un convention on the law of the sea 1982 and the 21st century concept of piracy

SWANSEA UNIVERSITY

INSTITUTE OF INTERNATIONAL SHIPPING AND TRADE LAW

UN CONVENTION ON THE LAW OF THE

SEA 1982 AND THE 21ST CENTURY

CONCEPT OF PIRACY

by

GUNASEELAN KUPPUSAMY

Supervisor : Dr Richard Caddell Student ID : 749925 Academic Year : 2013/2014 Date of Submission : 30th September 2014

TABLE OF CONTENTS

Contents

INTRODUCTION ................................................................................................... 1

1. THE CONCEPT OF PIRACY ............................................................................ 2

1.1 An Act of Violence, Detention or Depredation Committed for Private End 5

1.2 An Act of Violence, Detention or Depredation on the High Seas or in a

Place outside the Jurisdiction of Any State ........................................................ 9

1.3 An Act of Violence, Detention or Depredation by the Crew or Passengers

of a Private Ship or Aircraft, Against another Vessel or Persons or Property

Abroad ............................................................................................................... 11

2. THE UNIVERSAL JURISDICTION FOR THE SUPRESSION OF PIRACY

................................................................................................................................ 14

2.1 The Human Rights Implications of Prosecuting Piracy Suspects .............. 15

2.2 Bilateral Agreements for Prosecution of Piracy Suspects .......................... 18

3. REGIONAL AND INTERNATIONAL COOPERATION FOR THE

SUPPRESSION OF PIRATICAL ACTIVITIES ................................................. 21

3.1 Regional Cooperation for the Suppression of Piratical Activities ............. 21

3.2 The Suppression of Piratical Activities through International Institutions

............................................................................................................................ 22

3.2.1 The Role of UN Security Council ............................................................. 23

3.2.1.1 UN Security Council Resolution 1816 ............................................... 23




3.2.2 The Convention for the Suppression of Unlawful Acts Against the Safety

of Maritime Navigation ..................................................................................... 27

3.2.2.1 Geographical Limit ............................................................................ 28

3.2.2.2 Broad Range of Offence ..................................................................... 28

3.2.2.3 Ship-Boarding Procedure .................................................................. 30

3.2.2.4 Jurisdictional Criteria ........................................................................ 30

3.2.2.5 United States v. Shi ............................................................................. 31

4. PRIVATE SECURITY COMPANIES ............................................................. 34

CONCLUSION ...................................................................................................... 36

BIBLIOGRAPHY ................................................................................................. 37

1

INTRODUCTION

At present time, international peace and security on the oceans are faced

with variety of threats in form of maritime crimes and disorders such as piracy,

slave trading, armed robbery, hijack and other violence on the sea, which greatly

endanger the security of sea communication, the welfare of seafarers and the

principles of international law. In addressing this concern, the provisions under

the United Nations Convention on the Law of the Sea 1982 (hereinafter UNCLOS

1982) has provided a clear obligations for the security and peaceful uses of the

ocean, namely through the Article 301 which states:

In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles

of international law embodied in the Charter of the United Nations.

Piracy and the slave trade are the only instances of universal rights to

board vessels suspected of involvement in an offence defined at international law.

That is, any duly authorised public vessel of any state, irrespective of whether it is

directly affected by the vessel’s conduct, may interdict upon suspicion of piracy

or slaving.1 However, these rights are quite limited and ambiguous, and below, we

will examine how sufficiently and appropriately the current concept of the law of

piracy as codified on the provisions of UNCLOS 1982 has contributed to meet the

demands of Twenty-first Century problems at sea.

1 D Guilfoyle, Shipping Interdiction and the Law of the Sea (CUP 2009) 77

2

1. THE CONCEPT OF PIRACY

Piracy was once thought to be principally of historical interest. However,

there is a renewed concern in maritime safety bodies amidst fears that

contemporary terrorist organisations may use hijacked vessels as weapons against

ports or international commerce.2 Modern piracy is changing from sporadic

‘smash-and-grab’ crime to a highly developed organised crime. Traditionally

pirates have been considered outlaws, hostes humani generis or ‘enemies of all

mankind’. The suppression of piracy can therefore be considered as a common

interest of the international community,3 thus, the exclusive jurisdiction of flag

states does not obtain.4

The international law of piracy is set out in Articles 100 to 107 and 110 of

the UNCLOS 1982. For present purposes it seems necessary and sufficient to

recall the provisions concerning the definition of piracy and action against pirates,

because the ‘piracy’ acts punished by the municipal laws does not constitute

‘piracy’ in the international law and causes some confusion on the definition of

piracy.5

According to Article 101 of the UNCLOS 1982, piracy consists of “any

illegal acts of violence or detention, committed for private ends by the crew or the

passengers of a private ship or aircraft and directed… on the high seas against 2 Ibid 26 3 Y Tanaka, The International Law of the Sea (CUP 2012) 354 4 A Cassese, International Criminal Law (OUP 2003) 24 5 Dissenting opinion of Mr Moore, The Case of the S.S. ‘Lotus’ (France v. Turkey), PCIJ 1928 Series A/10, p.70

3

another ship or aircraft, or against persons or property on board such ship or

aircraft”.6 As such the pre-requisite elements to constitute an offence of piracy

under the UNCLOS 1982 are:7

(1) an act of violence, detention or depredation;

(2) committed for private ends;

(3) on the high seas or in a place outside the jurisdiction of any state; and

(4) by the crew or passengers of a private ship or aircraft, against another

vessel or persons or property aboard.

Article 100 of the UNCLOS 1982 provides that all parties have a duty to

co-operate ‘to the fullest possible extent in the repression of piracy’. Under

Article 110 a foreign-flagged vessel can be visited by the public vessel of any

state on suspicion of piracy, and under Article 105 a pirate vessel may be seized

and its crew prosecuted under the seizing vessel’s national law.

These provisions reproduce the relevant articles of the Convention on the

High Seas 19588 and have their origin in the work of the Harvard Research

Committee’s codification project of the 1930’s, also known as Harvard Draft 6 Article 101of UNCLOS 1982- Definition of piracy Piracy consists of any of the following acts: (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:

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; (b) 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; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b) 7 D Guilfoyle, Shipping Interdiction and the Law of the Sea (CUP 2009) 27 8 Articles 13–21 of the Convention on the High Seas 1958

4

Convention. It is sufficient to quote the Harvard Draft’s definition for comparison

with the UNCLOS 1982 definition set out above.

Piracy is any of the following acts, committed in a place not within the territorial jurisdiction of any state:

(1) Any act of violence or of depredation, committed with intent to rob, rape, wound, enslave, imprison or kill a person or with intent to steal or destroy property, for private ends

without bona fide purpose of asserting a claim of right …

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

(3) Any act of instigation or of intentional facilitation of an act described in paragraph 1 or paragraph 2 of this Article

Evidently, much of this language was retained verbatim in what has

become Article 101 of the UNCLOS 1982.9

The definition of piracy under Article 101 causes several long-standing

misconceptions about piracy, including criticisms that this definition is narrower

than the customary rule10. It does not provide further precision with regards to

types of violence which constitute piracy, and also the scope does not cover

attempts to commit illegal acts on the seas. Acts preparatory to piracy and other

acts of violence not directly linked to piracy are not included in the definition.11

9 D Guilfoyle, Shipping Interdiction and the Law of the Sea (CUP 2009) 30-31 10 Ibid 26 11 T Treves, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ (2009) 20 EJIL 399

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1.1 An Act of Violence, Detention or Depredation Committed for Private End

Unlawful actions must be committed for ‘private ends’, which accordingly

creates two different views; firstly, any illegal acts of violence for political

reasons are automatically excluded from the definition of piracy,12 in other words,

acts are tested on the basis of the motives of an offender.13 However, this view is

debatable. On 10th November 1933, in the case of Re Piracy Jure Gentium,14 the

following question was referred to the Judicial Committee of the Privy Council

for their hearing and consideration; "Whether actual robbery is an essential

element of the crime of piracy jure gentium or whether a frustrated attempt to

commit a piratical robbery is not equally piracy jure gentium”. When it is sought

to be contended, as it was in this case, that armed men sailing the seas on board a

vessel without any commission from any State could attack and kill everybody on

board another vessel sailing under a national flag, without committing the crime

of piracy unless they stole, say, an article worth six pence, their Lordships are

almost tempted to say that a little common sense is a valuable quality in the

interpretation of international law.15

A similar approach is required in assessing claims that the ‘private ends’

requirement excludes politically motivated acts. On the historically context, the

Harvard Draft Convention, and the Convention on the High Seas 1958,16 which

12 M Shaw, International Law, (6th edn, CUP 2010) 615 13 Y Tanaka, The International Law of the Sea (CUP 2012) 355 14 [1934] AC 586 15 Anonymous, ‘In Re a Reference under the Judicial Committee Act, 1833, In Re Piracy Jure Gentium’ (1935) 29 AJIL 140 16 Article 15 of Convention on the High Seas 1958 - Piracy consists of any of the following acts:

6

was the foundation on which the UNCLOS 1982 was based on, included the

words ‘for private ends’ with the express intent of excluding ‘recognised civil-

war insurgents’, that is, insurgents whose actions on the high seas were limited to

attacking vessels of the government they were attempting to overthrow enjoyed a

limited exception from being classed as pirates. The exemption could be

understood as not being about motive but the class of vessel attacked, being those

that are legitimate targets for insurgents in the course of a civil conflict.17

Nevertheless, the exception for insurgents would be easiest to justify if it

could be claimed that inherently insurgents cannot meet the definition of piracy so

long as they attack only the ships of their own government, and any other class of

vessel, be it foreign-flagged or not, would not be a legitimate targets in a civil

war. The logic behind this proposition is that a state’s form of government may be

internally reconstituted by civil war; thus an insurgency may represent, in

embryonic form, a future effective government. Insurgents can thus be

distinguished from both pirates and terrorists on the basis that they have the

recognised capacity at international law to become a lawful government. Piratical

acts against private vessels are clearly beyond the limited ‘powers’ of an

(1) Any illegal acts of violence, 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:

a. On the high seas, against another ship or aircraft, or 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 intentionally facilitating an act described in subparagraph 1 or subparagraph 2 of this article. 17 D Guilfoyle, Shipping Interdiction and the Law of the Sea (CUP 2009) 33

7

insurgency and cannot subsequently be clothed in state immunity merely because,

if the insurgency succeeds, they may also attract state responsibility.18

The second view is that all acts of violence that lack State sanction or

authority are acts undertaken ‘for private ends’. The test of piracy lies not by

reference to the political or subjective motives of an actor, but in the lack of

public sanction for his or her acts, or in the case of the historical exemption

sometimes accorded insurgents prior to the law’s codification, by whether the

attacked vessel was a legitimate target for an insurgency. The essence of a

piratical act is that it neither raises the immunity which pertains to state or

governmental acts nor engages state responsibility. To put it simply, the term ‘for

private ends’ must be understood broadly; all acts of violence that lack state

sanction are acts undertaken ‘for private ends’, and it is undesirable to permit the

collateral motives or purposes of an offender to control the matter of state

jurisdiction.19

The view, expressed above, that subjective motives are irrelevant is

supported by the case of Castle John v NV Mabeco20, concerning Belgian

Greenpeace protesters who took violent action against a Dutch vessel in

international waters to draw attention to its polluting activities. In the 1986 case,

the Belgian Court of Cassation ruled that the actions of Greenpeace activists

boarding, occupying and causing damage to two Dutch vessels engaged in

18 Ibid 35-36 19 Ibid 36-38 20 (1986) 77 ILR 537

8

discharging noxious waste into the sea, were committed for personal ends and

consequently, Greenpeace had committed piracy.21

Similarly in Institute of Cetacean research and Others v. Sea Shepherd

Conservation Society and Watson,22 the US Court of Appeals for the Ninth

Circuit ruled that Sea Shepherd Conservation Society, by interfering with the

Cetacean's whaling operations, including using smoke bombs and butyric acid for

the purpose, had met the test for piracy, observing that “…the perpetrators

believe themselves to be serving the public good does not render their ends

public”. This is the only approach to take considering the rule against piracy

exists to protect the freedom of navigation and the safety of persons upon the high

seas. This function is not served by reading the definition as inherently excluding

acts with a subjective ‘political’ motive.23

The words ‘for private ends’ simply emphasise that the violence involved

lacks state sanction or authority. This lack of authority is a question that may be

tested objectively and without reference to subjective motives. The only possible

exception is a limited one for insurgencies attacking the government vessels of

their state of nationality. Even so, the test is not the subjective motivation of the

21 Y Tanaka, The International Law of the Sea (CUP 2012) 356 22 720 F. 3d 572 (2012 US App) 23 D Guilfoyle, Shipping Interdiction and the Law of the Sea (CUP 2009) 38

9

insurgents, but turns on the objective questions of its status as an insurgency at

international law and its choice of targets under the laws of war.24

1.2 An Act of Violence, Detention or Depredation on the High Seas or in a

Place outside the Jurisdiction of Any State

The definition of piracy under the Article 101 of the UNCLOS 1982 is

rather narrow, as it includes only action on the high seas. So forms of violence

conducted in the territorial sea such as violent activities against ships off the

Somali coast sometimes take place in whole or in part in the territorial seas, thus

often remaining outside the scope of the definition of ‘piracy’ in the UNCLOS

1982.25 As such, while all states have jurisdiction over piracy, that jurisdiction

only exists where the prohibited acts are committed on the high seas or ‘outside

the jurisdiction of any State’. This exclusion of areas within territorial jurisdiction

from prescriptive and enforcement jurisdiction over piracy raises the question of

piracy within the contiguous zone and Exclusive Economic Zone (hereinafter

EEZ). Such areas are not ‘outside the jurisdiction of any State’ in the sense that no

degree of coastal state jurisdiction exists; however, the limited jurisdiction

granted over such waters does not extend to repressing piracy.26

The ambiguity is compounded by Article 86 of the UNCLOS 1982, which

provides:

24 Ibid 42 25 T Treves, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ (2009) 20 EJIL 399 26 D Guilfoyle, Shipping Interdiction and the Law of the Sea (CUP 2009) 43

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Application of the provisions of this Part27

The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters

of an archipelagic State.

While this might be taken to exclude the high seas regime from applying

in the EEZ, it is better thought of as preventing any assumption that it applies

automatically and in its entirety. The drafting was intended to reflect the unified

character of the oceans (in particular the EEZ and the high seas) and to embody

the proposition that the regime of the high seas applied in the EEZ, except with

respect to coastal state’s sovereignty over resources. This view is reinforced by

Article 58(2) of the UNCLOS 198228, providing that so far as it is not

incompatible with the rights apportioned to the coastal state, the regime of the

high seas applies in the EEZ. Thus the residual application of the high seas regime

of the law of piracy enforcement to the EEZ and contiguous zone should not be

controversial.29

27 Part VII of UNCLOS 1982 consist of Article 86 - 120 28 Article 58 of the UNCLOS 1982 - Rights and duties of other States in the exclusive economic zone 1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to

the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.

2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.

In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part. 29 D Guilfoyle, Shipping Interdiction and the Law of the Sea (CUP 2009) 44

11

This appears consistent with discussion in the M/V ‘Saiga’ (No. 2)30 case,

where the International Tribunal for the Law of the Sea rejected arguments that

coastal states could claim additional heads of subject matter jurisdiction over their

EEZ beyond those enumerated in UNCLOS 1982 by reason of a pressing ‘public

interest’. While UNCLOS 1982 does not preclude new customary coastal state

rights arising in the EEZ, there is little practice supporting any rule of exclusive

and general coastal state criminal enforcement jurisdiction in the EEZ.31

1.3 An Act of Violence, Detention or Depredation by the Crew or Passengers

of a Private Ship or Aircraft, Against another Vessel or Persons or Property

Abroad

The definition of piracy also includes only action undertaken by one ship

against another ship. So forms of violence conducted without the involvement of

two ships, such as, for instance, the violent taking of control of a ship by members

of its crew or passengers, even when the follow-up consists of holding to ransom

the ship and its crew and passengers, are not included.32 Several incidents and

cases had exposed this inadequacy of the definition of ‘piracy’ in the UNCLOS

1982, as illustrated below.

The taking of control by hijackers embarked as passengers on the

Portuguese ship Santa Maria in 1961, were not considered to be piracy as there

30 (1999) 38 ILM 1323 31 M/V ‘Saiga’ (No. 2), Judge Vukas (Separate Opinion), 1402 32 T Treves, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ (2009) 20 EJIL 399

12

were no two ships or aircraft involved. In this incident, Captain Galvao, the leader

of a Portuguese political dissident, seized the Portugal flagged ship in an attempt

to overthrow Dictator Salazar of Portugal. The flag state, namely Portugal,

designated the seizure of the vessel as piracy, but Captain Galvao and his

followers were given asylum in Brazil. While this seems to suggest that illicit acts

by organised group for political purposes cannot be characterised as piracy,33 it is

also in line with the current definition of piracy which requires action undertaken

by one ship against another ship, and the taking of control by hijackers embarked

as passengers does not constitute an act of piracy.

Similarly, in the Achille Lauro affair in 1985, four members of Palestinian

group, the PLF34, aboard the Italian passenger ship, the Achille Lauro, hijacked

the ship, threw a wheelchair-bound American Jew overboard and demanded

release of Palestinian prisoners. However, as the offenders had already boarded

the ship, this affair involved hijacking of the ship, and not piracy. It is worth

mentioning here that the language of the UNCLOS 1982 includes no reference to

terrorists or terrorism, and the definition of piracy does not cover hijacking.35

The violent activities against ships off the Somali coast more rarely do not

involve the presence of one or more other ships, as usually very fast skiffs are

used, coming from bases on the mainland or from ‘mother ships’ at sea.36 This

33 Y Tanaka, The International Law of the Sea (CUP 2012) 355-356 34 Palestine Liberation Front - is a Palestinian militant group 35 Y Tanaka, The International Law of the Sea (CUP 2012) 356-357 36 T Treves, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ (2009) 20 EJIL 399

13

method of conducting violent acts against ships clearly fall outside the scope of

the definition of piracy as provided under Article 101 of the UNCLOS 1982 as

there were no “act of violence or detention, or any act of depredation…

committed by the crew or the passengers of a private ship or a private aircraft,

and directed… against another ship or aircraft, or against persons or property on

board such ship or aircraft” in this scenario. Again this illustrates how a clear act

of violence which greatly endanger the security of sea communication and the

welfare of seafarers, could be let slip by the absurdly narrow definition of piracy

as provided in the UNCLOS 1982. It could also be underlined here that acts

preparatory to piracy and other acts of violence not directly linked to piracy are

not included in the definition.37

37 Ibid

14

2. THE UNIVERSAL JURISDICTION FOR THE SUPRESSION OF

PIRACY

Article 105 of the UNCLOS 1982 spelled out the actions which may be

taken by States against a pirate ship; apart from the right of warships of all states

to exercise the right to visit aimed at ascertaining whether a ship is engaged in

piracy as follows:

On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a

ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The

courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to

the rights of third parties acting in good faith.

Under Article 105 the flag state of the seizing ship enjoys very broad

powers. These consist of the right to arrest persons and to seize property, and,

through the abovementioned rights, to decide upon penalties and on action to be

taken with regard to the ship, aircraft and property, the right to submit the persons

arrested and the property seized to judicial proceedings. In other words, the

universal jurisdiction of the seizing state’s courts is supported by international

law.38 However, according to Article 106, where seizure of a ship or aircraft on

suspicion of piracy were made without adequate grounds, the State making the

38 Ibid

15

seizure is liable to the flag State of the ship or aircraft for any loss or damage

caused by the seizure.39

The language of Article 105; “…every State may seize a pirate ship or

aircraft…” seems to indicate that the exercise of jurisdiction by the seizing state’s

courts is a possibility, not an obligation, notwithstanding the ‘duty’ to cooperate

in the repression of piracy set out in Article 100 of the UNCLOS 1982.40 The rule

in Article 105 does not, however, establish the exclusive jurisdiction of the

seizing state’s courts. Courts of other states are not precluded from exercising

jurisdiction under conditions which they establish. Thus the international law

rules on action to be taken against pirates permit action, but are far from ensuring

that such action is effectively taken.41

2.1 The Human Rights Implications of Prosecuting Piracy Suspects

It is not uncommon that seizing States are reluctant to prosecute pirates

owing to the expense involved, legal complexities in criminal proceedings,

concern relating for instance to evidence, concerns inherent in criminal

proceedings to be held far away from the place where the alleged crime was

39 Article 106 of UNCLOS 1982 - Liability for seizure without adequate grounds Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure. 40 Article 100 of UNCLOS 1982 - Duty to cooperate in the repression of piracy All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State. 41 T Treves, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ (2009) 20 EJIL 399

16

committed, and, perhaps especially, by the human rights implications of

exercising jurisdiction.42

The capture and detention at sea of criminals later brought to trial in courts

far away of the state of the arresting vessel have been referred by those captured

for the judgement of the European Court of Human Rights (hereinafter ECtHR).

This was illustrated in the case of Medvedyev v. France.43 On 10 July 2008,

where, the French authorities interdicts Winner, a Cambodian vessel suspected of

drug smuggling, on 13 June 2002. Cambodia had granted its consent to France to

"intercept, inspect and take legal action against the ship" on 7 June 2002. The

interdiction occurred in waters off Cape Verde, several thousand kilometres from

France. The suspect crew were confined aboard the vessel during the 13-day

voyage to a French port, with the exception of one suspect, injured by a

ricocheting bullet, who was medically evacuated and later died of his injuries. The

delay in reaching port was due to the fact the Winner could not proceed to port

faster than 5 knots, given its poor state of repair and prevailing weather. The

vessel arrived in Brest on 26 June 2002, where the suspects were handed over to

police and brought before an investigating magistrate the same day. The suspects,

who were later convicted in France of drug-smuggling offences, had brought

proceedings before the ECtHR challenging the legality of their detention at sea

and the delay involved in bringing them before a court under Articles 5(1)44 and

42 Ibid 43 (2010) Application no. 3394/03 44 Article 5 of European Convention on Human Rights Right to liberty and security

17

Article 5(3)45 of the European Convention on Human Rights (hereinafter ECHR).

An earlier ECtHR case, Rigopoulos v. Spain 46, similarly involved a Spanish high

seas interdiction of drug smugglers and a 16-day voyage to port. In both cases the

Court held that such delays, where materially impossible to avoid, did not violate

ECHR Article 5(3).47

However, in Medvedyev, a violation of Article 5(1) of the ECHR was

found. Moreover, it was claimed that the French mission was ultra vires since

Cambodia was not party either to UNCLOS 1982 or to the UN Narcotics

Convention 1998. The difficulty for France arose from the fact that its domestic

legislation covering drug interdictions at sea at the time was designed only to

implement interdictions authorised by a flag State pursuant to the UN Narcotics

Convention 1988. The only legal basis for the French action was an exchange of

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a) the lawful detention of a person after conviction by a competent court; b) the lawful arrest or detention of a person for noncompliance with the lawful order of a

court or in order to secure the fulfilment of any obligation prescribed by law; c) the lawful arrest or detention of a person effected for the purpose of bringing him before

the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

45 Ibid 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 46 (1999) Application No 37388/97 47 D Guilfoyle, ‘Current Legal Developments European Court of Human Right’ (2010) 25 Int'l J. Marine & Coastal L. 437

18

diplomatic notes. France appealed to the Grand Chamber, and the Grand Chamber

in 2008 held that that detention was arbitrary as the invoked provisions of French

and international law both failed to “regulate the conditions of deprivation of

liberty on board ship, and in particular the possibility for the persons concerned

to contact a lawyer or a family member… Nor do they place the detention under

the supervision of a judicial authority”. 48

An optimistic reading of the Medvedyev case suggests that the standard to

be met for Article 5(1) of the ECHR is something close to the piracy provisions of

the UNCLOS 1982. Indeed, the Grand Chamber laments that the international

community has not concluded a general instrument providing for an exception to

flag State jurisdiction and universal jurisdiction over drug smuggling in similar

terms to the law of piracy. European States conducting counter-piracy operations

might thus feel reasonably confident that they have legal authority to detain

suspects and have more than usual latitude in bringing such suspects "promptly"

before a judge.49

2.2 Bilateral Agreements for Prosecution of Piracy Suspects

The difficulties met in surrendering captured piracy suspects raise

significant questions about their arrest, detention and transfer to a State willing to

try them, especially for State parties to the ECHR. Great efforts since have been

48 Ibid 49 Ibid

19

directed at getting piracy suspects to trial50. Kenya had emerged as the venue of

choice for the prosecution of the piracy suspects51 following bilateral agreements,

mentioned in the media but not made public; between Kenya and the United

Kingdom, the United States, the European Union and Denmark, which seek to

ensure respect for the human rights of these individuals, as they surrendered to

Kenya for prosecution in the Kenyan courts.52

Kenyan Foreign Minister Moses Wetangula clarified after signing one of

such agreement with the United States, saying that "We have signed a

memorandum of understanding with the U.S. and UK (United Kingdom) where in

practical situations pirates captured at the Indian Ocean shipping line area can

be tried in Kenyan courts. But it would be dealt with on a case by case basis. It is

not an open door for dumping pirates onto Kenya soil because it will not be

acceptable. We have a bill in parliament that is coming up and it is going to

strengthen the punishment against piracy, from the current legal provision of 10

years in jail to life imprisonment. And I believe it will provide some form of

deterrence".53 These memoranda seems to consist of agreements between the

states whose ships are patrolling the waters off the coast of Somalia and countries

willing to take custody of pirates to place on such ships law enforcement officers

50 D Guilfoyle, ‘Counter-Piracy Law Enforcement and Human Rights’ (2010) 59 ICLQ 142 51 Ibid 52 T Treves, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ (2009) 20 EJIL 399 53 J Butty, ‘ Kenyan Foreign Minister Shed Light on US-Kenya Piracy Agreement’ (Voice of America, 2 November 2009) <http://www.voanews.com/content/a-13-2009-01-28-voa4-68711597/409566.html> accessed 6 August 2014

20

from the latter countries, in particular countries of the region, to facilitate the

investigation and prosecution of persons detained.54

While this practice under these agreements permits the jurisdiction of

Kenya to be based on the fiction that it is a seizing state, in other cases the

connecting factor is the nationality of the victim ship or of the victims. So

reportedly the Netherlands has signed an agreement with Denmark to extradite

five Somali pirates who attacked a Netherlands-Antilles cargo vessel in the Gulf

of Aden and were captured by Denmark.55

54 T Treves, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ (2009) 20 EJIL 399 55 Ibid

21

3. REGIONAL AND INTERNATIONAL COOPERATION FOR THE

SUPPRESSION OF PIRATICAL ACTIVITIES

As discussed above, due the inadequacy of the international law of piracy

as codified under the UNCLOS 1982, international cooperation for the

suppression of piratical activities had been developed in recent years.

3.1 Regional Cooperation for the Suppression of Piratical Activities

At regional level, the Regional Co-operation Agreement on Combating

Piracy and Armed Robbery (hereinafter ReCAAP) against Ships in Asia was

concluded in 2004. This Agreement aims to prevent and supress piracy and armed

robbery against ships at the same time, and it is notable for its Article 4 which

establishes an Information Sharing Centre in Singapore with the view of

managing and maintaining expeditious flow of information relating to piracy and

armed robbery against ships among the Contracting Parties.56

In 2009, a similar multinational regional agreement, the Code of Conduct

Concerning the Repression of Piracy and Armed Robbery against Ships in the

Western Indian Ocean and the Gulf of Aden, also known as the Djibouti Code of

Conduct, was adopted by 21 governments.57 The agreement allows one signatory

country to send armed forces into another signatory country's territorial waters to

pursue pirates and, in some cases, to jointly conduct anti-piracy operations. The

56 Y Tanaka, The International Law of the Sea (CUP 2012) 359 57 Ibid

22

nations have also agreed on the creation of piracy information centres to be set up

in Kenya, Tanzania, and Yemen, and an anti-piracy military training centre to be

established in Djibouti.58 The signatories also undertook to review their national

legislation with a view to ensuring that there are laws in place to criminalize

piracy and armed robbery against ships and to make adequate provision for the

exercise of jurisdiction, conduct of investigations and prosecution of alleged

offenders.59

3.2 The Suppression of Piratical Activities through International Institutions

At the international level, various international institutions such as IMO60,

NATO61, the European Union and the United Nations are currently engaged in

counter-piracy operations. One of such operations launched by the European

Union is Operation Atlanta off the Somali coast on 8 December 2008. NATO

commenced a counter-piracy mission, Operation Ocean Shield on 17 August

2009. IMO adopted two documents, namely ‘Guidance to Shipowners and Ship

Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy

and Armed Robbery against Ships’ and ‘Recommendation to Governments for

Preventing and Supressing Piracy and Armed Robbery against Ships’. The

58 A Ryu, ‘Nine Countries Sign Agreements to Combat Africa Piracy’ (Voice of America, 2 November 2009) < http://www.voanews.com/content/a-13-2009-01-30-voa33-68666897/408554.html> accessed 6 August 2014 59 ‘Djibouti Code of Conduct’ (International Maritime Organization) < http://www.imo.org/OurWork/Security/PIU/Pages/DCoC.aspx> accessed 6 August 2014 60 International Maritime Organization - a specialized agency of the United Nations, IMO is the global standard-setting authority for the safety, security and environmental performance of international shipping 61 The North Atlantic Treaty Organization - also called the Atlantic Alliance, is an intergovernmental military alliance based on the North Atlantic Treaty which was signed on 4 April 1949

23

UNDOALOS62 also provide assistance to States in the uniform application of the

provisions of the UNCLOS 1982 concerning the repression of piracy.63

3.2.1 The Role of UN Security Council

The UN Security Council plays a key role in the international counter-

piracy operation by adopting a series of resolutions dealing with piracy and

related issues. These Resolutions, however, always mention “armed robbery”

together with piracy. “Armed robbery” is not defined. It is a term routinely used

within the framework of IMO, and may be understood to include all acts of

violence the purposes of which are identical or similar to those of piracy but are

not covered by the conventional definition of ‘piracy’, in particular because they

may be perpetrated without using a ship against the target ship.64

3.2.1.1 UN Security Council Resolution 1816

UN Security Council Resolution 1816 first used powers under Chapter VII

of the UN Charter to authorise foreign military and law-enforcement action in the

Somali territorial sea to repress piracy and armed robbery at sea over an initial

six-month period65. Operative Paragraph 7 of the Resolution 1816 provides:

62 United Nations Division for Ocean Affairs and the Law of the Sea 63 Y Tanaka, The International Law of the Sea (CUP 2012) 359-360 64 T Treves, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ (2009) 20 EJIL 399 65 D Guilfoyle, Shipping Interdiction and the Law of the Sea (CUP 2009) 61

24

…that for a period of six months from… [2 June 2008], States cooperating with the TFG66 in the fight against piracy and armed

robbery at sea off the coast of Somalia, for which advance notification has been provided by the TFG to the Secretary

General, may:

(a) Enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner

consistent with such action permitted on the high seas with respect to piracy under relevant international law; and

(b) Use, within the territorial waters of Somalia, in a manner consistent with action permitted on the high seas with respect to piracy under relevant international law, all necessary means to

repress acts of piracy and armed robbery.

The words ‘all necessary means’ commonly associated with a general

authorisation to use military force and is one of the few occasions when the

Council has authorised interdiction operations in a state’s territorial sea.67

However, the restrictions upon these powers are readily apparent. First,

this initial grant of authority would have expired on 2 December 2008, and it was

only renewed on that date by UN Security Council Resolution 1846, which will

be discussed below. Second, only states named by the TFG to the Secretary-

General as ‘co-operating’ with it may act under Operative Paragraph 7.68

Authority to use ‘all necessary means’ is further conditioned by the

requirement that such action must occur within Somalia’s territorial waters and be

‘consistent with action permitted on the high seas with respect to piracy’. This

66 Transitional Federal Government – is the internationally recognized government of the Republic of Somalia until 20 August 2012, when its tenure officially ended and the Federal Government of Somalia was inaugurated 67 R McLaughlin, ‘United Nations mandated naval interdiction operations in the territorial sea?’ (2002) 51 ICLQ 249 68 D Guilfoyle, Shipping Interdiction and the Law of the Sea (CUP 2009) 65

25

presumably limits action to pursuing and boarding a pirate vessel, seizing it and

arresting those aboard. So limited, the words ‘all necessary means’ cannot

encompass striking at pirate command centres on land or arresting pirates after

their return to shore. Such action will still require the TFG’s specific

authorisation. Finally, the repeated words of limitation, “in a manner consistent

with action permitted on the high seas with respect to piracy”, require scrutiny.

International law has little to say about the manner in which piracy may be

suppressed. Rules governing the conduct of high-seas interdictions remain

embryonic, found in a limited case law and inferences from treaties.69


Upon the expiry of the grant of authority under the Resolution 1816 on 2

December 2008, it was renewed by the UN Security Council Resolution 1846.

The Resolution 1846 re-enacted the key elements in Resolution 1816. The

wording of Operative Paragraphs 7, 9, 11 of Resolution 1816 is repeated mutatis

mutandis as Paragraphs 10, 11, 14 of Resolution 1846, therefore adds nothing

notable to the substantive law governing piracy.70


A notable additions to Resolution 1816 is in the UN Security Council

Resolution 1848. Paragraph 9 of the Resolution 1848 calls upon states and

regional organisations with the capacity to do so “to take part actively in the fight 69 Ibid 66 70 Ibid 68

26

against piracy and armed robbery at sea off the coast of Somalia”, in particular

by deploying appropriate military assets and “through seizure and disposition of

boats, vessels, arms and other related equipment used in the commission of piracy

and armed robbery off the coast of Somalia, or for which there is reasonable

ground for suspecting such use” in a manner consistent with the resolution and

international law. It is possible, although not entirely clear, that this creates a

novel preventive power to seize and dispose of a vessel or weapons simply on

‘reasonable suspicion’ of involvement in piracy irrespective of the general

international law duty to compensate vessels mistakenly interdicted on such

grounds.71


More dramatically still, the Security Council passed on 19 December 2008

the Resolution 1851, and decided in Paragraph 6;

…for a period of twelve months from [19 December 2008] … States and regional organizations cooperating in the fight against

piracy and armed robbery at sea off the coast of Somalia for which advance notification has been provided by the TFG to the Secretary-General may undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea, pursuant to the request of

the TFG, provided, however, that any measures undertaken pursuant to the authority of this paragraph shall be undertaken

consistent with applicable international humanitarian and human rights law.

This Resolution 1851 grant authority to conduct counter-piracy operations

on Somalian soil, subject to TFG’s consent. The resolution may be construed as 71 Ibid 69

27

acknowledging that some Somali pirates may also be civil war insurgents and in

those cases any international counter-piracy forces on land may be best

considered forces intervening in an otherwise internal conflict at the invitation of

the government. Resolution 1851 also calls on states involved in counter-piracy

efforts to set up a common centre to co-ordinate their efforts and on all UN

member states to help strengthen Somalia’s operational capacity to bring to

justice those who are using Somali territory to plan, facilitate or undertake

criminal acts of piracy and armed robbery at sea.72

3.2.2 The Convention for the Suppression of Unlawful Acts Against the

Safety of Maritime Navigation

In 1988, the Convention for the Suppression of Unlawful Acts against the

Safety of Maritime Navigation (hereinafter SUA Convention) was concluded

under the auspices of IMO in order to fill the legal vacuum in the provisions of

UNCLOS 1982 which was discussed above. This comes as a direct response to

the Achille Lauro incident. The SUA Convention provides a multilateral

framework for the suppression of unlawful offences at sea which are not regulated

by the international law of piracy. After the September 11, 2001 attack in the

United States, the SUA Convention was revised by Protocol of 2005 (hereinafter

the 2005 SUA Convention). Four main features of the Convention is the

72 Ibid 69-70

28

geographical scope, a broad range of offence, ship-boarding procedures and

jurisdictional criteria.73

3.2.2.1 Geographical Limit

Article 4(1) of the SUA Convention provides that the Convention applies

if the ship is navigating or is scheduled to navigate into, through or from waters

beyond the outer limit of the territorial sea of a single State, or lateral limits of its

territorial sea with adjacent States.74 As such, the SUA Convention covers acts of

unlawful offences committed in the territorial seas, the archipelagic waters,

international straits and the EEZ.75

3.2.2.2 Broad Range of Offence

The SUA Convention applies to persons who seek to; seize a ship,

perform acts of violence against a person on board, destroy a ship, place on a ship

a device or substance which is likely to destroy that ship, destroy or seriously

damage maritime navigational facilities, or communicate false information

endangering the safe navigation of a ship.76

73 Y Tanaka, The International Law of the Sea (CUP 2012) 361 74 Article 4 of SUA Convention 1. This Convention applies if the ship is navigating of is scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent States. 2. In cases where the Convention does not apply pursuant to paragraph 1, it nevertheless applies when the offender or the alleged offender is found in the territory of a State Party other than the State referred to in paragraph 1. 75 Y Tanaka, The International Law of the Sea (CUP 2012) 361-362 76 Article 3 of SUA Convention 1. Any person commits an offence if that person unlawfully and intentionally:

29

Under the 2005 Protocol, the scope of offences was further widened.

Article 3bis criminalised, inter alia; using against or on a ship or discharging from

a ship any explosive, radioactive material or BCN77 weapons in a manner that

causes or likely to cause death or serious injury or damage, discharging from a

ship, oil, liquefied natural gas, or other HNS78 in such quantity or concentration

that causes or likely to cause death or serious injury or damage, using a ship in a

manner that causes death or serious injury or damage, transporting any explosive

or radioactive material knowing that it is intended to be used to cause death or

serious injury or damage for the purpose of intimidating a population, or

compelling a government or international organization to do or abstain from

doing any act, and transporting BCN weapons. The Convention does not apply to

warship or ship owned or operated by a State79 and the offences under the 2005

SUA Convention are not limited to an act against another ship.80

1. seizes or exercises control over a ship by force or threat thereof or any other form of

intimidation; or 2. performs an act of violence against a person on board a ship if that act is likely to

endanger the safe navigation of that ship; or 3. destroys a ship or causes damage to a ship or to its cargo which is likely to endanger

the safe navigation of that ship; or 4. places or causes to be placed on a ship, by any means whatsoever, a device or

substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or

5. destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if any such act is likely to endanger the safe navigation of a ship; or

6. communicates information which he knows to be false, thereby endangering the safe navigation of a ship; or

7. injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (f).

77 Biological, Chemical and Nuclear 78 Hazardous or Noxious Substance 79 Article 2 of SUA Convention 1. This Convention does not apply to:

1. a warship; or

30

3.2.2.3 Ship-Boarding Procedure

The 2005 SUA Convention adopts ship boarding procedures by non-flag

States, which clearly seek to efficiently apprehend offenders. Under the Article

8bis (5), a State Party can take appropriate measures, including boarding a foreign

ship located seawards of any State’s territorial sea if authorised by the flag State,

to detain the ship, cargo and persons on board. The ship-boarding procedures are

particularly important in order to reconcile the exclusive jurisdiction of the flag

State and the need for the effective apprehension of offenders.81

3.2.2.4 Jurisdictional Criteria

Where offences had been committed, there is a need to establish

jurisdiction to prosecute offenders in an effective manner. In this regard, Article 6

of the SUA Convention sets out a two-tier system. The first involves compulsory

jurisdiction over offences set forth in Article 3 when the offence is committed

against or on board a ship flying the flag of the State at the time the offence is

committed, or in the territory of that State, including its territorial sea, or by a

national of that State.82

2. a ship owned or operated by a State when being used as a naval auxiliary or for customs or police purposes; or 3. a ship which has been withdrawn from navigation or laid up.

2. Nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes 80 Y Tanaka, The International Law of the Sea (CUP 2012) 362 81 Ibid 362-363 82 Article 6 of SUA Convention 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 3 when the offence is committed:

31

The second is an optional jurisdiction, in which a State Party may

establish its jurisdiction over any such offence when it is committed by a stateless

person whose habitual residence is in that State, or during its commission a

national of that State is seized, threatened, injured or killed or it is committed in

an attempt to compel that State to do or abstain from doing any act.83 The

adoption of such broad jurisdictional criteria aims to close possible jurisdictional

gaps concerning unlawful marine offences.84

3.2.2.5 United States v. Shi

The 2005 SUA Convention had received minimal judicial attention to

date. The first prosecution brought under the Convention was United States v.

Shi,85 which was heard in the United States, under the statute codifying US

obligations under the Convention. The Court of Appeal held that the Convention,

which was designed to counter international terrorism, can also be applied to

ordinary crimes. Shi revives and shows the flexibility of that moribund treaty at a

time when an epidemic of piracy makes it especially relevant. 86

1. against or on board a ship flying the flag of the State at the time the offence is committed; or 2. in the territory of that State, including its territorial sea; or 3. by a national of that State.

83 Ibid 2. A State Party may also establish its jurisdiction over any such offence when:

1. it is committed by a stateless person whose habitual residence is in that State; or 2. during its commission a national of that State is seized, threatened, injured or killed; or 3. it is committed in an attempt to compel that State to do or abstain from doing any act.

84 Y Tanaka, The International Law of the Sea (CUP 2012) 363 85 525 F.3d 709 (9th Cir.2008) 86 E Kontorovich, ‘United States v. Shi’ (2009) 103 AJIL 734

32

The defendant was a young Chinese national working as a cook on the

fishing trawler Full Means No.2. It was apparently his first time at sea. He claims

that the officers beat and mistreated him. In response to one such incident, Shi

stabbed the captain and first officer to death with kitchen knives. The defendant

went to the bridge and ordered the crew to sail to China; he wanted to go home.

Two days after the murders, however, the crew overpowered him and locked him

in a storage compartment. In a peculiar twist, the crew, including the two

engineers, claimed that they did not know how to operate the radio, which

prevented them from contacting the owners for instructions. Instead, they did

what must have seemed the next best thing, and sailed for Hawaii. A few days

later, the Full Means was stopped by a Coast Guard cutter sixty miles from

Hawaii. The crew explained what happened, and after having received a waiver of

jurisdiction from the Seychelles, the ship was brought into harbour. A few weeks

later Shi was indicted for violating 18 U.S. Code S2280, which implements the

SUA Convention in the United States’ national law.87

The prosecution of Shi, who posed no danger to international commerce,

contrasts sharply with the U.S. practice of not prosecuting Somali pirates for their

attacks on foreign ships which threaten one of the world's densest maritime

channels. This contrast suggests that various practical and legal difficulties have

87 Ibid

33

prevented the United States and other countries from using universal jurisdiction

against serious international threats.88

88 Ibid

34

4. PRIVATE SECURITY COMPANIES

Apart from the regional and international cooperation in supressing

piratical activities, the shipping industry, in an effort to protect the interest of

international trade, has begun outsourcing to private security companies to help

vessels travel safely through the dangerous passageways that their governments

have failed to secure.89

The costs to the shipping industry have been especially high and continue

to grow as pirates become more aggressive and demanding. In many cases, the

only solution for shipping companies is to pay the pirates' demanded ransom.

Paying high ransoms, paired with the increases in insurance costs and money lost

through substantial delays, has cost commercial shippers millions. Shipping plays

a vital role in facilitating global trade, and thus the commercial shipping industry

needs to find a solution that will allow it to protect its vessels, cargos, and crews

without substantially slowing international commerce.90

Private security companies can provide shippers with the training, the

technology, and the man power needed to ward off attacks from pirates. On the

other hand, this reliance on private industry to serve as a police force on the high

seas and in unprotected territorial waters carries with it its own set of risks and

raises questions as to what law governs these private actors. To address this gap in

89 D Parsons, ‘Protecting the Booty: Creating a Regulatory Framework To Govern Increased Use of Private Security Companies in the Fight Against Pirates’ (2010-2011) 35 Tul. Mar. L.J. 153 90 Ibid

35

international law, several states signed on to the Montreux Document, a

nonbinding framework that highlights the responsibilities both of states and

private security companies when engaged in armed conflict. This shows states are

beginning to work together to develop an international framework for addressing

the legality of private security use by governments. Adoption of these practices by

states will go a long way toward increasing accountability among private security

companies and will aid commercial shippers in making responsible choices about

increasing security on board their vessels.91

91 Ibid

36

CONCLUSION

It is apparent that the provisions of the UNCLOS 1982 are inadequate to

address the problems posed by modern maritime crime and disorder effectively.

In order to protect international peace and security on the oceans, various

bilateral, multilateral, regional and international cooperative measures had been

developed in recent years. Even private initiatives by the shipping industry to

protect its interest, such as outsourcing to the private security companies had

come into the fold. It must be admitted that there is a pressing need for reforms of

the UNCLOS 1982 in order to provide more clarity on universal jurisdiction for

the suppression of piracy and armed robbery on the sea, and to close the gaps

within the international legal framework for more effectively meet the demand of

the Twenty-first century problems at sea. However, the complexity that could

entail a reform initiative is another question.

Total number of words: 7,472 (excluding table of contents

and footnotes)

37

BIBLIOGRAPHY

BOOKS

• Cassese A, International Criminal Law (OUP 2003)

• Guilfoyle D, Shipping Interdiction and the Law of the Sea (CUP 2009)

• Shaw M, International Law, (6th edn, CUP 2010)

• Tanaka Y, The International Law of the Sea (CUP 2012)

CASE LAWS

• Castle John v NV Mabeco (1986) 77 ILR 537

• Institute of Cetacean research and Others v. Sea Shepherd Conservation

Society and Watson 720 F. 3d 572 (2012 US App)

• Medvedyev v. France (2010) Application no. 3394/03

• M/V ‘Saiga’ (No. 2) (1999) 38 ILM 1323

• Re Piracy Jure Gentium [1934] AC 586

• Rigopoulos v. Spain (1999) Application No 37388/97

• The Case of the S.S. ‘Lotus’ (France v. Turkey), PCIJ 1928 Series A/10

• United States v. Shi 525 F.3d 709 (9th Cir.2008)

38

LEGISLATIONS

• Convention for the Suppression of Unlawful Acts against the Safety of

Maritime Navigation (and the Protocol of 2005)

• Convention on the High Seas 1958

• European Convention on Human Rights

• UN Convention on the Law of the Sea 1982

JOURNAL ARTICLES

• Anonymous, ‘In Re a Reference under the Judicial Committee Act, 1833,

In Re Piracy Jure Gentium’ (1935) 29 AJIL 140

• Caddell R, ‘Regulating the Whale Wars: Freedom of Protest, Navigational

Safety and the Law of The Sea in the Polar regions” (2014) 6 YPL (in

press)

• Doby D, ‘Whale Wars: How to End the Violence on the High Seas’ (2013)

44 J. Mar. L. & Com. 135

• Guilfoyle D, ‘Counter-Piracy Law Enforcement and Human Rights’

(2010) 59 ICLQ 142

-- ‘Current Legal Developments European Court of Human Right’ (2010)

25 Int'l J. Marine & Coastal L. 437

• Gullett W and Schofield C, ‘Pushing the Limits of the Law of the Sea

Convention: Australian and French Cooperative Surveillance and

39

Enforcement in the Southern Ocean’ (2007) 22 Int'l J. Marine & Coastal

L. 545

• Kontorovich E, ‘United States v. Shi’ (2009) 103 AJIL 734

• McLaughlin R, ‘United Nations mandated naval interdiction operations in

the territorial sea?’ (2002) 51 ICLQ 249

• Parsons D, ‘Protecting the Booty: Creating a Regulatory Framework To

Govern Increased Use of Private Security Companies in the Fight Against

Pirates’ (2010-2011) 35 Tul. Mar. L.J. 153

• Treves T, ‘Piracy, Law of the Sea, and Use of Force: Developments off

the Coast of Somalia’ (2009) 20 EJIL 399

WEBSITES

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68711597/409566.html> accessed 6 August 2014

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2009-01-30-voa33-68666897/408554.html> accessed 6 August 2014

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un convention on the law of the sea 1982 and the 21st century concept of piracy

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