by Luke Havemann

Legally speaking - What is piracy?

Piracy and the East African oil and gas industry

shipwreck and piracy
piracy 2.jpg

Legally speaking, what is piracy?    

All maritime activities, including piracy, are subject to the provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). With 162 States, including the European Union, being party to UNCLOS, any discussion of the law pertaining to piracy would be inadequate if it failed to draw attention to the relevant provisions of UNCLOS. 

Piracy is defined under article 101 of UNCLOS as consisting of the following acts: 

"(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i)   on the high seas, against another ship or aircraft, or against person or property on board such ship or aircraft;
(ii)  against a ship, aircraft persons or property in a place outside the jurisdiction of any State; 
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; or
(c)any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).”

The key elements of the above definition are: the geographic scope thereof; the private ends requirement; the so-called two-ship requirement, and the concept of a ‘pirate ship’. 

At first glance, the ‘geographic scope’ of the UNCLOS definition of piracy appears to limited to acts committed ‘on the high seas’. This is, however, incorrect as article 58(2) of UNCLOS allows for the relevant geographical scope to include exclusive economic zones. Consequently, when any of the acts referred to within the above-mentioned definition of piracy are committed outside the territorial sea of a particular State, such acts constitute piracy. 

Who has jurisdiction over pirates?

As an exception to the principle of exclusive flag State jurisdiction over ships on the high seas, UNCLOS provides for universal jurisdiction over pirate ships. Article 105 states that “on the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates and arrest the persons and seize the property on board.” 
Notably, by virtue of article 58(2) of UNCLOS, the geographic scope of article 105 must be read so as to include exclusive economic zones. Geographic scope aside, the principle of universal jurisdiction simply means that piracy provides an independent basis for jurisdiction and that no other jurisdictional link needs to exist between a pirate ship and a State acting against such a ship.

Co-operative anti-piracy mechanisms

International co-operation in the fight against piracy is of crucial importance because, by definition, piracy takes place outside the jurisdiction of any particular State. Both the Security Council and the General Assembly have emphasised the need to strengthen collaborative anti-piracy efforts. There has been a decrease in the number of attacks recorded by the IMB when compared to the number of attacks recorded during the same period last year. In the first quarter of 2011, there were 142 attacks, while for the same period this year there have thus far been 102 attacks. Although there has been a decrease in the number of reported incidents, 102 is still a substantial figure and piracy is clearly still a significant problem.  Seafarers themselves are legally entitled to adopt certain protection measures which, if adopted, may deter pirate attacks and thus help to reduce the number of successful incidents of piracy.

Protection measures

Various factors determine a ship’s vulnerability to piracy, for example its size, speed and freeboard. Although each ship is unique as regards its vulnerability to attack, various maritime organisations have co-operated in the publication of standardised ship protection measures, namely the Best Management Practices (BMP) for Protection Against Somalia Piracy. The BMP, which is currently available online in its fourth version, is aimed at advising seafarers on how best to deter pirates. Ship protection measures set out in the BMP include, among other things: increased vigilance, including the provision of additional lookouts; enhanced bridge protection through, the provision of Kevlar jackets for the bridge team; and the erection of physical barriers such as concertina razor wire. 

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Issue 39