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Rogue Wave: Modern Maritime Piracy and International Law
Osvaldo PeƧanha Caninas, 2/1/2011

Piracy has long been shrouded by an atmosphere of misunderstanding, myth and misplaced glamor, in part because of Hollywood films which depict piracy in a romanticized fashion. Whether watching Captain Jack Sparrow´s adventures or Long John Silver´s,[1] one does not realize that the activity is alive and well in our own time. Piracy is usually associated with sailing ships and adventure stories. However, in recent years, the number of attacks has grown and this has drawn the attention of media and governments[2]. Although we use the same term, piracy is an activity that has evolved with its own geographical patterns, objectives and motivations; hence it is now almost an entirely different activity from what it used to be in the past.

This paper is divided in two sections. The first one explores the definition of the crime in the UN Convention on the Law of the Sea. In this first section, I try to show that there are some important issues that are not covered by any of the conventions dealing with piracy, especially the jurisdiction over the pirate. The second section deals with maritime issues that are particularly overlooked due to their technical nature; in this section, I observe that some maritime issues, like the automatic identification system, are particularly overlooked due to their technical nature, notwithstanding their utmost importance in fighting piracy.

Definitional Shortcomings

Piracy has always been present in the international system[3] and still has a global reach. Let us assume for now that piracy is perpetrated by attacks on ships for private ends in order to capture cargo, the ship or both. This preliminary definition allows us to establish a starting point from which we can explore the definition more thoroughly.

The historical experience shows that the perpetration of crimes at sea with a set structure on land is not new[4] let alone an activity confined to the Barbary States.[5] The fact is that history is a product of circumstance and any attempt to draw lessons and courses of action from it are misleading let alone a naiveté.

Born under the auspices of the state, piracy evolved to private ends however; some say,[6] it is connected to maritime terrorism. Piracy is the oldest and probably the only crime for which there is a recognized universal jurisdiction in customary international law.[7] Article 101 of the United Nations Conference on the Law of the Sea (UNCLOS 1982), also known as Jamaica Convention[8] defines piracy as:

(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) (emphasis added).

According to this definition, piracy must follow three criteria: object, place and purpose. First the object of the act must be a ship, aircraft, crew or passengers of these vehicles. Second it must happen “in a place outside the jurisdiction of any State. Hence all the acts committed in internal waters,[9] territorial sea[10] and exclusive economic zone (EEZ)[11] would not be considered piracy per se.

Object and place are both objective criteria, however the third one—purpose—is subjective by its own nature and open to different interpretations. For example, it is not yet settled in international law if the “animus furandi, i.e. an intent to rob, was a necessary element or whether acts by insurgents seeking to overthrow their government should be exempt”[12]. Courts in the United States of America and the United Kingdom took the position that any unauthorized act of violence committed on the high seas is piracy[13] and that actual robbery is not an essential element.

Regarding a piratical attack on Hong Kong, in 1933 the Judicial Committee of the Privy Council[14] was asked whether actual robbery was an essential element of the crime of piracy jure gentium[15] or if a frustrated attempt was sufficient to be considered piracy as such. Actually, two Chinese junks attacked another Chinese vessel on the high seas. A British warship captured the attacker and brought it to trial on Hong Kong. They were indicted in Hong Kong for the crime of piracy and found guilty by the jury subject to a question of law: “Whether an accused person may be convicted of piracy in circumstances where no robbery has occurred.” However the Appeal Court of Hong Kong concluded that robbery was a necessary ingredient of the offence of piracy and the accused were acquitted. The question of law was then referred to the Privy Council as the court of final appeal for the UK. The Council refrained from offering a definition of piracy although discussing at length several definitions eventually affirming that “actual robbery is not an essential element in the crime of piracy jure gentium.”[16] This case shows that although piracy is a crime in international law, most of the cases, if not all, would be judged by national courts that can have a different view of the crime and even a penalty as serious as death penalty. The final decision of the Privy Council clearly exposed the fine irony of the british judges.

When ... armed men sailing the seas on board a vessel, without any commission from any State, could attack and kill everybody on board another vessel, sailing under a national flag, without committing the crime of piracy unless they stole ... their Lordships are almost tempted to say that a little common sense is a valuable quality in the interpretation of international Law[17].

Despite the problems surrounding an accepted definition of piracy, the International Maritime Organization (IMO)[18] uses, for practical purposes a broad definition that includes, besides the acts of piracy encompassed by article 101, those armed robbery attacks in internal waters, territorial sea and exclusive economic zone (EEZ) for statistical purposes.

Armed robbery is defined[19] by IMO as “any unlawful act of violence or detention or any act of depredation, or threat thereof, other than an act of ‘piracy’, directed against a ship or against persons or property on board such ship, within a State’s jurisdiction over such offences”. Thus IMO refrains from specifying a comprehensive definition which could include too many attacks and render the analysis useless. On the one hand if piracy is any crime committed at sea there would no point in defining it, every piracy attack would be a common crime. On the other hand having a comprehensive definition draws attention of the media to an increasing number of reported (or attempted) attacks under this definition[20].

However, extending the definition of piracy to territorial waters has some problems. The first obstacle is the inviolability of national sovereignty over crimes committed in the territorial sea and internal waters (absolute sovereignty) and in the EEZ (relative). A broad definition would certainly not be accepted by the most developed maritime countries whose navies would fear of searching for pirate vessels in their waters. Hence, the declaration of Britain is paradigmatic.

It would be unacceptable to the UK for the navy of a foreign state to be able to claim jurisdiction over an act of maritime armed robbery within the UK's territorial waters. This would be the unfortunate consequence of wrapping an act of piracy and an act of maritime armed robbery into one definition (emphasis added)[21].

It is worth noting that the immunity of ships in high seas (especially warships and other government ships operated for non-commercial purposes[22]) is “the legal foundation for the global mobility of U. S. forces.”[23]

The testimony of the then Legal Adviser, U.S. State Department, William Howard Taft IV, is clear about the implications to the U.S. for not acceding to UNCLOS[24]:

Joining the Convention will advance the interests of the U.S. military. As the world’s leading maritime power, the United States benefits more than any other nation from the navigational provisions of the Convention. … Beyond those affirmative reasons for joining the Convention, there are downside risks of not acceding to the Convention. U.S. mobility and access have been preserved and enjoyed over the past twenty years largely due to the Convention’s stable, widely accepted legal framework. It would be risky to assume that it is possible to preserve indefinitely the stable situation that the United States currently enjoys. Customary international law may be changed by the practice of States over time and therefore does not offer the future stability that comes with being a party to the Convention (emphasis added).[25]

We tend to believe that although the United States claims to be very interested in defining the crime of piracy, it is not in its best interest to have IMO´s inclusive definition.

However we do believe that the crime localization is not important and should not be part of the definition, because UNCLOS has already established the absolute sovereignty in territorial waters and this change would not alter this. The fact is that most of the municipal laws are not particularly concerned with the place of a crime. What is important for the crime are the status of the perpetrator and motive and how it was committed. We do not believe that by changing the concept there would be navies in hot pursuit of pirates in territorial waters. The true nature of an act of piracy is not affected by the place in which the crime is committed. A murder for example does not change its very nature depending on where it took place.

Piracy and Political Motivation

It is not the purpose of this article to prove if maritime piracy is terrorism but it is interesting to note that applying the UNCLOS legislation in some cases was very problematic. The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, known as SUA Convention[26] is another UN document that is regarded as framework to deal with some piracy incidents. This convention was the result of an attack on board the Achille Lauro, an Italian flag cruiser hijacked on its way from Alexandria to Port Said in October 1985. The hijackers were members of the Palestine Liberation Front (PLF), a faction of the Palestine Liberation Organization (PLO) and threatened to kill the passengers unless Israel released 50 Palestinian prisoners. The following afternoon, after not having their demands met, they shot Leon Klinghoffer, an American Jew, and threw his body and wheelchair overboard.[27] The United States considered the seizure as piracy, a controversial position. Soon after the incident, in November 1986, IMO created an ad hoc preparatory committee for the drafting of a Convention for the Suppression of Unlawful Acts Against The Safety of Maritime Navigation.

The main purpose of SUA Convention is to ensure that appropriate actions are taken against unlawful acts against ships, which include the seizure of ships by force, acts of violence against persons on board ships, and the placing of devices on board a ship which are likely to destroy or damage it. In spite of the obligation of the governments to extradite or prosecute alleged offenders, this is far from an easy task. SUA convention tried to bridge the gap provided by incidents like the Achille Lauro where it became problematic to prove the motivation for “private ends”, part of the piracy definition.

SUA convention deals with a crime that is not thoroughly defined in international law—maritime terrorism—let alone in national law codes. On the one hand piracy is a crime that, along with slavery and genocide, has been treated as jure gentium (universal jurisdiction). On the other hand, the crimes defined by SUA convention have a controversial treatment in national legislation which is a source of confusion when the occasion arises to prosecute offenders.[28]

SUA has been the main document used to tackle with piracy and maritime terrorism. However the 2005 protocol which extends the definition of the offense and establishes provisions for boarding and extraditions is yet to be ratified by most of the states party to the 1988 original text.[29]

Maritime terrorism is not our immediate concern in this article and will be dealt with in a future article. For the time being it is enough to say that maritime terrorism does not equal piracy, especially due to the absence of financial motivations[30]. The dispute over a definition is just part of the problem, but when it comes to the actions taken to tackle maritime piracy a whole new group of concerns arise. It is important to consider that, as mentioned before, the death sentence which might be inflicted on a case could have human rights repercussions. The Royal Navy has been especially keen on repressing piracy in Somalia and the Caribbean. So, recently “The Foreign Commonwealth Office (FCO) has advised that pirates sent back to Somalia could have their human rights breached because, under Islamic law, they face beheading for murder or having a hand chopped off for theft.”[31]

Hence the accused could, in theory, claim UK asylum. A Foreign Office spokesman held that: “There are issues about human rights and what might happen in these circumstances. The main thing is to ensure any incident is resolved peacefully.” The FCO advice was heavily criticized by Julian Brazier MP, the Conservative shipping spokesman, who said:

These people commit horrendous offences. The solution is not to turn a blind eye but to turn them over to the local authorities. The convention on human rights quite rightly doesn’t cover the high seas. It’s a pathetic indictment of what our legal system has come to.[32]

The fear of the consequences of a massive asylum petitions probably led the United States and European Union to issue an understanding with a third party, in this case Kenya. Hence on 2 June 2008, the United Nations Security Council (UNSC) adopted Resolution 1816 (2008) calling upon all States to cooperate in determining jurisdiction, and in the investigation and prosecution of persons responsible for acts of piracy and armed robbery off the coast of Somalia. On 10 November 2008, the Council adopted Joint Action 2008/851/CFSP on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Operation "Atalanta").

Eventually, Joint Action 2008/851/CFSP provides that persons having committed, or suspected of having committed acts of piracy or armed robbery in Somali territorial waters, who are arrested and detained, with a view to their prosecution, and property used to carry out such acts, may be transferred to a third State which wishes to exercise its jurisdiction over the aforementioned persons and property, provided that the conditions for the transfer have been agreed with that third State in a manner consistent with relevant international law, notably international law on human rights, in order to guarantee in particular that no one shall be subjected to the death penalty, to torture or to any cruel, inhuman or degrading treatment.

Finally, in accordance with article 24 of the Treaty of the European Union, an Exchange of Letters[33] was negotiated between the European Union and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy and detained by the European Union-led naval force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya and for their treatment after such transfer.

It is interesting to note that the Understanding demands:

full respect of United Nations Security Council Resolutions[34], the 1982 United Nations Convention on the Law of the Sea (UNCLOS) (in particular Articles 100 to 107) and International Human Rights Law, including the 1966 International Covenant on Civil and political Rights, and the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (emphasis added).[35]

The transfers could not be accomplished without an agreement. The UK for example is clear about the government main concern:

These persons cannot be transferred to a third State, including Somalia, if the conditions of transfer have not been agreed with the third State in conformity with the applicable international law, notably international human rights law, in order to guarantee that no one is submitted to the death penalty, torture or any other cruel, inhuman or degrading treatment.[36].

It is clear that the agreement with Kenya was done out of fears of pirates claiming asylum as we can see from the answer given by Bob Ainsworth, UK´s Secretary of State for Defence, in The House of Commons Daily Hansard Debates:

We have no intention of providing a taxi service for asylum seekers through the Royal Navy. We have received the co-operation of countries in the area—Kenya, in particular, as I have said—in bringing these people to justice.[37].

Despite the fear of asylum which the pirates could claim, the Secretary of State for Justice is sure (albeit the FCO does not seem to agree) not as that this could not happen. In a debate in the House of Commons during the debate on the Queen´s speech he held that

 

The hon. and learned Gentleman suggested that our Royal Navy officers might be impeded in arresting people committing piracy on the high seas because such alleged pirates could apply for asylum. People can apply for anything they want, but they would not be given asylum. Article 1F of the 1951 refugee convention states that it does not apply to a person “with respect to whom there are serious reasons for considering that ... he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee. There is no question about the matter. Pirates could not conceivably have an application for asylum entertained.”[38]

 

The United Kingdom is not alone in setting up agreements with Kenya. The United States has recently signed a Memorandum of Understanding in a similar way with Kenya. Stephen D. Mull, Acting Assistant Secretary of State for Political Military Affairs, U.S. Department of State expressed his concerns saying that

A big problem, as we can talk about later, is figuring out what to do with the pirates once we apprehend them. And so we have worked to secure an agreement with Kenya that Kenya will gladly take the pirates that we apprehend and prosecute them. We also have a number of other discussions going on with other states in the region to do the same thing. It is partly funny, but it also illustrates that, for many people, if you arrest them and then take them into custody, there may be national laws that prevent their return if they are found not guilty. They will say that they face persecution or terrible living conditions in Somalia, they would like asylum. Or they will just remain there in the country and then become a problem for that particular nation (emphasis added).[39]

Eventually, the United States government has handed over 52 pirates to Kenya which are still awaiting trial[40] (as of 30 April, 2009).

Fighting Piracy

Just like the “good old days”?

Some analysts think that piracy is just an old problem which deserves the same old answers. Some time ago, the Wall Street Journal defined piracy as “part of a broad challenge to civilization and international order.”[41] Describing the recent action of the US Navy against pirates that kidnapped an American citizen aboard a ship (Maersk Alabama, U.S. flag) The National Review stated that

It was, in short, an object lesson in how civilizations can and should deal with their barbarian enemies. … Almost as much should be said about the rescue of four hostages by French Navy commandos three days earlier off the same Somali coast. Two pirates were killed by the naval commandos and three are now in French custody. … five pirates are facing justice either divine or Parisian; and a civilized power has shown that it can defeat piracy with very little effort beyond that of will (emphasis added).[42]

The military and violent approach has a counterpoint in some circles that advocate a “stay away from them” attitude as this article in the New York Times implies when it says that

any effort to wipe out Somali pirate dens like Xarardheere or Eyl immediately conjures up the ghost of “Black Hawk Down,” the episode in 1993 when clan militiamen in flip-flops killed 18 American soldiers. Until America can get over that, and until the world can put Somalia together as a nation, another solution suggests itself: just steer clear — way clear, like 500 miles plus — of Somalia’s seas.[43]

The modern maritime piracy attacks were referred to by news analysts as the “barbary analogy”[44]. New commentators explored this analogy drawing a parallel between the Mediterranean pirates of the nineteenth century North Africa and the Somali pirates responsible for the attacks of the twenty-first century. Right after the attacks of 9/11 this analogy was taken even further to encompass the Islamist militants as “terrorists by another name.”[45]

Despite the differences in motivation this rather bizarre analogy had a wide acceptance especially in conservative circles. The myth of “taking lessons from history” says that if the action deemed necessary in the past was successful, it might be replicated with the same outcomes. Max Boot, Senior Fellow for National Security Studies at the Council on Foreign Relations, believes that

The odds that Somali piracy will disappear without a robust response from maritime nations are equally remote. Even if bringing law and order to Somalia is beyond the will of the international community, it still should be possible to curb the pirate menace through military and legal initiatives that stop short of actual occupation. All that is required is to apply the lessons of history. If previous generations could defeat the Barbary corsairs, the Caribbean buccaneers, and the Red Sea men, surely this generation can defeat the ragtag sea robbers of Somalia.[46]

Piracy is not a problem to be dealt exclusively with force as some politicians and policy makers in Washington and Brussels might think, but on a case-by-case basis. The flaw in this reasoning is that it does not take into account the dependent variable of this problem: human beings. Barbara Tuchman put the issue this way: “The trouble is that in human behavior and history it is impossible to isolate or repeat a given set of circumstances.[47] Piracy nowadays is not the same problem our forebears faced, but a unique event in history with different causes and consequences. Moreover piracy has not the same causes around the globe although called by the same name. As soon as we begin to study the history of piracy and how it was dealt with in the past, we sense that it is not “the same problem”. Quentin Skinner, attempting to decompose concepts like trying to lessons from the history of ideas (concepts like piracy, for example) held that to demand from the history of thought a solution to our own immediate problems is thus to commit not merely a methodological fallacy, but something like a moral error. But to learn from the past, the distinction between what is necessary and what is the product merely of our own contingent arrangements, is to learn the key to self-awareness itself.[48]

Nevertheless, there are some similarities in piracy today that dates back to the seventeenth century: it is widely practiced for private means and entails a sort of industry around it, just like the old Killigrews[49]. Although similar in form, the causes are completely different as well their interpretations. Piracy is not the same as maritime terrorism, i.e., the use of the sea to perpetrate terrorist attacks. GAM (The FreeAceh movement) in Indonesia and Moro National Liberation Front (MNLF) in the Phillipines are examples of terrorist actors that use the sea for hijacking ships[50] and killing people[51] but they do not do so with private ends.

On the other hand Somalia´s piracy incidents have been taken as a revival in the Barbary wars attacks, despite the different context. Somalia´s waters, for example, have been subject to increased oil pollution due to ships cleaning their tanks before heading to Red Sea and Hormuz. Some 16,000 ships a year pass through the Gulf of Aden, carrying oil from the Middle East and goods from Asia to Europe and North America.[52] Hence, the attacks on shipping have a different motivation from the attacks of the aforementioned Barbary Wars of the nineteenth century.

Cooperation and Information

There is still much political resistance, interoperability issues and, especially, national legislation when it comes to piracy. Even so, the International Maritime Organization is trying to take the lead in tackling with piracy. For example, in november 2004, sixteen countries signed the Regional Co-operation Agreement on Combating Piracy and Armed Robbery against ships in Asia (RECAAP) which has a coordination bureau and an Information Sharing Centre (ISC) to allow a sharing of the information among participants.

There are also regional coordination meetings. The first of them took place in Sana’a, in Yemen, in April 2005 (for countries adjacent to the Red Sea and Gulf of Aden) and another one in Oman in January 2006. In September 2005, a Meeting on the Straits of Malacca and Singapore: Enhancing Safety, Security and Environmental Protection took place in Jakarta, Indonesia.

Geoffrey Till affirms that “the ocean must be thought of as a global system characterized by countless interconnections in which a disturbance in any one component may well affect all the others.[53]” Thus, we must ensure that a “maritime awareness” be created. IMO contributes to this maritime awareness by maintaining a statistical account on all the attacks or reported attempts to ships around the world. The report contains the name of the ship, position, date, description of the incident, consequences to the crew or ship and the actions taken by the authorities.

Another important form of cooperation through information is the work of IMO´s Maritime Safety Committee in advising shipowners, ship operators and managers, shipping companies, shipmasters and all other relevant parties to make further efforts to implement fully the preventive measures contained in their circulars. Some of them are especially important like the recent MSC.1/Circ.1333—Recommendations to Governments for preventing and suppressing piracy and armed robbery against ships suggests possible counter-measures and MSC.1/Circ.1334—Guidance to shipowners and ship operators, shipmasters and crews on preventing and suppressing acts of piracy and armed robbery against ships.[54]

Although welcome, these initiatives are not sufficient because international trade is subject to a variety of national and international legislation. It is essential to have an interdisciplinary response that involves all the branches of the government liable to be of use in this pressing issue.

Maritime and International Law

The purpose of this paper is not to exhaust the issue but to raise some problems that deserve consideration on the part of governments. The first one is automatic identification system (AIS). AIS was created by the International Convention for the Safety of Life at Sea[55] (SOLAS—1974) and is used by ships and Vessel Traffic Services (VTS) for identification and locating vessels. AIS provides information about the ship to other ships and to coastal authorities automatically, exchanging data such as identification, position, course, and speed, with other nearby ships and VTS stations. This information can be displayed on a screen, and also broadcast on the Internet.

AIS is intended to assist the vessel's watchstanding officers and allow maritime authorities to track and monitor vessel movements. It works by integrating a standardized VHF transceiver system with an electronic navigation system, such as a LORAN-C (LOng RAnge Navigation Version C) or Global Positioning System receiver, and other navigational sensors on board ship (gyrocompass, rate of turn indicator, etc.)[56]

The problem is that any ship fitted with AIS would have access to this data. John Grubb, from the Department for Transport, United Kingdom, emphasized that “ship movements are very public” and that:

It is easy to track [ships] even if you tried not to make this too well known because you can work out exactly where a ship is going to be. I do not think you can actually minimize the information you give to criminals, they can get what is publicly available.[57]

The United Kingdom government advised Masters of UK and Red Ensign Group registered shipping that they may temporarily cease broadcasting Automatic Identification System signals when in open waters (particularly in known piracy affected waters), if they judge that the security of the vessel is being compromised by those signals.[58]

Furthermore, there are at least sixteen companies broadcasting AIS information through the internet with cargo, ship´s name and position, leaving the sips vulnerable to pirate attacks. For example, there are MarineTraffic.com[59] (Greek harbors) and ShipAIS.com, [60] specializing in UK ships.

IMO's Maritime Safety Committee, in its 79th session in December, 2004 decided that:

freely available automatic information system (AIS)-generated ship data on the internet or elsewhere of AIS data transmitted by ships could be detrimental to the safety and security of ships and port facilities and was undermining the efforts of the Organization and its Member States to enhance the safety of navigation and security in the international maritime transport sector.

The Committee condemned the regrettable publication on the world-wide web, or elsewhere, of AIS data transmitted by ships and urged Member Governments, subject to the provisions of their national laws, to discourage those who make available AIS data to others for publication on the worldwide web, or elsewhere from doing so. In addition, the Committee condemned those who irresponsibly publish AIS data transmitted by ships on the world-wide web, or elsewhere, particularly if they offer services to the shipping and port industries.[61] This recommendation is yet to produce any practical effects over the issue.

Figure 1: Sample of AIS information available on the Internet. San Francisco Bay area, USA.

Conclusion

Since Edwardian times, piracy has evolved in its method even though keeping the private ending motivation. The structure of the old attacks of the Barbary Wars can be seen almost replicated in Somalia with the marks of modernity, satellite phones and machine guns. Notwithstanding, the root causes are completely different as well as the courses of action. If a task force of warships with orders to destroy the pirate ships and bomb the hosting countries was acceptable during the Barbary Wars, this is not the case today. Scholars and policy makers advocating a similar strategy to deal with piracy are not only misconceived in their analysis but fail to note that we live in a rather different world from that of the eighteenth and nineteenth century.

The claim to extend universal jurisdiction over pirates is difficult to achieve due to the differences between national and international legislation and exemplified by the advice of the United Kingdom´s FCO to the Royal Navy. Pirates have been attacking ships on the busiest trade sea routes, especially on the Strait of Malacca and the Horn of Africa. It tends to increase shipping insurance fees as well as leaving the maritime trade liable to a break-down.

The perceived tendency to equate maritime terrorism and piracy is not the correct path to take. They are different in terms of strategy and causes although sometimes with similar consequences: fear and death. In this paper we proposed a new definition of piracy that does not take into account the place where the crime has occurred. In our opinion the fact that the definition is limited to the high seas does not help the achievement of a common understanding of the crime. Although there is a consensus on the high seas in territorial waters the issues are still subject to different and frequently contradictory municipal laws. We think it is time for a joint effort to draft a common definition to encompass territorial waters as well as the high seas.

About the Author

The author is currently serving the Brazilian Navy as Commander and is based at the Brazilian Naval War College in Rio de Janeiro. He has a Master’s in Strategic Studies from Universidade Federal Fluminense—Rio de Janeiro. This is a work in progress and it is not complete yet. The author would like to thank Nicole Troster and Barry Zellen for their competent English revision and remarks.

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PLANT, Glen. The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. The International and Comparative Law Quarterly, v. 39, n. 1, Jan. 1990, p. 27- 56.

RIVKIN JR, David B.; CASEY, Lee A. Pirates Exploit Confusion about International Law. The Wall Street Journal. (Eastern edition). New York, N.Y.: 19 Nov. 2008. p. A.21.

SKINNER, Quentin. Meaning and Understanding in the History of ideas. History and Theory, v. 8, n. 1, 1969, p. 3-53.

SIDAK, J. Gregory. The quasi war cases - and their relevance to whether “letters of marque and reprisal” constrain presidential war powers. Harvard Journal of Law & Public Policy, v. 28, n. 2, spring 2005, p. 465-499.

SILVERSTEIN, Paul A. The New Barbarians: Piracy and Terrorism on the North African Frontier. CR: The New Centennial Review - Volume 5, Number 1, Spring 2005, p. 179-212.

TILL, Geoffrey. Seapower. A guide for the twenty-first century. London: Frank Cass publishers, 2004.

TUCHMAN, Barbara. Is history a guide to the future? In: ______. Practising history. New York: MacMillan. 1986.

UNITED KINGDOM. HOUSE OF COMMONS DEBATES. 4 Dec. 2008. Volume 485, part 2, column 223. Available at < http://www.parliament.the-stationery-office.co.uk/pa/cm200809/cmhansrd/cm081204/debtext/81204-0017.htm >. Accessed on 4 Dec. 2009.

UNITED KINGDOM, HOUSE OF COMMONS DEBATES. 1 Jun. 2009. Volume 493, part 82, columns 5-6. Available at < http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090601/debindx/90601-x.htm >. Accessed on 4 Dec. 2009.

UNITED KINGDOM. HOUSE OF COMMONS LIBRARY. BUTCHER, Louise. Standard note SN/BT/3794. Shipping: Piracy. 31 Mar. 2009.

UNITED KINGDOM. HOUSE OF COMMONS- Transport committee- Piracy-eighth report on session 2005-2006. HC 1026. London: The Stationary Office Limited, 2006.

UNITED KINGDOM. HOUSE OF COMMONS- Transport committee- Piracy-Government Response to the Committee´s Eighth Report of Session 2005-06. HC 1690. London: The Stationary Office Limited, 2006.

UNITED NATIONS. INTERNATIONAL MARITIME ORGANIZATION. Resolution A.922(22), annex, paragraph 2.2 of the Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships.

UNITED NATIONS. INTERNATIONAL MARITIME ORGANIZATION. MSC.1/Circ.1333. PIRACY AND ARMED ROBBERY AGAINST SHIPS. Recommendations to Governments for preventing and suppressing piracy and armed robbery against ships. 26 Jun. 2009. Available at: < http://www.imo.org/includes/blastData.asp/doc_id=11564/1333.pdf >.

UNITED NATIONS. INTERNATIONAL MARITIME ORGANIZATION. MSC.1/Circ.1334. PIRACY AND ARMED ROBBERY AGAINST SHIPS. Guidance to shipowners and ship operators, shipmasters and crews on preventing and suppressing acts of piracy and armed robbery against ships. 23 Jun. 2009. Available at: < http://www.imo.org/includes/blastData.asp/doc_id=11565/1334.pdf >.

UNITED STATES HOUSE OF REPRESENTATIVES. International efforts to combat maritime piracy. Hearing before the subcommittee on international organizations, human rights and oversight of the Committee on Foreign Affairs. House of Representatives. One hundred eleventh congress. First Session. Apr. 30, 2009. Serial no. 111-113. Available at: < http://www.foreignaffairs.house.gov/ >. Accessed on Jun. 12, 2009.

UNITED STATES SENATE. Testimony on the accession to the 1982 Law of the Sea Convention and ratification of the 1994 agreement amending part XI of the Law of the Sea Convention before Senate Armed Services Committee on April 8, 2004. Senate Treaty Document 103-39. Senate Executive Report 108-10. Available at: < http://www.senate.gov/~armed_services/statemnt/2004/April/Taft.pdf >. Accessed on Apr. 20, 2009, p. 3; 8.

WOOLF, Marie. Pirates can claim UK asylum. The Sunday Times. London, 13 Apr. 2008. Available in < http://www.timesonline.co.uk/tol/news/uk/article3736239.ece >.

References

1. Robert Louis Stevenson´s Treasure Island character.

2. Cf LICHE. La piraterie – Grande criminalité en mer. Article published by Lieutenant-Commander (German Navy) Liche in La Tribune from Collège Interarmées de Défense (CID), Apr. issue, 2007.

3. I understand international system as defined by Hedley Bull: “when two or more states have sufficient contact with reciprocal impact on their decisions so that they behave as parts of a group.” BULL, Hedley. A sociedade anárquica (The anarchical society- portuguese edition). Translation Sérgio Bath. São Paulo: Imprensa Oficial do Estado de São Paulo, 2002, p. 15.

4. PISTONO, Stephen P. Henry IV and the English Privateers. The English Historical Review, v. 90, n. 355, Apr. 1975, p. 322-330; SIDAK, J. Gregory. The quasi war cases - and their relevance to whether “letters of marque and reprisal” constrain presidential war powers. Harvard Journal of Law & Public Policy, v. 28, n. 2, spring 2005, p. 465-499 and CHENOWETH, Gene M. Melaka, "Piracy" and the Modern World System. Journal of Law and Religion, v. 13, n. 1, 1996 - 1999, p. 107-125.

5. BOOT, Max. Pirates, then and now: how piracy was defeated in the past and can be gain. Foreign Affairs, v. 88, n. 4, Jul.-Aug. 2009, p. 94-107.

6. See PLANT, Glen. The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. The International and Comparative Law Quarterly, v. 39, n. 1, Jan. 1990, p. 27- 56 and LUFT, Gal; KORIN, Anne. Terrorism Goes to Sea. Foreign Affairs, v. 83, n. 6, Nov.- Dec. 2004, p. 61.

7. HALBERSTAM, Malvina. Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety. The American Journal of International Law, v. 82, n. 2, Apr. 1988, p. 272.

8. See the Convention home page < http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm >. It is interesting to note that some countries are yet to ratify the Convention such as USA, Iran, Israel, Libya, Nigeria, Syria, Turkey, Peru, Colombia, Ecuador and Venezuela.

9. Article 7 of UNCLOS defines internal waters as waters on the landward side of the baseline of the territorial sea including rivers and lakes within the territory.

10. Limited to 12 nautical miles (a nautical mile equals 1,852 m) from the baselines. The baseline is marked by the low-water line along the coast as shown on large-scale charts officially recognized by the coastal State.

11. The exclusive economic zone (EEZ) is the area beyond and adjacent to the territorial sea, subject to the specific legal regime established in part V of UNCLOS, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention. It extends up to 200 nautical Miles and can reach 350 miles in accordance with article 76. The coastal state has a limited jurisdiction which is restricted mainly to economic activities.

12. HALBERSTAM, op. cit., p. 272.

13. Ibid., p. 273.

14. The Judicial Committee of the Privy Council is the court of final appeal for the UK overseas territories and Crown dependencies, and for those Commonwealth countries that have retained the appeal to Her Majesty in Council or, in the case of Republics, to the Judicial Committee. See < http://www.privy-council.org.uk >.

15. By the Law of nations.

16. JOHNSON, D. H. N. Piracy in Modern International Law. Transactions of the Grotius Society, v. 43, Problems of Public and Private International Law, Transactions for the Year 1957, p. 69-70.

17. Piracy Jure Gentium, 1934. In: JOHNSON, D. H. N. Piracy in Modern International Law. Transactions of the Grotius Society, v. 43, Problems of Public and Private International Law, Transactions for the Year 1957, p. 70.

18. The International Maritime Organization (IMO) is a specialized agency of the United Nations in London, UK, whose primary purpose is to develop and maintain a comprehensive regulatory framework for shipping including safety, environmental concerns, legal matters, technical co-operation, maritime security and the efficiency of shipping.

19. UNITED NATIONS. INTERNATIONAL MARITIME ORGANIZATION. Resolution A.922(22), annex, paragraph 2.2 of the Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships.

20. For a complete account on the attacks and statistical information see IMO´s home page at http://www.imo.org.

21. UNITED KINGDOM. HOUSE OF COMMONS- Transport committee- Piracy- Government Response to the Committee´s Eighth Report of Session 2005-06. HC 1690. London: The Stationary Office Limited, 2006, p. 4.

22. Article 28 of UNCLOS.

23. BYERS, Michael. Policing the High Seas: The Proliferation Security Initiative. The American Journal of International Law, v. 98, n. 3, Jul. 2004, p. 527.

24. For a critical view on the subject see BANDOW, Doug. Don´t ressurect the Law of the sea treaty. Journal of International Affairs. V. 59, n. 1, Fall/winter 2005, p. 25-41.

25. UNITED STATES SENATE. Testimony on the accession to the 1982 Law of the Sea Convention and ratification of the 1994 agreement amending part XI of the Law of the Sea Convention before Senate Armed Services Committee on April 8, 2004. Senate Treaty Document 103-39. Senate Executive Report 108-10. Available at: < http://www.senate.gov/~armed_services/statemnt/2004/April/Taft.pdf >. Accessed on April 20, 2009, p. 3 and 8.

26. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation. Entry into force: march 1992. Available at: < http://www.imo.org/Conventions/mainframe.asp?topic_id=259&doc_id=686 >.

27. HALBERSTAM, op. cit. p. 269.

28. A comprehensive account on the problem of universal jurisdiction applied to piracy is GOODWIN, Joshua Michael. Universal jurisdiction and the pirate: time for an old couple to part. Vanderbilt Journal of Transnational Law, v. 39, n. 3, May 2006, p. 973- 1011.

29. As of 31 July, 2010, the number of Contracting states and percentage of world tonnage was SUA 1988: 156 states (94.73%); SUA 2005: 16 (7.60%); SUA Protocol 2005: 12 (6.87%). Available at < http://www.imo.org/ Conventions/mainframe.asp?topic_id=247 >.

30. For a discussion of Maritime terrorism see LEHR, Peter (ed). Violence at sea. Piracy in the age of global terrorism. Routledge. 2007.

31. WOOLF, Marie. Pirates can claim UK asylum. The Sunday Times. London, 13 Apr. 2008. Available in < http://www.timesonline.co.uk/tol/news/uk/article3736239.ece >.

32. WOOLF, Marie. op. cit.

33. EUROPEAN UNION. Official Journal of the European Union. 25 march, 2009. Exchange of Letters between the European Union and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy and detained by the European Union-led naval force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya and for their treatment after such transfer. L 79, p. 49- 59. Available at < http://eur-lex.europa.eu/Notice.do?val=491702:cs⟨=en&pos=1&phwords=piracy~&checktexte=checkbox >. Accessed in 20 May 2009.

34. United Nations Security Council Resolutions (UNSCR) 1814 (2008), 1838 (2008), 1846 (2008), 1851 (2008) and successor UNSCRs.

35. EUROPEAN UNION. Op. cit.

36. UNITED KINGDOM. HOUSE OF COMMONS LIBRARY. BUTCHER, Louise. Standard note SN/BT/3794. Shipping: Piracy. 31 Mar. 2009.

37. UNITED KINGDOM, HOUSE OF COMMONS DEBATES. 1 Jun. 2009. Volume 493, part 82, columns 5-6. Available at < http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090601/debindx/90601-x.htm >. Accessed on 4 Dec. 2009.

38. UNITED KINGDOM, HOUSE OF COMMONS DEBATES. 4 Dec. 2008. Volume 485, part 2, column 223. Available at < http://www.parliament.the-stationery-office.co.uk/pa/cm200809/cmhansrd/cm081204/debtext /81204-0017.htm >. Accessed on 4 Dec. 2009.

39. UNITED STATES HOUSE OF REPRESENTATIVES. International efforts to combat maritime piracy. Hearing before the Subcommittee on International Organizations, Human Rights and Oversight of the Committee on Foreign Affairs. House of Representatives. One hundred eleventh congress. First Session. Apr. 30, 2009. Serial no. 111-113. Available at: < http://www.foreignaffairs.house.gov/ >. Accessed on June 12, 2009.

40. Idem.

41. RIVKIN JR, David B.; CASEY, Lee A. Pirates Exploit Confusion about International Law. The Wall Street Journal. (Eastern edition). New York, N.Y.: 19 Nov. 2008. p. A.21.

42. O'SULLIVAN. John. Piracy and civilization: a lesson for our time (military operations against piracy in modern times). National Review. New York, May 4, 2009, p. 42.

43. GETTLEMAN, Jeffrey. Lessons From the Barbary Pirate Wars. The New York Times. New York, Apr. 11, 2009, p. WK4. Available at: < http://www.nytimes.com/2009/04/12/weekinreview/12gettleman.html?_r=1>. Accessed on April 25, 2010.

44. MOONEY, Chris. The barbary analogy. American Prospect online. 16 oct. 2001. Available at:

45. LEIBY, Richard. Terrorists by another name: The barbary pirates. Washington Post. 15 Oct. 2001, p. C01. Available at:

46. BOOT, Max. op. cit., p. 107.

47. TUCHMAN, Barbara. Is history a guide to the future? In: ______. Practising history. New York: MacMillan. 1986, p. 249.

48. SKINNER, Quentin. Meaning and Understanding in the History of ideas. History and Theory, v. 8, n. 1, 1969, p. 53.

49. The Killigrews, one of the most important families in Cornwall in the sixteenth century, were responsible for the control of all the flow of plundered merchandise in the region. See MATHEW, David. The Cornish and Welsh Pirates in the Reign of Elizabeth. The English Historical Review, v. 39, n. 155, Jul. 1924, p. 337-348.

50. The case of the ships Suehiro Maru near Manila in 1975 and Our Lady Mediatrix in 2000 by MNLF.

51. The case of Superferry 14 in 2004 in which 116 people died. For an account on these movements I recommend MURPHY, Martin. Contemporary piracy and maritime terrorism. The threat to international security. Adelphi paper n. 388. London: The International Institute for Strategic Studies. 2007, especially chapter two.

52. MIDDLETON, Roger. Piracy in Somalia. Threatening global trade. Feeding local wars. Briefing paper. London: Chatham House. Available at < http://www.chathamhouse.org.uk/publications/papers/view/-/id/665/ >. Accessed on Jun. 01, 2010, p. 1.

53. TILL, Geoffrey. Seapower. A guide for the twenty-first century. London: Frank Cass publishers, 2004, p. 337-338.

54. Both approved by The Maritime Safety Committee, at its eighty-sixth session (27 May to 5 June 2009). Available at < http://www.imo.org/Circulars/mainframe.asp?topic_id=327>. These circulars revoke and supersede the old MSC/Circ.622/Rev.1 and MSC/Circ.623/Rev.3 (2002), respectively. UNITED NATIONS. INTERNATIONAL MARITIME ORGANIZATION. MSC.1/Circ.1333. PIRACY AND ARMED ROBBERY AGAINST SHIPS. Recommendations to Governments for preventing and suppressing piracy and armed robbery against ships. 26 Jun. 2009. Available at: < http://www.imo.org/includes/blastData.asp/doc_id=11564/1333.pdf >. UNITED NATIONS. INTERNATIONAL MARITIME ORGANIZATION. MSC.1/Circ.1334. PIRACY AND ARMED ROBBERY AGAINST SHIPS. Guidance to shipowners and ship operators, shipmasters and crews on preventing and suppressing acts of piracy and armed robbery against ships. 23 Jun. 2009. Available at: < http://www.imo.org/includes/blastData.asp/doc_id=11565/1334.pdf >.

55. Chapter V, revised in 2000.

56. AIS is to be fitted aboard all ships of 300 gross tonnage and upwards engaged on international voyages, cargo ships of 500 gross tonnage and upwards not engaged on international voyages and passenger ships irrespective of size built on or after 1 July 2002.

57. UNITED KINGDOM. HOUSE OF COMMONS. Transport committee- Piracy- eight report on session 2005-2006. HC 1026. London: The Stationary Office Limited, 2006, p. 24.

58. UNITED KINGDOM. HOUSE OF COMMONS- Transport committee- Piracy- Government Response to the Committee´s Eighth Report of Session 2005-06. HC 1690. London: The Stationary Office Limited, 2006, p. 9.

59. See http://www.marinetraffic.com/ais/.

60. See http://www.shipais.com.

61. Available at: < http://www.imo.org/Safety/mainframe.asp?topic_id=754 >.

 

 


 
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