Maritime Piracy

Robert Haywood, Roberta Spivak

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136504242
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Maritime Piracy is now a pressing global issue, and this work seeks to provide a concise and informative introduction to the area. Never truly having receded into a romanticized past, seaborne banditry's rapid growth was stimulated by low risks and increasingly high rewards. Currently, obsolete, incomplete and complicating structures and norms of governance, together with advances in technology, enable a lucrative business model for pirates, as they effectively operate with impunity and claim increasing ransoms.

Beginning with an overview and historical development of piracy and the relevant maritime governance structures, this work progresses to examine how 20th century shifts in global governance norms and structures eventually left the high seas open for predatory attacks on one of the worlds fastest growing and essential industries. Moving through contemporary debates about how to best combat piracy, the work concludes that the solution to a chronic global problem requires a long-term, holistic, and inclusive approach.

Examining militaristic, legalist and humanitarian strategies and offering a critical evaluation of the various problems they bring, this work will be of great interest to all students and scholars of international law, international organizations and maritime security.

1 Piracy

The nature of the problem

•	What is piracy, and what are pirates?
•	Modern piracy
•	Costs of piracy
•	Conclusion

When maritime piracy resurfaced as a front-page story, many readers greeted it with surprise and even derision. By the end of the twentieth century, piracy in the popular imagination was a romantic relic of the past, a view that had been the perception of the academic world for over a century. In an article on the law of piracy, published in 1874, A. T. Whatley remarked that there seemed “very little occasion for such a law.”¹ Although the shipping industry and those who ventured out to sea knew differently, most people believed that piracy had been stamped out in centuries past. But by the beginning of the twenty-first century, this notion was quickly disproven and modern piracy—violent, and often brutal—had roared back to life off the Horn of Africa, in the Strait of Malacca in Southeast Asia, and in the Gulf of Guinea off the coast of Nigeria. By 2011 it was a fact of modern life costing the global economy between $7 billion and $12 billion annually.² Its toll was not only economic but human and “in the first three months of 2011 alone, pirates murdered seven seafarers and injured 34.”³ In truth, piracy never did recede into a romanticized past. It has continually existed, “albeit on a low, sporadic, and opportunistic level, in some backwaters of the world’s oceans” from ancient times forward.⁴

This book attempts to explore the many facets of piracy that allow it to flourish in the modern world, from the new multinational face of global shipping to the evolving norms that affect potential solutions. As a first step, it is important to give a general overview of piracy, dispel the many misconceptions surrounding it, and address the basic questions: (1) what is piracy; (2) how does it operate in the modern world; and (3) what are the costs of piracy to society, local politics, and the environment?

What is piracy, and what are pirates?

Perhaps the most difficult question to answer is the most basic. What is piracy? The great historian Plutarch writing about 100 CE gave perhaps the oldest clear definition. He described pirates as those who attacked on sea and coastal land without legal authority. Plutarch’s definition gives us an early indication that it was not the behavior of the seaborne robbers that defined them as pirates but rather their relation with the existing authorities. Modern states’ relations with pirates are less complicated. States do not give pirates legal authority to rob others at sea or coastal land and therefore piracy is never seen as acceptable. States now view piracy as “predatory maritime activities”⁵ undertaken for personal (not political) gain. This was not always the case. As implied by Plutarch, states have taken different approaches to pirates historically. States’ views of pirates have historically fallen into three broad categories. They saw them as potential allies, enemies, or criminals. The distinction between allies and enemies reflects whether pirates were aiding or obstructing state interests. The distinction between labeling pirates as enemies or criminals reflected the changing opinion on how to treat them.

In the ancient world states considered pirates who worked against them as enemies who were in a perpetual state of war against the world. Yet by the early modern era, states began to view pirates as criminals to be dealt with by judicial means. This change in perception had to do in part with the development of legal norms and with the economic costs resulting from the instability of war.

Each perspective makes certain assumed demands on society to deal with the piracy in a particular way. If pirates are defined as criminals, then they are owed the same treatment as any other civilian criminal, including in most modern states due process under a fair and humane criminal justice system. If states define pirates as combatants or even privateers representing a sovereign, then the quite different “rules of war” apply. For example, a state may use lethal force against a combatant, or hold a combatant as a prisoner of war until the end of hostilities without the rules and requirements of evidence and judicial process that would be required by a criminal justice system.

The ancient, and until relatively recently the most common, approach to pirates was to view oceangoing robbers as enemy combatants engaged in military attacks against the state and its constituents. Ancient Romans used the term “hostis” or “enemy” rather than a word to denote a criminal to describe pirates. Although often given credit for it, Cicero never called pirates “hostis humani generis” or “enemies of all mankind,” but rather “communis hostis omnium” which means that pirates are “communities against all.”⁶ In Cicero’s interpretation pirates were not just individual seafarers engaged in robbery and depredation, but communities engaged in a war against all. The distinction is important because from the state’s perspective, Rome did not have to declare war against pirates—they were already engaged in a perpetual war against them.⁷ Pirates themselves responded to the states’ condemnation. In a famous story from Greek history, Alexander the Great asked a captured pirate “how he dares molest the sea.” The pirate replied, “How dare you molest the whole world? Because I do it with a little ship only, I am called a thief; you, doing it with a great navy, are called an Emperor.”⁸

Viewing pirates as combatants to be engaged with military force, has persisted throughout history. President Thomas Jefferson of the United States did not send the US Navy to Tripoli in 1802 to arrest Yusuf Karamanli, the Bey of Tripoli, but to seize all vessels and goods of the Bey of Tripoli and his subjects. Congress never voted on a formal declaration of war, but did pass a resolution that the President was “to cause to be done all such other acts of precaution or hostility as the state of war will justify.”⁹ However, as will be discussed later, changes in international law and human rights norms gradually made this approach to piracy less favored, and by the twentieth century it was not generally seen as an appropriate framing for piracy by Western states.

While ancient regimes generally regarded pirates as engaging in war, by the early modern era European sovereigns often sought out seafarers to engage in piratical acts on their behalf. “Privateering” as this practice was called, provided a less expensive way for nations to supplement their naval forces, and until the nineteenth century was a common activity. The English, Dutch, French, Venetians, Ottomans, Spanish, and Portuguese, among many others, all commissioned privateers, and there was an internationally recognized set of rules for privateers. ¹⁰,¹¹ Sailing under letters of marque, which gave them license to attack the enemies of the state, privateers worked for two causes at the same time—their own enrichment and the military aims of their sponsors. During the brief war of 1812, the United States issued more than five hundred letters of marque to privateers, who captured or sank more than seventeen hundred British ships.¹² It was a time when “national and individual interests could be pursued in tandem, and a fortune could be won while ostensibly serving the state.”¹³ Privateering was difficult to control, however, and in 1856 the major powers of Europe, excluding Spain, declared in the Declaration Respecting Maritime Law that “Privateering is, and remains, abolished.”¹⁴ The United States was not a signatory in 1856, but in 1907 it was party to the Hague Convention, which also banned privateering, although permitted private vessels to be used in time of war as warships if under the command of a naval officer.

Nevertheless, privateering is not necessarily a relic of history. Jardine Lloyd Thompson Group is proposing a “Convoy Escort Program,” to deal with Somali piracy in which they would develop a nonprofit company that would outfit a small number of armed patrol boats to escort ships in the Gulf of Aden. It is claimed that the scheme would be classed as a “flag naval company” under the maritime and criminal law of a still-to-be-decided flag state.¹⁵ Whether this arrangement—essentially licensing private citizens to engage in naval action against enemies of the state—will be seen as privateering, and how the signers of the Treaty of Paris or the Hague Convention will reconcile their citizens and companies being involved in such an operation are yet to be understood.

In general, however, states in the twenty-first century do not view pirates as enemies or allies but rather as criminals. As such they treat pirates with the tools and structures of the criminal justice system and not with the military force deployed against combatants. This new classification began with the legal writings of Italian jurist Alberico Gentili in the late sixteenth century, who linked the criminality of piracy to state sovereignty. In his writing, piracy committed under the authority of the state (as in privateering) was legal, while that done without such authority was illegal. The march to criminalization was also prompted by the evolution of ethical considerations, relevant to the perceptions of appropriate behavior in war. In earlier ages the prevailing view, as expressed by Thucydides speaking in the fifth century BCE, was that “to a king or commonwealth, nothing is unjust which is useful.”¹⁶ By the seventeenth century CE jurists began to advance a different notion—that even in war states should abide by certain laws to regulate conduct. One of the first codifications of this idea came from the Swedish king Gustavus Adolphus in 1618. The 167 entries in his Articles of War outlined legal behavior of soldiers in war. According to legal scholars Richard J. Goldstone and Adam M. Smith, these articles eventually led to the Hague and Geneva conventions that created the rules of war and the concept of war crimes and its corollary, international humanitarian law.¹⁷ If pirates were not military personnel as established in these conventions or otherwise under the jurisdiction of these conventions, then they must by default be subject to the proper civilian judicial process.

By the twentieth century, the global consensus was that those who commit predatory acts on the sea should be considered criminals. With the larger issue solved, legal scholars turned their attention to codifying the law. How to define piracy was a challenge that proved more difficult than many would have imagined. In 1932, the members of the Harvard Research in International Law project wrote about the inherent difficulties in coming up with a legal definition:

An investigation finds that instead of a single relatively simple problem, there are a series of difficult problems which have occasioned a great diversity of professional opinion. In studying the content of the (definition) article, it is useful to bear in mind the chaos of expert opinion as to what the law of nations includes, or should include, in piracy. There is no authoritative definition. Of the many definitions that have been proposed, most are inaccurate, both as to what they literally include and as to what they omit. Some are impromptu, rough descriptions of a typical piracy.¹⁸

The consequences of their inability to formulate a satisfying definition are discussed more in Chapter 6. For now it is important to note that the most authoritative legal definition of piracy can be found in the United Nations Convention on the Law of the Sea (UNCLOS) starting with Article 100. It is based almost entirely on the work of the Harvard Draft Convention and it defines piracy as having four elements: (1) piracy is “any illegal acts of violence or detention or depredation”¹⁹ at sea; (2) there must be two vessels involved (mutiny is not piracy); (3) the illegal act must be committed on the high seas—“outside the jurisdiction of any state”¹⁹; and (4) its aim must be for private and not political ends. It also declares “inciting or intentionally facilitating” an act of piracy is equivalent to piracy.²¹

UNCLOS also makes clear what is not defined as piracy under the treaty. According to UNCLOS any action committed by a state is not considered piracy. So, for instance, no matter what one may think of the May 2010 Israeli raid of the Gaza flotilla—a legitimate action of self-defense or a murderous attack on civilians—the fact is that according to international convention the Israeli action does not constitute piracy as some have suggested.²² Armed robberies occurring within the inland water or territorial seas of a state are also not defined as piracy according to UNCLOS. This makes it possible for Nigeria to claim that there is no piracy in Nigeria.²³ For those seafarers harmed in territorial waters this is a “distinction without a difference.”²⁴ There is rampant robbery and murder of fishermen and passengers on Lake Victoria, which is bordered by Kenya, Uganda, and Tanzania, but it is not acknowledged as piracy under local laws or international convention²⁵ because it occurs entirely on inland waters. UNCLOS does not prohibit states from defining acts of piracy within their interior waters and territorial seas, and some have, but many have not. The individual state definitions do not have to be consistent with UNCLOS. For example, contrary to the ...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• List of illustrations
• Foreword by the series editors
• Acknowledgments
• Abbreviations
• Introduction
• 1. Piracy: The nature of the problem
• 2. History
• 3. The nuts and bolts of twenty-first century maritime governance relevant to combating piracy1
• 4. Evolving norms and conventions
• 5. Current debates
• 6. Key gaps and criticisms
• 7. Emerging trends and future directions
• Notes
• Select bibliography
• Index