MUHAMMAD UZAIR
01-278191-010
A thesis is submitted in fulfillment of the requirements for
the award of the degree of Master of Laws (International & Maritime Law)
DEPARTMENT OF LAW
BAHRIA UNIVERSITY, ISLAMABAD
January 2021
Approval for Examination
Scholar’s Name: Muhammad Uzair
Registration No. 01-278191-010
Program of Study: LLM (International & Maritime Law)
Thesis Title: Effectiveness of Global Legal Mechanism to Counter Piracy
It is to certify that the above scholar’s thesis has been completed to my satisfaction and, to my belief, its standard is appropriate for submission for examination. I have also conducted plagiarism test of this thesis using HEC prescribed software and found similarity index 7% that is within the permissible limit set by the HEC for the LLM degree thesis. I have also found the thesis in a format recognized by the BU for the LLM thesis.
Principal Supervisor’s Signature: __________________________________
Date: ________________________
Name of Supervisor: Dr. Muhammad Asif
AUTHOR’S DECLARATION
I, Muhammad Uzair, hereby state that my LLM thesis titled “Effectiveness of Global Legal Mechanism to Counter Piracy” is my own work and has not been submitted previously by me for taking any degree from this universityBahria University Islamabad Campus or anywhere else in the country/world. At any time if my statement is found to be incorrect even after my graduation, the University has the right to withdraw/cancel my LLM degree.
Name of scholar: Muhammad Uzair
Date: 18th January, 2021
PLAGIARISM UNDERTAKING
I, Muhammad Uzair, solemnly declare that research work presented in the thesis titled “Effectiveness of Global Legal Mechanism to Counter Piracy” is solely my research work with no significant contribution from any other person. Small contribution / help wherever taken has been duly acknowledged and that complete thesis has been written by me. I understand the zero tolerance policy of the HEC and Bahria University Islamabad towards plagiarism. Therefore I as an Author of the above titled thesis declare that no portion of my thesis has been plagiarized and any material used as reference is properly referred / cited. I undertake that if I am found guilty of any formal plagiarism in the above titled thesis even after award of LLM degree, the university reserves the right to withdraw / revoke my PhD degree and that HEC and the University has the right to publish my name on the HEC / University website on which names of scholars are placed who submitted plagiarized thesis.
Scholar / Author’s Sign: _______________
Name of the Scholar: Muhammad Uzair
DEDICATION
Dedicated to inspiration of my life, my Father
Mr. Malik Pervaiz and
My Mother
ACKNOWLEDGEMENT
It’s all Blessings of Allah Almighty that I have been able to undertake this research and without His Help, this could not have been possible.
Alhamdulillah
I express my gratitude to my family, who supported me in all aspects to proceed for further studies; to my supervisor Mr. Muhammad Asif, who has provided me his full support and supervision in completion of this research work, and without whom, this journey would be directionless; to my teachers, who have taught me enabling me to stand where I am today, and to my friends, colleagues and batch mates who have motivated me to proceed with research efficiently.
I hope and pray that my efforts in research may be fruitful and helpful to its readers.
LIST OF ABBREVIATIONS
AMS Alliance Maritime Strategy
CSDP Common Security and Defense Policy
EIS Eyes in the Sky
ESS European Security Strategy
EU European Union
ICC International Chamber of Commerce
IMB International Maritime Bureau
IMO International Maritime Organization
IRTC Internationally Recommended Transit Corridor
ISPS Code International Ship and Port Facility Security Code
ISC Information Sharing Centre
JMSDF Japanese Maritime Self Defense Force
LON League of Nations
MSM Maritime Security Measures
NATO North Atlantic Treaty Organization
PPD Presidential Policy Directive
ReCAAP Regional Cooperation Agreement against Armed Robbery and Piracy
RMSI Regional Maritime Security Initiative
SLOCs Sea lanes of Communications
SOLAS Safety of Life at Sea
SUA Suppression of Unlawful Acts
TFG Transitional Federal Government
UNCLOS United Nations Convention on Law of Sea
UNO United Nations Organization
UNODC United Nations Office on Drug and Crime
UNSC United Nations Security Council
VTS Vessel Traffic Service
ABSTRACT
Piracy is a crime as old as sailing of ship in the sea. Piracy was earlier used as a tool by empires to snatch the wealth of other empires during transportation through waters by issuing pirates letter of marque by the government or state however with the passage of time such practice of piracy backed by authorization by an empire has been eliminated. With developments and evolution in the world, the concept of piracy continued to change. Under the customary international law, piracy has been declared to be a crime against mankind and whole humanity. With developments in the international law, piracy has been declared to be international crime which is subject of universal jurisdiction and any state can exercise its jurisdiction under international law to capture the pirates and prosecute them.
In this modern era, presently the basic legal instrument under international law related to piracy is UNCLOS, 1982 which is also termed as constitution of law of sea. UNCLOS provides definition of piracy and universal jurisdiction against piracy. After establishment of UN, the international community promoted international trade transforming the world into a global village. Approximately more than 80% of international trade is carried out through seas and states are proceeding with slogans of ‘Blue Economy’. The problem is alarming situation created by the incidents of piracy occurring even in this modern era despite of a legal mechanism to counter piracy and regional cooperation regimes. Such incidents of piracy in this modern era is a threat to the international trade as international trade routes are at risks depreciating the confidence of international traders. This research is based on discussion of concept of piracy, its brief history, reported incidents of piracy in recent era, legal framework in field to counter piracy, regional alliances and measures taken by different states to suppress piracy, prosecution of pirates and challenges for prosecuting states and the data has been analyzed to evaluate the effectiveness of existing legal mechanism to counter piracy so to answer the research statement and providing recommendations to enhance the effectiveness of legal mechanism to counter piracy.
TABLE OF CONTENTS
Contents
Approval for Examination ii
AUTHOR’S DECLARATION iii
PLAGIARISM UNDERTAKING iv
DEDICATION v
ACKNOWLEDGEMENT vi
LIST OF ABBREVIATIONS vii
ABSTRACT ix
TABLE OF CONTENTS x
THESIS STRUCTURE xii
CHAPTER 1 1
INTRODUCTION 1
1.1 PIRACY & BRIEF HISTORY: 1
1.2 REPORTED INCIDENTS OF PIRACY: 5
1.3.PIRACY & MODERN ERA: 6
1.4.LITERATURE REVIEW: 8
1.5. OBJECTIVES, RESEARCH QUESTIONS & RESEARCH METHODOLOGY 11
CHAPTER 2 13
IMPACT OF PIRACY 13
2.1. IMPACT OF PIRACY ON INTERNATIONAL TRADE 14
2.2. INCIDENTS OF PIRACY IN THIS MODERN ERA 15
2.3. IMPACT OF PIRACY AND LEGAL FRAMEWORK 17
CHAPTER 3 22
LEGAL MEASURES FOR SUPPRESSION OF PIRACY 22
3.1. LAW OF SEA: 23
3.2. POLICIES & REGIONAL ALLIANCES TO COUNTER PIRACY: 26
3.2.1. US Maritime Security Policy 27
3.2.2. EU Maritime Security Policy 28
3.2.3. Regional Cooperation to suppress piracy: 30
3.3. MODEL MECHANISMS ADOPTED BY DIFFERENT STATES 32
3.3.1. Japan Maritime Defense Mechanism: 33
3.3.2. US Vessel Traffic Service: 34
3.3. IMPLICATIONS IN PROSECUTION OF PIRACY 35
3.3.1. Piracy Prosecution: 36
3.3.2. Implications and Hurdles: 38
CHAPTER 4 41
CONCLUSION & RECOMMENDATIONS 41
4.1. CONCLUSION: 41
4.2. RECOMMENDATIONS: 42
Bibliography 43
THESIS STRUCTURE:
This Thesis has been structured on Chapter basis. The thesis consists of four chapters in total. First chapter is introduction of the thesis wherein concept of piracy has been discussed along with its brief history and its evolving concept, reported incidents of piracy in recent era, thesis statement, problem which is attempted to be highlighted and addressed through instant research work. The objectives of research has also been provided in first chapter along with the research methodology adopted to conduct this research.
Second chapter of thesis discuss about impact of piracy including impact of piracy on international trade, reported incidents of piracy in recent era and impact of piracy has also been discussed comparatively with the existing legal framework for suppression of piracy to establish the relation of piracy with international trade and analyze the impact from international trade aspect.
Third chapter of thesis analyzes the legal measures advanced for suppression of piracy discussing the existing legal framework for combating piracy, regional alliances taking measures to curb piracy in respective regions, model mechanisms and policies adopted by different states and effectiveness of such mechanisms and measures taken by states. Further, the chapter discusses the prosecution of pirates by states along with reported prosecution cases in recent era and the implications faced by the prosecuting states while prosecuting against the pirates. In addition, the chapter also analyzes the discussed concepts to evaluate the effectiveness of such measures and legal mechanisms in combating piracy.
Fourth chapter is the last chapter of this thesis concluding the research work as a whole and providing recommendations for better effectiveness of global legal mechanism to counter piracy so to achieve the aim of suppression of piracy which has been stressed by the United Nations as a matter of great concerns for international community. Further, the references or sources used to conduct the research are collectively provided in the bibliography at the end by classifying categories of the sources into journals’ articles, books, cases, conventions and reports.
CHAPTER 1
INTRODUCTION
Since time immemorial, most of the International trade is done by sea and international trade is not an activity that only affects the parties trading but it is an economic activity that has direct effect on the economy of states which consequently affects the individuals in general. Crime like piracy is a threat to the international trade and a key factor discouraging the international trade due to risk to the cargo in the High Seas. Piracy is a crime committed in the High Seas since long time and even in this modern era of developed international law regime, the question is whether there is lack of global legal mechanism to combat piracy?
The instant research is intended to answer research statement provided as under;
“Piracy at High Seas is still a threat to the international trade routes, there is dire need of effective and comprehensive global legal mechanism to counter piracy in order to protect the international trade routes”
1.1 PIRACY & BRIEF HISTORY:
The oceans are not only place of ventures but also place of crimes, since earlier in time religious opinions were given more importance, through writings it was urged that pirates are symbols of temptations of Satan and of our own spiritual weaknesses. A book written in first quarter of 18th Century, discussed the piracy and its trials portrayed through fictional characters as piracy was a crime which was flourishing throughout the routes of trade along the European states. Pirates most of the time experienced one sided trials and especially in North America where the courts were inclined to uphold the colonies’ honor against suspicions of collision with pirates and conversations between judge and pirates implies pro-prosecution approach of the courts willing to hang pirates without fair trial.
Earlier, Pirates were also termed to be common enemy with whom no faith or oath could be kept however this term faced criticism on the basis that pirates are not enemies of all mankind but to the shipping. One Dr.William Oldys, an advocate of admiralty refused to proceed against pirates on basis of similar reason and was of view that those who are not against all mankind are not pirates however the same view was also criticized with reasoning that a person could seek protection and rights from states if he is true to state but if he is disobeying to extent he could go, going against all the governments then he could not be treated and protected as a civilized individual. Hence, debate with criticism continued by way of different views accompanied with respective reasoning and the crime of piracy remained ambiguous by the reason of extreme opinions.
The legal concept of piracy can be traced back to 534 A.D when different jurists appeared in Justinian Digest giving their legal opinions on the concept of piracy. The concept of classical piracy in the Roman era was not considered as an implication to the legal system and piracy was not termed as a criminal act in violation of international law however the piracy was considered to be a way of warfare and method of living. Piracy has also been used as a tool of war by states in early times with object to loot the wealth of alien state and piracy was in other words used to be sponsored by some states for their political goals accompanied with gathering wealth to expand their ruling territory. The Royal Navy substituted the term ‘pirates’ with the word ‘Spaniards’ when they succeeded to defeat the Spanish Armada.
In 1598, an Italian scholar namely Alberico Gentili, while teaching in Oxford, wrote that it is solely the right of states only to resort to the war and the war cannot be declared to exist merely in pursuance of acts of individual robbers and pirates and suggested in his writing that any offensive maritime behavior or act if done by a non-sovereign entity could be classified as piracy by the sovereign states and states are free to classify such acts as piracy. The state sponsored piracy was the one where the pirates were having license or letter of marque from a recognized sovereign state and the jurists namely Gentili and Grotius were of the view that those robber groups who are not in possession of letter of marque or license from sovereign state are pirates.
United Nations Convention on Law of Seas (UNCLOS) defines Piracy as an act of violence committed at high seas or beyond jurisdiction of any state by a group of persons over another ship or vessel but this definition is not universally accepted. Piracy has been defined in a number of different ways. Definition of piracy may differ from national laws of different states to international law, for example, the definition of piracy as provided under the domestic criminal law of United Kingdom is different from the definition provided under the international law. International Maritime Bureau (IMB) defines piracy in a wider manner defining piracy as an act of boarding or attempting to board on a ship with intent to commit theft or any other crime with capability or intent to use force in furtherance of that intended act. Though different states that are bulk importers or exporters have taken steps to combat the old problem of piracy at High Seas but still the piracy occurring in the coastal areas of Somalia is an old problem which needs to be countered effectively. There are certain specified international routes in the International waters passing through or closer to the maritime jurisdiction of different states.
Piracy is an old phenomenon in the world since commencement of international trade and commerce. The sea going vessels containing cargo and goods are being attacked by the pirates whereby pirates hijack the vessels, crew on vessel and cargo loaded on the vessel hijacked. There are many incidents reported where the pirates murdered the crew or by hijacking cargo and vessel demanded ransom or to get their illegal demands fulfilled since long time. Therefore, piracy in the customary international law is termed as crime committed at high Seas and is termed as international crime falling under universal jurisdiction.
Besides the efforts made by the International Maritime Organization (IMO) in connivance with the different non-governmental organizations, although different measures have been taken to suppress the piracy in international waters but still the piracy incidents occurring near the coastal areas of Somalia which is backed by political and economic issues raise a question whether there is lack of a comprehensive legal global mechanism to combat the crime of piracy in the High Seas.
With respect to prosecution of pirates, Kenya has conducted trials of many piracy cases assuming jurisdiction under UNCLOS and also conducted trials of pirates captured by US forces which were handed over to Kenya for prosecution but there remained a debate that how the trials should be conducted including the issues of municipal laws and international law. Later on, in 2010 Kenya refused to conduct further trials anymore for prosecuting pirates due to certain hurdles in way of prosecution and reported issues to the United Nations suggesting constitution of regional or international antipiracy courts.
More so, UNCLOS provides multiple forums for adjudication of issues related to piracy but in cases Netherland v. Russia and Philippines v. China, Russia and China being states parties to respective cases neither opted any forum categorically nor put appearance and never acted upon the decisions of respective forums. It is one of main issues in piracy cases that even states which are party to UNCLOS do not act accordingly, therefore, the existing legal mechanism is ambiguous consequently raising question on its effectiveness to combat piracy.
1.2 REPORTED INCIDENTS OF PIRACY:
International Maritime Bureau piracy reporting Centre established in International Chamber of Commerce publishes periodical reports on incidents of piracy and armed robbery as having effect on international trade. According to reports, 107 incidents were reported in first half of year 2018 and 78 incidents of piracy and armed robbery are reported in first half of year 2019. In year 2020, 60 incidents of piracy and armed robbery are reported till now as per the piracy reports published. Incidents of piracy and armed robbery are also published in periodical reports issued by International Maritime Organization.
In 1998, in The Petro Ranger case, an oil tanker was seized which was then sailed to the Chinese waters and as per planned by the pirates, the ship along with cargo was stolen whereby the ship was later found at Phantom Trader in order to load more cargo in order to steal the same as well. The ship was subsequently renamed in order to avoid detection and false forged registration documents were prepared with aim to resale the ship.
In consequence of attack on the Oil Tanker M/V Limburg which took place in October 2002, the insurance premiums for Shippers of Yemen increased by 300 percent and the shipping volume of ports of Yemen decreased by 50 percent, therefore, the apprehension raised in the international community that maritime piracy has effective potential to cause a serious nuisance even in the modern era of globalization. Though the number of incidents is decreased as compared to past but even such number of incidents are alarming for international community and threatening to international trade which implies that there are certain issues in existing legal mechanism to combat piracy.
Around the year 2010, two prominent incidents of piracy were reported regarding hijack of ships; Sirius Star was hijacked not with aim to steal cargo or ship rather the same was done in order to seek ransom by holding the ship, crew and cargo loaded thereon. Similarly, Maersk Alabama was hijacked with similar intent by the pirates who captured the captain of ship but the ship was retaken by the crew on board however the captain was released from pirates after paying the ransom.
1.3. PIRACY & MODERN ERA:
In the international system, Maritime piracy is not a new-born phenomenon. The problem of piracy was considered to be significant during the Cold War. To obtain the objective of international and international supremacy, the main issue floated was maritime piracy. In the end of 20th century, a sense started developing that piracy even could not be taken as an existing threat to global economic mechanism but could effectively challenge the international stability and order.
In the world of economy, sea is the most important highway that is vulnerable because of perils but piracy is an offence which is as much antique as trade by sea. Piracy could not be eradicated even in this modern era rather piracy is the crime which again attained pace by increasing number of incidents of piracy in the era of 2009-2010 especially at seas near Somalian coast and Aden. As compared to old times, during the first decade of this century, piracy reached epidemic proportions in the guld of Adens and off coasts of Yemen and Somalia which could be seen since the 19th Century.
Somalian Pirates during the year 2008 have engaged in more drastic and advanced acts of piracy and frequently operating from the so called mother ships. The acts of pirates spread over including but not limited to capturing luxury yachts and demanding ransom with aim and objective to hijack freight ships and bulk tankers. The increasing hike in maritime piracy especially in the sea around the East Africa was of such threatening and intense nature that compelled the United Nations Security Council (UNSC) to adopt Resolution 1816 (2008), calling upon interested states to enhance their efforts so to suppress piracy and armed robbery at sea. United Nations, thus, considered piracy as a grave threat to the maritime commerce in the region.
During mid of this Century’s first decade, Piracy increased around the Horn of Africa but having astonishing resemblance with the cause and manner of what happened in the sea of Southeast Asia which occurred due to in-effective governmental enforcing capabilities regional economic depression. After its increasing rate at initial stage in South China and Straits of Malacca, a dramatic decline was witnessed by the region between 2004 and 2007 approximately decline by 50 percent.
Piracy is clearly apprehending to be a potential threat to international trade as 80 percent of it involves sea passage. Piracy has become so advanced by potential that it is directly threatening the freedom of transport of cargo through oceans and it has also been observed that it has effectively increased the premium of insurance engaged in international maritime trade besides the losses caused by hijacking and stolen goods.
There is threat to maritime trade which can be felt anywhere in international waters but piracy is also posing most acute threat in strategically important water passages including Malacca Straits and South China Sea which is used for passage of a large percentage of international trade.In addition to piracy’s threat to the international trade, the terrorist organizations may, use the pirates or adopt their pattern or in connivance with pirates, potentially strike the economic order of the states moreover increasing attacks of piracy could effectively increase costs of international commerce and may affect the international stability.
It is also important to note that the terrorist organizations might exceed from attacking important economically important interests of states like United States and its allies and may proceed to hijack large cargo ships with aim to get various weapons and explosives equipped or prepared as per modern techniques. For the reason of having possibility of such extensive access, the terrorist organizations would ultimately be a very severe threat to the states and would be able to attack even the territories of states, hence, not only international trade or economy of whole international community but also the sovereignty, international peace and international stability order is under threat in the foreseeing observations.
1.4. LITERATURE REVIEW:
M. D. Greenberg, p. Chalk, H. H. Willis, I. Khilko and D. S. Ortiz jointly expressed their views thatthe data has been collected from relevant committee which observes the maritime crimes and the intention of the pirates for committing piracy. In the book written by these authors, the authors attempted to analyze the reasons behind the piracy committed and their facilitators and capabilities including that the pirates committing piracy. More so, pirates are well conversant with the maritime skills and familiar with the underwater geographical aspects having aims ranging from financial causes to the capturing of oil tankers with sometimes aim to affect a particular state or having violent intentions against the international well settled community. The groups committing piracy are non-state actors apparently but sometimes have backing from states but the authors do not provide any solution or recommendation or any mechanism to counter the piracy in High Seas.
In another chapter of book, the authors discussed the terrorism acts done over the container ships being attractive to the terrorism to be attacked in the Sea while voyage. In the Chapter cited, the authors provided figures regarding piracy over container ships, the consequences thereof but still failed to provide any recommendation to combat the piracy.
Peter Chalk in his book discussed the reasons why the vessels are targets by the maritime terrorists. While discussing the aspects of terrorist groups in length, the author indicated that the vessels should not be exposed to the sea in a situation where it could be attacked but it is not an applicable solution nor did the author discuss any global legal framework available to suppress the piracy.
Douglas Guilfoyle in an articlediscussed different resolutions of United Nations and laws applicable with respect to the piracy committed near the coastal waters of Somalia whereby it is enunciated that the foreign military is authorized by memorandum to act to counter the piracy but does not provide any idea of uniform international system to combat the act of piracy.
S. Kamerling and F. V. D. Putten expressed their views in a book jointly wherein they have discussed that the European states formed a joint naval force to counter the act of piracy but consequently the pirates started committing piracy at far away locations in the International waters where the Naval Forces could not operate effectively due to distant location of incident. Different operations held in form of joint forces for particular incidents in form of operations held by NATO in Asia, by EU joint forces in the area near their jurisdiction but no recommendation regarding any global mechanism to reduce the incidents of piracy.
J. Ashley Roach discussed international law related to piracy in an article giving his views that international law authorized military actions against piracy but restricted to the High Seas or international waters not falling in the territorial jurisdiction of any sovereign state but if such act of piracy is done in some territorial jurisdiction of a sovereign state then such state should take action to discourage the act of piracy for the welfare of international community.
Todd Emerson Hutchins while discussing the military actions taken against the pirates suggested that actions of military or naval forces against the piracy by the states are costly and not long term sustainable hence suggested that mechanism should be developed that the privates should be authorized legally and be equipped with modern technology to perform function of countering the piracy but the article does not suggest how such commissioning has to be affected practically as many things are fine theoretically but not applicable practically.
According to views of Ir. F. J. Sluiman and H. De Koning expressed in an article, the United States of America introduced the system of Vessel Traffic System (VTS) to ensure safe traffic passage in the territory of U.S in busy waterways. Moreover, it also enhanced the functions of VTS which is basically a group specified from the Naval Forces of U.S to also protect the merchant ships and provide safe routes in the Sea water however the VTS system is more costly which is provided at national level performing functions within the territorial jurisdiction of the United States of America and U.S being economically strong enough could bear the cost of such system. However, the article itself recommends that the cost should be considered again and some special group should be there other than the Navy as Navy could not be burdened to perform all functions as it would require more Naval Personals to be enrolled which would consequently be more costly and burden on the National Treasury.
1.5. OBJECTIVES, RESEARCH QUESTIONS & RESEARCH METHODOLOGY
The objective of instant research is to discuss piracy under international law, present situation and reported cases and incidents of piracy recently observed and to analyze the existing legal mechanisms and framework for suppression of piracy in order to evaluate the effectiveness of international framework in suppression of piracy so to provide recommendations to resolve the issues highlighted in the research regarding international legal mechanism to counter piracy.
The research is going to answer the research questions which are formulated as under;
- Whether piracy as provided under the international law has certain distinct essential ingredients to term an offence to be piracy under the contemporary legal system?
- Whether the existing legal framework is effective in combating piracy?
- Whether there is any issue in the existing legal mechanism which is hurdle in efficient suppression of piracy?
- What is the way out to effectively combat modern piracy?
For conducting this research, analytical research methodology is used. The data available in form of books, articles and research journals is to be gathered and discussed in depth so to analyze the information and answer the research questions in order to finally answer the research statement either positive or negative concluding the research along with recommendations to address the issues highlighted in the research.
In this research, different measures taken by different organizations and states would be discussed and the effectiveness or impact of legal framework to suppress piracy to answer the research questions and in the light of the research literature available, the data will be analyzed to answer the research statement to reach a conclusion.
CHAPTER 2
IMPACT OF PIRACY
Piracy is not merely an international crime rather it has impacts on the political as well as economical domains of states at large though apparently it is considered as such but in reality, the impacts are of grave nature. In order to understand the impact of piracy, a critical analysis is to be done discussing the economy domain, effects of piracy on international trade routes, consequences thereof and then connecting the factors which form a chain connecting piracy with the economy of different states. Piracy is perhaps one of the ancient examples regarding dark end economic activities. Piracy is a well-organized and well embedded economic activity which forms the economy of perpetrators whose living depend on the commitment and loyalty of their fellows followed by counter culture of sharing for all.
Piracy is now included in the marine insurance policies as a factor leading to marine risk however earlier piracy was treated as war risk. Therefore, for contractual purposes, piracy is defined in a different way because if the definition of piracy as provided under the UNCLOS would only be applicable, the definition is much restrictive in context of the modern hijacking incidents. The Courts have also to some extent accepted that the definition of piracy in contractual context is not the same as defined under the international law. This view was endorsed in case titled Republic of Bolivia v Indemnity Mutual Marine Insurance.
Claim under a marine insurance policy could only be made for the losses occurred against an insured peril. Whether the recovery of ransom payment and losses occurred are in consequence of insured peril, and whether the hijacking attempt is covered under insured perils, for that purpose it is necessary to define piracy and other perils of similar nature like hijacking etc. in order to ascertain what kind of losses could be claimed under marine insurance policy. As the piracy risk on international trade routes has direct effect on marine insurance policy consequently more expensive premium for the insurance policy subsequently has economic impacts therefore the piracy being effecting economic factors is important to be analyzed with economy aspect in order to ascertain the gravity of piracy and its impacts on economy of states worldwide.
2.1. IMPACT OF PIRACY ON INTERNATIONAL TRADE
In order to face least resistance, the pirates have now chosen the far-flung areas of High Seas where the Naval Forces of the coastal states could not reach efficiently in order to counter the acts of piracy. With increasing threats of piracy in international waters or High Seas, the risk of piracy is high which compels the merchant ships to avoid the international sea routes passing through the high seas. As most of the international trade is done through sea, it is cost effective and time effective with respect to voyage for the merchant ships if adopt the route passing through high seas but due to high risk of piracy in international waters, the merchant ships tend to re-route from high seas routes to the routes passing closer to the coastal areas.
The merchant ships prefer re-route to the coastal waters avoiding voyage from international water due to high risk of piracy at high seas consequently more expensive marine insurance policy for the voyage due to piracy risk factor despite the fact that routes closer to coastal waters is more time taking for voyage and more expensive in terms of fuel costs of the merchant ships. In such eventuality as well, the cost shifts to the end consumers due to costly carriage contracts in order to avoid the risk of piracy resultantly effecting the economy of states to whom the cargo belongs being shipper or being consignee. It is surprising that some new actors have been actively participating to combat piracy threats and IMB of International Chamber of Commerce is extending use of private guards at the ports particularly in the region of Southeast Asia having concerns of international commercial interests endangered by piracy.
Further, the high risks of piracy at international routes passing through high seas being also reported on media leads to mental stress and having psychological effects on the seafarers and their families keeping in mind the violence against the hostages reported from time to time. Moreover, the operating costs have been increased by the owners or managers operating the merchant ships due to inordinate increase in costs borne by merchant ships due to security precautionary measures, additional insurance premiums covering the piracy and piracy risks and re-routing of ships by avoiding high seas routes and adopting routes closer to coastal areas increasing vessels traffic in coastal areas leading to more time consuming in loading and unloading from ports.
2.2. INCIDENTS OF PIRACY IN THIS MODERN ERA
According to the statistics available, the incidents of piracy and hijacking reduced in early years of 21st century however with respect to the incidents reported near the Arabian Sea and Western Indian Ocean, the number of incidents of piracy has increased to alarming situation which depreciate the confidence in the precautionary measures as instituted by the United nations, individual states and International Maritime Organization.
According to statistics provided by International Maritime Bureau for period from 2000 to 2009, the incidents of piracy reported were high in 2000 during which 469 attacks were reported and in 2003 wherein 455 attacks were reported amongst which most of the attacks were made in South East Asia region. In 2006, the piracy attacks reduced to 239 incidents as reported but the figure again rose to 406 attacks in 2009.
The Gulf of Aden being high risk area for piracy attacks increased the naval forces presence in the said area significantly reduced the incidents of piracy in Gulf of Aden but that measures compelled the pirates to leave the Gulf of Aden and in consequence the pirates forced out from Gulf of Aden switched to the Indian Ocean and Arabian Sea. Observing the alarming increase in reported incidents of piracy, the then General Secretary of United nations appointed an expert to analyze in depth the scourge at sea and submit a detailed report on the issue with recommendations providing measures which could be taken by the international community as a whole to ensure the concept of freedom of the Seas.
The report was submitted on April 11, 2011 wherein it was observed that no decline in piracy has been observed since its re-emerge off the coastal area of Somalia in year 2007 and the pirates became more sophisticated in committing piracy whereby the length of detention period is increased and the area of piracy attacks has further extended to south far and east of Indian Ocean. More so, the piracy economy is effective in destabilizing the entire region causing increase in prices, loss in revenue and insecurity of the energy supplies. The report also pointed out the alarming situation that may lead to have long lasting effects on the entire economy of the world despite the handling of threats by the naval forces at individual state level or jointly at regional level. Piracy is not only an international crime rather it is connected to the smuggling, trafficking and usually connected to the establishment and strengthening of parallel black market or black economy.
In response to the incidents of piracy occurring in the modern era, the International Maritime Bureau established Piracy Reporting Centre in Kuala Lampur for recording off incidents of piracy occurring all over the world and analyzing the impacts of those incidents on the international community. Increasing incidents of piracy reported on passage through Malacca straits led to mount the cost of insurance and Malacca Straits after getting declared to be risk prone by the Lloyds War Committee resulted in increase in insurance cost affecting the whole region. Indonesia, Malaysia and other states started to use joint vessels for import and export and also joined hands for cooperation including hot pursuits in coastal waters of each other, aerial and marine joint surveillance etc. in consequence whereof the number of incidents of piracy in said area dropped to single digit.
With respect to Somalian Coastal area, though Naval units are being engaged in missions for suppressing piracy, the ships passing through the passage nearby the Somalian Coastal areas are successfully attacked by the pirates because the naval units or forces operating in Internationally recommended Transit Corridor (IRTC) are operating depending upon their military and political alliances hence even ships while passing through the IRTC or on exit from IRTC towards destination ports are exposed to piracy attacks. Hence, mere declaring a route to be safe is not enough rather the units or forces groups operating in ITRC should not be selective in operation rather there is much more required to be done to eliminate the risk of piracy from Somalian Coastal areas by acting fairly and effectively without considering the political or military alliances.
2.3. IMPACT OF PIRACY AND LEGAL FRAMEWORK
Piracy is a crime which is as old as the humanity is. Due to lack of rule of law in Somalia since 1991, piracy is resurrected in the seas off the Somalian Coastal areas which is now expanded to Arabian Sea and Indian Ocean and the pirates of Somalia has become more sophisticated in intelligence networks of data collection and adopted modern approach of piracy by organizing the pirates. The United Nations Security Council through its resolutions in 2008 allowed the foreign ships to take all necessary actions in order to combat piracy and all the states and organizations throughout the world are encouraged to enhance he capacity region wise in assistance of UNODC in order to implement the international conventions to suppress crimes including piracy.
Piracy is still posing as an intense threat to the international community even in this modern era and in addition thereto the piracy of modern era is different from classical piracy as the pirates are now more organized and also use the modern technologies in order to achieve their goals through piracy. The crime of piracy is not restricted to steal cargo but also advanced approach has been adopted by hijacking ships, crew and cargo for demand of ransom. Using the modern technology, the pirates after hijacking a ship navigate to the port of their own choice as per their designed plan to unload cargo and manage to shift the cargo under their control accordingly. Piracy could not be neglected as a mere apprehension rather it has been observed from the history that piracy has remained a cause for rise and fall of different empires in past as well.
Despite various measures taken by United Nations and International Maritime Organization, the piracy is being committed in various parts of the world and there is escalation observed in last of 20th Century and first decade of 21st Century recording 544 incidents of piracy in year 2011. Similarly, according to International Maritime Organization, though 544 incidents of piracy or attempt to commit piracy has been reported to the organization in 2011 but in year 2012, there were 341 incidents which were reported. The international Maritime Organization initiated preparing annual reports since 1984 but the increasing number of incidents of piracy even in first decade of 21st century is alarming which apprehends that the contemporary international law of sea is not as much efficient to curb the piracy hence the seas are not free from threats of piracy and the navigation in waters is not free from the risk of piracy.
The United Nations Convention on Law of Seas, 1982 (UNCLOS) is primary international anti-piracy legal instrument which categorically defines piracy in its provisions however the definition provided thereunder is too narrow to deal with the piracy in the modern era. It is clear from the statistics that the existing international legal mechanism for suppressing piracy is not effective enough and as the definition of piracy is fundamental issue for application of the law in such cases whereas the piracy of this modern era being different from the classic piracy could be curbed by redefining the crime and reconsidering the law for amendments in order to deal with the modern piracy.
Though the United Nations Security Council through its resolutions urged for regional cooperation for suppressing piracy however for a long period the states were reluctant to take necessary steps in this regard however the escalating number of incidents of piracy and armed robbery led the states to ponder on the issue in hand. The first agreement for regional cooperation known as Regional Cooperation Agreement on Combating Piracy and Armed Robbery in Asia 2004 (ReCAAP) was finalized in year 2004 in order to promote the regional cooperation for suppressing piracy and armed robbery in Asia amongst states party to agreement.
The ReCAAP was enforced in 2006 on getting ratification from 10th states and the agreement was aimed to suppress piracy and armed robbery in the region by joint cooperation and implementation of terms of the agreement in letter and spirit by acknowledging the same through legislation or amendments in the national or domestic laws.
The agreement is significantly suppressing the piracy and armed robbery in the region but still it does not address all the problems faced in suppressing piracy and armed robbery of this modern era hence the effectiveness of said regional cooperation agreement is not up to the mark as major maritime states are not party to agreement implying the conduct of states being not willing to cooperate. More so, the definition of piracy provided in the agreement is still narrow as it provides basic ingredients of piracy to somehow similar to definition provided under UNCLOS hence does not covers modern piracy and armed robbery which in present era is not aimed only for private ends rather aimed for collective gain of group or terrorist organizations adopting modern modes of commission of piracy. Since 2008, the Indian Ocean and the Arabian sea is the area which is at risk having most concerns with respect to armed robbery and piracy at sea. More so, India is continuously trying its level best to monitor Indian Ocean for suppression of piracy to protect its international trade activities and to obtain its objective, Indian Navy is also using facilities from the ports of Muscat and Oman to carry out anti-piracy operations effectively in the Western Indian Ocean.
International Maritime Bureau established Piracy Reporting Centre to receive information regarding piracy attacks and such information is then shared with concerned governments with intent to provide data for further cooperation amongst states to eliminate and suppress the criminal activity of piracy and armed robbery and this information sharing initiative is amongst one of the key feature of ReCAAP which is now in force and open to states to enter therein becoming party to the said agreement. Similar to ReCAAP, the Code of Conduct was concluded in 2009 by the states having common borders with Gulf of Aden and Western Indian Ocean with objective to enhance regional cooperation amongst the states to make collective efforts for suppressing piracy and armed robbery.
With evolving situation and evolving modern techniques used for commission of piracy, the law has continued to develop and the states facing impacts of piracy on their national economy and national integrity made efforts on regional level in order to suppress piracy from the region collectively knowing the fact that piracy is an international crime and it is not an easy task for a state to take measures for suppressing piracy rather it could only be done through joint cooperation. The states entered into different regional agreements have been observed to reduce the threats of piracy in respective region though the incidents of piracy have not been eliminated till now and the location or sites of piracy attacks have been changed consequently.
The keen interest shown by the International Chamber of Commerce through IMB by deputing private security guards and escorts for merchant ships implies that the piracy having direct concerns and impact on international trade is a serious threat to the whole international community because the more risk of piracy is there, there is more costs of insurance premium, high freight rates due to re-route of merchant ships causing more fuel consumption and more time-consuming voyage. If merchant ships would not deviate to a safe route, there is more likelihood of being attacked by pirates and due to high security risks of ships involved, the piracy is direct threat to the concept of blue economy and promotion of international trade throughout the world. The impact of piracy devolves to the individuals due to rise in prices of the cargo as a result of higher insurance premium and higher transportation charges due to precautionary measures advanced.
CHAPTER 3
LEGAL MEASURES FOR SUPPRESSION OF PIRACY
It is the England which has contributed as great impact on formulation of modern law regarding piracy as England adopted statute in 1535-1536 which established tribunals to conduct trials of pirates, robbers, murderers who committed such offences at sea and they were tried under the common law. It was the year 1569 when the Queen Elizabeth declared that all the pirates who are not in possession of license or commission issued by the Queen and are operating in the seas are not protected under the Queen’s protection and such pirates and rovers at sea could lawfully be captured, tired and punished by any person or state. Therefore, it can safely be held that early law of piracy was derived from three sources; i.e. the concept of piracy developed by jurists like Gentili and Grotuis during roman times, the English law derived law of piracy from domestic or municipal law and the jurisdiction on piracy asserted by the England on basis of its sovereignty over its subjects and territory.
United States of America also adopted the concept of piracy from the English Law and earlier defined piracy as a type of public war and a crime of special nature. The Constitution of United States of America provides power to the Congress to define piracy and felonies committed in the high seas and the offences against the law of nations as offences with penal consequences providing punishment of such offence as well and such power is entrusted to the Congress under section 8, Article 1 of the Constitution of USA.
United Nations Convention on Law of Seas 1982 (UNCLOS) was enforced in 1994 and was recognized to be the Constitution of oceans of the world providing salient features from classification of maritime zones to international customary laws discussing the piracy as well providing its classification as international crime and a crime falling under universal jurisdiction.
In July 2004, the IMO Maritime Security Measures (MSM) were enforced which are primarily based on the SOLAS Convention and Chapter XI-2 of the convention established the base for maritime security measures in order to enhance maritime security efficiency. The measure provided under the ISPS Code are mandatory as well as advisory in nature classified into two parts and the rules provided thereunder are applicable to the member states, ships, crew and master of ships, government officials, shipping companies, employees for port facilitation, etc.
Different states member to the SOLAS Convention or party to the convention and those states which adopted the ISPS Code subsequently preferred the IMO rules as substantive national requirements, for example USA adopted and implemented Maritime Transportation Security Act 2002 on the US Coast Guard through Federal Code of Regulations. Similarly a number of provisions of the ISPS Code provided under Part B were made mandatory by the European Union by adopting the regulations. In order to analyze the overall measures taken worldwide for suppression of Piracy, this chapter will discuss different regional measures and the policies advanced by different states to enhance the maritime security.
3.1. LAW OF SEA:
For purpose of codification of international law regarding piracy, the League of Nations established a subcommittee on piracy in 1926 resultantly the report submitted by the committee defined piracy as sailing in the seas without authorization of any state or government with aim to commit act of violence against persons and property for private ends. The efforts of report could not be finalized as a result of LON dissolution. However, after the establishment of UNO, the first United Nations Conference on Law of Sea adopted convention at Geneva in 1958 along with other three conventions hence the first Convention on law of sea came into force in 1962.
As per the provisions of UNCLOS 1958, the states were ought to cooperate to most possible extent with other states for repression of piracy both on the high seas as well as at any place beyond the jurisdiction of any particular state. While perusing the UNCLOS 1958, it can safely be said that from bare reading of said convention, there is incumbent to hold that substantive efforts were made through the convention providing definition and basic ingredient of piracy, rights, liabilities and the obligations imposed on the states for suppression of piracy however the said convention didn’t establish any international forum or machinery that has to perform functions in order to counter the piracy. Subsequently, the most important developed international law regarding piracy surfaced in form of UNCLOS 1982 which is final codification as a result of series of conferences and debates held by the states under the umbrella of UN and is still in field. As the UNCLOS 1982 is continuation of UNCLOS 1958, the language of provisions on similar subject is exactly the same except few provisions.
The concept of piracy, as derived from the definition and the provisions of UNCLOS related to piracy, is narrow scope concept and ambiguous one because as per definition of piracy provided therein, one of the basic ingredients of offence of piracy is that such act has been performed for some private purpose (i.e. word used : “private ends”). There is ambiguity that the terrorism at sea whether comes under the definition of piracy or not as the phrase private ends could be interpreted widely but general interpretation of the phrase excludes terrorism from the domain of piracy. Further, the definition of piracy as provided under the UNCLOS also provides the involvement of two ships, i.e. one ship carrying offender or pirate who could be passengers or crew of attacking ship and the other ship which is victim or subject of piracy however in such eventuality, if the crew or passengers of a ship does violent act covering all other ingredients of piracy, then such act could not be termed as piracy under UNCLOS.
However, the SUA Convention 1988 was a convention for suppression of unlawful acts against the safety of maritime navigation though provides a much wider definition and piracy backed by political goals and the maritime terrorism do fall under the Article 3 of the convention declaring that exercise of control over a ship or its seizure by threat or by use of force or any form of intimidation is an offence under the Convention after modification through a protocol in year 2005. But unfortunately, the ambiguity regarding jurisdictional issues and other traditional international issues regarding territory and nationality are still not responded through any modification or provision of the conventions.
Under the existing global legal framework regarding piracy, piracy being international crime is crime against the humanity and even as per the customary international law, piracy is a crime which is subject of universal jurisdiction and municipal court of any state is competent to prosecute the pirates and seize the properties held by them. The existing legal framework insist the states to take all necessary measures up to maximum capability of respective states for suppression of piracy. But the most important issue regarding the existing legal framework is that it does not specifies or establishes any international court as the International Court of Justice working at Hague and International Tribunal on law of sea at Hamburg lack criminal jurisdiction whereas the only international court with criminal jurisdiction is International Criminal Court (ICC) but ICC itself also has restricted jurisdictional domain which does not cover piracy.
3.2. POLICIES & REGIONAL ALLIANCES TO COUNTER PIRACY:
Though the international legal instruments provide definitions of piracy and termed piracy as an international crime over which there is universal jurisdiction to prosecute pirates but practically the incidents reported from time to time urged the states to do something meaningful and effective. Upon the increasing uncontrolled incidents of piracy and armed robbery, the states continue to bring the matter before the United Nations from time to time. Regarding the incidents of piracy and armed robbery off the coasts of Somalia even in the territorial waters as well as in the international waters off the Somalian coasts, the Security Council of United Nations passed a resolution on 2nd June, 2008.
The Security Council observed that the incidents of piracy and armed robbery are increasing which are supported with sufficient evidence available in the reports submitted by the IMO. Through the resolution of Security Council, the Security Council condemned the acts of piracy and armed robbery observing that the Transitional Federal Government (TFG) has failed to curb piracy in the waters off the Somalia due to lack of capacity, therefore, the Security Council urged the states to cooperate with each other, with IMO and with TFG so to protect the international commercial routes off the Somalia through Naval Vessels and make efforts to eliminate the threats of piracy which is a grave threat to international peace and security.
States from time to time considering their respective interests took measures to suppress piracy and the methods adopted by different states include formation of regional alliances, formulation of maritime security policies, joint operations in the international waters of common interests, legislation of national laws regarding piracy etc.
3.2.1. US Maritime Security Policy
United States approach towards the maritime security got high pace after the incident of September 11 which acted as a catalyst to speed up the policy making body of US to go for an advanced policy of security not only limited to the land and air space rather to cover the maritime security as well from different dimensions to cater with different situations arising out in the modern era. In year 2003-2004, the policy making bodies of the US diverted to formulate some national maritime policy with object to enhance maritime security.
The Pentagon, Coast Guard in conjunction with the National Security Council and Department of State started efforts to come up with a comprehensive policy regarding maritime security and resultantly the outcome of the efforts surfaced in form of National Security Presidential Directive, Maritime Security Policy which got signed by the then US President in December, 2004.
The US Maritime Security Policy of 2004 was exhaustive one covering different aspects related to maritime security including counter terrorism, marine infrastructure protection, maritime domain awareness and coordination of overall whole of the government of US to contribute with respective roles and act as per the policy through coordination in line with the national and international laws. However, the policy in general was though covering the piracy but there was no specific description provided therein to suppress the piracy particularly rather the policy was more to regulate the maritime affairs and secure the national interests of US securing the maritime domain concerns with the strategy outlined in the policy.
In August 2012, the then President Barrack Obama came up with a completely new policy through Presidential Policy Directive (PPD-8), Maritime Security which reaffirmed the provisions of earlier policy on maritime security 2004 and extended to provisions of said policy in fresh policy along with extending dimensions and scope of the policy on maritime security. The fresh maritime security policy of 2012 surfaced with new emerging objectives which were not expressed clearly in preceding policy and the aim of the policy was extended to inclusion of preservation of freedom of navigation, safeguarding the natural resources in maritime domain for other lawful activities, protection of international maritime transportation system etc.
3.2.2. EU Maritime Security Policy
There are twenty-seven states which jointly form the European Committee and belong to European Union and all these states are parties to the convention of UNCLOS. It is also an admitted fact that Rotterdam, Hamburg etc. which are amongst the largest ports of the world are situated in the states which are part of European Union and therefore the maritime sector has a vital role in the economy of such states. States of Europe are amongst those states which played vital role in development and codification of law regarding the shipping, trade through sea and the traditional shipping law. Like US, the European Union, being dependent on the maritime sector economically, has come up with maritime policies from time to time with developing concepts and scenarios.
The maritime policy of European Union developed from time to time and there are three primary documents that envisage the strategy of European Union to deal with maritime sector and these primary documents are; European Security Strategy (ESS) 2003, Report on Implementation of ESS 2008 and Internal Security Strategy 2010. These documents are base for the EU’s Common Security and Defense Policy (CSDP). The policy and strategy of EU regarding maritime domain is well founded but the prime focus of policy is to secure the interest of states of EU from both aspects i.e. security and economy of the EU states and the prime concerns were to strengthen the management of commercial shipping hence the European Parliament and Council in year 2004 adopted regulations by virtue of which they have ascertained their obligations under the SOLAS Convention (International Convention for Safety of Life at Sea 1974) and ISPS Code (International Ship and Port Facility Security Code).
Beside the aforesaid policy initiatives, the EU is leading in maritime Policy as EU adopted Blue Book in 2007, an integrated Maritime Policy of European Union, which is a leading policy that could have effective functioning in the domain of maritime regarding security and defense for solution to the maritime challenges. The Blue Book covers the naval force generation, maritime surveillance and international coordination for purpose of securing the maritime sector from the crimes committed at the seas and the cooperation amongst the states is also driven by the Baltic Sea Strategy 2009 and Strategy for Atlantic Area 2011 to enhance the effectiveness of the mechanism and policy adopted by the EU to achieve their common goals of safe maritime domain.
Numerous attacks were launched by the Somalian Pirates over more than 1000 ships in the area of Western Indian Ocean hence in 2008 the EU Council launched EU Naval Forces Operation Atlanta (NAVFOR) in effort to deter the piracy attacks where were launched by Somalian Pirates over the convoys of World Food Program. The EU Council extended the domain of anti-piracy operations till 2014 and also conducted anti-piracy operations in the jurisdiction of Somalia expanding to the extent of land territory and internal waters of Somalia on the strength of the resolution passed in year 2008 by Security Council of UN.
3.2.3. Regional Cooperation to suppress piracy:
The sea lanes of communications (SLOCs) particularly in the South East Asian region became more significant due to rapid increase in the international trade as a result of transformation of the world into global village and with the passage of time, the Northeast Asian countries including Japan, South Korea and China with growing economies continued to mostly rely on the SLOCs of Southeast Asia as most safe passage for transportation of their energy supplies from the Africa and Middle East. In 2001, Singapore security agencies arrested 13 terrorists who were equipped with explosives in fast speed boats with plan to attack on the US Naval vessel visiting the Southeast Asian seas whereas in 2004, one of the most violent incident of maritime terrorism occurred in Manila Bay resulting in sinking of Super Fery 14 losing approximately 116 human lives.
In 2004, the US introduced Regional Maritime Security Initiative (RMSI) which was aimed to enhance the cooperation amongst the states of Southeast Asia and US to eliminate the threats of transnational level including illegal trafficking, violent attacks at seas in the southeast Asian region, piracy etc. by deploying fast speed equipped boats to efficiently respond to such transnational criminal activities however states including Indonesia and Malaysia protested against such regional maritime security regime arguing that such deployment of forces will infringe the sovereignty of the states.
In the year 2004, the Indonesia proposed for trilateral patrolling initiative readily to be adopted resultantly Malaysia, Indonesia and Singapore launched naval patrol but the patrol was not of joint nature and based on strong coordination amongst the three states whereby the naval forces of each of the states were to patrol to the adjacent seas keeping their naval vessels within the seas under national jurisdiction with limited rights of hot pursuit subject to the sovereignty rights of other states in the sea. Later on, the aerial surveillance was added to the trilateral initiative with title Eyes in the Sky (EIS) initiative using aircraft for aerial surveillance of the sea by the combined military team comprising of military personnel of the participating states however Standard Operating Procedures were drafted and signed for aerial surveillance by the year 2006. In year 2006, Information Sharing Centre (ISC) was also established in Singapore under the umbrella of ReCAAP, which was Regional Agreement for cooperation against Piracy and Armed Robbery in Asia, an initiative of Japanese which was taken in 2001 and agreed by 16 states by 2004.
North Atlantic Treaty Organization (NATO) is basically maritime strategy which was initially introduced to maintain a bridge from US and Canada to the Western Europe as the European States actively participated in naval warfare during the World wars however later on the domain of the organization was expanded conducting war in Afghanistan and naval operations outside the jurisdiction at seas. North Atlantic Council subsequently endorsed the Alliance Maritime Strategy (AMS) in year 2009 to enhance the cooperation amongst the member states to secure the maritime domains from the threat though the same is based on the US Maritime Cooperative Strategy and other alike maritime policies and strategies published by the well-developed states to advance the cooperation of states for common security purposes. NATO is taking piracy as an opportunity to get attention of nations and fame in the international community by conducting anti-piracy operations in the seas off the coasts of Somalia though being Naval well equipped forces the missions of NATO faced nominal risk in encounter with pirates. In October, 2008, NATO for repression of piracy near Somalia coasts operated to suppress the piracy through AMS Operations and subsequently in 2009, NATO initiated anti-piracy operations off the coasts of Somalia to provide protective squad to the international Food program ships by deployment of warships for anti-piracy patrols though the EU deployments took over the protection of food program ships functioning under the UN. NATO also came forward for cooperation with the EU deployments for the suppression of piracy in the water off the coasts of Somalia to conduct anti-piracy patrols and operations.
NATO headquarters also issued command to initiate Ocean Shield Operation for conducting maritime anti-piracy patrols in the sea and cooperate with the regional states to enhance their capability to secure the waters adjacent to those states from the maritime threats however the NATO itself also continued to conduct patrols at sea and monitoring operations to suppress the maritime terrorism and piracy with aim to eliminate the elements of maritime threats. In 2008, the General Secretary of UN also asked the NATO to provide protection escort by deployment of warship vessels in order to provide protection to the convoys of ships sailing under World Food Program initiated by the UN.
3.3. MODEL MECHANISMS ADOPTED BY DIFFERENT STATES
Different states under the threats of piracy initiated to develop mechanisms for the protection of the ship carrying their cargo despite the fact that the regional alliances were operating for the suppression of piracy. It is admitted fact that operating a mechanism by state for protection of its vessels in the waters which are far from the respective state is an expensive task but the issue leading the states for developing their own mechanisms is the efficiency of the regional alliances in curbing the piracy. Beside the regional alliances for counter piracy, states like Japan, US etc. introduced their own mechanisms for protection of their vessels from piracy threats.
3.3.1. Japan Maritime Defense Mechanism:
Though Japan is having least coastal area hence having negligible costs to be borne as a consequences of piracy in the region, however Japan came forward to take a leading position in the region in combating the piracy by introducing maritime security initiative for the reason that Japan imports 99% of petroleum products and 70% of food products from the Africa and Middle East which is most feasible to be transported through Southeast Asian waters though the same are at high risk of piracy. Japan made a decision in 2008 to initiate a defense mechanism to counter piracy and secure its vessels or the vessels carrying Japanese cargo from the threats of piracy especially apprehended in the area of the off the coasts of Somalia and Gulf of Aden. Japanese Maritime Self Defense Force (JMSDF) was established in year 2009 followed by decision made by Japan in 2008 to assist the fight against piracy through deployment of aircrafts and warship vessels for elimination of piracy threats to the Japanese ships and vessels with Japanese cargo.
It was the same year when Japan also deployed two destroyers in the Gulf of Aden to provide protection escort for the ships with Japanese Cargo. Subsequently, law was adopted by Japan which authorized the JMSDF to provide anti-piracy protection escort to the foreign flagged ships as well and the deployment of warships for countering piracy and authority to JMSDF to fire on the suspicious ships was provided by the law as the last option to prevent the piracy. In response to the deployment of naval vessels to suppress piracy, the public of Japan and the ship owners greatly appreciated the steps taken by the Japan for providing anti-piracy escorts to the ships carrying cargo and the mechanism adopted by Japan was considered as better one for suppression of piracy though was a costly one but Japan was awarded with bravery award by the IMO in 2010.
3.3.2. US Vessel Traffic Service:
Piracy incidents in Gulf of Aden increased creating high risks for the vessels passing through the waters of Gulf of Aden which in consequence led to more costly insurance premiums, costly security of ships and increase in freight of the cargo due to diversion preferred by the ships from the less distant routes. Vessel Traffic System (VTS) was introduced by the US considering the maritime threats including piracy etc. in order to synchronize the flow of vessel traffic in the busy waters and to protect the maritime domain from the threats which are apprehended at sea. As escorting the vessels is more expensive task, the US introduced the VTS system with objectives to be achieved including aims to protect the merchant ships from the risk of attacks, to provide assistance of vessel traffic flow disturbed by an accident at sea, to provide clearance to the vessels to avoid accidents and to provide safe passage at choking points to the merchant ships and military or naval ships sailing in the sea.
The VTS mechanism provides information services and organizational services and the purpose of introducing the mechanism is to increase effectiveness of escort and naval protection services reducing costs incurred thereof and to stabilize the fluctuating insurance premium costs and resultantly costs of goods and cargo which otherwise remain fluctuating due to increasing risks of attacks in maritime domain. However, the VTS mechanism is not easy to operate because it is more expensive service for a state to provide and due to its expensive nature, the US has reconsidered its proposal to expand the horizon of VTS mechanism from national level or waters under sovereignty of US to the Gulf of Aden and waters outside the jurisdiction of US for protection of maritime domain from the threats of attacks.
Regarding the options to react to the piracy attacks, there are eight options which are available or under consideration by the US with respect to the incidents of piracy and these options include accept piracy without any counter action considering it as costs for conducting international business, enhance the defense setup of the merchant ships, address the legal issues in way of combating piracy, pursue for operation on land as well so to narrow down the relief for pirates which is available to them on land after committing piracy, trace and target the financial support of the pirates, develop the regional capacity for anti-piracy operations, support the regional maritime security capability and continue to conduct naval patrols for eliminating piracy. Even the US being amongst the most developed and technologically most equipped state is not clear to prosecute the pirates despite the fact that US has more interests in the international trade as involved in international trade at higher level with economy based objectives.
3.3. IMPLICATIONS IN PROSECUTION OF PIRACY
Despite the mechanisms adopted by the states throughout the world ranging from international framework of anti-piracy, regional anti-piracy mechanisms and national anti-piracy mechanisms, the incidents of piracy reported in the recent years are causing panic and alarming situation throughout the world. Under the international law, there is universal jurisdiction over the piracy and any state may arrest, prosecute and punish the pirates but the issue remains that who will have to prosecute pirates. There is specified court of law established by international law with exclusive jurisdiction to prosecute the pirates despite the fact that admittedly piracy is crime against the humanity and against the whole international community.
Now, to analyze the implications and problems which are faced by a state prosecuting pirates, it is necessary to have an overview of the cases in which pirates were prosecuted by states and the consequences of such prosecution that has been faced the prosecuting states. After analyzing the piracy cases reported, it would be convenient to answer that whether there is any loophole in the legal framework or there is any other issue which needs to be addressed for successful prosecution of piracy in order to eliminate one of the most dangerous threat to the international community.
3.3.1. Piracy Prosecution:
Kenya is a state which has not prosecuted any of pirates captured by its own military forces however it has prosecuted from late 2008 to late 2009 the pirates handed over to it by other states for prosecution. The rationale behind prosecution of such pirates is that Kenya after resolution passed by UN Security Council in 2008 urging states to cooperate for suppression of piracy consequently Kenya entered into agreement with the states including US, UK, EU and Denmark for prosecution of pirates arrested or captured by these states and as per the reports, Kenya also entered into similar agreements with China and Canada as well. On basis of the agreement, till 2009 US sent ten cases of piracy involving sixty six accused persons alleged to have committed piracy and the cases were referred to Mombasa law courts to be tried by the magistrate as court of first instance so the suspected pirates be tried and prosecuted under the Criminal Procedure Code of Kenya.
The case titled Republic v. Hassan Mohamud Ahmed was first ever piracy trial conducted by the magisterial court of Kenya and was decided in 2006 convicting the accused pirates to undergo seven years sentence against which appeal was filed before the High Court of Kenya. The learned High Court of Kenya dismissed the appeals and set out the precedent that under the international law, the court of magistrate has rightly exercised its jurisdiction for prosecution of non-national pirates captured outside the Kenyan territory. However, in late 2009, Kenya refused to accept any suspected pirates from other states for prosecution as allegedly Kenya was facing hurdles in prosecuting pirates captured by naval forces of other states as Kenya took stance of being overburdened and not provided with assistance in task of prosecuting pirates as agreed in the agreements to the extent of bearing costs incurred in prosecution. The Human Rights Committee against torture has pointed out that National Human Rights Commission of Kenya faced difficulties in monitoring the treatment with prisoners who are not provided with legal safeguard to contact lawyer, medical examination and facilities etc. and such observations by the Committee are detrimental to the efforts of Kenya who was actively prosecuting piracy with a leading role though having limited resources.
In 2010, the foreign Minister of Kenya publicly declared that Kenya will not accept any further suspected pirate for prosecution from the other states and the states capturing suspected pirates have to prosecute those suspects themselves.
Besides Kenya, Seychelles is a small country which has prosecuted pirates and there are numerous reported cases of piracy decided by the courts of Seychelles. In case titled Republic v. Mohd. Dahir, incident occurred in 2009, which was observed by an aircraft at High Sea that the accused persons attacked a coast guard ship which was mistakenly took as cargo ship or passenger ship by the accused. Seven charges of national penal law were levelled against the accused amongst which five charges were offences falling under the Prevention of Terrorism Act, 2004 which were not proved against the accused. However, accused was convicted in 2010 on account of piracy activity contrary to two provisions of penal code hence accused was sentenced to ten years imprisonment on account of each of two offences.
In another case titled Republic v. Abdukar Ahmed, three charges of piracy under the penal code were levelled against all the accused persons who forcefully attacked and took over the control on fishing vessel in the high seas in year 2011 to take the vessel to Somalia and also fired aiming the national coast guard vessels of coastal state and its crew. One fisherman received shot and his shoulder was seriously wounded consequently the accused persons were sentenced to 24 years imprisonment in July 2011.
There are more than 9 reported cases of piracy which were decided in the era 2009-2011 by the courts of Seychelles only however alarming point is that the incidents are still occurring in this modern era in which the world deems itself to be well developed in respect of technology and legal jurisprudence.
3.3.2. Implications and Hurdles:
Prosecution is not an easy task rather it takes time, efforts and costs for prosecution as well. Besides all other offences, prosecuting piracy is a tough job. Pursuing pirate ships or vessels and collection of evidence from the location of occurrence i.e. high seas is a venture which is expensive as well as time consuming hence not affordable for most of the states. It is also difficult to deploy marine police or aircrafts or warships for surveillance by a state on its own expense in the wide areas of the high seas for quick response and the same is also an expensive task. Other than expenses issues, from investigation perspective, the investigating agencies generally are not familiar with the terminologies of the maritime sector, the technicalities involved, language for communication with suspected pirates for investigation purpose as the pirates are usually from other states etc. hence for the investigation and prosecution of piracy, specially training and expertise are required to be given to the investigating agencies.
Moreover, the infrastructure of judicial forums i.e. courts, lack of prisons, lack of expertise for collection, preservation and labelling of evidence collected from place of occurrence i.e. high seas, non-availability of witnesses which are usually sailors, pilots and crew of ships who has such nature of work that they are usually not able to come up to the court to record their statements, financial constraints of the state due to extra expenses on prosecuting pirates, lack of budgets for providing basic life needs to suspected pirates in prisons, overload on the judicial system of a state, provision of counsel and translators on the expense of the state and the constitutional and legal issues like human rights etc. are amongst the primary implications that a state face for prosecuting the pirates. Further, with modernization of the world, the pirates have also became more organized and more equipped with technology as well as connected by role with international politics, the pirates have become so organized that a state prosecuting pirates becomes target of such group consequently the state which prosecutes pirates becomes under severe threats of being targeted by the pirates raising risk for the ships carrying flag or cargo of that particular state.
There are many efforts made by states including regional cooperation alliances regime, individual state’s anti-piracy task forces and joint operations to combat piracy but all the efforts though had impact on incidents of piracy but it is clear that such mechanism are not effective as much. Such mechanism are observed to be more expensive when an operation is to be carried out at far distant areas hence quick response is not possible in such scenario. Moreover, the least rate of prosecution of piracy itself is a question of great concern that prosecution of piracy has been reported from under developed state like Kenya and area wise a small state like Seychelles but not by the well-developed states having financial as well as administrative potential for prosecution of pirates. Developed states like US, Canada and EU are sending the pirates captured by their forces to Kenya for prosecution and not prosecuting themselves which is a point of ponder. Such situations where well developed states are relying on under developed states to conduct prosecution of pirates implies the weaknesses in the existing legal framework for suppression of piracy and such practices are observed to be backed by some political goals at international level. The existing legal mechanism for countering piracy has not even been comprehensive enough to establish a special court or tribunal for prosecution rather provided a general and universal jurisdiction which itself is an attempt to evade from objective of eliminating piracy.
CHAPTER 4
CONCLUSION & RECOMMENDATIONS
4.1. CONCLUSION:
From the research conducted hereinabove, it can safely be concluded that piracy is a continuous threat to the international trade and with the passage of time, the pirates which are no more individual based rather have become more organized and well equipped with the modern technologies. The international community is having strong apprehensions on the incidents of piracy and armed robbery in this modern era where states are having interests in the concept of blue economy and leading to enhance the international trade, the protection of international trade routes from piracy is one of the key factor that is very important to resume the confidence of trading companies or states in international trade. Increasing risks of piracy on the international trade routes consequently causes inflation in the maritime insurance premiums of cargo, ships, voyage, re-routing of merchant ships consuming more time and more fuel for transportation of cargo subsequently raising the prices of the commodities and goods burdening the individual consumers. Therefore, there is no denial by any stretch of interpretation that piracy and armed robbery at sea is a serious threat to international trade which needs to be curbed and suppressed at priority.
More so, the existing legal framework providing mechanism to counter piracy is having loopholes and mere declaration of piracy and international crime and providing universal jurisdiction to the states is not enough to suppress piracy. Even the definition of piracy vary from state to state with respect to domestic law and the definition provided under the UNCLOS has faced severe criticism in this modern era by the jurists and researchers as the same is not covering the modern piracy attacks. In addition thereto, no special forum or court or any established international court i.e. ICC and ICJ has not be given exclusive jurisdiction to prosecute the pirates which is an issue of great concern. The existing legal mechanism has not been so far observed to be a comprehensive and effective one enough to suppress modern piracy. There is no international mission established for surveillance and antipiracy-patrolling and the states are left to bear the burden of surveillance as well as of prosecution on their own risks and costs which is main cause of ineffectiveness of the existing legal framework.
Many developed states like US and EU has time to time developed maritime security strategies and policies however the same are more concerned to the extent of their own national security aims and objectives and even not more expressly concerned to eliminate piracy rather their policies and strategies seem to be more based on economic or political goals only. More so, the regional alliances as well the individual state efforts though have to some extent reduced the incidents of piracy but the same merely pushed the piracy from one area to another like piracy travelled from south east china sea to Indian ocean and Arabian sea, from Somalia to Gulf of Aden and South east Asia which clearly implies that piracy itself is being treated as a nuclear weapon which is pushed by force towards the seas of less developed states hence the same could not be termed to be suppression of piracy rather it is circulation of piracy or use of piracy being part of international politics.
To conclude the research, it can safely be said that the research statement is answered positive that the piracy is an undeniable threat to the international trade routes and there is dire need of a comprehensive and exhaustive global legal mechanism to counter and curb piracy in true sense and the existing international legal framework has been observed to be ineffective and failed to counter piracy.
4.2. RECOMMENDATIONS:
After thorough research, it is recommended that the international community has to re-consider the issue of piracy while putting aside all the political and social differences. The UNCLOS needs to be replaced with an exhaustive international legal instrument under the umbrella of UN as piracy is not only threat to international trade rather it is going to be a severe threat to the peace, security and stability of the whole international community which is prime objective of the establishment of the United Nations. It is in the interest of international community to formulate an exhaustive legal framework to counter piracy before it’s too late.
In the light of research, it is recommended that the proposed global legal mechanism to counter piracy needs to be comprehensive enough to provide a wider definition of piracy that could cover the modern piracy, an international anti-piracy mission should be established for surveillance, anti-piracy patrolling and anti-piracy operations which should be equipped with fast weapon equipped vessels with trained naval persons and deputed at location from where the mission could quickly response to the piracy attempt protecting international trade routes and the expenses thereof must be borne by all the states on basis of international trade tonnage criteria. The international anti-piracy missions should be deployed on the international trade routes having coordination with coastal states for further facilities and the expenses of such facilities should also be borne by the international community as expense of the mission.
Further, an international anti-piracy tribunal may be established or the exclusive jurisdiction to conduct trials of suspected pirates be provided to International Criminal Court and all the expenses incurred upon prosecution should be borne by all the states as per the criteria cited above i.e. on international trade tonnage basis as the threat of piracy or suppression of piracy has direct impact on all the states as per their corresponding interests and concerns with international trade. Until and unless the existing legal framework would not be replaced by an exhaustive and comprehensive global legal mechanism to counter piracy, piracy could not be eliminated effectively and consequences would be faced by the international community as a whole.
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Republic v. Abdukar Ahmed, Criminal Side No. 21 of 2011 (Supreme Court of Seychelles 2011).
Republic v. Mohd. Dahir, Criminal Side No. 51 of 2009 (Supreme Court of Seychelles 2009).
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Convention on Suppression of Unlawful Acts . (1988). SUA Convention. United Nations.
International Convention on Safety of Life at Sea. (1974). SOLAS Convention. United Nations.
United Nations Conference on Law of Sea . (1958). UNCLOS. United Nations.
United Nations Convention on Law of Sea. (1982). UNCLOS. United Nations.
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Commercial Crimes Services. (n.d.). Retrieved from International Chamber of Commerce: https://www.icc-ccs.org/index.php/piracy-reporting-centre/live-piracy-report
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