Textbook of Maritime Medicine

Contemporary piracy was not an urgent problem until the mid eighties of last century. Therefore, the definition of the piracy concept according to the agreements internationally accepted, has not approved the existing scene at present and they exclude the concept of the attacks not taking place on the high seas and those sponsored or politically caused by a nation, which are not considered pirates´ attacks. Nowadays, most of the attacks take place in territorial waters and rarely on the high seas. All this creates uncertainty when we try to deal with the measures tending to eliminate piracy depending on the present agreements. Before tackling this subject from the factual point of view, it is now necessary to distinguish between the concepts of “piracy” and “armed robbery against ships” according to the international regulations in force.

From the practical point of view, it is irrelevant that an attack on territorial waters constitutes an act of piracy or an armed robbery; this is particularly a fact for a Captain who wakes up pointed with a weapon by a masked pirate who asks him to open the safe in the middle of the night. The danger both for his crew and for himself is equally serious and impending, being the ship anchored, docked at port, on territorial waters of any nation or on international waters.

The attacks against seamen and ships are more daring and violent nowadays and it seems the moment has come to carry actions out which direct these criminal acts to acceptable levels. Only an effective action of the Governments at an internal level as well as coordinated among all of them could reach this purpose.

An international established concept of piracy did not exist before 1958 when it appeared described in Art. 15 in the Geneva Convention on the High Seas on 29^th April, 1958. Nowadays this definition is taken in the same way in Art. 101 of UNCLOS Convention[1]. Such definition is considered confusing due to its lack of precision. The “private” term means that essentially piracy excludes attacks carried out by ships under a nation control. Similarly, the “for private ends” term can sometimes exclude a situation when the act is inspired by people with apparently political reasons as a terrorist act would be; in that case, it does not represent a strict use of such term. The fact that the act of piracy has to be carried out “on the high seas” means that statistically most of the attacks are produced on the territorial sea of a nation[2] (in the twelve coastal miles) when the ship is either sailing or anchored, and according to this definition, such acts are carried out on the territorial waters of a nation and not on the high seas; so they are not technically considered acts of piracy but “armed robbery against ships”, as defined by the IMO in the Res. A.922(22). Thus, according to UNCLOS Convention every country has the right to arrest and judge the pirates. However, none of them are allowed to enter other countries´ territorial waters and pursue these criminal acts in application of their own laws tending to piracy eradication. This means that different countries may or may not have laws that legally compare acts of piracy carried out in and out of their territorial sea.

Another example that distorts this definition is the need that there are two ships “against another ship or aircraft...” in such a way that pirates have to use a ship to attack another one, what excludes of the concept a mutiny on board organized in advance or an act of piracy at port which at first would not be necessary, although in this last example the assumption is directly excluded as it is necessarily carried out on the territorial sea of a nation. Finally, an attack carried out from a navy or customs unit of a country, as there are already documented cases, can´t be considered an act of piracy either, according to this article, as it has to be carried out “by the crew or the passengers of a private ship”.

The IMO adopts the same definition of piracy as Art. 101 in the UNCLOS Convention  both in its Res. IMO A.922(22) “Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery against Ships” and in the Circular MSC[3]/Circ. 623/Rev.3 “Guideness to shipowners and ship operators, shipmasters and crews on preventing and suppressing acts of piracy and armed robbery against ships”. The criminal act is the same, but if it is carried out on the high seas it is named “piracy” and if it is carried out on the territorial sea it is named “armed robbery against ships”.

According to the definition adopted by the IMB[4] for statistical purposes, piracy is “an act of boarding or trying to board any ship with the intention of committing a robbery or any other criminal act and with the intention or aptitude to resort to force for such act”.

From this definition we can infer the following:

• Acts of piracy are also those carried out on the territorial waters of any country, being the ship either sailing, anchored or docked, with no difference in this case;
• The presence of two ships is not required, what means that the acts carried out at port are also included;
• It is not required that the act of piracy is committed for private ends, what means that the attacks on a ship for political or environmental reasons are considered acts of piracy.

The SUA Convention taken in Rome in 1988 (the hijacking of the “Achile Lauro” in 1985 triggered this Convention) tries to avoid that pirates seek and find sanctuaries in countries whose legal systems do not allow their pursuit, and it compels the nations to enact laws to fight against piracy, in the search to stir up the jurisdictional problems in these cases, which have been frequently the motive why the nations have not been able to pursue the pirates who enter territorial waters after an act of piracy in the jurisdiction of another country. However, this Convention has been ratified by few nations (only 50 at present) and consequently, governments such as the ones in SE Asia go on taking the concept of piracy from the UNCLOS Convention, what in fact means a profitable situation for pirates which contributes to perpetuate the problem[5].

Therefore, one of the most important tasks for the future is the adoption of an international legal concept of piracy clear and broad enough so as not to let different interpretations according to the interests as it happens nowadays. This definitely represents a real obstruction to new measures tending to eradicate piracy at sea.

However, the national law plays an important supplementary part in the fight against piracy, for it is

• the only statutory basis for vessels which have been attacked and which only transit the territorial waters of one state, and
• the only statutory basis for criminal prosecution when international law does not permit criminal prosecution (UNCLOS Convention) or when the international law determines that the national one is applicable (SUA Convention).

[1] United Nation Convention on the Law of the Sea (Montego Bay-Jamaica, 1982).

[2] Around 80% of the registered pirate attacks occur in territorial waters, i.e. near the coast. However, during the last few years pirates seem more and more willing and capable to attack boats on the high seas, especially around Somali waters. Thus, the IMB advises vessels “to keep as far away as possible from the Somali coast, ideally more than 200 nautical miles.”

[3] Maritime Safety Committee (it is an advisory body of the IMO in matters related to safety in navigation).

[4] International Maritime Bureau. This international maritime agency is a specialized organism of the International Chamber of Commerce – ICC. It is an organization with no profit motive in mind, established in 1981 to act as a reference centre in the fight against all kind of crimes and fraudulent practices at sea. One of the main issues it is dedicated to is the suppression of piracy. The alarming increase of this phenomenon led to the creation of the Piracy Information Centre by IMB in 1992. This centre is placed in Kuala Lumpur (Malaysia) and keeps a permanent observation on all the maritime lines in the world, reporting the pirates´ attacks to the local authorities responsible for the performance of laws and warning the sailing ships in dangerous waters about piracy.

[5] We have to stand out those Asian middle powers such China and Japan have already signed the convention, as an extension of their interests in having their naval patrols “licensed” by international law.