When is a pirate not a pirate? An interesting question I have been asked on a number of occasions and the explanation is simpler than one would expect. However the legal implications are complex. One thing is for sure more and more super yachts are transiting the Gulf of Aden and the Horn of Africa and these expensive and attractive items will always attract unwanted attention.
Having traded in areas of political and economic unrest and having been the victim of piracy and armed robbery on two occasions in West Africa I have taken a considerable interest in the subject. One thing is for sure acts of piracy and pirates are a very different animal from terrorism and terrorists.
What exactly is an act of Piracy? Different Governments of different States, different conventions and different underwriters and insurance groups all have different ideas. Pirates are also capable of viewing their actions through a social or political prism. To some an act piracy includes only attacks on ships at sea and to others the definition applies only to ships in international waters, some conditions apply whether a ship is underway, at anchor or berthed.
There are a number of other variations on the definitions of what piracy involves, which include other statistics including robberies and attacks whilst the vessel is at anchor or still in port or include acts against refugees like the attacks on the Vietnamese boat people.
From here on in the water becomes increasingly muddy. There are a number of problems with the UNCLOS definition. The crime must be committed "on the high seas in order to fall within the parameters of the definition for piracy for the purpose of the 1997 Act. The UNCLOS definition states;
“and directed on the high seas and in a place outside the jurisdiction of any State";
There is no effort here to differentiate between what are the high seas and a country's territorial waters. The problem becomes more complex still when a countries Exclusive Economic Zone is factored into the equation, and it is probably this interpretation that is attractive to the administration of some government states for its political convenience in refuting claims that piracy exists or is even a problem in their jurisdiction.
For the purpose of public international law, piracy cannot be committed while a vessel is within a country's territorial waters, if an offence that has equivalent characteristics as an act of piracy is committed within a country’s territorial limits it is classed as armed robbery.
Defining the crime has become something of a political football. Under public international law, if piracy included acts of armed robbery carried out not only on the high seas but also within a nation’s territorial waters, then nations would no longer appear to have exclusive jurisdiction over their own territories so many piratical acts today come under local legislation or law as territorial matters.
According Article 105 of the 1982 Convention, every state may take action against pirates at any time in international waters (the high seas) but only by “warships or other ships which are clearly marked and identifiable as being on government service and are authorized to that effect”. The courts of the state which has seized the vessel can however decide on the penalties to be imposed. Article 105 states that a pirate ship cannot be pursued further once it has reached national waters, the exception being with the “consent of the flag state” provided that the act was actually committed on the high seas and not in a place under state sovereignty. An unauthorised intervention by a warship of a foreign state would constitute a violation of that state’s sovereignty. In short this means that there is legal foundation for taking action against piracy other than on the high seas.
However the majority of attacks against ships take place take within the jurisdiction of states. Piracy as defined by the UN Convention does not address this aspect.
Because of this omission the International Maritime Board uses the following definition which is generally agreed is far more robust than the UCLOS definition. The IMB definition attempts to address the situation and cover both actual and attempted acts whether the ship is at sea, at anchor or on the berth.
For statistical purposes the IMB defines piracy and Armed Robbery as
“The act of boarding a ship or attempting to board a ship with the apparent intent to commit theft or any other crime and with the apparent intent and capability to use force in the furtherance of that act.”
While not carrying much legal muscle this is considered a far more robust definition and reflects the popular view of the international and shipping communities and there is a strong sentiment for embracing the IMB definition of piracy as unilateral.
Captain Peter Corbett MNI MRIN
The Motor Yacht Delivery Company
