The 1982 UN Convention and piracy off the coast of Somalia

This essay explores an important crime that dramatically increased during the last two decades, known internationally as piracy. This essay now begins by exploring the evolution of this phenomenon, providing a definition to it, and in particular aims to understand how it has been faced by the international community.

Piracy crime - a term which comes from the Latin word pirata that means sea robber - exists since people discovered the advantages to traverse the oceans by ships in order to reach other lands and expand their trades^[1]. Indeed, as historically proved, when Western European nations tried to expand their market for importing products from around the world, coastal populations of the regions involved established an unlawful practice that allowed them to earn money from passing merchant ships^[2]. In particular, the practice cited above could consist of many different acts such as extortion or vessels boarding in order to steal the goods on board^[3]. Consequently, as it has been confirmed by Strickmann, the growth of this phenomenon was directly proportioned to the increase of maritime trade^[4]. At this stage the following question arises: what can be defined as piracy?

The first international definition of this phenomenon, has been offered by the Annexed Report to the 1927 League of Nations Committee of Experts for Progressive Codification of International Law. The Report mentioned above provided that:

“piracy consists in sailing the seas for private ends without authorisation from the Government of any State with the object of committing depredations upon property or acts of violence against persons. The pirate attacks merchant ships of any and every nation without making any distinctions except in so far as will enable him to escape punishment for his misdeeds. He is a sea-robber, pillaging by force of arms, stealing or destroying the property of others and committing outrages of all kinds upon individuals. Piracy [...] constitutes a crime against the security of commerce on the high seas, where alone it can be committed”^[5].

In my opinion, the quotation reported above highlights few important elements that had to be considered at that time, in order to recognise whether a particular act could be ascribed as a piracy crime or not.

The first important element, constituted by the portion of sea where the act had to be committed, was the high sea. The expression ‘high sea’ indicated a portion of sea outside a national jurisdiction and common to all the States. Consequently, an act of piracy committed on this portion of sea, represented an attack to all nations that was considered dangerous from the whole international community. For this reason, according to Matsuda, people who committed a piracy act, when captured, cannot invoke the jurisdiction of the State’s flag flying on their vessel at the moment of the attack^[6]. This circumstance has also been confirmed by the Permanent Court of International Justice with the 1927 Lotus decision^[7]. The Court, stating that piracy was a crime against the international community, recognised the principle of the flag State jurisdiction, except in case of piracy. In other words, the cited Court, in case of piracy, recognised a universal jurisdiction by which any State could take action against pirates in the interest of the entire international community.

The second element concerned the animus actione that had to exist in order to qualify an act as piracy. This element was identified with the phrase ‘for private ends’, introduced to highlight the difference between piracy and any other form of violence such as acts of political terrorism, characterised by ideological ends^[8]. In other words, any ideological acts were excluded from the piracy concept and, therefore, not punished as a pirate act.

The last but not least important element, could be identified from the analysis of the cited phrase ‘ the pirate attacks merchant ships’. Accordingly, piracy occurred only if a merchant ship was attacked from another private ship classified as a pirate’s ship. Consequently, a public vessel that committed a pirate act against another ship, was obligated to compensate the latter and those of its crew who had suffered damages, but not be punished for piracy crime^[9]. Moreover, an act committed by a crew against its own vessel could not be considered a piracy crime because was not perpetrated from one ship against another. In other words, this kind of crime, that in the modern context is defined mutiny^[10], could not be punished by any States under the universal jurisdiction.

The international definition of piracy has been slightly edited by many international documents^[11] during the twentieth century. The most recent is provided by the 1982 United Nation Convention on the Law of the Sea (UNCLOS)^[12]. Its Article 1 defines as piracy:

“(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 person 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)”.

Moreover, the UNCLOS has introduced few provisions that concern the measures that States can accomplish in order to prevent or face a piracy attack. In particular, a part of Article 110 that recognises States warships to put into effect the right to visit a suspected ship in order to ascertain if it is involve in piracy^[13], Article 105 provides that:

“On the high sea, or in any place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, [...] and arrest the person and seize the property on board. The court 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 ship, aircraft or property, subject to the right of third parties acting in good faith”^[14].

As it can be noticed by the quoted article above, UNCLOS allows member States, on the one hand to arrest pirates and seize their ship, on the other hand to prosecute them under the jurisdiction of the seizing State. However, the word ‘may’ included in Article 105, make the latter applicable discretionary. Indeed, according with the analysis of the Article cited above, there is an obligation neither for States to seize a pirate ship or aircraft and arrest pirates nor for the courts of that State to prosecute the pirates^[15]. In other words, this article, even though it provides important measures to take in order to fight the piracy on the high sea, does not make those measures compulsory for member States.

[...]

^[1] B. A. Elleman, A. Forbes and D. Rosenberg, “Piracy and Maritime Crime, Historical and Modern Cases Studies”, 2010, Naval War College Press, p. 25.

^[2] A. J. Young, “Contemporary Maritime Piracy in Southeast Asia: History, Causes and Remedies”, 2007, Institute of Southeast Asian Studies, pp. 24 – 43.

^[3] See note 1, p. 2.

^[4] E. Strickmann, “EU and Nato Efforts to Counter Piracy off Somalia: A Drop in the Ocean?”, 2009, International Security Information Service Europe, pp. 1 – 4.

^[5] M. Matsuda and M. Wang Chung-Hui, “Annex Report of the 1927 League of Nations Committee of Experts for Progressive Codification of International Law”, 1926, The American Journal of International Law, Vol. 20, No. 3, pp. 223 – 229.

^[6] See note 5, p. 224.

^[7] Lotus Case, Pubblications of the Permanent Court Of International Justice, 1927, Series A, No. 10, http://www.icj-cij.org/pcij/series-a.php?p1=9&p2=1&PHPSESSID=6821b80294576cac2fd3332af758cd1b.

^[8] D. Guilfoyle, “Shipping Interdiction and the Law of the Sea”, 2009, Cambridge University Press, p. 32

^[9] See note 5, p. 225.

^[10] In this case the mutiny occurs when a naval crew revolts against the superior officers and takes the control of the ship.

^[11] See the definition contained in the 1932 Harvard Draft and 1958 Geneva Convention on the High Seas.

^[12] See 1982 United Nations Convention on the Law of the Sea, http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf.

^[13] See note 12, Article 110.

^[14] See note 12, Article 105.

^[15] A. Roach, “Agora: Piracy Prosecution”, 2010, The American Journal Of International Law, Vol. 104, No. 397, pp. 403 – 404.