1. How international law addresses piracy
Piracy is tackled via multiple sources of international law, most notably the following two, which not only defines what acts can be considered piracy and what should be done about it.
The first is UNCLOS, whose Article 101 provides a definition of piracy (essentially including illegal acts of violence for private ends, committed on the high seas, by the crew or passengers of a ship or aircraft, targeting another ship or aircraft
[1]), with Articles 102-104 adding further clarifications
[2]. After that, UNCLOS illustrates guidance on what parties should do in the face of piracy with Articles 105-107. Most notably, Article 105 grants every state the right to seize pirate ships or aircraft, and arrest offenders on the high seas, emphasizing universal jurisdiction
[3]. Beyond that scope, UNCLOS also establishes that all states have the “duty” to cooperate in combating piracy in Article 100
[4] and that all the piracy-related provisions are applicable in the exclusive economic zone as well in Article 58
[5].
The second source is a group of multiple instruments under the IMO aiming at combating piracy. A noteworthy one is the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988
[6] (SUA Convention), which does not mention the word “piracy” directly like UNCLOS does, but has been said to (i) covers acts that are included in UNCLOS’ definition of piracy, such as the seizing of another ship by force
[7]; and (ii) cover what UNCLOS lacks by addressing unlawful acts not only for private but also political ends
[8], and committed beyond the outer limit of the territorial sea (not limited to the high seas)
[9]. From such a foundation, the SUA Convention allows states to take measures in its jurisdiction
[10], including extraditing or prosecuting the alleged offenders, with immediate notifications sent to related parties
[11], etc.
There are other significant IMO’s instruments besides the SUA Convention. For instance, the Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships defines “piracy” in accordance with UNCLOS
[12] and, more importantly, promotes effective investigation of piracy via its instructions on how to train investigators and cooperate internationally with regard to sharing information, etc. The International Ship and Port Facility Security (ISPS) Code aims at enhancing security standards of states’ ports and ships
[13] to resist challenges including piracy. The IMO’s Best Management Practice Guidance
[14] urges that shipowners, shipping companies, ship operators, masters and crews take all appropriate measures to protect their ships from pirates. The IMO’s Code of Conduct concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden (Djibouti Code of Conduct)
[15] promotes regional cooperation via capacity building, information sharing and joint patrols or operations, etc.
2. How such solutions are meaningful but only to a certain extent
The sources mentioned above, among others, are helpful for states to deal with piracy because of two reasons.
First and foremost,
they lay the comprehensive and foundational framework for piracy repression,
on which other specific regulations can be based on. In particular, with UNCLOS, United Nations’ bodies such as the Security Council and General Assembly have produced numerous resolutions based on UNCLOS’ content on piracy. For example, (i) the Security Council’s Resolution 1897 in 2009, which aims at tackling piracy in Somalia affirms that its recommendations are in accordance with UNCLOS 1982
[16]; (ii) the General Assembly’s Resolution 64/71 in 2010, which urges parties to adopt national laws that support the prosecution of pirates, acknowledges UNCLOS 1982 at the beginning
[17], etc.
Second,
the two sources also facilitate specific actions on the ground, bringing about concrete successes in impeding piracy. Notably, IMO’s regulations have allowed the organization to (i) monitor and synchronize member states’ anti-piracy laws
[18], (ii) lobbied for the urgency of the Somalia piracy issues at the United Nations
[19], (iii) pushed regional coordination in Aden Gulf in five specific areas
[20], including a capacity training and information sharing center in Djibouti
[21], (iv) spreaded technical standards regarding protection against piracy for shipping industries in Arabian Sea area
[22], etc. IMO’s practices have been said to strengthen the norm of viewing piracy as not just a maritime crime but also a formidable challenge to international security
[23], and to contribute to the reduction of piracy
[24]. IMO’s framework has also enabled it to collaborate with the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP)
[25] – an initiative aimed at exchanging real-time data on piracy and other crimes. In addition to IMO’s regulations, UNCLOS’ content on piracy have acted as a framework for the anti-piracy European Union Naval Force Operation ATALANTA
[26], which has been said to help prevent piracy and protect 100% of World Food Programme vessels doing humanitarian work in the Operation’s geographic coast (including the Gulf of Aden, the Red Sea and the Indian Ocean, etc.)
[27]
However, the sources still have its flaws, due to the limits of international law itself, including the law’s interpretation and enforcement, and the evolving nature of piracy.
Regarding international law’s interpretation, the above-mentioned framework, despite its being foundational and comprehensive, still contains ambiguity. Particularly, UNCLOS’s piracy definition has been said to be too restricted for excluding: (i) acts for political ends, which is problematic when piracy is inextricably linked with terrorism
[28]; (ii) acts in other maritime zones, which is the case of piracy in Malacca Strait
[29]. It could also be interpreted that UNCLOS assume states have adequate means in their waters of jurisdiction to address piracy with the ‘high seas only’ clause; (iii) acts that involve internal seizure within one vessel (e.g. hijacking done by members or passengers instead of another ship)
[30]. For example, the Santa Marie case in 1961 and the Achille Lauro case in 1985 did not satisfy all UNCLOS’ criteria for piracy, which has raised a debate on what constitutes piracy
[31]. The SUA Convention could expand the coverage, but it does not refer to “piracy” directly as mentioned above.
Additionally, the nature of piracy can evolve in accordance with technological advancement, bringing about new challenges on how states should interpret international law. For example, emerging technologies like Autonomous Vehicles (AV) could be deployed by pirates in the future, challenging the traditional understanding of “ships” or “vessels” covered by UNCLOS
[32], as well as UNCLOS’ piracy of requirement for crews or passengers being on board
[33].
Regarding international law’s implementation, problems might arise in reality when UNCLOS and IMO’s regulations are enacted. First, territorial disputes can impede piracy prevention on the high seas. For example, within the South China Sea, whether high seas exist or not with the existing claims is still debatable among claimants
[34]. Overlapping claims in the South China have also been said to diminish the effectiveness of law enforcement activities
[35].
Second, coastal countries might not have enough resources or skills to deal with piracy. In the case of Indonesia, its law enforcement cannot cover its own vast waters, not to mention the high seas
[36]. In the case of Somalia, because of the country’s civil war and weak governance, investigators have been said to have little capacity to track ransom money paid for piracy inside their own country
[37]. Besides, following IMO’s technical standards strictly can be costly. IMO’s ISPS might require ship owners to increase their crew size, or bear the extra cost stemming from port’s heightened security
[38]. Therefore, it had been found that, up until 2009, only six Indonesian ports were able to pass ISPS’ technical requirements due to limited capacity
[39]. Moreover, some argue that states can also avoid tackling pirates moving from their waters of jurisdiction into the high seas for fear of being blamed for their inabilities
[40].
Thirdly, IMO’s prosecution process could lead to further logistical nuisance, consequently hindering parties’ willingness to cooperate with each other or to follow IMO’s standards. In the cases of Iran and Yemen, potential witnesses are hard to be located because of their different locations to begin with
[41]. Even with identification, in other cases, the vessel crew whose presence needed for prosecution cannot be gathered at the same time due to their work schedule. Private vessels also do not want their crew members to leave or to dock ships at bay for the whole trial process either because of the potential loss in revenues
[42].
Fourthly, not every coastal state has signed on or has complete faith on the international law documents above. With the case of the SUA Convention, currently, some ASEAN coastal members are still not parties
[43], reportedly for concerns over sovereignty compromise and for the belief that SUA benefits big powers with maritime leverage
[44]. Such sovereignty-related concerns are legitimate since they have been raised with other anti-piracy initiatives led by maritime powers, not under UNCLOS or IMO’s scope, notably by Southeast Asian countries with the U.S.-led Regional Maritime Security Initiative (RMSI)
[45]. With IMO’s regulations in general, parties oftentimes fail to implement them into their domestic laws
[46].
Last but not least, the solutions provided in those two sources of international law might scratch the surface and do not address the root cause of piracy
[47]. It has been justified that piracy could stem from deeply-rooted issues related to colonialism and imperialism, inequitable wealth and power distribution, as well as politically-charged privateering
[48], as seen in the case of Somalia. Therefore, efforts to address piracy under UNCLOS and IMO’s umbrella, such as the EU’s Operation ATALANTA or UNSC’s Resolutions on treating Somalia’s territorial waters as the high seas, are only one part of the solution.
In conclusion, international law provides a robust framework for addressing piracy, primarily through UNCLOS and IMO’s set of instruments, including treaties, codes of conduct and recommendation, etc. This framework identifies what acts fall under piracy and what parties should follow to tackle the problems, which have led to concrete results in reality. Nevertheless, drawbacks still exist as UNCLOS and IMO’s regulations themselves contain numerous interpretation and enforcement issues, which can be exacerbated with the evolving nature piracy.
Hoang Do*
South China Sea Institute, Diplomatic Academy of Vietnam
The views expressed in this article are solely of the author
REFERENCE
[2] Ibid, Articles 102-104.
[6] Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, adopted 10 March 1988, 1678 UNTS 201 (entered into force 1 March 1992).
[9] Convention for the Suppression of Unlawful Acts, Article 4.
[12] Code of Practice for the Investigation of Crimes of Piracy and Armed Robbery against Ships, adopted 2 December 2009, RA.1025(26), Annex 2.1.
[14] Implementation of Best Management Practice Guidance, adopted 20 May 2011, MSC.324(89), Annex 29 1.
[16] Security Council Resolution 1897 on Acts of Piracy and Armed Robbery against Vessels in the Waters off the Coast of Somalia, adopted 30 November 2009, S/RES/1897 1.
[17] General Assembly Resolution on Oceans and the Law of the Sea, adopted 4 December 2019, A/RES/74/19 1.
[18] Tejal Khanna, ‘The Normative Role of the International Maritime Organisation in Countering Somali-based Piracy’ (2019) 15(1)
Maritime Affairs: Journal of the National Maritime Foundation of India 51-64, 55.
[28] Nong Hong & Adolf Ng, ‘The International Legal Instruments in Addressing Piracy and Maritime Terrorism: A Critical Review’ (2010) 27(1)
Research in Transportation Economics 51-60, 51.
[31] Donna Sinopoli, ‘Piracy - A Modern Perspective’ (1998)
QUT Law Review 14 159-175, 168.
[32] Nilasari Nilasari and Lorna Steele, ‘UNCLOS Definition of Piracy: Is it still Relevant for Modern Piracy?’ (2022)
Mulawarman Law Review 89-101, 98.
[35] Nong Hong & Adolf Ng, ‘The International…’, 55.
[37] Tamsin Phillipa Paige, ‘The Impact and Effectiveness of UNCLOS on Counter-piracy Operations’ (2016)
Journal of Conflict and Security Law 22(1) 97-123, 114.
[38] Nong Hong & Adolf Ng, ‘The International…’, Ibid, 59.
[41] Tamsin, ‘The Impact…’, 113.
[43] Nong Hong & Adolf Ng, ‘The International…’, 56.
[46] Dorota Lost-Siemińska, ‘Implementation of IMO Treaties into Domestic Legislation’ in Justyna Nawrot and Zuzanna Pepłowska-Dąbrowska (editors),
Maritime Safety in Europe: A Comparitive Approach (Informa Law from Routledge, 2020) 3-22, 21.
[47] Tamsin, ‘The Impact…’, 121.
[48] Joseph M. Isanga, ‘Countering Persistent Contemporary Sea Piracy: Expanding Jurisdictional Regimes’ (2010)
American University Law Review 59(5) 1267-1319, 1312.
