Fighting Maritime Piracy – On Possible Actions and Consequences
C. The legal framework for counter-piracy enforcement
The legal framework setting out counter-piracy enforcement powers can be described as fragmented due to the fact that it consists of different legal acts and it leaves certain unanswered questions. However, it can be argued that UNCLOS is the rather solid “legal backbone” of counter-piracy, set-ting out the main scope of counter-piracy enforcement powers.
I. UNCLOS definition of piracy
As mentioned above, international law considers piracy an unlawful act and expects all states to engage and cooperate in the “repression of piracy
19 Søværnet; Søværnets Operative Kommando, Fakta om Nato’s anti-pirateri opera-tion Operaopera-tion Ocean Shield: http://forsvaret.dk/SOK/Internaopera-tionalt/OCEAN/Pages/defau lt.aspx (last visited 30.8.2012).
20 BBC, Special report: Pirates hoist ransoms for hijacked ships: http://www.upi.co m/Top_News/Special/2011/01/19/Pirates-hoist-ransoms-for-hijacked-ships/UPI96711295 459904/ (last visited 30.8.2012).
21 One Earth Future/Oceans Beyond Piracy, The Economic Costs of Somali Piracy:
http://oceansbeyondpiracy.org/sites/default/files/economic_cost_of_piracy_2011.pdf (last visited 20.9.2012).
22 The question of the human cost of Somali piracy is analysed in the following r e-port: International Maritime Bureau/Oceans Beyond Piracy, The Human Cost of Somali Piracy 2011, 2012: http://oceansbeyondpiracy.org/sites/default/files/hcop_2011_vers ion1_4_2.pdf (last visited 20.9.2012).
on the high seas” (art. 100 UNCLOS). The act of piracy is defined in arti-cle 101 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 of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).”
In its essence, piracy consists of a number of illegal acts (violence, deten-tion or acts of deprivadeten-tion) committed against a ship and its crew/passengers. The wording in article 101 in connection with the use of plural (e.g., “illegal acts of violence”) and singular (e.g., “any act of dep-redation”) has raised the question of whether one of those acts is sufficient to define an act of piracy or if more than one act has to be committed be-fore an attack against a vessel is understood as piracy. Furthermore the question has been asked which legal system defines whether such an act is illegal.23 Those questions seem, however, to be mostly of academic rele-vance as there is no serious doubt in the legal debate that the attacks com-mitted against vessels in the Horn of Africa region should be categorised as acts of piracy.
Piracy is committed “on the high sea” or “outside the jurisdiction of any state”. This leads to the question of whether acts committed in the Exclu-sive Economic Zone (EEZ) are acts of piracy under UNCLOS. Guilfoyle argues in this context that the UNCLOS provisions on the high sea regime (including the provisions concerning piracy) apply to the EEZ as long as those are not incompatible with the UNCLOS provisions on the EEZ. As this is not the case, due to the fact that the specific EEZ regime is mainly focusing on exploiting, conserving and managing natural resources, the geographical limitation of the UNCLOS definition of piracy should be un-derstood as acts committed anywhere seawards beyond the territorial sea, e.g., including acts committed in the EEZ.24
Concerning piracy, the geographical limitation of UNCLOS means that the above-mentioned acts against vessels in territorial waters fall outside the UNCLOS definition of piracy. Such acts may be covered by other
23 Guilfoyle (2009), 3 and Geiss/Petrig (2011), 60.
24 Guilfoyle (2009), 2.
ternational legislation (see below) and are usually referred to as “armed robbery at sea”, “armed robbery against ships”25 or similar expressions.
The use of language concerning acts similar to piracy but committed in territorial waters is not consistent, relevant Security Council resolutions use for example different expressions and the intended, or not-indented, implications of the different terminology remains unclear.26 However, in the context of the general legal framework for counter-piracy activities it is sensible to use consistent language by referring to acts covered by UN-CLOS article 101 as “piracy” and to similar acts in territorial waters as
“armed robbery at sea”.27
Another element of the UNCLOS definition of piracy is the so-called
“two-ship-requirement”. Acts of piracy are committed from one (private) vessel to another. Internal attacks, for example conducted by terrorist pos-ing as passengers of a vessel as occurred in the Achille Lauro incident in 1985, are not within the scope of the UNCLOS definition of piracy, but are currently covered by the SUA Convention (see below).28
Furthermore, as stated above, the vessel from which the act of piracy is launched has to be a private vessel and UNCLOS requires that the acts are
“committed for private ends”. The interpretation of this requirement has triggered a substantial legal debate in which it is for example argued that the wording “for private ends” excludes all acts committed for political reasons and therefore acts of terrorism cannot be piracy.29 This is currently the position of the International Maritime Organisation (IMO).30 Guilfoyle argues, however, that the interpretation of “private ends” should distin-guish between acts sanctioned by State authorities (e.g., not for private ends) and non-state sanctioned acts (e.g., for private ends). According to this reasoning, the correct dichotomy in connection with the “for private ends” criteria is “private/public” and not “private/political”.31
In the context of Somali piracy, the pirates usually launch their attacks from smaller vessels (so-called “skiffs”) with the aim of hijacking a vessel and its crew for the purposes of receiving a substantial ransom and today it is widely accepted that the attacks against vessels in the Horn of Africa/
Indian Ocean Region usually fall under the UNCLOS definition of piracy, as long as the attacks are conducted outside territorial waters.32
25 See Murphy (2007), 155, 64. and Guilfoyle (2010a), 144.
26 See Gleiss/Petrig (2010), 72 ff.
27 Gleiss/Petrig (2010), 75.
28 Geiss/ Petrig (2011), 62 and Guilfoyle (2010b), 128.
29 On this debate see Geiss/ Petrig (2011), 61 with further references.
30 IMO Doc. LEG 98/8 2011, par. 14.
31 Guilfoyle (2010a), 143.
32 Feldtmann (2010), 103 ff. and Guilfoyle (2010a), 142 ff.
II. On the scope of counter-piracy enforcement powers granted by UNCLOS
In cases of (suspicion of) piracy, UNCLOS provides the contracting states with a range of counter-piracy enforcement powers. Article 110 (1) a) UNCLOS grants a right of visit of foreign flagged vessels in order to veri-fy an initial suspicion of piracy, the threshold to this right is “reasonable ground for suspecting” that a ship is engaging in piracy. The right to visit granted in article 110 is an exception to the general regime on the high seas where state vessels (war ships) are not allowed to interfere with ves-sels flagged in another state.33 When a “suspicion remains after the docu-ments have been checked”, the investigating state vessel has the right to
“proceed to a further examination on board the ship” (article 110 (2) UN-CLOS). The wording in article 110 (2) indicates that the powers given by UNCLOS extend proportionally while the initial suspicion is gradually sustained.34 If the suspicion is proved to be unfounded no further actions may be taken and compensation for any lost or damage shall be provided (article 110 (3) UNCLOS).
The powers granted by article 110 UNCLOS are aimed at confirming that the vessel in question is a “pirate ship” in accordance with article 103 UNCLOS. A “pirate ship” according to this provision is either a vessel intended to be used for acts of piracy as defined in article 101 or a vessel which has been used for such acts and which is still under the control of the persons who have committed those acts.35
If the suspicion that a vessel is either a “pirate ship” or a vessel that has been taken over by piracy and is still under the control of pirates is con-firmed, further enforcement powers are granted by article 105. According to this provision any state may seize a pirate ship (or ship under the control of pirates), arrest the suspected pirates and seize the property on board.
Consequently, any governmental vessel which meets pirates in internation-al waters has the right to take the necessary action concerning pirate equipment and arrest the (suspected) pirates. Concerning the disposal of pirate equipment (including the sinking of pirate ships), article 105 grants the courts of the seizing state to decide on what to do with pirate equip-ment and ships.36
Article 105 does not elaborate on the question of the use of (lethal) force under counter-piracy operations. The question of the use of force is not directly addressed anywhere in UNCLOS but is it is argued that
33 See Geiss/Petrig (2011), 55 ff. and article 110 (1) UNCLOS.
34 Geiss/Petrig (2011), 56.
35 Geiss/Petrig (2011), 59 and Guilfoyle (2009), 5.
36 Guilfoyle (2012), 775 f. On the question whether only the courts of the seizing state or indeed also other courts are granted powers by article 105 see below.
CLOS implicitly permits the use of force as a last resource.37 This opinion was confirmed by the International Tribunal for the Law of the Sea in which The M/V “Saiga” (No.2) Case pointed out that the use of force must
“be avoided as far as possible” but also accepted that the use of force may in certain circumstances be “unavoidable”. If unavoidable force is used the court requires that “it must not go beyond what is reasonable and neces-sary in the circumstances” and “Considerations of humanity must apply”.38 Guilfoyle points out that the use of force is also supported by the UN Basic principles on the Use of Force and Firearms by Law Enforcement Offi-cials, which permits the use of firearms in cases of self-defence or in de-fence of others and to prevent “the perpetration of a particular serious crime involving grave threat to life”.39 He argues that in certain circum-stances lethal force as a first resource (for example without first firing warning shots) under counter-piracy enforcement may be unavoidable, for example when attempting to free hostages.40 Situations where lethal force seems to be the only resource might occur but this should remain an excep-tion. It is therefore important to stress that the use of force in most cases will only be the last resource, after other, less intrusive means have failed, and the principle of proportionality must be obeyed.41 The use of lethal force in counter-piracy operations is to be avoided if other, less harmful, means are available in the specific situation.
In addition to the above-mentioned counter-piracy measures, article 105 also clarifies that:
“(...) The courts of the State which carried out the seizure may decide upon the penalties to be imposed (...).”
This means that the State seizing the pirates has the right to exercise crim-inal jurisdiction in connection with piracy. It is argued that UNCLOS arti-cle 101 in conjunction with artiarti-cle 105 enables any State (not only the seiz-ing state) to implement universal jurisdiction for piracy.42 This question is rather crucial in the context of Somali piracy because several navies en-gaging in counter-piracy enforcement have, after the initial seizing of the
37 Geiss/Petrig (2011), 68 f.
38 International Tribunal for the Law of the Sea, The M/V “Saiga” (No.2) Case, Saint Vincent and the Grenadines v. Guinea, Judgement of 1st July 1991, par. 155.
39 Art. 9 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, UN Doc. A/CONF.144/28/Rev.1, 7 September 1990.
40 Guilfoyle (2012), 773 f.
41 This position is illustrated in the mentioned The M/V “Saiga” (No.2) Case in which the court describes a number of measures which should be used before turning to the use of force: International Tribunal for the Law of the Sea, The M/V “Saiga” (No.2) Case, Saint Vincent and the Grenadines v. Guinea, Judgement of 1st July 1991, par. 156.
42 Feldtmann/Siig (2009), 71 and Gardner (2012), 803 ff.
suspected pirates, been transferring suspected pirates for prosecution to countries in the region, for example Kenya or the Seychelles, without any nexus between the piracy incident or the arrest of the suspected pirates and the receiving/prosecuting state.43 If the wording in article 105 would ex-clude others then the seizing state from initiating criminal proceedings this practice would be in conflict with international law. The legal debate con-cerning this question raises a number of points and legal arguments: going from the position that article 105 contains a “limited universality princi-ple” (meaning that only the seizing state is competent to exercise universal jurisdiction), to the argument that the provision only provides a “conflict-of-law rule” and to the position that the notion in article 105 only reaffirms that prosecution is based on domestic criminal law, to name some major points.44 The interpretation that article 105 does not grant the seizing state the exclusive right to prosecute is most convincing, not only because the opposite position is not in accordance with the general intention of the provisions on piracy and the idea of customary international law (and later codification) that all states are granted piracy enforcement powers and uni-versal jurisdiction45 over pirates. Furthermore, such a position would be in conflict with other regulations in international law granting to right to ex-ercise domestic jurisdiction due for example to the flag state principle.46
Article 105 does not express a general obligation of the seizing (or other states) to prosecute pirates. The wording in article 105 (“may”) is too weak to establish any obligation to subject suspected pirates to criminal proceed-ings. Also article 105 in conjunction with the general obligation to repress piracy as stated in the above mentioned article 100 (which is using the im-perative “shall”) establishes no explicit (or intended) general obligation to either subject suspected pirates to domestic criminal proceedings or to ex-tradite a suspected pirate to criminal proceedings in the receiving coun-try.47
III. Other relevant international legislation in connection with counter-piracy enforcement
The relevant provisions of UNCLOS are supplemented by other interna-tional legislation such as the above-mentioned SUA Convention and the
43 See Gardner (2012), 801 f., Geiss/Petrig (2011), 197 ff. and below D.
44 On the debate see for example Gardner (2012), 803 ff., Geiss/Petrig (2011), 148 ff.
and Kontorovich (2012), 4 ff.
45 On the concept of universal jurisdiction over piracy see Kontorovich (2004), 188 ff.
46 See Gardner (2012), 803 ff. and Geiss/Petrig (2011), 148 ff. with further argumen-ation for this position.
47 Feldtmann (2011), 184 and Geiss/Petrig (2011), 151 f.
Hostage Convention. The Hostage Convention might be relevant due to the mentioned modus operandi of Somali pirates, which includes the hostage taking of the crew. However, in the context of the Somali problem of pira-cy, the relevance of the Hostage Convention is limited and adds little con-cerning further enforcement powers, beside other reasons, because the ter-ritoriality and active personality principles do not work in the Somali context due to the fact that Somalia is not a party to the Hostage Conven-tion.48
The drafting of the SUA Convention was initiated in connection with the above-mentioned “Achille Lauro” incident, which revealed some gaps and limitations in UNCLOS piracy rules.49 Furthermore, the SUA Conven-tion was inspired by the United NaConven-tions General Assembly’s considera-tions concerning terrorism and terrorist attacks against ships.50 This does, however, not mean that the provisions of the SUA Convention are limited to acts of terrorism; terrorism is only mentioned in the preamble and is not an express element of the unlawful acts defined in the SUA Convention’s provisions.51
As indicated above, the SUA Convention does not focus on the problem of piracy nor does it deal directly with piracy in the UNCLOS sense, but rather it deals generally with unlawful attacks against vessels and maritime navigation. In article 5, the SUA Convention obliges the contracting states to criminalise certain specific acts against ships and their crews and pas-sengers defined in article 3. Those acts can be acts of piracy as defined in UNCLOS article 101 but also, for example, internal attacks on board a single vessel or acts committed in territorial waters as long as the attacked vessel has been or intended to navigate beyond a single state’s territorial waters.52 Certain acts of piracy as defined by UNCLOS are outside the scope of the unlawful acts defined in the SUA Convention, for example simple acts of theft from one vessel to another which are not interfering with the safety of navigation.53
The signatory states of the SUA Convention have the obligation to en-sure the legal basis for prosecuting such acts in their own legal system by establishing domestic criminal jurisdiction if they are committed against a ship sailing under the state’s flag, if the acts are committed in the state’s territorial waters or if they are committed by a citizen of the state (article 6
48 See Geiss/Petrig (2011), 162 and Guilfoyle (2009), 27 f.
49 Geiss/Petrig (2011), 42.
50 See UN General Assembly, A/RES/40/61, para 13, which “Requests the Interna-tional Maritime Organization to study the problem of terrorism aboard or against ships with a view to making recommendations on appropriate measures”: http://www.un.org/d ocuments/ga/res/40/a40r061.htm (last visited 15.10.2012).
51 Guilfoyle (2009), 12.
52 Concerning the geographical scope of the SUA Convention see article 4 (1).
53 See Guilfoyle (2009), 14.
(1)). Furthermore, the SUA Convention enables – but does not obliges – states to have jurisdiction in a number of other situations (article 6(2)), for example when a national of the state was “seized, threatened, injured or killed” under the unlawful attack.54
The master of a vessel on which a person suspected of having commit-ted illegal acts as defined in the SUA Conventions article 3 is present “may deliver” him55 to a contracting state, for example the nearest port state (ar-ticle 8 (1)).
The clear intention of the SUA Convention is that attacks against ships and maritime navigation should not only be criminalised on paper, but also that such acts should be prosecuted in domestic courts if a suspected perpe-trator is found in a contracting state. This intention is codified as an “ex-tradite or prosecute obligation” in the SUA Convention – however, the implications of this obligation are not quite clear and strongly debated.56 One of the main questions in the debate is whether article 10 (in conjunc-tion with article 6 (4)) generally obliges states to prosecute or if the obliga-tion is only triggered in situaobliga-tions when another state is requesting the ex-tradition and the state in which the suspect is present is denying the extradition.57 Geiss/Petrig interpret the relevant provisions in the SUA Convention as following the so-called “Hague Model”58, which means that the obligation to prosecute is not dependent on an extradition request by another state and its denial by the state in which the suspect is present.59 They argue further that even if the SUA Convention did not anticipate the situation where a suspect is not present at shore but on board of the state’s warships the obligation also in those situations remains.60
This understanding of the SUA Conventions provision on the “extradite or prosecute obligation” is challenged and furthermore, state practice in connection with the Somali problem of piracy indicates that many states
This understanding of the SUA Conventions provision on the “extradite or prosecute obligation” is challenged and furthermore, state practice in connection with the Somali problem of piracy indicates that many states