Maritime Piracy and International Law

By Professor Donald R. Rothwell
Posted October 2009

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2008 saw an unprecedented upsurge in piracy at sea resulting in significant
international efforts to suppress pirate attacks. The scale and frequency of the
pirate incidents throughout the past year combined to create contemporary
challenges for international shipping which have probably not experienced such
significant threats to their operations since the disruption resulting from the 1956
closure of the Suez Canal. The events also called into account the international
legal regime that deals with piracy and – somewhat inevitably in the current
international security climate – drew comparisons with international terrorism.

During 2008, a gradual upsurge in pirate attacks occurring off the east African
coast was observed, principally in the Gulf of Aden but also in the Indian Ocean
off the coasts of Kenya and Somalia. More than 60 ships were seized by pirates
off the Somali coast, and these attacks have continued into 2009.

Global attention was focused on these events in November 2008 with the seizure
of the crude carrier Sirius Star some 450 nautical miles southeast of Mombassa,
Kenya. An estimated US$3 million cash ransom was delivered to the Somali
pirates on board the vessel on 9 January 2009, many of whom later perished –
along with much of the ransom money – en route to shore after abandoning ship.

Whilst recent events have thrown the spotlight on Indian Ocean piracy this is not
a recent phenomenon. In response to an upsurge in pirate activity the
International Maritime Bureau in 1992 established a Piracy Reporting Centre
which since that time has been steadily tracking pirate activity around the world.
Until recently, much of the focus has been upon Southeast Asian waters,
especially in the Straits of Malacca and within the Indonesian Archipelago.

The United Nations Security Council responded proactively throughout 2008,
adopting Resolutions that for the first time conferred upon maritime powers the
capacity to enter Somali waters to conduct anti-piracy operations and to facilitate
the prosecution of suspected pirates.

This unprecedented response by the UN has called into account the adequacy of
firstly, the legal regime dealing with piracy and secondly, that of contemporary
international efforts to suppress pirate attacks.

Piracy in International Law
Piracy has long held a place in international law. As contemporary international
trade routes developed throughout the Seventeenth century, slow moving
undefended ships were an easy target for pirates set on looting and plunder.
Throughout the Nineteenth century a legal regime developed in response to the
threat of piracy and customary international law evolved which made piracy in
effect the first universal crime over which all states had the capacity to arrest and
prosecute.

These developments in custom found their way into the modern law of the sea as
it developed throughout the Twentieth century. The 1958 Geneva Convention on
the High Seas, and then the 1982 United Nations Convention on the Law of the
Sea (UNCLOS) (“the Convention”) both outlined an international regime for the
repression of piracy and effectively recognised universal jurisdiction on the part of
all states to suppress pirate acts. The Convention – which now has 157 State
parties – is generally considered to be reflective of customary international law.
Article 101 of the Convention defines an act of ship-based piracy as consisting of
acts of violence or detention, or an act of depredation, committed for private ends
by the crew of a private ship directed against another ship on the high seas, or
outside the jurisdiction of any State. Piracy also extends to the operation of a
pirate ship which is a ship used by persons for the purposes of committing pirate
acts. This general definition of piracy is consistent with the common expression
that a pirate is hostis humani generis: an enemy of all mankind. However, by
limiting the definition to acts committed for ‘private ends’ any actions taken for
political motives are excluded.

Thus the UNCLOS makes it clear that high seas piracy is illegal and that all states
have a right to seize and prosecute those responsible for pirate acts on the high
seas.

A crucial element of the UNCLOS definition of piracy is that piracy is an act which
occurs on the high seas, which will also include the adjoining exclusive economic
zone which extends from the edge of the territorial sea to 200 nautical miles.
When piracy was first subject to regulation under the Law of the Sea, nearly all of
the world’s oceans were considered high seas. As such, a century ago nearly all
violent acts at sea committed for private ends would have been characterised as
piracy. However, under the new law of the sea as reflected in the UNCLOS, vast
tracts of the world’s oceans have now fallen under the sovereignty and
jurisdiction of coastal States. Under the UNCLOS, an act of piracy can therefore
only occur beyond the limits of the territorial sea, which in most cases extends 12
nautical miles from the coastline.

One consequence of these developments is that the modern law on piracy has
been significantly constrained so as to effectively fall into two categories: piracy
on the high seas beyond the 12 nautical mile limit of coastal State jurisdiction and
sovereignty; and pirate-type acts which occur within territorial waters, including
the waters of archipelagic States such as Indonesia.

To that end, the international law on piracy does not apply to incidents occurring
within a coastal state’s adjacent waters. The effect of this is that predominantly
it has been left to those countries that have been faced with offshore pirate-type
attacks and incidents of sea robbery within their jurisdiction to utilise their own
criminal justice systems to police and patrol their waters and ultimately enforce
their criminal laws through prosecutions. As a result, a somewhat uneven legal
regime has developed which is dependent upon the capability of and consistency
in the fulfilment of these functions by directly affected States.

The international community retains its rights of regulation and enforcement of
‘traditional’ acts of piracy on the high seas, rare as they may be given the
developments in the law of the sea and maritime crimes: very little true high seas
piracy actually takes place. The vast majority of global pirate attacks take place
within relatively enclosed waters within the territorial sea of the adjacent coastal
State, and therefore within the responsibility of the relevant coastal State.
However, not all States have an equal capacity to ensure maritime security within
their waters and this is highlighted by the current situation in Somalia.

Contemporary Anti-Piracy efforts and the United Nations Response
Somalia has been a matter of ongoing concern for the Security Council since the
early 1990s. The UN has been working with the Transitional Federal Government
(TFG) in the failed State in order to bring about a restoration of law and order not
only within Somalia itself but also in relation to its territorial waters.

Mindful of the growing incidence of pirate attacks in waters off the coast of
Somalia since 2005, in June 2008 the Security Council adopted Resolution 1816
which directly sought to address the threat posed by Somali piracy. Recognising
the incapacity of the TFG to interdict pirates and secure offshore shipping lanes,
and that pirate attacks were a threat to international peace and security in the
region, the Security Council authorised States acting in cooperation with the TFG
to enter the territorial waters of Somalia to undertake enforcement actions
against piracy and armed robbery.

In taking this unprecedented action, the Security Council was recognising the
reality of Somalia’s inability to provide maritime security within its own waters
and the need for the international community to effectively undertake ‘nationaltype’
policing and enforcement operations within Somali waters. Resolution 1816
was effectively renewed on 2 December 2008 with the adoption of Resolution
1846 which extended the international community’s mandate for a further 12
months.

In response to these developments, the European Union launched Operation
Atlanta in December 2008 to combat piracy off the coast of Somalia, with NATO
handing over its UN-requested counter-piracy operation named ‘Allied Provider’ to
the EU on 14 December 2008. Other States offering support include Russia,
Malaysia, India, Iran, China, Turkey, South Korea, and Singapore.

Another significant step was taken by the UN Security Council with the adoption
of Resolution 1851 on 16 December 2008 which authorises ‘shiprider’ agreements
to facilitate more effective law enforcement capability. The Resolution also
permits the international community to operate not only within Somali waters but
also within the land territory of Somalia which is used to plan, facilitate or
undertake acts of piracy and armed robbery at sea.

Following Resolution 1851, then US Secretary of State Condoleezza Rice announced
that the US was creating a ‘Contact Group on Somali piracy’ so as toestablish a
mechanism for the sharing of intelligence, coordination of activities, and co-operation
with partners in the shipping and insurance industries.

These initiatives reflect the growing body of opinion that piracy is intrinsically
linked to the economic and political crisis in Somalia. Albeit limited to the
particular situation in Somalia, these measures also represent some of the most
extensive maritime security powers conferred upon States to deal with piracy in
the modern Law of the Sea era.

Legal Challenges
Despite significant, unprecedented moves by the international community to
address the growing threat posed by maritime piracy, considerable legal
challenges remain. It is clear that the current legal regime is not comprehensive
with respect to the enforcement of either international law or domestic criminal
law against those responsible for pirate attacks.

The jurisdiction of a State over acts of piracy is based upon nationality or
territoriality. That is, there must be a genuine link between the State and the
ship, or between the State and the waters on which the offences take place.
Unless Somali courts are willing and able to conduct prosecutions, the
responsibility for enforcement will predominantly fall upon those members of the
international community whose ships are currently patrolling off the coast of
Somalia. The ability of a State with a ship in Somali waters to apply and enforce
its own laws with respect to piracy and sea robbery will depend on whether the
pirate ship or the pirates have the nationality of that State, or the degree to
which the national law of the enforcing state makes piracy a universal crime
which can be subject to arrest and prosecution anywhere throughout the world.

Resolution 1851 reiterated that the 1988 Convention for the Suppression of
Unlawful Acts against the Safety of Navigation (“the SUA Convention”) provides
for parties to create criminal offences, establish jurisdiction, and accept into their
custody those persons responsible for piracy. The SUA Convention was a
response to the highjacking of the Italian cruise ship, Achille Lauro, in the
Mediterranean which resulted in the death of one passenger.

Whilst the SUA Convention makes it an offence if a person “seizes or exercises
control over a ship by threat or use of force thereof or any other form of
intimidation”, enforcement relies upon the traditional jurisdictional bases of
nationality and territoriality.

A 2005 Protocol has substantially expanded the scope of the SUA Convention to
include acts of maritime terrorism, including what may be termed ‘political
piracy’. However, the focus of the adjustments has not been acts of ‘common’
piracy or robbery at sea and there remain important jurisdictional loopholes with
respect to the pursuit of any criminal charges where non-nationals or non-state
vessels are involved.

In this regard, some of the international legal challenges that have confronted the
global efforts to bring terrorists to justice are not dissimilar. Both areas have
raised issues concerning proscriptive and enforcement jurisdiction, and the
political will on the part of States to take such action. That the SUA Convention
arose out of a maritime terrorist act, and the 2005 SUA Protocol was a direct
consequence of efforts to strengthen the law in this area as a result of the 2001
terrorists attacks upon Washington and New York, highlights the initiatives which
have been undertaken in this area, but importantly they relate to only certain
types of violent incidents at sea. Piracy, conducted without political motive, will
not in most instances meet the SUA Convention definitions.

Whilst the intervention of the Security Council through its various Resolutions has
gone some way to resolve these jurisdictional loopholes, there remain gaps which
are compounded by a lack of political will on the part of some members of the
international community to engage in law enforcement. One particular gap is that
the Security Council’s responses only deal with the situation in Somalia and do
not extend to pirate attacks that may take place off adjacent coasts such as
Kenya, or in other parts of the world.

Possible Legal Solutions
What then are the possible legal solutions? First, a significant restoration of law,
order and governance in Somalia is needed with a view to eradicating those
conditions which have conspired to allow piracy to flourish. To that end, the
ability of the international community via a UN mandate to effectively provide
maritime security along the Somali coast will go some way to addressing the
current threat.

Second, a more comprehensive legal regime dealing with threats to maritime
security is essential. The regime would need to balance the recognition of
universal jurisdiction on the part of all States to deal with persons responsible for
such acts against the inherent right of State sovereignty. The current situation in
Somalia is unique and this goes some way towards explaining how the UN has
been able to go so far with its recent initiatives.

Nevertheless, all States need to have the capacity under international law to
prosecute persons who perpetrate acts of violence against foreign ships in all
settings, except within the internal waters of other States. Counterbalanced
against this however is that while States may be prepared to offer their military
support to ensure the safety and security of shipping lanes, the reality is that – as
has occurred in Somalia – some States will be reluctant to seek to prosecute the
offenders either because their legal regimes are inadequate or for political
considerations.

Some new initiatives are being explored to address these issues. On January 16
the United States and United Kingdom signed agreements with Kenya allowing for
the transfer of suspected pirates to Kenya for trial. These arrangements are
designed to facilitate prompt detention and transfer of suspected pirates to the
Kenyan criminal justice system. In mid-February, US naval forces in the Gulf of
Aden detained more than a dozen suspected pirates who will in effect become the
test case for the effectiveness of these new arrangements.

Third, these events raise the question of whether the time is now ripe to consider
the creation of a specialist international criminal tribunal to deal with pirates.
With the Security Council recognising the threat to international peace and
security posed by piracy and sea robbery, and being prepared to respond to the
challenges by utilising its Chapter VII powers, it becomes a short step for the
Council to establish an ad hoc ‘International Piracy Tribunal’. Such a Tribunal
would be able to prosecute individuals responsible for acts of piracy under
UNCLOS or crimes against international shipping as envisaged under the SUA
Convention. All States would have a mandate to ensure not only the safety and
security of the waters adjacent to Somalia but also to detain, arrest and extradite
suspected pirates for committal on trial before the Tribunal.

Such an initiative would resolve the particular difficulties encountered in law
enforcement in Somalia and would provide the international community with a
better option than failing to prosecute suspected pirates. Unlike the ad hoc
tribunals for Rwanda or Yugoslavia, the International Piracy Tribunal would be
relatively inexpensive to operate. Prosecutions would also be less complex as the
evidence required to support a conviction would be similar to that of domestic
criminal trials unlike that which applies in complex international criminal trials in
cases such as war crimes. Accordingly, the trials could be conducted relatively
speedily.

This would only be a temporary solution and whether there is a need for a
permanent International Piracy Tribunal, or whether the Rome Statute of the
International Criminal Court could be modified to clearly confer piracy jurisdiction
would require further detailed legal and political consideration.

Conclusions
The latter part of the Twentieth century saw the international crime of piracy
overshadowed by the growing attention accorded by the international community
to the problem of impunity in relation to genocide and crimes against humanity.
Through a combination of circumstances, especially arising as a result of the
collapse of effective governance and policing mechanisms within some coastal
States, piracy has been allowed to thrive in certain situations.

To date, the response of the international community to this threat has been
rather haphazard. A more coordinated approach is warranted, with a view to the
resolution of the legal issues identified herein. To this end, the International Law
Commission may see fit to revisit the definition of piracy. However, there are
other options open to both individual States and the international community.

Recent events have made it clear that piracy and threats to maritime security can
no longer be ignored. The development of a robust and universally applicable
legal regime to deal with the problem ought to form an essential part of any
effective response.

 

Donald R. Rothwell is Professor of International Law at the College of Law,
Australian National University, Canberra, Australia, and a specialist in the Law of
the Sea.
* This article originally appeared on the Crimes of War Project’s website on
February 24th 2009 (www.crimesofwar.org)

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