applicable within the EEZ, subject to compatibility with Part V.
The Convention also protects ships against unjustified interference. Under Article 106, a state that seizes a ship on suspicion of piracy without adequate grounds is liable to the ship's state of nationality for loss or damage caused by the seizure. Article 110 contains a related compensation rule where the grounds for suspicion prove unfounded, and the vessel has committed no act justifying the interference. Universal counter-piracy enforcement is exceptional, but it is not legally unconstrained.
Who may carry out a piracy seizure is addressed separately in Article 107. Such seizures may be made only by warships or military aircraft, or by other ships or aircraft clearly marked and identifiable as being on government service and authorized for that purpose (United Nations, 1982, art. 107). Merchant vessels and privately contracted security personnel do not acquire Article 105 enforcement powers merely because they confront pirate attackers.
Private guards and merchant crews may use defensive measures where the applicable law allows them to protect the ship and those aboard, but that authority is governed by a different legal framework. IMO guidance treats the use of privately contracted armed security personnel as subject to flag-state law and potentially to coastal- and port-state requirements (IMO, 2025). Self-protection at sea is legally distinct from the public enforcement authority to seize a pirate vessel, arrest persons aboard, and place suspects within a criminal justice process.
4. Somali Territorial Waters After the UN Mandate
The legal position changes once counter-piracy enforcement reaches Somalia's territorial sea. Under Article 2 of UNCLOS, sovereignty extends over the territorial sea subject to the Convention and other rules of international law. Conduct there does not fall within the geographical scope of piracy under Article 101(a). The IMO instead defines armed robbery against ships as specified unlawful acts of violence, detention, depredation, or threats committed for private ends within a state's internal waters, archipelagic waters, or territorial sea (IMO, 2009).
That distinction affects enforcement authority. Foreign naval forces do not acquire the universal powers associated with piracy merely because conduct inside Somali waters resembles an offshore pirate attack. Somalia retains the primary authority to enforce its laws within its territorial sea, although it may consent to foreign assistance or authorize foreign forces to act there.
For many years, Somalia was subject to an exceptional Security Council regime. Resolution 1816, adopted on 2 June 2008, authorized states cooperating with Somalia's Transitional Federal Government, following advance notification by that government to the Secretary-General, to enter Somali territorial waters and use “all necessary means” to repress piracy and armed robbery. The authorization initially lasted six months and was later renewed through successive resolutions (UNSC, 2008).
The Council carefully limited those powers. Resolution 1816 specified that the authorization applied only to the Somali situation, preserved states' existing rights and obligations under international law, including UNCLOS, and declared that the arrangement was not to be treated as establishing customary international law. The design reflected concern that an emergency response to Somalia should not become a general right of foreign naval enforcement inside territorial seas (Guilfoyle, 2012).
The last renewal came through Resolution 2608 of 3 December 2021, which extended the special authorizations for three months. Somalia subsequently informed the Security Council that it would not request another renewal (Somalia, 2022, S/2022/162). The authorization expired on 3 March 2022, and the Secretary-General later recorded that international naval operations under that authority in Somali territorial waters ceased from that date (United Nations, 2022, S/2022/819).
Expiry of the Security Council regime did not remove Somalia's ability to consent to foreign operations. Current EU rules governing Operation Atalanta contemplate counter-piracy activity in the Somali territorial sea where authorized by the Somali government. Such consent is legally distinct from the expired Security Council authorization: it depends on Somalia's sovereign permission rather than on a continuing UN mandate.
UNCLOS Article 111 does not provide an alternative route around this limit. Hot pursuit is exercised by the competent authorities of a coastal state when a foreign vessel is suspected of violating laws within maritime zones where that state has the relevant enforcement competence. A lawfully commenced pursuit may continue outward onto the high seas, but it ends when the pursued vessel enters the territorial sea of its own state or a third state (United Nations, 1982, art. 111). A third-state warship cannot invoke Article 111 to begin a counter-piracy pursuit outside Somalia and continue inward across Somalia's territorial-sea boundary.
5. Force, Recapture, and Hostage Rescue
Piracy, without more, does not create an armed conflict or confer combatant status on its perpetrators. Counter-piracy operations are ordinarily maritime law-enforcement operations, even when warships and military personnel conduct them. International humanitarian law would require a separate armed-conflict nexus and cannot be triggered merely by the presence of armed pirates or naval forces.
The general international standard governing force in maritime enforcement is reflected in M/V “Saiga” (No. 2), although the case itself did not concern piracy. ITLOS held that force should be avoided as far as possible and, where unavoidable, should not exceed what is reasonable and necessary in the circumstances. The Tribunal also stressed that considerations of humanity apply at sea and referred to a graduated sequence of enforcement measures before more serious force is used (ITLOS, 1999, paras. 155–156).
That standard is directly relevant to piracy enforcement. Warning signals, forcible boarding, disabling fire against a vessel, defensive fire against armed attackers, and lethal force against individuals cannot be treated as equivalent measures. Their legality depends on the circumstances and on whether the force used remains reasonable and necessary for the enforcement objective. Specialist analysis of Somali counter-piracy likewise treats coercion against pirates as law enforcement rather than as a general military license (Treves, 2009).
A vessel already under pirate control raises a separate issue. Article 105 permits seizure of a ship “taken by piracy” and remaining under pirate control. This language refers to a vessel originally captured through conduct falling within Article 101(a). A ship seized by armed robbery inside territorial waters does not automatically become a ship “taken by piracy” merely because it is later moved offshore.
Later conduct can change the analysis. Under Article 103, a ship may acquire pirate-ship status where those in dominant control intend to use it for committing acts referred to in Article 101. A vessel initially captured inside territorial waters and subsequently used as a mothership for attacks beyond territorial waters may consequently engage different provisions from those governing the original seizure.
The presence of hostages affects how enforcement powers may be exercised, not the geographical basis of those powers. Risk to the crew is relevant to whether forcible intervention is reasonable and necessary and to the broader requirement of humane treatment. Hostage rescue does not create an independent international right to disregard coastal-state sovereignty. If the captured ship is inside Somali territorial waters, foreign boarding or rescue still requires a separate lawful basis.
6. Universal Jurisdiction and Its Enforcement Limits
Piracy is commonly described as the classic offense of universal jurisdiction, but that shorthand can hide several distinct forms of state authority. Prescriptive jurisdiction concerns the power to criminalize conduct, adjudicative jurisdiction concerns the competence of courts to try an accused person, and enforcement jurisdiction concerns coercive measures such as boarding, seizure, and arrest. The legal basis for one does not automatically supply the others.
Under UNCLOS, Article 105 provides treaty authority for states parties to seize pirate ships in the maritime spaces governed by the piracy regime and to arrest persons aboard. Article 107 restricts the vessels and aircraft entitled to conduct those seizures. Piracy is also widely recognized as an offense subject to universal criminal jurisdiction under customary international law, a historical rule that is distinct from the specific treaty wording of Article 105.
Article 105 expressly states that the courts of the state carrying out the seizure may decide the penalties to be imposed. This gives the seizing state a clear adjudicative basis, but the provision is permissive rather than mandatory. Nothing in its wording requires every capturing state to prosecute every suspect it detains.
Article 100 imposes a broader duty on states to cooperate to the fullest possible extent in repressing piracy on the high seas or elsewhere outside the jurisdiction of any state (United Nations, 1982). That obligation leaves states considerable latitude over the form cooperation takes. It does not, by itself, establish an automatic prosecute-or-extradite requirement, and specialist commentary has generally distinguished the duty to cooperate from a mandatory duty to prosecute every captured suspect (Petrig, 2015).
The more difficult issue is prosecution by a state other than the state that carried out the seizure. Article 105 expressly identifies the courts of the seizing state, but it does not clearly state that their jurisdiction is exclusive. Treves argues that other states are not precluded from exercising jurisdiction under rules available to them, while later scholarship has distinguished the narrower textual competence in Article 105 from the broader customary universal jurisdiction that may support prosecution by a non-seizing state (Treves, 2009; Petrig, 2015).
Practice involving transfers of Somali piracy suspects reinforces the importance of that distinction. Captured suspects have been transferred to regional and other states for prosecution rather than invariably being tried by the state whose naval forces made the seizure. The legal basis for such proceedings must still be found in the prosecuting state's domestic law and in an applicable jurisdictional rule.
Universal jurisdiction is not the only possible basis. A flag state may exercise jurisdiction over attacks against its vessels, while active nationality and passive personality may support jurisdiction where domestic legislation and applicable international law permit it. These bases are independent of the universal jurisdiction associated with piracy and must be established in the particular legal system concerned.
The exceptional reach of piracy law consequently has clear limits. It permits forms of prosecution and maritime enforcement that would ordinarily require a territorial or nationality connection, but it does not authorize the police or armed forces of every state to arrest suspected pirates wherever they are found. Territorial sovereignty, the applicable maritime zone, domestic implementing law, and the distinction between adjudicative and enforcement jurisdiction continue to determine the lawful scope of state action.
7. Detention, Prosecution, and Transfer After Capture
Capture at sea begins a new set of legal questions. Once suspected pirates are detained, the capturing state must identify a lawful basis for continued deprivation of liberty and address evidence collection and preservation under the applicable criminal procedure and any relevant prosecution or transfer arrangements. Decisions must also be made about where suspects can lawfully be brought ashore, which state will exercise jurisdiction, and which procedural and human-rights obligations govern their treatment.
The European Court of Human Rights confronted these issues in Ali Samatar and Others v France and Hassan and Others v France. Both cases concerned Somali nationals apprehended by French forces and subsequently transferred to France for prosecution. In Hassan, the Court found that the legal framework governing the applicants' detention had not provided sufficient protection against arbitrary deprivation of liberty, resulting in a violation of Article 5(1) ECHR (Hassan and Others v France, 2014).
Article 5(3) was violated in both cases. The Court accepted that the exceptional geographical circumstances justified the time required to transport the suspects from the Horn of Africa to France. The problem arose after their arrival, when they remained in police custody for a further 48 hours before being brought before a judicial authority. French authorities had already had several days to arrange judicial supervision, so the additional delay was not justified (Ali Samatar and Others v France, 2014; Hassan and Others v France, 2014).
These judgments do not establish a single detention timetable for every counter-piracy operation. They concern France's obligations under the ECHR while exercising jurisdiction over captured suspects. For a Convention state exercising such jurisdiction, detention at sea may engage the applicable ECHR guarantees. Other naval forces must be assessed under the human-rights instruments and jurisdictional rules binding on the capturing state.
Prosecution has frequently depended on transfer rather than trial in the state whose naval forces made the seizure. Earlier Somali counter-piracy practice included transfers to regional jurisdictions, notably Kenya, Seychelles, and Mauritius, supported by international agreements and criminal-justice assistance (Guilfoyle, 2012). Such arrangements helped address the practical gap between interception at sea and prosecution ashore.
Operation Atalanta retains a specific transfer framework. Under the current consolidated Article 2a of Joint Action 2008/851/CFSP, suspects are first to be transferred to the competent authorities of the state whose participating vessel carried out the capture. If that state cannot or does not wish to exercise jurisdiction, transfer may be made to another EU Member State or to a third state willing to exercise jurisdiction (Council of the European Union, 2008, art. 2a).
Transfer to a third state is subject to additional safeguards. The conditions must be agreed consistently with applicable international human-rights law and must protect the transferred person from the death penalty, torture, and cruel, inhuman, or degrading treatment (Council of the European Union, 2008, art. 2a(3)). The receiving state must also possess jurisdiction over the alleged offense. Any subsequent criminal proceedings remain subject to the fair-trial obligations binding on the prosecuting state.
The 1988 SUA Convention provides a supplementary criminal-law framework. Article 3 criminalizes conduct including the forcible seizure or control of a ship, while Article 6 establishes specified jurisdictional bases. Article 10 requires a state party in whose territory an alleged offender is present, when the Convention's conditions are met, to submit the case to its competent authorities if it does not extradite the person (SUA Convention, 1988).
SUA does not reproduce the universal maritime enforcement regime created by UNCLOS for piracy. Article 9 expressly preserves existing international-law rules governing states' competence to exercise investigative or enforcement jurisdiction aboard foreign ships. It may support prosecution of conduct that overlaps with, or falls outside, Article 101 piracy, but it does not provide an independent universal power to board and seize foreign vessels at sea.
8. CTF 151 and Operation Atalanta in 2026
Combined Task Force 151 is one of the principal multinational mechanisms dedicated to counter-piracy in the region. It operates within Combined Maritime Forces, a coalition of 47 states, and its mission is directed at suppressing piracy outside the territorial waters of coastal states. During the United Kingdom's six-month command in 2026, CTF 151 responded to 25 piracy-related incidents across an operating area exceeding three million square miles. Command passed to the Republic of Korea on 24 August 2026 (Royal Navy, 2026).
The task force's operational mandate should not be confused with international enforcement jurisdiction. CTF 151 coordinates multinational assets, patrols, surveillance, information sharing, and responses to piracy. When a participating warship exercises a right of visit, conducts a seizure, detains suspects, or transfers them for prosecution, the legal authority for that act must still be found in UNCLOS, another applicable rule of international law, and the domestic authority of the participating state.
Operation Atalanta has a different institutional and legal structure. Established under Joint Action 2008/851/CFSP, the EU naval operation remains authorized through 28 February 2027 following Council Decision (CFSP) 2024/3186. Its core executive functions include protecting World Food Programme and other vulnerable vessels and deterring, preventing, and repressing piracy and armed robbery at sea (Council of the European Union, 2008; Council of the European Union, 2024).
Council Decision (CFSP) 2026/777 subsequently adjusted several secondary tasks, including changes to maritime monitoring functions, without displacing Atalanta's core counter-piracy mandate. The operation consequently remains an active part of the regional response to Somali piracy in 2026 (Council of the European Union, 2026).
The EU mandate does not override Somali sovereignty. The current legal framework expressly permits Atalanta to operate for its counter-piracy purposes within the Somali territorial sea where authorized by the Somali government. This is distinct from the Security Council regime that expired in 2022. Atalanta's institutional mandate identifies the tasks the operation may perform, while Somali consent supplies the necessary basis for territorial access where such consent is required.
Atalanta also connects maritime enforcement with prosecution through its detention and transfer arrangements. Article 2a establishes the sequence for transferring captured suspects and the safeguards governing transfers to third states. These provisions reduce the risk that interdiction ends with suspects being released merely because the capturing force lacks a practical route to prosecution.
The 2026 resurgence has also demonstrated the practical value of coordination between multinational forces and Somali authorities. EUNAVFOR has exchanged information with Somali and Puntland maritime-security bodies concerning hijacked vessels and pirate activity, while multinational naval forces have coordinated surveillance and operational responses. Such cooperation can improve detection and response times, but it does not create a separate source of jurisdiction.
Every coercive measure still requires its own legal basis. Multinational command structures can coordinate who acts and when; they cannot independently determine where a foreign warship may exercise enforcement powers. That distinction remains central to counter-piracy international law in the Gulf of Aden.
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Conclusion
International law permits states to take substantial action against Somali piracy in 2026. Beyond territorial waters, the UNCLOS piracy regime allows warships to investigate suspected piracy under Article 110 and, when the conditions of Article 105 are met, to seize pirate ships or vessels taken by piracy, arrest persons aboard, and seize property. Article 58(2) extends that regime into exclusive economic zones, so these powers are not confined to the technical high seas. Their exercise remains subject to the rules governing lawful force, detention, prosecution, and transfer.
The decisive limit is territorial jurisdiction. UNCLOS does not give foreign navies a general right to carry universal piracy enforcement into Somali territorial waters, and the exceptional Security Council authorization that once permitted such operations expired in 2022. Somalia may still consent to foreign enforcement there, as the current Atalanta framework recognizes. The answer to what states may lawfully do against Somali pirates thus depends on the maritime zone, the specific enforcement measure contemplated, and the legal authority supporting it at the moment action is taken.
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