B Explanatory memorandum
by Mr Holovaty, rapporteur
1 Introduction
1.1 My
mandate
1. The present report stems from
a motion for a resolution on “the necessity to take additional international legal
steps to deal with sea piracy” (
Doc. 11947), tabled by Mr Konstantin Kosachev (Russian Federation, EDG)
and other members of the Parliamentary Assembly. On 11 September
2009, the Committee on Legal Affairs and Human Rights appointed
me as rapporteur.
2. In the framework of this mandate, I have studied the possible
legal avenues aimed at combating sea piracy off the Somali coast,
bearing in mind the high number of incidents that have taken place
in this region in the last few years. I will focus mainly on the
issue of prosecuting persons suspected of piracy
3. Nevertheless, in this context, I should also specify that
I will not deal extensively with issues already covered by another
report prepared by the Political Affairs Committee, namely on “Piracy
– a crime and a challenge for democracies” (Rapporteur: Mrs Birgen
Keleş, Turkey, SOC) (
Doc.
12193).
4. Consequently, my report focuses on the current legal provisions
on piracy and the proposals to modify them and enhance co-operation
at the European level to combat this phenomenon more effectively.
The broader aspects of sea piracy in this region, including its
roots, the political situation in Somalia and the neighbouring states
and the anti-piracy actions carried out by international and European
organisations, will therefore not be dealt with (see Mrs Keleş’s
mandate).
1.2 Aim
of this report
5. In 2009, the Piracy Reporting
Centre of the International Maritime Bureau of the International
Chamber of Commerce reported a total of 406 cases of piracy and
armed robbery. 2009 is also the third successive year that the number
of reported incidents has increased after 239, 263 and 293 incidents
were reported in 2006, 2007 and 2008 respectively.
Note
6. According to the International Maritime Bureau, the total
number of incidents attributed to the Somali pirates in 2009 stands
at 217, with 47 vessels hijacked and 867 crewmembers taken hostage.
Somalia accounts for more than half of the 2009 figures, with the
attacks continuing to remain opportunistic in nature.
Note
7. In comparison with 2008, the number of incidents in 2009 has
almost doubled: in 2008, Somali pirates attacked 111 vessels. Nevertheless,
the number of successful hijackings was proportionately less (42),
which could be attributed to a large extent to the increased presence
and coordination of the international navies.
Note However,
2009 has seen a significant shift in the geographical location of
attacks off Somalia. While the 2008 attacks predominantly took place
in the Gulf of Aden, in 2009 more vessels were targeted along the
east coast of Somalia. Since October 2009, increased activity has
been observed in the Indian Ocean.
Note
8. Despite the active political efforts by the international
community and the presence of naval forces of several states, including
some European states, off the coast of Somalia, acts of piracy and
armed robbery in this region continue to pose a serious threat to
seafarers and passengers. The safety of shipping is put in jeopardy
and this leads to substantial economic losses for many states. According
to experts, total damage caused by piracy amounts to billions of
dollars, including expenses for strengthening protection of ships,
huge growth of expenses for insurance of ships and cargoes as well
as overseas transportation of cargoes by longer shipping routes.
Annually, about 20 000 cargo ships use the seaways between Europe,
Asia and Africa, including through the Gulf of Aden, carrying almost
30 % of Europe’s oil and gas needs.
9. In 2009, Somali pirates managed to obtain around 100 million
US dollars in ransom payments.
Note The average ransom paid
by ship owners rose from 1 million to 2 millions US dollars.
Note
10. These payments are inter alia aimed
at purchasing arms and updating means of hijacking merchant ships.
Experts do not exclude that part of the above payments is used to
support terrorism and extremism. Pirate attacks pose a special threat
to deliveries of international humanitarian aid to the countries
of Eastern Africa, including Somalia. High probability of oil tankers'
explosions during the pirates' attacks poses a serious ecological
threat to the region, especially in cases when ships carry dangerous
chemical and radioactive materials.
11. The currently binding instruments of international law, such
as the United Nations Convention on the Law of the Sea of 1982
Note (hereinafter “UNCLOS”), contain
a legal basis for international co-operation aimed at combating
piracy off the Somali coast. However, the states involved in active
operations against piracy, when calling the arrested people to account,
have to face a certain number of legal, administrative and technical problems
that sometimes lead to the impossibility of criminal prosecution
of suspected pirates.
12. Several international organisations,
Note including
the United Nations,
NoteNoteNoteNoteNoteNote NATO
Note and
the European Union,
Note have already
taken steps to deal with piracy off the Somali coast. However, these
are mainly military deterrence measures and specific action aimed
at securing the transportation of food aid for Eastern Africa.
13. Considering the extent of the problem, the Council of Europe,
and in particular its Parliamentary Assembly, may also play a role
in this area. Thus, it is crucial for the Assembly to reflect on
the legal avenues to deal with sea piracy, including effective prosecution
of alleged pirates. The Assembly should consider, first of all,
whether it would be useful to establish a special mechanism, international
or with international participation, to prosecute persons suspected
of piracy. In this context, special attention should be given to
the pros and cons of setting up a special international tribunal.
Note Since
this idea does not seem to be widely accepted,
Note alternative
avenues should also be considered.
14. The Assembly may play an important role in promoting European
and international co-operation in the area of combating sea piracy
and harmonising national legislation as far as provisions on prosecuting
pirates are concerned.
15. The problems concerning the law relating to piracy fall into
five main categories: i) problems arising from the current legal
provisions on piracy; ii) problems arising from criminal law issues,
iii) problems arising from civil law issues; iv) problems arising
from international law issues; v) problems concerning the relationship between
anti-piracy action and action against other crimes at sea. This
report will mainly focus on the legal problems arising from issues
of international and criminal law.
16. In any event, it should be pointed out that any solution to
prosecute persons suspected of piracy more effectively should also
ensure that their fundamental rights, and in particular the right
to a fair trial and the prohibition of torture and ill-treatment,
are respected. In the view of many experts, the agreements concluded on
the transfer of captured pirates between Kenya
NoteNote and the Seychelles
NoteNote and European Union countries
Note raise
doubts in this respect.
Note
17. On 16 November 2009, in the framework of the preparation of
this report, I took part in the hearing on “Piracy – a crime and
a challenge for democracies” organised by the Political Affairs
Committee in Brussels. Several experts (including those representing
NATO, the European Union and the International Maritime Bureau)
provided valuable information on the current policies to combat
sea piracy and on the scale of this phenomenon.
Note
2 Legal framework on combating sea piracy
2.1 Provisions
of the United Nation Convention on the Law of the Sea (UNCLOS)
18. The legal framework for action
against piracy has remained essentially unchanged since the eighteenth century.
It is no longer fully appropriate to satisfy the practical needs
of policing at sea.
19. The provisions on piracy set out in Part VII of the 1982 United
Nations Convention on the Law of the Sea bind the states parties
and are generally considered to reflect the rules of customary international
law which bind all states.
20. According to Article 101 of UNCLOS, piracy includes:
a any illegal acts of violence or
detention, or any act of depredation, committed for private ends
by the crew or the passengers of a private ship or a private aircraft,
and directed:
b
i on the high seas, against
another ship or aircraft, or against persons or property on board
such ship or aircraft,
ii against a ship, aircraft, persons or property in a place
outside the jurisdiction of any state;
c any act of voluntary participation in the operation of
a pirate ship or aircraft;
d any act of inciting or facilitating (a) or (b).
Note
21. Thus a ‘pirate ship’ is a private
ship
Note which
is intended by those who are in dominant control of it to be used
for the purpose of committing an act of piracy, or which has been
used to commit such an act and is still under pirate control.
Note Piracy
must be committed from one vessel against another, and since pirates
act
for private ends,Note politically-motivated acts cannot be piracy.
Note
22. A distinction is made between acts of “piracy” and “armed
robbery at sea”. An act of piracy may be committed on the high seas
(Article 101 a)(i)) or in a place outside the jurisdiction of any
state (Article 101 a)(ii)). The latter possibility remains rather
theoretical.
Note The
high seas, for the purposes of the rules on piracy, are those waters
that lie beyond the seaward limit of the territorial sea,
Note which may extend
out to 12 nautical miles from the coastal state.
Note The notion of “high
seas” in the meaning of this provision includes also that of the exclusive
economic zone.
Note Acts
within the territorial sea which would amount to piracy if undertaken
on the high seas are regarded as ‘armed robbery at sea’ and are
subject to the primary jurisdiction of the coastal state in whose
waters the acts take place.
Note
23. As an exception to the basic principle that ships on the high
seas are subject to the exclusive jurisdiction of the state whose
flag they fly,
Note warships and other authorised ships on government
service of any State
Note may, on the high seas, visit any vessel
that they have reasonable ground for suspecting is engaged in piracy
Note and
they may seize pirate ships (and pirate aircraft).
Note
24. According to Article 100, all UNCLOS States Parties
Note are obliged to co-operate to the
fullest possible extent in the repression of piracy on the high
seas.
2.2 Other
international legal instruments
25. Acts amounting to piracy may,
depending on the specific circumstances, also amount to offences
under other legal instruments, such as the 1988 Convention for the
Suppression of Unlawful Acts Against the Safety of Maritime Navigation
(hereinafter “SUA Convention”)
Note and the 1979 Convention Against
the Taking of Hostages.
Note
26. The potential relevance of the SUA Convention has been reiterated
in successive United Nations Security Council Resolutions concerning
piracy off Somalia.
Note This was due to the fact that this
Convention imposes obligations on the states parties to create criminal
offences, establish jurisdiction, and accept delivery of persons
responsible for (or suspected of) seizing or exercising control
over a ship by the threat or use of force or any other form of intimidation.
While the widely ratified SUA Convention does not criminalise piracy
as such, the SUA Convention offences do overlap with conduct that
would also amount to piracy. For instance, much of the criminal
activity off Somalia consists of violent attacks from one vessel
against another; and such acts can constitute both SUA Convention
offences and piracy.
27. The SUA Convention, however, does not provide the same enforcement
rights, such as the right to board suspect vessels, that are available
under UNCLOS for tackling piracy. The lack of enforcement powers undermines
the practical utility of the SUA Convention and partly explains
why states have relied on the UNCLOS piracy framework.
Note
3 Arrest/transfer
and prosecution of pirates
3.1 Categorisation
of pirates
28. Piracy is a crime of universal
jurisdiction and pirates are criminals. Those suspected of committing
acts of piracy should be categorised as ‘suspected criminals’.
29. Pirates are not
per se ‘individuals
taking a direct part in hostilities’ in an armed conflict,
Note who could for that reason
be targeted with lethal force. Although United Nations Security
Council Resolution (hereinafter ‘UNSCR’) 1851,
Note authorising action against
pirates in Somalia, refers to the obligation to take only such measures
as are consistent with International Humanitarian Law (hereinafter
‘IHL’
Note),
that does not imply that pirates are as a matter of law combatants
and that action against them falls within the framework of IHL.
Note
30. Pirates are not
per se terrorists.
Note They
are not terrorists if their piratical acts are committed without
a ‘terrorist’ purpose; and presently there is no evidence that such
a purpose is operative among pirates. However, acts amounting to
piracy
may fall into the scope
of application of the 1988 Convention for the Suppression of Unlawful
Acts Against the Safety of Maritime Navigation and the 1979 Convention
Against the Taking of Hostages.
Note While these Conventions may have
relevance in terms of the options available to prosecutors, UNCLOS
is regarded as the legal framework for combating piracy.
Note
3.2 Rules
and practice
31. There is no international police
force for the high seas, nor any international jurisdiction or criminal procedure
to prosecute pirates. The legal framework for carrying out police
activities at sea is defined by each state at the national level.
Note A
police action at sea aiming at capturing pirates (for instance,
visiting a ship, opening fire on a pirate vessel, retaking a hijacked
ship by force, detention on board) is therefore part of a legal procedure
and should be carried out under the supervision of a judicial authority.
Thus, it involves the implementation of the domestic criminal law
and procedure of each intervening state and any international interference
at this level could affect the legality of such action.
Note
32. According to Article 105 of UNCLOS, states may exercise their
right of repression against piracy and in so doing are entitled
to seize the ship and to arrest the pirates and bring them to justice.
The courts of the ‘seizing’ state may decide upon the penalties
to be imposed and may also determine the action to be taken with
regard to the ships or property, subject to the rights of third
parties acting in good faith.
Note
33. As a matter of international law there may be several states
that have jurisdiction to prosecute pirates: the flag state of the
pirate ship or of the seizing ship; the national state of the pirates
themselves; perhaps the national state of the victims of the piratical
acts, according to the doctrine of ‘passive personality’ jurisdiction; and,
if piracy is regarded as a crime subject to universal jurisdiction,
Note any
other state within the jurisdiction of whose courts the pirates
appear or are brought. International law does not establish any
order of priority between the claims (or the obligations) of these
states to prosecute. In practice, the seizing state (Article 105 of
UNCLOS) is allowed to prosecute if it so wishes. According to Article
100 of UNCLOS, states still have ‘a certain latitude’ to co-operate
in suppressing piracy by means other than prosecution
Note.
Burden-sharing is thus a political, not a legal issue.
Note
34. UNCLOS provisions do not permit the seizure of a pirate ship
and arrest of the pirates in the territorial sea of a state other
than that of the flag state of the seizing ship. Pirate ships may
thus obtain immunity from arrest by fleeing into a nearby territorial
sea. Piratical attacks in territorial waters have similar immunity
from international action if the coastal state is unable or unwilling
to police its waters and does not consent to international action
in its waters.
35. A gap between Articles 100 and 105 of UNCLOS is that no express
rule governs the transfer of suspected pirates from a seizing state
to a nearby port state. Nonetheless, any state could accept such
a transfer and assert universal jurisdiction over such received
suspects.
Note While a seizing state cannot exercise its
own judicial powers in foreign territory, nothing precludes a ‘receiving’
state exercising its independent jurisdiction.
Note
36. Prosecution entails substantial burdens. The prosecuting state
needs, among other things, to: accommodate the accused; collate
evidence and instruct prosecuting (and perhaps defence) counsel;
perhaps secure translation facilities; perhaps arrange for the transportation,
attendance, and accommodation of witnesses; perhaps accommodate
convicted persons during their period of imprisonment; and perhaps repatriate
prisoners during or at the end of their period of imprisonment.
The scale of this burden should not be underestimated nor should
the willingness of states to accept that burden be overestimated.
37. In most cases it is likely to be desirable for prosecutions
to be mounted in a coastal state with an efficient system of criminal
justice that meets international standards, close to the bases from
which the alleged pirates operate.
a ‘Efficient’
because the system plainly needs to be able to cope with the cases
and because delays entail costs, particularly if the attendance
of witnesses (such as arresting officers) is necessary. Similarly,
the ability of the accused, of witnesses and of prosecuting authorities
to understand one another’s language is a significant aid to the
efficient administration of justice.
b International standards must be met both as a matter of
elementary decency in the framing of policy and because arresting
officers may be bound by national or international legal instruments
(such as the European Convention on Human Rights) not to hand over
prisoners in circumstances where they may face inhuman treatment.
c Closeness to the alleged pirate bases is important because
on-shore accomplices and witnesses, and additional evidence (which
may be sought after the arrest but before the trial), are likely
to be found near the bases. It is important also to recognise that
the families of accused persons and of prisoners may need to visit
and support them: unnecessary disruption of the lives of innocent
people dependent upon alleged or convicted pirates should be avoided.
3.3 Implications
for human rights
38. If a seizing state decides
to try suspect pirates before its own court
Note or an equally
competent jurisdiction
Note,
no special difficulty arises. However, in case of captured suspect
pirates in the Gulf of Aden, their detention, transfer and prosecution
in a regional state (such as Kenya or the Seychelles) all raise
human rights law questions.
Note
39. In dealing with suspected pirates, states are always bound
by obligations arising under applicable treaties on human rights’
protection, such as the United Nations Convention against Torture
(hereinafter “CAT”),
Note the 1951 Geneva Refugee Convention,
Note the International Covenant on Civil
and Political Rights (hereinafter “ICCPR”)
Note or the
European Convention on Human Rights (hereinafter “ECHR”).
Note
40. The Council of Europe member states must take into account
the requirements stemming from the European Convention on Human
Rights and in particular those for fair trial, the prohibition of
torture and inhumane or degrading treatment and punishment and the
non-application of the death penalty. As a result they cannot hand
over captured pirates for trial to any country that does not meet
the ECHR criteria.
Note
41. Human rights law imposes constraints upon the authority of
arresting officers: the officer is obliged to treat all persons,
in all circumstances, in accordance with applicable minimum legal
standards.
42. The transfer of suspected pirates to states in the region
raises a number of human rights issues: the legal authority to detain
suspect pirates at sea and the need to bring them promptly before
a judicial authority;
non-refoulement and
their transfer to states in the region for prosecution and the application
of fair-trial rights in such transfers and, in the ECHR context,
the right to an effective remedy to challenge such a transfer.
Note
4 Possible
solutions for dealing with sea piracy
4.1 Establishing
an international tribunal to deal with persons suspected of sea
piracy
43. It has been suggested that
the setting up of an international court to try persons suspected
of sea piracy off the Somalian coast would be the best solution
to combat this phenomenon,
Note because
of its extent and the deficiencies in the legal systems of states,
including costal states, in the region.
44. There exist, however, a number of counter-arguments to this
proposal, namely that such an international court would neither
be efficient nor practical and, most of all, would be costly to
set up.
45. International criminal tribunals have been useful in circumstances
where there are many factually complex and controversial cases arising
out of a single episode or inter-connected facts and, because of
acute political divisions and/or inadequate respect for the rule
of law within a state, there is concern that national authorities
and courts may not be effective and fair in the prosecution of those
accused of serious offences. That is not the case in relation to
piracy. So far, no state has a powerful political constituency that
supports pirates and seeks to impede their prosecution and punishment.
There are states where the legal system suffers from some combination
of under-resourcing, inefficiency and corruption. But the creation
of an international court would do little or nothing to improve
the national legal systems and is an inefficient way of dealing
with their deficiencies.
46. The disadvantages of establishing an international court are
many:
a Delay. It
would require an international conference to create the Court, which
would be certainly lengthy. It took a decade to adopt the Statute
of the International Criminal Court (hereinafter “ICC”), and another four
years for it to enter into force.
b Cost. The ICC budget
for 2009 is €101,229,900. The two-year budget of the International
Criminal Tribunal for the former Yugoslavia (hereinafter “ICTY”)
for 2008-2009 was $342 332 300. It is difficult to see how the creation
of a new international court would be cost-effective.
c Practicality. An
international court for piracy would have to make arrangements for
the travel and accommodation of accused persons, witnesses and others.
Interpretation into one or more official languages would be necessary.
Evidence would have to be taken to the court and would have to be presented
in conformity with the court’s rules on evidence, which may differ
significantly from the rules on evidence in the regions from which
the accused are brought. Persons convicted would have to be imprisoned
somewhere, in accordance with conditions concerning sentencing and
imprisonment that are laid down by the court.
d Misdirection of effort. The
primary aim must be to prevent piracy rather than to put alleged
pirates on trial. An international court focuses on public trials
rather than on local law-enforcement measures. Piratical acts at
sea are only one element in the chain of criminality. Pirates operate
from bases onshore. The proceeds of crime are handled onshore. Suspects,
and those who aid or assist them, are likely to be found onshore.
Strengthening the local onshore law-enforcement measures would be
necessary even if trials were subsequently consigned to an international
court.
4.2 Establishing
“hybrid” courts
47. The disadvantages of establishing
an international court might be reduced by creating a ‘hybrid’ or ‘internationalised’
court: that is to say, not a single international court sitting
at its own seat, but special courts created within national legal
systems, staffed by a mixture of national and international judges
and which would apply a mixture of national and international rules.
Note
48. If, however, cases are effectively investigated and prosecuted,
there seems no real advantage in creating a two-tier criminal law
system, singling out piracy from among other crimes of violence
and theft and putting it before a special court.
49. Therefore solutions other than establishing special courts
should be considered. One should in particular look into other forms
of interstate co-operation.
4.3 Agreements
on the prosecuting state
50. Given the burdens upon the
prosecuting state and the need for procedures for arrest to conform
with the requirements of the prosecuting state’s legal system, it
is highly desirable that ‘prosecuting states’ and ‘arresting states’
enter into express agreements setting out their respective rights
and responsibilities. Such agreements could be bilateral or regional
but, given divergences in national criminal justice systems, it
is unlikely that a global agreement would be an effective way of
dealing with the matter. An express international agreement would
not necessarily
Note preclude
ad hoc agreements concerning the
handling of particular cases.
51. Such agreements may well require consequential amendments
in national law in order to give the national courts jurisdiction
over suspected pirates arrested outside the jurisdiction of the
courts by foreign law-enforcement officers.
52. When several states indicate a willingness to prosecute, preference
should be given to those that are party to an international agreement
to that effect which is currently in force, because that agreement
is likely to set out clear procedures to be followed and it is also
likely that procedures for practical co-operation and assistance
between the authorities of the various states will have been established.
53. Between states parties to such agreements, the state best
meeting the criteria on bearing prosecution burden (such as accommodation
of the accused, collating evidence, instructing prosecuting and
defence counsel) should ordinarily be the prosecuting state (see
paragraph 36 above).
54. The facilities on the arresting vessel are also a relevant
factor, but it is one that is probably better addressed by the making
of arrangements for the temporary detention and transmission of
accused persons and of evidence, so that an arresting police vessel
can, if necessary,
Note off-load
those persons and return to law-enforcement duties. This is another
matter best addressed through express international agreements.
55. An agreement between the arresting and prosecuting states
offers as much of an assurance as can reasonably be expected that
there will be no refusal to prosecute cases that fall within the
agreement. Because that possibility cannot be entirely eliminated,
it is important that the arresting state enact laws under which
it could itself prosecute the suspected offenders.
56. If the receiving state is unwilling to enter into a legally-binding
transfer agreement, it may be prepared to enter into a non-binding
Memorandum of Understanding in similar terms.
Note
4.4 Reinforcing
international co-operation in the area of prosecuting persons suspected
of sea piracy
57. Piracy is inextricably intertwined
with other crimes of violence, theft, fraud, and handling of stolen property.
It may also be linked to other criminal activity such as illicit
dealings in narcotics or weapons. Harmonisation of procedures and
reinforcement of existing mechanisms for co-operation between police, prosecutors
and courts offer the best and most efficient prospect for improving
the record of prevention and prosecution of piracy.
58. In several areas reinforced co-operation between states would
be advantageous in this respect. States could, for example, conclude
agreements on:
a procedures to be
followed on approaching, boarding and detaining foreign ships and
those upon them;
b procedures for recording arrests and searches of ships
in a manner acceptable as evidence in court;
c procedures for the transfer of suspects to custody in
a suitable coastal state;
d procedures for the transfer of suspects for trial in a
suitable state;
e procedures for dealing with the transfer / repatriation
of victims of crime, including crews of attacked ships, and for
dealing with matters such as asylum applications;
f arrangements for ‘shipriders’ (that is to say, law-enforcement
officials of coastal states exercising domestic powers from foreign
warships).
Note
59. There are already significant international initiatives which
have generated co-operative procedures and considerable experience
in dealing with the problems of anti-piracy action. The best examples
are those of the International Contact Group on Piracy
Note and the United Nations Office on
Drugs and Crime (hereinafter “UNODC”) Counter-Piracy Programme.
Note For instance, a regional UNODC programme
on piracy trials presently assists in ‘training prosecutors, locating
and producing witnesses, facilitating international legal co-operation...,
finding defence lawyers for pirates and bringing prison conditions
up to international standards’.
Note
60. Similarly, the International Maritime Organisation has provided
guidance to shipowners and ship operators, shipmasters and crews
on preventing and suppressing acts of piracy and armed robbery against ships;
Note and
the shipping industry has agreed upon guidelines for “Industry Best
Management Practices”
Note to assist companies and ships in
avoiding piracy attacks, deterring attacks and delaying successful
attacks in the Gulf of Aden and off the Coast of Somalia.
4.5 Harmonisation
of national legislation
4.5.1 Definition
of offences: piracy and armed robbery in the territorial sea of
Somalia
61. Harmonisation of national criminal
laws may also offer an efficient prospect for improving the record
of prevention and prosecution of piracy.
62. In 2008, the United Nations Security Council noted that the
lack of domestic legislation was a factor that has “hindered more
robust international action against the pirates off the coast of
Somalia and in some cases led to pirates being released without
facing justice”.
Note In 2009, in its
Resolution 1897, the Security Council noted with concern that limited
capacity and domestic legislation “to facilitate the custody and
prosecution of suspected pirates after their capture” was a problem,
which in some cases has “led to pirates being released without facing
justice, regardless of whether there is sufficient evidence to support
prosecution”.
Note In the same resolution
the Security Council stressed the need for “states to criminalize
piracy under their domestic law and to favourably consider the prosecution,
in appropriate cases, of suspected pirates, consistent with applicable international
law”.
63. The problems off Somalia have revealed a number of shortfalls
in states’ domestic laws for dealing with piracy, among them:
a Piracy is not considered as an
offence;
b Offences of piracy with requirements for a national nexus
or with limited geographical scope;
Note
c Offences which only partially reflect the UNCLOS definition,
for example by excluding criminal liability for inciting or of intentionally
facilitating acts of piracy;
d Offences of piracy contained within pre-UNCLOS legislation.
Such provisions may not be appropriate if the ingredients of the
offence are not defined with sufficient clarity.
64. The question arises as to whether states are obliged to have
offences of piracy in their national law. Article 100 obliges states
only to “… co-operate to the fullest possible extent in the repression
of piracy …”.
Note While Article 100 could therefore be interpreted
as requiring states to have adequate national law to prosecute piracy,
there is, as the Security Council has noted, little state practice
in support of such a conclusion. One option is for the Security
Council to oblige states to enact domestic legislation in respect
of piracy, as it has done in respect of terrorist activities; but
failing this it seems unlikely that states are obliged to have or
to create offences of piracy in their law.
Note
65. If states were to take the necessary steps to ensure that
their domestic laws provide for the prosecution of piracy and the
whole range of offences connected with piracy in the UNCLOS Article
101 definition, this would facilitate international co-operation
by providing more prosecution options. Some states have already amended,
or are in the process of amending, their criminal law in respect
of piracy.
Note
66. If states define the offence(s) of piracy consistently with
UNCLOS, which confines piracy to the high seas, acts of armed robbery
at sea within Somali territorial waters would not be covered. To
prosecute such acts, states would have to extend their laws concerning
piracy to cover, exceptionally, equivalent acts within the territorial
waters of Somalia. It is believed that no state has yet done so.
With a lack of an effective criminal justice system in Somalia,
there is currently no viable option for the prosecution of acts
of armed robbery at sea in Somali national waters, despite the enforcement
powers that are provided to states under UNSC
Resolution 1846 (and successor
Resolution
1897).
67. While the existence of offences of piracy will provide the
opportunity to prosecute, a state will still not be obliged to prosecute.
Decisions to prosecute are driven by policy; and unless policies
change, there will in many cases remain a reluctance to prosecute
an incident of piracy in the absence of a clear national nexus.
4.5.2 Law
enforcement legislation
68. To enable successful criminal
prosecutions to take place, evidence must be collected, handled
and exhibited, and suspects arrested and detained, in a manner that
is acceptable to the rules and procedures of the criminal justice
system that is undertaking the prosecution. Harmonisation of rules
of evidence would improve co-operation between states and reduce
the risk of evidence being inadmissible. Where this is not possible,
those persons actually engaged in capturing pirates with a view
to transferring them to a foreign criminal justice system for prosecution
must be aware of, and be trained in complying with, the receiving
state’s procedures.
Note
69. If states intend to capture suspected pirates with a view
to their prosecution, whether in the seizing state or in another
state following a transfer, they must ensure that their officials
have sufficient authority under their national law to do so.
70. Further, where suspects are detained, even with a view to
transfer to another state for prosecution, human rights law may
require national judicial oversight of the detention. Several states
that are prepared to detain suspected pirates on their warships,
and are subject to the ECHR, have introduced, or are in the process of
introducing, judicial oversight mechanisms for the period suspects
are held onboard in light of the European Court of Human Rights’
judgment in the case of
Medvedyev v.
France.
NoteNote
4.5.3 Prohibition
of ransom payments
71. It is also necessary to ensure
than anti-piracy legislation works in the context of other national
laws. For example, if pirates are classified by national law as
terrorists it is likely that it will be unlawful to make ransom payments
to them, because anti-terrorism legislation will usually prohibit
the making or facilitation of payments to terrorists. Such laws
may bind not only ship-owners and cargo-owners but also banks through
whose facilities international payments are made. Making ransom
payments to pirates illegal, and thereby disrupting pirates’ revenue,
may be
Note a desirable course of action.
Note If existing anti-terrorism legislation
does not achieve such a prohibition, because pirates lack a ‘terrorist
purpose’, new national legislation may be required to prohibit payments.
72. An attempt to prohibit ransom payments under national law
will only be effective if introduced internationally. To ensure
consistency between such laws it would be necessary to reach an
international agreement on the precise scope and nature of such
measures.
73. If ransom payments are not prohibited, efforts could be made
to make action against pirate assets more effective. While the difficulties
of tracking the money are considerable, and national law would be
required to achieve any freezing or seizure, there is already considerable
international experience in dealing with the proceeds of crime.
4.6 Monitoring
human rights observance and reinforcing the judicial system of coastal
states and states in the region
74. As concerns the need to ensure
the proper treatment of persons delivered to prosecuting states,
there is no real alternative to the monitoring of the treatment
of persons after they have been handed over. In practice this might
be secured by, for example, an express agreement on consular access
to the individual before, during, and after the trial. The essential
point is that a state handing over an arrested person for trial
or detention is not absolved of all responsibility for that person
at the moment when he or she is handed over; and whatever the strict
legal position in any given state it is not desirable that the continuing
responsibility should be regarded as being discharged by merely
obtaining written assurances from the receiving state that the person
will be treated properly.
75. The observations above apply to cases where persons are transferred
to Kenya, the Seychelles or to any other state. In addition, in
the European Union Exchange of Letters with Kenya, specific provision
is made for the European Union to be provided with information and
records on persons transferred under the arrangement with Kenya,
including their physical condition. Furthermore, representatives
of the European Union and EUNAVFOR, as well as national and international
humanitarian agencies, have access to transferred persons in custody.
Note The standards of treatment, prosecution
and trial of transferred persons under the European Union Exchange
of Letters are derived from the International Covenant on Civil
and Political Rights.
76. The establishment of a sound judicial and penal system meeting
modern standards is, however, much the most effective way of ensuring
respect for human rights. The UNODC is channeling investment, mainly from
states participating in counter-piracy operations, to improve the
standards of prosecutions, court facilities and prison conditions
in those states in the region that have been willing to prosecute
pirates.
Note
5 Recommended
developments in international law
5.1 Revision
of UNCLOS provisions?
77. There are constraints on action
against pirates that arise from the wording of the UNCLOS provisions. For
example, piracy is defined so that (i) it must arise from acts on
the high seas,
Note and
not within the territorial sea (generally 12 nautical miles wide)
of a coastal state, and (ii) must be committed by persons on board
one ship against another ship,
Noteand
must be committed for private ends. Thus, (i) attacks within the
territorial sea do not amount in law to piracy, (ii) the ‘hijacking’
of a ship by persons on board does not amount to piracy, and (iii)
there might be a question whether an attack on a whaling ship by
a protest vessel would amount to piracy.
78. If the relevant provisions of UNCLOS were being drafted today
there would be a powerful argument for drafting them differently
and more widely. It is, however, generally accepted that there is
no practical possibility of states agreeing to revise the UNCLOS
in the foreseeable future. One reason for this is that an amendment of
any one provision would be likely to precipitate demands for the
revision of many other provisions; another reason is that there
is no enthusiasm internationally for a large-scale review of UNCLOS
at this time.
79. Any undesirable constraints arising from the UNCLOS provisions
on piracy can be addressed in one of the two ways indicated below.
5.2 Reinforcing
means of combating sea piracy on the basis of UNCLOS provisions
5.2.1 Interpretative
declarations
80. First, states might address
ambiguities and uncertainties in the UNCLOS provisions by making declarations
of their understanding of the proper interpretation of the provision.
States might, for example, unilaterally or collectively declare
that they will treat attacks on whaling ships by protest vessels
as amounting to piracy. If the announced interpretations are accepted
without objection by other states, that interpretation will come
to be accepted as the proper interpretation of UNCLOS. If other
states do object, a process of negotiation
via diplomatic
exchanges is likely to result in the identification of an acceptable
compromise position.
Note
81. Interpretative declarations are useful for establishing interpretations
of legal instruments that can be accommodated within the wording
of the instrument. If it is necessary to establish a legal right
that plainly goes beyond any reasonable interpretation of existing
legal instruments, it would be necessary either to amend the instruments
or to adopt an ancillary agreement.
82. In the present context an expanded definition of ‘private
ends’, and possibly even a definition of piracy that obviates the
need for the involvement of two ships (attacker and victim), might
be established by interpretative declaration. A joint declaration
by all or most states in a region, and by major maritime powers,
Note would be particularly
influential in developing the law.
5.2.2 Ancillary agreements
83. The second way in which states
might address deficiencies in the UNCLOS provisions is by concluding ancillary
agreements which either clarify or add to the UNCLOS provisions.
Note
84. The limitation of piracy to activity on the high seas is,
however, closely tied to the exclusivity of the sovereignty of the
coastal state over its territorial sea. No state may take law-enforcement
action in the territorial sea of another state without the consent
of the coastal state. Particularly in the light of the request by the
international community for Somali consent to law-enforcement actions
against pirates in the Somali territorial sea (including the pursuit
of pirates through Somali territorial sea) it would be practically
impossible to amend this element of the definition of piracy by
means of interpretative declarations.
85. It follows that it would in practice be necessary to conclude
new international agreements with coastal states in order to amend
the existing rules of the Law of the Sea concerning piracy. Since
it is also necessary in practice to conclude such agreements in
order to address the need for co-operation between arresting and coastal
states, the crimes at sea against which the coastal state permits
‘arresting states’ to act could be defined in those agreements;
and those definitions could include ‘piratical’ attacks within the
territorial sea within the category of crimes covered by those agreements.
6 Conclusions
86. Combating sea piracy off the
Somali coast raises numerous legal issues and different models of
action might be considered in this context. However, establishing
an international court to try cases of piracy offences committed
in this region would, in particular, imply considerable costs. Moreover,
its existence could be detrimental to the process of strengthening
local justice systems. When such a court inevitably closes down, its
accumulated experience will be dispersed as international staff
return home and will not contribute to the building of a sound local
judicial system.
87. The model of an ‘international’ chamber within the courts
of a state in the region seems to be more attractive, since it would
allow the application of clearly established rules of procedures
and evidence by such courts. Although the same observation as the
one concerning the return of international staff also applies here, it
is also probable that their experience might be used beforehand
in the training of local court staff and local lawyers. However,
as piracy is often related to other criminal law offences and/or
crimes, there would be no real added value in creating a two-tier
system, singling out piracy from other offences and crimes.
88. Thus the recent experience in combating sea piracy demonstrates
that the best solutions in this respect are those which are based
on co-operation between states.
89. Political will is always needed to prosecute pirates. As international
law does not oblige the seizing states to prosecute pirates, in
the absence of bilateral and multilateral agreements, the risk of
refusal to prosecute acts of piracy remains. Thus, states should
be invited to conclude express agreements, which would define the obligations
and rights of the prosecuting and arresting states.
90. Reinforcing co-operation in the field of criminal law, including
criminal law procedures, is another option in combating piracy.
The conclusion of ‘shipriders’ agreements should be also envisaged
in this context.
91. The conclusion of transfer agreements with states in the region,
such as Kenya and the Seychelles, raises serious human rights issues.
However, these agreements do contain some guarantees as to the monitoring
of human rights’ observance (in particular conditions of detention
and procedural guarantees during trial), although it remains to
be seen whether they are put into practice. States concluding similar
transfer agreements should always promote monitoring clauses in
the latter and should co-operate with each other as far as the enforcement
of the said guarantees is concerned (for instance, through the exchange
of information on the current state of human rights in the states
concerned).
92. Moreover, states should align their legislation on combating
piracy with the requirements of UNCLOS. One area in which there
is still a lot to be done is the definition of piracy offences in
national legislation. The lack of express criminalisation of piracy
in certain states is flagrant and, although Article 100 of UNCLOS
does not absolutely imply an obligation to incorporate the UNCLOS
definition of piracy into the national criminal law system, it would
be preferable if all States Parties to UNCLOS were to align their
respective legislation with Article 101 of UNCLOS. Furthermore,
harmonisation of national laws on the payment of ransoms would also be
useful.
93. The international law framework also needs to be modified
if it is to serve modern needs effectively. However, there is no
practical possibility of revising the UNCLOS in the foreseeable
future. Adoption of a new treaty on policing at sea, based on agreed
mechanisms for obtaining any necessary flag or coastal state consent,
is a possibility. A multilateral declaration to which states may
adhere, setting out a more liberal understanding of the manner in
which the current rules should be interpreted and applied, is another
possibility.
94. Whatever steps may be taken, it is imperative that attention
be paid to the need to coordinate developments in international
law with the demands of national legal systems, in the fields of
both criminal and civil law, and to the question of the need to
modify national laws and practices. This is a subject which could be
studied by a newly mandated expert group or through an already existing
mechanism, such as the Council of Europe’s Committee of Legal Advisers
on Public International Law (CAHDI).
