Maritime piracy and pirates: how does international law contrast them?

Piracy has become increasingly common over the past years, and the main origin of this phenomenon is due to failed States or States that somehow are about to fail: just think of Somalia and of piracy in the waters of the Horn of Africa. The main sources governing the issue of piracy in international law are the general customary international laws and the treaty laws. The main treaty law enacted in the past years for this purpose is the United Nations Convention on the Law of the Sea (UNCLOS), also known as Montego Bay Convention. This international agreement resulted from the third United Nations Conference on the Law of the Sea, which took place between 1973 and 1982, and that came into force in 1994. Though being widely reproductive of customary law, the UNCLOS also replaces the four Geneva Conventions on international maritime law of 1958. As of January 2015, 166 countries and the European Union have joined in the Convention, thus making it the main juridical codified tool for international maritime law.

The UNCLOS contemplates the issue of piracy under the Articles 100-110. The Convention reiterates that all warships, of all States, can fight maritime piracy in order to keep safe and free the high seas; this means that only governmental ships can accost and vanquish pirate ships, but not private ones. According to Art 100 of the UNCLOS, all world States must cooperate to suppress piracy in the high seas. Art 101 defines what is meant by piracy: an act of violence, kidnapping, or robbery committed for private purposes, never for political purposes, by a ship against another in the high seas. Thence, it is relevant to highlight that mutiny does not represent an act of piracy, because the latter requires at least two ships involved in the matter. Art 103 describes the features of a pirate ship: it is a ship under the rule of pirates, used for their villain purposes; accordingly, it can be seized and its crew arrested. Art 105 states to seize all assets of the pirates. However, Art 106 continues affirming that States must pay for all caused damages while seizing in case of mistaken ship identity or operational misunderstandings. Once again, Art 107 upholds that only warships or fighting aircrafts can attack and confiscate a pirate ship.

The IMO headquarters in London

Piracy is to be considered different from other international phenomena. It is different from terrorism because, unlike it, piracy never originates for political purposes. Moreover, it differs from the case of insurgents and national liberation movements because Third States must refrain from attacking their ships (only the legitimate State from which insurgents are struggling for secession or independence can militarily contrast their fleet), whereas all States can attack and seize a pirate ship. Finally, it also differs from the case of weapon smugglers.

Indeed all States agree to unite against piracy, cooperating both militarily and judicially.

In 2009, the International Maritime Organization (IMO), a specialized agency of the United Nations with 171 Member States and 3 Associate Members, adopted the so-called “Djibouti Code of Conduct” in order to contrast piracy following the principles of sharing information, intercepting distrustful vessels, insuring judicial trial for pirates, and shielding assailed vessels.

The logo of the EU NAVFOR, or "Operation Atalanta"

      

An example of international coordination for contrasting piracy is the EU NAVFOR. In fact, in 2008, the European Union decided to begin a naval military operation in the Horn of Africa to struggle against piracy. This operation, known as “Operation Atalanta”, or as European Union Naval Force Somalia (EU NAVFOR-ATALANTA), was started for the fulfillment of several UN Security Council’s Resolutions, including n. 1816 of 2008. The military operation undertaken by the European Union Naval Force is still taking place, fostering on patrolling the Gulf of Aden, a strategic crossroad for world maritime trade communications. The mission launched with a focus on protecting Somalia-bound merchant vessels and shipments belonging to several international organizations like the World Food Programme, as well as select other vulnerable shipments willing to bring food aid in Somalia. In addition, Operation Atalanta has been monitoring fishing activity on the regional seaboard. In 2012, the scope of the mission expanded to include Somali coastal territories and internal waters so as to co-ordinate counter-piracy operations with Somalia's Transitional Federal Government (TFG) and regional administrations. Operation Atalanta is part of a larger global action to prevent and combat acts of piracy in the Red Sea and the Indian Ocean. Indeed, it cooperates with the multinational Combined Task Force 151 of the US-led Combined Maritime Forces (CMF) and NATO's anti-terrorism Operation Ocean Shield.  

References:

A. Cassese, International Law, USA, Oxford University Press, 2001.