Markiyan Z Kulyk
It has often been noted that until recently the word ‘pirate’ instantly evoked a ‘Hollywood’ image of a figure in a battered coat and tricorn hat, somewhere in exotic tropical locations, festooned with weaponry, but charming and filled with all kinds of adventures and romantic stories, perhaps even a symbol of rebellion against sluggish authorities. These images are not new. Reportedly, fascination with pirates was already chronicled as early as in the first half of the eighteenth century; in 1724 a book published in London called A General History of the Robberies and Murders of the Most Notorious Pirates became a best seller.1 But make no mistake, Captains Blackbeard, Hook, Long John Silver, or Jack Sparrow are not heroes but seafaring criminals.
The origins of piracy go back to ancient times. It seems that it was Cicero who first described pirates (from the Greek word of assailant) as the enemies of all peoples (hostes humanis generis). Customary international law prohibited piracy and treated pirates as enemies of all humankind. Pirates were considered to wage war not just against any one State but all States. It is actually the first crime to have been recognized as being subject to universal jurisdiction and probably the only one not derived from international treaties or conventions. In 1927 Judge Moore in The ‘Lotus’ (France v Turkey)2 case before the Permanent Court of International Justice (PCIJ) described it as follows:
Though statutes may provide for its [piracy] punishment, it is an offence against the law of nations; and as the scene of the pirate’s operations is the high seas, which it is not the right or the duty of any nation to police, he is denied the protection of the flag he may carry, and is treated as an outlaw, as the enemy of mankind—hostes humanis generis—whom any nation may in the interest of all capture and punish.
While the prohibition of piracy was declared almost from the early ancient times, the scope of particularly banned activities and definition of who should be considered a pirate, were not free from controversy. Whether we can put Captain Blood along the above line of Disneyland/Hollywood-created pirates, or agree on the proper place for some real persons like Francis Drake or William Dampier3 at different times of their life journey is not only a matter of moral or national attitude, but first and foremost of interpretation of relevant rules of international law applicable at that period. There were also periods when it was believed that piracy had been eradicated and did not require important public attention. This illusion was definitely proven wrong at the beginning of this century, despite the recent drop in the number of attacks. 4
Piracy has been a persistent problem for thousands of years, in fact from the times when ships started to sail the oceans. The phenomenon was not limited to a particular region, threatening merchant shipping at times with different levels of intensity almost on all known seas. Contemporary universal condemnation of piracy might suggest that it was always viewed with disdain. But that does tend not to be so. Pirates were repeatedly tolerated and sometimes even viewed by States as a certain foreign policy tool to be employed for their own interests.5
In addition to ‘pirates’, who attacked any ships indifferent of the flag of State it was flying, or committed robbery or other acts of violence at sea against any persons or ships for private ends whether in time of war or peace, there were—‘privateers’, ‘buccaneers’, ‘filibusters’, ‘corsairs’, ‘freebooters’—all having their own definitions. There is no room in this contribution to elaborate extensively on legal elements of all these definitions, therefore just some of the main features of privateering as the most widespread and encompassing phenomenon will be noted.
A ‘privateer’ was a person under a contract to a government, usually in the form of ‘a letter of marque’ (sometimes having the full title ‘a letter of marque and reprisal’) issued by a recognized State authorizing him to attack and capture vessels having nationality of a State with which the former State was at war. The contract most often also provided that the government received a share of the profits. The most obvious difference between pirates and privateers was that in the event of capture the latter were subject to the rules and laws of war and were to be treated the same as prisoners of war. Privateers hence were supposed to follow rules of naval warfare, including limiting their activities to times of declared war, precluding attacks on the vessels or cargoes of neutral States and their nationals, and submitting to procedures of prize law.
Privateering was an accepted part of the law of naval warfare, authorized at times by all significant naval powers. There were many instances when a particular person was crossing a line, moving from being a pirate to a privateer and vice versa, often without scrupulously observing whatever limited mandates or authorizations were required at that time. There were also examples when privateers were organized to fight pirates.
Differences in treatment of sea outlaws fluctuated almost till the middle of the nineteenth century, when the Declaration Respecting Maritime Law (the Paris Declaration) abolishing privateering was signed in 1856 by most of the European imperial powers. Despite the fact that Spain and the United States at that time decided to stay out of the Paris Declaration, it could be considered as a real watershed in changing attitude of States towards proscription of all forms of piracy and removal of relevant practices from policy tools, albeit without a comprehensive common definition of piracy and binding its signatories only when at war with each other, which presumably left them with freedom of action to use privateers while in conflicts with other States. Interestingly, the Constitution of the United States still contains provision which gives to the Congress power to ‘grant letters of marque and reprisal’.6
It was not until the twentieth century that the attempts to establish common definition of piracy became more persistent. In the 1920s the Assembly of the League of Nations requested the Council of the League of Nations to prepare a provisional list of subjects of international law the regulation of which would seem to be most desirable and realizable. The Committee responsible for drawing up this list included piracy and also enclosed Draft Provision for the Suppression of Piracy, but the subject was later dropped by the Council, reportedly on the grounds that piracy was no longer a pressing issue to the international community and that the achievement of a universal agreement seemed somewhat difficult.7 Nevertheless, in the 1930s the so-called Harvard Research Group had already drafted a Convention on Piracy, commonly known as ‘Harvard Draft’.8 The provisions were based on a comprehensive research of national legislations and customary law on piracy. The International Law Commission during its preparatory work on the theme of the Law of the Sea drew substantially from Harvard Draft provisions as the basis for the piracy articles of what later became the Convention on the High Seas 1958 (HSC).9 That definition of piracy in Article 15 of the HSC together with the relevant provisions on piracy in Articles 14 and 16–21 were mostly incorporated in UNCLOS,10 which replaced the former as the primary multilateral instrument in this field of international law.
The UNCLOS piracy provisions, in particular Articles 100–7 and 110, form the foundation for the contemporary counter-piracy legal regime. They define the offence, rights, and obligations of States, including on cooperation in repression of piracy and on jurisdiction to prosecute pirates. However, these provisions also contain a number of shortcomings that were rightly pointed out almost immediately after the adoption of the UNCLOS and are particularly of concern in light of the recent violent acts against international shipping. It is worth recalling with regard to this criticism that the mentioned Articles of the UNCLOS originated in the Harvard Draft and were adopted almost without amendments from the HSC, that is, when the subject of piracy was still in the shadow of other law of the sea issues supposedly requiring a higher level of attention, and when the creation of the Exclusive Economic Zone (EEZ) or the extension of the territorial sea up to twelve nautical miles had not yet been recognized.
It is generally acknowledged that the UNCLOS definition of piracy11 comprises four main elements: (1) illegal act of violence, detention, or depredation; (2) private ends; (3) involvement of two ships (the possibility of involvement of aircraft falls beyond the scope of the present contribution, although theoretically it cannot be instantly denied that an act of piracy could involve not only two aircraft but also aircraft and a ship); and (4) location at the high seas.
Paragraphs (b) and (c) of Article 101 should be regarded as standard provisions aimed at those who voluntarily participate, incite or intentionally facilitate piracy, with the latter two covering periods before, during, and after commissioning of acts of piracy. Lack of voluntary or intentional character of the relevant act could exclude it from being qualified as piracy, although that does not exclude possible prosecution on other legal bases.
11.3.1Illegal act of violence, detention, or depredation
This element of the definition of piracy is probably the least controversial. It is also broadly recognized that this element includes not only violence, detention, or depredation per se but a threat of violence as well. Therefore it could be argued that in situations when actual violence has not taken place, for instance due to successful evasive manoeuvres by the ship, protective measures of the crew, or security personnel on board, a mere threat of assault against a ship or crew is sufficient to satisfy this threshold of the definition. It does not matter that Article 101 has no direct reference to attempted acts of piracy, since if attackers were repelled before any theft or damage occurred, presumably that attempted attack should be still characterized as an act of violence. It follows also that damages or loss of life or property are not necessarily required in order for an act to be considered a piracy.
That interpretation is seemingly shared by the IMO, which in its Code of Practice for investigation of piracy encourages States to cooperate in investigation of ‘attempted acts of piracy’.12 It is also supported by judicial practice. In the case The Republic vs. Houssein Mohammed & ten (10) others, (Criminal Side No. 19 of 2011):13
… all the accused … unlawfully attempted to attack the vessel—Draco while in a speeding skiff whereupon it was turned away by gunfire from the security officers on the said vessel. The accused had been arrested on the skiffs within the vicinity of the Draco by the helicopter and the vessel Canarias that answered the distress call sent out by the Draco.
There was no damage caused on the vessel and none of the crew members was injured. The evidence showed that there was no firing of rifles at the Draco. Nevertheless the Supreme Court of the Republic of Seychelles sentenced the accused to sixteen years in prison, out of a maximum sentence of thirty years prescribed by the law of Seychelles, in view of mitigating circumstances.
In another case14 (the failed night-time attack on the USS Nicolas, the US Navy frigate that the attackers apparently thought was an unarmed freighter) two out of five Somalis were charged with piracy, although they remained on board the larger ship to maintain that ship, and were not present on board a smaller vessel, specifically dispatched for the attack.15 It should be noted however that a completely different position was taken in a similar case of a failed attack against the USS Ashland, an amphibious assault ship that was mistaken for a merchant ship. The judge dismissed piracy charges against six defendants, ruling that since the attack on the USS Ashland failed, no robbery occurred, so the piracy charges could not stand.16
At the same time the explicit reference to ‘illegal’ acts of violence is unclear. It is very much up to the courts of the State that decides to exercise its jurisdiction and to prosecute alleged offenders to determine whether the act of violence is illegal under domestic law.
Understanding of the word ‘violence’ in the UNCLOS definition of piracy also sometimes is criticized as being unclear and leading to the possibility of encompassing within piracy minor acts that unwarrantedly subject a person to harsh penalties which are not justified by circumstances and would open the option of possible interference by another party through application of the concept of universal jurisdiction. Although it is obvious that articles on piracy have never been intended to apply to minor acts, the precise threshold of violence that triggers qualification of an act as piracy is mostly left for the domestic courts to determine.
Piracy shall be committed for private ends. This requirement arguably has its historic roots. It is attached to the very nature of piracy that it must not be associated with any State. Therefore, it has been suggested that the notion ‘for private ends’ should be interpreted to distinguish between a State authorized act, for instance privateering, which is subject to the law of wars, and piracy as such, which is a criminal act. A warship as a rule cannot be a pirate ship, unless its crew has mutinied and taken control of a ship, thus making it in practice a private ship no longer associated with acts of a State.
UNCLOS does not define the notion ‘for private ends’. The origin of this requirement is attributed to the Harvard Draft and usually covers all possible private interests and gains, primarily financial, but also others, for instance vengeance or bare malice, that alleged pirates are expected to achieve as a result of their criminal activities.
It is generally accepted that an attack on a ship committed for political or other public purposes is not falling under the piracy definition contained in UNCLOS. Public aims during attacks on ships some times are submitted as a defence to piracy charges. It is important in this regard to emphasize that the test of ‘public’ or ‘private ends’ should be structured not in the pirates subjective motivation, but in whether the acts are authorized by or, as noted above, attributed to a State or other recognized belligerent party. It follows that relevant acts which are short of such attribution are acts commenced for ‘private ends’ and, subject to other elements, could fall under piracy acts. The above interpretation has significant practical consequences in the context of countermeasures against piracy acts, in particular in the waters off the coast of Somalia. Absence of State sanction negates possible claims of alleged persons not to be treated as pirates on the grounds that they were protecting Somali waters against illegal fishing or dumping.
It is not so straightforward with regard to violent maritime acts undertaken by the insurgents or terrorist groups, since there could hardly be an authorization from any State in such situation.17 In the case of the former, appropriate recognition from the international community as being a party to a conflict could be helpful in clarifying at least some of the acts although it does not mean the acts are justified.
The 1985 Achille Lauro incident caused a lot of discussion on the need to broaden the UNCLOS definition of piracy. Calls for expanding definition of piracy, specifically in the framework of maritime terrorism, gained new impetus after attacks on the USS Cole and the tanker Limberg in 2000 and 2002 respectively and the terrorist attacks on 11 September 2001. It is submitted that although for political and probably moral purposes equating piracy and terrorism perhaps could be warranted, for legal reasons it would be more useful if the treatment of these crimes stays separate. The root causes of each offence are rather different. While pirates are primarily motivated by financial incentives, preferably without attention, terrorists aim at intimidation and provoking fear among the general public and drawing attention to their declared political cause. Equating the two could even undermine both counter-piracy and counterterrorism regimes, as strategies and solutions to these scourges are rather distinct.
In accordance with the definition of the UNCLOS, two ships are required to constitute an act of piracy. It means that the illegal act of violence must be directed from a ship against another ship or persons or property on board that ship. The former shall be a ‘private ship’ while the latter does not necessarily need to be a private ship. It is also not required that the attacked ship flies a different flag from the attacking ship. Equally irrelevant is the size of either of the ships involved or whether the attacking ship is navigating by herself or is dispatched from a so-called ‘mother ship’. In the latter case both ships shall be considered pirate ships.
Crew seizure, mutiny, or overpowering of crew during the voyage by hijackers or other passengers who earlier gained passage on a ship will not be interpreted as piracy. This element also plays an important function of legally excluding a petty theft from wharves in ports from being considered as an act of piracy; nevertheless it includes attacks against small boats or yachts. It is probably the most vivid reflection of the traditional view of the act of piracy as an indiscriminate attack on ship by criminals seeking plunder.
The UNCLOS definition limits the offence of piracy to acts occurring on the high seas or in a place outside the jurisdiction of any State. It nevertheless should be noted that due to article 58 that provides for application of Articles 88 to 115 to the EEZ in so far as they are not incompatible with Part V of the UNCLOS, provisions on piracy are further extended into the EEZ. But in accordance with the UNCLOS definition violence in the territorial sea cannot be qualified as an act of piracy.
Article 58(3) contains obligations of ‘due regard’ to the rights and duties of the coastal State and of compliance with laws and regulations adopted by the coastal State in accordance with the provisions of the UNCLOS and other rules of international law in so far as they are not incompatible with Part V. It is generally acknowledged that reference to laws and regulations of coastal States is confined to the rights of coastal States in the EEZ provided for in Article 56, and are not subjecting enforcement powers of all States in suppressing piracy in the EEZ to the direct regulation of coastal States. It is on the other hand obvious that when exercising authority to combat piracy in the other States EEZ in accordance with the piracy regime of the UNCLOS, every State shall respect sovereign rights and jurisdiction of the coastal States in the EEZ.
As for the phrase ‘a place outside the jurisdiction of any State’ the International Law Commission pointed out that it refers to an island constituting terra nullius or the shores of an unoccupied territory.18
The geographical limitation proved to be important in the context of the piracy situation near the coast of Somalia, causing adoption of a number of resolutions by the United Nations Security Council (UNSC) authorizing enforcement action against piracy in the Somali territorial waters. But in the absence of the UNSC resolutions the issue of crossing into the territorial sea remains to be a problem in law enforcement against pirates.
Whether the concept of ‘assistance entry’ could be applied when a ship of one State witnesses a piratical attack occurring in the territorial seas of another is at least debatable. The concept stands on the presumption that a reasonable coastal State would not object to such urgent actions. It can be even asserted that the master of a ship, who is witnessing a piratical attack on another ship, might be under the duty to render assistance. Needless to stress in this regard that such assistance shall be limited to counter piracy actions and in no way threaten security or sovereignty of the coastal State. The right to seize the pirate vessel and to try the pirates in those circumstances nevertheless shall be, subject to agreement to the contrary, relinquished to the coastal State as it is in its sovereign waters that the ‘assistance’ took place. The ‘assistance entry’ concept perhaps may be employed also in coastal waters of so-called ‘failed States’, where there is no effective government capable of policing the territorial sea. Although discussions in the UNSC demonstrated that even in these situations States are reluctant to accept measures that might be interpreted as allowing infringement on their sovereignty. This concept is recognized in the practice of several States but definitely remains far from being universal. It should be noted in this regard that some regional agreements, for instance the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) and the Code of Conduct Concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden (Djibouti Code of Conduct) explicitly deny the right of foreign vessels to enter another State’s territorial waters in order to counter piracy.
The approach contained in the notion of ‘assisted entry’ draws parallels with a situation where pursuit of a pirate ship first encountered in the high seas by a warship or any other ship authorized in compliance with Article 107 of the UNCLOS shall be terminated in accordance with Article 111 of the Convention when the former enters the territorial sea of another State. Historically, proposals for a right to pursue pirate ships from the high seas into territorial waters in the Harvard Draft did not succeed.19 It may be suggested that no substantial changes towards recognition of the right to ‘reverse hot pursuit’, as it can be called, have taken place since that time. However, it is possible to interpret provisions of several international instruments, in particular in the fields of fisheries regulation or suppression of illicit drug trafficking, as providing for the right of reverse hot pursuit, albeit subject to the express consent of the coastal State. Further shifts on route for wider application of the concept of reverse pursuit could be useful in combating piracy, in particular through denying to pirates an opportunity to evade capture by taking shelter in the territorial sea of another State.
The geographical limitations discussed above do not mean that a State is free from obligation in the territorial sea to suppress piracy or cooperate in counter-piracy measures. Such obligation may exist pursuant to relevant bilateral or multilateral treaties or on the basis of other provisions of the UNCLOS and rules of international law. Some of these rules will be the subject of additional analysis in further sections. Nevertheless, one issue is worth still mentioning in the context of geographical limitations, namely, the definition of a pirate ship:
A ship … is considered a pirate ship… if it is intended by the person in dominant control to be used for the purpose of committing one of the acts referred to in article 101. The same applies if the ship… has been used to commit any such act, so long as it remains under the control of the persons guilty of that act.20
That definition of a pirate ship obviously includes reference to paragraph (c) of Article 101 on incitement or intentional facilitation of an act of piracy. It should be pointed out that neither incitement nor intentional facilitation is limited by Article 101 to the high seas; they are actually not limited to any geographical area and in practice apparently could take place on shore, in the territorial sea, or internal waters of any State (notably they are not even required to be perpetrated on board of a ship). It follows that a ship used to incite or facilitate acts of piracy shall be considered a pirate ship irrespective of its location. However, the enforcement power of States against such ships still depends on their location and in cases of other than coastal States, subject to applicable international agreements, cannot extend beyond the high seas. That also creates a situation when in the high sea any State may seize a ship that earlier incited or facilitated piracy act from within territorial sea.
11.3.5Jurisdiction and cooperation
Under Article 105, on the high seas, or in any other place outside the jurisdiction of any State, every State, even without any nexus with the act of the piracy, has jurisdiction to seize a pirate ship or any ship taken by piracy and under the control of pirates, arrest the persons, and seize the property on board. Once seized the courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regards to the ships or property. This is commonly referred to as the universal jurisdiction for apprehension and prosecution of pirates. It introduces a major exception to the general rule of international law of the sea, that on the high seas a ship shall be subject to exclusive jurisdiction of its flag State. Bearing in mind also provisions of Article 106 it could be maintain that such exception is extended even to a ship suspected of piracy.
Universal jurisdiction concerning the crime of piracy distinguishes it as being in the category of the most serious crimes, which include slavery, genocide, war crimes, and crimes against humanity. It is not only because of its gravity that piracy is recognized in this category, although some legal scholars challenge that justification by comparing piracy to mere property offences or hostage-taking committed on land and also recalling the practice of privateering that used to be accepted in times of war when piracy had already been considered a crime. An additional rationale that explains early recognition of universal jurisdiction over crimes of piracy is the interest of every State in freedom and safety of navigation and specific territorial place, or locus delicti—the high seas, where jurisdiction is attributed towards the flag State. It is worth recalling that other crimes which fall under the category of universal jurisdiction do not expand the right of States to make arrests outside their own territories.