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Published : August 14, 2011 | Author : adityadutta215
Category : Criminal law | Total Views : 6104 | Unrated

  
adityadutta215
Aditya Dutta 5th Year Student Amity Law School, Noida
 

Sea Piracy – The Legal lacunae that exist

Sea Piracy, in its original and strict meaning, is every unauthorized act of violence committed by a private vessel against another vessel with intent to plunder (animo furandi). A pirate has always been considered outlaw, a hostis humani generis. According to international law the act of piracy makes the pirate lose the protection of his home state, his national character; and his vessel, or aircraft, although it may formerly have possessed a claim to sail under a certain state’s flag. Piracy jure gentium is an ‘international crime’.

Story j. in the case of United States v Smith said, “Whatever may be the diversity of the definitions in other respects, all writers concur in holding that robbery or forcible depredations upon the sea animo furandi, is piracy.”

Article 15 of Geneva Convention on High Seas, 1958 defines ‘piracy’ as any of the following act:-
(1) Any illegal act of violence, detention or any act of depredation for private ends by the crew or the passengers of a private ship or private aircraft, and directed (a) on the high seas, against persons or property on board such ship or aircraft; (b) against a ship, aircraft, persons or property in a place outside the jurisdiction of any state.

(2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft.

(3) Any act of inciting or of internationally facilitating an act described in sub – paragraph (1) or sub-paragraph (2) of this article.

A ship or aircraft is considered a pirate ship or aircraft if it is intended by persons in dominant control to be used for the purpose of committing one of the acts referred to in Article 15 and it remains so until under the control of that guilty person

The Rise of Sea Piracy
The fall of USSR, the end of cold war and reduction of marine troops by 50% by USA and USSR are some of the chief causes for this geometric rise in cases of sea piracy.

The following is a list of major pirate centers:
1. Philippines
2. Indonesia
3. Somalia
4. Nigeria
5. Brazil
6. Columbia
One thing can be construed that major choke points in terms of world trade like the Strait of Malacca, the Gulf of Hormuz, Gibraltar, Panama Canal and the Gulf of Suez are thriving areas for sea piracy.

‘Sea Piracy in recent times’
The first half of 2011 saw a 36% increase in the number of pirate attacks as compared to the same period in 2010. More than 60% of the attacks were hatched by Somalian pirates. Most of these attacks have occurred east and northeast of the Gulf of Aden, an area navigated by crude oil tankers sailing from the Arabian Gulf, as well as other ships sailing into the Gulf of Aden. Since the 20th of May, pirates have attacked 14 ships in the southern Red Sea.

These attacks have led to hostage of 361 sailors and kidnapping of 13 first six months of 2011. 495 seafarers were taken hostage, seven people have been killed and 39 injured. Ships, including oil and chemical tankers, are increasingly being attacked with automatic weapons and rocket propelled grenade launchers. There have been reports of 12 attacks on tankers off Benin since March.

Sea piracy worldwide has hit a record high of 142 attacks in the first quarter this year as Somali pirates become more violent and aggressive. Nearly 70 per cent or 97 of the attacks occurred off the coast of Somalia, up sharply from 35 in the same period last year.

Before going into the legal issues related to piracy there are certain terms which we need to understand:-
‘High Seas’ - It can be defined as the ‘coherent body of salt water over the greater part of the globe, with the exception of the maritime belt and the territorial straits, gulfs, and bays, which are part of the sea but not parts of the open sea’

UNCLOS III led to the Convention on the Law of the Sea 1982, also sometimes known as the Convention of Montego Bay. This Convention not only agreed on maximum limit of 12 miles for territorial sea; but it also adopted the new concept of an exclusive economic zone of up to 200 miles breadth measured from the territorial sea baseline. The state adopting its exclusive economic zone though sui generis and not territorial, nevertheless importantly modifies the regime of the high seas over which it is extended.

‘Freedom of the High Seas’ - The principle of the high seas means that the high seas being common to all states, no state may purport to subject any part of them to its territorial sovereignty. Since, therefore the open seas is not the territory of any state, no state as a rule has a right to exercise its legislation, administration, jurisdiction, or police over parts of the high seas. The high seas are what Roman law calls res extra commercium.

The mere fact that there is a rule exempting the open sea from the sovereignty of any state does not mean that there is no legal authority over that area. For that would perpetrate complete lawlessness. To obviate such lawlessness, customary international law contains some rules which guarantee a certain legal order on the open sea.

“The high seas being open to all nations, no state may validly purport to subject any part of them to its sovereignty”.

‘Jurisdiction on the High Seas’ – The legal order on the high seas is based primarily on the rule of international law which requires every vessel sailing the high seas to possess the nationality of, and to fly the flag of, one state; by this means a vessel, and persons and things abroad, are subjected to the law of the state of the flag, and in general subject to its exclusive jurisdiction. These rules of international law are also supplemented by municipal laws of various states.

A ship which sails under the flag of two or more states, using them according to convenience, may not claim any of the nationalities in question with respect to any other state, and may be assimilated to a ship without nationality

‘Scope of Flag Jurisdiction’ - Jurisdiction on the high seas is thus dependant upon the maritime flag under which vessels sail, because, since no state may extend its territorial jurisdiction to the high seas, jurisdiction accordingly, cannot be based upon a territorial principle

‘Exceptions to this Scope’
(a) Right of Visit – The general rule is that a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity, is not justified in boarding it. But the warship may board such a ship if there is reasonable ground for suspecting that the ship is engaged in piracy, slave trade or any other illegality according to the U.N Convention on the Law of the Sea, 1982.

(b) Right of hot pursuit – Article 111 of the U.N. Convention on the Law of the Sea, 1982 provides that the hot pursuit of a foreign ship may be undertaken when the competent authorities of the State have good reason to believe that the ship has violated the laws and regulations of that State.

‘Pirate’ –
A sea pirate is a: -

(1) A robber on the high seas; one who by open violence takes the property of another on the high seas; especially, one who makes it his business to cruise for robbery or plunder; a freebooter on the seas; also, one who steals in a harbor.

(2) An armed ship or vessel which sails without a legal commission, for the purpose of plundering other vessels on the high seas.

‘Maritime Piracy’ - Maritime piracy, according to the United Nations Convention on the Law of the Sea (UNCLOS) of 1982, consists of any criminal acts of violence, detention, or depredation committed for private ends by the crew or the passengers of a private ship that is directed on the high seas against another ship, aircraft, or against persons or property on board a ship. Piracy can also be committed against a ship, aircraft, persons, or property in a place outside the jurisdiction of any State.

Essential elements of Piracy
Some of the essential elements which are the sine qua non for any act to be bracketed under the term ‘sea piracy’ are firstly the violence or robbery at the high sea must be for private ends. Secondly it must be perpetrated against the crew. Thirdly it may either be on the high seas or in a place outside the jurisdiction of any State. Fourthly, it must be against a ship, aircraft, persons or property. Fifthly even an unsuccessful attempt to commit robbery at high seas will constitute piracy as held in the case Re Piracy Jure Gentium. Another category of piracy would be voluntary participation in the operation of a ship or an aircraft with knowledge of facts making it a pirate ship or aircraft

‘Where Sea Piracy can be committed’
Piracy as an ‘international crime’ could formerly be committed on the high seas only. But Article 15 of the Geneva Convention on the High Seas 1958, following a proposal of the International Law Commission added the provision that piratical acts may be committed ‘Against a ship, aircraft, persons or property in a place outside the jurisdiction of any state’. Hence, piracy committed within the territory, territorial sea of the state as well as outside the jurisdiction of the state the concerned state has to deal with it.

‘Piracy committed by unrecognized insurgents’
One of the important legal effects of the recognition of insurgency is that insurgents are not treated as pirates. But, so long as they remain unrecognized, they can be apprehended and punished as they commit piracy.

‘Piracy by a war ship, government ship or government aircraft whose crew has mutinied’
According to Article 102 of the U.N. Convention on the Law of the Sea, the acts of piracy committed by a war ship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship or aircraft.

‘Method of attack used by the Pirates today’
Today pirates from local villages attack with the latest weaponry and best equipments. They are usually organized along gang lines. Generally they attack from behind a ship or may surround a ship with numerous smaller pirate boats in a sophisticated military attack. They take over the bridge, and then seek out the captain. Within minutes of boarding a ship, pirates go after safe, the crew, and cargo.

Case Study:
‘The Case of Chang-Sun merchant vessel’
In 1998 The Chang-Sun merchant vessel in the South China Sea heading to Malaysia with a crew of 23 people was stopped by custom officials off of Taiwan. The custom officials in uniform killed each member of the crew and their bodies were thrown into the sea. The Chinese government moved quick to raid Chinese pirate havens, arrested 38 people involved directly or in support roles to pirates. 13 pirates were promptly executed and overnight made China a place pirates wish to avoid.

‘The Case of Alondra Rainbow’
It is an example of a violent type of attack that was dealt with by Indian Courts. It gives a clear picture of the dearth of express laws against piracy in India. On October 22, 1999, the Alondra Rainbow loaded with a cargo of 7,000 tons of aluminum ingots set sail from Kuala Tanjung in Indonesia for Mike in Japan. On the way it got hijacked by pirates. The seventeen crew members on board were held captive for the next week and then eventually set adrift to be rescued by a Thai Ship. On October 28, the IMB (Indian Maritime Bureau) Piracy Reporting Center started to broadcast the profile of the ship to all other ships in India. Finally on November 14, the master of a Kuwaiti tanker spotted the ship. Though the name of the ship was changed the Indian Coast Guard after careful propositions intercepted the ship and found fifteen Indonesians were part of the hijacking

The United Nations Convention on the Law of the Sea, 1982 had not been incorporated as a national legislation by India, the Indian Penal Code does not address piracy issues and India was also not a signatory of the 1988 SUA convention (India became a party to the SUA in 2002). In spite of these legal blockades the Bombay police charged the pirated on 11 accounts Indian Penal Code 1860, Indian Passport Act, 1967, Foreigners Act, 1946 and Indian Arms Act, 1950. The trial concluded on February 25, 2003 and all pirates were convicted on nine out of eleven offences.

Complexity in the Laws
Modern laws on sea piracy are either non existent or rather complex. For example, the Dutch are using a 17th-century law against “sea robbery”

In the United States, criminal prosecution of piracy is authorized in the U.S. Constitution, Art. I Sec. 8 clause. 10:

The Congress shall have Power … To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Since piracy often takes place outside the territorial waters of any state, the prosecution of pirates by sovereign states represents a complex legal situation. However, because of universal jurisdiction, action can be taken against pirates without objection from the flag state of the pirate vessel.

Present legal provisions in India for tackling Sea Piracy
Currently, ship safety and security are handled by the International Maritime Organization (IMO) under the International Ship and Port Facility Security Code, which itself is an amendment to the International Convention for the Safety of Life at Sea (SOLAS) of 1974/78 and came into force in 2004. At the international level, Sections 101 to 107 of the United Nations Convention on the Law of the Sea (UNCLOS) relate to sea piracy. But India has still been unable to adopt and form any express municipal legislation to tackle this issue.

Hence to fill this present lacuna the Indian Government has very recently decided on formulating a new express municipal law to tackle piracy. The new law would deal with acts of piracy and other complicated issues on the high seas. Impetus has also been provided by the Supreme Court asking the Centre to come out with a comprehensive law and compensation measure. A Piracy Reporting Center has been set up in Kuala Lumpur.

Presently several sections in the United Nations Convention on the Law of Sea (UNCLOS) define piracy and there is a need to adopt a domestic law on the subject. In India, piracy issues are tackled by the provisions of Indian Penal Code and the Admiralty law.

Conclusion

After going through the laws relating to piracy on seas, one major problem that is seen is the serious dearth of an effective legislation to deal with such a pressing menace. Though there are some laws at the international level they seriously lack teeth. And far as the municipal law on the subject is concerned there exists a serious lacuna which needs to be addressed as soon as possible. For example in India we need to depend on laws framed by the Indian Penal Code, the Foreigner’s act for prosecuting pirates. There exists no express law on this issue. Though the government is thinking of formulating an express law it is still in the pipeline. With the rising menace of piracy everyday it can only be hoped that the government sticks to its word and is able to draft an effective legislation as soon as possible.
*****************************************
# (1820) 5 Wheat 153, 161
# Article 101 of U.N. Convention on the Law of the Sea, 1982
# Article 17 of the Geneva Convention on the High Seas
# http://www.survivalinsights.com/modules.php?name=News&file=print&sid=46
# International Maritime Bureau’s (IMB) Piracy Reporting Centre
# April 15, 2011, The Hindu
# http://www.icc-ccs.org/piracy-reporting-centre
# 8th edition of Oppenheim’s International Law.
# Article 2 of the 1958 Geneva Convention
# Oteri & Oteri v Regina (1976), ALR, 11, p 142
# Lotus Case, PCIJ, Series A, No 10, p 25
# Article 110 of the U.N convention on the Law of the Sea, 1982
# http://define.com/pirate
# United Nations Convention on the Law of the Sea (UNCLOS) of 1982
# (1934) A.C. 586
# Article 15(2) of Geneva Convention on the High Seas
# http://www.survivalinsights.com/modules.php?name=News&file=article&sid=48
# M.K. Roy, 2004, ‘Maritime Violence and Ocean Governance’ Journal of Indian Ocean Studies Society, Vol. 12, No. 2, August, pp. 236-7

# http://pirateshipwrecks.com/history_of_piracy
# NEW DELHI, March 13, 2011 – The Hindu

Authors contact info - articles The  author can be reached at: adityadutta@legalserviceindia.com




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