The jurisdictional challenges to the prosecution of piracy cases in Kenya: mixed fortunes for a perfect model in the global war against piracy

Since 2008 Kenya has distinguished itself in the global war against piracy by undertaking prosecutions in the national courts of suspected pirates arrested in the high seas and handed over by navies of leading maritime nations under bilateral agreements (MOUs) entered into between Kenya and these leading maritime nations. As of July 2011, Kenya had over 20 convicted pirates serving jail terms ranging between 7 and 20 years and over 100 suspected pirates awaiting trial in national courts. This is the largest number of suspected pirates held and tried in any one state at any given time in modern history. To achieve this, Kenya had to effect far reaching changes in the law. In the initial stages, suspected pirates were charged under Kenya’s Penal Code (Cap 63 Laws of Kenya). However, the high court in the case of Re Mohamud Mohamed Dashi and eight others [2010] eKLR, ruled that Kenya had no jurisdiction to try suspected pirates under that law. In September 2009, Kenya passed a new law (the Merchant Shipping Act), which not only defined more comprehensively and extensively the offence of piracy, but also extended the jurisdiction of Kenyan courts to try piracy committed by non-nationals. Though the law gives Kenya a very broad jurisdiction to try suspected pirates, the process is still fraught with challenges due to lack of financial and human resources. In the case of Republic vs Hassan Jama Haleys Alias Hassan Jamal and five others [2010] eKLR, the court commented thus:

“… I must note that the ‘piracy trials’ have presented a unique challenge to the Kenyan legal system. We cannot ignore the fact that these are suspects who having been arrested by foreign naval forces on the High Seas are brought to Kenya for trial. They are strangers in the country, do not understand the legal system, may not know what their rights are and do not understand the language… the Kenyan Government and the International partners supporting these trials put in place a system to provide free legal representation for the suspects…”     

Old laws for new risks at sea: mineral resources, climate change, sea lanes, and cables

Maritime security in a broad sense means more than piracy and terrorism. This paper concentrates on the risk potential of current and future resource-related activities on the seabed. The seabed mining of hard mineral resources??in addition to hydrocarbons??leads to new controversial maritime boundary claims of states in their effort to expand national access rights to raw materials. Outer continental shelf claims in the Arctic Ocean are today's test bench for law of the sea conflicts. Fiber-optic cables running through regional seas, straits, and land bridges may become another risky issue, while the pattern of maritime transport routes is moving from Northern to Southern waters. Under a medium-term perspective, the sea level rise will endanger ports and coasts. Borderlines of maritime zones will move and thus generate more injustice and conflicts among states. The tools to solve borderline conflicts and options for dispute settlement are available in UNCLOS. Some other legal gaps are covered by the 2005 SUA Convention and by bilateral agreements, while resolutions by the UN Security Council begin to broaden rights of intervention and interdiction. The need for new laws remains.     

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.     

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.     

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.     

The place of the ISPS Code in the legal international regime

The adoption of the International Ship and Port Facility Security Code (ISPS Code) is the latest response of the international shipping community to the increasing threat posed by acts of terrorism at sea. The ACHILLE LAURO incident of 1985 showed that the traditional law against piracy was not adequate to deal with new types of unlawful acts against international shipping, especially those involving acts of terrorism. The 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) and the technical and administrative measures adopted by the Maritime Safety Committee of IMO in 1986 and 1996 attempted to develop a broader regime to deal with unlawful acts against international shipping.However, the events of September 11, 2001 showed that additional measures were still needed to prevent terrorist attacks against ships.     

国际货运公约对多式联运规范之差异

《国际多式联运公约》近期内生效的可能性十分渺茫,因而,调整多式联运下众多关系人之间的法律关系在事实上存在着难以弥补的差异。文章指出了各公约中关于多式联运规定所存在的差异,并提出了法律适用方面的建议。     

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.     

对中国商船预防和应对索马里海盗的相关思考

综合分析一些国家政府和国际组织针对索马里海盗问题采取的一系列措施和建议,以及中国航运界目前应对索马里海盗的状况,对于制定中国商船预防和应对索马里水域海盗袭击指南中提出应考虑的事项。     

拒海盗于船舷之外的两道防线

由于亚丁湾海域有多个国家的军舰护航和巡逻,武装海盗已选择远离护航海区劫持商船。对于这些商船来说,应保持高度戒备,设立两道防线:早发现、早预告、早采取措施;当海盗兵临船舷下采取有效防范措施,将海盗拒之船舷之外。     

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 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.     

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.     

The continental shelf and the exclusive economic zone: the problem of delimitation at UNCLOS III

If the Third United Nations Conference on the Law of the Sea succeeds in adopting a new Caracas Convention on the Law of the Sea, it is likely to embody detailed provisions on the delimitation of both the continental shelf and the new zone, the exclusive economic zone. In this paper, the most recent draft of these rules—contained in the Revised Single Negotiating Text—is subjected to a detailed and critical scrutiny which leads to the conclusion that the Sixth Session of the Conference still has a great deal of work to do before agreement can be reached on a satisfactory set of rules.     

The theory and practice of a carrier's liability under the Athens Convention—the English experience

The effect of the regulation of a carrier's liability by the mandatory application of rules introduced by international convention are considered in the context of a review of the standard terms and conditions employed by major UK passenger carriers reacting to the Athens Convention 1974. It is hoped that by analysing the impact of the Athens Convention upon the British operators who still play a significant part in the international transport of passengers, that light will be shed on the response than can be expected from maritime carriers to the imposition of international convention jurisdiction generally.     

压载水管理系统/方法批准程序综述

文中全面介绍并比较分析了压载水公约和相关导则、文件对压载水管理系统/方法批准程序的要求,对制造商提高压载水管理系统的研发效率、加快申请批准的进程以及提高批准成功率有重要意义;同时,为主管机关完善和理顺相关法律文件、顺利开展型式认可等履约工作提供参考。     

航运提单标准电子报文研究及开发

通过研究EDI、EDIFACT标准和现行使用的航运提单，按照EDIFACT标准开发了航运提单的标准电子报文，并以一个具体实例，解释开发的标准航运提单电子报文的应用。     

索马里海盗问题对我国航运界的影响

尽管索马里海盗问题得到了国际社会的高度重视,并出台了一系列的预防和惩治措施,但由于这些措施并未从根本上解决海盗问题,海盗活动仍然层出不穷。文中主要分析了海盗问题对我国航运界的实际影响,并给出了相关的建议。     

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.