New developments in the international law of piracy

Chinese Journal of International Law

Volumn 8, Issue 2, 2009, Pages 323-345

  Zou, Keyuan ^a  

^a UNIVERSITY OF CENTRAL LANCASHIRE   (United Kingdom)

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[No Author keywords available]

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EID: 68349087841     PISSN: 15401650     EISSN: 17469937     Source Type: Journal    
DOI: 10.1093/chinesejil/jmp006     Document Type: Article

References (89)

1. See Patricia W. Birnie, Piracy: Past, Present and Future, 11 Marine Policy (1987), 163.
2. Text is reprinted in Alfred Rubin, The Law of Piracy (Newport, RI: Naval War College Press, 1988), 362-369. Unlike the Act of 1536, which was also relevant to piracy, this law was specifically dealing with the suppression of piracy.
3. See Arts 14-21 of the Conventions on the High Seas, untreaty.un.org/ilc/ texts/instruments/ english/conventions/8-1-1958-high-seas.pdf (accessed 14 January 2009).
4. The Convention was adopted in 1982 and came into force in 1994. Text is reprinted in 21 ILM (1982), 1261.
5. Art. 100 of the LOS Convention provides 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".
6. Art. 105 of the LOS Convention provides that "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".
7. See Thomas A. Clingan, Jr, The Law of Piracy, in: Eric Ellen (ed.), Piracy at Sea (Paris: ICC Publishing, 1989), 170.
8. Art. 101 of the LOS Convention.
9. L.F.E. Goldie, Terrorism, Piracy and the Nyon Agreement, in: Yoram Dinstein (ed.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Dordrecht: Martinus Nijhoff, 1988), 227.
10. Personal communications dated 23 April 2008.
11. Natalino Ronzitti, The Law of the Sea and the Use of Force against Terrorist Activities, in N. Ronzitti (ed.), Maritime Terrorism and International Law (Dordrecht: Martinus Nijhoff, 1990), 1.
12. A different view holds that internal seizures could be piracy. See Samuel P. Menefee, Piracy, Terrorism, and the Insurgent Passenger: A Historical and Legal Perspective, in: Ronzitti (ed.), ibid., 60. In addition, it is acknowledged that even the internal seizure was not piracy in international law; it is still piracy under municipal law of the flag State.
13. See Alfred P. Rubin, Is Piracy Illegal?, 70 AJIL (1976), 95.
14. International Law Association, Piracy: Sea and Air, Report of the Fifty-fourth Conference, 23-29 August 1970, 708.
15. Max Mejia, Jr, and P.K. Mukherjee, Selected Issues of Law and Ergonomics in Maritime Security, 10 Journal of International Maritime Law (2004), 318.
16. See 2.2 of the Draft Code of Practice for the Investigation of Armed Robbery against Ships, in MSC Circ.984, 20 December 2000, www.imo.org/includes/ blastDataOnly.asp/ data-id%3D1880/984.pdf (accessed 12 March 2008).
17. For reference, see Art. 1 of the ReCAAP which provides that "(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 to: (i) on the high seas, against another ship, or against persons or property on board such ship; (ii) against a ship, 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)."
18. IMB-PRC, Piracy and Armed Robbery against Ships, Report for the Period of 1 January - 30 June 1998, Kuala Lumpur, 1 July 1998.
19. Jason Abbot and Neil Renwick, Pirates? Maritime Piracy and Societal Security in Southeast Asia, 11 Pacifica Review (1999), 11.
20. D. Rhidian Thomas, Insuring the Risk of Maritime Piracy, 10 Journal of International Maritime Law (2004), 358.
21. Thomas, ibid., 364.
22. According to Menefee, maritime terrorism refers to "any illegal act directed against ships, their passengers, cargo or crew, or against sea ports with the intent of directly or indirectly influencing a government or group of individuals". See Samuel Pyeatt Menefee, "Terrorism at Sea: The Historical Development of an International Legal Response", in: Brian A.H. Parritt (ed.), Violence at Sea (Paris, 1986), 192.
23. The US law defines "piracy" as "[a]ny act of piracy as defined by international law if the perpetrators are found in the United States; any act of murder, robbery, or hostility against the United States or against a United States citizen on the high seas, by a citizen of the United States; and acts by aliens against the United States or its citizens that are defined as piracy in the treaty between the nation that the individual is a citizen of and the United States". See United States Code, Title 18, 1651-1653; cited in Jack A. Gottschalk et al., Jolly Roger with an Uzi: The Rise and Treat of Modern Piracy (Annapolis, MD: Naval Institute Press, 2000), 34.
24. See "China Conducts Escorts in the Gulf of Aden Mission Area Independent of Foreign Command", military.people.com.cn/GB/42969/58519/ 8668187.html (accessed 16 January 2009).
25. See Art. 1 of the Convention. Text is reprinted in 15 ILM (1976), 1272.
26. See Art. 2 of the Convention. Text is reprinted in 10 ILM (1971), 256.
27. On 3 October 1985, a group of Palestinian guerrillas hijacked the Italian cruise ship Achille Lauro while it was in Egyptian territorial waters. The hijackers demanded the release of 50 Palestinians held in Israel in return for the release of the passengers. They ordered the ship to sail to Syria, which refused them port entry. The hijackers then on 8 October killed an American passenger. Several days later, the four hijackers gave themselves up to the Egyptian authorities. On 11 October, an Egyptian civilian aircraft was intercepted by US military aircraft over the Mediterranean Sea and instructed to land at an air base in Sicily. Four Palestinians on board were detained by the Italian authorities and subsequently indicted and convicted in Genoa for offences related to the hijacking of the ship and the death of the American passenger.
28. See, for example, "Oceans and Law of the Sea", Report of the Secretary-General, UN Doc. A/57/ 57, 7 March 2002, 27-29.
29. According to Art. 312 of the LOS Convention, after 10 years of its entry into force, any Contracting Party may propose specific amendments to the Convention and request the convening of a conference to consider such amendments.
30. Text is reprinted in 27 ILM (1988), 672.
31. At the same time, the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (the SUA Protocol) was also adopted, which contains similar provisions.
32. See "Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation", www.imo.org/home.asp (accessed 28 March 2005).
33. "Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988", http:// www.imo.org/Conventions/mainframe. asp?topic-id=259&doc-id=686review (accessed 26 October 2005).
34. Ibid.
35. Text is reprinted in 28 ILM (1989), 497. It came into force on 11 November 1990.
36. See Brad J. Kieserman, Preventing and Defeating Terrorism at Sea: Practical Considerations for Implementation of the Draft Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, in: Myron H. Nordquist, John N. Moore and Kuen-chen FU (eds), Recent Developments in the Law of the Sea and China (Leiden: Martinus Nijhoff, 2006), 433.
37. It entered into force on 29 September 2003, www.uncjin.org/Documents/ Conventions/dcatoc/final-documents-2/convention-eng.pdf (accessed 10 March 2008).
38. It entered into force on 11 December 2001, daccessdds.un.org/doc/UNDOC/ GEN/N95/274/ 67/PDF/N9527467.pdf?OpenElement (accessed 10 March 2008).
39. International Convention for the Safety of Life at Sea (SOLAS), 1974, www.imo.org/Conventions/contents.asp?topic-id=257&doc-id=647 (accessed 11 March 2008).
40. Ibid.
41. Ibid.
42. Ibid.
43. Ibid. For comments on the amendments, see Nilufer Oral, Terror at Sea: Detection and Prevention - The New International Ship and Port Facility Security Code and the Amended SOLAS Chapter XI-2, in: Myron H. Nordquist, John N. Moore and Kuen-chen FU (eds), above n.36, 335-349.
44. International Convention for the Safety of Life at Sea (SOLAS), 1974, http:// www.imo.org/ Conventions/contents.asp?topic-id=257&doc-id=647 (accessed 11 March 2008). It entered into force on 1 July 2006.
45. http:// www.recaap.org/about/pdf/ReCAAP%20Agreement.pdf (accessed 4 March 2008).
46. See "Singapore, Japan, Laos and Cambodia Take the Lead to Sign the Anti-Piracy Agreement", Lianhe Zaobao (Singapore), 29 April 2005.
47. It is regretted that two major Strait States Indonesia and Malaysia have not yet ratified the Agreement.
48. Art. 3 of the ReCAAP.
49. See Art. 10 of the ReCAAP.
50. See Art. 11 of the ReCAAP.
51. See Arts 12-13 of the ReCAAP.
52. See Art. 4 of the ReCAAP.
53. Art. 7 of the ReCAAP.
54. See Art. 14.2 of the ReCAAP.
55. As is reported, both China and South Korea agreed to provide the ISC with the respective amount of US50 000 and US100 000 annually for the ISC. See Cai Tianchen, ReCAAP Obtained 100,000 US Dollars from South Korea, Lianhe Zaobao (Singapore), 29 February 2008, www.zaobao.com.sg/sp/sp080229-540.shtml (accessed 29 February 2008).
56. A relevant meeting took place from 14 to 18 April 2008 in Dares Salaam. See UN Division for Ocean Affairs and the Law of the Sea, "Advance and unedited material on 'maritime security and safety' which will later be integrated into the Secretary-General's report on oceans and the law of the sea for the sixth-third session of the General Assembly and for the ninth meeting of the consultative process", 22 February 2008, 6, www.un.org/Depts/los/ consultative-process/ documents/maritime-security-and-safety.pdf (accessed 6 March 2008).
57. See Malcolm N. Shaw, International Law (6th edn, Cambridge: Cambridge University Press, 2008), 117-118. For further reference, see Hartmut Hillgenburg, A Fresh Look at Soft Law, 10 EJIL (1999), 499-515.
58. "Security Council urges action over piracy off Somalia", www.imo.org/TCD/mainframe.asp?topic-id1347 (accessed 11 March 2008).
59. UN Doc. S/RES/1816 (2008), 2 June 2008, daccessdds.un.org/doc/UNDOC/GEN/ N08/361/77/PDF/N0836177.pdf?OpenElement (accessed 30 October 2008).
60. See ibid.
61. See UN Doc. S/RES/1816 (2008).
62. Footnote added by the author. This refers to the Transitional Federal Government of Somalia.
63. See UN Doc. S/RES/1816 (2008).
64. Art. 25 of the UN Charter.
65. See Art. 43 of the UN Charter.
66. For details, see Zou Keyuan, Seeking Effectiveness for the Crackdown of Piracy at Sea, 59 Journal of International Affairs (2005), 117-134.
67. See "Singapore and Malaysia discussed air surveillance over the Malacca Straits", Liaohe Zaobao (in Chinese), 30 July 2005, www.zaobao.com/sp/sp050730-503.html (accessed 30 July 2005).
68. See "Singapore, Malaysia and Indonesia carry air patrol over the Malacca Straits from next month", Liaohe Zaobao (in Chinese), 3 August 2005, www.zaobao.com/sp/sp050803-501.html (accessed 3 August 2005).
69. Lu Caixia, The Building of the Changi Command and Control Centre Began Yesterday to Promote Maritime Security Cooperation, Lianhe Zaobao (Singapore), 28 March 2007, www.zaobao.com.sg/sp/sp070328-501-1.html (accessed 28 March 2007).
70. See "Singapore Statement on Enhancing Safety, Security and Environmental Protection in the Straits of Malacca and Singapore", IMO/SGP 1/4, 6 September 2007, 5.
71. See "New Counter-Piracy Task Force Established", 8 January 2009, www.navy.mil/search/ display.asp?story-id=41687 (accessed 20 January 2009).
72. See "Navy escorts 4 vessels off Somalia on day one", 7 January 2009, www.chinadaily.com.cn/ china/2009-01/07/content-7373037.htm (accessed 20 January 2009).
73. "Circular on the Matters concerning the Application of Chinese Vessels for Escort in the Gulf of Aden and Somali Sea Area", 24 December 2008, military.people.com.cn/GB/1076/142153/8638178.html (accessed 7 January 2009).
74. "Remarks by the President to the People of Poland, Wawel Royal Castle, Krakow, Poland, May 31, 2003", http:// www.whitehouse.gov/news/ releases/2003/05/20030531-3.html (accessed 29 October 2005) ("When weapons of mass destruction or their components are in transit, we must have the means and authority to seize them. So today I announce a new effort to fight proliferation called the Proliferation Security Initiative. The United States and a number of our close allies, including Poland, have begun working on new agreements to search planes and ships carrying suspect cargo and to seize illegal weapons or missile technologies. Over time, we will extend this partnership as broadly as possible to keep the world's most destructive weapons away from our shores and out of the hands of our common enemies.").
75. "Preventing MWD Proliferation", 26 September 2006, www.fco.gov.uk/Files/kfile/MOD-PSIMaritimeWorkshop-PressRelease.pdf (accessed 10 March 2008).
76. "Statement by the Press Secretary: Principles for the Proliferation Security Initiative", 4 September 2003, www.state.gov/t/np/rls/prsrl/23809. htm (accessed 29 October 2005).
77. See "Proliferation Security Initiative: Statement of Interdiction Principles", 4 September 2003, www.state.gov/t/np/rls/prsrl/23764.htm (accessed 29 October 2005).
78. As commented, "Article 110 is explicitly exhaustive of the bases for interdiction on the high seas and thus creates a significant legal stumbling block to any assertion of authority to interdict foreign ships and aircraft under the PSI". Daniel H. Joyner, The Proliferation Security Initiative: Nonpro-liferation, Counterproliferation, and International Law, 30 Yale JIL (2005), 534.
79. The other areas that Contracting Parties enjoy the right of boarding are transport of slave, illicit traffic in narcotic drugs, and unauthorized broadcasting. See Arts 99-109 of the LOS Convention. Besides, a warship with reasonable ground may visit a ship without nationality. See Art. 110 (1)(d) of the LOS Convention.
80. Timothy C. Perry, Blurring the Ocean Zones: The Effect of the Proliferation Security Initiative on the Customary International Law of the Sea, 37 Ocean Development and International Law (2006), 44.
81. Perry, ibid., 45.
82. See "U.S. Military Raises Profile Against Piracy Off Somalia", Associated Press, 1 November 2007, www.washingtonpost.com/wp-dyn/content/ article/2007/10/31/AR2007103102923.html (accessed 11 March 2008).
83. The oil tanker Petro Ranger was mysteriously missing in the South China Sea for several days and suddenly reappeared offshore the coast of the Hainan Island in China. It was proved later that the vessel was hijacked by a group of Indonesians in waters adjacent to Malaysia and Vietnam on 16 April 1998. The ship was identified and arrested by Chinese police while it was discharging its cargo into another tanker on 26 April 1998. After the initial investigation, the Chinese public security authority released the vessel and crew members two days later. According to China, it was evidential that the Petro Ranger was a smuggling vessel and dealt with as a smuggling case so that the gas oil and kerosene on board were confiscated. The hijackers were expelled from China due to the lack of clear evidence that they were pirates. China's undertaking not to punish the suspects of piracy was sharply criticized by IMB as well as the victim shipping company.
84. For example, an Indonesian court sentenced a band of hijackers to from only two to four years' imprisonment. See "Pirate attacks have tripled in a decade, IMB report finds", www.iccwbo. org/home/news-archives/2003/ stories/piracy-quarter-1.asp (accessed 19 July 2003).
85. For details, see Commodore R.S. Vasan, Alondra Rainbow Revisited. A Study of Related Issues in the Light of the Recent Judgment of Mumbai High Court, www.southasiaanalysis.org/ %5Cpapers14%5Cpaper1379.html (accessed 19 January 2009).
86. See "East Asian government must clamp down on piracy together", www.iccwbo.org/ccs/news-archives/2000/piracy-east-asia.asp (accessed 19 July 2003).
87. The Statute was adopted on 17 July 1998 and entered into force on 1 July 2002 when 60 States had become parties to it. As of March 2008, there have been 105 States joined the Statute, www.icc-cpi.int/library/about/officialjournal/ Rome-Statute-English.pdf (accessed 11 March 2008).
88. For details, see Arts 5-9 of the Rome Statute. In comparison, there are common and similar criminal elements contained both in the crime of piracy and in the crime against humanity such as murder, torture and rape.
89. For example, Denmark stated that "In the long term, there might be a need to examine the possibility of bringing suspected pirates before an international tribunal", and Egypt suggested establishing an ad hoc international court empowered by a Security Council resolution. See UN Doc. SC/9541, 16 December 2008, www.un.org/News/Press/docs/2008/sc9541.doc. htm(accessed 17 December 2008).