International piracy law

Last updated September 11, 2024

International piracy law is international law that is meant to protect against piracy. Throughout history and legal precedents, pirates have been defined as hostis humani generis, Latin for "the enemy of all mankind".^[1] The United Nations has codified much of the law in the United Nations Convention on the Law of the Sea (UNCLOS), which defines different types of piracy and ways to combat it.

Piracy law as codified in UNCLOS
Harvard Draft Convention on Piracy
Influences
Defining piracy
Piracy on the high seas
Two-ship requirement
Maritime environmental activism
Other measures against piracy
UNSC resolutions
Soft law
Maritime domain awareness
Private security and insurance
Law of kidnap and ransom
References
See also

Piracy threatens maritime security and the legitimate uses of the seas for peaceful purposes^[2] and the freedom of navigation (freedom of the seas, Mare Liberum ).^[3] All ships and countries are free to trade and navigate the oceans, a right which is threatened by piracy.^[4] A 2008 report by the International Maritime Organization found 4,821 incidents of modern piracy and maritime armed robbery in the period 1984 to 2008.^[5] In these incidents, 6 crew were killed, 42 assaulted, 774 held hostage and 38 crew are unaccounted for.^[5]

Piracy law as codified in UNCLOS

UNCLOS codified the laws of piracy in Articles 100 to 110.^[6] Article 108 is not strictly piracy law, but for the suppression of illicit traffic of narcotic drugs at sea.^[6] Article 109 on pirate broadcasting by 'radio transmission' is considered an out-dated,^{[ by whom? ]} or grandfather clause.^[7] The piracy articles of UNCLOS replicate Articles 14 to 21 of the 1958 Geneva Convention on the High Seas.^[8] It has been ratified by 168 states and there are 157 signatories (accepted but not signed).^[9] The treaty is accepted as customary international law.^[10]

The flag state normally has jurisdiction and responsibility for a vessel on the high seas.^[4] The term hostis humani generis (enemy of all mankind) was applied to pirates in the 1927 Lotus case of the Permanent Court of International Justice, the League of Nations equivalent of the International Court of Justice.^[8] As such, there is universal jurisdiction over piracy on the high seas. Pirates are denied protection of the flag state and all states have the right to seize a pirate ship on the high seas and to prosecute in national courts.^[10]

Harvard Draft Convention on Piracy

The 1932 Convention of Piracy was provided as one of the thirteen commentaries presented in the 1930 League of Nations Codification Conference on International Law. It held piracy as not a crime against the law of nations; giving faith to the jurisdiction of individual states to repress piracy.^[11]

Influences

The 1958 Geneva Convention on the High Seas had drawn on the research of the Harvard Draft.^[12] The definition of piracy was adopted from the Geneva Convention unto the UNCLOS definition of Piracy verbatim.^[2] To this day, the Harvard Draft adds to the debate of what constitutes piracy.^[13]

Defining piracy

The 1982 United Nations Convention on the Law of the Sea defines in Article 101 (Definition of Piracy):^[6]

Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

Piracy on the high seas

The 1958 Geneva Convention on the High Seas states that piracy occurs on the high seas.^[10] Article 101(1)(a) of the UNCLOS definition also states that piracy occurs on the high seas.^[6] Referring to Article 58(2) of UNCLOS shows that piracy can also occur in the exclusive economic zone.^[10] Violent acts against ships in the territorial sea of any State cannot be piracy under international law.^[14] Violent acts in the territorial sea are armed robbery under the law of the International Maritime Organization.^[15]

Ships have been captured off the coast of Somalia and crews held for ransom since the 1990s, with armed groups in the territorial sea and the government unable to enforce the law.^[10] Somali pirates attacked ships carrying humanitarian supplies to the Somali population.^[10]^[16]

The United Nations Security Council Resolution 1816 on Piracy in Somalia provided an exception, that piracy could occur in the Territorial Sea of Somalia.^[17] This allowed states to cooperate with the Transitional Federal Government of Somalia in order to suppress piracy.^[17] Resolution 1816 meant that a ship could chase a pirate vessel in a “reverse hot pursuit”, from the high seas into the territorial sea of Somalia.^[18]

Two-ship requirement

The condition in Article 101(a)(i) UNCLOS definition is known as the “two-ship” requirement.^[19] In the 1961 Santa Maria hijacking of a Portuguese passenger ship, the perpetrators were already on board posing as passengers, so there were not two ships.^[20] Their motives were solely political.^[20] Although there was extreme violence this did not meet the UNCLOS piracy definition of motivation ( mens rea ) for “private ends”.^[20]

In the 1985 Achille Lauro hijacking the ship was captured in the Mediterranean by Palestinian Extremists who were already on board.^[19] Although there was violence on board the ship, because there were not 'two ships' this could not be seen as piracy.^[19] After this, the International Maritime Organization developed the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention).^[21] The 1988 SUA Convention and its 2005 Protocol are United Nations treaties.^[21]

Maritime environmental activism

In the 2013 case Institute of Cetacean Research v. Sea Shepherd Conservation Society , a United States district court held that the actions of Sea Shepherd vessels against Japanese whaling vessels fell within the UNCLOS piracy definition of 'private ends'.^[22]

In the 1986 case Castle John v. NV Mabeco, the court^{[ which? ]} ruled that a Greenpeace vessel committed piracy in acts against a Dutch Vessel, which was discharging waste at sea.^[22] The court ruled that Greenpeace motivation to 'alert the public of harmful discharge to the environment' fell within the UNCLOS piracy definition of 'private ends.'^[22]

In the Arctic Sunrise case before the International Tribunal for the Law of the Sea, the Greenpeace ship Arctic Sunrise staged protests in the waters of the Russian Exclusive Economic Zone, centred around the oil platform Prirazlomnoya.^[23] The crew were initially charged with piracy, but the charge was later dropped by Russia.^[23]

Other measures against piracy

UNSC resolutions

The collapse of the Somali State in the 1990s opened the region to illegal, unreported and unregulated fishing (IUU), as well as the unregulated disposal of toxic waste by rich States.^[24] Somalia Pirates claim that they take to the seas in order to protect pillaged local resources, and in response to lost income.^[10] A series of UNSC Resolutions concerned piracy in Somalia. The United Nations Security Council Resolution 1918 adopted in 2010, called on States to establish national piracy laws and to prosecute Somalia pirates.^[25]

Soft law

The Contact Group on Piracy of the Coast of Somalia (CGPCS) brings together States and International organisations, aiming for a holistic response to the root causes of piracy.^[24] The International Maritime Organisation Djibouti Code of Conduct (DCoC) is a soft law approach, where Arab and African States collaborate in maritime security responses to piracy and armed robbery.^[24] The Shared Awareness and Deconfliction Mechanism (SHADE) was set up in 2008 as an informal forum for States and Organisations to collaborate on counter-piracy measures off the Horn of Africa.^[24]

Maritime domain awareness

An integrated understanding of threats at sea has been labelled maritime domain awareness.^[26] Coordination between international naval operations, defensive actions of the shipping industry and agreements such as the CGPCS and the DCoC have contributed to repressing piracy and armed robbery.^[27] Three regional agreements to combat piracy are the DCoC, the Regional Cooperation Agreement on Combatting Piracy and armed Robbery against Ships in Asia (ReCAAP) and The Yaounde Code of Conduct (YCoC).^[27] The regional agreements enabled development of best practices to combat piracy and global transfer of expertise.^[27] The Jeddah Amendment to the DCoC included other illicit maritime activities and is a possible model for integrated maritime security, beyond its regional scope.^[27]

Private security and insurance

Private insurance has been seen as a guarantee of certainty and security, but it also has a moral economy of risk.^[28] For centuries Lloyd's of London has offered marine insurance and underwritten piracy risk.^[28] The nature of the peril of piracy requires specialist underwriting to match the level of risk with the premium.^[28] With ship ransoms of US$3 million per ship, armed security teams offered to transit with ships in heightened risk areas at a cost of US$60,000 for a team of four.^[29] From 2005 Piracy has been managed by the marine war branch of Lloyd's, the Joint War Committee (JWC).^[28] Lloyd's insurance of piracy is a governance mechanism.^[28]

Law of kidnap and ransom

The 1979 Hostages Convention is an international treaty against the taking of hostages.^[30] The 1998 SUA Convention and its 2005 Protocol similarly address acts of terrorism.^[9] The offence of hostage taking is the seizure and detention and threat to kill, injure and detain a hostage.^[30] Under the 1988 SUA Convention it is an offence to seize control of a ship by force and act with violence against a person on the ship.^[30]

These three conventions apply to piracy off Somalia, as there is intention to hold the crew hostage for ransom and to seize a ship violently.^[30] State parties must take offenders into custody for trial or extradition, but this is only allowed in the territorial sea.^[30] Pirates seized in the territorial sea of Somalia can be delivered to Kenya for trial and prosecution under the transfer rules of the SUA Convention.^[30]

Any persons assisting or accomplance to an offence, under the SUA Convention, of seizing a ship can be prosecuted.^[21] The UNCLOS definition of piracy in Article 101 indicates that conspiracy to, or aiding and abetting piracy could be prosecuted.^[6] There are very few cases of prosecution on the grounds of aiding piracy.^[10]

Related Research Articles

Piracy is an act of robbery or criminal violence by ship or boat-borne attackers upon another ship or a coastal area, typically with the goal of stealing cargo and other valuable goods. Those who conduct acts of piracy are called pirates, and vessels used for piracy are called pirate ships. The earliest documented instances of piracy were in the 14th century BC, when the Sea Peoples, a group of ocean raiders, attacked the ships of the Aegean and Mediterranean civilisations. Narrow channels which funnel shipping into predictable routes have long created opportunities for piracy, as well as for privateering and commerce raiding.

Maritime security is an umbrella term informed to classify issues in the maritime domain that are often related to national security, marine environment, economic development, and human security. This includes the world's oceans but also regional seas, territorial waters, rivers and ports, where seas act as a “stage for geopolitical power projection, interstate warfare or militarized disputes, as a source of specific threats such as piracy, or as a connector between states that enables various phenomena from colonialism to globalization”. The theoretical concept of maritime security has evolved from a narrow perspective of national naval power projection towards a buzzword that incorporates many interconnected sub-fields. The definition of the term maritime security varies and while no internationally agreed definition exists, the term has often been used to describe both existing, and new regional and international challenges to the maritime domain. The buzzword character enables international actors to discuss these new challenges without the need to define every potentially contested aspect of it. Maritime security is of increasing concern to the global shipping industry, where there are a wide range of security threats and challenges. Some of the practical issues clustered under the term of maritime security include crimes such as piracy, armed robbery at sea, trafficking of people and illicit goods, illegal fishing or marine pollution. War, warlike activity, maritime terrorism and interstate rivalry are also maritime security concerns.

The Piracy Act 1837 is an Act of the Parliament of the United Kingdom. It abolished the death penalty for most offences of piracy, but created a new offence often known as piracy with violence, which was punishable with death. This offence still exists in the United Kingdom and in Ireland, but is no longer punishable by death in either country.

Maritime Security Regimes are codes and conventions of behavior agreed upon by coastal states to provide a degree of security within territorial waters and on the high seas.

Piracy in the Gulf of Guinea affects a number of countries in West Africa as well as the wider international community. By 2011, it had become an issue of global concern. Pirates in the Gulf of Guinea are often part of heavily armed criminal enterprises, who employ violent methods to steal oil cargo. In 2012, the International Maritime Bureau (IMB), Oceans Beyond Piracy and the Maritime Piracy Humanitarian Response Program reported that the number of vessels attacks by West African pirates had reached a world high, with 966 seafarers attacked during the year. According to the Control Risks Group, pirate attacks in the Gulf of Guinea had by mid-November 2013 maintained a steady level of around 100 attempted hijackings in the year, a close second behind the Strait of Malacca in Southeast Asia.

Piracy off the coast of Somalia occurs in the Gulf of Aden, Guardafui Channel, and Somali Sea, in Somali territorial waters and other surrounding places and has a long troubled history with different perspectives from different communities. It was initially a threat to international fishing vessels during the early 2000s, only to rapidly escalate and expand to international shipping during the War in Somalia (2006–2009).

United Nations Security Council Resolution 1918, adopted unanimously on April 27, 2010, after recalling resolutions 1814 (2008), 1816 (2008), 1838 (2008), 1844 (2008), 1846 (2008), 1851 (2008) and 1897 (2008) on Somalia, the Council called on countries to criminalise piracy within their national laws.

<span class="mw-page-title-main">United Nations Security Council Resolution 1950</span> United Nations resolution adopted in 2010

United Nations Security Council Resolution 1950, adopted unanimously on November 23, 2010, after recalling previous resolutions on the situation in Somalia, including resolutions 1814 (2008), 1816 (2008), 1838 (2008), 1844 (2008), 1846 (2008), 1851 (2008), 1897 (2009) and 1918 (2010); the Council re-authorised states to intervene in acts of piracy by Somali pirates at sea for a further period of twelve months.

Piracy in the 21st century has taken place in a number of waters around the world, including the Gulf of Guinea, Strait of Malacca, Sulu and Celebes Seas, Indian Ocean, and Falcon Lake.

The Sulu and Celebes Seas, a semi-enclosed sea area and porous region that covers an area of space around 1 million square kilometres, have been subject to illegal maritime activities since the pre-colonial era and continue to pose a maritime security threat to bordering nations up to this day. While piracy has long been identified as an ubiquitous challenge, being historically interwoven with the region, recent incidents also include other types of maritime crimes such as kidnapping and the trafficking of humans, arms and drugs. Attacks mostly classify as 'armed robbery against ships' according to the United Nations Convention on the Law of the Sea as they occur in maritime zones that lie under the sovereignty of a coastal state. Incidents in the Sulu and Celebes Seas specifically involve the abduction of crew members. Since March 2016, the Information Sharing Centre (ISC) of the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) reports a total of 86 abductions, leading to the issue of a warning for ships transpassing the area.

United Nations Security Council Resolution 1897 was unanimously adopted on 30 November 2009.

United Nations Security Council Resolution 1816 was unanimously adopted on 2 June 2008.

United Nations Security Council Resolution 1846 was unanimously adopted on 2 December 2008.

In keeping with the Paris Principles definition of a child soldier, the Roméo Dallaire Child Soldiers Initiative defines a child pirate as any person below 18 years of age who is or who has been recruited or used by a pirate gang in any capacity, including children – boys and/or girls – used as gunmen in boarding parties, hostage guards, negotiators, ship captains, messengers, spies or for sexual purposes, whether at sea or on land. It does not only refer to a child who is taking or has taken a direct part in kinetic criminal operations.

Maritime terrorism in Southeast Asia refers to acts of extreme maritime violence committed with political motives within the Southeast Asian region. Despite seaborne terrorist attacks accounting for only 2% of all international terrorist incidents from 1978 to 2008, according to RAND's Terrorism Database, Southeast Asia has proven a hotbed of maritime terrorism. Due to the high frequency of pirates in the region, many Southeast Asian-based terrorist groups have appropriated piratical tactics in carrying out their violent political struggles. In 2003, the International Maritime Bureau reported that out of the 445 actual or attempted piratical attacks on merchant vessels, 189 occurred in Southeast Asia, which was more cases than either Africa or Latin America, with 121 attacks occurring in Indonesian waters and 35 attacks occurring in Malaysian and Singaporean waters. In 2004, while the number of actual and attempted attacks fell to 325, Southeast Asia remained at the top of the regional rankings, with 93 incidents occurring in Indonesian waters. Between 2014 and 2018, 242 attacks occurred in Southeast Asia, with the majority occurring in Indonesian waters. The most popular weapons of choice among Southeast Asian maritime terrorists have been explosive devices and firearms, which were used in roughly 60% of maritime attacks in the region.

A Private Maritime Security Company (PMSC) is a form of Private Military Company that offers services in the maritime sector.

As a practice of piracy, petro-piracy, also sometimes called oil piracy or petrol piracy, is defined as “illegal taking of oil after vessel hijacks, which are sometimes executed with the use of motorships” with huge potential financial rewards. Petro-piracy is mostly a practice that is connected to and originates from piracy in the Gulf of Guinea, but examples of petro-piracy outside of the Gulf of Guinea is not uncommon. At least since 2008, the Gulf of Guinea has been home to pirates practicing petro-piracy by targeting the region's extensive oil industry. Piracy in the Gulf of Guinea has risen in the last years to become the hot spot of piracy globally with 76 actual and attempted attacks, according to the International Maritime Bureau (IMB). Most of these attacks in the Gulf of Guinea take place in inland or territorial waters, but recently pirates have been proven to venture further out to sea, e.g. crew members were kidnapped from the tanker David B. 220 nautical miles outside of Benin. Pirates most often targets vessels carrying oil products and kidnappings of crew for ransom. IMB reports that countries in the Gulf of Guinea, Angola, Benin, Cameroon, Equatorial Guinea, Ghana, Guinea, Ivory Coast, Togo, Congo, and, especially, Nigeria, have experienced petro-piracy and kidnappings of crew as the most common trends of piracy attacks in the Gulf of Guinea.

Piracy kidnappings occur during piracy, when people are kidnapped by pirates or taken hostage. Article 1 of the United Nations International Convention against the Taking of Hostages defines a hostage-taker as "any person who seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third party namely, a State, an international intergovernmental organization, a natural or Juridical person, or a group of people, to do or abstain from doing any act as an explicit or implicit condition tor the release of the hostage commits the offense of taking of hostages ("hostage-taking") within the meaning of this convention." Kidnappers often try to obtain the largest financial reward possible in exchange for hostages, but piracy kidnappings can also be politically motivated.

Frequent incidents of piracy and armed robbery in the Singapore Strait have led to the area being labelled as an area of concern by the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (RECAAP). The Singapore Strait is located south of Singapore, south-east of Malaysia and north of the Indonesian Riau Islands. The Singapore Strait is roughly 113 km long with an average width of 19 km. The Singapore Strait was the location of 65% of all incidents of piracy and armed robbery which occurred in Asia in 2022, marking a seven year high in recorded incidents of piracy and armed robbery in the area.

2022 in piracy resulted in 115 reports of maritime piracy and armed robbery against ships to the International Maritime Bureau. 288 acts of global piracy and robbery were recorded by the MICA Centre. Piracy had substantially increased in the Gulf of Guinea; the year began with five incidents each month, through March, in the Gulf, where acts of piracy had become heightened during 2015 through 2020, while, overall, piracy incidents declined globally.

References

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↑ This was the 2009 Maersk Alabama hijacking, which was the basis for the film Captain Phillips . A Danish thriller film about Somali piracy is the 2012 A Hijacking . Another movie is the 2017 The Pirates of Somalia .
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