The resurgence of maritime piracy, which is defined by UNCLOS (art. 101) as an illegal act of violence, detention or depredation on the high seas committed for private ends by a private vessel against another vessel, has promoted a range of remedies to tackle it. Much of the international effort to face piracy has focused on prevention and prosecution at sea. As far as prevention activities are concerned, naval patrols act as deterrents, using their powers under international law to board vessels where piracy is suspected. In particular, against maritime piracy operate three main coalitions of forces (NATO, EUNAVFOR and the Coalition Maritime Forces) and representatives of states providing “independent deployers”, including China, India, Japan, Russia and others. However, navies cannot defend every ship and, hence, shipowners are increasingly turning to military or private armed security guards. They cannot board vessels and detain suspected pirates - since according to UNCLOS (art. 107) only warships or other ships clearly marked and identifiable as being on government service and authorized to that effect are entitled to seize on account of piracy -, but, on the other hand, they seem to be able to reduce the risk to the lives and well-being of those onboard the ship. In the light of the effective deterrent arising from the use of armed personnel – no ship with armed personnel on board has been hijacked – several countries, including Norway, Cyprus, Germany and Greece, are adopting measure to allow armed guards on board, and some other countries, such as France, Spain, Italy and the United Kingdom place military or private personnel on civilian ships. In this context, it is worthy to mention the well-known case of Italy concerning two soldiers of the Italian Navy employed under the newly introduced Italian Law no. 130/2011 and accused of killing two Indian fishermen off the coast of Kerala (India), which has drawn the attention of the public opinion upon the issues related to the enforcement of legal instruments providing the use of force at sea. Indeed, although a number of parties have welcomed these new anti-piracy measures, the use of maritime security poses a range of potentially serious challenges to have yet to be resolved. Firstly, the case of “Enrica Lexie” off the coast of India reminds the risk of increasing unreasonable use of violence at sea and the consequent abuse of human rights in breach of international law which requires to avoid the use of force as far as possible and, where force is inevitable, it must not go beyond what is reasonable and necessary in the circumstances. Secondly, a practical concern is that pirates might seek to match the augmented level of arms. Maritime piracy off the coast of Somalia has already become more cruel, and the more protected ships become, the more the hostility could escalate. Finally, another fear is that arming more ships might make non-guarded ships more vulnerable. The majority of ships still do not carry armed security on board. In some cases shipowners may calculate that the risk of having the vessel hijacked and possibly having to pay a ransom does not justify the expensive cost of hiring armed personnel. Prosecution of suspected pirates is another major issue. Under international law any country can prosecute piracy on the high seas. In particular, pursuant to UNCLOS (art. 105) where evidence of piracy is discovered, the government vessel may seize a pirate ship, arrest the persons responsible and seize property on board. However, in practice, only few prosecute pirates and release them without trial. Why? Although all states are expressly required by UNCLOS (art. 100) to cooperate to the fullest possible extent in the repression of international piracy and even if, as seen above, States are provided with considerable powers to do so, there are still several reasons preventing them from prosecuting suspected pirates. First of all, practical capacity, including courts, trained judges and particularly prison spaces is currently missing. Increasing Somalia’s capacity to prosecute suspected pirates is a main goal of international efforts, but notwithstanding this cooperation it will be many years before Somalia can deal with all suspects. Moreover, several states around Somalia, such as Kenya, Tanzania, Seychelles and, as from September 2012, Mauritius have agreed to prosecute suspected pirates, with international support; but capacity is still problematic. Secondly, even if the International Maritime Organisation has called upon all states to criminalize piracy under their domestic law, only a very few number of countries (e.g. Spain and Kenya) have updated their national legislations on maritime piracy. Thirdly, a political will is also often lacking in countries that might prosecute. For instance, Italy has brought only two Somali suspected pirates before the Italian court, even though the domestic shipping industry was significantly undermined by pirates’ attacks and Italian citizens have often been taken hostages. Finally, other matters include gathering sufficient evidence for prosecution, and human rights of suspected offenders (e.g. the rights related to the transfer of pirates from one country to another and the right to a fair trial). There is also the question of whether acting against the ‘foot soldiers’ is useful – can more be done to bring to court pirate leaders and financers? What possible solutions? Provide UNCLOS (art. 100) with more effectiveness and to do so more effort towards cooperation among those countries affected from piracy and among those in piracy-infested areas is desirable.
The UNCLOS: Overcoming Obstacles to Prevent and Prosecute Maritime Piracy
Giorgia Bevilacqua
2014
Abstract
The resurgence of maritime piracy, which is defined by UNCLOS (art. 101) as an illegal act of violence, detention or depredation on the high seas committed for private ends by a private vessel against another vessel, has promoted a range of remedies to tackle it. Much of the international effort to face piracy has focused on prevention and prosecution at sea. As far as prevention activities are concerned, naval patrols act as deterrents, using their powers under international law to board vessels where piracy is suspected. In particular, against maritime piracy operate three main coalitions of forces (NATO, EUNAVFOR and the Coalition Maritime Forces) and representatives of states providing “independent deployers”, including China, India, Japan, Russia and others. However, navies cannot defend every ship and, hence, shipowners are increasingly turning to military or private armed security guards. They cannot board vessels and detain suspected pirates - since according to UNCLOS (art. 107) only warships or other ships clearly marked and identifiable as being on government service and authorized to that effect are entitled to seize on account of piracy -, but, on the other hand, they seem to be able to reduce the risk to the lives and well-being of those onboard the ship. In the light of the effective deterrent arising from the use of armed personnel – no ship with armed personnel on board has been hijacked – several countries, including Norway, Cyprus, Germany and Greece, are adopting measure to allow armed guards on board, and some other countries, such as France, Spain, Italy and the United Kingdom place military or private personnel on civilian ships. In this context, it is worthy to mention the well-known case of Italy concerning two soldiers of the Italian Navy employed under the newly introduced Italian Law no. 130/2011 and accused of killing two Indian fishermen off the coast of Kerala (India), which has drawn the attention of the public opinion upon the issues related to the enforcement of legal instruments providing the use of force at sea. Indeed, although a number of parties have welcomed these new anti-piracy measures, the use of maritime security poses a range of potentially serious challenges to have yet to be resolved. Firstly, the case of “Enrica Lexie” off the coast of India reminds the risk of increasing unreasonable use of violence at sea and the consequent abuse of human rights in breach of international law which requires to avoid the use of force as far as possible and, where force is inevitable, it must not go beyond what is reasonable and necessary in the circumstances. Secondly, a practical concern is that pirates might seek to match the augmented level of arms. Maritime piracy off the coast of Somalia has already become more cruel, and the more protected ships become, the more the hostility could escalate. Finally, another fear is that arming more ships might make non-guarded ships more vulnerable. The majority of ships still do not carry armed security on board. In some cases shipowners may calculate that the risk of having the vessel hijacked and possibly having to pay a ransom does not justify the expensive cost of hiring armed personnel. Prosecution of suspected pirates is another major issue. Under international law any country can prosecute piracy on the high seas. In particular, pursuant to UNCLOS (art. 105) where evidence of piracy is discovered, the government vessel may seize a pirate ship, arrest the persons responsible and seize property on board. However, in practice, only few prosecute pirates and release them without trial. Why? Although all states are expressly required by UNCLOS (art. 100) to cooperate to the fullest possible extent in the repression of international piracy and even if, as seen above, States are provided with considerable powers to do so, there are still several reasons preventing them from prosecuting suspected pirates. First of all, practical capacity, including courts, trained judges and particularly prison spaces is currently missing. Increasing Somalia’s capacity to prosecute suspected pirates is a main goal of international efforts, but notwithstanding this cooperation it will be many years before Somalia can deal with all suspects. Moreover, several states around Somalia, such as Kenya, Tanzania, Seychelles and, as from September 2012, Mauritius have agreed to prosecute suspected pirates, with international support; but capacity is still problematic. Secondly, even if the International Maritime Organisation has called upon all states to criminalize piracy under their domestic law, only a very few number of countries (e.g. Spain and Kenya) have updated their national legislations on maritime piracy. Thirdly, a political will is also often lacking in countries that might prosecute. For instance, Italy has brought only two Somali suspected pirates before the Italian court, even though the domestic shipping industry was significantly undermined by pirates’ attacks and Italian citizens have often been taken hostages. Finally, other matters include gathering sufficient evidence for prosecution, and human rights of suspected offenders (e.g. the rights related to the transfer of pirates from one country to another and the right to a fair trial). There is also the question of whether acting against the ‘foot soldiers’ is useful – can more be done to bring to court pirate leaders and financers? What possible solutions? Provide UNCLOS (art. 100) with more effectiveness and to do so more effort towards cooperation among those countries affected from piracy and among those in piracy-infested areas is desirable.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
