International Shipping Law - Law of Piracy and Reform - Assignment Example

MEMORANDUM Date: November 29, 2010 Re: Piracy Law and Potential Reform To: Government Department From…….. Introduction As requested the adequacy of the international and Australian definition of piracy has been investigated. The enquiry was done to find out the adequacy of the current definition and if it needs any alterations. The investigation also includes the reasons for these changes and the way they can be made1Alterations are in deed necessary because the enquiry into the definitions unearthed some elements that are missing or need to be redone. The memo therefore sheds some light on the appropriate measures to be taken to rectify the problems.2 Findings International Piracy Law The maritime law on piracy has its strong and weak areas. As a result there are loopholes in the law, which are exploited by pirates and criminals to perform inhuman acts. The law should therefore be altered and the loopholes sealed. It is narrow in the sense that it does not include violence and detention acts carried out on ships to be piracy if they occur in the waters within the jurisdiction of a given state. The definition only touches on the high seas as can be found in section 1 of part VII of the ‘United Nations Convention on the Law of the seas.’ It also states that these acts qualify to become piracy if they are performed for private ends. 3This opens another door for mischievous characters that can attack aircraft and ships in the sea with political motives but pretend to be acting because of private end. Australian Piracy law The Australian definition of piracy otherwise called the Council for Security Cooperation in the Asia Pacific (CSCAP) definition also has its problems. The definition is not adequate and does not cover all areas that need to be explained. It also fails to provide important definitions for the terms used in the definition of the law itself (Keith 1929). It should be amended to include both civilian and military ships, the sailors and passengers on the ship, a facility in a port and cargo. It should touch on the purpose of the act by considering any attack as piracy if it is used as a platform for selfish political ends. It must therefore give definitions of all terms use comprehensively. It also fails to touch on smuggling of terrorists and terrorism equipment into nations from other states. These things should be clarified and if possible be categorized under piracy activities. Discussion and Back ground State of Piracy in International Law Interdependence and globalization have not been able to help international law to develop to a state where it can effectively tackle some problems via universal enforcement. Globalization works both for and against the efforts of controlling piracy. Transnational criminal networks have been set up by pirates to take advantage of the technological advancement achieved by nations in shipping. Piracy as a universal problem requires an approach that is also universal. 4Piracy is a problem affecting many if not all nations because pirates can attack any vessel without discrimination. Universal problems can only be addressed by international cooperation. Piracy as a problem has affected sea transport for all ages. By the 16th century piracy and the idea of exclusive jurisdictions was already there. However it did not solve the piracy problem for all time. Due to the state of piracy any country can attack and seize an aircraft or ship belonging to pirates either in the terra nullius or in the high seas . 5This goes hand in hand article 87 of part VII of the ‘Preamble to the United Nations Convention on the Law of the sea which give both coastal and landlocked countries the freedom for fishing, navigation and over flight in the high seas. The pirates should be arrested and taken to the courts of the state carrying out the operation. Their property should be seized and the state decides what to do with the aircraft, ship or property 6In international law piracy is treated differently because every state is given the jurisdiction and sovereignty with a lot of emphasis on its specific territory. 7This has brought some strength to the definition of piracy. However this is a point of weakness when it comes to transnational crime. Sovereignty is an impeding factor in the fight against piracy. The rule of law is also important in the war on piracy. Many countries have penal codes for cases of piracy but its enforcement has been a headache for some time.. International Definition of Piracy In article 101, “The United Nations Convention on the Law of the sea (UNCLOS) of 1982 defines Maritime piracy as 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)8 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 sub-paragraph (a) or (b).” United Nations (1983) Australian Definition of Piracy (“The Council for Security Cooperation in the Asia Pacific) (CSCAP) Working Group has offered an extensive definition for maritime terrorism: …the undertaking of terrorist acts and activities within the maritime environment, using or against vessels or fixed platforms at sea or in port, or against any one of their passengers or personnel, against coastal facilities or settlements including tourist resorts, port areas and port towns or cities . Adequacy of Definition Both the “United Nations Convention on the Law of the sea” and the Australian definition of piracy have some things that make the two definitions inadequate in one way or another. The United Nations Convention Law of the Sea definition does not consider piracy or criminal acts of detention and violence undertaken on ships within territorial waters as being piracy. 9So many of such acts are taking place today and criminals have capitalized on this to engage in crime. Cases of violence and detention are being carried out by criminals in the South East Asia coats every day. More of piracy-like acts have been witnessed on the East African coast especially on the Somalia coasts. Such cases are of the magnitude of piracy but according to the International Maritime Organization universally accepted definition they do not qualify as pirate cases. The United Nations Convention Law of the Sea definition considers acts of violence, detention and depredation done on ships and aircraft for private ends to be piracy. The purpose of the illegal acts being restricted to private ends makes the definition narrow. This is because pirates may act not for their own gain but because of hidden political motives. In this case they are treated as pirates when they are truly not. In a different dimension of the same, some territories might attack the aircraft or sea going vessels belonging to other states and pretend to be pirates .Politically motivated piracy can be done and in this case it will be considered to be piracy when in really sense it is not. Some pirates pretend to be navy officers or policemen on duty serving their countries. In such a case they demand attention from ships on transit. The sailors or ship crew are tempted to take them as navy officers only to find out that they were pirates. Article 102 in section VII of the Preamble to the UN convention on the Law of the sea states that “The acts of piracy, as defined in article 101, committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship or aircraft.” This article specifies that the crew of the non private ship must have mutinied. However mutiny should not be a condition here because piracy may occur without mutiny.10 On the other hand the definition given by the “The Council for Security Cooperation in the Asia Pacific (CSCAP)” has no explanation of what terrorism should be or what it is as per now. It leaves out this important aspect yet it can be used to negate illegal acts of terrorism carried out in piracy attacks .The explanation is important so that it can serve as a gauge for various criminal acts11. It also does not elaborate on whether it only considers piracy attacks done on civilian merchant ships or if it includes violence carried out on military air crafts. Piracy in the seas does not only involve ships. However the majority of cases involve passenger and cargo ships. 12This does not mean that there is absolutely no danger on aircraft. Some aircraft can be hijacked by pirates and violent acts perpetrated on the passengers, cargo or the air craft. The definition should be made clearer on this. It also does not include acts of smuggling of terrorists or materials to be used in terrorist attacks on ships and sea vessels from one state to another. 13This is loophole in the definition of the law and it needs attention. Piracy can be caused for both private and political ends. Some regimes, states or territorial governments may launch attacks on the ships of other states under the disguise of piracy. In such cases piracy related violence is carried out for political ends on a platform of normal piracy. 14The Australian definition does not contain these inclusions in its scope. Necessary Alterations This definition by “United Nations Convention Law of the Sea” needs to be altered because of the rising cases of violence against ships in the territorial waters of certain nations. It is the responsibility of every state to protect its waters against all acts of terrorism and violence including piracy. Those states with the power to do that are comfortably protecting their waters. However the problem comes in when there is instability in a country or when the country lacks a functional government like Somalia. A central government helps to form legislations or customary law which can govern the water in its jurisdiction. The government also ensures the proper enforcement of these laws. If this is lacking then the waters become porous and piracy activities can thrive very easily. 15It remains the responsibility of the international community to safeguard the waters of that nation for the sake of peace and safety of cargo, sailors and crew of ships patrolling in those waters. Article 100 of Part VII of the Preamble to the UN convention on the Law of the sea states that, “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.” This article needs to be amended to include places under the jurisdiction of states with an inability to safeguard their waters.16 Although the definition still remains the same on this aspect, the Somalia case prompted a quick action by the United Nations Security Council. In 2008 the Council passed five resolutions. ‘This was pursuant to Chapter VII of the UN Charter.’ It allowed the use of military force against threats to international security within Somalia waters. On 16th December the same year the resolution was broadened to include land based operations in the use of military force; (Security Council 6046th Meeting (PM), 2008). With the increase in shipping technology, piracy has also evolved with new tactics. This makes the work of individual states operating on customary law a hard one. It is therefore necessary to have the international community making concerted efforts to operate even in territorial waters in order to finish piracy. 17Poor nations with long coastlines should be made to allow their waters to be accessed by other navy forces only in anti-piracy operations. Organized international crime is not easy to suppress because of state sovereignty. Transnational piracy can therefore be hard to combat because rules of jurisdiction that is formalistic in nature. The United Nations Convention Law of the Sea definition should therefore be altered to include acts of violence taking place in territorial waters against ship and aircraft as piracy .Article 88 of this law states that “(The high seas shall be reserved for peaceful purposes).” This legislation needs to be extended to waters in the jurisdiction of the states as well.18 The issue of piracy being carried out for private purposes only for it to be considered to be piracy should be looked into. The reason for the violence or whatever act of terrorism has been committed should be investigated. The definition therefore should be broadened to include piracy carried out on purposes that are not in really sense private but are conducted in a private manner. Any attacks therefore launched on ships belonging to other countries by military personnel of other states with the wrong motives should be treated as piracy and handled accordingly in that manner. The “Council for Security Cooperation in Asia and Pacific” definition should also be altered to give a broader definition of piracy and include an explanation of the terms used in the definition. In the definition of piracy it should include a proper explanation of what terrorism is considered to be and the purpose for the act. It should also clarify if attacks on military crafts can be categorized as piracy or if only attacks on civilian and merchant sea vessels amount to piracy. The definition should also be broadened to include cases of materials and individuals associated with terrorism being illegally transported into the targeted territory. Terrorism acts that are politically motivated but are carried out with the mask of piracy should also be treated as piracy. The international law on piracy is the “United Nations Convention Law of the Sea” that has been adopted by the International Maritime Board. It is different in some aspects from the Australian definition which is also the definition developed by the “Council for Security Cooperation in Asia and Pacific.” These two definitions have a few things that are not clear and need to be clarified. Alterations therefore need to be made to accommodate broader meanings of terms.19 Unless this is done they will not be effective definitions on which policies governing international maritime crime can be based. The definition by the United Nations does not recognize detention, violence and acts of depredation carried out on ships and aircraft in waters of given territories as piracy. This is a loophole that should be sealed since a lot of these crimes are taking place outside of the high seas and within the jurisdiction of some states. 20The definition also categorically states that such criminal acts shall only be treated as piracy if they are carried out for private purpose. Piracy can be politically motivated but be performed under the disguise of private ends by passengers or crew of private vessels. Conclusion In conclusion the definition of piracy by the “Council for Security Cooperation in Asia and Pacific” which is also the definition for piracy adopted by Australia should also be altered. 21In its present form it mentions terrorism but does not define what terrorism is. It should be altered to provide the scope and comprehensive definition of terrorism. It also does not elaborate on whether it only considers piracy attacks done on civilian merchant ships or if it includes violence carried out on military air crafts as piracy. These things should also be clarified in the alterations. Finally this definition fails to include terrorist equipment and persons that may be smuggled form one state to the target nation. 22For there to be a total coverage of issues of piracy in that definition, amendments must be made to include this. This is because terrorism and piracy do not occur without the terrorists and their equipment being transported form one place to another and this in most cases occurs across borders .. Bibliography Duhaime, L,(1978)Legal Definition of Piracy Jure Gentium In re Piracy Jure Gentium, 1934 A.C. 586 Amazon Publishers. New York City. Keith, A (1929). Wheaton's Elements of International Law, London: Stevens and Sons, page 277. United Nations Convention on the Law of the Sea Wallace, R. and Holliday, (2006), International Law, 1st Ed. London: Sweet & Maxwell, Bateman, S.(1997) ‘Piracy and Maritime Terrorism’, Maritime Studies, no. 97. Cambridge University. Chalk, P. (1998).Contemporary Maritime Piracy in Southeast Asia’, Maritime Studies, no. 101 Under LOSC Article 101 (United Nations 1983). United Nations (1983). United Nations Convention on the Law of the Sea with Index and Final Act of the Third UN Conference on the Law of the Sea, United Nations, New York Fursdon, E. 1995, ‘Sea piracy – or maritime mugging?’, INTERSEC, vol. 5, no. 5 ICC Commercial Crime Services 1999, ‘Indian coastguards arrest hijacked freighter off Goa’, IMB Piracy Reporting Centre, CCS news archives, London, 16th November 1999, p. 1, www.iccwbo.org/ccs/news archives/1999, 16/10/2000. ICC Commercial Crime Services 2000, ‘Weekly Piracy Report, 17-23 October 2000’, pp. 1-2, IMB Piracy Reporting Centre, www.iccwbo.org/ccs/imb, 27/10/2000. Ivamy, E. (1976).Chalmers’ Marine Insurance Act 1906, Eighth Edition, Butterworth & Co, London. Letts, D (1999).Piracy: Some Questions of Definition & Jurisdiction’, Maritime Studies, no. 104, pp. 26-32. Mukundan, P (2000) Personal communications – letters sent to the author by Captain P. (Mukundan, Director of- the International Maritime Bureau, London (unpubl).) United Nations 1983, United Nations Convention on the Law of the Sea with Index and Final Act of the Third UN Conference on the Law of the Sea, United Nations, New York. Chalk, Peter 1998, Contemporary Maritime Piracy in Southeast Asia, Studies in Conflict & Terrorism, January–March 1998, Vol. 21 Issue 1 John S. Burnett. Dutton, 2003 Dangerous Waters, Modern Piracy and Terror on the High Seas, , Plume, 2003–2004, New York Maritime Piracy and Anti-Piracy Measures. By: Herrmann, Wilfried. Naval Forces, 2004, Vol. 25 Issue 2, p18-25, 6p Goodman, Timothy H. (1999) 'Leaving the Corsair's name to other times:' How to enforce the law of sea piracy in the 21st century through regional international agreements / Timothy H. Goodman In: Case Western Reserve Journal of International Law, vol.31 (Winter 1999) nr.1, P.: 139-168. Matthew Harvey, Piracy: High Seas, Violent Theft, and Private Ends, http://esvc000873.wic005u.server-web.com/docs/Harvey_paper.pdf, United Nations Conference on the Law of the Sea, Articles 26 to 48 and 61 to 65 of the Draft of the International Law Commission (A/3159), http://untreaty.un.org/cod/diplomaticconferences/lawofthesea-1958/docs/english/vol_IV/13_ANNEXES_2nd_Cttee_vol_IV_e.pdf United Nations Security Council, Security Council authorizes states to use land-based operations in Somalia, http://www.un.org/News/Press/docs/2008/sc9541.doc.htm Read More