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Title Piracy and legal issues in counter-piracy measures
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Article by divya rathor
Category Law Student
Content

 

PIRACY AND LEGAL ISSUES IN COUNTER- PIRACY MEASURES

 

 

                                                           PIRACY

 

DEFINITION-

Piracy is a war-like act committed by non-state actors  (private parties not affiliated with any government) against other parties at sea. The term applies especially to acts of robbery and/or criminal violence  at sea. People who engage in these acts are called pirates.

The term can include acts committed on land, in the air, or in other major bodies of water or on a shore. It does not normally include crimes committed against persons traveling on the same vessel as the perpetrator (e.g. one passenger stealing from others on the same vessel). The term has been used to refer to raids across land borders by non-state agents.

Piracy has been subjected to various definitions. Among various definitions of piracy some has been listed below-

  • Traditional definition-  Navigation in the high seas with the object  of committing violent acts against other  persons and property for private interests and without being authorized or permitted by any state.
  • United states Vs. Smith [1]-  Robbery or forcible depredation upon the sea animo furandi, is piracy.

The   above definitions became obsolete when it came to treating piracy as a crime. The law relating to piracy was codified for the first time in the Geneva Convention on High Seas, 1958.   Article 15[2] of the  Convention, defines piracy in following words.

             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) of this article.

The above definition of piracy has been retained without any without any change in Article 101 of  UN Convention on Law of the Sea, 1982.

The International Maritime Bureau (IMB) defines piracy as:

the act of boarding any vessel with an intent to commit theft or any other crime, and with an intent or capacity to use force in furtherance of that act.[3]

 

EVOLUTION OF THE CRIME OF PIRACY-

 

  • Piracy has existed for as long as the oceans were plied for commerce. The earliest documented instances of piracy are the exploits of the Sea Peoples who threatened the Aegean and Mediterranean in the 13th century BC.
  • In the 3rd century BC, pirate attacks on Olympos (city in Anatolia) brought impoverishment. Among some of the most famous ancient pirateering peoples were the Illyrians, populating the western Balkan peninsula.
  • In 286 AD, Carausius a Roman military commander of Gaulish origins, was appointed to command the Classis Britannica and given the responsibility of eliminating Frankish and Saxon pirates who had been raiding the coasts of Armorica and Belgic Gaul.
  • The most widely known and far reaching pirates in medieval Europe were the Vikings, warriors and looters from Scandinavia who raided mainly between 793 to 1066, during the Viking Age in the Early Middle Ages.
  • Toward the end of the 9th century, Moor pirate havens were established along the coast of southern France and northern Italy. In 846 Moor raiders sacked Rome and damaged the Vatican
  • Until about 1440, maritime trade in both the North Sea and the Baltic Sea was seriously in danger of attack by the pirates.
  • During the Troubles in Northern Ireland, two coaster ships were hijacked and sunk by the IRA in the span of one year, between February 1981 and February 1982.
  • The cargo ship Chang Song boarded and taken over by pirates posing as customs officials in the South China Sea in 1998. Entire crew of 23 was killed and their bodies thrown overboard. Six bodies were eventually recovered in fishing nets. A crackdown by the Chinese government resulted in the arrest of 38 pirates and the group's leader, a corrupt customs official, and 11 other pirates who were then executed.
  • The New Zealand environmentalist, yachtsman and public figure Sir Peter Blake was killed by Brazilian pirates in 2001
  • In April 2008, pirates seized control of the French luxury yacht Le Ponant carrying 30 crew members off the coast of Somalia. The captives were released on payment of a ransom.
  • In July 2009, Finnish-owned ship MV Arctic Sea sailing under Maltese flag was allegedly hijacked in the territorial waters of Sweden by a group of eight to ten pirates disguised as policemen.
  • On October 2, 2010, a 911 call transcript was released detailing an incident of an American tourist who was shot dead by Mexican pirates on a U.S.-Mexico border lake that has been plagued with drug cartel violence in recent years.
  • The crime of piracy, has evolved from a menace of sea to the level of crime against the humanity.

 

MEASURES OF COUNTER PIRACY-

 

A range of options exists for combating maritime piracy, but experts stress that most of the current tactics are defensive in nature, and do not address the state instability that allows piracy to flourish. The mechanisms used or under consideration in recent times are as follows:

 

  • Onboard deterrents- Individual ships have adopted different onboard deterrents. Some use rudimentary measures such as fire hoses, deck patrols, or even carpet tacks to repel pirates. Others use a nonlethal electric screen with a loudspeaker system that emits a pitch so painful it keeps pirates away. Most do not arm their crews, both because ship workers tend to be unskilled and because many do not want to carry weapons, fearing that pirates will target them if they are armed.
  • Naval deployments- By January 2009, an estimated thirty ships were patrolling an area of about 2.5 million square miles. More than a dozen countries--including Russia, France, the United Kingdom, India, China, and the United States--had sent warships to the Gulf of Aden to deter pirates. There were also two multinational anti-piracy patrols in the area: the European Union's military operation, called EU NAVFOR, which began in December 2008; and a multinational contingent, known as Combined Task Force 150, which was originally tasked with counterterrorism efforts off the Horn of Africa. The United States announced a new task force, CTF-151, in January 2009.
  • Regional anti-piracy patrols- Some experts have suggested that East African and Middle Eastern countries should work together to patrol the coast of Somalia and the Gulf of Aden.
  • Establishing a Somali coast guard- Experts unanimously stress that the only effective long-term piracy deterrent is a stable state. When Somalia was briefly under the control of the Islamic Courts Union in 2006, piracy stopped completely. Until recently, sovereignty prevented outside states from targeting inland pirate infrastructure. A UN resolution passed on December 2, 2008, allows states to enter Somalia's territorial waters in pursuit of pirates, and another resolution passed on December 16, 2008, implicitly authorizes land

                 LEGAL ISSUES IN COUNTER- PIRACY

 

 There  are several issues relating to counter piracy measures. It’s not that there is legal void or absence of law on the point ( lex liquet) but the the major problem in counter piracy relates to the implementation. Although international law against piracy is sufficient, many nations lack the practical criminal legislation or judicial and prison capacity to prosecute piracy.  There are several legal issues involved in counter-piracy, which can be enumerated below as, issue relating to,-

  • Definition of piracy, as crime,
  • Lawlessness in Somalia,
  • Prisons for pirates,
  • Prosecution of pirates,
  • Jurisdiction

The above mentioned issues have been dealt in length and depth by the author, in the succeeding paras, below-

 

1)Problem relating to, definition of piracy as crime-

 

The definition of piracy is set forth in Article 101 of UNCLOS, which states that piracy is:

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 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 intentionally facilitating an act described in subparagraph (a) or (b).

 

The above definition of piracy creates several legal issues. For instance according to the above definition of piracy, it only applies to the High seas,  so pirate ships, may not be seized in the 12-nautical mile territorial seas, archipelagic waters (such as Indonesian internal waters), and internal waters (such as harbours),  or the EEZwithout the consent of the coastal state, even for criminal acts of piracy that were committed on the high seas because archipelagic water, internal waters and EEZ do not come within the High seas as per the definition of High Seas[4] as given by the UNCLOS, 1982.

 

In areas that have national waters in close proximity to other nations, fleeing pirate vessels can escape into the territorial sea of a neighbouring state and avoid capture if the adjoining state is unable to act. A coastal state may lawfully pursue a ship from the territorial sea, archipelagic waters, or the contiguous zone onto the high seas when it believes the vessel violated the law of that state. If the pursuit begins within the contiguous zone, however, it may be conducted only for violations of the rules pertaining to the contiguous zone, such as customs-related offenses and for offences like piracy.

 

Likewise, if a foreign ship violates the lawful regulations of the coastal state pertaining to the exclusive economic zone, such as state fisheries laws, the coastal state may initiate pursuit of the vessel onto the high seas. Hot pursuit may not extend into the territorial sea of another state, however, without the permission of the other state.

Further, according to the definition of piracy, violence or robbery at high seas must be for private ends, so such acts committed by warships, Government ships or aircraft cannot be called piracy. In customary international law, it’s a war crime. The above definition creates problem in those cases  where the privates carry out the ships but they are maintained completely or partially by the government.

For example- During the second world war German U-Boats captured and sank enemy ships in the area of long-distance blockade in the high seas without any prior intimation, it was held that it was not a case of piracy. The act of Germany was given the exception of war and was freed of all the charges.

 

2)Lawlessness in Somalia

 

Any long-term solution to the region’s piracy threat requires addressing lawlessness in Somalia. Of course, the very best option would be to have a stable, responsible, and moderate government in Mogadishu that could rein in the maritime pirate gangs operating along the coast. Somalia was thrown into chaos in 1992, and except for a brief rule by an Islamic government in 2006, the country has teetered on anarchy. The Transitional Federal Government (TFG) is the most significant authority in the country, but it is composed of a few leaders presiding over a state apparatus that is an empty shell feckless, ineffective, and lacking in the core capabilities necessary to run a state. The ability to deal successfully with Somalia’s maritime pirates would improve if the country is stabilized under a responsible government.

 

3) Prison Problem

A tremendously difficult problem naval powers face with piracy is not a lack of operational resources to counter the threat, but what to do with the perpetrators once caught. Once pirates are detained and become “persons under control,” there are currently no good options. Determining which state should prosecute pirates seized at sea is particularly vexing. It is typical of the vessels attacked by Somali pirates that the ship may be registered in one nation, such as Greece, owned by a corporation located in another nation, such as South Korea, and operated by a crew comprised of nationals of several additional countries, such as the Philippines and Pakistan. Furthermore, the vessel is likely to be transporting either containerized cargo or bulk commodities owned by companies in another country, and the piracy attack may have been interrupted by a warship from yet another nation.

Although any country may assert jurisdiction in the case of a universal crime, each has a special interest in the outcome of the prosecution. On the high seas—or in any other place outside the jurisdiction of an individual country, such as a poorly governed area like Somalia’s territorial seas—any  nation may take action against piracy. Pirated ships may be boarded, pirates detained, and the property on board the vessel seized and submitted to admiralty and criminal courts. Only warships, military aircraft, or vessels in government service, however, may exercise this authority.

Captured pirates cannot be turned over to local authorities in Somalia—because, in many cases, there are no responsible local authorities in that failed state. Moreover, some tribal regions might either let the pirates go or impose excessive, disproportionate punishments under tribal justice or Islamic law. Likewise, the great expense and logistical and legal burdens of transporting the pirates to a Western country for prosecution are daunting.

In recent months there have been over one hundred suspects held in Mombasa's Shimo La Tewa maximum security prison awaiting trial on charges of piracy. This is said by some members of the Kenyan criminal justice system to have placed a considerable burden on their administration and to have caused many practical difficulties. It is worth noting that Kenya has about 50,000 prisoners, housed in 93 prisons.  The United Nations Office on Drugs and Crime ("UNODC") has already injected a considerable sum into the prison system, and this has resulted in significant structural and humanitarian improvements at the Shimo La Tewa prison, which enure for the benefit of all 2,500 prisoners at that facility.

 

4) Prosecution  Issues-

 

No one wants to be a dumping ground for difficult problems." – James Kraska[5]

Many nations have a vested interest when a ship is hijacked, it's not immediately clear which country should prosecute pirates.

Journalist Burnett in his book on piracy[6]  illustrates  the legal issues relating to prosecution by way of the following example-

 

       "Consider a typical case: a ship built in Japan, owned by a brass-plate company in Malta, controlled     by an Italian, managed by a company in Cyprus, chartered by the French, skippered by a Norwegian, crewed by Indians, registered in Panama, financed by a British bank, carrying a cargo owned by a multinational oil company, is attacked while transiting an international waterway in Indonesian territory and arrested in the Philippines."

 

The situation illustrated  above is the major concern of the countries these days. No country wants to get into legal  trap of  prosecuting pirates because of various reasons like worsening of diplomatic relations. Though there are  agreements relating to prosecution of pirates, but the problems arise when it comes to its  implementation. The above situation has been provided by Kraska[7] in the following words,

 "Even if you have an agreement with a country, no one wants to be a dumping ground for difficult problems,"

 That's why in the past some of these folks have stayed on board warships for months at a time because there is nothing else to do with them.

The United Nations attempted to address the prosecution of pirates in its 2008 resolutions on Somali piracy. None of its 2008 resolutions force a state to accept suspected pirates, but the December 2 resolution does include a clause that goes toward establishing a framework for prosecution. The clause, based on the 1988 UN Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation,, obliges coastal states who signed the convention to accept pirates for prosecution unless they can explain why the convention does not apply.

 

Legal scholars recommend that apprehended pirates should be prosecuted in the region they are arrested, but in the case of piracy in the Gulf of Aden, East African countries have limited resources for their judicial systems.

 

In, World Policy Journal, James Kraska and Brian Wilson recommend that the major shipping nations and regional states  should develop agreements  "to enable real-time coordination for dealing with detainees, sorting out where they will be temporarily detained and the venue for prosecution."

 Bilateral agreements on pirate prosecution, also proves helpful in counter piracy. In mid-January 2009, the United States was working to conclude such an agreement with Kenya. The European Union was working on similar agreements at the same time, and had reached an agreement also recently.

 

Many of the maritime countries are  trying to resolve the legal complications relating to the prosecution of pirates but  the problem remains unresolved in the absence of the binding law on the point .

 

Very recently, in 2006, the procedural technicalities, required the United States to provide temporary custody for Somali pirates on board U.S. warships. After the United States declined to prosecute suspected pirates who had fired on a U.S. Navy warship on March 18, 2006, it took several months to repatriate completely all 12 Somalis, some of whom had significant injuries and required considerable medical treatment. The suspected pirates resided, for the most part, on U.S. warships during the period from capture to repatriation. But warships no longer have functional brig facilities, so keeping pirates on board naval vessels presents security challenges within the ship. These difficulties with captured pirates are the reason several countries have returned them to the beach without taking any legal action.

5) Jurisdictional Issues

 

Though, with the passage of time, piracy has been recognized as an universal crime and the jurisdiction over it has been declared to be universal but still there are legal barriers in prosecuting the captured in international waters. Some countries are struggling to apply existing maritime law, international law, and their own laws, which limits them to having jurisdiction over their own citizens. In September 2008, the Danish Navy released ten captured pirates on the beach because jurisdiction in the case was unclear and Somalia lacked the capacity to take them to court.

 

 

 For instance, recently in Finland, where an on-going case has seen pirates captured and their boat sank but no prosecution is forthcoming, due to the pirates having attacked a vessel of Singapore and not, themselves, being EU or Finnish citizens. A further complication is that Singapore law allows the death penalty for piracy and Finland does not. Some countries have been reluctant to utilize the death penalty to stop pirates.

 

 

It’s just one of the several examples were though pirates have been captured but couldn’t be convicted because of the technical latches in the jurisdiction and prosecution afterwards.  For instance, The Dutch are using a 17th-century law against sea robbery to prosecute. Warships that capture pirates have no jurisdiction to try them, and NATO does not have a detention policy in place. Prosecutors have a hard time assembling witnesses and finding translators, and countries are reluctant to imprison pirates because they would be saddled with them upon their release. By contrast, the United States has a statute imposing a sentence of life in prison for piracy "as defined by the law of nations" committed anywhere on the high seas, regardless of the nationality of the pirates or the victims.

 

The absence of universal application of the universal jurisdiction relating to the crime of piracy creates the major hindrance in counter-piracy measures. The rare prosecution and conviction, worsens the situation further and the states on finding the arrest useless, in absence of the prosecution become reluctant in exercising their jurisdiction.

 

CONCLUSION—

 

The author, hereby concludes that the crime of piracy is a universal menace and there is law also to curtail down the crime but the counter piracy measures lack implementation. The complex legal issues involved in the counter piracy measures frustrates the whole purpose.  

Naval air and sea operations by even the most capable maritime powers have been unable to slow Somali piracy because they cannot prosecute the endgame.  Piracy thus flourishes at the seams of globalization because jurisdiction is unclear and pirates exploit the inherent isolation of individual vessels and nations. The lack of a cohesive government and security sector in Somalia, means that often pirates are simply more powerful (and wealthier) than the state. the lack of prison facility and over crowding of prisons with pirates further worsens the counter piracy efforts.

The counter piracy measures will prove effective if there is an international court to deal piracy and international police or patrolling party to tackle the draconian crime of piracy.



[1] (1820) 5 wheat 153

[2] Geneva Convention on High Seas, 1958

 

[3] Cargolaw.com

[4] Aricle 82, UNCLOS III.

[5] member of the US Naval College

[6] Dangerous water- Modern piracy and terror on the High Seas

[7] World Policy Journal

 

 

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