Introduction
We are familiar with the outlines of the films: swashbuckling individuals bedecked in flouncy clothing sail the seas, seizing vessels, cargo and crew. The visions conjured up are like infamous pirates such as Edward Teach (Captain Blackbeard),[1]Anne Bonny,[2] or François Le Clerc (Jambe de Bois).[3] Modern piracy is conducted by different actors and a decentralised and pragmatic approach can provide a legal lodestar for tackling piracy in the global ocean.
Towards a Reference Point
Initially, piracy was primarily addressed through inter-state dialogue and treaties between states. For instance, the 1670 Treaty of Madrid between Spain and Great Britain bound the parties from plundering their respective vessels at sea.[4] The 1797 treaty of Peace and Friendship signed by the United States and the Bey of Tunis (then part of the Ottoman Empire)[5] protected the respective states’ cargo and vessels on the high seas even in war.[6]
Whilst bilateral treaties (between 2 states) lie at the heart of international relations and are a source of international law, multilateral treaties (between many states) go further in establishing generalised rules upon which majority of states can rely. The leading authority, the 1982 United Nations Convention on the Law of the Sea (UNCLOS),[7] defines piracy as an illegal act of violence, detention or depredation committed by passengers or crew of a private ship (or aircraft) for private ends on the high seas against another ship (or aircraft).[8]
Clarifying Differences
Not all piratical conduct by a ship against another are considered piracy. Piracy and armed robbery at sea are different because the maritime domain is demarcated into zones with varying levels of rights and obligations for coastal and flag states. The maritime zone of the crime determines who (i.e., the state) can assume responsibility to interdict, arrest and detain.
In the absence of this distinction in UNCLOS, resolution A.1025 (26) of the International Maritime Organisation (IMO) adopted on 2 December 2009, defines armed robbery against ships as any illegal act of violence, detention or act of depredation committed by passengers or crew of a private ship for private ends within a state’s internal waters, territorial waters, archipelagic waters.[9]
The high seas fall outside the jurisdiction of any state so all states’ warships or vessels have the right to seize a pirate ship, arrest pirates, seize the cargo on board the pirate ship and the court of the seizing state can try and punish the pirates.[10] In territorial waters or archipelagic waters, the coastal/archipelagic state normally has the responsibility to enforce its laws.[11]
Location is critical in assigning and assuming responsibilities
Highlighting Impact and Complexities
Piracy impacts trade supplies and livelihoods as open and safe seas become more of an aspiration. Closures or rerouting of shipping routes leads to supply shortages and price increases further impacting human cost of living.
In 2023, 120 actual and attempted incidents involving piracy and armed robbery at sea have been reported.[12] In January 2024, a total of 15 incidents were declared and recorded as piracy and armed robbery in international waters and straits used for international navigation.[13]There are fears that piracy will increase in the Gulf of Aden, which used to be a hotbed for piracy[14] as companies consider pausing operations to and from the Suez Canal to protect seafarers and vessels.[15]
Casting piracy in the wider approach of maritime security is necessary
Real world differences linked to international politics are highlighted in practically applying the current rules on piracy. This is because the elements of “who” (private entity), and “why” (private ends), whilst vital in identifying and tackling piracy, are complex to define.
When we consider that many shipping routes are strategically vital and also linked to the movement of key commodities, it is not always clear whether piracy is state sponsored, political or entirely private. This was observed with Somalia where pirates operate as part of “criminal networks whose leadership is unaffected by arrest and prosecutions of pirates who conducted the operations.”[16] Private ends can be political as they can go beyond financial enrichment to include acts with environmental goals.[17] It is argued that private acts should lack authorisation by public authority[18] but it is not clear how this is defined and identified.
Furthermore, not all states have the capability to interdict, detain, try and incarcerate suspected pirates and maritime armed robbers. This is why Somalia relies on the continued support of the UN Support Office in Somalia (UNSOS),[19] African Transition Mission in Somalia (ATMIS),[20] and voluntary contributions by member states of the European Union (EU), the UK, South Korea, India and China.[21] States such as Seychelles have organised agreements with the EU on the conditions and modalities for dealing with suspected pirates.[22]
Lack of capacity does not mean lack of will
Adapting to Change
Shipping and threats to shipping are also changing. With the launch of the autonomous ship, MV Yara Birkeland,[23] it is a matter of time before autonomous shipping vessels cease to be novelties. However, new technologies are yet to be addressed in multilateral treaties. For instance, unmanned vessels, controlled remotely or pre-programmed to hit a target, can engage in piratical conduct. Breaching the cyber defences of a ship or causing the destruction of a vessel can be piratical conduct. These present difficulties in interpreting and applying existing rules on piracy.
The International Law Commissions (ILC) is now considering a redefinition of piracy by linking it to armed robbery at sea (which is missing in UNCLOS).[24] The ILC also notes that unmanned vessels and maritime autonomous vessels are subject to current rules on piracy.[25] This is a necessary first step towards establishing good governance mechanisms tackling modern piracy.
There are notable instances of states working together to share best practices, capacity and capabilities on a regional basis.[26] These initiatives cast piracy in the wider role of maritime security which, if developed further, with time bound targets for action, can align governance measures in tackling piracy and armed robbery at sea.
Conclusion
It would be easy to suggest that global organisations are slow to respond, yet it is high time that regional bodies take accountability, responsibility and action for tackling piracy in their back yards.
TLDR;
Piracy isn’t how we imagine it, it has changed. It’s high tech, evolving quickly and laws don’t keep up. I suggest we need time-boxed, agile rules that can keep up. Instead of waiting for global organisations to act we need smaller regional actors to step up.
[1] See https://www.bbc.co.uk/programmes/p07n8syy In this podcast, the life and crimes of the Captain Blackbeard are discussed.
[2] See information from the Royal Museums Greenwich (I recommend a visit if you can) about female pirates, Anne Bonny and Mary Read https://www.rmg.co.uk/collections/objects/rmgc-object-157040
[3] See La Roncière, 1899, Histoire de la Marine Française Vol.4. Paris Libraire Plon. Pg. 40. Available here https://archive.org/details/histoiredelamari04larouoft/page/40/mode/2up
[4]See Art III of the Treaty for the Composing of Differences, Restraining of Depredations and Establishing of Peace in America between the Crowns of Great Britain and Spain signed 8 July 1670 (also known as the Madrid Treaty). Available here, https://quod.lib.umich.edu/e/eebo2/A32671.0001.001/1:2?rgn=div1;view=fulltext
[5] See The Barbary Treaties 1786-1816 or 1797 Treaty of Peace and Friendship. Available here, https://avalon.law.yale.edu/18th_century/bar1797t.asp
[6] Ibid. Art. 3.
[7] See https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
[8] UNCLOS Art. 101.
[9] See Annex Para. 2.2. Available here, https://wwwcdn.imo.org/localresources/en/OurWork/Security/Documents/A%2026-Res.1025%20-%20Adopted%20on%202%20December%202009%20(Agenda%20item%2010)%20(Secretariat).pdf
[10] UNCLOS Art. 105 and 107.
[11] UNCLOS Art. 2.
[12] See https://www.icc-ccs.org/index.php/1342-new-imb-report-reveals-concerning-rise-in-maritime-piracy-incidents-in-2023
[13] See generally, https://www.imo.org/en/OurWork/Security/Pages/Piracy-Reports-Default.aspx. Data for January 2024 is from the IMO’s Global Integrated Shipping Information System (GISIS).
[14] https://www.bbc.co.uk/news/world-asia-india-68091830
[15] https://www.bbc.com/news/world-middle-east-67731853.amp
[16] See Report of the UN Secretary General on The Situation with Respect to Piracy and Armed Robbery at Sea off the Coast of Somalia. https://unsos.unmissions.org/sites/default/files/sg_report_on_somalia_3_november_2021_.pdf
[17] See Institute of Cetacean Research v. Sea Shepherd Conservation Society, 725 F.3d 940, US Court of Appeals (9th circuit 2013). Pg. 7-8 of decision. https://cdn.ca9.uscourts.gov/datastore/opinions/2013/05/24/12-35266.pdf
[18] See The Republic of Seychelles v. Abdukar Ahmed & 5 others, Supreme Court of Seychelles, Case No. 21 of 2011. Para.2. https://sherloc.unodc.org/cld/case-law-doc/piracycrimetype/syc/2011/the_republic_vs._abdukar_ahmed_five_5_others.html
[19] See https://unsos.unmissions.org/about
[20] See https://atmis-au.org/about-atmis/
[21] See part 5 of UN Doc S/Res/2687 (2023) http://undocs.org/en/S/RES/2687(2023)
[22] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:315:0037:0043:EN:PDF
[23] See https://www.yara.com/knowledge-grows/game-changer-for-the-environment/
[24] See https://legal.un.org/ilc/reports/2023/english/chp6.pdf
[25] Ibid.
[26] For instance, The Djibouti Code of Conduct on the repression of piracy and armed robbery at sea, is a cooperation agreement between 20 states in the Western Indian Ocean region. See https://dcoc.org/about-us/. It is supported by the EU, see https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02008E0851-20221212.
The Southeast Asian Nations (ASEAN) Regional Forum have declared their cooperation against piracy and other threats to security. See https://asean.org/arf-statement-on-cooperation-against-piracy-and-other-threats-to-security/. See also https://asean.org/wp-content/uploads/2023/07/Chairmans-Statement-of-30th-ARF-2023-FINAL-1.pdf