The attacks on ships off the coast of Somalia have brought piracy to global attention, prompting responses from the United Nations Security Council ( UNSCUNSC ). The UNSC has used its authority to pass Resolution 1816 that enables these forces to pursue pirates within Somali waters. This marks a shift from traditional international law, which limits military actions against piracy in the territorial sea and internal waters.

These resolutions are carefully framed which explicitly explain that this exception does not establish customary law. In Somalia, where an effective government has been absent since 1991, local fishermen are losing their livelihood due to overfishing by foreign vessels, often using illegal nets and the dumping of toxic waste into the Indian Ocean. This is the main force instigating them to engage in criminal acts such as piracy. In the last year alone, attacks on international shipping in the Gulf of Aden surged by 200% compared to 2007.

This problem is exacerbated by the geographical situation of this area which makes all ships passing through the Suez Canal navigate the narrow strait between the horn of Africa and the Arabian Peninsula, making them easy targets for Somalian pirates. They typically seized vessels to ransom them and their crews back to the owners. Sometimes, only cargo is taken ashore to sell. Currently, hundreds of crew members from various countries are held captive awaiting ransom negotiations.

In 2008, the United Nations Security Council passed five resolutions S.C. Res. 1816 (June 2, 2008), S.C. Res. 1838 (Oct. 7, 2008), S.C. Res. 1844 (Nov. 20, 2008), S.C. Res. 1846 (Dec. 2, 2008), and S.C. Res. 1851 (Dec. 16, 2008) which specifically addresses Somali piracy. These resolutions were enacted under Chapter VII of the UN Charter which grants authority to use military force against threats to international security.

Under customary international law, nations can react against piracy on the high seas without the Security Council's authorization. However, in the Gulf of Aden, where piracy is rampant due to its strategic shipping routes, pirates tactfully use their territorial waters to quickly retreat and gain immunity from getting persecuted under international law.

Resolution 1816, passed on June 2, 2008, addressed this by allowing nations to pursue pirates into Somali waters, noting that this was done with the consent of the Somali Transitional Government (TFG) which lacked the capacity to control the piracy. On December 16, 2008, Resolution 1851 further extended the authorization to include land-based operations in Somalia for suppressing piracy. This move was unprecedented, allowing military action in sovereign Somali territory, albeit under strict condition requiring approval from Somalia government and compliance with international humanitarian law.

These resolutions caused concerns among states fearing erosion of territorial sovereignty on which UNSC emphasized that these laws were specific to the Somali situation and not setting a precedent in customary international law. The transitional Somali government welcomed these measures, acknowledging its inability to handle piracy alone. However, the actual utilization of these resolutions has been very rare. Military actions against pirates have mostly occurred in international waters.
 
The question of jurisdiction for trial of captured pirates and those seized in Somali territory is a major international legal issue. Piracy has historically been subject to universal jurisdiction according to which any nation can prosecute offenders as long as it involves their acts on the high seas. Universal jurisdiction for piracy has seen limited use in the past but the current surge in piracy off Somalia's coast has increased its applicability.

Generally, nations patrolling the Gulf of Aden have been reluctant to prosecute pirates due to difficulty in their trial and highly expensive arrangements. Many states prefer not to capture pirates or release them without charges. Returning pirates to Somalia for trial is generally dismissed due to the lack of a functioning government in Somalia which raises concerns about fair trials and human rights abuses of those captured.

Some European nations, like France, implement repatriation of pirates to Somalia despite concerns over violating non-refoulement obligations under international human rights law which forbid sending individuals to countries where they might face Inhuman and Degrading Punishment. The legality of transferring pirates to third-party states is a contentious issue under the United Nations Convention on the Law of the Sea (UNCLOS).

According to UNCLOS, states that seized pirate vessels are duty-bound to prosecute the pirates themselves. Its main aim is to prevent the transfer of pirates to other states. The current situation which involves British captured pirates being tried in Kenya raises legal questions about the permissibility of such transfers under international law.

In response to the escalating piracy off Somalia's coast, the international community which is led by the United Nations Security Council has enacted unprecedented measures to combat this threat under Chapter VII of the UN Charter. The Resolution of 1816 and 1851 expanded the scope of naval operations to include Somali territorial waters which highlights a shift from traditional maritime law. Despite persistent efforts, challenges remain regarding the jurisdiction and fair trial of captured pirates to address these challenges.

There have been calls from nations to find new solutions to prosecute pirates, such as establishing an international tribunal or using domestic courts in neighboring countries. Britain has taken the lead by formalizing an agreement with Kenya that had allowed captured pirates to be tried there. The debate over the trial jurisdiction of confiscated pirates underscores the complexities of international law. it demands innovative solutions to address piracy effectively while upholding human rights and legal standards globally