Combating maritime piracy
S. M. Mohiuddin Hasan
Piracy is an international problem disrupting global trade and endangering human lives and property. It poses serious threat to the safety of navigation and as well as to the marine environment. In common parlance, piracy is generally understood as violence or depredation on the seas for private ends without authorization by public authority. However, there exist no authoritative definition of the term as there is no unified view as to which acts should be considered piracy. This has led to persistent confusion in arriving at any common understanding of the 'piracy problem'. Several United Nations Instruments address the problem of piracy, including the convention on the High Seas, the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention), the Convention on the Law of the Sea (UNCLOS). However, from a practical point of view, understanding of piracy is somewhat confusing as the current system reports all crimes against ships as piracy. In addition, the definitions of the term under different legal instruments appear in some cases to be inadequate having also limitations of its own and in some cases tend to overlap with certain other types of distinct nature of maritime crimes, for example, armed robbery, maritime terrorism, unlawful acts against ships etc.
Piracy and armed robbery against ships
The international definition of piracy is part of the 1982 “United Nations Convention on the Law of the Sea” or UNCLOS. According to Article 101 of the UNCLOS, 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 inciting or of intentionally facilitating an act described in sub-paragraph (a) or (b)."
The UNCLOS definition of piracy developed into international law and has also been recognized and accepted by the International Maritime Organization (IMO). Thus, according to international law, any illegal acts of violence and detention which are committed within state's territorial waters are not defined as piracy. However, such act has been defined as “Armed robbery against ships” by IMO. According to IMO, "Armed robbery against ships" means any of the following acts:
(a) any illegal act of violence or detention or any act of depredation, or threat thereof, other than an act of piracy, committed for private ends and directed against a ship or against persons or property on board such a ship, within a State's internal waters, archipelagic waters and territorial sea;
(b) any act of inciting or of intentionally facilitating an act described above".
Piracy under international law therefore has to be conducted in the International Waters, otherwise it will be classified as an “Armed Robbery” and falls into the jurisdiction of each individual state. It is to be noted that the most piratical acts takes place in territorial waters, and such acts are therefore not in the true definition of the word, piracy. According to the IMB, nearby all illegal acts in Southeast Asia occur within territorial waters and thus would not fall under the definition of piracy, though such acts are often misquoted as piracy. Technically, if an attack occurs within the territorial jurisdiction of a state, the event is only classified as piracy if that nation's penal code criminalizes it as such. In order to overcome the distinctions between high seas and territorial waters, the IMB (International Maritime Bureau) defines piracy as:
“an act of boarding (or attempted boarding) with the intent to commit theft or any other crime and with the intent or capability to use force in furtherance of that act.”
This definition is broader than the international legal definition. The definition is not concerned with a formal legal definition but can be mentioned as a quite practical one in a way to effectively register pirate attacks. This functional and widely used definition thus covers actual or attempted attacks whether the ship is berthed, at anchor or at sea but excludes petty thefts unless the thieves are armed. Article 101 of UNCLOS also restricts piracy to actions for private ends, such as extracting ransom. Acts that are politically motivated i.e. done with the objective of intimidating a population or of compelling a government or an international organization to do, or to abstain from doing any act, do not qualify to be acts of piracy.
Piracy and maritime terrorism
Terrorism at sea is a recent phenomenon as compared to piracy. Piracy has increasingly been linked with the risk terrorist attacks at sea. Both, piracy and acts of terrorism are international or transnational crime. Although they are distinct crimes, the distinctions between the two are narrow and unclear. Due to this reason, pirate attacks are sometimes labeled as maritime terrorism. For example, the attack in January 2004 on an Indonesian fagged product tanker MV Cherry 201 was conducted by members of the Free Aceh Movement (FAM). This group is an internationally recognized terrorist group, but the event was recorded as pirate attack.
Piracy and terrorism generally has a tendency to overlap as both have a lot in common. For example, in both the cases, the attack against ships is caused by high speed boats carrying personnel armed with sophisticated weapons. The methods used to seize a ship are also in general similar. Both crimes involve bands of brigands that divorce themselves from their nation-states and form extraterritorial enclaves; both aim at civilians; both involve acts of homicide and destruction. In addition, the two may also overlap in the sense that pirates may provide training to the maritime wing of international terrorist groups or the terrorist groups may use pirate groups for arms smuggling. Nonetheless, piracy and terrorism are not interchangeable phenomena. Piracy is primarily motivated by private gains, while terrorism is motivated by political objectives.
Piracy and unlawful acts against shipping
The SUA convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation complements the UNCLOS provision regarding piracy. Article 3 of the SUA Convention defines the relevant convention offences. Where it does not explicitly refer to acts of piracy as such or to the definition of piracy contained in article 101 of UNCLOS, many of the acted listed in Article 3 contain the basic elements which typically fall within the crime of piracy. The SUA treaty constitutes an international response against terrorism abroad ships and fixed platforms and armed robbery at sea. It contributes to the implementation of Article 101 of UNCLOS, and the thwarting of armed robbery. However, the primary function of the SUA Convention is not the suppression of maritime terrorism, but the apprehension, conviction and punishment of those who commits such acts.
Crimes against ships differ in implementation, objectives and type of perpetrators. Different definitions of piracy exist as an effort of several institutions. However, the lack of standard and comprehensive definition of piracy results in some subjectivity in the available statistics. Given the diverging definitions of piracy in international legal systems, it is argued that greater uniformity in the law is required in order to strengthen anti-piracy legal instruments. It is also argued that a consistent definition would help prosecutors punish criminals as the actions of a pirate must agree with the definition of piracy to lead to a criminal conviction. The international sea piracy law seems to be handicapped by the fact that its geographical scope of application excludes territorial waters, a maritime zone where the majority of piratical acts, better known as armed robbery against ships in the IMO definition, take place nowadays. If these acts are to be seriously confronted and suppressed then it is imperative that the international legal regime on piracy applies also territorial waters. Moreover, the definitional requirements in UNCLOS preclude the applicability of piracy laws to acts of maritime terrorism. Furthermore, the UNCLOS definition of piracy includes a 'two-ship requirement' i.e. the illegal act must be committed by one ship against another ship. This requirement precludes numerous maritime terrorist acts from being classified as piracy. Therefore, it is also equally necessary that the world adopt a new legal definition of piracy that acknowledges the piracy-terrorism link.
The writer is Assistant Professor, Department of Law, Premier University, Chittagong.