International piracy law

The 1958 Geneva Convention on the High Seas states that piracy occurs on the high seas.[8] Article 101 (1)(a) of the UNCLOS definition also states that piracy occurs on the high seas.[4] Referring to Article 58(2) of UNCLOS shows that piracy can also occur in the Exclusive Economic Zone.[8] Violent acts against ships in the Territorial Sea of any State cannot be piracy under international law.[11] Violent acts in the Territorial Sea are Armed Robbery under the law of the International Maritime Organisation.[12]

Ships have been captured off the coast of Somalia and crews held for ransom since the 1990s, with armed groups in the territorial sea and the government unable to enforce the law.[8] Somali pirates attacked ships carrying humanitarian supplies to the Somali population.[8] This was the 2009 Maersk Alabama hijacking which was the basis for the film Captain Phillips. A Danish thriller film about Somali piracy is the 2012 A Hijacking. Another movie is the 2017 The Pirates of Somalia film.

The United Nations Security Council Resolution 1816 on Piracy in Somalia provided an exception, that piracy could occur in the Territorial Sea of Somalia.[13] This allowed states to cooperate with the Transitional Federal Government of Somalia in order to suppress piracy.[13] Resolution 1816 meant that a ship could chase a pirate vessel in a reverse Hot Pursuit, from the High Seas into the Territorial Sea of Somalia.[14]

This is known as the 'two ship' requirement of the definition.[15] In the 1961 Santa Maria hijacking of a Portuguese passenger ship, the perpetrators were already on board posing as passengers, so there were not two ships.[16] Their motives were solely political.[16] Although there was extreme violence this did not meet the UNCLOS piracy definition of motivation, or mens rae, for 'private ends.'[16]

In the 1985 Achille Lauro hijacking the ship was captured in the Mediterranean by Palestinian Extremists who were already on board.[15] Although there was violence on board the ship, because there were not 'two ships' this could not be seen as piracy.[15] After the Achille Lauro hijacking, the International Maritime Organisation developed the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation.[17] The 1988 SUA Convention and the 2005 Protocol to the SUA Convention are United Nations Treaties.[17]

Greenpeace Ship Arctic Sunrise

In the 2013 legal Case of The Institute of Cetacean Research v. Sea Shepherd Conservation Society, a United States District court held that the actions of Sea Shepherd vessels against Japanese whaling vessels fell within the UNCLOS piracy definition of 'private ends'.[18]

In the 1986 legal case of Castle John v. NV Mabeco the court ruled that a Greenpeace vessel committed piracy in acts against a Dutch Vessel, which was discharging waste at sea.[18] The court ruled that Greenpeace motivation to 'alert the public of harmful discharge to the environment' fell within the UNCLOS piracy definition of 'private ends.'[18]

In the Greenpeace Arctic Sunrise Ship Case the Arctic Sunrise staged protests in the waters of the Russian Exclusive Economic Zone, centred around the oil platform Prirazlomnoya.[19] The crew were initially charged with Piracy, but the charge was later dropped by Russia.[19]

The Arctic Sunrise case was tried by the International Tribunal for the Law of the Sea [19]

United Nations Security Council Resolutions on Somalia Piracy

The collapse of the Somali State in the 1990s opened the region to illegal, unreported and unregulated fishing (IUU), as well as the unregulated disposal of toxic waste by rich States.[20] Somalia Pirates claim that they take to the seas in order to protect pillaged local resources, and in response to lost income.[8] A series of UNSC Resolutions concerned piracy in Somalia. The United Nations Security Council Resolution 1918 adopted in 2010, called on States to establish national piracy laws and to prosecute Somalia pirates.[21]

The Contact Group on Piracy of the Coast of Somalia (CGPCS) brings together States and International organisations, aiming for a holistic response to the root causes of piracy.[20] The International Maritime Organisation Djibouti Code of Conduct (DCoC) is a soft law approach, where Arab and African States collaborate in maritime security responses to piracy and armed robbery.[20] The Shared Awareness and Deconfliction Mechanism (SHADE) was set up in 2008 as an informal forum for States and Organisations to collaborate on counter-piracy measures off the Horn of Africa.[20]

An integrated understanding of threats at sea has been labelled Maritime Domain Awareness.[22] Coordination between international naval operations, defensive actions of the shipping industry and Agreements such as the CGPCS and the DCoC have contributed to repressing piracy and armed robbery.[23] Three regional agreements to combat piracy are the DCoC, the Regional Cooperation Agreement on Combatting Piracy and armed Robbery against Ships in Asia (ReCAAP) and The Yaounde Code of Conduct (YCoC).[23] The regional agreements enabled development of best practices to combat piracy and global transfer of expertise.[23] The Jeddah Amendment to the DCoC included other illicit maritime activities and is a possible model for integrated maritime security, beyond its regional scope.[23]

Private insurance has been seen as a guarantee of certainty and security, but it also has a moral economy of risk.[24] For Centuries Lloyd's of London has offered marine insurance and underwritten piracy risk.[24] The nature of the peril of piracy requires specialist underwriting to match the level of risk with the premium.[24] With ship ransoms of US$3 million per ship, armed security teams offered to transit with ships in heightened risk areas at a cost of US$60,000 for a team of four.[25] From 2005 Piracy has been managed by the marine war branch of Lloyd's, the Joint War Committee (JWC).[24] Lloyd's insurance of piracy is a governance mechanism.[24]