Recent Developments about piracy in law of the sea and customary international law

In general the difficulties created by recent incidents of piracy and violent
acts against shipping have not been due to doubts or disagreement
about the proper characterization of the acts involved. Rather, the difficulties
arise from doubts and uncertainties concerning the measures that States are entitled, individually or collectively, to take in order to implement and enforce the law which all concerned agree to be applicable
to the incidents and acts. This has been true of the illegal acts at sea that have faced the international
maritime community within the past three or four decades, including
the incidents of piracy against ships in the Gulf of Guinea off
West Africa as well as the spate of pirate activities in the Straits of Malacca.
It is equally true of the recent widespread and serious acts in the
seas off the coast of Somalia and in the wider waters of the Gulf Aden.
In West Africa and in the Straits of Malacca, most of the acts had all the
aspects of traditional piracy. They involved well organized gangs operating
against largely defenceless ships over wide areas of the sea. However,
after initial failures and disappointments, the threat was eventually
contained, due mainly to resolute and effective action, based on cooperation
between the coastal states, other interested states and the
shipping industry.
A new and relatively unprecedented situation of organized and extremely
violent acts of piracy has recently arisen first in the waters off
Somalia and, subsequently, in the wider Gulf of Aden. The phenomenon
has now escalated to a degree which has put shipping in the whole
area in serious jeopardy.
Several special features of the new situation have made the problem different
and more difficult. The first is that there is no effective government
in Somalia. Hence there is no authority on which the international
community can rely either to deal with the perpetrators or to give authorization
to others to do what is necessary. As a result, pirates are
able to bring the ships that they seize into the territorial sea or to ports
within Somalia, with every confidence that they can do so with impunity
and for as long as they wish. In this the pirates are fortified by the
knowledge that, as a consequence of previous disastrous adventures in
the country, many powerful maritime states are unwilling to venture
anywhere near the territory of Somalia.
The other disturbing aspect of the situation is that the pirates are no
longer interested in the cargoes on board the ships, as used to be the
case with traditional pirates and the individuals and teams that operated
in the Gulf of Guinea and the Straits of Malacca. In this case, ships are seized solely for ransom payments. This makes detection and arrest of the persons involved more difficult. For the first step that the pirates
take is to take the ship to a “safe haven” within Somalia and then put
out their ransom demands. And they are emboldened in their actions
because they know that the owner of the ship and the flag State are fully
aware that any attempt to take back the ship would be extremely
dangerous for the ship and for the persons and cargoes on board.
The new form of piracy also raises interesting and complex legal problems.
First there is the issue of definition of the acts involved. Although
it is clear that the main motive of the pirates is to obtain money in the
form of ransom paid for the ships and their contents, many of them
claim that they are acting not for their own profit but for political reasons
i.e. to protect the maritime resources of their country. Whilst such
a claim may have been genuine for some of the actors in the early
stages, it is now largely seen as a wholly implausible pretext to justify
what are clearly unlawful activities. Nevertheless, any such plea by an
arrested person can create legal difficulties when that person is brought
to trial, and there is considerable evidence that this possibility is seen as
a constraint by some governments.
Allied to the issue of the characterization of the offence is the question
of the right of States to take measures of prevention and enforcement
and the jurisdiction of their courts to deal with persons accused of such
offences. By definition, “piracy” in respect of which all States are entitled
to exercise “universal jurisdiction” applies only to acts that take
place on the high seas or outside the jurisdiction of any particular State.
When, as was the case initially, the acts of piracy took place in the territorial
sea of Somalia, other States had no jurisdiction under traditional
international law to take enforcement (or even preventive) measures
against the perpetrators, except with the agreement or at the request of
Somalia. Further, the courts of such states would not have jurisdiction
to deal with persons accused of any such acts. Thus, in the absence of a
government able and willing to exercise the sovereign powers that belong
exclusively to the coastal State, there was a real and serious problem.
Security Council resolution 1816 was intended to resolve this
problem. However, the resolution provided only a partial solution. For while it gives authorization to any State to enter the territorial waters of Somalia and to use “all necessary means to repress acts of piracy and
armed robbery”, such entry must be with the consent of the transitional
government of Somalia. Moreover, foreign states acting in Somali territorial
waters are empowered to take only such measures as are consistent
with measures permitted on the high seas with respect to piracy
under relevant international law. Further, it is not always easy to identify
the relevant authorities from whom consent is to be sought and, in
many cases, the consent of the transitional government may not be
readily forthcoming, even when contact has been established with the
relevant authorities.
There is also the major problem of how to obtain and present evidence,
when persons have been arrested for acts of piracy and are being prosecuted.
In almost all cases, the most important witnesses to the offence
would be members of the crew of the ship that was attacked or the ship
that intervened to prevent the attack; and it is often either difficult or
inconvenient for these persons to attend the hearing to give evidence
when the trial takes place. In the absence of evidence from such persons,
a court may find it difficult to decide on the guilt of the persons
actually before it.
Then there is the very difficult problem posed to many governments by
the issue of the human rights claims by persons arrested and suspected
of having committed acts of piracy or threats to the safety of maritime
transport. Such human rights claims may be made under national constitutions
or international conventions and instruments applicable to
the States involved. It is well-known that the “rules of engagement” of
many major maritime countries instruct or require their personnel on
warships and other ships to release persons captured and suspected of
being engaged in activities that clearly qualify as acts of piracy. In many
cases the naval personnel are instructed not to bring the persons arrested
to their home countries for trial there. These instructions may
sometimes be given because of logistic problems involved in the transport
of the arrested persons or because the necessary evidence from the
members of the crew of the arresting ship may not be available at the
trial. However, a major reason for the reluctance of States to bring arrested
persons to their countries for trial in their courts is the fear that the accused persons might claim political asylum if they are acquitted at the trial or after having served their sentences, if they are convicted. To
avoid having to take the delicate and unpleasant decision to grant or
deny asylum to such pe rsons, States find it advisable and convenient to
instruct their ships and personnel to release any persons that they may
arrest, after they have prevented them from committing offences and,
where necessary, after disarming them. And, of course, pirates who
are released (and disarmed) will not find it difficult to acquire new arms
and boats with which to go back to the business of harassing ships and
their crews.
In addition to these legal problems, there are many other factors which
serve to complicate further the present situation. First the pirates are
now well aware that the owners of ships and cargoes and their insurers
are often ready to pay the ransoms demanded by the pirates, rather than
lose their ships and cargo or cause undue inconvenience and hardship to
the members of the crews, including the threat of mistreatment and
even execution by desperate pirates. The shipowners are also unwilling
to permit or encourage any governmental attempts to reclaim the ship
and rescue the crews. Because they know of the ruthless nature of the
pirates they refuse to sanction any steps by governments that could
pose the risk of damage to the ship and its cargoes or danger to the lives
of the persons on board. Whilst their attitude may be understandable
from a business and humanitarian point of view, their willingness to
make ransom payments clearly provides the incentive to the pirates to
continue with their activities.
Secondly, the prevailing approach of governments and relevant international
bodies does not encourage ships to take effective measures of
self-defence that might prevent or reduce the incidence of pirate attacks.
For example, the general position of the IMO strongly discourages the
carrying and use of firearms on board ships for the protection of the
ship and the crew. The rationale given for this position is summarized
by the Maritime Safety Committee of IMO as follows:
“Seafarers […] are civilians and the use of firearms requires special
training and aptitudes and the risk of accidents with firearms carried
on board ships is great. Carriage of firearms on board ship may encourage
attackers to carry firearms or even more dangerous weapons,
thereby escalating an already dangerous situation. Any firearm
on board may itself become an attractive target for an attacker. Carriage of firearms may pose an even greater danger if the ship is carrying flammable cargo or similar type of dangerous goods.”
However, the MSC does not rule out completely the idea of armed security
officers on board ships. It states that:
“the carriage of armed security personnel, or the use of military law
enforcement officers (duly authorized by the Government of the
flag State to carry firearms for the security of the ship) should be
subject to flag State legislation and policies and is a matter for the
flag State to authorize, in consultation with ship owners, companies
and ship operators”.
Finally, there is the obvious lack of capacity of naval forces to prevent
acts of piracy in such a large area. Rather ironically, the result of the relative
success of the international task force in making matters difficult
for the pirates within the territorial sea of Somalia has forced the pirates
to transfer their activities to areas well outside Somali waters. This has
increased the area to be covered and monitored and has thus made the
task of the already inadequate naval forces much more difficult, if not
altogether impossible.
Faced with such complex questions and difficulties, the question to be
answered is: what can realistically be done by States, individually and
collectively, to address the dangerous escalation in acts of piracy and
other unlawful and violent acts against international shipping?
Action appears to be required in at least two main areas. The first relates
to the possibility of changes in the existing legal framework. This
involves an examination of the current legal principles and rules on the
subject with a view to identifying any weaknesses and loopholes and,
where possible, adopting appropriate remedial measures. The second
area of possible action relates to the steps that can or should be taken,
even under the current legal framework, to combat or reduce acts of piracy
and related threats against the safety of maritime transport, and also
to deal with persons who engage in such acts.
With regard to the possible reform of the international legal regime, a
measure of realism and consequential restraint is called for. For one
thing, it must be appreciated and accepted that a formal revision or
amendment of the relevant provisions of the Convention on the Law of the Sea is not a realistic possibility in the foreseeable future. But that does not mean that nothing can or should be done. For it is possible for
the international community, acting through the United Nations and
possibly IMO, to develop recommendations to States on measures that
may be taken to prevent unlawful acts and to sanction persons who
commit such offences. For example, the Security Council or the General
Assembly might be persuaded to consider the adoption of a suitable
resolution recommending to States practical measures that they
may take, individually or collectively, to eliminate or reduce piracy and
related offences. Along the same lines, the United Nations, or IMO if
considered appropriate, might undertake to elaborate uniform laws and
procedures on the subject for consideration and adoption by States. If
and when such recommendations are accepted and implemented by a
reasonable number of States, the rules and procedures in them would in
time come to be accepted as “generally agreed rules and procedures”
which States could adopt and apply, not because they are under a treaty
obligation to implement but because the rules concerned reflect the
sense of the international community. Using such an approach it might
be possible for the international community to develop uniform laws
and procedures which States would find it advisable to follow, without
necessarily having to go through the tortuous procedures of formally
amending the Convention on the Law of the Sea.
For a start the Security Council might consider making permanent the
current arrangement in resolution 1816 under which foreign States and
foreign naval forces are authorized to enter the territorial waters of Somalia
to take preventive and enforcement measures there against persons
who commit or are suspected of preparing to commit acts of piracy
and other unlawful acts against shipping. At the same time, consideration
might be given to extending Security Council resolution 1816 to
the territorial seas of other States where, as in Somalia currently, the authorities
may not be in a position to exercise fully the sovereign responsibilities
that are expected of them in areas within their jurisdiction. In
the process the Security Council could take the opportunity to clarify
the measures that foreign States and naval forces are permitted to take
against persons apprehended for committing, or preparing to commit,
acts of piracy or other unlawful acts against shipping within the territorial sea of Somalia (and any other States to which the resolution might be extended).
Another issue that could be addressed in this regard is how States can
or should treat unlawful acts which clearly constitute “armed robbery
against ships” but which do not meet all the requirements of “piracy”
as defined in the 1982 Convention on the Law of the Sea. In this regard
it is interesting to note that the 1988 SUA Convention and its amending
Protocol of 2005 have broadened the jurisdiction and powers of States
in respect of “armed robbery against ships” to the point where the
sanctions applicable to persons who commit such offences are not
much different from those that may be applied to persons who commit
acts of “piracy”, under the Law of the Sea Convention. Thus for example,
the principle of “universal jurisdiction” and the duty to “prosecute
or extradite” would apply equally to the persons who are accused of the
crime of “armed robbery” under the SUA Convention. However, at
present the power to prosecute and the duty to extradite apply only
where the States concerned are parties to the SUA instruments. Hence
it is for consideration whether it would be advisable and possible to
make the procedures in the SUA convention and protocol also available
to States which have not yet accepted the Convention and Protocol
and, if so, what would be the appropriate and effective way to achieve
such an objective? This is an issue of legal as well as practical importance.
For, as noted above, there are situations where acts which clearly
qualify as “armed robbery” may not reach the legal threshold of “piracy”,
as defined under international law and the laws of a majority of
States. In such a situation and in the absence of a clear and authoritative
statement on the subject, it is likely that some States and their naval
forces engaged in the protection of international shipping may deem it
prudent to refrain from action where there are doubts about the proper
characterization of the offence that has been committed or is being
committed. But for a ship or crew that is being attacked, and for the
owners of the ship or cargoes that have been illegally seized, the fine legal
distinctions between what is an act of piracy or merely an offence of
“armed robbery” may not be particularly interesting or of much practical
significance.

As far as concerns the practical measures that may or can be taken by
individual States, the merchant shipping industry and the international
community as a whole, there has been no shortage of ideas, suggestions
and prescriptions. The proposed measures range from the very simplistic
to the most utopian. Among these are the suggestion that the pirates
should be “blown out of the water” and the proposition that “the problem
is not going to be solved at sea but by the authorities of Somalia”.
Trawling through the internet on just one occasion, one comes across a
wide range of suggested solutions to the problem of piracy. Some of
these solutions involve great leaps of the imagination, and each and every
one of them raises difficult and complex problems in practical application.

One suggestion that has been made is to place armed guards on ships,
similar to the air marshal programme that was (and is still) instituted on
airplanes after the incidents of hijacking of airplanes. The idea is that
the programme could be administered by an international agency such
as the United Nations and would consist of trained military personnel
from several countries. The guards would board a ship before it enters
the region and remain on board until the ship has exited the region.
They would be given instructions to repel pirates trying to board the
ship. Shipowners would be required to pay fees for the services of the
guards. Although it is admitted that this might be expensive, it is also
claimed that it would probably be less expensive to the owners than having
to pay several million dollars to ransom their ships and crews
when they are seized by the pirates. And it is also suggested that it
might be less expensive and more efficient for the countries currently
maintaining naval ships in the area who, apparently, are currently unable
to arrive within a reasonable time to assist a ship being attacked by
pirates.
A variant of the same suggestion would allow shipping companies to
hire armed security guards who would be stationed on board their

ships. It is suggested that a five or six man professional security team,
hired from a private contractor company, would be more than sufficient
and would be available at a cost to all countries and shipowners for
much less than the cost of deploying naval ships over a wide area. Arrangements
could be made for the locking of weapons while the ships
are in port.
Another suggestion is for ships transiting the affected area to be escorted
in convoys. One blogger writes: “I suggest trying convoys of
ships escorted by the few naval ships that are available. It worked
against sub-marine attacks during the second world war. There would
be no need for long-distance circumvention of the area, although some
ships may have to wait a limited time until a convoy and its military
ship escorts could be assembled”. The same idea is put forward differently
by another contributor as follows: “An old and simple solution to
the current piracy tactics would be the formation of scheduled convoys
through the area. These would be easy to escort effectively through the
region without trying to police the thousands of miles of empty
oceans.” Another writer elaborated the idea further as follows: Under
the aegis of the United Nations, an international task force would be
formed. Participants would be from any countries which want to participate.
The task force would establish a convoy schedule to escort
ships through the Gulf of Aden with armed escorts. Shipping companies
and insurance underwriters would pay the United Nations a reasonable
amount for each trip and each country participating in the task
force would receive a reasonable percentage of the fees as a credit
against its dues to the United Nations. As part of such a scheme, it is
proposed that “a no-ship zone” could be established and enforced in
the area, and any boat without documents of authorization would be
seized.
These suggestions, and many similar ones that have been made in response
to the recent escalation in the pirate and other unlawful acts
against ships, indicate that there is not paucity of options and ideas for
dealing with this menace. That is not, of course, to suggest that that all
or even any of the suggestions would be feasible in practical or political
terms. Further, none of them can be said to be completely without difficulty
legally. For example, the suggestion that armed security personnel
might be placed on board ships to repel attacking pirates appears to go
directly contrary to the position taken by IMO, the United Nations
agency with primary responsibility for maritime safety. As noted above,
the Maritime Safety Committee of IMO has frowned on the idea of
arming seafarers. The Committee has explained that its position is based

on “legal and safety reasons”. The reasons given by the MSC include
the following:

1. Seafarers are civilians and the use of firearms requires special
   training and aptitudes and the risks of firearms carried on board
   ships are great;
2. Merchant ships and fishing vessels entering the territorial sea
   and/or ports of another State are subject to the laws of that State, including
   legislation on the importation of firearms;
3. The carrying of firearms may pose an even greater danger if the
   ship is carrying flammable cargo or similar types of dangerous
   goods;
4. Carriage of arms on board may encourage attackers to carry firearms
   or even more dangerous weapons, thereby escalating an already
   dangerous situation; and
5. Any firearms on board may themselves become an attractive target
   for an attacker.
   In this connection it is noted that whilst the MSC takes a firm position
   against the arming of ships’ personnel, it is more flexible on the use of
   “armed security personnel duly authorized by the Government of the
   flag State to carry firearms for the security of the ship”. The position of
   the Committee is that “it is a matter for the flag State”, in consultation
   with the interested parties.
   It is pertinent to observe in this regard that the reluctance to sanction
   the arming of vessels may not fully reflect the established traditions of
   merchant shipping. In fact the idea of arming merchant ships is not altogether
   new or recent. In the past, it was not unusual for merchant
   ships to carry cannon and weapons comparable to those found on naval
   vessels. And weapons were often used by crews to defend themselves
   and their ship against attacks by pirates, privateers and enemy warships,
   wherever possible. Indeed, as far back as 1914, the United States Department
   of State recognized that merchant ships could be armed without
   acquiring warship status. However, this was subject to certain
   qualifications. Among these were: that the calibre of guns carried
   should not exceed six inches; any guns and small arms should be few in
   number and the quantity of ammunition must be small, the vessel is to
   be manned by its usual crew, the cargo carried should not be contraband
   and the ship must be employed in normal trade. Nor is the practice
   a thing of the past. In recent times it has been reported that some

merchant ships have employed both lethal and non-lethal weapons to
repeal pirates attempting to board their ships. The weapons used have
included small arms such as rifles for firing warning shots and disabling
fire at a distance as well as 12 gauge shotguns and pistols. It would
thus appear that, far from there being a general and strict prohibition
against the presence of arms on board merchant ships, international law
of the sea actually permits ships to exercise the right of self-defence, to
the extent compatible with the dictates of prudence and good sense. In
effect it appears that there is no general and blanket prohibition against
the carrying or use of firearms on board merchant ships.
Nevertheless, it must be admitted that there is considerable merit in the
caution issued by IMO. There is no doubt that the carrying and use of
arms on board ships can raise important and difficult issues not only of
law and diplomacy but also of safety − for the ship and its cargo as well
as for other users of the sea and the marine environment itself. Some of
the questions that may be raised are whether a ship carrying weapons
can be considered to be engaged in innocent passage while in the territorial
sea of a foreign State and whether a ship in port can keep on
board the arms carried by the guards (even under lock and key) if the
local law prohibits the presence on board of such arms. And, of course,
there would be questions about the rules of engagement, including in
particular when and under what circumstances it would be legitimate
for a ship’s personnel or other persons on board to use deadly force to
repel persons who are suspected to be attempting to commit piracy or
other unlawful acts against the ship.
These suggestions and questions suggest that the current attitude and
approaches have not succeeded in dealing with the modern problem of
piracy. In particular, they seem to indicate that it is not unrealistic to
suggest consideration of some new rules and procedures which would
recognize in some form the right of the ship to take some measures of
self-defence, as against what appears to be a blanket opposition to the
use of all force by ships and their personnel. For example, it might be
useful to consider the possibility of a new regime under which ships are permitted to take carefully controlled measures to repel attacks by pirates, always subject to agreed rules and standards that ensure that any
measures taken do not undermine the paramount objective of securing
the safety for ship and its cargoes, protection of the marine environment,
the maintenance of the rule of law and due respect for the human
rights of all persons concerned.
For this purpose, the International Maritime Organization, as the
global organization with the mandate to promote the facilitation, control
and protection of world shipping, would be the most appropriate
institution to take the lead in promoting a proactive and imaginative
approach in this area. For example, it might give some thought to the
possible establishment of a new regime that sets out the types of measures
that ships and crews can or cannot take in their effort to prevent
attacks against ships by pirates and other criminals. In this regard it appears
unrealistic to assume that shipowners will long continue to let
their ships serve as sitting targets for pirates and other irresponsible adventurers.
Further, it appears more helpful to operate on the basis that
taking measures of prevention is likely to be more effective than any arrangements
or procedures whose purpose is primarily to punish persons
who are caught and convicted of piracy and other unlawful acts.
The possibilities of arresting perpetrators are rather limited and the capacity
and readiness of States to take the necessary punitive actions
cannot be relied upon to any great extent.
Further it seems sensible to accept that, rather than allowing shipping
companies and their underwriters (with the reluctant blessing of their
flag States) to take matters into their hands and set up unilateral measures
of self-defence which may not take due account of community interests,
it would be much more responsible and far less dangerous for
the international community to take the lead to ensure that any measures
that may be taken will be subject to internationally agreed limits
and restraints.
For that purpose, IMO might consider the adoption, within a realistic
time frame of a regulatory regime which would deal with, among others,
the conditions and limits for the use of armed personnel on board
ships. It may also be necessary to establish regulations and standards
for the training of personnel and the registration of private or public
bodies for this purpose. Such a regime would also set out arrangements
to ensure that armed personnel and their arms are properly controlled
while the ships are in foreign ports.

There would also be agreed criteria and modalities for flag state regulation
and port state controls as well as clearly defined conditions on the
use of deadly force by persons on board ships.
IMO should also consider carefully some of the practical suggestions
for dealing with the problem of pirates in the waters of the Horn of Africa
and the Gulf of Aden. One of the suggestions is to organize escorted
convoys in areas troubled by pirate activity. Related to this is the
proposal to establish a strict exclusion zone for shipping which would
be patrolled and regulated with greater force. Any ship or craft found
within the exclusion zone would be subject to sanctions, including
sinking where necessary. All legitimate shipping would be confined to
clearly defined routes and lanes which would be intensely patrolled.
Tankers and ships carrying dangerous and volatile cargoes (for which
the use of armed guards may not be prudent or safe) would be required
to travel in special convoys to be organized at specified intervals.
Apart from logistic, financial and political questions, some other difficult
legal issues will need to be considered and reasonably answered before
any such arrangement could be put in place and implemented successfully.
For example, how and by what authority would a “no-ship
zone” area be established within the territorial seas of Somalia (and
other similar States) or even in high seas areas? Which body would be
empowered to prescribe the limits of the areas and which State or States
would have the right or responsibility to enforce the prohibition? Further,
how would such a decision affect the rights of States which refuse
to accept the prohibition?