Trading the Shield of Sovereignty for the Scales of Justice: A Proposal for Reform of International Sea Piracy Laws

Author:by Mike Madden

Contemporary piracy represents a large and complex threat to international security. The crime has evolved to the extent that it no longer conforms to its antiquated definition, and the rationales that underlie the ‘high seas’, ‘private ends’ and ‘two ships’ requirements of the crime articulated within UNCLOS 1982 have no relevance in the new millennium. Piracy should be redefined to include the... (see full summary)

  1. INTRODUCTION In the year 75 B.C., pirates captured young Julius Caesar and held the future Roman leader for ransom.(1) On November 15, 2008, pirates hijacked the oil tanker MV Sirius Star approximately 450 nautical miles (NM) from the coast of Kenya, and did not release the vessel until January 8, 2009, when a ransom of some $3 million (USD) was reportedly paid on behalf of the vessel's owner.2 As these two incidents demonstrate, the problem of piracy is one that spans several millennia; in fact, the phenomenon of piracy has plagued sailors ever since man first started navigating the seas.3 Similarly, prohibitions against piracy have formed part of the law of nations 'for as long as sovereignty-based jurisdictional principles have existed'.4 Unfortunately, however, the body of international law relating to piracy has remained virtually unchanged over the last two centuries, while the crime itself has evolved dramatically. Conventional international law of the sea, as expressed within United Nations Convention on the Law of the Sea(5) (which is itself largely a codification of customary law of the sea), seems tailored to combat forms of piracy that predominated during the age of sail, when pirates tended to operate in international waters, using their own ships6 to attack merchant ships in order to accumulate wealth for private purposes.7 Contemporary pirates, however, operate in regional 'clusters' wherever the rule of law is weakest - often within the territorial seas of failing, failed, or apathetic states;8 they seek to gain control of target vessels by any means, including hijacking;9 and they are often driven by complex motives that are both political and private.10 In other words, the legal characterization of piracy at international law no longer conforms to the reality of the crimes that are actually being perpetrated on the water today.

    The disconnect that now exists between the theoretical definition of piracy at international law and the contemporary reality of the crime as manifested in a majority of recent acts of violence and robbery at sea is troubling for more than merely semantic reasons. Piracy is one of a very limited number of international crimes to which universal jurisdiction attaches; in fact, piracy is BOCCONI SCH. L. STUDENT-ED. PAPERS, PAPER NO. 2009-11/EN 4 the original 'universal jurisdiction' crime.(11) The major benefit of allowing any state to apprehend and prosecute pirates is readily apparent: some form of naval presence is required in order to catch pirates at sea, but many states that would otherwise have jurisdiction over an act of piracy (according to more common 'territoriality', 'nationality', or 'passive personality' bases of jurisdiction)12 might not have naval forces capable of apprehending the offending pirates. Thus, international law logically permits any state to exercise jurisdiction over the crime, presumably to increase the likelihood that it will be properly punished. However, because the doctrine of universal jurisdiction is applied so restrictively at international law, any inconsistencies between the legal definition and the actual phenomenon of piracy will serve to remove most acts of maritime violence from the domain of universal jurisdiction crimes. In other words, the disparity that currently exists between the legal definition of piracy and the reality of 'piratical'13 acts at sea operates to unnecessarily deny capable states of the jurisdiction that they require to apprehend and prosecute pirates.

    In order to prevent international law of the sea from becoming an obstacle to global anti-piracy efforts, I believe that the legal definition of piracy must be expanded to include virtually all acts of maritime robbery and violence, on the high seas and in territorial waters, and all states must remain capable of asserting universal jurisdiction over such acts. In developing my argument in this respect, I will first define and summarize the history of piracy (in Part II of this paper), demonstrating in detail what the crime was and what it has become. In Part III, I will demonstrate the flaws in the existing UNCLOS definition of piracy by referring to several high-profile acts of maritime violence that have taken place over the last thirty years and to the current piracy endemic off the coast of Somalia, in an attempt to formulate a more appropriate definition of the crime at international law. Next, in Part IV, I will suggest why universal jurisdiction must continue to attach to the crime of piracy, and will discuss possible grounds of objection to the idea of expanding universal jurisdiction over crimes at sea. Finally, in Part V, I will posit some of the possible means by which the definition of piracy could be modified to effect the changes that I advocate in this paper. Ultimately, I hope to show that efforts to combat piracy would be greatly facilitated by an amendment to the definition of the crime that results in an extension of universal jurisdiction to a more broad range of piratical acts.

  2. DEFINITION AND HISTORY OF PIRACY In order to frame the ensuing discussion, it is now appropriate to consider the legal definition of piracy, as expressed within UNCLOS. Article 101 of the convention states that '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 TRADING THE SHIELD OF SOVEREIGNTY FOR THE SCALES OF JUSTICE: 5 A PROPOSAL FOR REFORM OF INTERNATIONAL SEA PIRACY LAWS 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)'. (14) For the purposes of this paper, the problematic elements of the definition of piracy are all contained within subparagraph (a) of Article 101, and are emphasized in bold text, above. Essentially, an act must be committed for private ends, in international waters, and by one vessel against another in order to be considered piracy at international law. Although this definition is now arguably obsolete in light of contemporary pirate practices, a brief examination of certain aspects of the history of the crime will reveal the origins of the definition, and its initial correspondence with the phenomenon of piracy.

    1. The 'Private Ends' Requirement Although it might seem unusual to incorporate a test of a perpetrator's motive(15) into a definition of a crime, such a measure was originally necessary at international law in order to distinguish piracy from privateering. Privateering was essentially state-sponsored piracy: the privateer was issued a 'letter of marque' from his monarch that authorized him to capture enemy ships on the high seas. Upon returning home, the privateer would then be forced to prove to a domestic Prize Court that the captured vessel had been lawfully seized - that is to say, that the conditions set forth in the letter of marque had been respected. Typically, these restrictions were not onerous and would simply indicate which nation's vessels could be targeted, and some criteria relating to the treatment of captured crew members. If the seizure was deemed lawful, then the vessel would be sold, and the proceeds would generally be split between the crown (10%) and the privateers (90%).16 Thus, a state that sanctioned privateering would enjoy a double benefit from the enterprise: the crown would derive direct revenue from the sale of captured vessels, and in wartime it would inflict indirect losses on an enemy state's merchant shipping through the actions of unfunded privateers.

      As several commentators have observed, and as is evident from the above description of privateering, the actions of pirates and privateers were identical, and it was only the letter of marque that legalized the conduct of the latter.(17) In other words, piracy was acceptable as long as the respective crown received a portion of the spoils. Furthermore, it is apparent that states had little cause to complain about privateering, even when their country's vessels were targeted, since BOCCONI SCH. L. STUDENT-ED. PAPERS, PAPER NO. 2009-11/EN 6 the crown would suffer no direct loss if a privately owned merchant vessel were captured. In spite of the prevalence of privateering during the 18th and early-19th centuries, England began to actively combat piracy during the same period,(18) if for no other reason than for the failure of pirates 'to comply with the formalities of licensing'.19 Thus, as a definition of piracy began to emerge at international law, it became important to distinguish between state-sanctioned acts of robbery on the high seas (which were condoned by all states) and unsanctioned acts of robbery. In light of this historical context, it is not surprising that customary international law saw a 'private ends' requirement incorporated into the definition of piracy. This element of the crime of piracy was eventually written into the 1932 Harvard Draft Convention on Piracy,20 the 1958 Geneva Convention on the High Seas,(21) and UNCLOS,22 and now forms part of the existing definition of piracy at international law.23 While the need to differentiate between criminal acts of piracy and state-sanctioned privateering ventures may have been necessary up until the mid-nineteenth century, it is not clear why the 'private...

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