Piracy Issues Developing In International Law

Piracy has revived on an international scale and become a major problem in several areas of the world.  Piracy is now rampant off the Somali coast, the straits of Malacca, Singapore, and in the waters between the Pacific and Indian ocean, particularly Malaysia and China.  However, modern day pirates are not operating in a legal vacuum.  As one of the oldest international crimes, the legal rules regarding piracy are quite developed.  Nonetheless, modern circumstances and international norms that developed after the 18^th century’s “golden age of pirates”^[1] complicate today’s anti-piracy efforts.

France has tried pirates itself while the UK and US have turned pirates over to Kenya for trial.

In April 2008, France captured six pirates in the Somali desert in a helicopter raid just after they released hostages.[2]  The pirates were flown by military plane, with the Somali President’s consent, to Paris to be prosecuted.[3]  This seems to be in line with the United Nations Convention on the Law of the Sea (UNCLOS) which states “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 regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.”[4]

The British view on trying pirates is at odds with the French.  The UK has handed over numerous pirates for trial in Kenya.[5]  Kenya seems to be a willing participant; in November 2006, Kenya sentenced ten Somali pirates to seven years in prison after they were captured by the US navy.[6]  In an effort to harmonize piracy trials, the international naval and shipping authorities have called on the Security Council to adopt guidelines for trying maritime criminals and to allow for international military action onshore in Somalia.[7]

The international community has a mixed response to using naval force against pirates.

British, French, and Indian warships are actively escorting commercial and food aid ships around Somalia,[8] and the European Union is set to launch its first united naval action in the region in December 2008.[9]  Operation Atalanta, as it is called, will add eight ships to the international effort.[10]  Additionally, NATO has dispatched a “formidable multinational force” which will include British, Italian, and Greek ships to join the American, French, Canadian, and Danish vessels already present off Somalia’s coast.[11]

However, despite the clear definitions of piracy and obvious international obligation to fight pirates discussed below, some countries have been more hesitant than France (who captured six pirates in the Somali desert earlier this year) and India (who recently sunk the pirates’ purported “mothership”).[12]  For instance, the UNCLOS limits possible naval responses by requiring that any action be carried out “with all possible considerations.”[13]  With this tentative and vague provision in mind, some warships in the region have been reluctant to intercept and search suspected pirate ships.[14]  Additionally, some countries are struggling with how to reconcile competing international and domestic law.  For example, the UK Foreign Office issued a legal opinion expressing concern about the British Human Rights Act.[15]  Pirates captured by the British navy must be sent to Kenya rather than back to Somalia where they may face harsh treatment.[16]

The Security Council has authorized military action against Somali pirates.

The UN Security Council has issued two resolutions, both of which are fully supported by the Transitional Federal Government of Somalia (TFG), the official but ineffective government in the country.[17]  Resolution 1816 states that for six months after the resolution is passed, states cooperating with the TFG in fighting piracy off of the Somali coast, with advance notification to the TFG, can enter the territorial waters of Somalia to repress, using “all necessary means,” acts of piracy in a manner consistent with international law.[18]  Subsequently, Resolution 1838, passed in October 2008, authorizes using “all necessary means” to stop piracy in international waters.[19]

Pirates can be tried under universal jurisdiction but some countries are hesitant to do so.

Customary international law has long held that piracy is a violation of the law of nations, and is therefore one of the few crimes for which there is universal jurisdiction.[20]  The American Jurisprudence definition of piracy indicates that “Piracy is inherently an offense against the law of nations.”[21]  The Restatement Third of Foreign Relations states that “A state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism” even where other bases of jurisdiction are absent.[22]  The Reporters’ Notes further observe that “Since there is no international penal tribunal, the punishment of piracy is left to any state that seizes the offender.”[23]

Nonetheless, several of the countries patrolling the region around Somalia are concerned about international norms that have developed since the custom of universal jurisdiction for piracy solidified 400 years ago, especially human rights.  Traditionally pirates were considered “illegitimate hostiles” subject to summary execution by whoever captured them.[24]  Today, however, patrolling countries worry about how to try the pirates once they are captured. 

Many Western nations have effectively abandoned the historical legal rules that permit irregular fighters like pirates to be tried in special military or admiralty courts and instead use the general criminal justice system.[25]  Doing this however, creates problems for Western states.  First, “common criminals cannot be targeted with military force.”[26]  Second, countries that allow pirates to enter the general population in their domestic criminal justice system open themselves up to possible asylum claims from the pirates.[27]  Apparently in response to this concern and other possible human rights violations, the British Foreign Office reportedly warned the UK navy not to detain pirates last April.[28]  Similarly, the Danish navy set ten pirates free in September after holding them for six days.[29]

Additionally, patrolling countries committed to upholding international human rights standards cannot return pirates to Somalia for trial because of two opposing concerns.  First, pirates might face Shari’a law if tried by the Islamists currently controlling large portions of the country, a clear violation of most Western States’ human rights policies.  On the other hand, Somali officials may be subject to corruption or intimidation by strong pirate gangs in the failed state which may lead to no prosecution at all if pirates are returned.[30]

The international community is obligated to fight piracy.

Half a century ago, the international community codified the existing customary international law regarding piracy in the Geneva Convention on High Seas of 1958.[31]  That convention as well as the UNCLOS state that “all States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.”[32] 

The UNCLOS entered into force in 1982 and has been signed but not ratified by the United States.  The United States objected specifically to Part XI of the Convention which provides for a regime relating to minerals on the seabed outside any state's territorial waters or Exclusive Economic Zone (EEZ) and establishes an International Seabed Authority (ISA) to authorize seabed exploration and mining and collect and distribute the seabed mining royalty.  However, the United States considers the remainder of the Convention, including the portions related to piracy, to be binding as customary international law.[33]  Somalia, the hotbed of modern piracy, ratified the UNCLOS in 1989.[34]

The international community has an obligation to fight piracy stemming directly from these multilateral treaties.  For instance, the UNCLOS states, “On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board.”[35]  Additionally, it states that official navy ships are the only vessels permitted to fight piracy on the high seas.[36]

Piracy is clearly defined in international law.

The UNCLOS defines “maritime 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).^[37]

Another influential definition comes from the International Maritime Bureau (IMB) which 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 sue force in furtherance of that act.”^[38]  Such clear-cut definitions combined with the nature of piracy itself mean that the problems that have plagued the US in categorizing fighters and terrorists as legal or illegal combatants will not likely arise in the piracy context.[39]

Webmaster’s Note: As is discussed in Sutter’s forthcoming article (fn 1), the international community ought to consider the potential for something like the “Q” ships used in World War I to combat German submarines. Auxiliary naval vessels disguised as unarmed merchantmen, and carrying naval crews and weapons, seem to be a potentially effective weapon against pirates. The deterrent effect might be magnified by publicizing the deployment, since pirates could not be sure that any vessel hadn’t been converted for temporary duty on hostile shores.

Documents

UNCLOS:

Geneva Convention on High Seas 1958:

UNSC Resolution 1816:

UNSC Resolution 1838: