The international legal instruments in addressing piracy and maritime terrorism: A critical review

This paper critically reviews four international legal instruments in addressing piracy and maritime terrorism - UNCLOS, SUA, PSI and the ISPS Code. Piracy on high seas is currently becoming key tactics of terrorist groups - many of today's pirates are also terrorists with ideological bents and a broad political agenda. The intertwining of piracy and maritime terrorism poses substantial risks for global markets, understanding that much of the world's energy and cargoes being shipped through pirate-infested regions like Southeast Asia. Through investigating the contributions and limitations of the stated instruments, several constructive recommendations are offered to improve their effectiveness in controlling and deterring piracy and maritime terrorism from threatening the well-being of the maritime industries in the post-2008 world.     

A study of maritime security and piracy

This paper studies the contributing factors of maritime piracy by analyzing previous incidents that have been reported to the International Maritime Organization (IMO). Part of the analysis is to filter those ship types that are particularly vulnerable to piracy attacks. The paper also introduces the guidelines developed by the IMO and the industry envisaging to minimize the risk to ships that are exposed to attacks from pirates. It further describes the initiatives taken to develop a sustainable mechanism in the high-risk area (HRA)¹ to suppress piracy and other maritime crimes. This study reflects the fact that maritime security and piracy issues’ importance has been increasingly recognized in the 40 year history of Maritime Policy & Management.     

A study of the role of seafarers in combating piracy off the coast of Nigeria

Piracy off the coast of Nigeria portends grave danger to the economic, security, and sociopolitical development of the country. It also threatens both international and regional trade as well as the stability of the West African sub-region. Despite Nigerian government’s attempts to curb piracy caused by poverty, unemployment, including corrupt and weak maritime regulatory and security institutions, attacks by pirates have continued to occur off the country’s coast. Consequent upon the adverse effects of piratical attacks on their day to day activities, seafarers can facilitate the suppression of piracy off the Nigerian coast. This paper uses statistics, provisions of international instruments and domestic legislations, the United Nations Security Council resolutions, soft laws, and opinions of researchers to examine the nature, causes, and effects of piracy on seafarers in Nigeria. The author argues that seafarers are necessary partners to curb piracy off the coast of Nigeria through enforcing maritime security conventions and other related instruments as well as testifying against pirates during trials. In conclusion, this paper contends that acts of piracy adversely affect crew members’ life, health, family, job, and finance thereby providing an overwhelming motivation for seafarers to play a role in suppressing piracy off the Nigerian coast.     

Challenges to apprehension and prosecution of East African maritime pirates

The coast of East Africa, the Gulf of Aden and nearby waters of the Indian Ocean stand as the most pirate-ridden area of the seas at this time and naval forces from many nations have descended upon the region to ensure the safe passage of commercial vessels; yet piracy for ransom continues. The US, the North Atlantic Treaty Organization (NATO) and now the European Union deploy their navies to disrupt raids, intercept and capture pirates attacking ships passing through the region. However, apprehending pirates is only effective if they can also be brought to a court capable of adjudicating their guilt. Increasingly, the captured suspects are being disarmed and released, lacking a reliable nearby littoral state to prosecute them. In this region, with few viable states either willing or capable of holding piracy trials, apprehending pirates meets only part of the challenge of abating the practise. What is needed is a court system capable of adjudicating these cases; yet a thicket of both law and custom limits the ability of seagoing states to adequately arrest and hand over to reliable prosecution high seas pirates. This article addresses the problems inherent in abating piracy by these means off the coast of East Africa.     

Is Somali piracy a random phenomenon?

This paper investigates whether Somali piracy is a random phenomenon. The investigation takes place in two distinct parts. Its statistical analysis spans over a period of 11 years, from 2000 until 2011 for the first part (flags), and 5 years, from 2007 until 2011 for the second one (crews). The reason is that although prior to 2007 there have been a substantial number of attacks (parameter used in the first part of the research), very few ships were practically pirated (parameter used in the second part) within the same period. Firstly, it is widely believed that Somali pirates select their targets at random and the decision on attacking a vessel registered under a particular flag is unrelated to the participation of the flag state in any of the naval forces operating around the Horn of Africa. The enquiry attempts to assess whether these two common beliefs are supported by historical data and to what extent. Secondly, this paper asks whether there are certain nationalities of crews which are for ethnic and/or cultural reasons more (or less) vulnerable to fall victims of pirates off Somalia. Such groups (if there are any) would in effect indirectly ‘support’ Somali piracy, and for this reason, they could be considered as ‘passively supportive crews’. The analysis focuses on the crew composition of the attacked vessels with special interest cast upon those ships (meaning the crews) which eventually succumbed to Somali pirates and were in the end seajacked.     

Total losses and the peril of piracy in English law of marine insurance

Whereas the Marine Insurance Act 1906 provides substantial detail about total losses, very little is provided in relation to piracy in the said statute. The recent judgments in Masefield v Amlin by Steel J ([2010] 1Lloyd's Rep. IR 345) and then by the English Court of Appeal ([2011] EWCA Civ 24) have highlighted the difficulties associated with determining whether a seizure of the subject-matter of insurance, in this case cargo, by pirates, demanding a ransom, can give rise to a claim for a total loss. This is a very important matter which also raises issues of legality and public policy. This article examines the implications of this judgment against the backdrop of the English marine insurance definition of piracy and the intricacies of the law relating to constructive and actual total losses. The article concludes with the suggestion that possibly the marine insurance definition of piracy should tally with that in the domain of public international law, and further, that legislative intervention should be considered for the purpose of ascertaining the point in time whether and when seizure by pirates can constitute a total loss.     

Universal jurisdiction as obligation to prosecute or extradite

Before searching for new legal solutions to manage maritime piracy problems, especially those related to jurisdiction, it is essential to examine and analyse the existing international legal framework to determine whether current international legal instruments are already appropriate to face off this threat. One such principle is the “Aut dedere aut iudicare” principle, which has been also codified into SUA Convention, at art. 6 par. 4. This obligation comes from an international treaty, so it cannot be disregarded by any state (short of becoming susceptible to international liability), neither can it be amended by a national law. If a state party has inadequate law resources to establish its jurisdiction, or if unable or unwilling to prosecute the pirate, then such state party has no choice but extradite the pirate. If we consider the above principle as a conventional obligation, then it should be limited only to state parties, and it should be applied only under conditions stated by SUA Convention. Instead, if we consider it as a customary law principle, because piracy—as crimen iuris gentium—offends international community as a whole, then such principle shall be binding without any limit or condition.     

International cooperation against piracy: China's role,problems, and prospects

While there are some non-contentious issues about which states can cooperate, most must be molded around the demands of national interest. Piracy is a case where suppression would appear to be in the interest of all states; after all, pirates have been regarded as the enemies of all since Roman times. Despite this, states have often been more ambivalent as they have found piracy to be a useful cloak behind which to hide their wider geo-strategic ambitions. This paper notes that Somali piracy has attracted the interest of China whose citizens have been attacked and hijacked. It asks if this deployment demonstrates that China is committed to the protection of shipping in the context of the existing maritime order or if it has a wider purpose to advance Chinese interests in the Indian Ocean region.     

Drops in the bucket? A review of onshore responses to Somali piracy

That piracy needs to be addressed onshore is a widely shared assumption. While the majority of counter-piracy measures focus on the sea, a number of onshore counter-piracy initiatives have been launched. We can observe the seeds of an alternative land-based policy approach. One set of land-based programs aims at strengthening the legal and security state apparatus to better deter and punish pirates. The other set of programs aims at addressing local populations on regional, clan or village levels. Such projects aim at increasing surveillance, sensitizing populations for the consequences of piracy, and providing rehabilitation or alternative livelihood opportunities. In this article, I review the latter type of projects and discuss the promises and difficulties of addressing piracy by such measures. I discuss five major problems: knowledge problems, implementation problems, counterintuitive consequences, tensions towards other parts of counter-piracy strategy, and the securitization of aid.     

Piracy, navies and the law of the Sea: the case of Somalia

This contribution concentrates on the legal aspects of piracy and tries to explain some of the practical problems which modern navies experience in their fight against piracy and maritime violence off Somalia. The UN Law of the Sea Convention of 1982 provides a traditional though largely deficient set of rules for control and counter measures. Modern legal instruments such as the SUA Convention of 1988 as amended, recent resolutions of the UN Security Council and regional treaties try to fill the loopholes. Against this background the paper discusses e. g. the law of boarding and investigation of suspicious vessels, the arrest and penal prosecution of criminals and the right of self-defence in case of an imminent attack. The international mandates and the national rules of engagement in which the navies operate reflect these ambiguities that result in a loss of momentum. After all piracy is not an act of war, but a crime. In conclusion apolitical solution on land is indispensable as the navies and coast guards can only fight the symptoms and not the causes of crime and unrest in a failed State.     

The implications of piracy on marine insurance: some considerations for the shipowner

A prominent feature of modern day piracy is the ransom that is demanded for the safe release of the ship, cargo and crew. The recent upsurge of this type of piracy, in areas of the world that are of strategic importance to the shipping industry, has created many challenges for shipowners, underwriters and the law relating to marine insurance. The aim of this paper is to examine how the marine insurance market is being affected by the threat of modern day piracy, and seeks to identify the options that are available for the recovery of a ransom payment by the shipowner. Moreover, this study aims to identify the legal issues that might prevent a shipowner from recovering a ransom payment under an insurance policy or from the other interests in a common adventure. The study establishes that a reasonably made ransom payment by the shipowner will amount to an extraordinary expense that is taken to minimise or avert a loss. Such an act can generally be recovered under the insurance policy as a sue and labour expense or from other interests in the common adventure as a general average expense. However, illegality, unseaworthiness and exemption clauses in a marine policy are identified as being legal issues that may prevent a shipowner from recovering the ransom payment. Some of these problems may be overcome if clauses are carefully drafted to specifically cater for modern day piracy in a marine insurance policy. Several inconsistencies may also be resolved by transferring the piracy peril to war risks cover. The shipowner’s duty is to respond to the changing circumstances, by ensuring that his vessel is sufficiently equipped and the crew is properly trained to resist a hijacking.     

海盗活动对海上交通安全的危害及对策

从生命、财产、环境、通航安全等方面阐述海盗活动对航运业的危害,并针对我国防范海盗工作中存在的问题,提出健全和完善惩治海盗的立法、积极参与国际或区域合作、加强信息搜集与预警能力等建议。     

Investigating sea piracy: crime scene challenges

In April 2011, the authors assisted a task team comprised of forensic investigators and detectives to conduct a crime scene investigation on board a very large crude carrier (VLCC) at sea off Durban, South Africa. The VLCC had been held hostage by Somali pirates for 58 days prior to the investigation. This article examines the investigative challenges faced by the forensic investigators and detectives who conducted the investigation and processed forensic evidence on the VLCC which had effectively been declared a major crime scene. Qualitative data for the article was generated from questionnaires completed by the forensic investigators and the detectives who attended the crime scene and who apart from elaborating on the challenges they consider unique to processing a major maritime crime scene also include suggestions which they believe may assist in establishing best practices for dealing with and processing physical evidence at future major maritime crime scenes.     

The impacts of maritime piracy on global economic development: the case of Somalia

This paper investigates the impacts of maritime piracy on global economic development. Calibrated with data between 2003 and 2008, we model shipping demands and competition in the Far East-Europe container liner shipping service and investigate the economic welfare loss effects due to reduced volumes of trade and shipping, as well as efficiency loss due to geographical re-routing of shipping networks which would be otherwise uneconomical. The substantial economic loss simulated from our model indicates that, even from purely the perspective of economic interests, more efforts from the international community should be dedicated to tackle maritime piracy.     

英国普通法下被海盗劫持货物的全损认定

在索马里海盗行为发生后,对于被海盗劫持的货物能否认定为全损,英国法院给予了最新的解读和判决。英国法院认为,暂时地丧失占有权但不是货物所有权,不构成货物不可挽回的丧失。索马里海盗占有货物目的是索要赎金,货物可以通过支付赎金而被返还。因此,由于索马里海盗扣押货物而主张货物全损不能成立。     

浅析索马里海盗现状和船舶加强防范的措施（一）

目前,索马里海盗活动日益猖獗,对海上安全航行构成了重大威胁。文中通过分析近期索马里海盗活动的主要特点、手段和演变趋势以及反海盗行动面临的主要挑战,探索解决海盗问题需努力的方向,并对航经亚丁湾和索马里海域的中国籍船舶如何防范索马里海盗提出相关建议。     

Piracy off West Africa from 2010 to 2014: an analysis

Piracy is one of the most frequent maritime threats. However, despite the importance of how maritime piracy is to be reduced, it is substantially less investigated than maritime safety. Piracy off Somalia is the most investigated case of piracy, but those results are not necessarily generalizable. Piracy off West Africa has been shown to be more diverse, successful and dangerous. This study investigates and analyses piracy off West Africa with the aim to understand how different operations and security measures affect the consequences of piracy. This study has identified several different intents and shows that most attacks are relatively close to shore and correspond to areas of high ship density. Attacks with the intent of theft at night-time are generally performed close to shore, and more complicated attacks against ships under way are more common during daytime and farther from shore. Five types of measures are found to have high effectiveness if the attack is detected during approach; after boarding, only two measures have high effectiveness. Of the effective measures, it can be concluded that all but one are dependent on detecting the attack. Therefore, detecting the pirates is key but must be accompanied by a set of measures because no measure alone can protect a ship given the operational conditions off West Africa. The risks associated with piracy off West Africa are estimated to be of the same magnitude as the risks posed by Somali piracy at its peak.     

Maritime commercial malpractices and piracy under international law

The term ‘Piracy’ tends to be used in a loose, popular sense to refer to various acts of violence or lawlessness at sea which are not, strictly speaking, acts of piracy in law. In this article, the author examines the concept of piracy under international law and related notions such as hijacking and mutiny. In this context, he shows that the ‘malpractices’ of robber bands in such places as the inshore waters of Nigeria and The Philippines are not acts of piracy jure gentium.     

Maritime commercial malpractices and piracy under international law

The term 'Piracy' tends to be used in a loose, popular sense to refer to various acts of violence or lawlessness at sea which are not, strictly speaking, acts of piracy in law. In this article, the author examines the concept of piracy under international law and related notions such as hijacking and mutiny. In this context, he shows that the 'malpractices' of robber bands in such places as the inshore waters of Nigeria and The Philippines are not acts of piracy jure gentium.     

论海事担保制度中海事法院的职权

讨论了海事法院在海事担保中的职权问题,并在此基础上对海事法院因行使该职权给当事人造成损失的法律责任做了分析,提出法院应尽量减少职权的介入,给予当事人合理行使权力的自由。