The Resurgence Of Piracy: A Phenomenon Of Modern Times

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University of Miami Law School Institutional Repository University of Miami International and Comparative Law Review The Resurgence Of Piracy: A Phenomenon Of Modern Times Helmut Tuerk Follow
University of Miami Law School Institutional Repository University of Miami International and Comparative Law Review The Resurgence Of Piracy: A Phenomenon Of Modern Times Helmut Tuerk Follow this and additional works at: Part of the Comparative and Foreign Law Commons, and the International Law Commons Recommended Citation Helmut Tuerk, The Resurgence Of Piracy: A Phenomenon Of Modern Times, 17 U. Miami Int l & Comp. L. Rev. 1 (2014) Available at: This Article is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami International and Comparative Law Review by an authorized administrator of Institutional Repository. For more information, please contact THE RESURGENCE OF PIRACY: A PHENOMENON OF MODERN TIMES Helmut Tuerk I. Introduction... 3 II. History of Piracy... 6 III. Definition of Piracy IV. Universal Jurisdiction V. Repression of Piracy VI. Piracy and Terrorism VII. Current Problems VIII. Conclusion SUMMARY Maritime piracy has a very long history and was thought to have, more or less, become a matter of the past. Its resurgence, which threatens world trade and international security, is a phenomenon of modern times. This development is attributable to many factors, from the poverty of coastal populations and desire for financial gain, to the weakness of some states' policing functions, or even, as in the case of Somalia, the absence of an effective government and economic collapse, to the deficiencies of the legal environment characterized by both an insufficient legal framework and the lack of a response mechanism to counter piratical activities. Under customary international law, there is no authoritative definition of piracy. Rather, the concept was first codified by the 1958 Geneva Convention on the High Seas and later by the 1982 United Nations Convention on the Law of the Sea (UNCLOS), although in a rather narrow manner, to include only acts committed for private ends on the high seas, and only those undertaken by one ship or aircraft against another ship or aircraft. Unlawful acts of violence directed against a ship, or against persons or property aboard, within a state's jurisdiction have been defined The author is a judge of the International Tribunal for the Law of the Sea in Hamburg and currently its Vice-President. For many years he has served as a member of the Austrian delegation to the Third United Nations Conference on the Law of the Sea and has also represented his country at subsequent meetings and negotiations in that field. Opinions expressed in this Article are personal and do not necessarily reflect those of the Tribunal as a whole. U. MIAMI INT'L & COMP. L. REv. v. 17 by the International Maritime Organization (IMO) as armed robbery, an offense to which universal jurisdiction, which permits any state to capture and punish pirates under its own municipal law, is not applicable. As Article 100 UNCLOS provides that all States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State, the view seems justified that the suppression ofpiracy, aside from being a right, is also an international duty. While piracy and terrorism at sea have many similarities, and though both are forms of violent interference with shipping, there is a marked difference between the goals of pirates and terrorists, to wit: while pirates usually seek financial gain, terrorists wish to make a political or ideological point, most often coupled with the wanton destruction of human life. Terrorism at sea was first dealt with by the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA), the scope of which was considerably expanded by an amending Protocol in The IMO has for years endeavoured to design practical measures to deal with piracy and armed robbery against ships, as well as to draft relevant new international legal rules providing guidance to states and the shipping community. The enactment of further modern national anti-piracy legislation is certainly required as applying to pirates the SUA Convention, elaborated as an anti-terrorism instrument, seems to offer only a partial remedy. In view of the recent upsurge of piracy off the coast of Somalia, the UN Security Council, as well as individual states, have been taking more robust action. The seizing states are, however, reluctant to prosecute and submit to criminal proceedings in their courts the pirates and armed robbers arrested in view of the attendant legal complexities, in particular, certain human rights implications. The question is also currently under discussion as to whether an international mechanism for the prosecution and punishment of suspected pirates should be established. What should not happen, in any case, is that pirates go free due to the lack of proper legislation or political will. 2009 THE RESURGENCE OF PIRACY I. INTRODUCTION The great oceans of the world - the Pacific, Atlantic, Indian and Arctic - constitute a single interconnected expanse; one continuous body of salt water that is the defining geographic feature of planet earth. 1 The oceans and their marginal seas have long been an indispensable arena for intercourse between human communities. Before there was air traffic and instantaneous communication, people, goods, and ideas travelled the world by ship. Today, even with advances in technology, seaborne commerce remains the linchpin of global economy. According to the International Maritime Organization (IMO), more than 90 percent of global trade is carried by sea. 2 There are two particularly critical chokepoints for maritime traffic: the Strait of Malacca, which is transited by around 50,000 vessels annually transporting about 50% of the total volume of oil transported by sea; and the Gulf of Aden, with about 22,000 vessels annually coming from or sailing to the Suez Canal, carrying more than 120% of that volume. 3 Most of the oceans are under no state's jurisdiction, which acts as both a barrier and a conduit for threats to the security of people everywhere, 4 as piracy and armed robbery at sea have once again become a prominent maritime threat. Pirate attacks generally occur in four major geographical areas: the Gulf of Aden and off the coast of Somalia; the Gulf of Guinea, near Nigeria and the Niger River Delta; the Malacca Strait between Indonesia and Malaysia; and the Indian subcontinent, particularly between India and Sri Lanka. 5 Since it began compiling relevant statistics in 1984, the IMO has shown that the total number of acts of piracy and armed robbery 1 THE WHITE HOUSE, NATIONAL STRATEGY FOR MARITIME SECURITY 1 (Sept. 2005). available at 13 MaritimeSecurityStrategy. pdf. 2 Richard N. Hass, Foreword to SCOTT G. BORGERSON, COUNCIL ON FOREIGN RELATIONS, COUNCIL SPECIAL REPORT No. 46, THE NATIONAL INTEREST AND THE LAW OF THE SEA vii (May 2009), available at publications/attachments/lawofthesea CSR46.pdf. 3 International Maritime Organization, Piracy in Waters Off the Coast of Somalia, id= 1178 (last visited May 11, 2009). 4 See THE WHITE HOUSE, supra note 1. at 1. 5 Stephanie Hanson, Combating Maritime Piracy, COUNCIL ON FOREIGN RELATIONS, Apr. 13, 2009, maritime piracy. html (last visited Jan. 27, 2009). U. MIAMI INT'L & COMP. L. REv. v. 17 against ships so far reported to the Organization was 4978 by April 30, It is, however, also believed that, in general, incidents of piracy and armed robbery at sea are considerably underreported. 7 The actual number of such incidents could thus be even higher. The region off the coast of Somalia has now become the leading area plagued by pirate attacks, some taking place over 500 nautical miles off the coast. 8 The International Chamber of Shipping, on April 15, 2009, therefore recommended that ships should, unless unavoidable, avoid planning a passage within 600 nautical miles of the Somali coast in the Indian Ocean. 9 In 2008, maritime piracy reached its highest level since the Piracy Reporting Centre (PRC) of the International Maritime Bureau (IMB), a specialized division of the International Chamber of Commerce (ICC), began tracking piracy incidents in In that year, global piracy increased by 11% and piracy in East Africa up a stunning 200%,11 with more than 120 attacks of piracy and armed robbery having taken place off the coast of Somalia. 12 For the first three months of 2009, the PRC has already listed 102 incidents of piracy and armed robbery, compared to 53 incidents in the first quarter of an increase that is entirely due to intensified Somali 6 See Int'l Mar. Org. [IMO], Reports on Acts of Piracy and Armed Robbery Against Ships. Issued Monthly Acts Reported During April 2009, 2, U.N. Doc. MSC.4/Circ.136 (May 5, 2009), available at Only.asp/data id%3d25553/136.pdf. Additionally. the number of acts of piracy and armed robbery against ships reported to the IMO in 2008 was 306, as opposed to 282 incidents of piracy in See IMO Mar. Safety Comm. [MSC], 86th Sess. (May 27-June 5, 2009), MSC Meeting Summary, available at mainframe.asp?topic id1 10&doc id=10620 (last visited June 30, 2009) [hereinafter MSC 8 6 th Session]. 7 See Piracy and Armed Robbery at Sea, Focus ON IMO (Int'l Mar. Org.), Jan. 2000, at 2, available at id%3d7985/ Piracy.2000.pdf. 8 IMO, Piracy and Armed Robbery Against Ships in Waters off the Coast of Somalia, 1-3, U.N. Doc. MSC.1 /Circ.1302 (Apr. 16, 2009) available at 9 1 Circ1302.pdf. Id. 10 Hanson, supra note 5; Niclas Dahlvang. Thieves, Robbers & Terrorists: Piracy in the 21l Century. 4 REGENT J. INT'L L. 17, 26 (2006). 11 See Hanson, supra note Pirate of Somalia. MAINBRACE, Jan (No. 1), index.cfm?conentld=37&itemld = 1816. 2009 THE RESURGENCE OF PIRACY pirate activity off the Gulf of Aden and the East-coast of Somalia. 13 In fact, these two areas accounted for 61 pirate attacks, compared to 6 incidents for the same period in This surge in sea robbery is unprecedented and perhaps the most significant eruption of such criminal activity in 200 years, with the pirates making no discrimination among vessels. 15 Many pirates seek to justify their actions as a response to illegal foreign fishing and the dumping of toxic waste in Somali waters, 16 (i.e., the country's 200-nautical mile Exclusive Economic Zone). Today's pirates constitute a serious threat not only for those at the front line (e.g., seafarers, fishermen and shipping companies), but also for the international community at large because of the repercussions they have on world trade and international security. Modern day piracy has been estimated to cost between $13 and $16 billion every year, a figure that could be substantially higher in the future. 17 This resurgence of piracy and armed robbery against ships is attributable to many factors, including: the poverty of coastal populations and desire for financial gain; the weakness of some states' policing functions, or even (as in the case of Somalia) the absence of an effective government; economic collapse; and the deficiencies of the legal environment, characterized by both an insufficient legal 13 International Chamber of Commerce Commercial Crime Services, Piracy Attacks Almost Doubled in 2009 First Quarter. Apr. 21, 2009, available at content&view=article&id=350:piracy-attacksalmost-doubled-in-2009-first-quarter&catid=60:news&itemid= 51 (last visited June 5, 2009). 14 Id. 15 Eugene Kontorovich, International Legal Responses to Piracy off the Coast of Somalia, 13 ASIL INSIGHTS (No. 2) 1, 1 (2009), available at insights cfm. 16 INTERNATIONAL EXPERT GROUP ON PIRACY OFF THE SOMALI COAST, PIRACY OFF THE SOMALI COAST: WORKSHOP COMMISSIONED BY THE SPECIAL REPRESENTATIVE OF THE SECRETARY GENERAL OF THE UN TO SOMALIA 12 (Nov. 21, 2008), available at piracy intl experts report consolidated. pdf, at 27 [hereinafter Somali Coast Workshop ]; see also Nicole Stracke & Marie Bos, GULF RESEARCH CENTER, PIRACY: MOTIVATION AND TACTICS: THE CASE OF SOMALI PIRACY 45 (Feb. 2009), available at Files/ISN/97641/ipublicationdocument singledocument/fb07c80e-33fe-4bc5-89a2-80b9fc4406bd/en/ Piracy+Motivation+and+Tactics.pdf. 17 James Kraska & Brian Wilson, Piracy Repression, Partnering and the Lav, 40 J. MAR. L. & COM. 43, 45 (2009). U. MIAMI INT'L & COMP. L. REv. v. 17 framework and the lack of a response mechanism to counter piratical activities. 18 II. HISTORY OF PIRACY The concept of piracy has existed for thousands of years. 19 Early historians have suggested that acts of piracy can be traced back to the beginnings of navigation, when piracy was regarded only as one of the means of livelihood that the sea offered. 20 Homer's epic poems, the Iliad and the Odyssey, addressed the issue of piracy as early as the seventh or eighth century B.C. 21 The most famous victims of this practice were the Greek philosopher Plato and the young Julius Caesar, both eventually freed against a ransom. 22 The concept of piracy has, however, undergone an important evolution from that time until its codification in the twentieth century. In antiquity, almost anyone who attacked another on the open sea was referred to as a pirate. 23 The fundamental Greek and Roman conception of piracy distinguished between robbers, who were criminals under domestic law, and communities called piratical. 24 These were political societies pursuing an economic and political course which accepted the legitimacy of seizing the goods and persons of strangers without the religious and formal ceremonies considered a prerequisite for beginning a war. 25 It was believed that pirate communities were in a permanent state of war with 18 See Jose Luis Jesus, Protection of Foreign Ships Against Piracy and Terrorism at Sea: Legal Aspects, 18 INT'L J. MAR. & COASTAL L. 363, 365 (2003); Stracke & Bos, supra note 16, at Joshua Michael Goodwin, Universal Jurisdiction and the Pirate: Time for An Old Couple to Part, 39 VAND. J. TRANSNAT'L L. 973, 976 (2006). 20 Id. at Jason Power, Maritime Terrorism: A New Challenge for National and International Security, 10 BARRY L. REV. 111, 112 (2008); see also John D. Peppetti, Building the Global Maritime Security Network: A Multinational Legal Structure to Combat Transnational Threats, 55 NAVAL L. REV. 73, 87 (2008). 22 See Kraska & Wilson, supra note 17, at 44; see also Goodwin, supra note 19, at See Goodwin, supra note 19, at See id. at 2009 THE RESURGENCE OF PIRACY everyone around them 26 except those with whom they had concluded an alliance. It was only in the late Middle Ages that the word piratae began to be understood as sea thieves while the old Greek and Roman usage of this term also seems to have survived in the Mediterranean Sea. 27 At about the same time, the legal status of war no longer applied to many lawful private takings. 28 It was, in fact, in an effort to avoid bringing about a state of war between princes that letters of marque and reprisal were issued to private persons authorizing them to recapture goods from foreigners that had been wrongfully taken by those foreigners, not necessarily the original goods, nor from the original taker, but from his fellow-citizens. 29 In the early seventeenth century, the Italian jurist Alberico Gentili, who taught at the University of Oxford, argued that only princes had the power to resort to war and that the label pirate unmistakeably carried with it the connotation of outlawry, stating that pirates are enemies of all men [Piratae sunt hostes omnium]. 30 The laws of war could not apply to them and their actions were forbidden by international law. 31 In his view, any taking of foreign life or property at sea not authorized by a sovereign was synonymous with robbery on land. 32 This concept was based on the writings of Cicero, who declared that pirates were the common enemies of all communities. 33 Cicero, however, used this phrase in a context different from that of Gentili and others who emulated him, 34 namely, with respect to politically significant communities in the 26 Id at See ALFRED P. RUBIN, THE LAW OF PIRACY (Transnat'l Publishers, 2nd ed. 2006). 28 See id at Id. 30 See id. at See id. at Id. 33 Goodwin, supra note 19, at 989. The source of the paraphrase hostis humani generis has not been found, but has been attributed to Sir Edward Coke who used it in a book published in Rubin, supra note 27, at 17 n. 61. By 1615 British courts had determined pirata est hostis humani generic. Michael Bahar, Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory for Naval Anti-Piracy Operations. 40 VAND. J. TRANSNAT'L L. 1, 11 (2007). 34 See Rubin, supra note 27, at 29. U. MIAMI INT'L & COMP. L. REv. v. 17 Eastern Mediterranean who pursued a course of behaviour similar to that of the Vikings many centuries later. 35 The Dutch lawyer Hugo Grotius, in his seminal work De Jure Belli ac Pacis, published in its final version in 1646, defined the term pirate quite differently from Gentili and asserted that the term piratical should be applied to those who are banded together for wrongdoing, but not to societies formed for other reasons, even if also committing illegal acts. 36 According to Grotius, a gathering of pirates and brigands was not a state; members of a state, even if at times not free from crime, had been united for the enjoyment of rights, and served to render justice to foreigners. 37 Thus, Grotius's conception of the term pirate included robber bands on sea or land but not the Barbary States or other communities engaged in piratical activities whose primary purpose of association was considered lawful. 38 The growth of modern international law in the post- Westphalian order had to take account of the rapid increase of piracy, which was most prevalent in the Mediterranean Sea and on the trade routes between Europe and the Americas, reaching its heyday during the seventeenth and eighteenth centuries. 39 While piracy was cracked down on for disturbing the commerce and friendship between different nations, 40 privateering authorized by a sovereign was often openly encouraged and became the preferred method of plunder on the high seas. 41 However, with trade flourishing in the relative calm after Napoleon's demise, nations began to increasingly view not only piracy, but also the activities of privateers as detrimental to their commercial and national interests. 42 Therefore, to counter a menace that affected all nations indiscriminately and that could not be controlled by the normal means of diplomacy or warfare, the 35 See Goodwin, supra note 19, at See Rubin, supra note 27, at Id. 38 See id at I. Shearer, Piracy. MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW. article?script=yes&id=/epil/entries/law el206&recno=2&author=Shearer%20%20lvan (last visited November ). 40 See Goodwin, supra note 19, at Id. at See Bahar. supra note 33, at 12. 2009 THE RESURGENCE OF PIRACY Declaration Respecting Maritime Law was signed in Paris in 1856, outlawing such state-sponsored piracy 43 in stating privateering is, and remains, abolished. 44 Piracy dwindled to a controllable and almost unnoticeable level at the end of the nineteenth century only to make a strong comeback, though in a different cast, in recent years. Indeed, at the turn of the nineteenth century and for the greater part of the twentieth, piracy seemed to have faded away into the mists of history. 45 Though a phenomenon as old as shipping and maritime trade, it was thought to have forever been eradicated from most of the seven seas. 46 The crime of piracy thus also began to disappear from some criminal codes or was altogether not included in the first place. 47 In the 1960s, however, piracy slowly started its resurgence and, by the 1980s, emerged once more as a regional, if not a global, menace. South-east Asia was initially at the forefront of this new phenomenon, only
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