PIRACY JURE GENTIUM IN TERRITORIAL SEAS:
A PERSPECTIVE FROM THE EAST AFRICAN SEABOARD
Vishal Surbun
1
PIRACY JURE GENTIUM IN TERRITORIAL SEAS:
A PERSPECTIVE FROM THE EAST AFRICAN SEABOARD
A THESIS
Presented by
VISHAL SURBUN
LL.B., LL.M. (Maritime Law) (UKZN)
Attorney and Notary Public duly admitted to appear in the High Court of South Africa,
Academic: UKZN School of Law and Unit for Maritime Law and Maritime Studies
In partial fulfilment of the requirements for the degree of
DOCTOR OF PHILOSOPHY
MMXVIII
THE UNIVERSITY of KWAZULU-NATAL at HOWARD COLLEGE
School of Law and the Unit for Maritime Law and Maritime Studies
2
PRÉCIS
______
The brazen acts of Somali pirates against international shipping transiting through the Gulf
of Aden and around the Horn of Africa drew global media attention between 2006 and
2012. As a countermeasure, foreign and international naval resources were deployed to the
region in an attempt to interdict the perpetrators and prevent further acts, particularly
because Somalia possessed no capacity to police the waters adjacent to its coast. States are
granted universal jurisdiction over acts of piracy committed on the high seas or exclusive
economic zones of coastal states in terms of the United Nations Convention on the Law of
the Sea (UNCLOS).
However, the perpetrators often committed similar piratical attacks in the territorial sea or
found refuge in the territorial sea after descent from the high seas. The universal jurisdiction
conferred by UNCLOS on all states does not apply in the territorial sea, where the coastal
state exercise exclusive and sovereign jurisdiction. To circumvent this, the United Nations
Security Council passed a series of resolutions authorising foreign naval intervention in the
territorial sea. Some piratical acts could fall outside the geographical and temporal
limitations of the resolutions and the study accordingly proposes the need for a permanent
and binding universal enforcement regime which would extend into territorial seas in
specified circumstances. The study considers two approaches to achieve this.
The first approach suggests a modification of the UNCLOS provisions to extend the
universal enforcement jurisdiction granted under article 105 into territorial seas. The details
and procedure of such modification is set out in the study. However, it will be shown how
states are protective of their sovereign rights over their respective territorial sea and their
preference to maintain the current UNCLOS regime. Thus attempts to modify UNCLOS
would be adversely perceived by states as an erosion of sovereign rights and would be
unlikely to be adopted. A contribution of the study is to challenge this perception of states
regarding the erosion of their sovereign rights over the territorial sea. The study will reveal
through an exegesis and revisit of legal scholarship and juridical doctrine that the notion of
absolute and exclusive sovereignty is built upon a hollow historical foundations and there
is an evolving contemporary jurisprudence to suggest an erosion of traditional concepts of
maritime sovereignty.
The second approach turns to the east African seaboard and reveals from a continental
perspective that there is a movement away from these traditional notions of sovereignty in
the direction of the facilitation of international and regional cooperation, collaboration,
intervention and pooling of resources in respect of maritime security. Against this
background the second approach in this study proposes a model which is complementary
to the existing UNCLOS regime and has a permanent and wide geographical application.
Under this model, the role of the African Union to intervene in member states is
highlighted. The proposed model facilitates the exercise of universal enforcement
jurisdiction over piratical acts committed in the territorial sea by descent from the high seas
or exclusive economic zone. This special jurisdiction is exercised under specified
circumstances under the aegis of the African Union and through its institutional framework,
particularly the African Standby Force and Continental Early Warning System.
3
PROMOTER’S ENDORSEMENT
______
I, the undersigned, as the candidate’s promoter, endorse the submission of this thesis for
examination in candidacy for the degree of Doctor of Philosophy.
PAUL SWANEPOEL
LL.B (Natal), MA (Hons) (St. Andrews), MSc., Ph.D (Edinburgh)
Promoter
The proposal for this thesis was approved by the Faculty of Law Higher Degrees
Committee (FHDC) (quorum: Professors: Shannon Hoctor, Noël Zaal, Michael Kidd, Ed
Couzens, Tanya Woker and Mr. Christopher Schembri) and ethical clearance for this
project was granted by the Humanities and Social Sciences Research Ethics Committee
under protocol reference number: HSS/2002/016M (Dr. Shenuka Singh: Chair). Rule DR5
of the College of Law and Management Studies Handbook (2016).
DECLARATION
______
I, the undersigned declare in terms of rule DR9(a) of the College Handbook that:
1.
2.
3.
4.
5.
The research reported in this thesis, except where otherwise indicated, is my original
research.
This thesis has not been submitted for any degree or examination at any other
university.
This thesis does not contain other persons’ data, pictures, graphs or other
information, unless specifically acknowledged as being sourced from other persons.
This thesis does not contain other persons' writing, unless specifically acknowledged
as being sourced from other researchers. Where other written sources have been
quoted, then:
4.1
Their words have been re-written but the general information attributed to
them has been referenced
4.2
Where their exact words have been used, then their writing has been placed
inside quotation marks, and referenced.
This thesis does not contain text, graphics or tables copied and pasted from the
Internet, unless specifically acknowledged, and the source being detailed in the
thesis and in the References sections.
VISHAL SURBUN
Ph.D candidate
17 February 2017
4
ACKNOWLEDGMENTS
_____
॥ दु र्गम काज जर्त के जेते
सु र्म अनुग्रह तु म्हरे ते ते॥1
On a professional level, I wish to thank the following persons:
1.
2.
3.
4.
5.
6.
7.
8.
Dr. Paul Swanepoel, for serving as my promoter, for his infinite patience in waiting
to receive and review my chapter drafts and patiently commiserating with me
during the demanding and challenging moments of this doctoral process.
Prof. Ed Couzens (University of Sydney), for serving as a mentor during my first
years as an academic and for his support and encouragement during the initial
stages of this research.
Prof. John Hilton, who took a keen interest in the historical aspects of this study
and was ready to assist in translating certain Latin texts and posted me useful
materials from the University of Oxford.
Prof. Trevor Jones, who was kind enough to proof read the entire thesis.
Dr. David Barraclough, who edited the thesis at short notice.
Prof. Marita Carnelley, who, as Dean of Research facilitated a few writing retreats
in the midlands of KwaZulu-Natal and picturesque surroundings of the
Drakensberg foothills.
Mr. M.S. Omar who was my principal during my articles of clerkship during 20072008. He selected complex litigation cases for me to work on that required
extensive and innovative research and this formed a solid foundation in my
continuing development as an academic.
Mr. Timothy Walker of the Institute for Security Studies, who readily provided me
with documents and articles pertaining to the sections in this thesis covering the
work of the African Union.
I also wish to thank my friends and colleagues for their support:
9.
10.
11.
12.
Shivesh Haripersad, one of my best friends, is my confidant. I look up to him and
having his friendship and engaging conversations is one of my great treasures. He
always has the right words at the right moment.
My colleague, Franaaz Khan provided me with encouragement on a daily basis and
she motivated me as I made small strides from chapter to chapter. I consider myself
fortunate to walk into my office suite every morning to be greeted by her friendship
and kindness.
Divesh Baijnath has been my friend since we first met in primary school and he
has been kind enough to always enquire about my progress frequently even though
years had passed since I commenced the research for this project.
My colleagues in my office suite: Clydenia, Christopher, Willene and Devina; my
long-standing school friends: Rolen, Praven and Jerome; and my university
friends: Kirenkrishen, Rhea, Avikar, Navin and Ravind.
I save the last few words to mention my greatest strength in the form of my family:
13.
I attribute my modest achievements and station in life to the sacrifices and efforts
of those generations who have come before me. My paternal and maternal
grandfathers’ time was before mine and I did not have the gift of getting to know
them, but a handful of their books remained and were lovingly passed down to me
‘The burden of all difficult tasks of the world become possible with your grace’ Tulsidas Hanuman
Chalisa (c1632) at stanza 20.
1
5
by my parents. I read them in my childhood and they instilled in me a love of
learning and engaged my curiosity at an early age. I wish to preserve their names
on these pages in grateful remembrance:
Mr. Dhewnand Surbun (1910-1974) of Asherville, Durban
Mr. Sidoo Authar (1906-1984) of Richmond, KwaZulu-Natal.
14.
The support of my brothers, Irashan and Shamil has been unwavering and firm and
knowing this is a comforting assurance.
15.
There is a proverb in Sanskrit which states that your parents are your first teachers
and your first God. This saying has been true to me in so many ways. The warmth,
abundant love and consistent and constant support of my parents has lead me to
achieve everything I have sought in my life so far. Growing up and living in this
wholesome environment has created the conditions for me to prosper, to progress
in my studies and career and build my character. I love you both and this thesis is
dedicated to you with all my appreciation.
This endeavour in scholarship has been an ultra-marathon, requiring a consistent and steady
flow of research, thinking, writing and polishing. Although I have been fortunate to have
had the support of the people mentioned above, the writing of a thesis is ultimately a lonely
and challenging task that stretched the limits of endurance. My belief in God and following
sublime and practical life lessons from Swami Sivananda has empowered me with strength
and fortitude to undertake this process. Whilst the in-depth research undertaken here has
been rewarding and gratifying for me, it revealed how much I have yet to learn, to read and
discover. In that spirit, I look forward to continuing my pursuits as a lifelong learner.
Rishikesh, Himalayan province of Uttarakand, India
17 February 2017
Corrigenda:
Durban, KwaZulu-Natal
08 December 2017
6
REGISTER OF CONTENTS
______
Preliminaries:
Frontispiece
Précis
Promoter’s endorsement
Declaration
Acknowledgements
1
3
4
4
5
Contents of the chapters:
I
In Limine
13
I.
II.
13
18
18
26
26
27
27
III.
IV.
Opening remarks
Approach and motivation for the thesis
2.1
Primary aim
2.2
Secondary aim
2.3
Holistic approach
Parameters and methodology
3.1
Broad parameters
3.2
Conceptual parameters: the nature of piracy jure gentium and
the interface with municipal law: an excursus
3.3
Methodology
3.4
Development of the thesis
Architecture of the thesis
II
Acts of piracy on the east African seaboard (2006-2016): A brief statistical
Analysis
I.
II.
II.
Introduction
1.1
Prefatory
1.2
The east African seaboard and piracy
Enumerating incidents of piracy and armed robbery
Concluding remarks
III
Historical foundations of piracy law: a critical revisit
I.
II.
Introduction
1.1
Prefatory
1.2
Flow of the chapter
The pirate as hostis humani generis: the illegitimate enemy
2.1
Roman views
2.2
Seventeenth to nineteenth century view
2.2.1 Alberico Gentili
2.2.2 Hugo Grotius
2.2.3 Edward Coke
2.2.4 Charles Molloy
7
28
31
31
32
36
36
36
36
40
47
48
48
48
49
49
50
52
52
55
55
56
III.
IV.
V.
VI.
2.2.5 William Blackstone
2.2.6 Travers Twiss
2.2.7 Later usage
2.3
Evaluation
On the definition of piracy: early doctrines and cases
3.1
Early English jurisprudence
3.2
Nineteenth century English practice and jurisprudence
3.2.1 The Qawasim in the Persian Gulf
3.2.2 The Serhassan pirates
3.2.3 The Magellan pirates
3.2.4 The Kwok-A-Sing pirates
3.2.5 The battle of Pacacho and the Huascar incident
3.3
Nineteenth century American practice and jurisprudence
A penchant toward universal jurisdiction (UJ)
4.1
Prefatory
4.2
Bases of jurisdiction and the concept of UJ
4.3
Rationale for UJ in the case of piracy
4.3.1 Heinousness
4.3.2 De-nationalisation
4.3.3 Security of international commerce
4.4
Antecedents of state practise of UJ over piracy
4.5
Continued relevance of UJ
4.5.1 De-nationalisation
4.5.2 Instigation of international tension in diplomatic
relations
4.6
Summative remarks
The locus delicti of piracy: the realm of the high seas versus the
territorial sea
5.1
Prefatory
5.2
The concept of maritime sovereignty
5.3
Exposition of the work of jurists and publicists on the nature
and extent of the territorial sea
5.3.1 The battle of the books and the empire of the sea
5.3.2 The extent of the realm of the territorial sea
5.3.3 The juridical nature of the territorial sea
(i)
Essential nomenclature
(ii)
Diversity of opinions
(iii)
Dominium and imperium
(iv)
An early conception of the purpose of the
territorial sea
(v)
Theories on the juridical nature of the
territorial sea
(vi)
Modern trends in the twentieth and twentyFirst century
Concluding remarks
IV
The international framework: development and codification
I.
II.
Introduction
1.1
Prefatory
1.2
The current framework under UNCLOS
1.3
The narrow application of the UNCLOS regime
The high seas limitation
2.1
Distinguished from acts committed in the territorial sea
8
56
57
58
59
60
61
67
68
70
71
74
77
79
90
90
91
95
95
97
98
99
103
103
105
106
107
107
111
115
115
118
127
127
129
131
135
135
139
143
145
145
145
146
148
155
155
2.2
III.
IV.
V.
VI.
VII.
Developments in the limits of the breadth of the territorial
sea and its consequences
2.3
Presumption of state capacity in the territorial sea
2.4
Implication of the high seas limitation
2.5
The high seas limitation being dismissed as an area of
contention
2.6
Lack of progressive development on the high seas limitation
The League of Nations Codification Conference and the Matsuda
Report (1926)
3.1
Background
3.2
The Matsuda Report and key draft provisions
3.3
Responses to the draft provisions
3.4
Rejection
3.5
Summative remarks
The Harvard University Draft (1932)
4.1
Background
4.2
Holistic merits of the draft
4.3
Rationale of the drafters
4.4
Key provisions
4.5
Summative remarks
The work of the International Law Commission (1955-1956)
5.1
Background
5.2
The working drafts of the ILC
5.3
Culmination of the work of the ILC
The first United Nations Conference on the Law of the Sea (1958)
and the build up to UNCLOS (1982)
6.1
Convention on the High Seas of 1958
6.2
The United Nations Convention on the Law of the Seas, 1982
Concluding remarks and summary of key findings
V
Legal frameworks applicable to the east African seaboard
I.
II.
III.
Introduction
1.1
Prefatory
1.2
The flow of the chapter
International and regional frameworks
2.1
Effect of the resolutions of the Security Council of the
United Nations
2.1.1 The need for an additional enforcement remedy
2.1.2 Operative provisions of the UN SC resolutions
2.1.3 Limitations of the UN SC resolutions
2.1.4 Observations
2.2
The Djibouti Code of Conduct
2.2.1 Background
2.2.2 Key Provisions
Municipal frameworks: South Africa
3.1
Policy framework: background
3.2
Piracy and South African interests
3.3
Enforcement capability
3.4
Historical background of piracy and the law in South Africa:
An excursus
3.5
The present legal framework
3.5.1 Acts in South African territorial waters
9
156
157
158
159
163
165
165
166
170
171
171
172
172
172
174
176
179
180
180
180
184
187
187
189
190
194
194
194
194
196
196
196
198
201
203
206
207
208
210
210
212
215
219
223
224
3.5.2
IV.
V.
VI.
Acts on the high seas or places outside the jurisdiction
of South Africa
3.5.3 Acts in foreign territorial seas
3.6
Summative remarks
Municipal frameworks: Kenya
4.1
Kenyan jurisprudence
4.2
Summative remarks
African Continental framework
5.1
Prefatory
5.2
Antecedents of continental perspectives pertaining to the
law of the sea: a brief general survey
5.3
The contemporary work of the African Union and the
Salience of maritime security
5.3.1 Overview of the institutional framework of the AU
5.3.2 Recognition of maritime security
5.3.3 The piracy impetus and developments between 2009 to
2010
5.4
A bespoke maritime security framework
5.4.1 2050 African Integrated Maritime Security Strategy
5.4.2 African Charter on Maritime Security, Safety and
Development in Africa (Lomé Charter)
5.5
Observations
5.5.1 Holistic observations
5.5.2 Specific observations on the efforts of the AU
Pertaining to piracy and the case for the extension
of universal enforcement jurisdiction into territorial
waters
(i)
The case for foreign and international
intervention
(ii)
Compatibility with existing AU developing
jurisprudence and architecture
5.6
Evaluative and consolidatory remarks
Concluding remarks
225
227
228
228
228
233
234
234
234
240
241
246
249
255
255
259
262
262
266
266
271
276
278
VI
Recommendations and Conclusion
282
I.
II.
282
282
282
286
286
287
288
288
289
290
292
294
294
295
298
298
299
III.
IV.
Introduction
Summative assessment and submissions
2.1
Summative assessment of the chapters
2.2
Overview of the primary submission
2.3
Overview of the secondary submission
Primary submission: practical recommendations
3.1
Amendment of UNCLOS
3.2
Specific recommendations
3.2.1 Revision of article 100
3.2.2 Revision of article 101
3.2.3 Revision of article 105
3.3
Prognosis
3.3.1 Amendment procedure
3.3.2 Impact
Secondary submission: practical recommendations
4.1
General observations
4.2
Recommendations
10
4.2.1
V.
Intervention under the aegis of the African Union
Standby Force
(i)
Preface and milieu
(ii)
Recommended addition and commentary
4.2.2 Additional Annex to the Lomé Charter
4.2.3 Additional role of the Continental Early Warning
System
4.3
Benefits of the model
Parting remarks
299
299
303
307
310
313
314
Auxiliary material: Bibliography
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Inventory of International Instruments and Official documents
1.1
Conventions and Draft Conventions
1.2
United Nations General Assembly
1.3
United Nations Security Council
1.4
International Maritime Organisation
1.5
Organisation of African Unity and African Union
1.6
Official Reports and Travaux Preparatoires
Inventory of Regional Instruments
Register of Statutes
3.1
English Statutes
3.2
American Statutes
3.3
Kenyan Statutes
3.4
South African Statutes
Register of Cases
4.1
English cases
4.2
American cases
4.3
Kenyan cases
4.4
South African cases
Archival sources
Old authorities
Books
Book chapters
Journal articles
General Reports
Theses and dissertations
Media reports
Websites consulted
317
317
317
317
318
319
320
321
322
322
322
322
322
322
323
323
323
323
324
324
325
328
333
334
334
335
Auxiliary material: Register of Artefacts:
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
Select provisions of the United Nations Convention on the Law of the
Sea, 1982
Offences at Sea Act, 28 Henry VIII, c15 (1536) For pirates
Select provisions of the SUA Convention, 1988
Draft provisions for the Suppression of Piracy (Matsuda Report)
Harvard Research in International Law: Draft Convention on Piracy
Extracts from the Convention on the High Seas, Geneva
Extracts from the South African Defence Act, 2002
United Nations Security Council Resolution 1816 (2008)
Djibouti Code of Conduct, 2009
African Integrated Maritime Strategy (AIMS), 2014
African Charter on Maritime Security and Safety and Development
In Africa (Lomé Charter), 2016
11
338
340
342
343
345
349
351
356
360
375
399
To my parents
sine qua non
12
I
___________
IN LIMINE
I. OPENING REMARKS
Consider the following scenario:
A large container vessel departing from Italy is en route to her destination in
Tanzania. Her journey traverses the Red Sea into the Gulf of Aden and along
the Horn of Africa close to the coastline of Somalia. She is underway and has
logged a position of 25 nautical miles from the coastline, when the chief mate
on the container vessel spots a suspicious skiff approaching at a fast speed.
The skiff intercepts the container vessel – firing rocket-propelled grenades at
the container ship. Using ladders, the crew of the skiff, who appear to be
Somali nationals, are able to board the container vessel and forcibly take
command. They alter the course of the vessel and head landward within 10
nautical miles of the Somali coast. The chief mate issues a distress call, which
is received by a foreign naval vessel 50 nautical miles from the coast…
This scenario is a generic example of an act of piracy – many of which take place off the
coast of Somalia and along the east African seaboard. This scenario is drawn from hundreds
of recorded incidents which have occurred in the waters of this region during the relatively
short period between 2006 and 2012.2 The setting of this scenario, namely the waters off
the coast of Somalia and the Gulf of Aden, is located along a vital shipping route where the
coastal cities of Bosaso and Mogadishu have been confluences of lawlessness and
corruption resulting from a weak Transitional Federal Government (TFG) that is attempting
to reconstruct the country, which has borne the epithet ‘failed state’ since 1991.
The role of the foreign naval vessel in this scenario is a critical aspect of the research
problem for this thesis. The act committed by Somali nationals in this scenario would
amount to piracy as defined in article 101 of the United Nations Convention on the Law of
the Sea (UNCLOS).3 This voluminous convention contains a few articles setting out the
definition and enforcement regime to combat acts of piracy.4 In this scenario, article 100
2
These incidents are recorded in monthly and annual reports of the International Maritime
Organisation and the International Maritime Bureau’s Piracy Reporting Centre. See section 1.2 of
chapter 2.
3
United Nations Convention on the Law of the Sea, Montego Bay, December 10, 1982. UN Doc.
A/CONF. 62/122 (1982). Abbreviated in this thesis as ‘UNCLOS’. See section 1.2 of chapter 4.
4
These articles are annexed to this thesis et seq.
13
of UNCLOS creates a duty to cooperate in the repression of piracy, and, in fulfilling this
duty, the naval vessel – under article 105 of UNCLOS – would be able to seize the pirate
ship and the ship taken by piracy, arrest the persons, and seize the property on board.
Pursuant to this article, the courts of the state of the capturing naval vessel would be able
to exercise their domestic law and impose a penalty on the pirates. The article operates in
the absence of any nexus between the capturing state and the victims or pirates. It thus
provides for the exercise of universal jurisdiction.
Key to the UNCLOS provisions is the geographical restriction of its application. First,
article 101 defines piracy as an act committed in a specific juridical realm or zone,
described as the high seas (or the Exclusive Economic Zone [EEZ] or a place outside the
jurisdiction of any state).5 Second, article 105 provides for universal enforcement
jurisdiction only on the high seas or a place outside the jurisdiction of any state.6 To create
a context for the reader, the chart below sets out the different juridical zones entrenched
into customary international law by UNCLOS.
FIGURE 1: Chart depicting the zones formalised in the UNCLOS
Source: Royal Society of Chemistry7
One of the consequences of this geographical limitation8 in article 105 of UNCLOS is that
the exercise of enforcement measures pursuant thereto can only be exercised on the high
5
See article 101(a)(i) and (ii) of UNCLOS. This is read with article 58(2) of UNCLOS, which
includes the Exclusive Economic Zone.
6
This article is also read with article 58(2) of UNCLOS, which includes the Exclusive Economic
Zone.
7
Available at:
http://pubs.rsc.org/services/images/RSCpubs.ePlatform.Service.FreeContent.ImageService.svc/Im
ageService/Articleimage/2014/NP/c3np70123a/c3np70123a-f2_hi-res.gif
8
For convenience, this geographical limitation is referred to intermittently in this thesis as ‘the high
seas limitation’.
14
seas or the EEZ. In the above scenario, once the pirate skiff and the hijacked container
vessel enter the territorial sea of Somalia, the foreign naval vessel is precluded from
engaging in any enforcement measure pursuant to UNCLOS. Furthermore, any pursuit by
a foreign naval vessel commenced on the high seas must cease once the suspect vessel
being pursued enters the territorial waters of its own state or of a third state.9
The obligation to pursue and arrest the pirate suspects is then left exclusively to the coastal
state, which exercises exclusive jurisdiction within its territorial sea.10 However, this
becomes problematic when the coastal state does not have the capacity to police its
territorial sea, as in the case of Somalia.11 There are no exceptions to this rule under the
present international legal framework, in terms of allowing the foreign naval vessel to
interdict pirates within the territorial sea of another state.
The fact that the coastal state is left to its own devices to exercise enforcement and
adjudicatory jurisdiction exclusively in its territorial sea, has given rise to two lines of
jurisprudence for the same actus reus. The determining factor as to which law would apply
is the locus delicti: if the act is committed within the territorial sea of a coastal state, then
that coastal state would exercise exclusive jurisdiction and the act would be defined,
enforced, and adjudicated according to its municipal law.12 According to Dickinson, ‘piracy
by municipal law…comprehends as much or as little as the law-making authority of the
particular state may choose to make it, and pirates by municipal law are offenders only
against the law of the state concerned’.13 In this instance, the act could be labelled as piracy
under municipal law, or statutory piracy or any other offence such as armed robbery, assault
or hijacking. Where the act is committed on the high seas or in a place outside the
jurisdiction of the state, it would be classified as piracy under the law of nations or piracy
9
See article 111(3) of UNCLOS.
See Attard and Mallia ‘The High Seas’ in Attard (ed.) et al 1 The IMLI Manual of International
Maritime Law: The Law of the Sea (2014) at 259 where they note that: ‘the [International Law
Commission] believed that where the attack takes place within the territorial sea of a state, the
general rule should be applied that it is a matter for the affected state to take the necessary measures
for the repression of acts within its territory.’ See also ILC Report to the UNGA concerning the work
of its eighth session, par. 1(iv) at 282.
11
See Doby ‘Piracy Jure Gentium: The Jurisdictional Conflict of the High Seas and Territorial
Waters’ 41 Journal of Maritime Law and Commerce (2010) 561 at 562; Geiß and Petrig Piracy and
Armed Robbery at Sea (2011) at 138. See United Nations Security Council Resolution: S.C. Res.
1816, U.N. Doc. S/RES/1816 (2 June 2008), which noted: ‘the crisis situation in Somalia, and the
lack of capacity of the Transitional Federal Government (TFG) to interdict pirates or patrol and
secure either the international sea lanes off the coast of Somalia or Somalia’s territorial waters’. (7 th
preambular paragraph). See Surbun A Review of Developments in the Nature and Law of Maritime
Piracy Unpublished LL.M mini dissertation (University of KwaZulu-Natal) (2008) at 48.
12
See Dickinson ‘Is the crime of piracy obsolete?’ 38 Harvard Law Review (1925-6) 334 at 339.
13
Idem.
10
15
jure gentium. The view that concept of piracy jure gentium is reflected in UNCLOS is
adopted in this thesis.14 In turn, this Convention has acquired the force of customary
international law. According to the law of nations, enforcement jurisdiction is universal,
and all states may arrest and punish acts of piracy on the high seas – irrespective of the lack
of a jurisdictional nexus.15
Given the conundrum created by the exclusivity of coastal state jurisdiction over acts in
territorial waters and the circumstances of Somalia where domestic enforcement
jurisdiction suffers severe incapacity, it seemed most appropriate for the international
community to help strengthen the capacity of the TFG on land.16 Furthermore, in response
to growing incidents of piracy in 2010, there was a focus on presenting options to prosecute
and imprison persons responsible for acts of piracy.17 Statistics in the next chapter show
that incidents of piracy off the east African coast surged during 2006 and 2007 and reached
unprecedented levels from 2009 to 2011. Scholarship and commentaries on piracy peaked
during this period18 as novel scenarios arose, for example, on the legal implications and
regulation of private maritime security companies19 and prosecution of pirates captured by
third party states.20 This thesis, finalised in 2017, presents a useful temporal frame of
reference. The incidents of piracy could be analysed within a 10-year period. In the period
of review from 2006 to 2016, clear peaks and troughs can be seen in the statistics plotted
on a graph in the next chapter.
Attard and Mallia (2014) at 259 refer to: ‘the definition of piracy jure gentium in the UNCLOS...’
See Bingham ‘Harvard Research in International Law: Draft Convention on Piracy’ 26 American
Journal of International Law (1932) Supplement 743 at 749.
16
See ‘Report on the situation with respect to piracy and armed robbery at sea off the coast of
Somalia’ UN Doc. S/2016/843 (7 October 2016) at par. 66: ‘The ultimate solution to the problem of
piracy off the coast of Somalia lies in a stable and secure future for Somalia. As such, the piracy
problem must not be tackled in isolation, but rather as part of a well-coordinated, international
support package for the Federal Government of Somalia and the regional states to ensure, among
other things, a stable political transition in 2016, a stronger security sector and the creation of
economic opportunities, especially for young people and other vulnerable communities, with a key
emphasis on national ownership. The United Nations remains committed to supporting the efforts
to eliminate the threat of piracy off the coast of Somalia.’
17
See ‘Report of the Secretary-General on possible options to further the aim of prosecuting and
imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia,
including, in particular, options for creating special domestic chambers possibly with international
components, a regional tribunal or an international tribunal and corresponding imprisonment
arrangements, taking into account the work of the Contact Group on Piracy off the Coast of Somalia,
the existing practice in establishing international and mixed tribunals, and the time and resources
necessary to achieve and sustain substantive results.’ UN Doc. S/2010/394 (26 July 2010).
18
A perusal of the bibliography appended to this thesis demonstrates this trend.
19
See, for example: Pitney and Levin Private Anti-piracy Navies (2013).
20
Scharf et al Prosecuting Maritime Piracy (2015).
14
15
16
Enforcement measures based on universal jurisdiction seemed to be stonewalled by the
clear division between piracy jure gentium and piracy and armed robbery under municipal
law.21 This is a well-established and clear principle of law that conforms to the concept that
a state may not exercise its power in any form in the territory of another state.22 As a result,
this rigid distinction did not receive much probative analysis.23 However, the unique
circumstances of Somali piracy necessitated the adoption of a series of resolutions24 passed
by the United Nations Security Council, which inter alia allowed states cooperating with
the TFG to enter the territorial waters of Somalia and engage in enforcement jurisdiction
using the powers vested in UNCLOS. However, these resolutions were narrowly
constructed and contain various temporal and geographical restrictions. Their ad hoc and
sui generis nature was emphasised with the disclaimer that they should not be construed
and developed into a state practice which would eventually acquire the force of customary
international law. Furthermore, at regional level the need for enforcement measures in the
territorial seas of neighbouring states was recognised. As a result, the Djibouti Code of
Conduct and a trilateral agreement between South Africa, Tanzania and Mozambique were
concluded, with these considerations being one of their objectives.25 These measures
clearly demonstrated the need to exercise enforcement jurisdiction in territorial waters in
order to effectively suppress piracy. All of the above measures were predicated on consent
and cooperation, and were not permanent. Once these measures lapse and the resolutions
expire, the existing high seas limitation in UNCLOS would continue to prevail. Thus
subsequent isolated incidents like the one described in the above scenario would fall outside
the reach of universal jurisdiction and enforcement under UNCLOS.
Attard and Mallia (2014) at 270 note that: ‘[a] final maritime crime to be considered is armed
robbery against ships. The UNCLOS contemplates universal jurisdiction for the crime of piracy jure
gentium, a crime of such gravity that it is included among the few classical examples of norms
possessing jus cogens status. However, as is the case in other contemporary threats to maritime
security such a maritime migrant smuggling, this [UNCLOS] fails to provide for similar, equally
grave attacks on ships, thus creating a serious jurisdictional lacuna.’ See Surbun (2008) at 48.
22
See the Lotus case PCIJ series A no 10 at 18; see, also, Oppenheim International Law (1926) at
§277; Johnson ‘Piracy in Modern International Law’ 43 Transactions of the Grotius Society (1957)
63 at 71; see further for example, ICC IMB Piracy and Armed Robbery against ships, Annual
reports, where the IMB notes the restrictive locus element in the UNCLOS piracy definition, and
provides an alternative definition which includes acts committed in the territorial sea. Each report is
prefaced with a standard preambular comment stating that ‘the majority of attacks against ships take
place within the jurisdictions of States and piracy defined under [UNCLOS] does not address this
aspect’.
23
Other elements of the piracy definition contained in article 101, such as the motive of the pirate,
have received extensive academic commentary – particularly since maritime terrorism became a
concern.
24
Discussed in section 2.1 of chapter 5.
25
See section 2.1 of chapter 5.
21
17
II. APPROACH AND MOTIVATION FOR THE THESIS
As indicated above, for the purposes of this study, the high seas limitation manifests in two
ways in the UNCLOS provisions. The first is contained in article 101 which provides inter
alia the geographical area within which the actus reus must be committed. The second is
contained in article 105 which relates to the geographical area within which enforcement
jurisdiction can be exercised against perpetrators once the actus reus has been committed.
2.1
Primary aim
In light of the foregoing high seas limitation, the primary aim of this thesis is to challenge
the foundation of the distinction between acts of piracy on the high seas and armed robbery
in the territorial sea, in order to propose the extension of the enforcement regime provided
under UNCLOS to the territorial sea. In order to achieve this, the thesis proposes the
application of the concept of piracy jure genitum as reflected in UNCLOS, into the realm
of the territorial sea through a revision of article 105 (the enforcement provision dealing
with piracy in UNCLOS), which removes the high seas limitation from this enforcement
provision. This proposal will be made with certain caveats, which continue to recognise the
sovereignty of the coastal state over its territorial sea.
The enforcement provision relates to a specific actus reus set out in article 101, namely
‘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’.26 Thus, the
proposal to extend of the enforcement provision into territorial seas is not envisaged in
respect of other acts which may be regarded as criminal by the domestic law of respective
coastal states. Although there is no obstacle to the geographical areas in articles 101 and
105 differing in extent, it is submitted that a corresponding amendment of the definition of
piracy which removes the high seas limitation in certain restricted circumstances would
complement the main proposal to extend the enforcement provision into territorial seas.
The thesis will thus also proffer recommendations for the amendment of the definition
provision of UNCLOS. The outcomes of these proposals are to create a permanent
enforcement regime.
As seen above, the high seas limitation is solidified in the provisions articles 101 and 105
of UNCLOS. It is generally accepted, for example by the United Nations Security Council,
26
The actus reus is also inclusive of sub-paragraphs (b) and (c) of article 101.
18
that the suite of provisions contained in UNCLOS pertaining to piracy27 sets out the extant
legal framework applicable to combatting piracy and armed robbery at sea.28 It can be noted
at this stage that the assertion by the Security Council that UNCLOS sets out the framework
pertaining to combatting armed robbery at sea is, however, debatable because article 101
specifies a specific actus reus qualified by the high seas limitation in its provisions, which
are then read into articles 100 and 105. The same actus reus, when committed within the
limits of national jurisdiction is usually termed as armed robbery and regulated by
municipal legislation. That being said, the view that these articles reflect a codification of
piracy jure gentium and presents the position de lege lata is buttressed by the widespread
recognition of the codification process and the adoption of UNCLOS itself amongst states.
Harrison notes that:
‘It is possible to conclude that the process of negotiating the [UNCLOS] had
a substantial impact on the customary international law of the sea by forging
and crystallising a consensus on the general rules and principles that apply to
most uses of the oceans. Although the practice is not in rigorous conformity
with the substance of the Convention, there is nevertheless clear evidence that
states believe the Convention provides a repository of the prevailing rules and
principles.’29
However, as will be shown in the course of this thesis,30 these well-established piracy
provisions of UNCLOS in relation to the locus leave no room for a flexible interpretation
which would allow for the exercise of foreign or universal jurisdiction in the territorial sea.
UNCLOS is often seen as a carefully negotiated package deal and changes to the
framework thus need to be made with extensive and unanimous consultation.31 Given the
27
The relevant articles have been reproduced in the register of artefacts appended et seq.
See United Nations Security Council S/RES/1816 (2008) at preambular par. 4 which provides:
‘Affirming that international law, as reflected in the United Nations Convention on the Law of the
Sea of 10 December 1982 (“the Convention”), sets out the legal framework applicable to combating
piracy and armed robbery, as well as other ocean activities.’
29
Harrison Evolution of the law of the sea: developments in law-making in the wake of the 1982
Law of the Sea Convention PhD thesis (University of Edinburgh) (2007) at 68-69. Rothwell
describes UNCLOS as ‘a shining example of international cooperation, diplomacy and the role of
international law in the regulation of international affairs and is considered to be one of the most
complex and ultimately successful international diplomatic negotiations that took place in the
twentieth century.’ Rothwell ‘Oceans Management and the Law of the Sea in the Twenty-First
Century’ in Elferink and Rothwell (ed.) Oceans Management in the 21st Century: Institutional
Frameworks and Responses (2004) at 329. See generally Harrison Making the Law of the Sea: A
Study in the Development of International Law (2011).
30
See section 5.1 of chapter 3.
31
The amendment process set out in UNCLOS will be discussed in detail in the final chapter of this
thesis. Rothwell comments that ‘the law needs to be flexible and able to change to reflect new
28
19
restrictive consequences to universal enforcement jurisdiction due to the high seas
limitation demonstrated earlier in this chapter, it will be submitted that an appropriate or
logical course of remedial action would be to amend the UNCLOS provisions, as alluded
to above. The concluding chapter of this thesis presents specific recommendations on how
such amendments could be formulated and integrated into the existing framework.
However, it will be immediately recognised that the proposals advanced here could be
construed, without further probative analysis by states, as an encroachment on the
sovereignty which respective coastal states exercise over their territorial sea. This
sacrosanct approach to the concept of state sovereignty over the territorial sea is thus a
primary factor that would inhibit any proposal to extend a generic modification of
UNCLOS which would extend the ambit of enforcement jurisdiction into the territorial sea.
A prominent commentator on the law of the sea, Robin Churchill, expressed this
reservation:
‘If piracy could be committed in the territorial sea and was subject to universal
enforcement jurisdiction that applies to piracy committed on the high seas or
EEZ, it would cause potentially serious conflict with the rights and jurisdiction
of the coastal state.’32
The sovereign rights of the coastal state over its territorial sea are fully recognised and seen
as being sacrosanct. In the case of Somalia, the Security Council – before passing
resolutions authorising enforcement jurisdiction in the territorial sea – expressly reaffirmed
‘its respect for the sovereignty, territorial integrity, political independence and unity of
Somalia’.33
Consequently, any proposals to amend the UNCLOS provisions need to be accompanied
by a persuasive analysis or commentary. At the heart of this analysis would be an
interrogation of the source and development of the extent and juridical nature of the
territorial sea which is distinct from the realm of the high seas. In particular, unpacking the
concept of maritime sovereignty is essential. Writing in relation to sovereignty of African
states over their territorial waters and the creation of a blue economy and combined
exclusive maritime zone, Potgieter and Walker comment that:
circumstances whether it be increased national sovereignty, greater environmental protection, or
enhanced global security.’ Elferink and Rothwell (ed.) (2004) at 350.
32
Churchill ‘The Piracy provisions of the UN Convention on the Law of the Sea – Fit for Purpose?’
in Koutrakos and Skordas The Law and Practice of Piracy at Sea (2015) at 22.
33
U.N. Doc. S/RES/1816 (2 June 2008).
20
‘This is where maritime security requires a thorough grounding in debates
over African sovereignty, and possible means of transcending or innovating
existing concepts, norms and expectations.’34
In a similar conceptual approach, a major path of this thesis is an attempt to provide such
a grounding of historical debates in both scholarship and juridical doctrine relating to the
key concepts of the territorial sea and maritime sovereignty versus the high seas and
universal jurisdiction. Although acts of piracy have been committed for centuries and well
documented across multiple disciplines, the unique situation engendering a lack of capacity
to exercise enforcement jurisdiction in the waters off the coast of east Africa and the
political situation in Somalia presents new facets of piracy that did not manifest during the
period of the UNCLOS conferences and codification processes of the twentieth century.
The jurisprudence pertaining to piracy instead developed for centuries prior to codification
through the prism and influence of colonial powers. Capacity to suppress piracy was not a
perpetual shortcoming because the naval resources of these various colonial powers
ensured the effective suppression of piracy wherever it manifested leading to a dormancy
of piracy towards the end of the nineteenth century and well into the first half of the
twentieth century.
Also, during this period, the penchant towards sovereignty over the territorial sea was
already well-established and it featured in the codification process in the twentieth century.
It is therefore not surprising that when the Security Council passed resolutions authorising
enforcement jurisdiction within the territorial waters of Somalia, some states were quick to
revert and reaffirm the traditional respect for the sovereignty and territorial integrity of
coastal states over their respective territorial seas. Given that the particular circumstances
and consequences of piracy off the east African seaboard has only manifested over the past
decade and subsequently declined significantly in recent years, widespread state practice
evidencing changing norms and attitudes in this regard has not developed significantly to
enable an analysis here. That fact on its own ought not to dismiss a revisit of the debates
alluded to above. Indeed, the thesis will show, particularly from an African continental
perspective, that there are growing signs of a trend in the direction of rethinking the concept
of maritime sovereignty. This would have a direct impact on the proposal to extend
universal enforcement jurisdiction into territorial seas.
Potgieter and Walker ‘The 2050 African Integrated Maritime Strategy (AIMS): Content and
Progress’ in Vreÿ and Mandrup Towards Good Order at Sea: African Experiences (2015) at 110.
34
21
Thus to begin this grounding of debates it will be shown in the course of this thesis that the
distinction between piracy jure gentium and piracy (or armed robbery, robbery, hijacking,
theft, assault) as defined under municipal law, is based on two well established
assumptions, namely:
(i)
Responsibility for combating piracy35 in the territorial sea and the exercise of
enforcement and adjudicatory jurisdiction, lies with the coastal state;36 and
(ii)
There is an underlying concept of respect for the sovereignty of the coastal state
over its adjacent waters.37
These two assumptions are not inconsistent with the extant UNCLOS piracy provisions,
however they can be challenged because (i) the first assumption above is based on a
presumption of state capacity which in the case of Somalia has been largely ineffective
during most of the period under review, and (ii) the second assumption of an absolute
deference to the sovereign rights of the coastal state over the territorial waters is based on
a hollow historical foundation – with contemporary trends on sovereignty eroding
traditional views of sovereignty.
A core approach in the primary aim of this thesis is to challenge the second assumption
above that promotes the predominant adherence to absolute and exclusive sovereignty over
the realm of the territorial sea which prohibits the reach of enforcement measures through
the exercise of universal jurisdiction under UNCLOS. Although the adherence to exclusive
sovereignty over the realm of the territorial sea is viewed as a traditional and longstanding
right of states, the arguments highlighted below point to a hollow foundation. This
challenge is founded on the following grounds, which the contents of this thesis will
support:
2.1.1
It is submitted that some of the features which ought to underscore the concept of
exclusive state sovereignty over the territorial sea are clearly defined boundaries
and universally accepted limits of the breadth of the territorial sea. Having defined
boundaries or knowledge of the breadth of the territorial sea, states could then
facilitate the exercise of imperium over the territorial sea. Today, these limits are
clearly laid out in the framework of UNCLOS. Under this framework, if a vessel
35
As may be defined in the municipal law of the respective coastal state.
See section 2.1 of chapter 4.
37
See section 2.1 of chapter 4, and Haywood and Spivak Maritime Piracy (2012) at 95.
36
22
is hijacked 13 nautical miles from the baseline38 along the coast, such an act would
constitute piracy and exposes the pirates to the reach of universal jurisdiction.
However, if the same act of hijacking occurs within 11 nautical miles from the
baseline along the coast, this would fall within the territorial sea of the coastal
state.39 Based on this, a difference of a few nautical miles can enlist the application
of a completely different juridical realm. Thus the locus of the piratical act is a
crucial factor in determining jurisdiction. However, this is in stark contrast to the
position prior to the adoption of UNCLOS because extent of the realm of the
territorial seas was not settled in law until the codification in UNCLOS. Prior to
adoption of the rigid 12 nautical mile limit of the breadth of the territorial sea
specified in the UNCLOS, it will be shown that the realm of the territorial sea was
never codified, nor was there unanimity of academic opinion.40 The thesis surveys
the writings of influential commentators and jurists and the varying opinions in
order to demonstrate this lack of clarity on the extent of the realm of the territorial
sea – which persisted from the Seventeenth Century to well into the mid Twentieth
Century during the second United Nations Conference on the Law of the Sea.
Accordingly, this is the first factor which points adversely to a long established
tradition of exclusive state sovereignty.
2.1.2
Secondly, when states historically exercised enforcement jurisdiction under its
respective municipal law to interdict pirates41 prior to the adoption of the special
distribution of jurisdictions created by the UNCLOS regime, they ought to have
taken cognisance of the distinction between the high seas and the territorial sea and
the extent of the exercise of enforcement jurisdiction over such realms. This
distinction ought to have been particularly prominent in light of the developing
jurisprudence on the extent of the territorial sea.42 However, the reference to the
‘high seas’ or ‘open seas’ in cases such as R v Dawson,43 Serhassan pirates,44 the
Magellan pirates45 and People v Lol-lo and Saraw,46 concludes in general and
superficial terms that the high seas would be synonymous with the entire realm of
38
For a description of a baseline, see article 5 of UNCLOS.
Assuming that the coastal state has claimed a territorial sea of that breadth under article 3 of
UNCLOS.
40
Azuni The maritime law of Europe (1806) at 196.
41
See the excursus in section 3.2 below dealing with the nature of piracy jure gentium and the
interface with municipal law.
42
Discussed in detail in section 5.3.2 of chapter 5.
43
See sections 3.1 and 4.4 of chapter 3.
44
See section 3.2.2 of chapter 3.
45
Idem.
46
See section 4.4 of chapter 3.
39
23
the ocean – up to and including port areas, rivers and creeks. This is the second
factor which points adversely to a long established tradition of exclusive state
sovereignty.
2.1.3
Concurrent with the debate relating to the extent of the territorial sea, is a further
debate on the juridical nature of the territorial sea. Sovereignty is not defined in
UNCLOS, however, it has been described as ‘the fullness of rights, only subject to
a certain number of limitations determined by public international law’.47
Oppenheim comments that ‘no unanimity exists as to the nature of the jurisdiction
of the littoral States’.48 The thesis undertakes a further survey to unpack the
juridical nature of the territorial sea, which entails an understanding of ownership,
control, authority and possession.49 This entails a revisit of the concept of
dominium and imperium and the distinction between these two concepts, followed
by surveying theories on the juridical nature of the territorial sea. These include
the property theory, police theory, conservation theory, competence theory and
servitude theory, which all point to restrictions and limitations of differing intensity
on the reach of the state’s sovereignty over its territorial sea. The right of innocent
passage across the territorial sea by foreign ships has often been cited as the
quintessential limitation of the rights of the territorial sovereign. By amending the
enforcement regime in UNCLOS, the concerns raised about infringing the
territorial integrity could be challenged by reference to these historical restrictions
of state control, unique to maritime territory.50 These historical limits of the depth
of state sovereignty have not been invoked in any discussion criticising the concern
of a lack of a universal enforcement regime in territorial waters.51
2.1.4
With the grounds set out in 2.1.1, 2.1.2 and 2.1.3 above, founded primarily in the
varying opinions and commentaries of jurists and publicists and a few scattered
precedents, the thesis discusses attempts at codification in the Twentieth Century.
These commenced with efforts by the International Law Commission (ILC),
Harvard University Research in International Law, the Geneva Convention on the
High Seas, and the third United Nations Conference on the Law of the Sea. This
Verzijl International Law in Historical Perspective 3 (1970) at 53, cited in Vrancken ‘The Marine
Component of the South African Territory’ 127 South African Law Journal (2010) 207 at 211. See,
also, section 5.3.3 of chapter 3.
48
Lauterpacht (ed) 1 International Law: A treatise by L. Oppenheim (1955) at 487.
49
See section 5.3.3 of chapter 3.
50
See Vrancken (2010) at 209.
51
See, for example, Churchill (2015) at 21-28.
47
24
analysis is undertaken to identify any codification attempts that extended foreign
jurisdiction into territorial waters, and looked both at the actual text of the
instruments and the travaux preparatoires. It will be shown that this issue was
raised in all the codification efforts, and some codification attempts like the draft
convention prepared by the Harvard Research in International Law included
enforcement jurisdiction in the form of ‘reverse hot pursuit’ by a foreign naval
vessel from the high seas into the territorial waters of the coastal state. It will
further be shown that these concerns and draft provisions were simply excluded in
later codification attempts, and disappeared completely in the final UNCLOS text.
Two explanations for this are offered: first it was recognised at the time of these
codification attempts that piracy was primarily a historical curiosity and that very
few incidents occurred which demanded international attention, and drafters even
doubted whether any provisions pertaining to piracy should be included in the draft
conventions. Second, the unique circumstances of Somali piracy were not
envisaged during these codification attempts, because the areas where piracy
flourished were ultimately quelled by colonial powers with extensive naval
capacity to suppress piracy.
2.1.5
Turning towards contemporary grounds, it will be shown that there is a need to
consider the notion of sovereignty through the prism of contemporary challenges,
and in relation to modern conceptions of the political system. Brus notes how states
initially ‘entered the international stage, endowed with full external sovereign
powers, without having sufficient capacity for internal self-government’.52 The
case of merchant vessels transiting the east African seaboard, and being exposed
to the risk of piracy arising from states without such capacity, shows how such
capacity or the lack thereof can have a global effect and a consequence on
international trade. Ferreira-Snyman notes that this interdependence of states thus
questions the traditional definition of sovereignty as an absolute concept of
unlimited freedom and authority.53 This has also given rise to growing trends
towards cooperation amongst states, and this is demonstrated in cooperation
agreements at a regional level aimed at combatting piracy.54 These cooperation
agreements authorise the entry of foreign navies who are parties to the agreement,
to the territorial waters of other state parties in order to suppress piracy. Other
Brus ‘Bridging the Gap between State Sovereignty and International Governance: The Authority
of Law’ in Kreijen (ed) State, Sovereignty, and International Governance (2002) at 8.
53
Ferreira-Snyman ‘The evolution of State sovereignty: A historical overview’ 12 Fundamina
(2006) 1 at 17-18.
54
Chapter 5 will discuss the Djibouti Code of Conduct and the Africa Integrated Maritime Strategy.
52
25
regional instruments like the Africa Integrated Maritime Strategy, propose
concepts such as a combined EEZ, which can be interpreted as illustrating a
growing trend toward interconnectedness and eroding traditional formal
boundaries.
2.2
Secondary aim
The primary aim analyses both historical and contemporary jurisprudence to support a
modification of the UNCLOS regime. The secondary aim of the thesis is to consider
whether a model that provides for universal enforcement jurisdiction could be formulated
that would complement the existing UNCLOS regime instead of modifying it. Given that
the thesis is contextualised against incidents of piracy along the east African seaboard, it is
submitted that such a model could be formulated within the institutional framework of the
African Union (AU). Under this framework, the model could achieve its widest
geographical application and endure as a permanent feature of the continental response to
piracy along its coasts, particularly the east African seaboard.
In traversing in detail the work of the AU and instruments such as the Africa Integrated
Maritime Strategy and the Lomé Charter, it will be shown that universal enforcement
jurisdiction can be compatible with AU jurisprudence. To practically formulate this model,
proposals will be made to integrate foreign naval interdiction in territorial waters of AU
member states using the AU principle of intervention enshrined in its Constitutive Act and
through AU structures such as the African Standby Force and Continental Early Warning
System.
2.3
Holistic approach
This approach of this thesis is thus a synthesis of historical jurisprudence and contemporary
practices and views.55 Much of the prevailing scholarship focuses on a myriad of issues
surrounding contemporary Somali piracy – including naval countermeasures,56 domestic
Dubner in The law of international sea piracy (1980) at 9, commented that ‘[a]lthough the
problems regarding piracy have been transpiring for centuries, the analysis contained in the literature
is somewhat dated and illustrates a lack of interest and creative thinking. There are a few articles
that discuss the history of piracy with a view to setting forth approaches to current problems’.
56
See, generally, Geiß and Petrig Piracy and armed robbery at sea: The legal framework for
counter-piracy operations at sea (2011) at 17-36; Pedone and Hart Piracy in comparative
perspective (2012) at 201-310.
55
26
responses,57 the interface between maritime piracy and maritime terrorism,58 and
prosecutions and transfer agreements.59 Similar considerations are also examined in the
work of the United Nations.60 The issue of the locus of piracy and the proposal to extend
the unique universal jurisdiction provisions into the realm of the territorial sea, have never
been closely examined given the rigid notions of sovereignty. This thesis challenges this
bedrock of sovereignty in the light of the limitations of the piracy regime in UNCLOS, by
synthesising the historical development of the law of the sea, piracy jurisprudence, and the
effect of contemporary cooperative agreements. Using the above grounds of argument, the
thesis will conclude by providing a practical suggestion to a largely academic debate and
ventures to propose amendments to the UNCLOS provisions dealing with piracy and lastly
to present alternative complementary proposals for universal enforcement jurisdiction
under the aegis of the AU.
III. PARAMETERS & METHODOLOGY
3.1
Broad parameters
The narrow focus of this thesis to the locus of piracy is still shrouded in much diversity of
academic opinion, a paucity of judicial precedent on universal jurisdiction,61 and until the
mid Twentieth Century it was not contained in any codification. The few judicial
precedents discussed were scattered across various national forums and had differing
persuasive value. That said, the survey in this thesis highlights principal authorities and key
commentators in order to confirm the grounds of the argument set out above.
Piracy has occurred at many places across the globe. However, the discussion in this thesis
is contextualised to the incidence of piracy off the coast of Somalia and the East African
seaboard – particularly between 2006 and 2016 when peaks in the incidents of piracy in the
region at intervals during this period became evident.62
57
See, for example, Murdoch ‘Piracy and the UK’ in Koutrakos and Skordas (2015) at 207-224;
Rahman ‘The international politics of combating piracy in Southeast Asia’ in Lehr (ed) Violence at
sea: Piracy in the age of global terrorism (2007) at 183-198.
58
See, for example, Banloaoi ‘The Abu Sayyaf Group: The threat of Maritime Piracy and Terrorism’
in Lehr (2007) at 121-138.
59
See, generally, Scharf and Sterio Prosecuting Maritime Piracy (2015).
60
See, for example,‘Report on the situation with respect to piracy and armed robbery at sea off the
coast of Somalia’ UN Doc. S/2016/843 (7 October 2016)
61
See Rubin The law of piracy (1988) at 302.
62
As at 1 November 2016.
27
3.2
Conceptual parameters: the nature of piracy jure gentium and the interface
with municipal law: an excursus
As can be seen above, the historical analysis undertaken in this thesis traverses and
intersects both international law and municipal law. Conceptually, the nature of piracy
within the framework of international law and the various systems of municipal law
requires some comment at this stage.
Piracy jure gentium has been traditionally viewed through the prism of international
criminal law. Schwarzenberger wrote an influential article in 1950 in which he challenged
the understanding of the concept of ‘international criminal law’. In general, he contended
that ‘[i]t would be unduly optimistic to assume that ‘International Criminal Law’ has now
been established unequivocally as a technical term’.63 He found that there were six
traditional meanings of international criminal law. One of these meanings attributes
international criminal law as ‘internationally authorised municipal criminal law’.64 In this
particular meaning, piracy jure gentium was adduced as ‘evidence par excellence of the
existence of international criminal law’.65
Piracy jure gentium is often considered to be reflected or alternatively codified in the
UNCLOS piracy provisions66 and the legislative antecedents of UNCLOS embodied in the
work of the Harvard University scholars in 1932 and the International Law Commission in
1956 was seen as an endeavour to codify the international law of piracy.67 The provisions
contained in UNCLOS are, however, not international criminal law provisions, but instead
they set out a specific distribution of jurisdictions between states with regard to acts for
Schwarzenberger ‘The Problem of an International Criminal Law’ 3 Current Legal Problems
(1950) 263 at 264. See also Erasmus ‘Revisiting Schwazenberger today: The problem of an
international criminal law’ 16 South African Journal of Criminal Justice (2003) 393.
64
Idem at 268.
65
Idem. In a discussion of the example of piracy jure gentium (at 268-269), he submits two principles
which have acquired the force of customary international law, namely (i) ‘every State is under an
international obligation to suppress piracy within its own territorial jurisdiction’ and (ii) the concept
summarised by the term piracy jure gentium which means that ‘in the interest of the freedom of the
seas, every State is authorised to assume jurisdiction on the high seas over pirate ships. If it does so
it may mete out to pirates any condign punishment, including the death penalty. Yet the recognition
of acts of piracy as [‘]constituting crimes, and the trial and punishment of the criminals, are left to
the municipal law of each country[’]. The grant to States under international law, of jurisdiction over
pirates in an apparent exception to the principle of the freedom of the seas, according to which, in
time of peace, States exercise on the high seas only jurisdiction over ships sailing under their own
flag’.
66
See for example: Attard and Mallia (2014), in the course of their survey of the law pertaining to
the high seas, refer to the ‘definition of piracy jure gentium in the UNCLOS’ (at 259) and ‘[t]he
UNCLOS contemplates universal jurisdiction for the crime of piracy jure gentium’ (at 270).
67
These are investigated and analysed at length in chapter four.
63
28
which the default distribution of jurisdictions68 is not adequate.69 Ascertaining the nature
of piracy jure gentium outside the provisions of UNCLOS is a challenging and near
impossible task. In his seminal, but outdated, monograph on piracy, Rubin traversed the
various aspects and elements of piracy from its origins until the 20th century in remarkable
detail. In drawing his critical analysis to a close, he commented that:
‘[i]t may be concluded that both in current practice and in current theory built
upon ancient roots and the evolution of the international and political legal
orders, there is no public international law defining “piracy”; that the only
legal definitions of “piracy” exist in municipal law and are applicable only in
municipal tribunals bound to apply that law; that these examples of municipal
law do not represent any universal “law of nations” based on moral principle
and right reason exemplified through identical laws of different countries, but
rather rest on national policies made law by the constitutional processes of
different countries and that such other uses of the word “piracy” as exist in
international communication reflect vernacular usages, pejoratives, and
perhaps memories of Imperial Rome and Imperial Britain…’70.
In other words, he stated more succinctly that:
‘there is no substantive international law defining “piracy” to be enforced by
states directly; there is an international law distributing the legal power to
apply municipal law to the acts of foreigners. It would seem that if there is any
international law relating to “piracy” it is the legal power given to all states to
apply their municipal laws to foreigners…’71
68
See article 92(1) which outlines the principle of flag-state jurisdiction. Attard and Mallia (2014)
note the shortcoming of this default framework which is worth noting. They state (at 258) that ‘[i]n
the event of flag State inaction, certain vessels may escape jurisdiction entirely unless subsequently
putting into the port of an affected State since it is only in a limited set of circumstances where the
UNCLOS provides for a role for non-flag State actors, thus allowing other States to share in
enforcement, and sometime, legislative jurisdiction’.
69
These provisions distributing jurisdictions are not unique in the UNCLOS framework. See for
example article 109 and 218 of UNCLOS. However, some of these provisions do not set out an
effective enforcement mechanism. This enforcement gap is filled in complementary instruments.
For example, article 108 [dealing with cooperation in the suppression of illicit traffic in narcotic
drugs and psychotropic substances] is complemented by the Convention against Illicit Traffic in
Narcotic Drugs and Pyycotrophic Substances UN Doc. E/CONF.82/15 (1988) and article 99
[dealing with the prohibition in the transport of slaves] is complemented by the Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children (2000) 40
International Legal Materials 335. By contrast, enforcement jurisdiction over piracy is not covered
in a complementary convention.
70
Rubin The Law of Piracy (1988) at 344.
71
Idem at 345.
29
In light of this, the impact of municipal law is also considered during the course of the
thesis. Early jurisprudence from English and American courts have been particularly
influential in forging the jurisprudence which came to be described as piracy jure gentium.
In The Scotia72 where a dispute arose concerning the application of the customary law of
the sea in the case of a ship collision, the United States Supreme Court held in 1871 that:
‘[m]any of the usages which prevail, and which have the force of law,
doubtless originated in the positive prescriptions of a single state, which were
first of limited effect, but which, when generally accepted, became universal
obligation.’73
Preceding the international institutional and legislative framework created by the United
Nations, early admiralty courts applied law that was perceived as largely international in
character.74 Sir Charles Hedges, a judge of the English High Court of Admiralty75 noted
that:
‘[t]he Court of Admiralty is a Court of Justice, and the judge who is sworn to
administer it is as much obliged to observe the laws of nations as the Judges
of the Courts of Westminster are bound to proceed according to the statutes
and the common law.’76
Rubin appropriately asserted, however, that ‘there is no international law of “piracy” at all,
and it is possible that there never has been any such law except in the autointerpretive
projections of some states from time to time seeking either to expand their jurisdiction to
safeguard their own trade or establish imperial interests’.77 In the historical analyses during
the course of the thesis, references to and analyses of municipal law highlight these
autointerpretive projections and jurisprudence of states, which were assimilated into what
is termed as piracy jure gentium. In the contemporary analyses by contrast, municipal law
is of limited import to the formulation of recommendations to modify the present UNCLOS
framework; however, it does offer a useful survey of the reception of the international
72
The Scotia (1871) 81 US Reports 170.
Idem.
74
Harrison (2007) at 17.
75
See the discussion of Rex v Dawson in section 3.1 of chapter three.
76
Cited in Colombus The International Law of the Sea (1967) at 11. See also Harrison (2007) at 18.
77
Rubin (1988) at 343.
73
30
framework in municipal law and an indication of domestic policy in implementing
international obligations.
3.3
Methodology
The arguments in this thesis and the authorities in support thereof have been derived
exclusively from published documentary sources. Given that there were few cases where
pirates were tried pursuant to capture affected by universal jurisdiction, the commentaries
of publicists and jurists were influential in the development of the law of the sea and piracy
jurisprudence. The thesis draws on a variety of published primary sources, such as
international conventions and their traveaux preparatoires, resolutions by the United
Nations Security Council, regional cooperative agreements, domestic legislation and policy
documents, foreign judicial precedent, and official reports and statistics by international
organisations like the International Maritime Organisation, the International Maritime
Bureau and the AU. Publicly accessible archival records were also consulted.
Various secondary sources were relied upon: academic textbooks, books, journal articles,
media reports and miscellaneous Internet sources. Where older sources were inaccessible,
they were cited through later authoritative secondary sources.
3.4
Development of the thesis
This impetus to engage in this study manifested during the proliferation of piratical acts by
Somali nationals off the Horn of Africa during 2010. In response thereto, the volume of
academic scrutiny reached unprecedented levels. Until this time, the only comprehensive
and seminal treatise on the law of piracy was undertaken by Rubin in 1988.78 During the
resurgence of piracy between 2009 and 2011, reports on piratical attacks featured
frequently and at some periods on a weekly basis in international and domestic media
reports, where there were also encounters that ranged from the bizarre79 to the sensational.80
78
Rubin The Law of Piracy (1988). To a lesser extent, the work by Dubner The International Law
of Sea Piracy was published in 1980 and provided a holistic overview.
79
See Jonze ‘Britney Spears’ music used by British navy to scare off Somali pirates’ The Guardian
(29 October 2013). Available at: https://www.theguardian.com/music/2013/oct/29/britney-spearsnavy-scare-somali-pirates.
80
In 2009, a short paragraph appeared as entry in the annual piracy report issued by the International
Maritime Bureau recording an act of piracy committed by Somali nationals on the vessel Maersk
Alabama. It was reported in various places as the first hijacking of a US flagged vessel in over two
hundred years. See for example: https://www.vbattorneys.com/case-results/maersk-settles-lawsuitbrought-victims-somali-piracy/. An account of the incident was published by the Master of the
vessel, see Phillips A Captain’s Duty (2010) and subsequently produced as a critically acclaimed
31
Keeping pace with the rapid and exponential flow of media reports, the convening of
conferences and the publication of academic commentaries during this period was a
vigorous and persistent task. However, it necessitated a comprehensive and wide-ranging
survey of literature and documentary sources81 undertaken over an extended period of
several years in which it became apparent that the high seas limitation and the question of
universal enforcement jurisdiction to interdict pirates in territorial seas has never received
any close scrutiny. This research contained in this thesis is the first attempt to do so. The
historical orientation of aspects of the thesis was accentuated after my attendance as a
delegate to a global conference of legal historians and piracy law experts in 2012. 82 My
observations and informal discussions with the scholars at the conference made it apparent
that the research objectives combined with the historical orientation contained in this thesis
have hitherto not received close academic scrutiny.
IV. ARCHITECTURE OF THE THESIS
This thesis presents a survey of scholarship and an analysis of legal instruments to support
the grounds listed above, and approaches these questions using the following general
structure and sequence of chapters:
4.1
With the rationale for the study set out in the introductory chapter, chapter two
begins with a brief statistical analysis of incidents of piracy globally and especially
along Africa’s eastern seaboard. The data will demonstrate that incidents occurred
within territorial waters and port areas. While the period under review shows a
significant decline in incidents of piracy, naval officials and commentators
maintain the possibility of resurgence – should naval operations in the region cease.
4.2
Chapter three is divided into six parts:
After setting out some introductory remarks in the first part, the second part of the
chapter looks at the earliest conception of the pirate as hostis humani generis, or
motion picture: Captain Phillips Dir. Paul Greengrass, Star. Tom Hanks, distributed by Columbia
Pictures (2013).
81
In surveying the literature, published academic commentary often overlapped and duplicated the
analysis covered elsewhere with only slight nuances. Several published scholarly articles and book
chapters that were initially selected for review and comment in the course of this thesis were
discarded on this basis.
82
International conference on Persistent Piracy: Historical Perspectives on Maritime Violence and
State Formation [Stockholm, 3-5 May 2012] Swedish Institute for International Affairs and Centre
for Maritime Studies (Stockholm University).
32
the ‘enemy of all mankind’. An analysis of this conception is significant, because,
being equated with ‘heinousness’, it forms one of the jurisprudential frameworks
for the exercise of universal jurisdiction. The section considers the evolution of the
phrase during several centuries through the works of influential publicists and
commentators. In the development and usage of this phrase, the only reference to
the locus of piratical acts was to the high seas.
The third part of the chapter examines the development of the definition of piracy
by revisiting seminal doctrines and cases. Early English jurisprudence is surveyed
and is followed by developments in the Nineteenth Century, prior to the
codification in the Twentieth Century. Thereafter, American practice and
jurisprudence are considered. These two jurisdictions provide a holistic reflection
of the jurisprudence of the period.
In the fourth part, the concept of universal jurisdiction is revisited. This is
necessary because this is a key feature of the enforcement jurisdiction provisions
contained in UNCLOS and it is featured in the earliest juridical treatment of piracy
and in discussion of the hostis humani generis epithet. The discussion first lays out
the traditional grounds for jurisdiction and then proceeds to define the concept of
universal jurisdiction. The rationale for exercising universal jurisdiction in the case
of piracy was addressed and followed by antecedents of state practice of universal
jurisdiction over piracy, as manifested in judicial precedent. The section concludes
with an appraisal emphasising the continued relevance of universal jurisdiction to
suppress piracy.
The foregoing parts address the developing jurisprudence of piracy. This is then
contrasted with developments in the law of the sea relating to the territorial sea in
the fifth part of the chapter. The concept of maritime sovereignty is laid out,
followed by an exposition of the works of jurists and publicists on the juridical
nature and extent of the territorial sea. Under the discussion on the juridical nature,
the concepts of imperium and dominium are revisited. Various restrictions and
limitations to sovereignty are then identified and categorised in a sequence of
theories, as to the underlying nature of the territorial sea. The section concludes
with discussion of modern conceptions of sovereignty. Part six provides some
concluding remarks.
33
4.3
Chapter four surveys the development of the codification of piracy jurisprudence
into an international framework. The extant framework under UNCLOS is set out
in the first part of the chapter, followed by comments on its restrictive application.
This leads to the discussion on the high seas limitation – which restricts the
application of UNCLOS to the high seas.83
The second part of the chapter interrogates this limitation in greater detail and
considers how developments in the extent of the territorial sea resulted in
corresponding consequences to the reach of the high seas. The discussion considers
that, in the juridical development of the territorial sea, there was a presumption of
state capacity within that realm, and the practical implications of the high seas’
limitation are highlighted. This is followed by pointing out academic commentary
which dismissed the high seas’ limitation as an area of contention that requires
revision, and a critique of these views is undertaken – with the conclusion that
further scrutiny of the high seas’ limitation is warranted. The discussion considers
why there was a lack of any progressive development on the high seas’ limitation.
The remainder of the chapter is then divided into parts to discuss ad seriatim the
various attempts to codify the law of piracy. The discussion provides, firstly, an
overview of the codification and narrows the focus to specific aspects of the
travaux preparatoires and the provisions of the instruments drafted which are
relevant to the high seas’ limitation. The codification attempts discussed are: (i)
the League of Nations Codification Conference; (ii) The Harvard University Draft;
(iii) the work of the International Law Commission; (iv) the 1958 United Nations
Conference on the Law of the Sea; and (v) the United Nations Convention on the
Law of the Sea.
4.4
Chapter five offers a detailed treatment of the legal frameworks applicable to the
east African seaboard and is divided into five parts. Having set out some
introductory remarks in the first part, the second part considers the application of
international and regional frameworks. In this part, the effect and limitations of the
Security Council resolutions applicable to Somalia are critically analysed and a
comprehensive analysis of the Djibouti Code of Conduct as a regional instrument
is undertaken. The third and fourth parts set out the municipal framework of
regional powers, South Africa and Kenya and examines its reception of the
83
This also encompasses the EEZ and places outside the jurisdiction of a state.
34
international framework and its domestic policy. Part five turns to the continental
framework and presents a comprehensive survey of the continental response to
maritime security and piracy. Key instruments such as the Africa Integrated
Maritime Strategy and the Lomé Charter are unpacked and analysed. This part then
turns to assess the proposal to extend universal enforcement jurisdiction into
territorial seas and test its compatibility with the developing AU jurisprudence and
architecture. Lastly part six is a summative review of the findings of the chapter.
4.5
The concluding chapter highlights and consolidates the findings of the previous
chapters, in order to support the line of argument proposed in the introduction.
Guided by these findings, the chapter then presents a primary recommendation and
prognosis to amend the piracy provisions of UNCLOS and a secondary
recommendation to facilitate universal enforcement jurisdiction in territorial seas
under the aegis of the African Union Standby Force. This recommendation
envisages an additional annex to the Lomé Charter to facilitate these joint naval
interdiction operations and proposes an additional role for the Continental Early
Warning System. The chapter lastly sets out my parting remarks.
The thesis reflects the law as stated in the sources available, as at November 2017. All
Internet sources cited were last accessed in November 2017.
35
II
___________
ACTS OF PIRACY ON THE EAST AFRICAN SEABOARD (2006-2016):
A BRIEF STATISTICAL ANALYSIS
I. INTRODUCTION
1.1
Prefatory
Before commencing a study on the law of piracy from the perspective of the East African
seaboard, an appraisal must be undertaken of the statistics of acts of piracy and armed
robbery in this region over the 10-year period from 2006 to 2016. In doing so, this chapter
will reveal the prevalence of piracy in general and the modus operandi of pirates, and then
draw the focus towards Africa’s eastern seaboard and highlight the locus of the incidents
of piracy. The data reveal incidents committed within territorial waters – thereby providing
a contextual framework for the analysis in the remaining chapters. These present the
argument for a modified extension of the UNCLOS enforcement regime into the realm of
territorial waters.
1.2
The East African seaboard and Somali piracy
Murphy has described piracy as a ‘low-risk criminal activity that pays well’ and ‘[i]t occurs
for one overriding reason: opportunity’.84 Murphy goes on to list seven further factors that
enable piracy to flourish. Briefly they are: legal and jurisdictional weakness; favourable
geography; conflict and disorder; under-funded law-enforcement/inadequate security;
permissive political environments; cultural acceptability; and the promise of reward.85
Somalia during the first decade of the 21st Century manifested these conditions, and piracy
in the waters off its coast flourished to unprecedented levels during 2009-2011. The country
is frequently described as the ‘archetypical failed state’ since the end of the regime of
Siyaad Barre on 26 January 1991 – which left the country without an effective
84
Murphy Contemporary Piracy and Maritime Terrorism: The threat to international security
(2007) at 12. Palmer in The New Pirates: Modern Global piracy from Somalia to the South China
Sea (2014) at 2, commented that ‘maritime piracy is a symptom of deep and underlying problems.
Piracy arises where governance breaks down and where people are desperate enough to risk their
lives in perilous attacks on the high seas, where they are as likely to be the victims of storms and
other dangers of the seas, as they are to be captured, injured or killed by those they are attacking.’
See Murphy (2007) at 8-12.
85
Murphy (2007) at 13.
36
administration for over 20 years,
86
and it continues to be a challenge for the current
Transitional Federal Government (TFG).87
While an examination of the causes of Somali piracy is not within the ambit of this thesis
and has been considered elsewhere,88 researchers at the Oceans Beyond Piracy (OBF)
programme, in their latest report on the state of maritime piracy, noted that:
‘The threat [piracy] poses may be exacerbated by illegal, unregulated, and
unreported (IUU) fishing. The presence of foreign trawlers in Somali waters
serves as an antagonism to locals, many of whom feel that these trawlers are
stripping the waters of resources and threatening livelihoods. IUU fishing and
reckless, sometimes violent behaviour on the part of these trawlers creates a
narrative that legitimises the actions of pirates in the eyes of the local
population.’89
Providing an analysis of the accounts of the vessels hijacked is also beyond the scope of
this thesis. It was the brazenness of attacks on vessels like the Sirus Star, the Seabourne
Spirit and the Maersk Alabama90 and the human costs,91 that drew international attention
to contemporary piracy. It was also the resultant total economic costs which led to a
86
Palmer (2014) at 32. For a detailed account on the history of political development in Somalia,
see idem at 17-69. See, also, Lehr and Lehmann ‘Somali – Pirates’ New Paradise’ in Lehr (ed)
Violence at sea: Piracy in the age of global terrorism (2007) at 1-20.
87
In a report by the Monitoring Group on Somalia and Eritrea, UN Doc S/2011/433 (July 2011) at
16, it was stated that ‘The principal impediments to security and stabilisation in southern Somalia
are the Transitional Federal Government’s lack of vision or cohesion, its endemic corruption and its
failure to advance the political process…’.
88
See, for example, Lehr and Lehmann (2007) at 1-20. See, also, Oceans Beyond Piracy ‘The state
of maritime piracy 2015’ available at: http://oceansbeyondpiracy.org/reports/sop2015.
89
See Oceans Beyond Piracy ‘The state of maritime piracy 2015’ available at:
http://oceansbeyondpiracy.org/reports/sop2015. A similar view is held by Murphy (2007) at 31. See,
also, Anderson (2014) at 123-127.
90
For a general narrative of pirate incidents, see, for example: Cawthorne Pirates of the 21st Century
(2009); Burnett Dangerous Waters: Modern day piracy and terror on the high seas (2002);
Langewiesche The Outlaw Sea (2004); and Philips A Captain’s Duty (2010). For more academic
account, see Lehr (2007) and also the individual accounts of incidents appended to the ICC IMB
piracy reports.
91
For example, in the ICC IMB Piracy and Armed Robbery Against Ships, Annual Report (2012)
at 20, it was stated that ‘470 seafarers have been taken hostage, 10 kidnapped, three injured and
eight killed’ during the year under review.
37
reaction from the global community.92 Researchers at the OBF programme estimated the
economic cost93 of piracy, and the results are tabulated below:
Year
Costs
2010
$6 billion
2011
$6.6
billion
2012
$5.7
billion
2013
$3 billion
2014
$2.3
billion
2015
$1,3
billion
TABLE 1: Total economic cost of piracy: Indian Ocean Region
Source: Oceans Beyond Piracy94
What is useful to consider at this stage, is the ‘business model’ or modus operandi of pirate
activity in the region under review. The International Maritime Bureau (IMB) reports that
‘[t]he Somali pirates used hijacked ocean going fishing vessels and dhows as mother
vessels to conduct piracy operations. Skiffs are launched from those hijacked vessels which
quickly intercept and attack innocent vessels resulting in some being successfully
hijacked’.95 The IMB also reports that ‘[t]he pirates fire automatic weapons and Rocket
Propelled Grenades (RPG) at merchant vessels in an attempt to board and hijack them.
Once the attack is successful and the vessel hijacked, they would sail the vessel towards
the Somali coast and thereafter demand a ransom for the release of the vessel and crew’.96
Researchers at the OBF programme also observed the business model of Somali pirates,
and found that:
‘Somali piracy is unique among piracy business models worldwide because
of the level of community support that Somali pirates have enjoyed in the past
and the ability to hold crews and their vessels for months or even years in
“safe havens” just off the coast during ransom negotiations.’97
92
Anderson (2014) at 4-5 notes quite aptly: ‘everything in our world is interconnected; the fact that
giant oil tankers can be regularly attacked while carrying the crude oil on which our economies are
so clearly dependent is not something that we can view in isolation, and that the failed economies
of Africa and Asia sit astride key lines of communication and control raw materials that are in
increasingly short supply.’
93
The economic cost constitutes the following: (i) government and civil-society costs: naval
operations, ransoms and associated payments, prosecutions and imprisonment, counter-piracy
organisations; (ii) industry-employed vessel-protection measures: armed guards, security
equipment, increased speed, rerouting; and (iii) other industry costs: insurance and labour. See
Oceans Beyond Piracy ‘The State of Maritime Piracy 2014: Executive Summary’, available at:
http://oceansbeyondpiracy.org/sites/default/files/attachments/SoP2014ExecutiveSummary.pdf .
94
Oceans Beyond Piracy ‘The state of maritime piracy 2015’
Available at: http://oceansbeyondpiracy.org/reports/sop2015.
95
ICC IMB Piracy and Armed Robbery Against Ships, Annual Report (2012) at 20.
96
ICC IMB Piracy and Armed Robbery Against Ships, Annual Report (2011) at 22.
97
Oceans Beyond Piracy ‘The state of maritime piracy 2015’
Available at: http://oceansbeyondpiracy.org/reports/sop2015.
38
This analysis of the business model is particularly important for the ensuing analysis of the
anti-piracy enforcement regime under UNCLOS. While the statistics show a higher
percentage of incidents being committed on the high seas, the hijacked vessels and hostages
are brought within the coast of Somalia – in the territorial sea of that state, outside the
jurisdiction of the UNCLOS enforcement regime. Naval pursuits of suspected pirate
vessels or hijacked vessels on the high seas would need to engage in a ‘reverse hot pursuit’
into the territorial waters of Somalia, in order to effectively suppress the incidents.
For the purposes of this thesis, the area described as the East African seaboard encompasses
the African coastline from Somalia on the horn of Africa and the Gulf of Aden, down
towards the Mozambique Channel, South Africa and the Western Indian Ocean islands
adjacent thereto. This ‘high risk’ region is depicted in the chart below:
39
FIGURE 1: Chart depicting the high-risk region along Africa’s eastern seaboard
Source: Oceans Beyond Piracy98
II. ENUMERATING INCIDENTS OF PIRACY AND ARMED ROBBERY
To evaluate the incidence of piracy, recourse must be made to an appropriate source of
statistical information. Detailed records are published by two organisations and are
accessible to the general public. The first source is the International Maritime Organisation
(IMO). Since 1982, the IMO has issued incident reports in order ‘to provide an overall view
‘Joint war risk committee revises Indian Ocean listed area’ Oceans Beyond Piracy Report (2016),
available at: http://oceansbeyondpiracy.org/publications/joint-war-risk-committee-revises-indianocean-listed-area.
98
40
of the global threat posed by piracy and armed robbery against ships’.99 Data and
information supplied by IMO member states and other international and regional
organisations are collated in the reports.100 The second source is the International Maritime
Bureau (IMB), which is a specialised division of the International Chamber of Commerce
(ICC). The IMB is described as ‘a non-profit making organisation, established in 1981 to
act as a focal point in the fight against all types of maritime crime and malpractice’.101 The
website of the IMB notes that:
‘One of the IMB’s principal areas of expertise is in the suppression of piracy.
Concerned at the alarming growth in the phenomenon, this led to the creation
of the IMB Piracy Reporting Centre in 1992. The Centre is based in Kuala
Lumpur, Malaysia. It maintains a round-the-clock watch on the world’s
shipping lanes, reporting pirate attacks to local law enforcement and issuing
warnings about piracy hotspots to shipping.’102
Murphy points out that although the IMB neither conducts nor tracks subsequent
investigations of incidents, the Piracy Reporting Centre has become the ‘internationally
recognised collection point for piracy reports and statistics.103 The reports issued by the
IMO and the IMB are the primary statistical sources used in the foregoing analysis. While
these statistics provide a useful and central repository source for the purposes of this thesis,
it is worth mentioning some of the reservations that Murphy presents in relation to the
accuracy of the reports. He contends that ‘[i]t is widely suspected that under-reporting hides
the full extent of the piracy problem’.104 He furnishes several reasons for such underreporting: for example: (i) ‘states and ports, wary of being seen as having a piracy problem,
fail to record or report incidents’; (ii) ‘sometimes the witnesses are dead’; (iii) ‘in cases
involving kidnappings in particular, the victims are intimidated into silence’.105 He goes on
to provide the perspective of shipping companies who under-report incidents because: (i)
they want to ‘avoid damaging their reputations’; (ii) ‘to prevent crew demands for
additional pay for sailing into or through pirate-prone areas’; and (iii) to avoid the expense
99
See, generally:
http://www.imo.org/en/OurWork/Security/PiracyArmedRobbery/Reports/Pages/Default.aspx. This
website contains monthly incident reports and annual reports since 2008.
100
Idem.
101
See, generally: https://icc-ccs.org/icc/imb.
102
Idem.
103
Murphy (2007) at 21. It would appear that it is voluntary for ship owners and ship masters to
report incidents, and the gathering of data for these reports is dependent on such reporting (idem at
23).
104
Idem at 23.
105
Idem.
41
incurred by ships’ delay during an investigation’.106 Accordingly, he concludes that it is
widely suspected that such under-reporting, for the reasons stated, hides the full extent of
the piracy problem.107 With these reservations on hand, and turning now to the information
contained in the various reports of the IMO and IMB, the first item to observe is the account
of global incidents, as it appears in the graph below prepared by the IMO:
FIGURE 2: Global Incidents of Piracy and armed robbery
Source: International Maritime Organisation108
This graph records incidents which have occurred at both regional and global levels since
records were first kept in 1984. It is patent from the graph that incidents of piracy off East
Africa between 2009 and 2015 peaked exponentially, and then reduced dramatically from
2012 to the present. To gain a more accurate estimate of the extent of global piracy, the
statistics in the IMB annual reports over the decade under review are compiled into the
following table:
2006
239
2007
263
2008
293
2009
410
2010
445
2011
439
2012
297
2013
264
2014
245
2015
246
2016109
98
TABLE 2: Global Incidents of piracy and armed robbery
Source: Compiled using ICC: International Maritime Bureau: Annual Piracy Reports: 2006 to Third Quarter
of 2016110
106
Idem.
Idem. For a more detailed discussion see Lombardo ‘Underreporting of crimes at sea: Reasons,
consequences and potential solutions’ Oceans Beyond Piracy Discussion Paper (November 2014).
108
MSC.4/Circ 232/Annexure 4 (Annual Report: 2015).
109
This statistic represents the third quarterly report. An annual report for 2016 was not released at
the time of submission of this thesis.
110
The reports are accessible at: https://icc-ccs.org/icc/imb.
107
42
The IMB reports also provide statistics per region, and the areas constituting the eastern
African seaboard are extrapolated in the following table:
Region
Somalia
Kenya
Tanzania
Mozambiqu
e
South
Africa
TOTAL
200
6
10
0
9
0
200
7
31
4
11
3
200
8
19
2
14
2
200
9
80
1
5
0
201
0
139
0
1
0
201
1
160
1
0
0
201
2
49
1
2
2
201
3
7
1
1
2
201
4
3
0
1
1
201
5
0
2
0
1
2016
0
0
0
0
0
0
0
0
0
0
1112
19
49
37
86
140
161
54
11
5
3
3
111
0
2
0
0
TABLE 3: Incidents of piracy and armed robbery on Africa’s eastern seaboard
Source: ICC: Compiled from: International Maritime Bureau: Annual Piracy Reports: 2006 to Third Quarter
of 2016113
The regional reports show that incidents on the East African seaboard peaked between 2009
and 2011, and thus contributed significantly to the global surge in incidents during the same
period. The statistics are, however, presented in very broad geographic terms. For example,
the statistics for Kenya do not reveal whether the incidents occurred in Kenyan territorial
waters or the high seas adjacent to Kenya. Each of the IMB reports contain a standard
preamble to the report, stating that ‘the majority of attacks against ships take place within
the jurisdictions of States and piracy as defined under [UNCLOS] does not address this
aspect.’.114 Accordingly, the IMB defines ‘Piracy and Armed Robbery’ in the following
terms:
‘An act of boarding or attempting to board any ship with the apparent intent
to commit theft or any other crime and with the apparent intent or capability
to use force in the furtherance of that act.’115
This definition thus removes the locus element of the UNCLOS definition of piracy –
thereby accommodating ‘actual or attempted attacks whether the ship is berthed, at anchor
or at sea…’.116 For the purposes of the research objectives of this thesis, some indication
needs to be given as to whether incidents demonstrating the actus reus elements of piracy
as defined in UNCLOS, occur in territorial waters. The annual reports prepared by the IMO
111
This statistic represents the third quarterly report. An annual report for 2016 was not released at
the time of submission of this thesis.
112
A narration of this lone incident will be provided in the discussion in Chapter 5 et seq.
113
The reports are accessible at: https://icc-ccs.org/icc/imb.
114
Idem.
115
Idem.
116
Idem.
43
offer some assistance in this regard – where incidents are divided according to location.
The results of these reports over the decade under review, and for the area in the vicinity
of the East African seaboard, can be seen from the table below:
2008
2009
2010
2011
2012
2013
2014
2015
High
Seas
117
306
168
209
42
13
1
1
East Africa
Territorial Port Area
11
22
2
10
11
4
1
0
6
3
2
4
8
3
1
4
High
Seas
1
0
50
42
7
1
5
0
Indian Ocean
Territorial Port Area
12
20
4
11
6
5
17
4
13
10
23
10
20
25
22
14
TABLE 4: Comparison of the locus of acts of piracy and armed robbery
[actual and attempted acts]
Source: Compiled from: International Maritime Organisation: Annual Reports on Acts of piracy and armed
robbery against ships: 2008-2015117
When compared to the IMB statistics, however, the data are aggregated over a much
broader area. For example, the East African seaboard can be scrutinised in greater analysis
by countries like South Africa in IMB reports, whereas the IMO data in the above table
record statistics for ‘East Africa’ and the ‘Indian Ocean’.118 With respect to the data in the
table above, areas within the jurisdiction of individual states are divided into territorial seas
and ‘port areas’. There is no definition of a port area, and a ship at berth could juridically
be within the internal waters of a state and a ship at anchor within the vicinity of the port
could juridically be in the territorial waters of a state. Accordingly, the data presented above
for territorial seas and port areas could ambulate.
Importantly, however, from the data it can be concluded that incidents of a similar actus
reus of piracy on the high seas also occur in territorial waters,119 and roughly seem to follow
the peaks and troughs of piratical incidents in the region under review, and over the same
period of time. Trends from a global perspective during the period under review are
117
See ‘Reports on Acts of Piracy and Armed Robbery against Ships’ Annual Reports issued by the
IMO: MSC.4/Circ. 133 (19 March 2009); MSC.4/Circ. 152 (29 March 2010); MSC.4/Circ. 169 (1
April 2010); MSC.4/Circ. 180 (1 March 2012); MSC.4/Circ. 193 (2 April 2013); MSC.4/Circ. 208
(1 March 2014); MSC.4/Circ. 219/Rev.1 (28 April 2015); MSC.4/Circ. 232/Annex. Accessible at:
http://www.imo.org/en/OurWork/Security/PiracyArmedRobbery/Reports/Pages/Default.aspx.
118
See, also, Murphy (2007) at 22.
119
See, also, ICC IMB Piracy and Armed Robbery Against Ships, Annual Report (2011) at 22, where
it is reported that ‘pirates are also attacking vessels close to the coast of Tanzania, Kenya, Somalia
and Yemen’ (my emphasis).
44
difficult to derive: the IMO reported in 2011 that 60% of attacks took place on the high
seas;120 in 2012: 37% of incidents occurred on the high seas, 19% in territorial waters and
44% in port areas;121 in 2013: 60% of incidents occurred in port areas;122 and in 2014: 40%
of incidents occurred in territorial waters.123
From an industry perspective, the distinction of locus is immaterial, as can be seen in a
statement by the Chief Security Officer of BIMCO in 2016:
‘Over the past 15 years we have continually seen ships physically pirated –
the ship taken from the master – cargo regularly stolen and often crew held to
ransom – and the incident dismissed as a local robbery event. Ship owners and
their representative organisations have been at great pains to point out that the
levels of violence threatened or actuated against seafarers is no different,
whether armed robbery or piracy.’124
It is also evident from all the data presented above that the record high of 160 incidents of
piracy off Somalia alone in 2011, has been reduced dramatically to 0 incidents in 2015 and
none were reported, to date, during 2016.125 This has been, to some measure, due to the
intervention of naval forces operating in that area – deployed in counter piracy missions –
as the IMB annual reports observe:
‘This reduction in reported incidents is attributed to increased/active military
action on suspected skiffs, military land based anti piracy operations,
preventative measures used by merchant vessels and employment of Privately
Contracted Armed Security Personnel.’126
120
Reports on Acts of Piracy and Armed Robbery against Ships’ Annual Report: MSC.4/Circ. 180
(1 March 2012) at par. 7.
121
Reports on Acts of Piracy and Armed Robbery against Ships’ Annual Report: MSC.4/Circ. 193
(2 April 2013) at par. 9.
122
Reports on Acts of Piracy and Armed Robbery against Ships’ Annual Report: MSC.4/Circ. 208
(1 March 2014) at par. 10.
123
Reports on Acts of Piracy and Armed Robbery against Ships’ Annual Report: MSC.4/Circ.
219/Rev 1 (28 April 2015) at par. 10.
124
Noakes ‘A view on piracy and armed robbery in 2016’, available at:
http://oceansbeyondpiracy.org/reports/sop2015.
125
In the ‘Report of the Secretary-General on the situation with respect to piracy and armed robbery
at sea off the coast of Somalia’ UN Doc S/2016/843 (7 October 2016), it was reported, at par. 3, that
‘[m]ore than three years have passed since Somali pirates successfully hijacked and held a large
commercial vessel for ransom. As at August 2016, no seafarers from large commercial vessels were
being held hostage by Somali pirates. Those developments reflect the trend of an overall decline in
piracy off the coast of Somalia’.
126
ICC IMB Piracy and Armed Robbery Against Ships, Annual Report (2012) at 20. See, also, ICC
IMB Piracy and Armed Robbery Against Ships, Annual Report (2013) at 20.
45
It was also reported that ‘[t]he overall figures for Somali piracy could have been a lot higher
if it were not for the continued efforts of international Naval forces patrolling and
responding to the threat. In the last quarter of 2011 alone, the navies have disrupted at least
20 Pirate Action Groups before they became a threat to commercial fleets.’127 Researchers
at the OBF program commented that the Somali pirates’ ability to utilise safe havens along
the coast for keeping hostages has ‘degraded over the years, because of a more vigorous
international naval presence and shifts in support on the ground in Somalia’.128
Given that the data presented above have demonstrated a clear decline in incidents, much
to the relief of the global shipping industry, commentators have emphasised that this does
not equate to permanent eradication of piracy in the region. Various perspectives on this
point have been noted: A fisherman is quoted as saying ‘I’m sure they will re-organize
themselves if the international navies leave.’129 A Puntland Counter-Piracy Minister,
Abdallah Jama Saleh, stated: ‘[the pirates] are not dead, but dormant now, so they will
come definitely … straight away, no question about it [as soon as the warships leave]’.130
In 2012, at the start of the decline in incidents, the IMB observed that ‘[t]he continued
presence of the navies is vital to ensuring that Somali piracy remains low. This progress
could easily be reversed if naval vessels were withdrawn from the area’.131 In mid 2016,
despite only one incident being recorded for the first half of the year and in keeping with
the downward trend of incidents, the IMB cautioned that ‘[t]he IMB PRC believes that a
single successful hijacking of a merchant vessel, will rekindle the Somali pirates’ passion
to resume its piracy efforts’.132 In bringing this chapter to a close, it would also be apt to
quote two naval officers mentioned in the IMB Reports. First, Commodore Bekkering,
erstwhile NATO Commander of the Dutch Navy, said:
‘I am convinced, if the navy ships would disappear, the piracy model would
still be intact. Yes, they don’t deploy that much to sea now but the leadership
of the piracy is still there and if they hold their breath for a little while and
127
ICC IMB Piracy and Armed Robbery Against Ships, Annual Report (2011) at 24.
Oceans Beyond Piracy ‘The state of maritime piracy 2015’, available at:
http://oceansbeyondpiracy.org/reports/sop2015.
129
Cited in: ‘The State of Maritime Piracy: 2015’ Report prepared by the Oceans Beyond Piracy
project, available at: http://oceansbeyondpiracy.org/reports/sop2015.
130
Idem.
131
ICC IMB Piracy and Armed Robbery Against Ships, Annual Report (2012) at 24.
132
ICC IMB Piracy and Armed Robbery Against Ships, Report for the period 1 January to 30 June
2016, at 16.
128
46
nations take their navies back, I am pretty sure that the business model is still
intact.’133
Second, Rear Admiral Bernhard Teuteberg of the South African Navy, which deployed
naval assets to patrol the waters off Mozambique and Tanzania, commented that:
‘We can never give up; we can never leave the Mozambique channel. We can
never leave the area off Somalia because if we leave a vacuum, piracy will
return.’134
III. CONCLUDING REMARKS
In the decade under review, the data presented in this chapter have shown the volatility in
recorded incidents of piracy and armed robbery over the broader East African seaboard.
Midway through this decade, the data revealed unprecedented levels of incidents and the
decade ended with almost no incidents. It was shown that naval interdictions were a
significant contributing factor leading to the decline of incidents by the end of the period.
It is submitted that such records should continue to be monitored and analysed over a longer
period of time, in order to establish reliable and well-considered trends in incidents. The
IMB has drawn attention in its reports to the fact that it would be prudent to monitor the
situation. Indeed, as navies begin to withdraw at the end of the period under review, it
remains to be seen whether piracy, being an opportunistic crime, will resurface.
The chapter considered the business model or modus operandi of Somali pirates and
suggested that their activities traverse the different juridical realms of the ocean in the
course of the act. The data also reveal incidents occurring in territorial waters, which would
be out of the reach of the universal enforcement jurisdiction under UNCLOS. This factor
thus presents a rationale in the forgoing legal analysis of the enforcement regime.
In the next chapter, the legal analysis commences with a critical revisit of the historical
foundations of piracy law.
133
134
ICC IMB Piracy and Armed Robbery Against Ships, Annual Report (2012) at 35.
Idem.
47
III
____________
HISTORICAL FOUNDATIONS OF PIRACY LAW:
A CRITICAL REVISIT
I. INTRODUCTION
1.1
Prefatory
Having set out the context to the research problem in the preceding chapter through a
statistical analysis of the incidents of piracy on the East African seaboard, this chapter will
commence analysis of the regulatory framework that defines piracy and sets out
enforcement measures. It entails understanding the interface between international law and
municipal law. In order to present proposals for the revision of the current regulatory
framework, an understanding of the jurisprudence and doctrines that led to the
establishment of the current regulatory framework is a necessary exercise. Using historical
analysis of judicial precedent and the opinions and publications of commentators and
jurists, this chapter aims to address the contention advanced in chapter 1, which refutes the
foundations of the notion of the absolute nature of sovereignty over the territorial sea, and
which precludes the universal jurisdiction applicable on the high seas to engage in
enforcement measures. The findings of this chapter will point towards concepts and
provisions that were discarded codification attempts during the Twentieth Century and
which refer to the rationale in early case law that is instructive in understanding the extent
and juridical nature of the territorial sea.
The present state of research on the history of piracy itself constitutes a vast body of
scholarship, and a researcher can probe numerous accounts of historians in ancient,
medieval and modern literature in pursuit of the subject. In the ancient world, piracy law
was preserved in Justinian’s Digesta, the Institutiones of Gaius and Justinian, and in the
works of Marcus Tulli Cicero.135 The latest research on this period can be found in the
comprehensive works of Tarwacka136 and de Souza.137 The literature into more recent
periods of piracy can be found, for example, in the popular classic A General History of
the Robberies and Murders of the most notorious pyrates138 and in Gosse139 and
135
See De officiis and speeches In Verrem.
Tarwacka Romans and Pirates: Legal Perspective (2009).
137
de Souza Piracy in the Graeco-Roman World (1999).
138
Johnson A General History of the Robberies and Murders of the most notorious Pyrates (1724).
139
Gosse The History of Piracy (1932).
136
48
Konstam.140 The groundbreaking work by Rubin141 is the quintessential and most
frequently cited modern authority on the law of piracy and will be frequently referred to in
this chapter.142 With this comprehensive source of literature at hand, this chapter makes no
attempt to traverse extensively the historical foundations of piracy, and to do so is irrelevant
to would not serve the purpose of the present research problem.
1.2
Flow of the chapter
The remainder of this chapter consists of four distinct parts. Part two of this chapter
considers one of the earliest and frequently used terms to describe pirates: namely hostis
humani generis. The section surveys the varying rationales behind the term and its use. The
third part begins to provide an account of seminal judgments and doctrine upon which the
early jurisprudence defining piracy was based. This is followed by a survey of the
jurisprudence and practice as it developed during peak periods of imperial British rule, and
when cases of piracy peaked in the United States in the Nineteenth Century. The discussion
draws generally on how piracy was conceived and defined. Attention will be drawn to
specific aspects of the early cases and academic scholarship that dealt with the locus of
piracy. Next, part four will consider the concept of universal jurisdiction, which is the basis
of the enforcement regime to suppress piracy on the high seas under UNCLOS. This section
will also offer a critique on the continued relevance of exercising this form of jurisdiction.
The final part of the chapter examines the locus of piracy by considering the juridical
developments in the nature and extent of the territorial sea, and concludes with a discussion
of contemporary conceptions of sovereignty.
II.
THE PIRATE AS HOSTIS HUMANI GENERIS: THE ILLEGITIMATE ENEMY
The phrase hostis humani generis or ‘enemies of all humankind’ is a phrase frequently used
to describe pirates. It has been reasoned that because pirates indiscriminately attack ships
on the high seas, they therefore wage war on all countries.143 Accordingly, any country can
140
Konstam Piracy: the complete history (2008).
Rubin The Law of Piracy (1988). Rubin comprehensively revisits primary sources and therefore
does not exclusively build on the works of previous writers. This approach allows a fresh and critical
appraisal of these sources.
142
For a more comprehensive review of published piracy reporting and scholarship, see Menefee
and Mejia ‘A “rutter for piracy” in 2012’ WMU Journal of Maritime Affairs (2012) 11 at 1-13. This
chapter significantly expands on an article published by the present researcher, with a view to its
adoption in this thesis: Surbun ‘The developing jurisprudence to combat modern maritime piracy:
A crime of the high seas?’ Comparative and International Law Journal of Southern Africa (2010)
43 at 1-22.
143
Goodwin ‘Universal Jurisdiction and the Pirate: Time for an Old Couple to Part’ 39 Vanderbilt
Journal of Transnational Law (2006) 973 at 989.
141
49
capture and punish a pirate,144 regardless of any nexus with the offence and in the absence
of any link provided by other grounds of prescriptive jurisdiction recognised by
international law.145 This forms one of the conceptual bases for the exercise of universal
jurisdiction discussed later in this chapter. Therefore, an elucidation of the hostis phrase as
a doctrine is a useful exercise here. Goodwin comments that because the hostis phrase is
Latin, it instantly suggests that it is a phrase of ancient origin 146. He submits that the
Romans did not use the phrase hostis humani generis. However, it may be a shortening of
a phrase used by a statesman and orator of the classical age of Rome – Cicero – who
claimed that pirates were the ‘common enemies of all communities’ (sed communis hostis
omnium).147
2.1
Roman views
In his treatise On Obligations, Cicero discusses the various types of moral obligations and
classifies them to various degrees. Outside the closest bonds of the home and family, there
are duties to the city-state as citizens and lastly at the end of the threshold are the final set
of duties which hold by virtue of the “immense fellowship of the human species” (immense
societate humani generis).148 Heller-Roazen, in his analysis of the works of Cicero,
comments that in this context, ‘even individuals of other peoples who show a clear and
forceful animosity toward the home and fatherland may belong to the orbit of
responsibility’.149 He notes that Cicero asserted that even such enemies may demand a
rightful treatment, such as certain duties being respected in battle and protection being
afforded to those who lay down their arms.150 Heller-Roazen then discusses Cicero’s
seminal concept: that there are those that fall outside the borders of this collectivity, who
‘while capable of speech and reason, may not be said to unite in any lawful community;
people who, while committing acts that are wrong may not be defined as criminals; people,
who while often foreign and aggressive, may not be accorded any of the many rights of
enemies’.151 This is the realm of the pirate, who cannot be counted among the foreign
opponents of war, as he is not included in the suite of lawful enemies.152 This is therefore
144
Idem. See, also, Blackstone 4 Commentaries on the Laws of England (1765) at 71.
Garrod ‘Piracy, the Protection of Vital State Interests and the False Foundations of Universal
Jurisdiction in International Law’ 25 Diplomacy and Statecraft (2014) at 195.
146
Goodwin (2006) at 989.
147
Marcus Tulli Ciceronis, De Officiis III at 107, cited in Goodwin (2006) at 991. The phrase only
appears much later, when first cited around 1634: See Rubin (1988) at 83.
148
Heller-Roazen The Enemy of All: Piracy and the Law of Nations (2009) at 14-15.
149
Idem.
150
Idem.
151
Idem at 16.
152
Idem.
145
50
a realm in which duties no longer hold and nothing ought to be owed to the pirate.153 HellerRoazen’s analysis of Cicero reveals that in dealing with a pirate, one becomes a pirate
oneself, because one must act exactly as he does: faithlessly, without any pledged word,
nor any oath.154
Lastly, Heller-Roazen offers a critique of this conception, in that Cicero is not clear on how
one could identify an unlawful antagonist, i.e. ‘who is a speaking, acting human being who
must, for reasons of moral and legal principle, be excluded from the common domain of
the obligation that unites the many members of the species?’155 He argues that the common
enemy of all, despite hostility, foreignness, and utter unreliability, remains in fact and by
right a member of the ‘fellowship of human species’.156 Rubin, however, finds that although
Cicero is the most commonly cited authority on the Roman conception of piracy, the
passages cited above relate to a work on moral duties and are not considered legal
opinion.157 He concludes that:
‘[T]he fundamental Greek and Roman conception of “piracy” distinguished
between robbers, who were criminals at Roman Law, and communities called
“piratical” which were political societies of the Eastern Mediterranean,
pursuing an economic and political course which accepted the legitimacy of
seizing goods and persons of strangers without the religious and formal
ceremonies the Romans felt were legally and religiously necessary to begin a
war. Nonetheless, the Romans treated them as capable of going to “war” –
indeed as in a permanent state of “war” with all people except those with
whom they had concluded an alliance.’158
153
Idem at 17.
Idem at 20. In Book 3 of De Officiis, Cicero writes: ‘if an agreement is made with pirates in return
for your life, and you do not pay the price, there is no deceit, not even if you swore to do so and did
not. For a pirate is not included in the number of lawful enemies, but is the common enemy of all.
With him, there ought not to be any pledged word nor any oath mutually binding’. [cited in HellerRoazen (2009) at 16]. This notion is followed centuries later when Molly, in his treatise De Jure
Maritimo et Navali (1769), states that ‘By the civil law a ransom promised to a Pirate, if not complied
with, creates no wrong; and the reason given is, for that Law of Arms is not communicated to such,
neither are they capable of enjoying that privilege which lawful enemies may challenge in the
Caption of another.’ (Ch 4, at 80 VII).
155
Heller-Roazen (2009) at 19.
156
Idem.
157
Rubin (1988) at 10.
158
Idem at 12.
154
51
Indeed, in the phrase, the word hostis itself means an enemy in the sense of a wartime foe159
and its application to pirates stemmed from the theory that a nation’s vessels could attack
pirates as if they were military enemies, even without a declaration of war or formal
hostilities.160 To the Romans, pirates were therefore seen as more than just those who
plundered Roman ships, but rather communities that did not follow the rules of war because
they did not go through the formalities of war before attacking.161
2.2
Seventeenth to Nineteenth Century views
The hostis phrase survived and was used by the writers of the Seventeenth and Eighteenth
Centuries during the ‘golden age’ of piracy, but was applied differently. Rubin finds that
the hostis phrase shifted from referring to raiders with a substantial political organisation
in an implied ‘perpetual war’ with their neighbours, to common robbers in English common
law.162 In other words, Goodwin comments that the word ‘pirate’ and the hostis phrase were
later used to describe outlaws – something that neither had ever been used to describe
before.163 Rubin further comments that this phrase that survived its original concept and
was later applied to the new concept without thought as to the real meaning of the word
hostis in Latin and its legal consequences in public international law,164 was done in a desire
to heap contempt on such raiders or common robbers – that they were labeled pirates and
hostis humani generis by writers of the Seventeenth Century.165
2.2.1
Alberico Gentili
The first of these subsequent writers meriting analysis here is Alberico Gentili (1552-1608)
whose 1612 treatise De Jure Belli Libri Tres refers directly to Cicero and states: ‘pirates
are the common enemies of all mankind and therefore Cicero says that the laws of war
cannot apply to them’.166 Unlike the Romans who viewed pirates as being in a perpetual
state of war, without any conformity to the established traditions of war, Gentili was the
first to argue that the label pirate carries with it a meaning of outlawry and that what pirates
do is forbidden by international law.167 He states in his treatise that: ‘a state of war cannot
Kontorovich ‘The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation’ 45
Harvard International Law Journal (2004) 183 at 234.
160
Idem at 232.
161
Goodwin (2009) at 978. The Romans used the term praedones to refer to criminals and pirata to
refer to those who warred with their neighbours with a substantial degree of political organisation
and economic hold.
162
Rubin (1988) at 84.
163
Goodwin (2006) at 993.
164
Rubin (1988) at 84.
165
Idem.
166
Rolfe (trans) De Jure Belli Libri Tres by Alberico Gentili 1933(2) at 22.
167
Rubin (1988) at 20.
159
52
exist with pirates and robbers’.168 He argues that ‘the enemy are those who have officially
declared war upon us, or upon who we have officially declared war; all others are brigands
or pirates’.169 This is qualified by his assertion that ‘war on both sides must be public and
official and there must be sovereigns on both sides to direct the war’ (emphasis mine).170
Therefore, Gentili concludes that a state of war can only exist between sovereigns as they
are supreme and they alone merit the title of public, while all others are inferior and are
rated as private individuals.171
Gentili then provides two arguments to support his above assertions: First, the pirate does
not fall within the definition of an enemy (hostes), as they ‘have not through their
misconduct emancipated themselves from jurisdiction. One who is a subject does not by
rebellion free himself from subjection to the law … and no one improves his legal status
by transgression’.172 In other words, Goodwin remarks that even though they may act as
pirates, individuals are still citizens of their state of citizenship, and do not free themselves
from the law of their country through piracy.173 Second, because that law is derived from
the law of nations, malefactors do not enjoy the privileges of a law to which they are foes.174
He draws this argument from a proposition that the law, which is nothing but an agreement
and a compact, could not extend to those who have withdrawn from the agreement and
broken the treaty of the human race.175
This is distinguished from his criteria for an enemy who ‘has a state, a senate, a treasury,
united and harmonious citizens and some basis for a treaty for peace, should matters so
arise’.176 He argues further that ‘pirates may follow the customs of war, and not those of
brigands … yet they do not wage war’.177 The consequence of all of this is that because
they are everyone’s enemies, and who violate all laws resulting in no laws remaining in
force,178 one can interpret Gentili as saying that states can do with pirates as they wish.179
In the closing paragraphs of his chapter on why brigands do not wage war, Gentili remarks:
168
Rolfe (1932) at 22.
Rolfe (1932) at 15.
170
Idem.
171
Idem. Note his comment that ‘private individuals … are never confronted with the necessity if
resorting to the arbitrament of Mars, since they can obtain their legal rights before their superior’s
tribunal’ (Idem at 20, see, also, Heller-Roazen (2009) at 106.
172
Rolfe (2009) at 22.
173
Goodwin (2006) at 991.
174
Rolfe (1932) at 22.
175
Idem.
176
Rolfe (1932) at 25.
177
Idem.
178
Rolfe (1932) at 24.
179
Goodwin (2006) at 991.
169
53
‘For the word hostes, ‘enemy’, while it implies equality, like the word ‘war’,
since names are general and include several varieties, is sometimes extended
to those who are not equal, namely, to pirates … nevertheless it cannot confer
the rights due to enemies, properly so called, and the privileges of regular
warfare.’180
An interpretation of Gentili’s writings quoted above raises the following question: If no
laws apply to pirates and states could do with them as they please, what is the basis then
for the contention that the actions of the pirate do not emancipate them from the jurisdiction
(and therefore the law) of their own state? While the above statements support a traditional
model,181 Gentili’s treatise then takes a novel direction – namely that in war there must also
be the ‘assumption of a public cause’.182 Rubin, who has written of Gentili, concludes that
the license of an established sovereign is key to his thinking.183 He summarises the effect
of Gentili’s writings on the evolution of the meaning of a pirate:
‘“[P]iracy” was not a matter of permanent war with communities pursuing
violent tax collections at sea or basing part of their economy on booty seized
from their neighbours. “Piracy” to Gentili was apparently any taking of
foreign life or property not authorized by a sovereign, synonymous with
brigandage or robbery on land, i.e. that his conception of the criminal law
implications of the words pradones and latrones or latrunculi in Roman law,
which he does not analyse, applied equally to “pirates” without analysis.’184
Rubin also considers the significant impact of this position of Gentili, which he says might
be considered the birth of positivism as an operating theory of international law. 185 He
argues that this creates an enormous power186 placed in the hands of sovereigns, because
‘all takings were in some sense “criminal” unless authorized by a person whose legal power
180
Rolfe (1932) at 25.
Heller-Roazen (2009) at 107.
182
Idem (adeptio publicae caussae).
183
Rubin (1988) at 20. This licence refers and dates back to medieval times where Rubin states that
‘in an effort to avoid bringing about a state of war between princes that letters of marque and reprisal
[re-taking] were issued to private persons authorizing them to recapture from foreigners goods that
had been wrongfully taken by those foreigners’. (Idem at 21-22).
184
Idem. See the original translated text: Rolfe (1932) at 26, for an example illustrating this
summation by Rubin. See, also, Heller-Roazen (2009) at 108.
185
Idem at 58.
186
This power can be described more fully as a power of “recognition or non-recognition” to classify
belligerent behaviour as “piracy”. See Idem at 25.
181
54
to issue such an authorization were acknowledged, no degree of political organization or
goal could make a “rebel” into a lawful combatant or require the application of the laws of
war to the struggle against the rebel army.’187
2.2.2
Hugo Grotius
The most influential writer of the period, Hugo Grotius (1583-1645), disagreed with
Gentili’s emphasis on the power of an established sovereign through non-recognition to
place an active political community within the legal classification of the pirate.188 In other
words, he adopted a more naturalistic approach and opposed the juridical distinction
between the lawful and unlawful combatant based solely on a sovereign licence.189 He calls
for a more objective classification that does not focus on recognition or the derivation of
authority from some acknowledged prince, but through a determination of the character of
the opponent with reference to the nature of the association to which they belong.190 This
is a factual enquiry of the label, which attaches only to those who are banded together for
wrongdoing – but does not include societies formed for other reasons, even if also
committing illegal acts.191
2.2.3
Edward Coke
Another contemporary of Gentili was Sir Edward Coke (1552-1634), who was the Chief
Justice of England at the Common Law Court of the King’s Bench. His three-part work,
The Institutes of the Laws of England, written between 1628 and 1644, is a widely
recognised foundational document of the English common law. In the third part of this
work,192 Coke discusses the offence of piracy and other felonies committed upon the sea
and provides a technical analysis of the Statute of the period – and he does briefly refer to
the hostis phrase in the following context:
‘… if a subject had committed piracy upon another, this was held to be petit
treason, for which he was to be drawn and hanged: because pirate est hostis
humani generis and it was contra ligeanciae suae debitum’.193
187
Idem at 21.
Idem at 26.
189
Heller-Roazen (2009) at 110.
190
See Heller-Roazen (2009) at 110, and Rubin (1988) at 26-28.
191
Rubin (1988) at 27.
192
Concerning ‘High treason and other pleas of the Crown and criminal causes, 1797.
193
Edward Coke 4 Institutes of the Laws of England (1797) at 113.
188
55
Rubin analysed this aspect of Coke’s writing and remarked that to Coke, piracy at common
law was a type of petit treason and those who are not subject to the King of England cannot
break the tie of allegiance (contra ligeanciae suae debitum), since there is no such tie.
Therefore, they cannot commit treason and barring minor exceptions there cannot be a case
of a foreigner guilty of piracy.194 Goodwin comments that Coke does not explain why
pirates are hostis humani generis or why this makes piracy treason.195
2.2.4
Charles Molloy
Another writer whose works became influential after Coke, was Irish-born lawyer Charles
Molloy (1640-1690). In his treatise De Jure Maritimo et Navali or a Treatise of Affairs
Maritime and of Commerce, Molloy defines a pirate with reference to the hostis phrase in
the opening paragraph of his chapter on piracy:
‘A pirate is a Sea-Thief, or hostis humani generis, who to enrich himself,
either by surprise or open force, sets upon Merchants and others trading by
sea, ever spoiling their Landing, if by any possibility he can get mastery,
sometimes bereaving them of their lives and sinking their ships; the Actors
wherein, Tully [Cicero] calls Enemies to all, with whom neither Faith nor Oath
is to be kept. Against Pirates and as such live by robbery at sea, any prince
hath power to make War, tho’ they are not subject to his Government.’196
He notes further that although pirates ‘are called Enemies, yet they are not properly so
termed’, and he cites the criteria that define an enemy as enumerated by Cicero, set out
above, and accordingly excluding the pirate from the purview of an enemy who has a
commonwealth.197 Molloy’s doctrines are discussed further in this chapter, but at this stage
it can be noted that Molloy adopts much of Cicero’s writings, and it can be interpreted from
the paragraphs cited above that the power of the state to pursue pirates is wider than that of
Coke and extends to those who are not its citizens.
2.2.5
William Blackstone
194
Rubin (1988) at 46.
Goodwin (2006) at 991.
196
Molloy De Jure Maritimo et Navali 9th ed. (1769) at 75.
197
Idem at 77. See, also, Idem at 80, par. VII, which invokes the Ciceronian view that no oath of
allegiance is owed to the pirate.
195
56
A century later, Sir William Blackstone (1723-1780), an English jurist and judge, and noted
for his work Commentaries on the Laws of England, refers to the hostis phrase. In chapter
five of book IV, Blackstone develops on Coke and Molloy, and writes:
‘The crime of piracy, or robbery and depredation upon the high seas is an
offense against the universal law of society; a pirate being, according to Sir
Edward Coke, hostis humani generis. As therefore he has renounced all
benefits of society and government, and has reduced himself afresh to the
savage state of nature, by declaring war against all mankind, all mankind must
declare war against him; so that every community has a right, by virtue of self
defence, to inflict that punishment upon him, which every individual would in
a state of nature have otherwise been entitled to, for any invasion of his person
or personal property.198
This paragraph shows that while Blackstone cites Coke, he does not conclude that piracy
is a form of treason.199 Goodwin’s analysis shows that this view of Blackstone on piracy
seems to follow that of Gentili in that every individual has the right to punish pirates
wherever they are found because they are the enemies of mankind, and no longer enjoy the
privileges and protection of the law.200 However, contrary to Gentili’s view that the pirate
did not renounce his citizenship by virtue of committing an act of piracy, Blackstone
concludes that by engaging in unlawful pursuits, the pirate is stripped of his nationality.201
2.2.6
Travers Twiss
The hostis phrase then finds its way into the works of the prolific writer and English jurist,
Sir Travers Twiss (1809-1897). In his treatise on the Law of Nations,202 he expresses the
hostis phrase in the following context:
‘The maintenance of the peace of the sea is one of the objects of that common
law, and all offences against the peace of the sea are offences against the Law
of Nations, and of which all nations may take cognizance. The robber equally
with the murderer on the High Seas is technically a sea-fellon or pirate, and
every hand may be lawfully raised against him, he is, in fact, regarded as an
198
Blackstone 4 Commentaries on the Laws of England (1772) at 71.
See Goodwin (2006) at 992.
200
Idem.
201
Idem.
202
Twiss The law of nations considered as independent political communities: On the rights and
duties of nations in time of peace 2nd ed. (1884).
199
57
enemy of the human race (hostis humani generis). The pirate has no national
character, and to whatever country he may have originally belonged, he is
justiciable everywhere, being reputed out of the protection of all laws and
privileges whatever.’203
2.2.7
Later usage
The hostis phrase then received a more contemporary judicial scrutiny in the American
case The Ambrose Light,204 a prize proceeding. The court referred to an earlier case of
privateers commissioned by the deposed King James II where the Judges smiled and asked
counsel whether ‘there was ever any such thing as a pirate, if none could be a pirate that
was actually in war with all mankind’.205 The court remarked further: ‘Hostis humani
generis, it was said is neither a definition, nor so much as a description of a pirate, but a
rhetorical invective to show the odiousness of the crime’.206 Indeed, the court further
remarks that ‘no doubt indiscriminate violence and robbery on the high seas are piracy, but
it is doubtful whether any pirates ever really practiced or intended to practice, wholly
indiscriminate robbery upon all vessels alike and it was far from true that no acts are
piratical by the law of nations except such as are of that description’.207 In other words,
Kontorovich argues that no one supposed the pirate to actually be the enemy of all mankind;
it was a legal fiction and a mere embellishment and no part of the legal definition. 208 He
goes on to reason that ‘the hostis criterion simply restates another element of the piracy
offense – attacking without a writ of marque and such writs precluded the bearer from
attacking ships of the issuing state and its allies; thus the privateer was at most the enemy
of some or much of mankind’.209 He therefore concludes that ‘hostis just stands in for the
need for commerce raiders to obtain sovereign protection and that hostis is a criterion that
deals simply with regulatory formalities, and says nothing about the substantive conduct of
the parties.210
The preceding paragraphs of this section have presented a brief chronological reference to
the writings of learned publicists and their conceptions of the hostis phrase and associated
notions of an enemy. They were quoted above by virtue of their eminence and influence on
203
Idem at 290-291.
25F 408 [1885].
205
Idem at 422.
206
Idem.
207
Idem at 423.
208
Kontorovich (2004) at 235.
209
Idem.
210
Idem.
204
58
subsequent writers and state practice, and participation in the law-making process.211 Rubin
comments how Grotius and Gentili established or applied patterns of legal thought that
have been influential regardless of superficiality, and others like Molloy, Jenkins and
Blackstone have been significantly influential with regard to the course of Anglo-American
jurisprudence and practice – and therefore an examination of their patterns of thought, as
reflected in the extracts quoted above, have been necessary.212
2.3
Evaluation
What emerges prominently from the analysis above is that while a literal translation of the
hostis phrase has been constant, a consistent definition and contextualisation of an enemy
has been fleeting.213 It has been shown how the Romans applied the hostis phrase to
communities that committed depredations without declaring war, and thus the Romans
placed them in a state of perpetual war. The hostis phrase was then used in later writings,
starting with Gentili to refer to an outlaw who could never be in a state of war with
sovereign nations or princes. Pirates were thus seen as outside the realm of the law – and
therefore an illegitimate opponent. This differs markedly from the Roman conception of a
pirate. A positivistic approach was given to the concept of a pirate by Gentili, who argued
that a process of recognition by an authorised state or sovereign could legitimise the actions
of the pirate. It was then shown how a naturalistic approach by Grotius opposed this
construction and contested that the state of a pirate needed a factual inquiry into the
purposes of their association, rather than being based solely on the recognition of a
sovereign. The pirate was given a narrow construction as a form of treason by Coke and
enforceable only against its nationals. This contrasted with Molloy whose view was that
suppression and prosecution could extend to those who were not its citizens. The antagonist
as an individual was considered by the writers: Gentili argued that the acts of piracy did
not absolve the offender of his nationality, whereas Blackstone and Twiss contended that
the offender was stripped of his nationality.
With the conflicting views of writers, what remains is a phrase that could be described as
an unreliable epithet and a metaphorical invective,214 which does not deal with the
substantive conduct of pirates.215 Dickinson, writing in 1924, commented that ‘pirata est
hostis humani generis has been asserted many times, but not in the way to suggest so much
211
See Rubin (1988) at 305.
Idem.
213
See Goodwin (2006) at 994.
214
See Kontorovich (2004) at 233-234.
215
Idem at 235.
212
59
a constituent element of the offence as an epithet of opprobrium which the offence
deserves’.216 Rubin describes the paradox of the phrase as ‘the one phrase that all writers
seem to agree should fit somehow in any definition or description of “piracy”, [and] is the
one phrase impliedly linking the 17th century conception of “piracy” to classical writings,
and in no way fits the facts or the legal conclusions drawn by 17th century policy makers
or tribunals from those facts.’217 Heller-Roazen remarked that with such an exceptional
opponent, the many rules of combat were suspended: no battle was to be declared; no rules
respected; and no due form observed.218 He further assesses the effect being that the public
law of Europe could prescribe no interactions for the modern states when confronting their
uncounted anatagonists.219 This is seen in the macabre sentiments of Gentili: ‘a war with a
pirate has never been terminated by agreement or brought to an end by treaty of peace, but
the pirates have either saved their lives by victory, or have been conquered and compelled
to die’,220 and in the words of Jenkins who remarked that the unlawful combatants were
simply to be ‘subdued’ and ‘rooted out’.221 In the result, the hostis phrase and its associated
conceptions of an enemy – as expounded by the jurists above – are not comprehensive and
legally ambiguous.
Throughout the discussion, the scholarship around the phrase centred on the person of the
pirate – particularly whether the pirate possessed a sovereign licence and whether the pirate
was stripped of nationality. It is noteworthy that there is only a reference to the high seas
as the locus of pirate activity and while the hostis phrase survived through several centuries
of usage, there was no reference to the developing jurisprudence on the juridical nature of
the territorial sea – and what becomes of acts committed by pirates within that realm.
This chapter will now consider early definitions through selected seminal Anglo-American
cases.
III.
ON THE DEFINITION OF PIRACY: EARLY CASES AND DOCTRINES
At the outset, researchers into the evolution of piracy law took cogniscance of the
characteristic feature of piracy as a crime under international law (or the law of nations or
piracy jure gentium) and a crime under domestic (or municipal) law. Dickinson wrote of
Dickinson ‘Is the Crime of Piracy obsolete?’ 38 Harvard Law Review (1925-1926) 334 at 351.
Rubin (1988) at 84.
218
Heller-Roazen (2009) at 118.
219
Idem.
220
Rolfe (1932) at 22.
221
Wynne 1 Life of Sir Leoline Jenkins (1724) at lxxxvi.
216
217
60
piracy jure gentium as robbery or other unauthorised acts of violence against persons or
property committed upon the open seas.222 He then contrasted this with municipal law
which comprehends piracy as much or as little as the law-making authority of the particular
state may choose to make it, and that pirates in municipal law are offenders only against
the law of the state concerned.223 In municipal law, the jurisdiction to arrest and punish
must be confined to the particular state, and depends on the allegiance of the offender, the
locality of the offence, or the nature of the offence committed. 224The distinction between
municipal law and international law and their jurisdictional implications will become
apparent from the doctrines and cases below. This section discusses selected, seminal
Anglo-American cases – given their influence in later attempts at codification and frequent
citation in subsequent cases.
3.1.
Early English jurisprudence
A very early account of a definition of piracy can be found in a charge to the jury in an
Admiralty session in 1668, by Welsh academic and lawyer serving the Admiralty Court,
Sir Leoline Jenkins (1625-1685). He stated that:
There are some sorts of felonies and offences, which cannot be committed
anywhere else but upon the sea, within the jurisdiction of the Admiralty …
the chieftest of this kind is Piracy … You are therefore to enquire of all Pirates
and Sea-rovers, they are in the Eye of the Law Hostes humani generis,
Enemies not of one Nation … only, but of all Mankind. They are outlawed, as
I may say, by the Laws of all Nations: that is, out of the Protection of all
Princes and of all Laws whatsoever. Every Body is commissioned, and is to
be armed against them, as against Rebels and Traytors, to subdue and to root
them out.
… That which is called robbing upon the highway, the same being done
upon the water, is called piracy: now robbery, as’tis distinguished from
thieving or larceny, implies not only the actual taking away of my goods,
while I am, as we say, in peace, but also the putting me in fear, by taking them
away by force and arms out of my hands, or in my sight and presence; when
222
Dickinson (1925-6) at 339.
Idem.
224
Idem.
223
61
this is done upon the sea, without a lawful commission of war or reprisals, it
is downright piracy.225
From this charge, it appears that Jenkins interpreted the English law to commission
everybody as a law officer and the crude elements of the crime constructed as consisting
of armed robbery, without any authorisation from a sovereign through a letter of marque.
A further source of Jenkins’s views can be found in a subsequent charge to the Admiralty
Court in 1674/5.226 He draws on some of the provisions of the prevailing Statute of Henry
VIII,227 and comments that prior to the Statute, pirates often escaped punishment because
the civil law rules that were applied required that persons could not be convicted unless
they confessed their offences, or that there was direct proof by eye witnesses.228 Jenkins
was writing at the time when the Court of the Lord High Admiral was created – chiefly
because of the difficulties experienced in dealing with pirates.229 The Statute of Henry VIII
provided that a King’s commission should try piracies directed to the Admiral or his deputy
and to three or four other substantial persons designated by the Lord Chancellor. 230
According to the Statute, the offence must be ‘committed in or upon the Sea, or in any other
Haven, River, Creek or Place where the Admiral or Admirals have or pretend to have
Power, Authority or Jurisdiction’.231 Jenkins then explains the broad extent of this
jurisdiction in the following way:
Every Englishman knows that His Majesty hath an undoubted empire and
sovereignty in the seas232 that environ these his kingdoms … but besides these
four seas, which are the peculiar care, and as it were, part of the domain of the
Crown of England, His Majesty hath a concern and authority (in right of his
Imperial Crown) to preserve the public peace, and to maintain the freedom
225
Wynne (1724) at lxxxvi. (Charge given to an Admiralty Session within the Cinque Ports, 2
September 1668).
226
This charge has been persevered in a commentary by Baker ‘IV – A Charge by Sir Leoline
Jenkins, at an Admiralty Session, 1674-5’ Law Magazine and Review; a Quarterly Review of
Jurisprudence and Quarterly Digest of Reported Cases 10 (1884-5) 5th Serv. 412.
227
Offences at Sea Act, 28 Henry VIII c. 15 (1536) ‘For Pirates’. The full text of the Statute has
been appended et seq to this thesis, and is referred to herein as the Statute of Henry VIII.
228
See Statute of Henry VIII at §I (2). See, also, Baker (1884-5) at 412, and Dickinson (1925-6) at
340.
229
Dickinson (1925-6) at 340.
230
Statute of Henry VIII at §I (3)-(4). The difficulties experienced in bringing pirates from remote
places to England for trial at the Old Bailey, led to further legislation authorising trials at sea or in
the colonies: see Dickinson (1925-6) at fn 26.
231
See Statute of Henry VIII at §I (3).
232
For a description of the ‘four seas’ of Britain, see Coke First Part of the Institutes of the Laws of
England 19th ed. 1838(1) at 157-8, fn 6. The British Seas at this time were considered to extend by
virtue of long custom and usage right up to the coasts of the Netherlands and France: See Rubin
(1988) at 87.
62
and security of navigation all the world over, so that not the utmost bound of
the Atlantic Ocean, not any corner of the Mediterranean, nor any part in the
South or other Seas, but that if the peace of God and the King be violated upon
any of his subjects, or upon his allies or their subjects, and the offender be
afterwards brought up or laid hold on in any of His Majesty’s ports, such
breach of the peace is to be enquired of, and tried … in such country, liberty,
or place, as His Majesty shall please to direct. So long an arm hath God, by
the laws given to his Vice-regent the King, and so odious are the crimes of
piracy, bloodshed, robbery and other violence upon the sea, that justice
observes and reaches the malefactors even in the remotest corners of the world
… This power and jurisdiction which His Majesty hath at sea in those remoter
parts of the world, is but in concurrence with all other sovereign princes that
have ships and subjects at sea.233
This extract illustrates an early form of what was to develop as universal jurisdiction. The
far-reaching jurisdiction is evident from the language and description. It appears that
provision is made for the application of English municipal law that has no restriction in
terms of territorial extent – with a principal proviso of cooperation with other Sovereigns
through the exercise of concurrent jurisdiction.234 Now having set out the extent of
jurisdiction, Jenkins then turned to define the crimes that are the subject matter of the
Court’s enquiry. He explains that robbery when committed upon land constitutes three
elements: a violent assault; the victim must be deprived of their possessions; and the victim
must be put in fear as a result.235 He goes on to state that when this is done upon the sea,
when one or more persons enter on board a ship with force and arms, and that those in the
ship have their ship carried away by violence, or their goods are taken from their
possession, and are put into fright by the assault - this is piracy, and he that does so is a
pirate or robber within the Statute.236 A closer reading of Jenkin’s writings seems to indicate
that a mutiny on a vessel would not constitute piracy, as the perpetrator must enter or board
a victim vessel. His views differ from those of Coke, who regarded piracy as a form of
treason, because, in Jenkin’s analysis, any attack on a foreigner who is in amity237 with the
King would also be considered piracy justiciable by the realm. A clear exemption from
233
Cited in Baker (1884-5) at 414-415.
Rubin comments that under Jenkins’ rationale for allowing private justice to be meted out to
pirates, he appears to have considered the Admiral’s jurisdiction under English law to extend
everywhere on the seas as if territorially based (with my emphasis). See Rubin (1988) at 87.
235
Idem at 425.
236
Idem.
237
Described as amicitia regis. See idem.
234
63
piracy by an aggressor is where there is a commission from a foreign prince who is a lawful
enemy.238 The aggressor must, however, act within the bounds of his commission, and
cannot despoil and rob those that his commission warrants him not to fight or meddle
with.239
Rubin categorises Jenkin’s writings as adopting a positivistic approach and concludes that
‘from this point of view, there is no international law of “piracy”; only a municipal law
authorizing its subjects to act against some people which that municipal law designates
“pirates” on whatever basis it chooses’.240 This contrasts with the views of Molloy who
adopted a naturalistic approach. This latter approach, is quite significant.241 Molloy also
provides for a broad scope of self-help in the realm of the ocean:
‘If Piracy be committed on the Ocean, and the Pirates in the attempt there
happen to be overcome, the Captors are not obliged to bring them to any port,
but may expose them immediately to punishment, by hanging them up, at the
Main-yard end before Departure; for the old natural liberty in places where
there are no Judgments.242
So likewise, if a Ship shall be assaulted by Pirates, and in the Attempt the
Pirates shall be overcome, if the Captors bring them to the next port, and the
Judge openly rejects the Trial, or the Captors cannot wait for the Judge without
certain peril and loss, Justice may be done upon them by the Laws of Nature
and the same may be there executed by the Captors.’243
The clear distinction between Molloy and Jenkins is Molloy’s reference to the Laws of
Nature. This underlies Molloy’s view that there is a natural law forbidding any person to
deprive another of life or property, without a higher motive supported by reason – life and
property being the natural right of all.244 The justice ‘done upon them by the Laws of
Nature’ infers that the tribunal must be guided by reason – in the light of higher principles
of justice and morality.245 Rubin, in his analysis of the period, reveals that this latter notion
238
Idem at 426.
Idem. See, also, Molloy (1769) at 76 par. II.
240
See Rubin (1988) at 91.
241
Rubin (1988) at 90.
242
Molloy (1769) at 83, par. XII (with my emphasis).
243
Idem at 84, par XIII (with my emphasis). See, also, Idem: Chapter IX (Of the Laws of Nature and
Nations) at 338, par. VI.
244
Rubin (1988) at 90.
245
See Idem at 91.
239
64
of natural justice was of little practical value, so leaving the approach of Jenkins as the only
one that made sense in the circumstances. He wrote:
‘…[N]aval officers or merchants seeking to protect their lives or property or
the lives or property of those who rely on them for protection, the notion that
deep analyses of the underlying values of society must be undertaken before
a “pirate” can be hanged is absurd. A simple rule that life and property can be
legally protected from any assault is attractive, and the notion that any
responsible person is commissioned by the operation of law, whether via a
commission issued by the Crown’s officers or by direct operation of the
King’s will without a written commission, is irresistible.’246
Turning now to some of the cases – one of the earliest and most frequently cited is a 1696
English precedent, Rex v Dawson.247 In this case, the King’s Counsel read out the
indictment: ‘The prisoners are indicted for Piracy, in robbing and plundering the ship
Gunsway, belonging to the Great Mogul, and his subjects, in the Indian Seas, to a very great
value.’248 The case is quoted for the Judge of the Admiralty’s charge to the Grand Jury on
that occasion. Sir Charles Hedges addressed the grand jury on three issues: the nature of
the crimes they were to enquire after; the extent of the jurisdiction and power in making
such enquiries; and the duty incumbent on the jury.249 As to the first issue, Sir Hedges
defines the crime of piracy:
‘Now piracy is only a sea-term for robbery, piracy being a robbery committed
within the jurisdiction of the Admiralty. If any man be assaulted within that
jurisdiction, and his ship or goods violently taken away without any legal
authority, this is robbery and piracy. If the mariners of any ship shall violently
dispossess the master, and afterwards carry away the ship itself, or any of the
goods, or tackle, apparent or furniture, with a felonious intention, in any place
where the Lord Admiral hath, or pretends to have jurisdiction, this is also
robbery and piracy. The intention will, in these cases, appear by considering
246
Idem at 92.
(1696), 13 How. St. Tr. 451. For a useful transcript of the entire proceedings, published by Joe
Everingham in 1696, and entitled The Tryals of Joseph Dawson, Edward Foreseith, William May,
William Bishop, James Lewis and John Sparkes, see facsimile available through the United States
Library of Congress at: http://www.loc.gov/law/help/piracy/piracy_trials.php.
248
Everingham (1696) at 4.
249
Idem at 5-6.
247
65
the end for which the fact was committed; and the end will be known, if the
evidence shall shew you what hath been done.’250
From this extract, it can be seen that the breadth of the crime is apparent, and that it
encompasses acts of mutiny where the entire act is committed on board a single vessel.
Intention to commit robbery or animus furandi does not appear to be an element, other than
the actual act of the taking. Turning to the second issue on jurisdiction, Sir Hedges declares:
‘The King of England hath not only an empire and sovereignty over the British
seas; but also an undoubted jurisdiction, and power, in concurrency with other
Princes and States for the punishment of all piracies and robberies at sea, in
the most remote parts of the world, so that if any person whatsoever, native or
foreigner, Christian or Infidel, Turk or Pagan, with whose country we have no
war, with whom we hold trade and correspondence, and are in amity, shall be
robber or spoiled, in the narrow seas, the Mediterranean, Atlantic, Southern or
any other seas, or the branches thereof, either on this, or the other side of the
line, it is piracy within the limits of your enquiry and the cognizance of this
Court.’251
This unqualified assertion of an expansive jurisdiction was criticised by Rubin: Firstly, Sir
Hedges did not consider whether an Englishman was authorised by an implied commission
or by universal natural law to hang pirates wherever they are captured.252 Secondly, the
issue of universal jurisdiction253, insofar as it relates to the applicability of English
conceptions of piracy as a crime to foreigners acting beyond the realm of English territorial
claims, is not addressed.254
250
Idem.
Idem. This wide seaward jurisdiction can be compared to Molloy’s assertion that piracy cannot
exist in Ports of the Realm. He writes: ‘Though a Port be Locus publicus uti pars Oceani, yet it hath
been resolved more than once, that all Ports, not only the Town, but the Water is infra corpus
Comitatus. If a Pirate enters into a Port or Haven of this Kingdom, and a Merchant being at Anchor
there, if the Pirate assaults him and robs him, this is not Piracy, because the same is not done super
altum mare; but this is downright Robbery at the Common Law, for what the Act is infra corpus
Comitatus, and was inquirable and punishable by the Common Law.’ De Jure Maritimo et Navali
(1769) at 96, par. XXVII.
252
Rubin (1988) at 90.
253
A fuller discussion of universal jurisdiction and its associated cases appear later in this Chapter.
254
Rubin (1988) at 93. In any event, in the case none of the defendants were foreigners, rendering
the issue of universal jurisdiction moot. As a result, Rubin concludes that the entire proceeding can
be rationalised as the application of English municipal law to Englishmen through the normal
processes of English judicial administration, and the unqualified assertions of extensive jurisdiction
and authority as puffery: See Idem.
251
66
3.2.
Nineteenth Century English practice and jurisprudence
By the turn of the Eighteenth Century, British naval power dominated the oceans to such
an extent that British assertions of law were seen as persuasive statements of true
international law, and were acquiesced by other states where not protested.255 In common
parlance it was often said that piracy was suppressed to near extinction at the end of the
Nineteenth Century through direct naval intervention. However, understanding the policy
and rationale behind British Nineteenth Century practice is useful because of its domination
in terms of influencing public international law, and, secondly, through imperial
interpretations of piracy.
Dickinson commented that there have been several cases that demonstrated that universal
hostility or the intention to plunder without discrimination are not an element of the
offence, and there are a few cases where seizures were made by naval forces of
unrecognised insurgents which have been regarded as piratical.256 Shifting from the
common element of robbery in piracy, this section considers selected incidents which
demonstrated how British Imperial authorities interpreted unique foreign insurrections
within the ambit of piracy.
An early theory for British naval action derives from an analogy with slave trade by the
British Foreign Secretary, Lord Castlereagh, in 1818. His theory was based on a naturalist
foundation, which proposed that if a law is common to the municipal orders of all civilised
states, then that law reflects a natural law which exists independently of state boundaries.257
This would then relieve British naval action from the normal rules of ‘standing’ 258 and
becomes the basis for British action against foreigners abroad for violating the law of
nations, which was conceived as a part of international law.259
See Rubin (1988) at 201. He remarks that: ‘British sea power emerging from the Napoleonic
Wars so dominated international sea commerce that it is difficult throughout the nineteenth century
to distinguish British interpretations of international law uttered for the purposes of self-justification
and adversary argument from statements of international law persuasive on all states participating
in the international legal order as defined in Europe.’ Idem at 201.
256
Dickinson (1825-6) at 352.
257
Discussed in Rubin (1988) at 203-204. Ultimately, his arguments were rejected. For a general
account of piracy during this period, see McCarthy Privateering, Piracy and British Policy in
Spanish America 1810-1830 (2013).
258
For example, English municipal law would not apply to a foreign ship on the high seas.
259
Rubin (1988) at 203.
255
67
Piracy, as a word, was then incorporated into military/political vocabulary in legislation260
which had been aimed solely at encouraging the British Navy to fight Napoleon’s warships
through a substantial financial inducement provided in the Bounty Act.261 The Navy later
applied this when its focus shifted to the protection of the growing maritime commerce of
the empire.262 According to Rubin, this Bounty Act did not require any adjudication of the
criminality of anybody, and seems to have continued the wartime legislation to cover acts
against pirates – in what appears once again to be a literal reading of the hostis phrase.263
In other words, under the Bounty Act, the British seemed to assume they were legally at
war with all who obstructed the expansion of British dominance – both on the high seas
and elsewhere.264
3.2.1
The Qawasim in the Persian Gulf
British dominance in its political activities in the Persian Gulf,265 became evident when, in
1806, the British established formal relations with the Sheikh of Qawasim as a result of the
increase in piracy and lawlessness at sea in that area.266 The British were motivated by a
desire to keep open an important commercial and mail route267 Pursuant to this, a
“contract”268 was concluded between the Sheikh and the British East India Company in
1820, in an attempt to stabilise the legal order in the Persian Gulf in a way that would
protect their shipping interests.269 The contract does not have much probative value for the
purposes of this analysis, as there is no definition of piracy with a clear element of animus
furandi, and no provision for the legal result of the label as used. What is significant,
however, is Rubin’s conclusion that the word piracy was being used ‘in a political sense
260
See 6 Geo. IV c. 49 (1825), Piratical Ships (Bounty Act); 13 & 14 Vic. C. 26 (1850), Piracy
(Bounty Act).
261
Rubin (1988) at 204-205.
262
Idem.
263
Idem at 206.
264
Idem.
265
This region was chosen for analysis here because of its proximity to the East African seaboard
and Indian Ocean, and it lends a historical context to the region.
266
See, generally, Rubin (1988) for a more detailed discussion at 206-211.
267
For a comprehensive analysis, see, generally, Al-Otabi The Qawasim and British Control of the
Arabian Gulf (1989) Unpublished PhD Thesis, University of Salford.
268
Rubin is critical of the true nature of this agreement, in that the British dominated the negotiation
and controlled the translations between English and Arabic (Rubin (1988) at 206-208).
269
Idem at 206. The full text of the contract appears as annexure D in Al-Otabi (1989) at 187, and
cited as 70 C.T.S. 464 (extracts thereof are in Rubin (1988) at 207-8). For example, Article 2
provides: ‘If any individual of the people of the Arabs contracting, shall attack any that pass by land
or sea, of any Nation whatsoever, in the way of plunder and piracy, and not of acknowledged war,
he shall be accounted an enemy of all mankind, and shall be held to have forfeited both life and
goods; and acknowledged war is that which is proclaimed, avowed, and ordered by Government
against Government, and the killing of men and taking of goods, without proclamation, avowal, and
the order of Government is plunder and piracy.’
68
implying a British intention to suppress by force whatever the British determined
unilaterally to be “piracy”, and whether on land or seas, and without any criminal or
Admiralty proceedings in any court’.270 The British were tempted, in the circumstances, to
regard any political action by others that obstructed the course of commerce as illegal, and
under-unwritten ‘British Imperial Law’ enforcement powers were given to the navy by
direct action rather than to the judiciary.271 This notion seems to have been confirmed by
other writers in the Middle East. Al Otabi advanced a thesis that the Qawasim were ‘protonationalists concerned to forge a nation in the Gulf, [and were] only peripherally interested
in the proceeds of piracy and much more influenced by the desire to maintain their
commerce from the ruthless competition of the East India Company’. 272 The ruler of
Sharjah, Sheikh Sultan bin Mahomed Al Qasimi, writing in 1986, challenged the
conventional view that justified British imperial invasion in the region because of the need
to suppress Arab piracy. He argues that the company was determined to increase its share
of the Gulf trade with India at the expense of native Arab traders – especially the
Qawasim.273 He further states that the Company, however, did not have the necessary
warships and needed to persuade the British government to commit the Royal navy to
achieve this dominance, and, accordingly, the East India Company orchestrated a campaign
to misrepresent the Qawasim as pirates who threatened all maritime activity in the northern
Indian Ocean.274 The Imperial policy of the period was thus summarised by Rubin, to the
effect that the British East India Company’s officials wanted the privileges of war
themselves in the struggles with the Arab Sheikhdoms and military arms and unruly
merchants, but also wanted to deny the legal status of prisoners of war and belligerent rights
of search and seizure to those Arabs.275 Thus, piracy, reminiscent of the Roman conception
of pirata, was used by the British to achieve these ends.276
In this way, it can be seen that the word ‘piracy’ now began to take on a broader definition
than what was originally envisaged in earlier English jurisprudence, as relating to robbery
within the jurisdiction of the Admiral. However, the British administration soon sought
other methods to spread the ambit of British Imperial law to make sea lanes safe for
peaceful trade. In doing so, they proposed that the focus shift out of the courts and asserted
a right in British Imperial law to hunt down pirates as a matter of enforcing not the
270
Rubin (1988) at 209.
Idem at 210.
272
Al-Otabi (1989) at 164.
273
See, generally, Al Qasimi The Myth of Arab Piracy in the Gulf (1986); extracted from the abstract
available at: http://www.amazon.com/Myth-Arab-Piracy-Mohammed-Al-Qasimi/dp/0709921063.
274
Idem.
275
Rubin (1988) at 211.
276
Idem.
271
69
municipal law administered by Admiralty courts, but of a British version of international
law against pirates who were not protected by the laws of war and were seen as outlaws
requiring no special licence under international law for action against them.277
3.2.2
The Serhassan pirates
An example of this wide jurisdiction can be seen in the 1845 case of the Serhassan
Pirates.278 In this case, H.M. ship of war Dido, under the command of Captain Keppel, was
given orders from Singapore to reconnoitre pirates. On the morning of 10 May 1843, the
cutters dispatched from the Dido spotted six large native skiffs nearing the island of
Serhassan, off the coast of Borneo. Evidence was led that the skiffs manned by 120 men
approached the cutters with loud cries, accompanied by the beating of gongs and other
indications of hostility.279 Notwithstanding warnings issued by the commanding Lieutenant
on board the cutter, the skiffs continued to engage the cutters and commenced firing –
resulting in an armed contest ensuing. The skiffs were subdued and those that fled to the
shore were captured. A tally of 55 men were either killed or taken into custody. A bounty
was claimed under the provisions of the 1825 Bounty Act,280 and, therefore, the issue arose
as to whether the attack made upon the cutters constituted an act of piracy, so as to bring
the persons who were on board within the legal denomination of pirates.281 Dr Lushington
held that:
‘It matters not that they may possibly have entertained no inclination to bring
themselves in conflict with the British power; it is sufficient, in my view of
the question, to clothe their conduct with a piratical character if they were
armed and prepared to commence a piratical attack upon any other persons.’282
Considering that the only act of “piracy” alleged against the Serhassan pirates was their
engagement of the British force under the command of Captain Keppel, the judgment of
Dr Lushington is extremely sparse. The engagement involved no element of animus furandi
and Dr Lushington did not define ‘piratical character’ or provide any analysis thereof. Dr
Lushington’s view that they were armed created an inference of piratical character, is vague
277
Idem at 230.
The Serhassan (Pirates), 3 British International Law Cases 788. Also cited as 2 W. Rob. 354
(1845).
279
Idem at 788.
280
6 Geo. IV c. 49 (1825), Piratical Ships (Bounty Act); 13 & 14 Vic. C. 26 (1850), Piracy (Bounty
Act).
281
The Serhassan (Pirates) (1845) at 789.
282
Idem (with my emphasis).
278
70
and seems to afford the Serhassan pirates with no refuge within the bounds of their territory.
He went on the hold that ‘It can make no difference whether they were inhabitants of that
or any other island’,283 seemingly disregarding the protection of their nationality. One of
the direct impacts of the case was that is precipitated a proliferation of claims under the
Bounty Act – to the point that it had to be repealed.284 The engagement took place close to
the coast and the capture on the shore. This was not in the realm of the high seas, and the
judgment seems to take notice of this:
‘[i]t [cannot] be imagined that the title of pirate attached solely to persons
following an avowed piratical occupation upon the high sea. In the seas where
this transaction took place there is every species of distinction to be found.’285
3.2.3
The Magellan pirates
Dr Lushington also presided over another frequently cited case of the Magellan Pirates.286
The judgment records that towards the end of 1851 there was an insurrection in some of
the dominions belonging to the States of Chile. There was a Chilean convict settlement
where an insurrection took place against the Governor and the insurgents seized an
American and British Ship The Eliza Cornish which was anchored in the port – murdering
her Master and owner, and then made out to sea. A British Sloop then recaptured the
vessel.287 The case thus arose on a petition, filed on behalf of the Sloop that captured the
Eliza Cornish and its insurgents, praying that the Court determine, pursuant to the
provisions of the Bounty Act, that certain persons were pirates, and to determine the
number thereof, in order to make an application for Bounty under the Act.288 Dr Lushington
found that:
‘In the administration of our criminal law, generally speaking, all persons are
held to be pirates who are found guilty of piratical acts; and piratical acts are
robbery and murder upon the high seas. I do not believe that, even where
human life was at stake, our Courts of Common Law289 ever thought it
283
The Serhassan (Pirates) (1845) at 789.
Rubin (1988) at 231.
285
The Serhassan (Pirates) (1845) at 790.
286
[1853] 1 Spink Ecc. & Ad. 81.
287
Idem at 85.
288
Idem at 81.
289
Rubin comments that this is, in fact, incorrect, as English Common Law Courts were never
involved in ‘piracy’ cases. See Rubin (1988) at 233.
284
71
necessary to extend their inquiries further, if it was clearly proved against the
accused that they had committed robbery and murder upon the high seas.’290
Dr Lushington goes on to describe the acts of the insurgents as ‘in one sense, of wanton
cruelty, in the murder of foreign subjects, and in the indiscriminate plunder of their
property. I am of the opinion that the persons who did these acts were guilty of piracy, and
were deemed to be pirates’.291 Lushington adds a different conception of the elemental
framework of the piracy concept, in that he held ‘it was never, so far as I am able to find,
deemed necessary to inquire whether parties so convicted of these crimes had intended to
rob on the high seas, or to murder on the high seas indiscriminately’.292 This creates the
precedent that an intention of universal hostility is not a requisite element of the offence
piracy jure gentium.293 His analysis crafts a way for circumstances to distinguish acts of
insurgency from piratical acts. Lushington held:
‘It is true that where subjects of one country may rebel against the ruling
power, and commit divers[e] acts of violence with regard to that ruling power,
that other nations may not think fit to consider them as acts of piracy … I think
it does not follow that, because persons who are rebels or insurgents may
commit against the ruling power of their own country acts of violence, they
may not be, as well as insurgents and rebels, pirates also; for other acts
committed towards other persons. It does not follow that rebels or insurgents
may not commit piratical acts against the subjects of other states, especially if
such acts were in no degree connected with the insurrection or rebellion.’294
In the above extract, Dr Lushington acknowledges that other nations may not consider
certain types of acts as piracy, but he assumes, however, that British courts, applying a
municipal conception of ‘piracy’ as a crime under English law, faced no conflict under the
international legal order:
290
[1853] 1 Spink Ecc. & Ad. 81 at 83.
At 86 (with my emphasis). Rubin (1988) at 236 is critical of Lushington’s approach in the
defining of ‘piratical’ and he argues that his search for a meaning for the adjective ‘piratical’, rather
than a meaning for the noun ‘pirate’, indicates the narrow scope of his logic. He further concludes
that the Bounty Act was construed to provide bounties for those engaging with persons committing
‘piratical acts’ whether or not ‘pirates’ technically – and whether or not amenable to the jurisdiction
of British courts.
292
[1853] 1 Spink Ecc. & Ad. 81 at 83
293
See Dickinson (1925-6) at 356.
294
[1853] 1 Spink Ecc. & Ad. 81 at 83.
291
72
‘Though the municipal law of different countries may and does differ, in many
respects, as to its definition of piracy, yet I apprehend that all nations agree in
this: that acts, such as those which I have mentioned, when committed on the
high seas, are piratical acts and contrary to the law of nations.’295
The judgment has been criticised by Rubin, who observes that: (i) throughout the opinion
by Dr Lushington, his concern is not with establishing any definition of piracy, in
international law or municipal law; he failed to distinguish between those who might have
had political motives from those acting animo furandi;296 (ii) his concern did not pertain to
the reach of British jurisdiction, but only to the acts of those who claimed a licence from a
foreign belligerent: insurgents.297 In summation, Rubin argues that the precedent value of
the case becomes petty, as it turns out to have nothing to do with definitions of piracy.
Rather it is a construction of a municipal statute giving a municipal reward to designated
agencies of government deployed to suppress an activity in the public sphere, which the
Parliament felt should be suppressed.298
The judgment provides three propositions in relation to locus of piracy, which are relevant
to cite here299:
(i)
He cites a text, Russell on Crimes which stated ‘[i]f a robbery be committed in
creeks, harbours, ports … in foreign countries, the Court of Admiralty
indisputably has jurisdiction of it, and such offence is consequently piracy’.300
(ii)
He also refers to a case where ‘a prisoner was indicted for stealing three chests of
tea out of the ‘Aurora’ of London on the high seas, and it was proved that the
larceny was committed while the vessel lay of Wampa, in the river, twenty or
thirty miles from the sea, but there was no evidence as to the tide flowing or
otherwise, at the place where the vessel lay, [and] it was held, from the
circumstance that the tea was stolen on board the vessel which had crossed the
ocean, [and] that there was sufficient evidence that the larceny was committed on
the high seas’.301
295
At 83. See, also, Rubin (1988) at 234.
Idem at 235.
297
Idem at 234.
298
Idem at 236.
299
See, generally, Surbun ‘The developing jurisprudence to combat modern maritime piracy: A
crime of the high seas?’ 43 Comparative and International Law Journal of Southern Africa (2010)
1 at 17.
300
[1853] 1 Spink Ecc. & Ad. 81 at 84.
301
Idem.
296
73
(iii)
Another case cited by the court was where ‘A., standing on the shore of a harbour,
fired a loaded musket at a revenue cutter which had struck upon a sand-bank in
the sea, about 100 yards from the shore, by which firing a person was maliciously
killed on board the vessel, it was piracy.’302
Dr Lushington goes on to make a significant observation later in the judgment relating to
the locus of piracy:
‘It has been said that these acts were not committed on the high seas, and
therefore the murder and robbery not properly or legally piractical. This
objection well deserves consideration; for it is true that murder and robbery
done upon land, and not by persons notoriously pirates would not be piracy
… Had the vessels been recaptured whilst lying in port, there might be raised
an argument, though I do not say it would prevail, that these offences, legally
speaking, would not be classed as acts of piracy. I say it might be so; though
I am not disposed to hold that the doctrine that the port, forming a part of the
dominions of the State to which it belongs, ought in all cases to divest robbery
and murder done in such port of the character of piracy.’303
Another relevant dictum in the judgment relates to the locus of piracy: ‘we all know that
pirates are not perpetually at sea, but under the necessity of going on shore at various places;
and of course, they must be followed and taken there or not at all.’304
3.2.4
The Kwok-A-Sing pirates
Another saga which applied the naturalistic stance of Lushington’s notions of universal
jurisdiction, was the 1873 case The Attorney-General for Our Lady the Queen for the
Colony of Hong Kong and Kwok-A-Sing.305 This was the only case where British
jurisdiction was actually applied to a transaction wholly within a foreign vessel outside of
British territorial waters.306 The facts, as appearing in the judgment,307 were: on 30
September 1870, a French vessel La Nouvelle Pénélope, sailed from Macao with 310
‘coolie’ Chinese emigrants, including one Kwok-a-Sing, bound for Peru in South America.
However, about 100 of the emigrants complained of being kidnapped. Later, on 4 October
302
Idem.
Idem at 86.
304
Idem.
305
L.R. 5 P.C 179 (1873).
306
Rubin (1988) at 239.
307
L.R. 5 P.C 179 (1873) at 181.
303
74
1870, when the vessel was at sea, Kwok-a-Sing and other emigrants attacked the captain
and others of the crew, and killed them; they then took possession of the ship and compelled
the remaining seamen to conduct it back to China. They then landed and abandoned ship.
Some of the emigrants were arrested in China and tried there. Kwok-a-Sing escaped to
Hong Kong and was later arrested and charged before the magistrate. China requested his
extradition in terms of an extradition ordinance;308 however, immediately after the
commitment of Kwok-a-Sing, a writ of habeas corpus to discharge him was granted by the
Chief Justice of the Supreme Court of Hong Kong. 309 The Attorney-General then caused
Kwok-a-Sing to be again arrested on a charge of piracy jure gentium – with a view to his
trial on that charge before the Hong Kong Supreme Court. However, he was ordered to be
discharged again upon the ground that this second arrest was a violation of the Habeas
Corpus Act.310 The matter then went on appeal before the Privy Council. It appears, from
the circumstances, that the British government repeatedly refused to extradite Kwok-a-Sing
to China on charges of murder and piracy.311 Wells argues that Britain’s refusal to extradite
directly to China contradicted the extradition Ordinance referred to above.312 The Court
considered whether there was evidence that Kwok-a-Sing had been guilty of crimes against
the laws of China within the meaning of the Ordinance and through a detailed analysis 313
of the inapplicability of the Ordinance and treaties, and concluded in the negative.314 This
allowed the British government to assert universal jurisdiction, if the crime could be shown
as piracy jure gentium. The court had to consider whether there was sufficient evidence
before the magistrate that Kwok-a-Sing had committed an act of piracy jure gentium, and
held that there was sufficient prima facie evidence before the magistrate to justify his
committal for trial for the offence of piracy jure gentium.315 The court, in reaching this
conclusion, cited Sir Charles Hedge’s charge to the Jury in R v Dawson (quoted earlier in
this chapter), that brought within the ambit of piracy instances where mariners violently
dispossess the Master of the ship and proceed with felonious intentions. The court held:
Hong Kong Ordinance, No. 2 of 1850 provided that “Whereas, by the treaties between Great
Britain and China, provision is made for the rendition for trial to officers of their own country of
such subjects of China as have committed crimes or offences against their own Government, and
afterwards taken refuge in Hong Kong.’
309
At 184.
310
At 197.
311
The politics behind this approach by the British is beyond the scope of this thesis, but this has
been dealt with comprehensively in: Wells ‘Clashing Kingdoms, Hidden Agendas: The Battle to
Extradite Kwok-A-Sing and British Legal Imperialism in Nineteenth-Century China 7 University of
Pennsylvania East Asia Law Review (2011) at 161.
312
Idem at 163.
313
Wells argues that the British used skillful reasoning at that point to circumvent laws, in order to
assert their political domination (Wells (2011) at 161).
314
At 197-200.
315
At 199.
308
75
‘Of course there can be no difference between mariners and passengers, and
there was unquestionably evidence that Kwok-a-Sing was a part to violently
dispossessing the master and carrying away the ship itself and the goods
therein; and the only question can be whether there was sufficient evidence
that the act was done with a felonious, that is a piratical, intention. In their
Lordship’s opinion, there was evidence of such an intention on the part of
Kwok-a-Sing to be left to a jury, though they wish to be understood as giving
no opinion on which way a jury ought to find on this question.’316
The court was thus of the opinion that the magistrate should have committed Kwok-a-Sing
to be tried for piracy in Hong Kong and that the acts of piracy jure gentium may be plainly
distinguished from those acts of piracy which were in the ambit of the Ordinance and the
Treaties.317 All that was provided in an earlier commentary of this judgment, as to its
precedent value, was that ‘the seizure of a single ship by persons having no intention of
universal hostility might be piracy by the law of nations’.318 This was, however, a
significant political decision in a conflict for domination, and Wells in her comprehensive
analysis of Western-Sino relations of the period submitted that:
‘The Kwok-a-Sing decisions accordingly demonstrate how Britain utilized
English law and legal decisions in order to consolidate its own power by
rendering China politically, legally and culturally inferior. This in turn
provoked a lasting legacy of bitterness and deep skepticism towards the
Western international legal order that continues to define China’s relationship
with the West.’319
If one is to speculate and accept Well’s thesis, this may provide a context for the superficial
treatment of the analysis of piracy jure gentium by the Court. Counsel for Kwok-a-Sing
presented a cogent argument before the Court submitting that the crime was not piracy jure
gentium – because, to constitute that, there must have been violence ab extra, or the ship
must have been run away with for the purpose of depredation.320 In fact, Counsel submitted
that no crime was committed:
316
Judgment at 200.
Idem.
318
Dickinson (1925-6) at 355.
319
Wells (2011) at 165.
320
Judgment at 193.
317
76
‘The coolies had reasonable ground for supposing that they were deprived of
their liberty by the Captain and crew of the ship; they took possession of the
ship, and used a certain amount of violence that would be reasonably
necessary under those circumstances, we must apply a different standard in
the case of ignorant Chinese coolies from that which would be applied in the
case of Europeans.’321
These arguments were dismissed by the court without extensive analysis, and its definition
of piracy jure gentium rested entirely on a superficial reading of Sir Charles Hedge’s charge
delivered 177 years prior. More could have been said about distinguishing robbery from
mutiny. It was patent that the court refrained from attempting to determine questions of
evidence of intention animus furandi – a basic element essential to Hedge’s charge.322 In
the result, this was a missed opportunity to develop a definition of piracy within the unique
circumstances of the rebellion and subsequent taking control of the vessel by Kwok-a-Sing
and others.
3.2.5
The Battle of Pacacho and the Huascar incident
A final account that is worthy of mention here and that blurred the distinction between a
pirate and a political insurgent was the Battle of Pacacho, which arose in 1877 when one
Nicolas de Pierola was leading a revolution to overthrow the then President of Peru. The
crew of a Peruvian warship, the Huascar, who were supporters of de Pierola, mutinied and
took control of the vessel and left the Port of El Callao in Peru. A Peruvian diplomat had
then exchanged correspondence with the Chilean government calling on the latter to seize
the Husacar as a pirate ship.323After analysing the exchange of further diplomatic
correspondence, Rubin concluded that:
‘while the Governments of Chile and Peru disagreed as to the proper legal
classification to be given to the Husacar, belligerent rebels requiring Chilean
neutrality or Peruvian criminals of no legal concern at all to Chile but to be
denied a base of operations there and Peruvian property in Chile to be returned
to Peruvian authorities, they agreed that the international law regarding
‘piracy,’ if there were any such law, was not applicable.’324
321
Idem.
See Rubin (1988) at 241.
323
The extracts from this account summarised in this section are derived from Rubin (1988) at 258270, who analysed the correspondence and parliamentary reports pertaining to this incident, together
with his commentary thereof.
324
Idem at 262.
322
77
While this correspondence was in progress between the two governments, the Huascar
detained two British ships – demanding mail and dispatches– but it was recorded that the
boarding party left peacefully when the request was refused, but claimed and seized a cargo
of coal which was alleged to belong to Peruvians.325 The classification of the acts of the
Huascar became important: if they were classified as pirates, this would justify British selfhelp to recover the property. If, however, they were regarded as ‘rebels’ exercising
‘belligerent rights’, then the seized property would be ‘contraband of war’ against a neutral
state, to be resolved by diplomacy.326 Shortly thereafter, the British authorities sent two
warships, the Shah and Amethyst under Real-Admiral de Horsey, which then engaged the
Huascar – culminating in the Battle of Pacocha. The Huascar, which was an armoured
ship, withstood the barrage of ammunition from the British warships – including evading
the first ever use of a torpedo fired with intent to sink a ship.327 It is significant that this
engagement did not take place on the high seas, but within Peruvian territorial waters. The
Huascar then managed to escape under cover of darkness, but later surrendered to the
Peruvian authorities at port.328 In reporting to the Admiralty, de Horsey explained his
actions:
‘[H]aving no lawful commission as a ship of war, and owning no allegiance
to any State and the Peruvian Government having disclaimed all responsibility
for her acts, no reclamation or satisfaction could be obtained except from that
ship herself … That the status of the Huascar, previous to action with [my
fleet], was, if not that of a pirate, at least that of a rebel ship having committed
piractical acts … [and] that the status of the Huascar, after refusing to yield
to my lawful authority, and after engaging Her Majesty’s ships, was that of a
pirate.’329
The Peruvian government condemned this incident, particularly as the British had opened
fire within Peruvian territorial waters.330 The issue pertaining to the legality of the incident
325
Idem at 259.
Idem.
327
For the naval details of the engagement, see Stern Destroyer Battles: Epics of Close Naval
Combat (2008) at 15-16; and Little ‘The Naval Campaign in the War of the Pacific 1879-1884’ 24
Scientia Militaria, South African Journal of Military Studies (1994) at 1-8.
328
Rubin (1988) at 263.
329
68 British and Foreign State Papers 753 at 754-755; Rubin (1988) idem.
330
Idem at 746; C. 1883.2, cited in Rubin (1988) at fn 294, where the Peruvian Foreign Minister
commented that the Huascar did not, on account of having refused to recognise the authority of
government, cease to belong to Peru.
326
78
was referred to the Law Officers of the Crown,331 who appear to have adopted the view of
de Horsey, without referring to the term ‘pirate’.332 This conclusion has several
shortcomings: (i) the crew of the Huascar were still Peruvian and therefore not within
earlier contemplations of pirates as ‘stateless’;333 (ii) the actions of the Huascar were not
classified by the British as ‘belligerent’, committed by those who are recognised as such,
but extended to politically motivated acts of rebels or other groups committing
depredations without animus furandi;334 and (iii) lastly, and most importantly for the
purpose of this thesis, is that they did not address the issue of the direct violation of
Peruvian territorial waters.335 This shortcoming thus prevented the incident from setting a
major precedent in practice, and presents another missed opportunity to set out a clear
definition of the elements of piracy. To the contrary, Rubin concludes that the incident does
not even represent a view of British Imperial law, but instead is ‘a simple political argument
put forth by a government that has made an embarrassing mistake, covering it over with a
show of legal words convincing to nobody involved, except, perhaps, to Rear-Admiral de
Horsey’.336
3.3
Nineteenth Century American practice and jurisprudence
Across the Atlantic, the nascent United States of America dealt with piracy in legislation
and in the courts in a manner that merits some analysis.337 The starting point for this
analysis can be found in the Federal Constitution, which delegated power to Congress to:
331
The Law Officers of the Crown are the chief legal advisers to the Crown, and advise and
represent the central and devolved governments in the United Kingdom, and national and subnational governments in other Commonwealth realms. See, generally, Kyriakides ‘The Advisory
Functions of the Attorney-General’ 1 Hertfordshire Law Journal (2003) at 73-84.
332
They advised that: ‘Admiral de Horsey was bound to act decisively for the protection of British
subjects and British property, and … the proceedings resorted to by him were in law justifiable’
(cited in Rubin (1988) at 264).
333
Idem at 267.
334
Idem at 269, where Rubin also comments that it was for each state to decide for itself whether
any vessel could properly be classified as ‘piratical’, and no one state’s auto interpretation would be
binding on the other. In the parliamentary debates of the period, referred to in 36 Hansard
Parliamentary Debates (3rd ser.) 787-802, where Sir William Harcourt challenged the findings of
the Law Officers of the Crown, he pointed out that: ‘the acts of the Huascar hardly seem “piratical”
when all she did would have been permissible if she were conceded the rights at international law
of a “belligerent”. The Huascar indeed stopped two “neutral” (British) vessels, but did not seize any
property or mail, and left after being satisfied of their neutrality.’ (cited in Rubin (1988) at 264).
335
Idem at 266, where Rubin argues that no equivalent failure of Peruvian local authorities could be
alleged to justify an incursion based on British self-help or self-defence, and considering that, at the
time the Huascar was attacked there was no British legal interest under threat. Piracy and the
territorial sea will be discussed more fully in section IV of this chapter.
336
Idem at 268.
337
A fuller treatment of the law during this period can be found in Rubin (1988) at Ch. III; White
‘The Marshall Court and International Law: The Piracy Cases’ 4 The American Journal of
International Law (1989) 83 at 727-735; Lenoir ‘Piracy Cases in the Supreme Court’ 25 Journal of
79
‘define and punish piracies and felonies committed on the high seas, and
offences against the law of nations’.338
White, in his commentary of cases during the period, began by observing that the
Constitution anticipated that international disputes would regularly come before the United
States’ courts and that the decisions in those cases could rest on principles of international
law – without any necessary reference to the common law or to constitutional doctrines.339
White then studied the doctrines applied by the Marshall Court340 to ascertain just what was
“the law of nations”, as understood by the court of that period. He found that it had a
naturalistic foundation:
‘It was clear that the concept embraced more than the aggregate of
particularistic decisions: it was intended to signify general principals on which
“civilized” nations were in accord. Indeed, it was intended to signify
something more: a set of bedrock belief that lay behind those principles.’341
The Supreme Court had its highest concentration of piracy cases between 1815-1823, when
piracy reached its peak, mainly due to the turbulent political situation in South America’s
newly independent ‘republics’ – that created a market for illegal commerce in the North
Atlantic.342 During this period, the Court had to consider matters inter alia pertaining to the
definition of piracy, the nature of sovereignty, and the limits of the jurisdiction of the U.S.
courts.343 Of particular importance is the American approach to the interface between the
mechanism for punishing pirates under the law of nations, and under municipal law.
In terms of municipal law, pursuant to this authority granted by the Constitution, Congress
passed an ‘act for the punishment of certain crimes against the United States’ in 1790 344
(hereafter, the 1790 Act) – drafted by Senator (and later Chief Justice) Oliver Ellsworth.
The relevant provision with respect to piracy was incorporated in section 8.345 The section
Criminal Law and Criminology (1934) at 532; Dickinson (1925-6) at 342-350; Kent Commentaries
on American Law 1 2nd ed. (1832) at lecture IX; and Peter Statutes at Large 3 (1850) at 510.
338
Article I, §8, Cl. 10.
339
White (1989) at 727.
340
This refers to the U.S. Supreme Court under the eminent Chief Justice Marshall.
341
White (1989) at 728.
342
Idem at 729
343
Idem at 727.
344
1sr Cong. 2d Sess., 1 Stat. 112 (Act of 30 April 1790).
345
The full text of §8 provides:
80
was convoluted and Dickinson commented that confusion in application was a foregone
consequence.346 He pointed out that the section could be construed to provide for the
punishment of pirates jure gentium, in that it was applicable to the nationals of all countries
for acts committed on the ships of any flag.347 On the other hand, it made certain acts
piratical by virtue of a law peculiar to the United States, and therefore it could only be
applicable to American nationals, or on American ships.348Dickinson thus pondered on
these two constructions of the section: ‘who could tell from the text where one left off and
other began?’349
It was only a matter of time until the complexities of international relations would call into
question the interpretation of the section, and, in 1818, the United States Supreme Court
heard its first case pertaining to this section of the 1790 Act, in United States v Palmer.350
Questions for certification were referred to the Court from a Circuit court of Massachusetts,
which originally heard the matter. Because of this, no transcript, memorials or evidence
were provided to the court,351 resulting in a very meagre set of facts available for the case.
What could be ascertained is that one John Palmer and Thomas Wilson, who were
purportedly American citizens352 and mariners, invaded a Spanish ship, the Industria
Raffaelli, on the high seas and robbed its crew (who were subjects of the Spanish King) of
a cargo of sugar, honey, hides, coffee and bags of silver and gold valued at more than a
hundred thousand dollars.353 They were subsequently apprehended and indicted for piracy
‘That if any person or persons shall commit upon the high seas, or in any river, haven,
basin or bay, out of the jurisdiction of any particular state, murder or robbery, or any
other offence which if committed within the body of a country, would by the laws of
the United States be punishable with death; or if any captain or mariner of any ship or
other vessel, shall piratically and feloniously run away with such ship or vessel, or
any goods or merchandise to the value of fifty dollars, or yield up such ship or vessel
voluntarily to any pirate; or if any seaman shall lay violent hands upon his
commander, thereby to hinder and prevent his fighting in defense of his ship or goods
committed to his trust, or shall make a revolt in the ship; every such offender shall be
deemed, taken and adjudged to be a pirate and felon, and being thereof convicted,
shall suffer death; and the trail of crimes committed on the high seas, or in any place
out of the jurisdiction of any particular state, shall be in the district where the offender
is apprehended, or into which he may first be brought.’ (my emphasis).
346
(1925-6) at 344.
347
Idem.
348
Idem.
349
Idem.
350
16 U.S. (3 Wheat.) 610 (1818).
351
Judgment at 640.
352
See White (1989) at 730-731, where, although not stated in the judgment, he finds that they were
Americans claiming to be domiciliaries of an unrecognised South American Republic that was
engaged in a war of independence with Spain, and who possessed a commission from the Republic.
The court, however, seemed to regard the prisoners as foreign nationals in the circumstances. See,
also, Dickinson (1925-6) at 344, read with Judgment at 611.
353
Judgment at 611-612.
81
under section 8 of the 1790 Act in the court a quo. This court then referred a series of
questions for an opinion by the Supreme Court, and the relevant ones for discussion here
related to the construction of section 8. Two questions on aspects of the section are dealt
with, in turn, below.
The first dealt with the portion of the section which provided that: ‘murder or robbery, or
any other offence which if committed within the body of a country, would by the laws of
the United States be punishable with death’, and the question under issue therefrom which
was whether this included robbery that was not punishable by death if committed on land.
In other words, did the language mean that all robberies were made piratical acts or only
robberies punishable with death on land?354 Justice Marshall noted that the argument is
understood to be ‘that congress did not intend to make that a capital offence on the high
seas, which is not a capital offence on land’.355 Justice Johnson held that with regard to
crimes which may be committed either on the sea or land, the intention of the legislature
was to produce uniformity in punishment, so that where death was inflicted in the one case,
it should be inflicted in another.356
Johnson also applied a careful statutory construction to this phrase defining piracy in the
section - cautioning that: ‘as singular as it may appear, it really is the fact in this case, that
these men’s lives may depend upon a comma more or less’.357 The comma he was referring
to was one after the words “murder or robbery”, which separated it from “or any other
offence”. He read it as meaning that the relative of the phrase – i.e. it must be an offence
which if committed on land would be punishable with death – applied to all three
antecedents: murder, robbery and other crimes. Johnson, however noted that constructing
an interpretation which favours that all robberies are made piratical acts on the sea, could
lead to an inconsistency where ‘a whole ship’s crew may be consigned to the gallows for
robbing a vessel of a single chicken, even although a robbery committed on land for
thousands, may not have been made punishable beyond whipping or confinement’.358
Ultimately, the court held that a robbery committed on the high seas, although such
robbery, if committed on land, would not by the laws of the United States be punishable
with death, is piracy under the 1790 Act, and that the crime of robbery is that which is
defined at the common law.359
354
White (1989) at 731.
Judgment at 627.
356
Judgment at 637.
357
Judgment at 636.
358
Judgment at 639.
359
Judgment at 643.
355
82
The second and more complex issue dealt with by the court was the question of whether
the Act extended further than to American citizens or acts against foreign nationals on
foreign ships. The circumstances of the case were that a robbery had been perpetrated
against Spanish citizens on a Spanish ship. Here, the key part of the section analysed was:
‘That if any person or persons shall commit upon the high seas’. The court recognised that
these words imply terms of unlimited extent and are broad enough to comprehend every
human being.360 Yet, through an exercise of statutory interpretation361 the court chose to
view this general term in a ‘limited sense’. For example, the court looked at the title of the
Act – ‘an act for the punishment of certain crimes against the United States’ – and deduced
offences against the United States, not offences against the human race, which were the
crimes which the legislature intended, by this law, to punish.362 The court concluded that:
‘[T]he crime of robbery, committed by a person on the high seas, on board of
any ship or vessel belonging exclusively to subjects of a foreign state, on
persons within a vessel belonging exclusively to subjects of a foreign state, is
not piracy within the true intent and meaning of the act.’363
From this conclusion, it can be deduced that the Court regarded this section as a statutory
definition of piracy under municipal law, with no scope for the punishment of pirates in
domestic courts by the law of nations.364 This interpretation by the court of the definition
thus restricted the envisaged ambit of the Constitution to punish offences against the laws
of nations. This was criticised during the period, particularly by the American statesman
John Quincy Adams, whose handwritten memoirs which are preserved by the
Massachusetts Historical Society, revealed his disgust with the decision.365
360
Judgment at 631.
See, particularly, judgment from 631-634.
362
Judgment at 631.
363
Judgment at 643.
364
See Dickinson (1925-6) at 345.
365
In his diary entry of 11 May 1819 (at 107), he writes:
‘But the Supreme Court of the United States by a decision founded upon captious
subtleties, in Palmer’s case cast away the Jurisdiction which a Law of Congress had
given to the circuit courts in cases of Piracy committed by foreigners by construing
the words “any person or persons” to mean only citizens of the United States. Their
reasoning is a sample of judicial logic – disingenuous, false and hollow. A logic so
abhorrent to my nature, that it gave me an early disgust to the practice of law, and led
me to the unalterable position never to accept judicial office. In this case, if human
language means anything; Congress had made general piracy by whomsoever, and
wheresoever upon the high seas committed congnizable by the Circuit Courts – the
law has been in force from the 30th day of April 1790. Foreign pirates for piracies
committed in foreign vessels have been tried and hung by this authority, and now the
Supreme Court have discovered that any person or persons means only citizens of the
361
83
Following this decision, the Court in United States v Klintock366 revisited its position to
mitigate the limiting effects of the Palmer decision. In this case, Ralph Klintock, a citizen
of the United States, was indicted and convicted in the court a quo for piracy committed
on the high seas by the Norberg, a Danish vessel. He falsely claimed that he was
commissioned by one styling himself as Brigadier Aury of the then unrecognised “Mexican
Republic” which was at war at Spain, and consequently falsely claimed that the Norberg
was a Spanish vessel which could be seized pursuant to such commission.367 As to this
contention, the court found that that the Norberg was not captured jure belli but seized
animo furandi. Thus it was not a belligerent capture but rather a robbery on the high seas.368
In dealing with the significant issue of the application of the 1790 Act, the AttorneyGeneral pointed out the lacunae in the court’s application of section 8 in Palmer. These
were that it does not decide whether the same offence committed by a citizen on board a
vessel not belonging to the subjects of any foreign power, is not piracy.369 Chief Justice
Marshall appears to have confirmed this view, and thus through a ‘reconsideration’ of the
earlier approach in Palmer, he held that while section 8 of the 1790 Act, with its reference
to general piracy committed by any person, ought not to extend to persons under the
acknowledged authority of a foreign state, it should be construed to comprehend those who
acknowledge the authority of no state370 and who thus ‘throw off their national character
by cruising piratically and committing piracy on other vessels’.371 This judgment was thus
a positive step to restore the adjudication of piracy jure gentium prosecutions under the law
of nations by national courts contemplated in the American Constitution – as Chief Justice
Marshall declares:
United States, and that piracy committed by foreigners in foreign vessels is not
punishable by the laws of the United States.’
Extracted from: www.masshist.org/jqadiaries/php/popup?id=jqad31_107.
366
18 U.S. (5 Wheat.) 144 (1820). See, generally, commentaries on this case in White (1989) at 732;
and Dickinson (1925-6) at 345-347.
367
Judgment at 144-145; see, also, commentary by White (1989) at 732.
368
Judgment at 150.
369
Judgment at 147.
370
Judgment at 152.
371
Judgment at 153. See Peter Statutes at Large 3 (1850) at 510, where it is reported that a ‘vessel
loses her national character by assuming a piratical character; and a piracy committed by a foreigner
on board such a vessel, upon any other vessel, whatever, is punishable under the eighth section of
the act of 30 April, 1790.” In United States v Furlong 18 U.S. (5 Wheat.) 203 (1820) – which
involved prisoners of various nationalities aboard ships cruising under domestic and foreign flags –
the court found that regardless of their nationality, the piratical acts were punishable under the 1790
Act and the crew assumed the character of pirates, whereby they lost all claim to national character
or protection (at 205).
84
‘Those general terms ought not to be applied to offences committed against
the particular sovereignty of a foreign power; but we think they ought to be
applied to offences committed against all nations, including the United States,
by persons who by common consent are equally amendable to the laws of all
nations.’372
The criticism of Palmer and the omission which was subsequently discussed in Klintock,
led Congress to enact a new Statute in 1819 (the 1819 Act),373 much to the delight of John
Quincy Adams, who wrote: ‘a new act was passed to patch over the enormous hole in the
moral garment of this nation made by this desperate thrust of the Supreme Court, and
general piracy was made expressly punishable by the circuit court’.374 Section 5 thereof375
provided:
‘And be it further enacted, That if any person or persons soever, shall, on the
high seas, commit the crime of piracy, as defined by the law of nations, and
such offender or offenders, shall afterwards be brought into or found in the
United States, every such offender or offenders shall, upon conviction thereof,
before the circuit court of the United States … be punished with death.’376
Thus, while the jurisprudence of the period followed the custom of crimes being statutorily
defined and their elements set forth with precision, Congress, in this instance, defined the
crime through a direct reference to the ‘law of nations’.377 Following from these cases, a
further particularisation of the concept of piracy under the law of nations would become
necessary. This arose at the trial of Thomas Smith and his shipmates in Richmond, Virginia,
which was subsequently brought before the Supreme Court in the seminal378 judgment
reported as United States v Smith.379 The facts appear very briefly from the indictment and
372
Judgment at 152.
An Act to protect the commerce of the United States, and to punish the crime of piracy; 15 th
Cong., 2nd Sess., ch. 77 (3 March 1819).
374
See fn 232 supra at 108.
375
This section was only meant to be in force until the end of the next session of Congress, but §2
of 16th Cong, 1st Sess., ch. 113 (Piracy Act of May 15, 1820) provided that the section is ‘continued
in force, as to all crimes made punishable by the same, and heretofore committed, in all respects as
fully as if the duration of the said section had been without limitation’.
376
With my emphasis.
377
White (1989) at 733.
378
Samuels (2012) at 322 infra, highlights the importance of the case in the development of
international law in the United States, in terms of understanding how domestic law should treat
international, and in particular, customary international law.
379
18 U.S. (5 Wheat.) 153 (1820) (reported directly after Klintock in the same volume). A
comprehensive analysis of this case can be found in Samuels ‘The Full Story of United States v
373
85
special verdict of the jury,380 but a detailed account of the evidence of the witnesses was
recorded in a media journal of the period, Niles Weekly Register.381 The episode arose out
of the war for independence in South America, and is tied to the fates of the crews of two
vessels: the Creola and the Irresistible which were commissioned by different colonies and
antagonists at war with Spain, as they rendezvoused at the island of Margaritta in March
1819. By this time, various circumstances caused unhappiness in the crews of both vessels,
and two crew members of the Creola led the crew in a mutiny.382 This mutiny was with a
view to seizing the Irresistible, an armed and faster vessel. In pursuance of this plan, the
Creola mutineers took two smaller boats from their ship, sailed to the Irresistible and led
a combined attack on and incitement to mutiny aboard that vessel.383 Notwithstanding some
of the reservations of the crew as to their true nature, believing they were still privateers
with a legitimate commission, a few days later the crew had officially become pirates when
the Irresistible proceeded upon a cruise, whereupon they boarded with animus furandi
(although without reports of violence) 10 to 40 ships of various nationalities.384 It appeared
that after three months at sea, the crew simply wanted to return home and believed they
could escape serious repercussions.385 However, once on land, the crew dispersed, but it
appeared they were quickly arrested and were charged under different indictments at
different courts.386
Thomas Smith and others were indicted under the newly passed 1819 Act and were taken
to Richmond for trial – and their appeals reached the Supreme Court in 1820. The AttorneyGeneral contended that what was envisaged by piracy under the law of nations – as framed
in the Constitution – was the definition of the offence given by writers on public law. He
submitted that ‘all these writers concur in defining it to be, depredation on the seas, without
the authority of a commission, or beyond its authority’.387 He supported his submission by
advancing that ‘there is no defect in the definition of piracy by the authorities to which we
are referred by this act. The definition given by them is certain, consistent, and unanimous;
and pirates being hostis humani generis, are punishable in the tribunals of all nations. All
Smith: America’s Most Important Piracy Case’ 1 Penn State Journal of Law and International
Affairs (2012) at 320-362.
380
Judgment at 154.
381
‘Law Intelligence: Crew of the Irresistible’ Vol.16, 7 August 1819 at 390-395 (preserved at the
University of California) and cited in Samuels (2012). The facts summarised in the main text
hereinabove are drawn from the judgment at 154, and Samuels (2012) at 335-349.
382
Samuels (2012) at 339-340.
383
Idem at 341.
384
Idem at 344-345.
385
Idem at 346.
386
Idem at 347.
387
Judgment at 155.
86
nations are engaged in a league against them for the mutual defence and safety of all.’388
Counsel for the appellants argued, however, that the offence could not be punished under
the 1819 Act because Congress is bound to define the crime of piracy and is not at liberty
to leave it to be ascertained by judicial interpretation.389 He argued further that the writers
on public law do not define the crime of piracy with precision and certainty, and therefore
the very defect rendered it necessary that Congress should define it in terms before it
proceeded to exercise the power of punishing the offence.390
With these issues at hand, Justice Story delivered the opinion of the Court. He holds that
‘[t]he power given to Congress is not merely to “define and punish piracies”; if it were, the
words “to define,” would seem almost superfluous, since the power to punish piracies
would be held to include the power of ascertaining and fixing the definition of the crime’.391
The court then looked to ascertaining what the law of nations provides on a subject, and
held that this can be found in: (i) consulting the works of jurists writing professedly on
public law; or (ii) by general usage and practice of nations; or (iii) by judicial decisions
recognising and enforcing that law.392 The court, in footnotes, cited various writers like
Jenkins and Blackstone, who have already been discussed in this chapter, and came to the
conclusion as to the definition of piracy under the law of nations:
‘There is scarcely a writer on the law of nations, who does not allude to piracy
as a crime of a settled and determinate nature; and whatever may be the
diversity of definitions, in other respects, all writers concur, in holding, that
robbery, or forceful depredations upon the sea, animo furandi, is piracy.’393
Justice Story also holds that the common law recognises and punishes piracy as an offence
against the law of nations – which is a part of the common law.394 As a result, the Court
declared that:
‘[T]he general practice of all nations in punishing all persons, whether natives
or foreigners, who have committed this offence against any persons
388
Judgment at 156.
Judgment at 157.
390
Idem. In other words, he said that Congress must give a ‘distinct, intelligible explanation of the
nature of the offence in the act itself’.
391
Judgment at 158.
392
Judgment at 159-160. Samuels comments that the manner in which modern courts determine
what constitutes international law, can be traced directly to the Supreme Court’s analysis in Smith
(Samuels (2012) at 354).
393
Judgment at 161, with my emphasis.
394
Idem.
389
87
whatsoever, with whom they are in amity, is conclusive proof that the offence
is supposed to depend, not upon the provisions of any particular municipal
code, but upon the law of nations, both for its definition and punishment. We
have, therefore, no hesitation in declaring, that piracy, by the law of nations,
is robbery upon the sea, and that it is sufficiently and constitutionally defined
by the fifth section of the act of 1819.’395
My review of the doctrines and views of the principal writers, discussed earlier in this
chapter, has however shown that while the element of robbery animus furandi is common
to all conceptions of the crime, there are other elements and underlying doctrines and
political circumstances which hindered the formulation of a universal definition under the
law of nations. Indeed, the holding of Justice Story in Smith of the definition of piracy
under the law of nations cited above, seems to not fully apply his earlier dictum in the
judgment that:
‘Offences, too, against the law of nations, cannot, with any accuracy, be said
to be completely ascertained and defined in any public code recognised by the
common consent of nations. In respect, therefore, as well to felonies on the
high seas as to offences against the law of nations, there is a peculiar fitness
in giving the power to define as well as to punish.’396
Justice Livingstone in Smith dissented397 and expressed caution in this case about whether
the lives of the appellants were at stake. He argues that the object of referring the definition
to Congress ‘was, and could have been no other than, to enable that body, to select from
source it might think proper, and then to declare, and with reasonable precision, what act
or acts should constitute this crime.’398 He commented on the difficulty of ascertaining the
constitution of a crime when it has to be collected from a variety of writers, either in
different languages or under the disadvantage of translations.399 His principal objection is
premised thus:
‘Although it cannot be denied that some writers on the law of nations do
declare what acts are deemed piratical, yet it is certain that they do not all
395
Judgment at 162.
Judgment at 159.
397
This was one of only eight dissents published in his 17-year tenure on the bench (White (1989)
at 734).
398
Judgment at 180.
399
Judgment at 182.
396
88
agree; and even if they did, it would seem unreasonable to impose upon that
class of men, who are most liable to commit offences of this description, the
task of looking beyond the written law of their own country for a definition of
them.’400
Therefore, to Livingstone, the incorporation of an international law term into a domestic
statute was insufficient to give it binding force.401
Chief Justice Marshall could not contribute to the judgment as he was on Circuit, but he
wrote to his colleague Bushrod Washington, while the case was pending, about his
concerns:
‘[i]n the trials at Richmond the evidence was perfectly clear & the case was
unequivocally a case of piracy according to the laws of every civilized nation.
The doubt I entertain is whether there is any such thing as Piracy as ‘defined
by the law of nations’. All nations punish robbery committed on the high seas
by vessels not commissioned to make captures yet I doubt seriously whether
any nation punishes otherwise than by force of its own particular statute.’402
Had this view of Marshall prevailed, Samuels argues that Congress would have acted in
haste to amend or redraft the piracy statute, and since the view did not prevail, Congress to
this day403 has never taken action to amend the statute and it remains on the Statute books.404
3.4
Summative remarks
In this section, an account of the development of the definition and early doctrines in
Anglo-American jurisprudence were considered. Due to naval dominance, English
jurisprudence provided an example of the most widely used legal system during the 19 th
Century prior to the codification process in the 20th Century. The policy and approach of
English jurisprudence during the period can perhaps be seen as a precursor to contemporary
concerns by states over the possibility of abuse – should the exercise of foreign jurisdiction
400
Judgment at 181. He found that a duty lay on Congress not to refer the citizens of the United
States, for rules of conduct, to the statute or laws of a foreign country, with which it is not presumed
they are not acquainted (the law of nations according to him in this instance must be regarded in the
same light as a reference to any other foreign code) (at 182).
401
White (1989) at 734.
402
Hobson The Papers of John Marshall (1995) 8 at 374; Samuels (2012) at 352.
403
Samuels wrote 192 years after the judgment in Smith was delivered.
404
It was applied in the recent cases of United States v Hassan 747 F. Supp. 2d 642 (E.D. Va. 2010);
and United States v Said 757 F. Supp. 2d 554 (E.D. Va. 2010).
89
be extended into their territorial waters in terms of the suppression of piracy. A conclusion
can be reached from an analysis of the judgments in this section, that the conception of the
high seas is markedly different from the present conception. If the dicta contained in the
Serhassan and Magellan pirates are considered, then the high seas would be synonymous
with the entire realm of the ocean up to the shore along the coast. In revisiting American
jurisprudence, the intricacies in incorporating piracy jure gentium into domestic legal
proceedings – in light of the lack of a precise definition of piracy under the law of nations
– were paralleled in Kenyan jurisprudence in the 21st Century, as will be seen in the
penultimate chapter of this thesis.
What fails to emerge from this revisit of doctrines and precedent prior to the codification
process, is developments concerning the locus of the crime. Later in this chapter, it will be
shown that the concept of the territorial sea developed over a long period of time – thus
distinguishing acts that were committed within the territorial sea, and acts on the high seas.
The jurisprudence in this chapter only reflects the definition of piracy as being committed
on the high seas, with an extensive jurisdiction, and without cognisance of the emergence
of the realm of the territorial sea and its implications.
With this broad overview of the development of the definition, the next two sections of this
chapter narrow the focus toward the locus of piracy. This is done by first discussing the sui
generis nature of the enforcement of municipal law over acts of piracy on the high seas
through the exercise of universal jurisdiction. Secondly, the interface between the realm of
the high seas and the territorial seas will be explored in greater detail and linked to the
development of piracy law.
IV.
4.1
A PENCHANT TOWARDS UNIVERSAL JURISDICTION
Prefatory
In the previous section, through an analysis of precedents and of the works of jurists and
writers, some light was shed on the development of a definition of piracy under the law of
nations. The section considered the actus reus of piracy” a subspecies of robbery animus
furandi or forcible taking on the seas. However, due to the locus of the crime, namely the
high seas, and where no state has sovereignty, a discussion on the exercise of extraterritorial
jurisdiction is vital.405 While the law of nations provided a common parameter of piracy as
See Shnider ‘Universal Jurisdiction Over “Operation of a Pirate Ship”: The Legality of the
Evolving Piracy Definition in Regional Prosecutions’ 34 North Carolina Journal of International
Law and Commercial Regulation (2012-3) 473 at 482, where he comments that ‘piracy is often
405
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unlicensed robbery on the high seas, it fell to individual states which enacted piracy laws
to implement and enforce the international norm406 The principles vesting jurisdictional
competence on the individual states must therefore be assessed, and this section will
therefore consider the bases of jurisdiction and the origins and justification for the
application of universal jurisdiction (hereafter UJ) over piracy. Historical cases that applied
UJ will be considered and some of the criticisms of the place of UJ will also be presented
in historical context. An appraisal of UJ is necessary in the analysis developing one of the
aims of this thesis: the extension of the enforcement regime of UNCLOS into the territorial
sea.
4.2
Bases of jurisdiction and the concept of UJ
Jurisdiction over piracy has been a subject of discourse in numerous sources of
international law. A seminal case and the work of an influential writer are cited here, at the
outset, by way of a preface. In the Steamship Lotus case of 1927 (France v Turkey), the
Permanent Court of International Justice set out a clear principle of international law, that
a state cannot exercise its jurisdiction outside its territory unless customary international
law or an international treaty permits it to do so.407 Moore, J. (dissenting), however, held
that:
‘Piracy by the law of nations, in its jurisdictional aspects, is sui generis.
Though statutes may provide for its punishment, it is an offence against the
law of nations; and as the scene of the pirate’s operations is the high seas,
which it is not the right or duty of any nation to police, he is denied the
protection of the flag which he may carry, and is treated as an outlaw, as the
enemy of all mankind – hostis humani generis – whom any nation may in the
interest of all capture and punish…’.408
The issue was also raised a century earlier by the Swiss philosopher Emerich de Vattel,
who reasoned thus:
‘[A]lthough the justice of each nation ought in general to be confined to the
punishment of crimes committed in its own territories, we ought to except
studied as part of a process of the development and application of international criminal law, for
which the most foundational questions are jurisdiction and elements of liability’.
406
See Kontorovich (2004) at 191.
407
See par. 45 of the judgment.
408
Publications of the Permanent Court of International Justice, Series A, No. 10 at 70-71.
91
from this role villains, who, by the nature and habitual frequency of their
crimes, violate all public security, and declare themselves enemies of the
human race. Poisoners, assassins, and incendiaries by profession, may be
exterminated wherever they are seized; for they attack and injure all nations,
by trampling under foot the foundations of their common safety. Thus pirates
are sent to the gibbet by the first into whose hands they fall.’409
To understand the implications of the assertions above, an examination is undertaken
hereunder to firstly set out the general bases of jurisdiction.410 Kontorovich states that
international law regards criminal jurisdiction as a prerogative of sovereign nations, and,
as a result, the traditional limits on national criminal jurisdiction are in consanguinity with
the limits of national sovereignty.411 Following from this, it is a common principle that a
state’s authority to decide upon the reach of its penal power (ius puniendi) is limited, in
particular, by the principle of non-intervention.412 International law therefore has
established principles for determining when a state may exercise authority over offences
that also affect the interests of another state,413 and also where offences are committed
elsewhere (extraterritorial jurisdiction).414 However, where a state chooses to exercise such
extraterritorial jurisdiction, it could conflict or compete with the jurisdiction of another
state, with the potential of threatening the stability of the international legal order.415 Thus,
Kontorovich explains that a nation can exercise extraterritorial jurisdiction over an offence
– only when it has a clear nexus with the offence that gives it jurisdictional priority over
409
Emerich de Vattel Law of Nations (1833) I §233. A discussion of the passage can be found in
Garrod ‘Piracy, the Protection of Vital State Interests and the False Foundations of Universal
Jurisdiction in International Law’ 25(2) Diplomacy and Statecraft (2014) 195 at 206-207; and
Kontorovich (2004) at 230-233.
410
“Jurisdiction” can refer to the power to lay down laws, the power to adjudicate, and the power to
punish. See Kontorovich (2004) at 188, fn 19. Randall in ‘Universal Jurisdiction Under International
Law’ 66 Texas Law Review (1988) 785 at 786, defines this more comprehensively as:
‘[A] state’s legitimate assertion of authority to affect legal interests. Jurisdiction may
describe a state’s authority to make its law applicable to certain actors, events, or
things (legislative jurisdiction); a state’s authority to subject certain actors or things
to processes of its judicial or administrative tribunals (adjudicatory jurisdiction); or a
state’s authority to compel certain actors to comply with its laws and to redress
noncompliance (enforcement jurisdiction).’
411
See Kontorovich (2004) at 188.
412
Article 2 (7) of the Charter of the United Nations states that the United Nations has no authority
to intervene in matters which are within the domestic jurisdiction of any State, while this principle
shall not prejudice the application of enforcement measures under Chapter VII of the Charter. See
Geiß and Petrig Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy
Operations in Somalia and the Gulf of Aden (2011) at 138.
413
See Randall (1988) at 785.
414
See Kontorovich (2004) at 188.
415
Idem at 189. Randal (1988) at 785 explains that ‘under international principles, domestic
jurisdiction rests on reconciling a state’s interest in a particular offence with other states’ interest in
the offence’.
92
other nations.416 The state seeking to exercise its ius puniendi must therefore set out such
nexus according to the following jurisdictional bases:
(a)
The territorial principle: Brownlie states that courts of the place where the crime
is committed may exercise jurisdiction and this is a principle that has received
universal recognition.417
(b)
The nationality principle: This is where the offender is a national of the state,418
and is generally recognised as a basis for jurisdiction over extraterritorial acts.419
(c)
The passive personality principle: This is where the victim is a national of the
state.420 Therefore, according to this principle, foreigners may be prosecuted for
acts abroad which are harmful to the nationals of the prosecuting state.421
(d)
The protective principle: This is where an extraterritorial act threatens the state’s
security or a basic governmental function.422 The state can, as a consequence,
exercise jurisdiction over foreign nationals who commit acts in a foreign
territory.423
As can be seen from the principles above, the common parameter contains a nexus between
the state wishing to exert jurisdiction and the offender. This then brings us to the principal
base of jurisdiction to be examined – namely universal jurisdiction – which transcends the
nexus of territoriality and sovereign authority of the state.424 It is an exception to the general
principles listed above.425 The principle holds that a state can exercise its ius puniendi over
offences to which it has no connection all,426 regardless of the locus of the offence and the
416
Idem at 189.
Brownlie Principles of Public International Law 5th ed. (1998) at 303. Randall (1988) at 787, fn
8 also summarises two subspecies of the territorial principle: to wit the “objective territorial
principle” which refers to ‘jurisdiction arising where the offender intentionally has caused negative
consequences within the state, although the offence itself occurs outside of the prosecuting state’s
territory’ – in other words, where some constituent element of the crime is consummated on state
territory (Brownlie at 304); and the “subjective territorial principle” which ‘may be used when an
offence is commenced within the prosecuting state, but completed elsewhere’. Goodwin notes that
in some circumstances, a further form of quasi-territorial jurisdiction exists based on the ‘flag-state’
principle, which states that a ship is an extension of the territory of its flag state: see Goodwin (2006)
at 984-985; Kontorovich (2009) at 189; and Shnider (2012-3) at 483.
418
Randall (1988) at 787.
419
Brownlie (1998) at 306. See, also, Goodwin (2006) at 985.
420
Randall (1988) at 787.
421
See Brownlie (1998) at 306, where he states that this is the least justifiable, as a general principle,
of the various bases of jurisdiction. See, also, Goodwin (2006) at 986.
422
Randall (1988) at 788.
423
Goodwin (2006) at 987, where he states that this has been the most controversial of the traditional
bases of jurisdiction. See, also, Brownlie (1998) at 307 and Kontorovich (2004) at 189.
424
See Shnider (2012-3) at 483.
425
According to Randall (1988) at 793, it is also an exception to the general rule, limiting each
state’s jurisdiction on the high seas to its own vessels and nationals.
426
See Kontovorich (2004) at 183.
417
93
nationalities of the offender and the victim.427 The jurisdiction is based solely on the nature
of the offence. In other words, competence to prosecute and punish may be founded simply
upon a lawful custody of the person charged with the offence.428 The Princeton Project
which was a collaboration of working groups of experts, set out to derive principles that set
out a uniform consensus on UJ. The first principle provides that:
‘[U]niversal jurisdiction is criminal jurisdiction based solely on the nature of
the crime, without regard to where the crime was committed, the nationality
of the alleged or convicted perpetrator, the nationality of the victim, or any
other connection to the state exercising such jurisdiction.’429
With these foundational principles now set out, when revisiting the work of Vattel and the
dictum in Steamship Lotus, it is clear that the underlying rationale is one of UJ. Definitively,
piracy is seen as the quintessential UJ crime. Randall remarks that ‘every state has long had
legislative, adjudicatory, and enforcement jurisdiction over all piratical acts on the high
seas, even when neither pirates nor their victims are nationals of the prosecuting state and
the offence has no specific connection to the prosecuting state.’430 This was seen as the
exception to the nexus requirement that was essential to the other bases of jurisdiction set
out above. This is a view that was held by numerous other writers and courts and has
acquired the force of customary international law.431 It is an exception of long standing,
427
See Randall (1988) at 787.
See ‘Article 9 ‘Universality – Piracy’ 29 American Journal of International Law (1935)
Supplement: Research in International Law, 563 at 564.
429
Macedo (ed.) ‘The Princeton Principles on Universal Jurisdiction’ Princeton University (2001)
at 28. Note that according to Garrod (2014), there is no internationally codified definition of UJ (at
195).
430
Randall (1988) at 791.
431
See, for example, Geiß and Petrig (2011) at 143, who state that ‘It is well established that any
nation may try pirates, even in the absence of a nexus between the pirate attack and the State claiming
jurisdiction.’ They cite, at fn 588, several primary and secondary sources in support thereof.
Kontorovich (2004) at 190, remarks that for as long as sovereignty-based jurisdictional principles
have existed, any nation could try any pirates it caught, regardless of the pirates’ nationality or where
on the high seas they were apprehended. Sorenson notes:
428
‘Universal jurisdiction over piracy has long been widely recognized both under
customary international law and treaty; whatever the nationality of the offender or of
the victim, and wherever on the high seas the offence was committed, any state which
catches the pirate has jurisdiction to prosecute and punish for acts that amount to
piracy by international law.’ (Sorensen Manual of Public International Law (1968) at
365).
Furthermore, Bassiouni remarks that ‘universal jurisdiction to prevent and suppress piracy has been
widely recognized in customary international law as the international crime par excellence to which
universality applies’ (Bassiouni ‘Universal Jurisdiction for International Crimes: Historical
Perspectives and Contemporary Practice’ 42 Virginia Journal of International Law (2001) 81 at
110-111. Among the various precedents noted in the articles cited hereto, in United States v The
94
being the oldest offence that invokes UJ,432 which for hundreds of years was only applied
to the crime of piracy.433 Accordingly, the Princeton Principles of UJ comment on the
crimes covered under UJ, and find that: ‘[p]iracy is a crime that paradigmatically is subject
to prosecution by any nation based on principles of universality, and it is crucial to the
origins of universal jurisdiction, so it comes first’.434
A fundamental delimitation to the scope of UJ – according to Geiß and Petrig – is that it
only provided over conduct which matches the piracy definition under international law.435
In other words, they state that for acts defined as piracy under municipal law, which go
beyond the definition of piracy under international law, UJ cannot be invoked.436
4.3
Rationale for UJ in the case of piracy
With a preface in the previous section, which established that piracy was the prototype and
paradigmatic crime over which UJ had its genesis, the question of the reasons or rationale
for UJ having such origins in piracy must be examined and set out here. This section
therefore seeks, under the following sub-headings, to isolate what it was about piracy that
made it universally cognisable:
4.3.1
Heinousness: International law treated piracy as being universally
cognizable because of its heinousness.437 Because of this heinousness, the
offenders may be prosecuted by any state to protect the fundamental values
LaJeune Eugine 26 F. Cas. 832, 843 (C.C.D. Mass 1822) (No. 15551), a federal judge in 1822 wrote
that ‘no one can doubt that vessels and property in the possession of pirates may be lawfully seized
on the high seas by any person, and brought in for adjudication’. It was held in United States v
Layton 509 F. Supp. 212, 223 (N.D. Cal. 1981) that ‘[universal] jurisdiction had its origins in the
special problems and characteristics of piracy’.
432
Randall (1988) at 791.
433
Kontorovich (2004) at 184.
434
Macedo (ed.) (2001) 45; Geiß and Petrig (2011) at 143.
435
Geiß and Petrig (2011) at 143.
436
See Art. 9 ASIL – Commented Harvard Draft Convention on Jurisdiction with Respect to Crime,
which provides that ‘A State has jurisdiction with respect to any crime committed outside its territory
by an alien which constitutes piracy by international law’ (my emphasis). See, also, Geiß and Petrig
(2011) at 143. Kennedy, L.J. in Bolivia v Indemnity Mutual Marine Assurance Co. Limited (1909)
1 K.B. 875, commented on the distinction between piracy defined under international law and
municipal law: ‘The authorities show that the word ‘piracy’ is one capable of various shades of
meaning, and that, even when used strictly as a legal term, it may be held to cover different subjectmatters according as it considered from the point of view of international or that of municipal
lawyers.’ (at 802). See, also, Shnider (2012-3a) at 483-484.
437
See Kontorovich (2004) at 185; Goodwin (2006) at 995; Garrod (2014) at 199. Geiß and Petrig
(2011) at 145 cite the Case Concerning the Arrest Warrant (Democratic Republic of Congo v
Belgium) I.C.J. Reports 2002 at 60-61: ‘[i]t is equally necessary that universal jurisdiction may be
exercised only over those crimes regarded as most heinous by the international community. Piracy
is the classic example.’ See, also, the Tachiona, 234 F. Supp. 2d at 416-417.
95
of the international community.438 In 1932, scholars at Harvard University
prepared de lege ferenda a draft convention on piracy (hereafter the
Harvard Draft).439 In the commentary to this draft, they commented on the
common practice of referring to piracy as an offence against the law of
nations. They found that this and other similar expressions have a
‘vituperative quality which emphasises the gravity of the former dangers
of piratical enterprises to the sea-borne commerce of the world and the
coasts of sea faring nations’.440 They noted that ‘[e]xtravagant hyperboles
though they are, they are used as reason for the legal rule that every state
participates in a common jurisdiction to capture pirates and their ships on
the high seas, and to prosecute and punish for piracy persons who lawfully
are seized and against whom there is a proper ground for prosecution’.441
Goodwin comments that it is obvious that pirates and piracy can be
heinous, and cites examples thereof.442 This perception of the dangers of
piracy was also frequently reported in the media of various periods. For
example, during the trial of Thomas Smith in the United States referred to
earlier in this chapter, Niles Weekly Register commented that ‘[t]he scenes
of outrages on the high seas which they develop [sic] belong to the history
of times … [w]e owe it to the civilized world to arrest such lawless
outrages…’.443 A proponent of this rationale is Randall, who argued that
‘[a] more accurate rationale for not limiting jurisdiction over pirates to
their state of nationality relies on the fundamental nature of piratical
offences. Piracy may comprise particularly heinous and wicked acts of
violence and depredation’.444Therefore, according to Kontorovich, it was
‘the substantive nature of the parties acts – not the pirates’ status as private
actors or the location of their crimes – that made them susceptible to
universal jurisdiction’.445
438
Garrod (2014) at 195.
The draft convention will be considered in some detail in the next chapter.
440
Harvard Research in International Law, Draft Convention on Piracy, 26 American Journal of
International Law (1932) Supplement 741 at 757.
441
Idem.
442
Goodwin (2006) at 995.
443
Niles Weekly Register, 7 August 1819 (cited in Samuels (2012) at 355).
444
Randall (1988) at 794 (with my emphasis). Randall only cites one case in support of this assertion
– namely a dictum in US v Brig Malek Adhel 43 US (2 How.) 210 (1844) at 232: ‘a pirate is deemed,
and properly deemed hostis humani generis. But why is he so deemed? Because he commits
hostilities upon the subjects and property of any or all nations without regard to any right or duty’.
Goodwin is critical of Randall’s rationale and argues that he cited only one-half of the court’s
reasoning, and misinterpreted jurisdiction (Goodwin (2006) at 199).
445
Kontorovich (2004) at 205.
439
96
4.3.2
De-nationalisation: Earlier in this chapter, Blackstone was cited446 for the
proposition that an offender engaging in an act of piracy loses the
protection and benefits of his nationality.447 In other words, the pirate
becomes an outlaw entirely outside any state’s law, with no national
character.448 Goodwin remarks that ‘if pirates are denationalised, then any
traditional form of jurisdiction predicated on the nationality of the pirate
will not apply’.449 It is as a result of this jurisdictional gap that
commentators have suggested that the need for UJ is apparent.450 Geiß and
Petrig mention that this rationale was not uncommon in earlier times, and
refers, along with the framers of the Harvard Draft, to the writings of the
19th Century scholar Lorimer, who wrote:
‘When [the law of nations] punishes pirates, it does not punish the
citizens of the State to which the pirates belonged, but cosmopolitan
criminals, whom it regards as having ceased to be State citizens
altogether in consequence of their having broken the laws of
humanity as a whole, and become enemies of the human race.’451
A precedent that supports this rationale is United States v The Pirates,452
where Johnson J. held:
‘… whether as an American, or a pirate ship, the offence committed
from her was equally punishable, and the words of the act extend to
her in both characters. But if it were necessary to decide the
question, we should find no difficulty in maintaining that no man
shall, by crime, put off an incident to his situation which subjects
him to punishment. A claim to protection may be forfeited, by the
446
See Backstone (1772) at 71. See, also, Twiss in 1 The Law of Nations 2nd ed. at 290-291, where
it is stated that ‘the Pirate has no National character. And to whatever country he may have originally
belonged, he is justiciable everywhere, being reputed out of the protection of all laws and privileges
whatsoever’ (cited in the Harvard Draft (1932) at 828).
447
See Blackstone (1772) at 71.
448
Randall (1988) at 793.
449
Goodwin (2006) at 988. Geiß and Petrig (2011) at 146 illustrate that the active personality (or
nationality) and territoriality principle would not be operable as a result. Goodwin, idem, also states
that if the ship is also denationalised, then the flag-state principle would not be operable.
Contemporary instruments indicate that it is up to the domestic law applicable to the ship to decide
whether the nationality of the ship is revoked (see Goodwin (2006) idem).
450
Geiß and Petrig (2011) at 146.
451
Lorimer 2 Institutes of the Law of Nations (1883) at 132 (cited in Geiß and Petrig (2011) at 146
and in the Harvard Draft (1932) at 828).
452
5 Wheat. (U.S.) 184 (1820).
97
loss of national character, where no rights are acquired, or immunity
produced by that cause’.453
In Tachiona,454 a U.S. federal court held that: ‘[t]he “enemy of all
humankind” … ranks as a different species from the ordinary tortfeasor of
the typical case. Equally so is the class of universal rules that outcast the
international outlaw, and thus declare him unworthy of all sovereign
protections’.455
4.3.3
Security of international commerce: Earlier in this thesis much emphasis
was placed on the importance and significance of the ocean as a conduit
for international trade and commerce. Studies have been undertaken to
show the commercial impact of piracy on the East African seaboard on
global shipping.456 The findings illustrated the indiscriminate nature of the
pirate attacks, where subjects of various nations were victims – including
South Africans. While this finding was confined to the East African
seaboard region under review, the proposition that pirates engage
indiscriminately is a long-standing one.457 This indiscriminate approach
meant that states in unison were potential victims, and thus the security of
international commerce amongst nations is placed at risk. It was trite that
the oceans needed to be free of depredations in order to allow commerce
to flourish, and Garrod remarked that ‘piracy stood as the antithesis of
mercantilism: creating insecurity for vital trade routes and threatening to
destroy trade routes’.458Recent commentators, Geiß and Petrig,
453
Idem at 194-195.
234 F. Supp. 2d at 416-417, cited in Kontorovich (2004) at 207.
455
Idem (with my emphasis).
456
See, for example, Bowden and Basnet ‘The Economic Cost of Piracy’ One Earth Foundation
(2011).
457
See, for instance, in Art. 9 ASIL – Commented Harvard Draft Convention on Jurisdiction with
Respect to Crime (1935), where the commentators remark: ‘Originating in a period when piratical
depredations were a very real menace to all water-borne commerce and traffic, the competence to
prosecute and punish for piracy was commonly explained by saying that the pirate who preyed upon
all alike was the enemy of all alike’ (with my emphasis).
458
Garrod (2006) at 199. He also cites idem Vattel, who regarded trade as vital for a state’s wealth,
strength and security, and Grotius (at 203) who contended that ‘in a state of nature, such as the high
seas where judicial recourse is lacking, private individuals and sovereigns share the same powers
under the fundamental “precepts” of the law of nature: self defence and the protection of trade’, and
that ‘humanity is united trade’ seeing it as a ‘necessity for the human race’ (idem). See, also, the
Harvard Draft (1932) at 788, which cited the following comments from a report of the subcommittee of the League of Nations Committee of Experts for the Progressive Codification of
International Law: ‘Piracy has as its field of operation that vast domain which is termed ‘the high
seas’. It constitutes a crime against the security of commerce on the high seas, where alone it can be
committed … [w]hen pirates choose as the scene of their acts of sea-robbery a place common to all
454
98
accordingly state that ‘every state is a potential victim of maritime
depredations and that the interest in securing the free flow of international
trade has always been a shared interest of the international community.’ 459
This notion was then seen as supporting the exercise of UJ. Garrod’s
research of legal scholarship confirms that ‘the disruption of navigation
and trade on the high seas was treated as violating the law of nations and
every state was permitted to enforce jurisdiction over “pirates” on the high
seas’.460 This rationale for UJ was supported in the 1935 Harvard Draft
Convention on Jurisdiction with Respect to Crime, where the
commentators remarked that ‘The competence [UJ] is perhaps better
justified at the present time upon the ground that the punishable acts are
committed upon the seas where all have interest in the safety of commerce
and where no State has territorial jurisdiction. Notwithstanding the more
effective policing of the seas in modern times, the common interest and
mutual convenience which gave rise to the principle have conserved its
vitality as a means of preventing the recurrence of maritime depredations
of a piratical character.’461
4.4
Antecedents of state practise of UJ over piracy
The above represents much of the scholarship surrounding UJ. However, Shnider notes that
there are very few actual criminal cases in which the court asserted UJ over piracy in the
absence of a nexus between the prosecuting state and the victims of perpetrators.462 The
Harvard Draft also found that ‘it is difficult to find cases of exercise of jurisdiction over
piracy which could not be supported on one or more of the ordinary grounds. This is very
rare’.463 The Princeton Principles comment that ‘[i]n many legal systems, the national
judiciary cannot apply universal jurisdiction in the absence of national legislation’464 –
men and when they attack all nations indiscriminately, their practices become harmful to the
international community of all States” (with my emphasis).
459
Geiß and Petrig (2011) at 147. See, also, Shnider (2012-3) at 490. Randall (1988) at 795
demonstrates the concern by noting that ‘[s]uch lawlessness was especially harmful to the world at
a time when intercourse among states occurred primarily by way of the high seas, thus making piracy
a concern of all states’. More generically, Kontorovich (2004) at 196-197, remarks that ‘universal
jurisdiction extends to heinous acts that “damage vital interests; they impair the foundations and
security of the international community [and] violate the universal moral values and humanitarian
principles that lie hidden in the criminal law systems adopted by civilized nations”’. (citing the
Eichmann case, 36 I.L.R at 291).
460
Garrod (2006) at 196.
461
Art. 9 – ASIL (1935) at 566.
462
Shnider (2012-3) at 493.
463
Harvard Draft (1932) at 761.
464
Macedo (2001) 40.
99
which provides one explanation for the dearth of precedents of the exercise of UJ over
piracy. What follows below is a brief exposition of four seminal municipal judgments that
developed or applied UJ.
Rex v Dawson465 is one of the earliest cases purportedly applying UJ. The case was
introduced earlier in this chapter, and it is also now opportune to revisit some of the dicta
that were cited in more detail earlier in the chapter. A record of the trial containing the
charge of Sir Charles Hedges demonstrates wide-reaching extent of the jurisdiction of the
Admiralty, which ‘is extended throughout all seas, and the Ports, Havens, Creeks, and
Rivers beneath the first Bridges next the Sea, even unto the high Water-mark’.466 With this
wide-ranging admiralty jurisdiction, it was declared that ‘[t]he King of England … [has]
an undoubted jurisdiction and power, in concurrency with other Princes and States, for the
punishment of all piracies…’.467 As indicated earlier, the judgment was criticised by Rubin
who felt that ‘the entire proceeding can be rationalised as the application of English
municipal law to Englishmen through the normal processes of English judicial
administration, and the unqualified assertions of wider authority [i.e. the purported UJ] are
mere puffery’.468 However, the dictum of Viscount Sankey, in In re Piracy Jure Gentium,469
where it was remarked that ‘[i]nternational law was not crystallised in the 17th century, but
is a living and expanding code’470 is rather apt.
The second case under review here which applied municipal law to foreign suspected
pirates, was the trial of Thomas Green in 1705 in the High Court of Admiralty of
Scotland.471 Captain Green was an English captain who was arrested with his crew upon
arrival in Edinburgh under an indictment of piracy. The circumstances and facts were
elaborate – as appeared in a publication of the period that contained the court records and
other incidental documents.472 From a jurisdictional standpoint, what was novel about the
465
See Everingham (1696)
See Everingham (1696) at 6 (with my emphasis).
467
Idem (with my emphasis).
468
Rubin (1988) at 93.
469
Henley (ed.) Lloyd’s List Law Reports 49 [9 August 1934] 12 at 411.
470
Idem at 417.
471
R v Green 14 How. St. Tr. 1199.
472
See, generally, Anderson (printer) The Tryal of Thomas Green and his Crew, Pursued before the
Judge of the High Court of Admiralty of Scotland and the Assessor appointed by the Lords of Privy
Council (1705), available at the law library of the Library of Congress of the United States at:
http://www.loc.gov/law/help/piracy/piracy_trials.php (last retrieved on 18 October 2015). Rubin’s
summary of the case illustrated that there were allegations that Captain Green had plundered another
Scottish vessel near Calicut. Green and two others were convicted and hanged, and this was
purported to appease the Scottish mob (Rubin (1988) at 93; Shnider (2012-3) at 493). It was later
discovered, after the hanging, that the victims were alive in India, and the purported act of piracy
had never in fact occurred (Rubin (1988) idem).
466
100
case was that the court did not rely on the traditional forms of jurisdiction (Green was not
a Scottish national for the purposes of the nationality principle, the ship was not under the
Scottish flag for the flag-state principle, the act did take place in Scottish waters for the
territorial principle, and Scotland did not exercise jurisdiction on the passive personality
principle based on the Scottish nationality of the victims)473 – but rather entirely on the
locus deprehensionis (the place where they were taken).474 Rubin commented that ‘this
logic represents an assertion of universality of jurisdiction in the case of “piracy” that goes
far beyond the precedents’475 and that ‘finding prescriptive jurisdiction in the place of
physical detention with no other contact, is a giant leap supported in the pursuer’s logic
only by the assertion that “piracy” is a crime against the law of nations and that all mankind
have an interest in pursuing it’.476
In the third case, People v Lol Lo and Saraw,477 an American court sitting in the Philippine
Islands in 1922 confirmed a conviction for piracy. The facts concerned a boat with Dutch
subjects transiting between the islands of Buang and Bukid in the then territorial waters of
the Dutch East Indies. The boat was surrounded by Moros478and the case reports that they
raided the cargo, attacked some of the men, and raped two women. They then sunk the boat
with the crew on board. However, after ‘eleven days of hardship and privation’ they
managed to reach safety. At the tribunal, counsel for the Moros contended that the court in
the Philippines did not have jurisdiction. In a very sparse judgment, Malcolm J. held that:
‘Pirates are in law hostes humani generis. Piracy is a crime not against any
particular state but against all mankind. It may be punished in the competent
tribunal of any country where the offender may be found or into which he may
473
Rubin (1988) at 93.
The tribunal found that ‘though the competency of the judge in criminals could be ordinarily said,
to be found either in loco delicti (the place where the crime was committed) or in loco domicilii
(place of habitation of the delinquents) or in loco originis (the place of their birth) yet there is a
superior consideration, and that is the locus deprehensionis (place where they are taken) where the
criminal is found and deprehended, which doth so over-rule in this matter, that neither the locus
domicilii … nor the locus originis … doth found the judges competency, nisi ibi reus deprehendatur
(except the criminal be apprehended there). And so it is that here the panels [defendants] were and
are deprehended, which happing in the cause of piracy, a crime against the law of nations, and which
all mankind have an interest to pursue, wherever the pirates can be found: the Procurator Fiscal’s
[Prosecutor’s] interest to pursue is thereby manifest, and the panels being here deprehended, cannot
decline the admiral’s jurisdiction as incompetent.” (at 1224, cited in Rubin (1988) at 93-94).
475
Rubin (1988) at 94.
476
Idem.
477
The People of the Philippine Islands v Lol-Lo and Saraw, 43 Phil. Rep 19 (S.C. 1922), available
at: http://www.lawphil.net/judjuris/juri1922/feb1922/gr_l-17958_1922.html.
478
The indigenous Muslim population of the Philippines.
474
101
be carried. The jurisdiction of piracy unlike all other crimes has no territorial
limits. As it is against all so may it be punished by all.’
In the fourth case, In re Piracy Jure Gentium,479 a number of armed Chinese nationals were
cruising the high seas in two Chinese junks in January 1931. They pursued and attacked a
cargo junk which was also a Chinese vessel.480 The master of the cargo junk attempted to
escape and a chase ensured. Fortunately for the cargo vessel two merchant vessels in the
vicinity intervened, thus foiling the attack, and the pirate suspects were handed over to a
British warship. The matter reached the Judicial Committee of the Privy Council from the
British Tribunal of Hong Kong. Although the principal issue in the case was ‘whether an
accused person may be convicted to piracy in circumstances where no robbery has
occurred’,481 matters pertaining to jurisdiction were dealt with briefly by the court. Sir
Leslie Scott K.C. instructed on behalf of the Secretary of State for the Colonies that a state
could not treat foreigners on the open seas as pirates unless they were pirates according to
the law of nations.482 The court referred to Chief Justice Cockburn, who said that this rule
was ‘subject to the qualification that if the legislature of a particular country should think
fit by enactment to render foreigners subject to its law with references to offences
committed beyond the limits of its territory, it would be incumbent on the Courts of such
country to give effect to such enactment, leaving it to the State to settle the question of
international law with the Governments of other nations’.483 Viscount Sankey, delivering
the opinion of the court, dealt with jurisdiction briefly in the following paragraph of the
judgment:
‘With regard to crimes as defined by international law, that law has no means
of trying or punishing them. The recognition of them as constituting crimes
and the trial and punishment of the criminals are left to the municipal law of
each country. But whereas according to international law the criminal
jurisdiction of municipal law is ordinarily restricted to crimes committed on
its terra firma or territorial waters or its own ships, and to crimes by its own
nationals wherever committed, it is also recognised as extending to piracy
committed on the high seas by any national on any ship, because a person
479
[1934] A.C. 586
Idem at 414.
481
Idem. To which the court answered: ‘Actual robbery is not an essential element in the crime of
piracy jure gentium. A frustrated attempt to commit a piratical robbery is equally piracy jure gentium
(at 415).
482
Idem at 413.
483
Idem.
480
102
guilty of such piracy has placed himself beyond the protection of any State.
He is no longer a national, but hostis humani generis and as such he is
justiciable by any State anywhere.’484
It can be seen from this paragraph that the reliance on UJ is based on the denationalisation
rationale discussed in section 2(b) above.
Bearing in mind once again that, in practice, UJ was applied very rarely485 and that absolute
universal jurisdiction over piracy was dormant until the resurgence of piracy off the coast
of Somalia, 486 the cases under analysis above, however, have set out UJ principles in very
sparse terms – differing through the context of different centuries and socio-political
circumstances. Notwithstanding this dearth of jurisprudence arising from the case law set
out above, UJ has retained enough vitality to remain applicable in the present legal
framework,487 based on the strength of the rationales discussed above. What follows below
is a critical analysis of these rationales for UJ in the case of piracy – in an attempt to
appraise its continued relevance.
4.5.
Continued relevance of UJ
The rationales for UJ in the case of piracy categorised above, have not been asserted
without criticism among legal scholars.488 Given the rarity of judicial precedent in the
circumstances, a suitable alternative for analysis would be to examine legal scholarship and
attempts at codification. This section presents a few remarks in support of a penchant
toward UJ.
4.5.1
Denationalisation: The scholars discussed in the preceding paragraphs all
contend that the idea that pirates and their vessels become stateless is
nothing more than a ‘legal fiction’ and a ‘misleading hyperbole’, which
484
Idem at 415.
Rubin (1988) cites fewer than five cases over the past 300 years (at 302), but Kontorovich (2004)
is more cautious of these statistics and comments that those five cases were certainly not the only
ones and that many cases were unreported, particularly in remote areas, and they did not include
summary proceedings at sea (at 192).
486
See Shnider (2012-3) at 495.
487
This will be discussed in greater detail in the next chapter.
488
As can be seen holistically from Goodwin (2006) 973 at 1002-1011 and Garrod (2014) at 1952013.
485
103
has largely been eliminated.489 They all draw their authority from the
Harvard Draft, which comments that:
‘[A] state does not lose its claim of allegiance or any of its ordinary
legislative, executive or juridical jurisdiction against its nationals
because he has committed an act of piracy on the high sea …
Likewise if the pirate ship had a national character before it was
engaged in piracy, its participation in piracy does not withdraw it
from the ordinary jurisdiction and rights of its flag state without
that state’s consent. The ordinary jurisdiction, because of the
piracy, no longer excludes the common jurisdiction on the high
sea, but it may still exist and be otherwise unaffected.’490
This comment was a purport to the substantive article 5 of the draft, which
provided that: ‘[a] ship may retain its national character although it has
become a pirate ship. The retention or loss of national character is
determined by the law of the state from which it was derived’.491 This
creates a potential denationalisation at the discretion of the flag state. From
the article it is not definitive whether the denationalisation applies to the
pirates themselves or the ship or both. The scholars mentioned above reject
the denationalisation rationale on the strength of this article. However,
while the article can be interpreted to reject an automatic denationalisation
once an act of piracy is committed, it does leave such a revocation at the
discretion of the flag state or state of origin. If the state elects to revoke
nationality, this leaves a jurisdictional gap,492 which can be best filled
through the exercise of UJ. The Harvard Draft, as will be discussed in
greater detail in the penultimate section of this chapter, was an exercise de
lege ferenda and one of the first attempts at an international codification
of the law pertaining to piracy. The draft articles were supported by a
commentary setting out a general purport, together with extracts from
scholars and precedents. The commentary contains a disparate collation of
various sources and a short purport in generic terms.493 A purport of more
489
See Randall (1988) at 794, Goodwin (2006) at 988, Shnider (2012-3) at 490, and Geiß and Petrig
(2011) at 146.
490
Harvard Draft (1932) at 825.
491
Idem.
492
As Geiß and Petrig (2011) at 146 note that the active personality (nationality) principle would
not be operable.
493
Part of this purport has been reproduced in the accompanying text to the Harvard Draft. One of
the premises of the article is set out in a generic manner in the purport, which commented that:
104
substance that sets out cogent arguments should have been set out,
rejecting contentions advanced by jurists such as Blackstone on the
denationalisation rationale. Therefore, the exercise of UJ on the basis of
this rationale can still have some applicability.
4.5.2
Instigation of international tension in diplomatic relations: In the
introductory remarks to the Princeton Principles, it was commented that
‘[i]mproper exercises of criminal jurisdiction, including universal
jurisdiction, may be used merely to harass political opponents, or for aims
extraneous to criminal justice’.494 Goodwin adopts this concern as a basis
for his argument that the exercise of UJ in instances of piracy should be
jettisoned. He writes: ‘[b]y allowing piracy to remain subject to universal
jurisdiction, the concern of causing international tension remains as it is
possible that states will prosecute individuals for piracy for less than
legitimate reasons’.495 This argument however falters when compared to
other writers. Shnider is of the view that UJ becomes problematic when
used in contemporary human rights crimes – which has the potential to
interfere with the sovereignty of states, and leading to controversial
political prosecutions.496 He observes that piracy prosecutions have been
less subject to such criticisms.497 An explanation for this was made by Geiß
and Petrig who found that ‘pirates are rarely perceived as “representing”
or even acting on behalf of their State of origin which may explain why
‘the fundamental postulates and the scope of the modern international law of piracy
are quite different from those of the ancient law and even from those of the law of a
few centuries ago which knew no legal freedom of the seas in the modern sense and
no such universal fine apportionment of jurisdiction among “states” on a territorial
and nationality basis as is familiar today’ (at 826).
Randall (1988) at 793 notes, however, that ‘[t]he freedom-of-the-high-seas principle, however,
merely expands rights to navigate and does not constitute the basis of states’ authority to capture
pirates and seize their vessels’.
494
Macedo (2001) at 24-25. In this regard, Morris in ‘Universal Jurisdiction in a Divided World:
Conference Remarks’ 35 New England Law Review (2001) 337 at 354-355, comments that this
improper use of jurisdiction could be exercised in two ways: firstly ‘states may exercise universal
jurisdiction as a means of gaining advantage over their opponents in interstate conflicts by
prosecuting nationals of those opponent states for conduct carried out in the course of the conflict’,
and, secondly, ‘states may exercise universal jurisdiction as a means of gaining advantage over states
with whom they are in conflict by prosecuting nationals of those opponent states for conduct
unrelated to the conflict between the two states’.
495
Goodwin (2006) at 1003.
496
Shnider (2012-3) at 491. He also cites Kissinger ‘The Pitfalls of Universal Jurisdiction’ 80
Foreign Affairs (July/August 2011) 86 at 88, who contended that ‘any universal system should
contain procedures not only to punish the wicked but also to constrain the righteous. It must not
allow legal principles to be used as weapons to settle political scores.’
497
Idem.
105
the idea of exercising [UJ] vis-à-vis alleged pirates has met with little
resistance compared to modern [UJ] crimes … where States often perceive
[UJ] as a potential interference in their internal affairs’.498 The principal
reason for this notion that pirates do not represent or act on behalf of their
state could be traced back to early piracy jurisprudence which
distinguished between ‘pirates’ who committed acts for private gain, and
‘privateering’ which was a form of state-sponsored piracy authorised by a
letter of marque.499 Morris noted that this distinction is significant in its
inclusion of private acts and exclusion of official acts of states in the
definition of piracy.500 She comments further that ‘[b]y excluding state acts
from the definition of piracy, the law of piracy was designed to prevent
universal jurisdiction over piracy from becoming a source of interstate
conflict’.501 The findings of this thesis show that exercising UJ over the
present East African seaboard would not pose significant interstate conflict
in the manner envisaged by the Princeton Principles.
4.6
Summative remarks
In this section the general bases of jurisdiction were traversed, leading to an introduction
of UJ which requires no nexus between the state exercising UJ and the offender, and with
piracy being regarded as the paradigmatic crime which was combatted through the exercise
of UJ. The rationales for UJ over piracy were firstly: rhetoric and scholarship that
considered piracy to be exceptionally heinous in nature;502 secondly the denationalisation
of a pirate suspect; and thirdly the need to secure the unhindered flow of maritime
commerce on the oceans. With this basis, the leading historical municipal judgments are
discussed – revealing very little probative value. This results in this section placing two
contentions in support of UJ: an option on states to revoke the national character of its
vessels which commit piracy and thus creating an opportunity for the exercise of UJ, and
the submission that the UJ of piracy in contemporary law would not be a significant factor
in raising tension in diplomatic relations.
498
Geiß and Petrig (2011) at 146.
Morris (2001) at 339.
500
Idem. In this regard, she (at fn 3) refers to the definitions of piracy in UNCLOS and the Geneva
Convention on the High Seas, 29 April 1958.
501
Idem at 339-340. She later (at 345) compares how UJ over war crimes and crimes against
humanity could become a source and an instrument of interstate conflict – in a way that UJ over
piracy was designed to avoid.
502
The article by Kontovorich (2004), however, is devoted to rebuking this conception.
499
106
It is submitted that UJ has some enduring value when brought forward to the present day
piracy off Somalia. As discussed previously,503 the perception that every state is a potential
victim of a piratical act lends credence to the shared interest which states have in the
uninterrupted flow of maritime commerce. This was supported in one of the earliest piracy
cases revisited in this chapter – Rex v Dawson504. Secondly, in the context of the present
day piracy, Geiß and Petrig make an apt observation:
‘The fact that the perpetrator’s State might have turned a blind eye on piracy
when it suited its interests might have further accentuated the perception that
every State – not only the pirate’s “home State” – should be allowed to
intervene.’505
What was clear from the preceding discussion, however, was that UJ applied to the
definition of piracy under international law and not municipal law. As this thesis
progresses, the argument to modify the application of the enforcement provisions of article
105 of UNCLOS into the realm of the territorial sea – comes into conflict with the
prevailing municipal law of that territorial sovereign. The appropriateness of UJ in these
circumstance would immediately be brought into question. A revisit of the doctrines,
precedent and legal scholarship regarding the extent and juridical nature of the sovereignty
over the territorial seais a necessary exercise to support the argument of modifying the
present application of UNCLOS-enforcement provisions to the territorial sea. The next
section aims to critically revisit this aspect.
V.
THE LOCUS DELICTI OF PIRACY:
THE REALM OF THE HIGH SEAS VERSUS THE TERRITORIAL SEA
5.1
Prefatory
As discussed at length in the previous section, the exercise of UJ is limited to acts that
conform to the definition of piracy under the law of nations, or piracy jure gentium. When
draftsmen converged at Harvard University in the 1930s to prepare a codification of piracy
laws, the first matter that deserved immediate acknowledgement was the distinction
between piracy jure gentium and piracy under municipal law. They recorded, at the outset,
503
Geiß and Petrig (2011) at 146.
If pirates were not punished, piracy could lead to ‘the destruction of the innocent English in those
countries, the total loss of the Indian trade, and thereby the impoverishment of this kingdom’ ((1696)
13 Howell’s State Trials 451 at 453; Goodwin (2006) at 981).
505
Idem at 147. They refer to UN Security Council Resolution 1816 (preambular par. 7), which
demonstrates Somalia’s Transitional Federal Government’s inaction or lack of capacity as a home
state.
504
107
that ‘international law piracy is committed beyond all territorial jurisdiction. Municipal law
piracy may include offences committed in the territory of the state. It is to be noted, then,
that piracy under the law of nations and piracy under municipal law are entirely different
subject matters’.506 Furthermore, piracy is defined variously under the municipal law of
different states.507 The locus of the act is therefore definitive on whether it should be
classified under municipal or international law. Johnson, writing in the mid Twentieth
Century, commented that ‘the essential consequence of an act of piracy is the displacement
of the normal rule that the ship in question is subject to the jurisdiction of all states, [and]
it seems logical and proper to confine piracy to the high seas’.508 He then goes on to contrast
this with municipal piracy: ‘[w]here territorial waters are concerned, ships are already
subject in some measure to the jurisdiction of the coastal State as well as of the flag state,
but there seems no good reason to go further than that and authorize the international
community as a whole to assume jurisdiction over acts that are clearly taking place within
national territory’.509 Standard textbooks on international law also supported this
distinction: Oppenheim argued that ‘piracy as an [international crime] can be committed
on the open sea only. Piracy in territorial coast waters has little to do with International
Law as other robberies within the territory of a State … [p]iracy is, and always has been, a
crime against the safety of traffic on the open sea’.510 A common parameter of all the
doctrines and precedents, as presented and discussed hitherto in this chapter, is that the
locus of piracy under the law of nations is on the high seas.
Distinguishing the realm of the territorial sea and places within the jurisdiction of a state
from the realm of the high seas, is accordingly significant to any scholar or researcher in
the discipline of piracy law. Under the present state of the law, ascertaining this distinction
is not difficult. The UNCLOS sets out in detail the extent and competencies of the realms
of the ocean. States have a right, under article 3, to establish the breadth of their territorial
sea up to a limit not exceeding 12 nautical miles from the baselines on the low-water mark
along the coastline. This belt of sea is regarded, under that article, as an extension of the
sovereignty of the coastal state.511 States have lesser rights in another belt of sea, to a
maximum of 24 nautical miles from the baselines, in a zone described as the contiguous
506
See Harvard Draft (1932) at 749.
Idem.
508
Johnson ‘Piracy in Modern International Law’ 43 Transactions of the Grotius Society (Problems
of Public and Private International Law) (1957) 63 at 71 (with my emphasis).
509
Idem (with my emphasis).
510
Oppenheim International Law 4th ed. (1926) at §277, cited in Harvard Draft (1932) at 789.
511
Article 2(1) of UNCLOS provides that ‘the sovereignty of a coastal state extends, beyond its land
territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an
adjacent belt of sea, described as the territorial sea’.
507
108
zone.512 The exclusive economic zone which extends to a maximum of 200 nautical miles 513
from the baselines, as the name implies vests the coastal state with sovereign rights for
exploring, exploiting, conserving and managing the natural resources within that realm.514
For all other purposes, the exclusive economic zone is regarded as the high seas under
article 58(2). It is within these rigid geographical zones with precise dimensions in nautical
miles, that varying jurisdictional competencies lie. A mere variation of position of a few or
even one nautical mile could mean that an act of piracy could be subjected to municipal
law instead of international law and vice versa. The present definition of piracy under
article 101 confirms the scholarship cited above, to the effect that it is exclusive to and can
only occur on the high seas or in a place outside the jurisdiction of any state.515
In the present case study of piracy off the eastern seaboard of Africa, concentrated along
the coastline of Somalia, any attack occurring within the territorial sea of that state would
remain under its exclusive sovereign jurisdiction based on the current provisions of
UNCLOS.516 Furthermore, the attack within the territorial seas of this region would not
accordingly classify as piracy under international law. The competence to prevent, supress
and prosecute acts of piracy vest solely with the coastal state - in this case study, Somalia.
Chapter 2 of this thesis provided a detailed analysis of the piracy manifesting off the coast
of Somalia, and in the course of the analysis it was shown that during the period of the
analysis conditions in the state were unstable – resulting in a de facto ineffective central
government, a marginal police force, and a lack of accountability and judicial structures.517
As a consequence, the ability to police the territorial waters was severely compromised. A
resolution of the Security Council of the United Nations518 recognised this situation by
expressly taking into account:
512
See article 33 of UNCLOS. The coastal state in this zone may exercise control to prevent and
punish infringement of its customs, and its fiscal, immigration, and sanitary laws applicable within
its territory.
513
See article 57 of UNCLOS.
514
See article 56 of UNCLOS.
515
See article 101 of UNCLOS, with articles 86, 88 and 89, which set out general provisions
pertaining to the realm of the high seas.
516
The legal regime of UNCLOS has acquired the force of customary international law. See, for
example, arguments in support of this proposition at: http://www.unclosdebate.org/.
517
See Doby ‘Piracy Jure Gentium: The Jurisdictional Conflict of the High Seas and Territorial
Waters’ 41 Journal of Maritime Law and Commerce (2010) 561 at 562; Geiß and Petrig (2011) at
138.
518
S.C. Res. 1816, U.N. Doc. S/RES/1816 (2 June 2008). This resolution et seq will be analysed in
chapter 5.
109
‘[T]he crisis situation in Somalia, and the lack of capacity of the Transitional
Federal Government (TFG) to interdict pirates or patrol and secure either the
international sea lanes off the coast of Somalia or Somalia’s territorial
waters.’519
Chapter 2 of this thesis has also shown in detail that the region is the site of one of the
busiest shipping corridors in the world with thousands of transits each year, and the costs
and risks to the global shipping industry were also documented in detail. Because of this
confluence of piracy and a busy trade route, Geiß and Petrig comment that ‘given the de
facto absence of effective judicial structures in Somalia and its inability to prosecute armed
robbery at sea occurring in territorial waters, the exercise of extraterritorial jurisdiction by
third states plays a crucial role in the fight against piracy and armed robbery at sea’.520
The provisions of UNCLOS regarding the definition of piracy as occurring on the high seas
or in a place outside the jurisdiction of any state521 and the exercise of universal
jurisdiction,522 leaves no opportunity for a flexible interpretation. One cannot, from those
provisions find an authorisation under international law for the exercise of foreign
jurisdiction in the territorial sea of another coastal state. The sovereignty of the coastal state
over its territorial sea is recognised fully and is sacrosanct. Recent UN Security Council
resolutions, which will be discussed in the next chapter, also reaffirm ‘its respect for the
sovereignty, territorial integrity, political independence and unity of Somalia’.523
This rigidity in the distinction between municipal law of a sovereign state and international
law, separated through distinct realms of the ocean, has significant consequences on
international and foreign initiatives to remedy and minimise piracy in the region of this
study. Rembe, writing on African perspectives of the law of the sea, in 1980, commented
that:
‘The concept of sovereignty contains some unfortunate implications:
unfortunate because what falls within the “domestic jurisdiction” of any State
519
Idem.
Geiß and Petrig (2011) at 138.
521
As contained in article 101 (discussed in further detail in the next chapter). See Appendix.
522
As contained in article 105, read with 100 (discussed in further detail in the next chapter). See
Appendix.
523
See, for example: S.C. Res. 1816, U.N. Doc. S/RES/1816 (2 June 2008).
520
110
may not be the concern of, or affect, only the territorial State, but the whole
international community.’524
This comment could not have been more apt in the circumstances of the present study. The
geographical limits of piracy under UNCLOS effectively mean that, notwithstanding
Somalia’s inability to police and exercise its law over its own territorial sea, international
and foreign navies lack any jurisdiction to enter the territorial sea of Somalia. As a result,
foreign navies and international police forces have no legal authority under the UNCLOS
to pursue, arrest and detain pirates in the territorial sea of the coastal state, and UJ has no
application therein.525 Foreign naval countermeasures to reduce or minimise and prevent
piracy find no authority in the UNCLOS. An amendment to the articles in UNCLOS is
accordingly necessary, in order to enable foreign extraterritorial jurisdiction.
It is evident that the realm of the territorial sea, as provided in UNCLOS, firstly recognises
the sovereignty of the coastal state in the territorial sea, and prescribes the rights and
obligations thereof – and it is because of this sovereignty that piracy jure gentium can have
no application therein. It is this concept of maritime sovereignty and its legal development
that will form the basis of the ensuing discussion and argument.
5.2
The concept of maritime sovereignty
The legal concept of sovereignty can be found through a quick perusal of any standard
scholarly work in the discipline of international law. For convenience of recollection, it
states that internally and within its territorial boundaries, the independent state has both
prescriptive and enforcement jurisdiction, with the power to establish and regulate its own
internal affairs.526 Rembe’s elucidation of this concept states that a corollary to this is the
principle of respect for the sovereignty and territorial integrity of other states. 527 He
cautions that sovereignty is not an absolute concept and that there are limitations imposed
by customary international law, treaties and general principles of law.528 Importantly, he
further mentions that this limitation is an attribute of – rather than an abdication from –
sovereignty.529 Rembe’s analysis then draws towards the concept of the territorial sea,
524
Rembe Africa and the International Law of the Sea: A study of the contribution of the African
States to the Third United Nations Conference on the Law of the Sea (1980) at 7.
525
See Doby (2010) at 564, 569.
526
Rembe (1980) at 5-6.
527
Idem.
528
Idem.
529
Idem.
111
where he puts forward the proposition that the concept is perhaps the oldest and most
controversial aspect of the law of the sea, particularly because of the conflicting themes of
the sovereignty of the coastal state over the territorial sea and its restriction to preserve the
freedoms of the high seas.530 He succinctly summarises this conflict in the following way:
‘While the essential interests of coastal states should be protected and
safeguarded, the traditional concept of sovereignty needs to be functionally
considered in the light of the common heritage of mankind. The sovereign
rights of coastal states over their territorial sea have to be matched by
corresponding duties and obligations vis-à-vis the interests of the international
community, and vice versa. A well balanced accommodation, in which the
essential interests of the international community are secured, may offer
additional safeguards and respect for the sovereign rights of the coastal
States.’531
This conflict is applicable in the present study where the pursuit of trade and commerce
through the sea lanes and via innocent passage through the territorial seas has become
ubiquitous, and cooperation to safeguard this system and industry is of paramount
importance. A final comment from Rembe’s work is that the realm of the territorial sea and
the sovereignty thereof was predicated upon the notion that there is legal equality among
nations. He carefully observed that:
‘[S]tates may be greatly unequal in size, population, economic and military
capabilities; they may be endowed with uneven resources at different levels
of development, yet before they law they are supposedly all equal. In this
sense, equality is a legal fiction.’532
Rembe’s foresight on legal equality has a bearing on the present study. The current
framework in UNCLOS appears to be founded on this notion of sovereign equality and the
resultant ability to exercise such sovereignty. This is because there is no article which
envisages a situation where a state cannot (because of a lack of capacity or resources) or
will not take the necessary steps to regulate piratical acts within its territorial waters. 533
530
Idem at 86.
Idem at 87.
532
Idem at 7.
533
See Doby (2010) at 569.
531
112
Given these concerns about the ability and capacity of Somalia to effectively administer its
territorial sea, and given the threats to international commerce combined with the inflexible
provisions of UNCLOS stifling international naval action in the area highlighted above –
it is surprising that the foundational conception of state sovereignty over territorial waters
in this regard has not received extensive academic scrutiny. This could be attributed to the
fact that the division in the breadth of the various realms and the extent of the jurisdiction
thereof is clearly and unambiguously provided for in the articles of the UNCLOS. It appears
to be a settled and inflexible proposition of law, and, accordingly, has received little critical
attention in the plethora of scholarship advanced in recent years due to the Somali piracy
epidemic. As was seen from the earlier sections of this chapter, in forging a definition of
piracy issues which were critical concentrated on the nature of the act, i.e. the actus reus
and distinguishing the act from privateering. It appeared to be a settled fact in the
jurisprudence that the locus of the crime was always the high seas. Current commentators,
as will be shown in the next chapter, advance a solution of simply effecting an amendment
to the articles of UNCLOS or a protocol thereto, in order to authorise foreign intervention
in the territorial sea of another state. Such an approach, as will be shown in this chapter, is
not so straightforward, and obtaining the ratifications of nations when a possible
curtailment of state sovereignty is at play would be difficult. Accordingly, a rationale or
justification must be proposed to support such an amendment or protocol.
This section will now attempt to forge such a rationale through an argument that revisits
the doctrines that originally established the extent and nature of the sovereignty of the
territorial sea in the context of this study – thereby filling a gap in the present scholarship.
The hypothesis of the argument, as was stated in the first chapter to this thesis, contends
firstly that the extent of the territorial sea vis-à-vis the realm of the high seas has been the
subject of much debate over the years, and was not always in a definitive state and with
uniform consensus among nations. In simplistic terms, it could be said that what was a part
of the realm of the high seas in previous centuries is not necessarily currently in that realm.
Secondly, the nature of the sovereignty to be exercised in the territorial sea was also never
of a settled nature and this persisted up until the early codification attempts of the Twentieth
Century. Accordingly, the hypothesis will show that the rigid and settled articles of
UNCLOS constituting the present legal regime, which restrict international naval
interdiction and other countermeasures in the territorial sea, was based on a hollow
foundation. It is because of this hollow foundation that the inflexibility of the UNCLOS
provisions and resultant state practice are called into question. This hypothesis will be
proven through a survey of the jurisprudence emerging from the works of jurists and
113
publicists from the Seventeenth to Nineteenth Century. Selected precedents will also be
used to advance the hypothesis.
A few delimitations, however, must be set out here. The analytical exposition below does
not aim to be a comprehensive exercise into the nature of the sovereignty and extent of the
territorial sea.534 The purpose is to merely provide evidence supporting the hypothesis. It is
regretted that the historical conception presented here isn’t a plain and clear-cut one. A
critic of a historical survey could argue that juridical treatises on the law of the sea have
become so numerous that it is better not to quote from them at all than to make arbitrary
selections from various sources.535 This chapter has shown, however, that the very nature
of the jurisprudence of piracy has arisen from a complicated and often unclear reality.
Indeed, when the Harvard Scholars were preparing the Harvard Draft and when they
surveyed the works of writers, they commented:
‘[T]here is clearly no settled law of nations and a great deal of learned
controversy … [there is a ] paucity of pertinent cases and of evidence of
modern state practise on the most important moot points in the law of piracy.
Except for a few international cases, chiefly concerning the status of insurgent
vessels or of irregular privateers, and a few municipal law cases, there are no
official determinations which will help an investigator to cut a way through
the jungle of expert opinion.’536
With these precautionary words, the survey will consider the primary arguments of the
most influential writers and will discuss precedents that support this hypothesis. Works of
writers, particularly from the Seventeenth and Eighteenth Century are cited, for
convenience, through subsequent works of later writers – due to the original texts being
written in Latin and inaccessible through library loans. While proposals for amendment to
UNCLOS are furnished with some detail in the last chapter of this thesis, informed by the
findings of this hypothesis other researchers in the discipline may adopt different
approaches. Thus it is hoped that this historical survey, notwithstanding the faults
inevitably adherent to it, will be of some use to those who wish to continue with this work.
534
For a fuller discussion, see, for example, Oudendjik Status and Extent of Adjacent Waters: A
historical Orientation (1970)
535
Idem at 147.
536
See Harvard Draft (1932) at 764.
114
5.3
Exposition of the works of jurists and publicists on the nature and extent of the
territorial sea
‘The sea has always been lashed by two major contrary winds: The wind from
the high seas towards the land is the wind of freedom; the wind from the land
towards the high seas is the bearer of sovereignties. The law of the sea has
always been in the middle of these conflicting forces.’537
5.3.1
The battle of the books and the empire of the sea
Early conceptions of the sea and its jurisdictional realm can be drawn back to natural law
concepts in primitive society – when humankind held all things in common.538 Oudendijk,
paraphrasing the works of Hugo Grotius,539 comments on the impracticalities of
appropriation of the sea:
‘The sea is as unseizable as the air and because of its restlessness it resists all
attempts at possession, like a wild animal does. It can’t be trodden upon, so
there is no potestas standi ac sedendi. Even the navigator doesn’t really stand
on it: he doesn’t hold it, but is held by it and his ship leaves no traces behind.
Consequently, as he doesn’t occupy any part of it, he can’t acquire possession
or property.’540
She then refers to Grotius’s Defensio,541 which definitively declares:
‘[n]o part of the sea, no matter how large or how small it is or where it is
situated, can be exclusive property, for neither quantity nor situation makes
any difference as to the substance, and when the substance is the same, the
law must be the same, especially the law of nations which is universal.
Moreover, why should property end at a certain line? If it is admitted up to a
hundred miles, then why not up to a hundred and fifty or two hundred miles
and so on?’542
537
Dupuy and Vignes 1 A handbook on the new law of the sea (1991) at 247.
Oudendijk (1970) at 17.
539
Cited therein as Mare Liberium at 30, 39, 40, and Defensio at 348-350, 353.
540
Oudendijk (1970) at 20-21. Other writers also held similar views. See, for example, the Italian
jurist Abbe Galliani’s work Dei Doveri de’ Principi de Neutrali (ch. 10, §1), as summarised by
Azuni The Maritime Law of Europe (1806) at 221: ‘But not being able to surround, nor strictly to
defend the open sea, since no solid work can be erected on that element, it is impossible to guard it,
and consequently it is by nature incapable of being occupied.’
541
Cited therein as Defensio at 359.
542
Oudendijk (1970) at 24.
538
115
Domencio Azuni (1749-1827), a famed Italian jurist, wrote an authoritative compilation,
Droit maritime de l’Europe, in 1806, which summarised some of the key contentions of
jurists of previous generations. The treatise coined the expression “territorial sea” and
contains a chapter on this topic which he introduces with the following comment,
paraphrasing the earlier jurist Cornelius van Bynkershoek (1673-1743):
‘[t]he face of the earth became changes by occupancy, and the rights of
domain were introduced, the sea, which bathed its shores, was not abandoned
to its natural liberty. Human affairs, in their commencement, proceed with the
greatest simplicity. In the first ages of the word, the sea adjacent to the coast,
belonged to the first occupier of the main land, as well on account of its utility
for fishing and transportation, as because it was considered an appendage, or
rather, an accession to it.’543
As this notion of appropriating the ocean became rooted, major controversies arose among
jurists in the 17th Century, concerning ‘the empire of the sea’ as described by Azuni. In this
“battle of the books”, one side of the controversy maintained the notions in the quotes above
on the absolute liberty and freedom of the sea, whereas the other side contended that it
might be subjected to the dominion of a particular nation.544 Proponents of the latter – the
Spanish and Portuguese – were determined to have the exclusive right of navigating the
seas of the Indies and the Atlantic,545 contrary to the perceptions of other maritime nations
such as the Netherlands who advocated the freedom of the seas. Azuni commented how
writers took up the pen to defend the interests of their respective countries with zeal, and,
at times, animosity.546
This ‘battle of the books’ has been well documented in standard texts on international
law.547 Azuni’s authoritative summary, however, is worthy of recollection here. He
comments that Grotius had undertaken to prove that neither Holland not any other nation
could be excluded from the navigation of the ocean, and the sea is in its nature not
susceptible to sovereignty.548 The Dutch asserted this freedom of navigation to advance
543
Azuni (1806) at 181-182
Idem at 208.
545
Idem at 210 and 190. See, generally, Dugard International Law: A South African Perspective
(2006) at 366.
546
Azuni (1806) at 208.
547
See, generally, for example: Oudendijk and Verzijl International Law in Historical Perspective
4 (1971)
548
Azuni (1806) at 209-210.
544
116
their case that it was lawful for them to fish in the English seas.549 Azuni then recounts a
contemporary of Grotius, the English Jurist John Selden (1584-1654), whose treatise in two
books: Mare Clausum, maintained that the British seas belonged to the crown of
England.550 The first book argued that the sea is not common to all under the law of nations,
but is susceptible to becoming the domain and property of a sovereign nation.551 As to the
battle of the jurists, Azuni remarked:
‘The two celebrated publicists, impelled by the interests of their respective
countries, and by the glory of being leaders of literary factions, so entangled
the subject, by their passionate opinions, that instead of elucidating and
deciding the question, they involved it, by their useless learning, and equivocal
arguments, in greater obscurity.’552
These writers however argued at opposite extremes of the spectrum, one advocating
complete freedom of the seas and the other the possibility that the ocean itself can be subject
to sovereignty. A balance of the two extremes was found in the works of Bynkershoek who
defended both the freedom and sovereignty of the sea. Continuing with the summary by
Azuni, who commented that Bynkershoek affirmed that the sea may be made subject to
dominion, but that ‘there is not an instance, at the present day, of its being subject to any
sovereign, where the surrounding territory did not at the same time, belong to him’. 553
Thomas Fulton (1855-1929), a modern British authority, in his treatise The Sovereignty of
the Sea, also analysed the works of Bynkershoek. He found that Bynershoek accepted that
the open ocean could not be entirely susceptible to appropriation, but however agreed with
Selden that various nations had enjoyed such dominion, and the fluidity of the sea was not
a bar to its occupation.554 Bynkershoek reasoned that by taking possession of the sea, the
same right was acquired, as was by taking possession of the land.555 His works popularised
the concept of the dominion of a state extending over the neighbouring sea – the territorial
sea. Fulton commented that while there was a general movement of opinion and practice
in modern times away from the complete sovereignty of the oceans, to it being free and
open to all, there was also another movement by which exclusive rights of maritime states
549
Idem at 210. See Coke (1838) at 157 for a description of the English seas.
Idem at 212.
551
Idem at 213.
552
Idem.
553
Idem at 219.
554
Fulton The Sovereignty of the Sea: An historical account of the claims of England to the dominion
of the British seas, and the evolution of the territorial waters, with special reference to the rights of
fishing and the naval salute (1911) at 555.
555
Idem.
550
117
in coastal waters have come to be more clearly recognised and definitely incorporated into
international law.556 He states that, to this extent, all maritime countries now have
sovereignty of the sea.557 Even Grotius, who so passionately defended the freedom of the
seas, agreed that the coastal state should have some control over their coastal waters in
order to suppress crimes at sea.558 Thus Fulton declares in his exposition of the evolution
of the territorial sea, that it is now settled as indisputable – both by the usage of nations and
the principles of international law – that the open ocean cannot be appropriated by one
power.559 More importantly, for the purposes of this discussion, he further concludes that
it is firmly established that all states possess sovereign rights in those parts of the sea that
wash their shores.560 This is a view that now represents the present state of the law.561
5.3.2
The extent of the realm of the territorial sea
‘Far as the sovereign can defend his sway,
Extends his empire o’er the wat’ry way;
The shot send thundering to the liquid plain,
Assigns the limits of his just domain.’562
While the concept of the territorial sea became an established realm through state practice
and the influence of jurists, the extent of the realm, until the recent codifications under the
Geneva Conventions of the 1950s, was never settled. Azuni observed at the turn of the 19th
Century:
‘…yet there is not an unanimity of opinion, and, much less, an universal
agreement, among nations, (so necessary for the good order and interest of
556
Fulton (1911) at 537.
Idem.
558
See Grotius’s Inleidinge tot de Hollandsche rechts-geleerheid beschreven, book II, part I, §19:
‘However, in order to avert piracy and other crimes at sea it is necessary that the different
governments by agreement make themselves responsible each for the safety of a certain part of the
neighbouring seas. Thus it has been understood of old that the province of Holland and WestFriesland has jurisdiction up to the middle of the [north] sea.’ (cited in Oudendijk (1970) at 33).
559
Idem.
560
Idem. Fulton (1911) at 538 argues further that even during the period of the battle of the books,
there was a general recognition that every maritime state was entitled to exercise jurisdiction over
some extent of the neighbouring sea. See, also, Azuni (1806) at 196, who also concluded that
‘according to the consent of all maritime nations, it cannot be questioned, that the nation in
possession of the shore, is, at the same time, sovereign of the adjacent sea’.
561
See Brownlie (1998) at 178, where it is stated that the view is generally accepted by writers (see
further authorities cited in fn 5 thereof), and this has found expression in Art. I of the Convention of
the Territorial Sea of 1958 – namely that states have rights amounting to sovereignty over the
territorial sea.
562
Entitled Del Diritto della Natura by an anonymous author and cited in Azuni (1806) at 205, and
is described as the ‘cannon-shot rule’ to determine the extent of the territorial sea (developed by
Bynkershoek and discussed infra).
557
118
commercial states) either as to the nature or extent of this sovereignty. These
opinions, moreover, have varied in different ages, as much as the different
systems, adopted, as to the extent of the territorial seas’.563
Fulton, writing at the turn of the 20th Century had similar remarks about the uncertainty of
this realm:
‘…there has not, and has never been, universal agreement as to the precise
nature of those rights, or as to the extent of the sea that may be thus
appropriated564 …. while the sovereign rights of a state over a part of the
adjacent sea were recognised … there was no agreement as to the extent which
might be appropriated, and the various limits or boundaries have from time to
time been proposed or adopted, by which the sea pertaining to a state might
be divided off from that which was open and free to all’.565
In his authoritative treatise on international law, Oppenheim remarked that ‘no unanimity
exists as to the breadth of the belt, or the point on the coast from which it is to be
measured’.566 Fenn also commented that the writers do not agree on to the extent of the
adjacent sea.567
That said, it is useful at this stage to chronicle some of the principal contentions that have
been advanced by writers from time to time on the extent of this realm. As Fulton remarked,
the realm was sometimes regarded as a direct remnant or residuum of the ancient claim of
a sovereignty which was previously asserted by particular nations over whole seas or large
parts thereof.568 Azuni refers to Hübner’s 1759 treatise de la saisie des batimens neutres569
where he confessed how difficult it is to fix, with precision, the extent of maritime
jurisdiction of the coastal nation.570 In an earlier Seventeenth Century treatise cited by
Oudendijk, Discussionum historicarum libri duo571 by Pontanus (1571-1639), nothing in
particular was said about geographical limits or juridical difference between the ocean,
vindicated as free, and adjacent waters assigned to maritime nations.572 Notwithstanding
563
Azuni (1806) at 196.
Fulton (1911) at 537.
565
Idem at 539.
566
Lauterpacht (ed.) 1 International Law – A treatise by L. Oppenheim (1955) at 488.
567
Fenn The Origin of the right of fishery in territorial waters (1926) at 200.
568
Idem at 538.
569
Cited in Azuni (1806) at 199-200 as tom.1, ch. 8, §10.
570
Azuni (1806) at 200.
571
Cited in Oudendijk (1970) at 67 as 168, 170, 171.
572
Oudendijk (1970) at 67.
564
119
these reservations, some rules can be extrapolated from a survey of writers and jurists, and
these will be presented below.
In this survey, some of the earliest proposals to assign limits to maritime jurisdiction can
be found in the writings of Fourteenth Century Italian jurists. Bartolus of Saxo-Ferrato
(1313-1357) was an Italian Professor of Law and was one of the most prominent continental
jurists of medieval Roman law. He declared the extent to be a distance of 100 miles from
the coast, or less than two days’ journey from it.573 His pupil, another eminent jurist, Baldus
de Ubaldus (1327-1400), reduced the distance to 60 miles – which was reckoned to be
equal to one days’ journey from the coast.574 Scottish jurist William Welwood (1578-1622)
stated that the sea up to 100 miles from the shore must be considered as the territory and
district of the government of the coastal state.575 His contemporary, Gentilis, also stated
that jurisdiction and dominion pertained to the neighbouring state as far as 100 miles from
the coast.576 French lawyer Claude-Barthélemy Morisot (1592-1661) was of the opinion
that coastal states were competent to exercise jurisdiction and protection up to eyesight
distance from their shores.577 German jurist Samuel von Puffendorf (1632-1694) admits a
maritime dominium of up to 60 miles from the shore.578
While the methods of delimitation set out above were drawing imaginary lines in the sea at
a considerable distance from the coast, other principles were applied to demarcate the
extent of maritime jurisdiction. Fulton describes the principle of the mid-channel where the
entire extent of a sea stretching between territories belonging to the same state – however
far apart these territories might be – was looked upon as being under the sovereignty of that
state.579 Fulton goes on to comment that this principle therefore covered the most extensive
claims to maritime dominion, since it left hardly any part of the sea unappropriated.580
Both Azuni and Fulton refer to the Italian author Paolo Sarpi (1552-1623) who formulated
the opinion that the extent of the territorial sea should not be fixed everywhere in an
573
Fulton (1911) at 539. Azuni (1806) at 197 submits that the greatest number of writers carry the
extent of domination to the distance of 100 miles.
574
Fulton (1911) at 539-540; Azuni (1806) at 196-197. Note, however, that Fulton (1911) at 541
states that there is no evidence that either of the boundaries prescribed by Bartolus or Baldus was
sanctioned by the general use of nations.
575
Oudendijk (1970) at 69.
576
Fulton (1911) at 540-541.
577
Oudendijk (1911) at 75.
578
Idem at 87.
579
Fulton (1911) at 542.
580
Idem.
120
absolute manner – but rather should be made proportionate to the requirements of the
adjoining state.581 In his work, Del dominio del mare Adriatico, Sarpi explains:
‘The extent is equal to what may be wanted by a state for its own use, without
injury to its neighbours. Thus, a large maritime city, possessing a large extent
of territory, from which it draws its subsistence, will have but few citizens
desirous of following the occupation of fishing, and will make little use of the
sea. On the contrary, a small city, possessing only a very narrow territory, and
deriving its subsistence from fishing, will have need of a large extent of
sea.’582
Fulton also describes another principle which most likely had its origins in the practice of
mariners, where the belt of sea between the coast and horizon or vice versa was considered
as belonging to the adjoining state.583 This would have to be determined by reckoning the
range of vision, and Fulton describes how the Scottish would determine the range of vision
from the sea to the land from the ‘main-top of the fishing smack’.584 It was clear to Fulton
that the method of determining the extent of the territorial sea by the range of vision was
vague and open to obvious objections.585 He cites van Bynkershoek, who pointed out that
the distance would vary according to the position of the observer, the keenness of his vision,
the climate, and also other circumstances.586 Oudendijk also pointed out with regard to the
range of vision, it could be reckoned from either the ship to shore or from shore to ship.587
She cautions, however, that this was not one and the same thing, as the distance over which
a flat coast can be seen from ship’s maintop may be roughly estimated to be twelve miles,
and over which a ship can be seen from such a coast is about eight miles.588
These methods of delimiting the territorial sea, up to the end of the Seventeenth Century,
were more or less arbitrary and Fulton correctly points out that they did not rest upon a
natural basis capable of universal application.589 He points out that during the Eighteenth
Century, another principle gradually evolved which was ultimately accepted into
customary international law: the maritime dominion of a state ended where its power of
581
Fulton (1911) at 547.
Cited in Azuni (1806) at 201.
583
Fulton (1911) at 544.
584
Fulton (1911) at 545.
585
Fulton (1911) at 546.
586
Idem.
587
Oudendijk (1970) at 141.
588
Idem.
589
Fulton (1911) at 549.
582
121
asserting continuous possession ended.590 In amplification thereof, the principle contended
that ‘the belt of sea along the coast which could be commanded and controlled by artillery
on the shore thus came to be regarded as the territorial sea belonging to the contiguous
state. Beyond the range of guns on shore the sea was common’.591 This concept became the
ubiquitous ‘cannon shot’ rule. Oudendijk recalls that this notion did have some early
origins, having been mentioned as early as 1610 through a Dutch diplomatic mission sent
to London.592
It was in the work of distinguished publicist Cornelius van Bynkershoek (1673-1743),
whose treatise De Dominio Maris Dissertatio – published in The Hague in 1703 –
proposgated this principle. Thus, he laid down the principle that the dominion of the state
extended over the neighbouring sea only as far as it was able to command and control it
from the land, and the associated formula terrae dominium finitur ubi finitur armorum vis
has been frequently cited since.593 This notion derives from Bynkershoek’s conception of
the laws of property. In his opinion, property is held only as long as it is actually
occupied.594 When considering the concept of the territorial sea, Bynkershoek enquired as
to how far a nation or a prince could be said to have perpetual possession of the adjacent
sea.595 He identified two difficulties in this regard:
(i)
It could be inferred that the adjacent sea is possessed as far as it is constantly
navigated upon.596 However, it would require a constant presence of ships at the
same distance from the shore, which would be practically impossible.597
(ii)
The reckoning of earlier writers as to the breadth of the territorial sea, such as a
hundred miles from the shore, presented practical uncertainties: was the distance
measured from the beach or from a castle and were glasses were to be used?598
590
Idem.
Idem.
592
It was reported that the Dutch mission commented:
‘Ffor that it is by the Lawe of nacions, no prince can challenge further into the Sea
then he can Command with a Cannon except Gulfes within their land from one point
to an other; ffor that the boundlesse and rowlinge Seas are as common to all people as
the ayre which no prince can prohibite.’ Cited in Oudendijk (1970) at 34.
593
Fulton (1911) at 558; and Oudendijk (1970) at 108.
594
Oudendijk (1970) at 107.
595
Idem at 108.
596
Idem.
597
Idem.
598
Idem.
591
122
Bynkershoek then postulated that the possessor of a thing is the man who holds it in such
a way that no other can get it without his consent.599 Accordingly, exerting ownership or
control of the adjacent seas would have to be done from ashore.600 In practical terms,
exercising control of the adjacent sea from the land is thus premised through the threat of
artillery fire from the shore – most likely through cannon fire.
While the doctrine underlying the cannon shot rule had a logical foundation, the precise
extent of such artillery range was not specified by Bynkershoek. In 1872, in a treatise601 by
the Italian illuminist, Ferdinando Galiani,602 for the first time the extent of the cannon shot
range appeared to be fixed independently of the actual calibre of the posted guns – at three
miles.603 While this three-mile limit derived from Galiani gained much recognition and
acceptance in later years,604 Oudendijk has suggested that it was based on a hollow
foundation by Galiani, because: (i) he made a ballistic mistake in assigning too large a
range to contemporaneous guns;605 (ii) it is not definitive whether he founded the limit on
his understanding of the prevalent state practice of the time;606 and (iii) he did not restrict
it exclusively to three miles as there are instances, in favourable circumstances, where the
limit was increased to six miles.607 Other influential writers such as Georg Friedrich von
Martens gave the equivalent distance of Galiani as ‘three leagues’ – mistaking lieues for
milles.608
Writers have advanced pragmatic concerns, however, about the efficacy of the cannon shot
doctrine. Indeed, Fulton noted that for a long time the doctrine was neglected by publicists
599
Idem.
Cited idem in the original text as quam e terra illi imperati potest. Fulton (1911) at 556 also cites
Bynkershoek: ‘the dominion of the land ends where the power of arms terminates’.
601
De doveri principi neutrali verso i principi guerregianti e di questo verso i neutrali (1782) at
422, cited in Treves ‘Historical Development of the Law of the Sea’ in Rothwell et al (eds) The
Oxford Handbook on the Law of the Sea (2015) at 5.
602
Referred to by Oudendijk (1970) at 125, as Ferrante Galiani.
603
Fulton (1911) at 563; Oudendijk (1970) at 126, 128, 142; and Rothwell (2015) at 5. See generally
a book review by McDougal ‘The Three-Mile Limit of the Territorial Seas’ 7 (October 1973) The
International Lawyer 925 at 926. Azuni also followed Galiani’s reckoning, thus cementing the 3
mile rule before the close of the eighteenth century. Fulton (1911) at 565.
604
See generally Fulton’s (1911) chapter ‘General adoption of the three-mile limit’ at 576-603.
605
Oudendijk (1970) at 128. She indicated later (at 143) that in Galiani’s time, guns didn’t control
distances of more than about 1715 metres while three nautical miles amount to 5556 metres.
606
See Oudendijk (1970) at 142 read with 128.
607
Idem at 126.
608
Fulton (1911) at 563; Oudendijk (1970) at 143. He also stated that: a nation may occupy and
extend its dominion beyond that distance and maintain it, if the security of the nation requires it, by
a fleet of armed vessels. (at 564). Fulton (1911) later notes at 595 that “while the majority accepted
Bynkerhoek’s principle of cannon range, comparatively few restricted it to the distance of three
miles and many logically insisted that the extent must necessarily vary with the improvements in
artillery.”
600
123
and statesmen, as it represented much too stringent a limitation of the territorial sea to
receive general assent.609 Treves argues that it has the drawback of being uncertain and
subject to change in response to changes in weapon technology, and questions whether the
rule was to be applied when real artillery was present on the land or was a consequence of
the mere possibility of such a presence.610 Fulton, while acknowledging the merits of the
doctrine – to transfer in theory all parts of the adjacent coast with dominion – strictly
speaking, it exists where forts or batteries were placed.611 It is trite, without a
comprehensive understanding maritime geography, that coastlines have varying features
and areas, which can, at times, be inaccessible. Therefore, in such circumstances, it would
be impractical to maintain dominion over the territorial sea by means of artillery on the
shore and maintenance through coastguards and naval vessels.612 The doctrine accordingly
rests on a hypothesis. Oudendijk advanced more pragmatic questions such as which types
of guns are to be taken into account and where were they supposed to be placed (at the
shore or on elevated or projected cliffs or castles?)613
The next query in this survey is considering the eventual reception and adoption of the
cannon shot and three-mile doctrine – notwithstanding the concerns and limitations noted
above. Oudendijk questioned, however, whether the axiom that the cannon shot rule was
based on general usage, accorded with reality.614 She finds that in the 17th and 18th Century,
state practice of the doctrine was connected either with completely territorial cannon
sections, or with neutrality or safety belts which had a districtual character.615 Proprietary
zones such as exclusive fishing belts, limited at cannon shot distance, were exceptional.616
She concludes that 18th Century writers thus generalised and simplified a complicated state
of affairs.617
The adoption of the cannon shot doctrine and three-mile limit was given a comprehensive
survey in Fulton’s treatise.618 Some of his findings are worth briefly reproducing at this
stage. At the outset, he found that despite the variations in the extent of the limit, the
principle of determining the general boundary of the territorial sea by the range of guns
from the coast, became firmly established in the practice of nations before the end of the
609
Fulton (1911) at 550.
Rothwell (2015) at 5.
611
Fulton (1911) at 558.
612
Idem.
613
Oudendijk (1970) at 112.
614
Idem at 136.
615
Idem.
616
Idem.
617
Idem.
618
See, generally, Fulton (1911).
610
124
Eighteenth Century.619 He recalls the decisions of Lord Stowell at the turn of the 19th
Century, which introduced the three-mile limit into English jurisprudence.620 He also
referred to French writer Joseph Latour, who was of the view that a nation is justified in
exercising jurisdiction in the sea, as far as its security or interests render it necessary.621 In
a book review of Latour’s 1889 treatise, La Mer Territoriale, Moore summarises a key
contention of Latour, that ‘in reality there is no rule open to greater exception and more
likely to be the subject of modification in the future than that by which it is sought to
confine the exercise of jurisdiction to a marine belt of three miles’.622
Having thus presented the contentions of influential writers and jurists in some detail –
principally drawn from the treatises of Azuni, Fulton, and Oudendijk – it is apt to conclude
with Fulton’s summation:
‘It is obvious from the review of the opinions of publicists in the first half of
the last [nineteenth] century that no complete agreement had been reached in
theory or principle respecting the extent of the territorial sea. Many of the
writers held to the opinions expressed by Puffendorf, Wolff and Vattel, which
allowed a more or less wide and vague jurisdiction in the neighbouring sea for
the security of the state; and most of them refer to the cannon-range limit as
the one usually adopted. Few, however, accept the three-mile boundary as an
alternative to the range of guns; most of the authors indeed do not even
mention it, and those who do appear to have been guided in the main by Lord
Stowell’s decisions.’623
Notwithstanding this uncertainty, Treves notes that a fixed limit for the extent of the
territorial sea was recognised and adopted in the state practice of the Nineteenth and early
Twentieth Centuries.624 Even into the Twentieth Century, while the three-mile limit was
the most frequently adopted by countries such as the United States, France and the United
Kingdom, other states adopted different limits, such as: four miles for Denmark, Norway
and Sweden; six miles for Spain, Portugal and Italy; and twelve miles for Russia, Venezuela
and Guatemala.625
619
Fulton (1911) at 576.
Fulton (1911) at 577, citing the Twee Gebroeders (1801) 3, C.Rob 336.
621
Fulton (1911) at 595.
622
Moore ‘Review: La mer territoriale au point de vue théorique et practique’ 4 Political Science
Quarterly (December 1889) at 705-705.
623
Fulton (1911) at 603.
624
Rothwell (2015) at 5.
625
Idem.
620
125
From the foregoing detailed survey, it can be confidently concluded that the true extent of
the territorial sea – from the point of universal application – has never been settled in
international law, as demonstrated by the expositions of eminent writers and jurists. Jurists
proposed wide-ranging extents from a hundred miles to the sight of the horizon. While the
cannon shot doctrine and its subsequent delimitation to three miles was much later accepted
in state practice in the Twentieth Century, this survey has highlighted its shortcomings and
lack of universal acceptance among other jurists of the various periods under review. This
uncertainty of the extent of the territorial sea proceeded well into the Twentieth Century,
prior to the codification in UNCLOS.
This sound conclusion supports one of the hypotheses of this thesis set out supra – namely
that which was part of the realm of the high seas in previous centuries is not necessarily in
that realm in the present day and vice versa. As reviewed earlier in this chapter, the
jurisprudence of piracy jure gentium or piracy under the law of nations, has always shown
it to only take place on the high seas – so it is a significant omission that the delimitation
of the territorial sea has not received closer scrutiny in earlier piracy cases and
jurisprudence. The realm of the high seas never had a universally accepted definition, as
was shown from the survey of early writers and cases in American and British
jurisprudence. This is in stark contrast to the rigid regime set out by the UNCLOS regime
– which has clearly defined delimitations of the various realms of the ocean. The concept
of piracy jure gentium as taking place only on the high seas, as distinguished from territorial
seas, finds its origin in jurisprudence as early as the Sixteenth Century, as was shown earlier
in this chapter, and it continues to be an essential element of the definition of piracy. Yet,
it has now been shown that the extent of the territorial sea has never had a universal
application. It is submitted that while in the study of East African piracy the limitations
caused by confining the crime under international law to the high seas was acknowledged,
the doctrines that set out the extent of these distinct realms have not received a close
academic synthesis with piracy jurisprudence. Thus, in demonstrating this large divergence
in principles which delimited the territorial sea and the high sea over the centuries, and
comparing the stagnant element of piracy under international law as occurring only on the
high seas, it can be concluded that there has been a gap in the development of piracy
jurisprudence concerning the element of the high seas. This gap in jurisprudence will be
taken into account in the final chapter of this thesis, when proposals will be made
concerning the UNCLOS piracy definition and its high seas’ element.
126
A second leg of the survey is – with the acceptance of the realm of the territorial sea – to
consider the development and genesis of the nature and extent of the sovereignty exercised
over this realm. In simpler terms, the enquiry is to consider the reasons or rationale for a
state exercising sovereignty over the adjacent belt of sea.
5.3.3
The juridical nature of the territorial sea
(i)
Essential nomenclature
Before a comprehensive analysis on the juridical nature of the territorial sea is undertaken,
essential nomenclature needs to be set out and defined in context. This encompasses
concepts of ownership and sovereignty. In defining the term sovereignty, Ferreira-Snyman
commented that its precise meaning is not clearly defined.626 In Oppenheim’s treatise on
international law, he describes how the term was introduced by the French philosopher
James Bodin (1530-1596) in his work De la République (1577) – as ‘the absolute and
perpetual power within a State’.627 According to Bodin, such power is the ‘supreme power
within a State without any restriction whatever except the Commandments of God and the
Law of Nature’.628 Later writers such as Puffendorf contended, however, that although
sovereignty is the supreme power in a State, it is not absolute and may be constitutionally
restricted.629 Through a review of international law writers, Ferreira-Snyman offers the
following definition:
‘Sovereignty is the most extensive form of jurisdiction under international
law. In general terms, it denotes full and unchangeable power over a piece of
territory and all the persons from time to time therein.’630
This has developed from the classical understanding of sovereignty which originated in the
Peace of Westphalia in 1648. Shaw comments that the Treaties of Westphalia, taken as a
whole, may be regarded as ‘the first sustained attempt to establish a world order on the
basis of States exercising untrammelled sovereignty over certain territories and
626
Ferreira-Snyman ‘The evolution of state sovereignty: A historical overview’ 12-2 Fundamina
(2006) at 1.
627
Lauterpacht (1955) at 120.
628
Idem.
629
Idem at 121. Lauterpacht (1955) also comments later (at 290) that ‘like independence, territorial
supremacy does not give an unlimited liberty of action. Thus by customary International Law, every
State has a right to demand that its merchantmen may pass through the maritime belt of other States’.
630
Ferreira-Snyman (2006) at 1. She concludes that the traditional understanding of sovereignty was
often conceived as an absolute concept, with the implication that all states are independent with
regard to all other states, and are above the rules of international law (idem at 9).
127
subordinated to no earthly authority’.631 He comments further that this order involved the
recognition of all independent states as having equal rights of sovereign jurisdiction over a
determined territory.632 Two fundamental principles emerge in this elucidation of
sovereignty as a concept: first, the equality of states is one of the essential elements;633 and
second, the principle of non-intervention in the internal affairs of States applies.634 Tanaka
points out that the principle of sovereignty seeks to safeguard the interests of coastal
states,635 and comments further that this principle ‘essentially promotes the extension of
national jurisdiction into offshore spaces and supports the territorialisation of the
oceans’.636
A report of the International Commission on Intervention and State Sovereignty (ICISS)
commented, however, that sovereignty is more than just a functional principle of
international relations, and iterate that ‘for many states and peoples, it is also a recognition
of their equal worth and dignity, a protection of their unique identities and their national
freedom, and an affirmation of their right to shape and determine their own destiny’.637
The concept of territory also needs to be considered at this point, as it is an essential
element in the sovereignty of a particular society, and is pivotal in this analysis of the
territorial sea. Shaw comments that territory itself is a geographical conception relating to
physical areas of the globe.638 Oppenheim describes it as ‘that defined portion of the surface
631
Shaw Title to Territory in Africa: International Legal Issues (1986) at 2. Ferreira-Snyman (2006)
also comments that this new world order was premised on the absolute sovereignty of its constituent
members (at 9).
632
Idem.
633
Ferreira-Snyman (2006) at 11; Shaw (1986) at 7. See also the 1970 Declaration on Principles of
Internal Law which emphasised that all States enjoy sovereign equality; and Article 3 of the Charter
of the Organisation of African Unity (1963), which emphasised the: (i) sovereign equality of all
member states, and (ii) respect for the sovereignty and territorial integrity of each State for its
inalienable right to independent existence. See, also, article 2(1) of the Charter of the United Nations
(1945).
634
Ferreira-Snyman (2006) at 11; Shaw (1986) at 8 and 10. See Article 2(7) of the Charter of the
United Nations (1945); and article 3 of the Charter of the Organisation of African Unity (1963).
635
Tanaka, The International Law of the Sea 2nd ed. (2015) at 18.
636
Idem. Tanaka (2015) also cites (idem, fn 50 and 51) Vattel, who stated that:
‘When a nation takes possession of certain parts of the sea, its takes possession of the
empire over them, as well as of the domain, on the same principle which we advanced
in treating of the land (205). These parts of the sea are within the jurisdiction of the
nation, and a part of its territory: the sovereign commands there; he makes laws, and
may punish those who violate them; in a word, he has the same rights there as on land,
and, in general, every right to which the laws of the state allow him.’
‘The Responsibility to Protect’ Report of the International Commission on Intervention and State
Sovereignty (2001), clause 1.32. In recognition of this, the Commission refers to Article 2.1 of the
UN Charter’s principle that all states are equally sovereign under international law.
638
Shaw (1986) at 1.
637
128
of the globe which is subjected to the sovereignty of the State’.639 He emphasises that its
importance lies in the fact that it is the space within which the state exercises its supreme
authority, and, notably, a general rule applies that no foreign authority has any power within
the boundaries of the home territory.640 Kelson defines territory as ‘that space within which
a State is authorised by general international law to perform all acts provided by its national
law or … the space within which according to general international law the organs
determined by a national legal order are authorised to execute this order’.641
Drawing these two concepts of territory and sovereignty together, territorial sovereignty
over the belt of sea described as the territorial sea, could be extrapolated as follows. Shaw
describes it as ‘centred upon the rights and powers coincident upon territory in a
geographical sense’.642 Shaw further describes territorial sovereignty as having a positive
and negative aspect. The former aspect relates to the exclusive competence of the state with
respect to its own territory,643 and the latter relates to the obligation to protect within the
territory the rights of other states – such as their right to integrity and inviolability.644 In a
similar manner to the comment in the report of the ICISS set out above, Shaw explains that
‘territorial sovereignty is the answer provided by international law as regards the needs for
security, stability, and identity felt by a particular group within a certain area’.645 He further
explains that it ‘constitutes the method by which a community may enter upon the
international scene and by virtue of sovereign equality of States play a particular role in the
development of the international system’.646
(ii)
Diversity of opinions
With these concepts now set out and expounded, the inquiry that follows is to consider
what precisely the nature of this sovereignty is over the territorial sea. It is apt to restate
the comment of Azuni – cited earlier in this chapter – that ‘it cannot be questioned, that the
nation in possession of the shore, is, at the same time, sovereign of the adjacent sea, yet
there is not an unanimity of opinion, much less universal agreement, among nations …
either as to the nature or extent of this sovereignty’.647 Oppenheim, writing in the mid
639
Lauterpacht (1955) at 451.
Idem at 542.
641
Cited in Shaw (1986) at 14.
642
Shaw (1986) at 10.
643
Shaw (1986) at 11.
644
Idem.
645
Shaw (1986) at 16.
646
Idem.
647
Azuni (1806) at 196.
640
129
Twentieth Century, definitively stated that ‘no unanimity exists as to the nature of the
jurisdiction of the littoral States’.648
Oppenheim summarises the views of most writers as being that coastal waters would
actually be the state property of the littoral states – with certain limitations such as the right
of innocent passage of foreign commercial vessels through these waters.649 This view
coincides with state practice.650 The minority of the writers, according to Oppenheim,
denied the territorial character of the adjacent belt of sea and only conceded to the littoral
state (in the interest of the safety of the coast) inter alia limited powers of control,
jurisdiction and policing – but not sovereignty.651
In this enquiry, a preliminary question that has been raised by writers related to whether
the ocean – because of its inherent nature and fluidity – was capable of sovereignty or
ownership. In this regard, Oudendijk, after reviewing the writings of Grotius, comments
that:
‘The sea is as unsizeable as the air and because of its restlessness it resists all
attempts at possession, like a wild animal does. It can’t be trodden upon, so
there is no potestas standi ac sedendi. Even the navigator doesn’t really stand
on it: he doesn’t hold it, but is held by it and his ship leaves no traces behind.
Consequently, as he doesn’t occupy any part of it, he can’t acquire any
possession or property.’652
Fenn, however, highlights an argument to the contrary:
‘Neither the immense size of the sea, nor its nature, is repugnant to jurisdiction
and occupation. As to its size, it is true that the whole ocean cannot be
648
Oppenheim (1955) at 487.
Idem.
650
Idem.
651
Idem.
652
Oudendijk (1970) at 19-20. She also cites Grotius’s Defensio (at 24), where the jurist remarked:
‘no part of the sea, no matter how large or small it is or where it is situated, can be exclusive property,
for neither quantity nor situation makes any difference as to the substance, and when the substance
is the same, the law must be the same, especially the law of nations which is universal’. As to
occupation, Grotius is also cited by Fenn (1926) at 165, remarking that ‘occupation can only take
place in a thing which is bounded; the sea is not bounded; therefore occupation cannot take place in
the sea. The sea, of course, not only is not, it cannot be bounded’. Fenn (1926) at 191 also
summarises certain arguments based on this theory: (i) the ocean is always in motion and therefore
is not adapted to private ownership; (ii) boundaries cannot be marked on it, without which there can
hardly be private ownership; and (iii) by reason of its vast extent, it is sufficient for the needs of all
men.
649
130
occupied. But that is only so because no people is strong enough to undertake
the occupation. It does not follow from this that a part of it cannot be occupied.
Therefore there is nothing to prevent it.’653
Following these contrasting arguments, it is necessary to look into the notion of ownership
or sovereignty over the territorial sea from a more fundamental perspective – i.e. how it is
acquired. Fenn, in his discussion on the distinction between mare liberium and mare
clausum, explains that ownership was accomplished by taking possession of what was
unoccupied.654 He goes on to state that this was accomplished by: (i) express or tacit consent
as the parties agree on terms of ownership which becomes binding on future generations;
and (ii) the vacant land becomes the property of those who seized it by occupation.655 Fenn
then questions what was done with the sea in terms of ownership and possession. He asks
whether a title to the sea could be acquired by occupation, or, in other words, whether the
sea was susceptible to private ownership, just as and in the same way, that the land is.656
iii)
Dominium and imperium
Therefore, to unpack the nature of the sovereignty exercised over the territorial sea entails
an understanding of ownership, control, authority and possession. This can be achieved
through revisiting the concepts of imperium versus dominium.657 This distinction is not
apparent from a plain reading of the present UNCLOS provisions which established the
coastal states’ sovereignty over the territorial sea. These provisions of UNCLOS will be
commented on in the chapter 4.
Fenn recounts that when ancient writers say that a certain sea belonged to the Roman
people, ‘they must be understood to refer only to protection and jurisdiction; they
themselves distinguish between the right of protection and that of ownership’.658 He goes
on to state later, however, that dominion in the sea, even private ownership of the sea, is
sanctioned by Roman law.659 At its most basic formulation, Oudendijk defines dominium
653
Fenn (1926) at 200. See, also, idem at 192.
Fenn (1926) at 187.
655
Idem.
656
Idem at 188.
657
See O’Connell, 1 The International Law of the Sea (1982) at 59, where he states that ‘Until the
middle of the nineteenth century, there was only one theory of the nature of the territorial sea, based
upon the coalescence of imperium and dominium in legal philosophy.’
658
Fenn (1926) at 161.
659
Idem at 190. He also comments at 189 that the ‘Roman people were lords of the sea, just as they
were of their territory.’
654
131
as property and imperium as sovereignty.660 This simple translation, however, is inadequate
and writers have had divergent and contradictory opinions as to its formulation in relation
to the adjacent waters. The natural connection between land territory and the adjacent
coastal waters drew differing views from writers. Fenn refers to the writings of Welwood
and sets out one proposition that: ‘[t]he relation of the land to the adjacent sea is so intimate
that the ruler of the land may not alienate any part of the sea, or any use of it, just as he
may not alienate any part of his kingdom, or a use of it’.661 Therefore, it was contended that
‘it is as necessary that there should be jurisdiction over coastal waters as it is over the
neighbouring territory. This jurisdiction should be exercised by the neighbouring Prince,
so that both the land and the sea may be under a common jurisdiction’.662 Oudendijk, on
the other hand, refers to German Professor of Law, Franciscus Stypmann (1612-1650). She
remarked that Stypmann:
‘rejects every natural connection between land territory and coastal waters. He
denies that maritime jurisdiction results from occupation of the continent or
that he who has occupied the land has also occupied the adjacent sea. The
status of the sea has nothing to do with the land. Consequently it is by all
means possible to exercise imperium in non-adjacent waters: he who sends a
fleet into a still unoccupied sea acquires dominium there’.663
Fenn provided a detailed review of the works of Johannes Loccenius, who distinguished
the two concepts. According to him dominium in its classic and proper meaning, refers to
property and is permanent because that quality is inherent in its nature.664 There are
property rights in the sea and those rights are, according to him, permanent, even if the
surface is controlled by an enemy.665 Fenn states that the whole tenor of Loccenius’s
exposition suggests the word “sovereignty” to mean dominium.666 Loccenius’s
contemporary, the Genoese writer Petrus Burgus, argued that where the sea is concerned,
the word dominium has no definite meaning.667 He argues that some people will not see
more in it than jurisdiction and protection – but to others it indicates property, linked with
jurisdiction, although only with regard to coastal waters.668 Burgus rejects a maritime
660
Oudendijk (1970) at 27.
Fenn (1926) at 177.
662
Idem.
663
Oudendijk (1970) at 82.
664
Fenn (1926) at 209 and 211.
665
Idem.
666
Idem.
667
Oudendijk (1970) at 73.
668
Idem.
661
132
imperium which is devoid of dominium,669 but Loccenius and Stypmann note it in the
converse. Loccenius comments that dominium is acquired by the use of imperium,670 while
Stypmann comments that jurisdiction, as it is exercised by naval power, creates possession
and occupation and this is the only way to acquire maritime dominium.671
We turn now to the concept of imperium, which Loccenius describes as the power to give
protection and exercise jurisdiction.672 According to Loccenius, imperium, as opposed to
the permanency of dominium, is temporary because:
‘(For) an enemy can be more powerful with his fleet, and can be the victor (in
war), or when his fortune changes, he loses (power/imperium), or when peace
is made (power/imperium over the sea) is restored to the previous owner.
Obvious examples of this appear in many places. However, ownership
(dominium), from its very nature is perpetual.’673
According to German writer, Johannes Strauch (1612-1680), imperium was maintained by
despatching fleets, establishing maritime officials, exacting naval salutes, levying port
taxes, and enforcing the right of angary.674
It can be seen from this survey of the works of writers, primarily from the Seventeenth
Century, that the nature of the power over the territorial sea vested in the form of
sovereignty and jurisdiction, is encapsulated by the concept of imperium and ownership
and property rights in the concept of dominium. The concept of sovereignty over the
territorial sea, as set out in UNCLOS presently – does not emphasise or distinguish these
669
Oudendijk (1970) at 73.
Fenn (1926) at 207.
671
Oudendijk (1970) at 81.
672
Fenn (1970) at 209 and 211. Prof. John Hilton, erstwhile Head of the Department of Classical
Civilization at the University of KwaZulu-Natal (email communication: 19 March 2016),
commented that imperium was the executive power of a magistrate, such as a Consul.
673
See the treatise of Loccenius in Heineccius (ed.) Scriptorum de iure nautico et maritime
fasciculus: Io. Franc. Stypmanni ius maritimum et nauticum, Reinoldi Kuricke de adsecurationibus
diatriben et Io. Loccenii ius maritimum complexus (1740) at Book I, Chapter IV (de imperio maris)
(on the command over the sea) at section V (num protection et jurisdiction maris dominium adferat)
(on whether protection and jurisdiction brings about ownership of the sea). The original text of the
quote is:
‘Accedit, quod protectio et iurisdictio, quae etiam temporaria esse postest, a
proprietate maris distinguenda est. Potest item hostis classe potentior, et victor,
imperium maris tenere; sed idem fortuna vertente amittere, vel pace facta priori
domino resistituere. Quod obvia passim exempla docent. Dominium autem ex sua
natura perpetuum est.’
Translated into English by Prof. John Hilton, fn 539 supra.
674
Oudendijk (1970) at 90.
670
133
concepts, and this lacuna presents the problem identified in the hypothesis of this section.
The dichotomy between these concepts raises some useful considerations in affecting an
amendment to the present UNCLOS provisions.
The distinction advanced by Loccenius above is important, because, as cited one paragraph
above, imperium, being the power to give protection and exercise jurisdiction, does not
depend for its use upon the ownership of the area over which it is put into effect.675 Fenn
comments that it depends solely upon the physical mastery of the area in question.676
Oudendijk also comments on how imperium and dominium are seemingly independent
concepts. She refers to Burgus, and notes:
‘So the dominus of the sea area can regulate tax and foreign navigation and
fishing as he likes, but it won’t derogate from his property or dominium
superius if he renounces the usufruct or dominium inferius by permitting a
foreigner to fish or navigate.’677
What can be extrapolated from these views is that – notwithstanding the dominium or
ownership over the territorial sea – it is possible to grant a form of imperium or power for
the purposes of protection, without derogating from the rights of the coastal state. This
exercise of a foreign source of power over the territorial sea could occur in situations where
there is an inability of the local power to exercise effective control, resulting in the
intervention of a foreign power, or where there is a cession of rights as proposed by
Oudendijk.
Indeed, Loccenius points out that this power to protect navigation and punish pirates is a
common right (jus commune) which all free peoples have, and is not ex proprio.678 He
states:
‘But the disposition of fleets for the protection of those who sail, and
punishing pirates, is not devolved by one’s own law but by common law,
which other free nations can also have.’679
675
Fenn (1926) at 211.
Idem.
677
Oudendijk (1970) at 74.
678
See Fenn (1926) at 209 and 211.
679
See Heineccius idem. The original text is:
‘Sed et classes praesidio nauigantium disponere atque piratas punire, non ex proprio
sed communi iure descendit, quod etiam aliae liberae gentes habere possunt.’
676
134
This distinction between dominium and imperium seemed to have lost significance to later
writers such as Bynkershoek and De Martens.680 It thus becomes pertinent, for the purposes
of this discussion, to trace the development of the theories of the juridical nature of the
territorial sea through the late Nineteenth, Twentieth and early Twenty First Centuries.
Before this survey is undertaken, however, a short account will be provided in the section
below on the early conceptions of the purpose of a territorial sea.
(iv)
An early conception of the purpose of a territorial sea
Although the preceding section advanced a discourse on underlying notions of the juridical
nature of the territorial sea, it is useful, at this stage, to point out from the writings of Azuni
the following rationale for extending power over the territorial sea:
‘It is essential to their security, and the welfare of their dominions, that an
unlimited freedom of approach to their territories should not be allowed to
everyone, especially with ships of war, whose presence may prevent the
access of commercial nations, and interrupt navigation … the right of the
sovereigns of the sea-coast, to interdict the ships of strangers from entering,
or approaching, the harbours and roads, within their dominions, has been
established without interruption.’681
(v)
Theories on the juridical nature of the territorial sea
As described in the previous paragraphs, two propositions arise from this debate - to show
the dual nature of the territorial sea:
The first proposition is a territorialist thesis that sees the territorial sea as a prolongation
of a state’s land territory682 – in which the state’s jurisdiction is restricted for limited
purposes,683 such as in the interest of international navigation. This thesis regards the
territorial sea as the subject of both imperium and dominium by the coastal state.684
680
Oudendijk (1970) at 135.
Azuni (1806) at 185.
682
Dupuy and Vignes (1991) at 254.
683
See Gidel Le Droit international public de la mer (1934) at 168, cited in Vrancken South Africa
and the Law of the Sea (2011) at 16 and Dupuy and Vignes (1991) at 254.
684
Vrancken (2011) at 16. Dupuy and Vignes (1991) also comment at 254 that: ‘Indeed, for coastal
developing countries, imperium and dominium are mingled, in view of the fact that recognition has
681
135
Imperium was seen to be dependent on dominium, and sovereignty was seen as synonymous
with ownership.685 French Professor of International Law, Gilbert Gidel (1880-1958),
expressed that the territorial sea was merely ‘submerged territory’.686 Under this thesis is
the property theory which views the coastal state as being entitled to exercise rights of
ownership or property within the territorial sea.687 This is acquired through possession that
was measured by a reference to the capacity of the coastal state to project power from the
shore.688
The needs of international navigation however necessitated placing limits on the powers of
the coastal state.689 The second proposition is a thesis which rejected the possibility of the
territorial sea as being subject to the sovereignty of the coastal state, and, instead, views
the territorial sea as part of the high seas – and in this thesis the coastal state exercises
jurisdiction for specific purposes, as set out below.690 Dupuy aptly points out that as the
territorialist thesis recognised that there are certain limitations on state sovereignty in the
interest of international navigation, there is a corresponding restriction which is to be placed
upon the freedom of navigation – in order to protect the rights of coastal states691 as part of
the high seas’ thesis. The restrictions could be categorised into the following theories:
(a)
The Police Theory: This theory is seen as the corollary of the property theory. 692
Miles summarised that adherents of this theory considered that imperium and
dominium could be divided such that the rights of the coastal state fell short of
outright ownership.693 An approach was taken in this theory to ‘disconnect
territory from ownership as a legal concept and instead regard it merely as a
bounded space in which the state could exercise rights of jurisdiction’.694 The
been given to a sovereignty having an economic purpose which, through the various types of space,
is aimed at resources.’
685
Miles ‘The Franconia sails on: Revisiting the intellectual history of the territorial sea in the United
States, Canada and Australia’ 13 Oxford University Commonwealth Law Journal (2013) 347 at 352.
686
Dupuy and Vignes (1991) at 254.
687
See Miles (2013) at 353; O’Connell (1986) at 60; and Vrancken (2011) at 16.
688
Miles (2013) at 353. O’Connell (1986) at 60 states that property rights are exercised by
occupation.
689
Dupuy and Vignes (1991) 253.
690
Vrancken (2011) at 16; Dupuy and Vignes (1991) at 254.
691
Dupuy and Vignes (1991) at 254, 255.
692
O’Connell (1986) at 61.
693
Miles (2013) at 354. He argues idem that: ‘the theory evolved out of concerns that the right of
innocent passage for foreign ships through territorial waters fundamentally undermined any
pretention to absolute sovereignty.’ See, also, O’Connell (1986) at 61.
694
Miles (2013) 355. O’Connell (1986) at 61-62 states that: ‘territory ceased to be regarded as
something owned, and came to be regarded as a spatial area within which the faculties of sovereignty
could be exercised.’
136
territorial sea was accordingly seen as separate from the national domain.695 This
theory encompasses the notion by Twiss of “jurisdictional waters”, which are
coastal waters within which a state has only a concurrent right to set law, and
operating in parallel with international law.696
(b)
The Conservation Theory: This theory derived from the writings of Fauchille697
who rejected the view that the sea has the status of res communis and based the
powers of the coastal state in its territorial sea on that state’s right of
conservation.698 In other words, Dupuy notes that there is a competency granted
to the state by international law for the protection and conservation of that sea.699
O’Connell summarises the position, that when a state exercises and makes
evident its authority in this realm, it is because ‘it has the right and duty to assure
and guarantee its sovereignty and territorial independence, which are uniquely
the elements of its existence as a state, and which it must preserve from all
harm’.700 This theory proposed that beyond such measures of conservation, the
coastal sea like the high seas, must remain fully open to the usage of all.701
(c)
The Competence Theory: This was a theory developed by Georges Scelle,702 who
viewed the sea as an international public domain and that the state can have
certain particular competences as a result of having a coast on that public
domain.703 Dupuy draws an analogy that, just as in domestic law where persons
living by the side of the public highway have the right of access to that highway,
so international law holds that a state situated on the coast has certain
privileges.704 In this theory, O’Connell refers to a treatise by a German writer,
Harburger, who:
‘argued that sovereignty is not an equation of property: it is not a right of
territory, but the right to rule over it. In this sense, there is sovereignty over
695
Miles (2013) at 355. He cites Théodore Ortolan Règeles Internationales et Diplomatic de la Mer
[Plan 1845] 173 at 175: ‘the right that exists over the territorial sea is not a property right; we cannot
say that the State that owns the coast is also the owner of the sea’. See, also, O’Connell (1986) at
62.
696
Miles (2013) 355.
697
See Traité de droit international public (1921) I 147.
698
Vrancken (2011) at16.
699
Dupuy and Vignes (1991) at 255. They state idem that this explains the fact that the state
maintains military, health and customs control, and also fisheries privileges in the zone - in order to
ensure that its economic needs are met.
700
O’Connell (1986) at 73.
701
Idem.
702
Manuel élémentaire de droit international public (1943) 275.
703
Dupuy and Vignes (1991) at 256; Vrancken (2011) at16.
704
Dupuy and Vignes (1991) at 256.
137
the territorial sea, but this does not impress on the territorial sea the
incidents of territory. In German jurisprudence, the trend was now set in
favour of the territorial seas being an area of the exercise of power rather
than national domain.’705
Also worth mentioning at this stage is O’Connell’s reference to Stoerk, who was
a proponent for the interdependence of states and notes that the coastal state
exercises a freedom of action limited only to the extent to which this would
collide with the interests of all other states.706
(d)
The Servitude Theory: This theory was presented in an article by Albert de la
Pradelle in 1898.707 O’Connell described la Pradelle’s theory as ‘the most
ambitious attempt to disengage the theory of the territorial sea from the concept
of the state, and to base it on a solid juridical principle that was independent of
the ephemeral forms of government’.708 In this theory, la Pradelle rejected the
theories of property and sovereignty in favour of a theory of easements (faisceau
de servitudes) or servitudes.709 Miles summarised la Pradelle’s theory, noting that
‘the territorial sea did not represent a single consolidated claim with respect to
maritime territory but rather an extension of specific jurisdictional rights with
respect to, for example: fishing, customs regulation and national security’.710 This
theory posited that these servitudes are granted to the coastal state in order to
enable it to maintain its own protection.711 In fact, according to Dupuy, this theory
provides the coastal state only with those competencies which are necessary to
ensure its personal protection.712 O’Connell remarks that each servitude – namely
for neutrality, security, policing or revenue – might have a different special extent
depending on the interest protected.713 Whilst this theory was a significant
departure from the property theory, O’Connell explains why it did not gain
widespread acceptance: (i) the concept of a servitude was technically
O’Connell (1986) at 66.
Idem.
707
See ‘Le droit de l’Etat sur la mer territorial (1898) Revue générale de droit international public’
264 at 309.
708
O’Connell (1986) at 68.
709
O’Connell (1986) at 68; Miles (2013) at 356; Dupuy and Vignes (1991) at 255; Vrancken (2011)
at16.
710
Miles (2013) at 356.
711
Dupuy and Vignes (1991) at 255.
712
Idem.
713
O’Connell (1986) at 70. For example, he describes idem that the ‘neutrality limit could expand
commensurately with the increased range of artillery, or with the speed of modern warships, without
the coastal state’s exclusive fishery rights correspondingly altering’. Miles remarked [at 357] that
this practical aspect ‘partially circumvented the debate on the precise width of the territorial sea that
was taking place in parallel to the disagreement as to its juridical character’.
705
706
138
inappropriate, as ‘one could not speak of the interests of the international
community as being “servient” nor those of the coastal state as being
“dominant”’;714 and (ii) the “predatory instincts” of states vied for the concept of
sovereignty over the territorial sea rather than servitudes, because the state’s
authority to claim exclusive rights over the resources of the coastal sea would
falter where there was no clear sovereignty.715
(vi)
Modern trends in the Twentieth and Twenty First Century
What has been presented above represents traditional notions716 of the nature of sovereignty
– as manifested in the territorialist thesis and the part of the high seas’ thesis. Despite the
erudition of the works of lawyers and academics set out above, however, there is a need at
this stage to consider the notion of sovereignty through the prism of contemporary changes
and in relation to modern conceptions of the political system.717 The International
Commission on Intervention and State Sovereignty commented on how new realities and
challenges have emerged in the 21st Century – thus necessitating new expectations for
action and new standards of conduct in national and international affairs.718 They cite an
example of how the terrorist attacks of 11 September 2001 on the World Trade Center in
New York made it evident that the war against terrorism has no contested frontiers. 719 In
the second chapter, the shipping industry and global trade were described as being highly
O’Connell (1986) at 71.
Idem.
716
In summation, Schermers in Kreijen (ed.) State, Sovereignty, and International Governance
(2002) at 185, succinctly sets out the traditional view of the state having unlimited power and it
being subjected only to those rules of international law which it has expressly accepted. A further
aspect of this traditional approach, as highlighted by him (idem), is that neither other states or the
United Nations have any right to intervene in matters which are essentially within the domestic
jurisdiction of a state. See, also, Ferreira-Snyman (2006) at 9, par. 2.4. Jackson ‘Sovereignty –
Modern: A new approach to an outdated concept’ 97 American Journal of International Law (2003)
782 at 789, also acknowledges that this principle of non-interference is closely linked to sovereignty,
but he argues idem that: ‘yet today’s globalized world abounds in instances in which the actions of
one nation … constrain and influence the internal affairs of other nations’. It was seen in Chapter 2,
herein, how the actions of Somali pirates presented difficulties for the global shipping industry.
717
Schermer’s opening sentence in ‘Different Aspects of Sovereignty’ in Kreijen (ed.) State,
Sovereignty, and International Governance (2002) at 187, states that: ‘Sovereignty has many
different aspects and none of these aspects is stable.’
718
The Responsibility to Protect (2001) Report of the International Commission on Intervention and
State Sovereignty, at 3.
719
Idem. See, also, Greig ‘International Community, Interdependence and All That … Rhetorical
Correctness?’ in Kreijen (ed.) State, Sovereignty, and International Governance (2002) at 521,
where he cites a speech given by the British Prime Minister to the Labour Party Conference on 2
October 2001: ‘Today conflicts rarely stay within national boundaries. Today a tremor in one
financial market is repeated in the markets of the world. Today confidence is global, either its
presence or its absence … I have long believed this interdependence defines the new world we live
in.’
714
715
139
interconnected and interdependent. Jackson describes how reduced costs and time to
transport goods and to communicate, have led to changes in production which in turn leads
to interdependence.720 He says that interdependence often renders the older concepts of
sovereignty or independence fictional.721 Ferreira-Snyman also comments that there remain
few aspects of life which are not dependent on, or do not respond to, activities outside the
states boundaries, and, accordingly, states can no longer act in isolation, and independently
of each other.722 She aptly notes that ‘States have come to realise there exists a need for cooperation in order to achieve the advancement of community goals and that all members of
the international community must take into account the valid interests of the other members
when exercising their sovereignty.’723 This interdependence of states thus questions the
traditional definition of sovereignty as an absolute concept of unlimited freedom and
authority.724 Gevorgyan similarly pointed out that ‘taking into account the strengthening of
integration processes in interstate relations, the growing interconnectedness of states, as
well as the steady increase in the number of problems the solution of which requires the
joint efforts of the entire world community, some scientists … directly call for the denial
of the term “sovereignty”’.725
These movements towards globalisation and interdependence and cooperation have
accordingly eroded the traditional approach to sovereignty as being an absolute and
unlimited authority.726 In addition to this, Gevorgyan highlights a proposition that when
states enter into international agreements, there is a corresponding limitation on their
sovereignty.727 International law, he states further, coordinates and organises interstate
relations, in order to establish a balance between the interests of individual states and the
whole international community.728 This cannot be effective in a situation where traditional
notions of sovereignty prevail. Thus, Schermers contends that the current notion of
sovereignty is ‘continuously changing, especially in recent years’.729 In a report by the then
720
Jackson (2003) at 784.
Idem.
722
Ferreira-Snyman (2006) at 18.
723
Idem 17-18. Jackson (2003) at 802 also notes that the world continues to experience trends
towards interdependence and the need for cooperative mechanisms to enhance peace and security.
724
Idem.
725
Gevorgyan ‘Concept of State sovereignty: Modern attitudes’, Materials of a conference devoted
to the 80th Anniversary of the Faculty of Law, Yerevan State University, YSU Press (2014) at 435436.
726
Ferreira-Snyman (2006) at 1 and 12. For a fuller treatment of this aspect, see van Staden and
Vollaard ‘The erosion of State Sovereignty: Towards a Post-territorial World?’ in Kreijen (ed.)
State, Sovereignty, and International Governance (2002) at 165-184.
727
Gevorgyan (2014) at 438.
728
Idem.
729
Schermers ‘Different Aspects of Sovereignty’ in Kreijen (ed.) State, Sovereignty, and
International Governance (2002) at 192. Jackson (2003) at 786, cites how a US government official,
721
140
United Nations Secretary-General Boutros Boutros-Ghali to the Security Council, it is
remarked that ‘[r]espect for [the state’s] fundamental sovereignty and integrity [is] crucial
to any common international progress. The time of absolute and exclusive sovereignty,
however, has passed; its theory was never matched by reality.’730
With all this being said, however, writers have cautioned against the complete elimination
of the concept of sovereignty.731 Jackson observes that sovereignty remains an essential
foundation for peace, democracy and prosperity,732 and discarding it undermines
international law and certain other principles of the international relations’ system.733In any
event, Gevorgyan’s analysis concludes that no viable alternative to the system of state
sovereignty has been presented.734 Jennings states that ‘what is needed is not so much a
theory explaining the decline of national sovereignty but a theory explaining and justifying
the present vital transformation of State sovereignty into the field of governmental activity
on the international plane’.735 Accordingly, through collective decisions or international
government, sovereignty is not surrendered, but rather transformed into an influential and
effective way of employing it.736
Richard Haas, and President of the Council on Foreign Relations, succinctly defined the concept and
its problem:
‘Historically, sovereignty has been associated with four main characteristics: First, a
sovereign state is one that enjoys supreme political authority and monopoly over the
legitimate use of force within its territory. Second, it is capable of regulating
movements across its borders. Third, it can make its foreign policy choices freely.
Finally, it is recognized by other governments as an independent entity entitled to
freedom from external intervention. What is significant today is that each of these
components – internal authority, border control, policy autonomy, and nonintervention – is being challenged in unprecedented ways.’ (my emphasis)
730
Cited in Jackson (2003) at 787.
731
See Jackson (2003) at 789, where he states that elimination of the concept of sovereignty in
international law would lose some important principles. See, also, Jennings ‘Sovereignty and
International Law’ in Kreijen (ed.) State, Sovereignty, and International Governance (2002) at 31,
who warns that ‘current fashionable suggestions that State sovereignty is a thing of the past are to
be understood with some caution and perhaps qualification’.
732
Idem.
733
Jackson (2003) at 801. Gevorgyan (2014) at 437 similarly commented that relationships between
states are built on the basis of the principle of sovereignty, and it underlies the entire system of
international organisations.
734
Gevorgyan (2014) at 448. Jackson (2003) at 790 also emphasises that ‘sovereignty is deeply
interwoven into the fabric of international law, and to abandon, wholesale, the concept of
“sovereignty” requires very serious thought about a substitute that could efficiently fill the gaps left
by its absence’.
735
Jennings (2002) at 38.
736
Brus ‘Bridging the Gap between State Sovereignty and International Governance: The Authority
of Law’ in Kreijen (ed.) State, Sovereignty, and International Governance (2002) at 6. Jennings
(2002) also comments at 30, that ‘State sovereignty is becoming less relevant to the needs of what
is now commonly referred to as a ‘global’ international community.’
141
What remains then is a conflict between an erosion of traditional notions of sovereignty
and a persistence in retaining sovereignty as a bedrock of international relations and
governance. Brus theorises thus:
‘Two world views collide: the traditional view of the world consisting of
sharply distinguished compartments (the national states) and a view of an
independent world society with common values and with problems that can
only be solved through common efforts and with respect for universal, hence
supra-national, legal rules.’737
In light of this conundrum, it is suggested that the traditional concept of sovereignty must
itself evolve and be redefined.738 Through this process of rethinking sovereignty, a basis
can be forged for international governance over the suppression of piracy in all realms of
the ocean. Conceptually, Ferreira-Snyman remarks that ‘the principle of absolute
sovereignty is thus replaced by a concept of relative sovereignty, where the freedom of each
state is limited by the freedom of other states and the independence of a state is subjected
to international law’.739
At the heart of this conundrum is a collision of the traditional concept of state sovereignty,
and its erosion as it yields to international governance. Brus regards international
governance as a fundamentally different basis for regulating international issues compared
to the traditional sovereignty of states.740 He defines international governance as ‘the
process by which the international community on the basis of shared values and interests
collectively manages resources, issues, conflicts in a world that is increasingly a “global
neighbourhood”.’741
To add to this conundrum, Brus describes how much of the problems and violent conflicts
that are prevalent today are related to an insufficient capacity and willingness of state
governments to govern their territory with authority.742 Schermers also describes how some
states have no effective government, and different internal factions are fighting each other,
737
Idem at 3.
In support of this notion, Brus (2002) at 22, draws attention to the idea that ‘State sovereignty is
one of the concepts that have to be reinterpreted in order to allow a logical and coherent view on the
actual developments that take place in the world and for perspectives on future development.’
739
Ferreira-Snyman (2006) at 16 (with my emphasis). She also remarks idem that ‘states are required
to sacrifice their individual interests as well as certain aspects of their sovereignty in favour of the
common interest and the common good’.
740
Brus (2002) at 5.
741
Idem.
742
Brus (2002) at 7.
738
142
and nobody has control over the state.743 Brus accordingly observes that recent decades
have witnessed the emergence of states which could hardly be said to belong to the category
of sovereign states.744 He shows how these states initially entered the international arena
endowed with full external sovereign powers, but without having sufficient capacity for
internal self-government.745 In effect, sovereignty becomes a formal juridical notion746 and
practically the state becomes what is termed a ‘failed state’.747 The erosion of state
sovereignty is particularly prevalent in circumstances where there is a failed state with
insufficient capacity to exert its law-enforcement powers. This has been demonstrated in
chapter 2. Piracy flourished here in the context of an ineffective government – as described
by Brus and Schermers above. Schermers also highlights an important question which is
highly relevant and fundamental to this study: ‘whether sovereignty in the territory of a
failed State is completely lost or whether it can be exerted by someone else’.748
VI. CONCLUDING REMARKS
Goodwin remarked that ‘what the ancients considered piracy and what is now considered
piracy are not the same’.749This chapter has highlighted the juridical and doctrinal
development of piracy – providing examples of English and American jurisprudence. It has
been shown in the chapter that, in early cases, the high seas appeared to encompass the
entire realm of the ocean. As stated in part 5 of this chapter, in simple parlance, what was
conceived in some early cases as being the high seas, would now fall into the realm of the
territorial sea. These cases did not consider the concurrent development of the juridical
nature and extent of the realm of the territorial sea.
Miles commented on this concurrent development of the territorial sea, and remarked that:
‘The juridical character of the territorial sea, although now no longer
controversial, nonetheless occupied a privileged position in both international
and domestic law for a period of over three centuries, and thus gives observers
743
Schermers (2002) at 191.
Brus (2002) at 7
745
Idem.
746
Idem.
747
Kreijen (2002) at 46 says: ‘externally the failed State in unable to have viable relations vis-à-vis
the international community. Since in a failed State there is effectively no responsible agent left, it
lacks the ability to exert its rights, whereas generally the international community is at a loss to exert
any obligations … consequently it [the failed state] is at odds with the State as a subject of
international law’.
748
Schermers (2002) at 191.
749
Goodwin (2006) at 979.
744
143
a rare opportunity to examine the potential for interaction and misconception
at the interface thereof.’750
The development of piracy law, along with universal jurisdiction and the modern restriction
based on the locus, have presented an occasion to revisit these doctrines that defined the
extent and juridical nature of the territorial sea and to consider the interface with piracy
law. The discussion in this chapter has revealed much ambiguity and uncertainty in
academic opinions in the discipline of piracy law and in the juridical character and extent
of the territorial sea. Accordingly, the present formulation of UNCLOS, while settled, was
based on a hollow foundation and a lack of synthesis of two lines of jurisprudence: piracy
and the territorial sea. This conclusion thus provides one of the grounds for challenging the
contemporary restriction of piracy jure gentium to the realm of the high seas.
750
Miles ‘The Franconia sails on: Revisiting the intellectual history of the territorial sea in the
United States, Canada and Australia’ 13 Oxford Commonwealth Journal (2013) 347 at 377.
144
IV
____________
THE INTERNATIONAL FRAMEWORK:
DEVELOPMENT AND CODIFICATION
I. INTRODUCTION
1.1
Prefatory
Despite having a jurisprudence spanning several centuries, as seen in the previous chapter,
the codification of the legal regime that both defines piracy and employs enforcement and
adjudicatory jurisdiction occurred relatively recently.751 As discussed in the second chapter,
after 200 year of quiescence, piracy remerged in the early 21st Century as a major economic
and humanitarian problem,752 and for nearly 30 years, the law and diplomacy of piracy had
remained relatively placid until this re-emergence.753 Kraska observes that ‘[a]s much
progress occurred in the development of the international law of counterpiracy in the 100
days at the end of 2008 and January 2009, as had occurred in the previous 100 years.’754
The previous chapter considered isolated judicial pronouncements and the opinions and
commentaries of publicists. Such examples cannot constitute as evidence of a definition of
piracy under customary international law – the conclusions of the previous chapter
demonstrate that specificity and a uniform consensus on such a definition would be difficult
to reach. Codification and progressive development of the law would thus have the most
probative value in this analysis.
The present regime, contained in the United Nations Convention on the Law of the Sea
(UNCLOS),755 is the result of a process of codification and consensus over a period
spanning 50 years during the 20th Century. Ambassador Koh of Singapore, while serving
as the Conference President, declared that the treaty was a ‘constitution’ for the world’s
See Stepek ‘Challenges of Jurisdiction and Prosecution’ in Pedone and Hart Piracy in
Comparative Perspective: Problems, strategies, law (2012) at 331, where he comments that: ‘Given
its long history and treatment under international law, one might reasonably expect that legal
infrastructure for addressing the crime of piracy would be well developed. Yet, if one looks at what
is happening today, primarily in the Gulf of Aden and Indian Ocean, this is clearly not the case.’
752
Scharf et al Prosecuting Maritime Piracy: Domestic Solutions to International Crimes (2015) at
1.
753
Kraska Contemporary Maritime Piracy (2011) at 144.
754
Idem.
755
Arising from the Third United Nations Conference on the Law of the Sea concluded at Montego
Bay on 10 December 1982. The treaty came into effect in 1994. The full set of provisions relevant
to piracy is reproduced et seq. hereof in the appendices.
751
145
oceans.756 There have been a series of codification attempts, which served as stewards in
defining piracy. The regime in UNCLOS is now regarded as reflecting customary
international law.757 Of the 320 articles contained in the treaty, only seven deal with the
subject of piracy. Having previously discussed the present framework under UNCLOS, this
chapter highlights its restrictive application to the fight against present-day piracy, focusing
especially on one of the restrictions: the geographical limitation to the high seas and its
exclusion from application in territorial seas. The chapter outlines the consequences of this
exclusion, and surveys the drafting history of the present framework to understand how this
limitation was derived. The chapter will present an argument that this restriction should be
reconsidered in light of the present instances of piracy, and that application should be
present in territorial seas where state capacity is insufficient. In support of this argument,
it will be shown that the drafting history of the present framework did not substantively
consider this issue. The chapter highlights how, at each stage of the later codification
process undertaken by the International Law Commission and the United Nations
Conferences on the Law of the Sea, this issue was skirted. These deliberations are reviewed,
and it is suggested that the issue be revisited and applied within an amended UNCLOS
piracy framework.
1.2
The current framework under UNCLOS
To commence the discussion in this chapter, the following three articles in UNCLOS –
forming part of the total seven articles that deal with piracy – are outlined below.
Article 100 – Duty to cooperate in the repression of piracy
All States shall cooperate to the fullest possible extent in the repression of
piracy on the high seas or in any place outside the jurisdiction of any State.
Article 101 – Definition of piracy
Piracy consists of any of the following acts:
756
Cited in Kraska (2011) at 122. He further comments, at 123, how UNCLOS was a breakthrough
in resolving long-standing issues and the treaty replaced a plethora of competing claims with
functional and universally accepted limits on coastal state sovereignty and jurisdiction. He notes,
however, that these limits are vaguely crafted and sometimes poorly defined (idem).
757
See Nandan et al United Nations Convention on the Law of the Sea 1982: A commentary (1995)
3 at par. 101.1, pg 197; International Maritime Organisation ‘Piracy: Elements of national legislation
pursuant to the United Nations Convention on the Law of the Sea, 1982’ LEG 98/8/1 (February
2011) at par. 1; United Nations Security Council Resolution 1816 (2008), 2 June 2008. See, also,
Hodgkinson ‘The Governing International Law on Maritime Piracy’ in Scharf et al (2015) at 17, 24;
Kraska (2011) at 127.
146
(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)
(ii)
on the high seas, against another ship or aircraft, or against
persons or property on board such ship or aircraft;
against a ship, aircraft, 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).
Article 105 – Seizure of a pirate ship or aircraft
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. The courts of the State which carried out the seizure may
decide upon the penalties to be imposed, and may also determine the action to
be taken with regard to the ships, aircraft or property, subject to the rights of
third parties acting in good faith.
The geographical aspects of these provisions are read within the holistic structure of the
treaty, wherein the oceans are divided into various realms, including the territorial sea, 758
the contiguous zone,759 the exclusive economic zone760 and the high seas.761 These
provisions serve two functions: first, piracy is defined for the purposes of international law;
second, they provide universal enforcement jurisdiction that suppresses piracy. 762
Furthermore – as Isanga points out – under this framework, piracy is uniquely situated in
relation to international law: ‘when a pirate is captured on the high seas outside the territory
of a particular state, the municipal laws of the capturing state – not international laws –
determine how the pirate will be punished.’763 Geiß and Petrig observed that, ‘the
intricacies inherent in this definition, arguably, also reflect the overly ambitious attempts
to capture a criminal phenomenon in its entirety in one offence, while simultaneously
making allowance for the preservation of State’s sovereign interests.’764
758
See articles 2 and 3 of UNCLOS.
See article 33 of UNCLOS.
760
See articles 55-58 of UNCLOS. Article 58(2) is of particular importance and will be discussed
infra.
761
See article 86 of UNCLOS.
762
See Churchill ‘The Piracy Provisions of the UN Convention on the Law of the Sea – Fit for
Purpose?’ in Koutrakos and Skordas The Law and Practice of Piracy at Sea (2015) at 9.
763
Isanga ‘Countering Persistent Contemporary Sea Piracy: Expanding Jurisdictional Regimes’ 59
American University Law Review (2010) 1267 at 1274.
764
Geiß and Petrig Piracy and Armed Robbery at Sea (2011) at 59.
759
147
1.3
The narrow application of the UNCLOS regime
Some points of controversy relating to the above definition have arisen within the corpus
of scholarship pertaining to the codification of piracy. These points mirror the constituent
elements of the definition. It is worth noting that, to date, the piracy provisions in UNCLOS
have yet to be considered by an international court – only domestic courts have interpreted
them in recent years.765 Article 101 has come under unanimous criticism for its restrictive
approach. For example, Birnie observed in 1987 that ‘the definitions adopted are narrow
ones, not consonant with all states’ laws, and have been expressed in somewhat ambiguous
terms’.766 Collins and Hassan, writing in 2009, noted that ‘parts of the definition of piracy
are now archaic. It is too narrow to include the majority of modern piratical acts. The
methods employed by modern pirates differ from the methods that were common in the
early 20th century.’767 More recently, Wambua wrote in 2014: ‘at the international level,
the most significant limitations to the legislative framework are posed by the restrictive
definitional and jurisdictional scopes in the provisions of article 101 of UNCLOS.’768
As this chapter progresses, it will become evident that article 101 closely replicates article
39 of the International Law Commission’s (ILC) 1956 draft articles concerning the law of
the sea. Published with an accompanying commentary, article 39 exhibited the
Commission’s consideration of certain controversial points which emerged in relation to
the essential features of piracy. A conclusion was reached, whereby:
(i)
(ii)
(iii)
(iv)
(v)
The intention to rob (animus furandi) is not required. Acts of piracy
may be prompted by feelings of hatred or revenge, and not merely by
the desire for gain;
The acts must be committed for private ends;
Save in the case provided for in article 40, piracy can be committed
only by private ships and not by warships or other government ships;
Piracy can be committed only on the high seas or in any place situated
outside the territorial jurisdiction of any State, and cannot be
committed within the territory of a State or in its territorial sea;
Acts of piracy can be committed not only by ships on the high seas,
but also by aircraft, if such acts are directed against ships on the high
seas;
Churchill ‘The Piracy Provisions of the UN Convention on the Law of the Sea – Fit for Purpose?’
in Koutrakos and Skordas The Law and Practice of Piracy at Sea (2015) at 11.
766
Birnie ‘Piracy: Past, present and future’ Marine Policy (July 1987) 163 at l65.
767
Collins and Hassan ‘Applications and shortcomings of the law of the sea in combating piracy: A
south east Asian perspective’ 40 Journal of Maritime Law and Commerce (2009) 89 at 95.
768
Wambua ‘Prosecution of maritime piracy cases in Kenya: Testing the SUA Convention model
on piracy prosecution’ Special Edition 1 Acta Criminologica (2014) 76 at 78.
765
148
(vi)
Acts committed on board a ship by the crew or passengers and
directed against the ship itself, or against persons or property on the
ship, cannot be regarded as acts of piracy.769
Menefee, in similar terms, confirmed some of the fundamental issues surrounding the
definition of piracy: (i) the question of whether all piracy under international law must
occur outside a state’s territorial jurisdiction; (ii) whether internal seizure of a ship from
within by passengers, stowaways or crew may constitute piracy; (iii) whether, apart from
the universally concept of piracy as a crime committed for private gain, state action outside
the recognised constraints of the international legal system, maritime terrorism, and nonpolitical terrorism may also qualify as piracy.770
Constituent elements can be derived from the definition contained in article 101 and the
related material above, all of which have been well documented. These elements are:
(i)
An illegal act/s of violence, detention or depredation: The corollary of
what constitutes a legal act is left open in the wording of the article.
(ii)
Committed for private ends: This element has been the subject of much
scrutiny in scholarship. In a report prepared by the Legal Committee of the
International Maritime Organisation in 2011,771 which outlined the
elements that could be included in national legislation on piracy pursuant
to UNCLOS, the specific element pertaining to private ends was
mentioned briefly, mirroring the commentary of the ILC in its 1956 draft
articles mentioned above. Madden comments that while it is unusual to
include a test of a perpetrator’s motive into the definition of a crime, he
postulates that such a measure was perhaps originally necessary at the level
of international law in order to distinguish piracy from privateering.772 As
to why the private ends requirement persisted into the codification well
after the incidence of privateering has clearly ceased, Madden theorises
769
Report of the International Law Commission covering work of its eighth session (A/3159), article
39 commentary, Yearbook of the International Law Commission 2 (1956) at 282 (hereafter referred
to as the ILC Commentary). These points were also cited in the Virginia Commentary (III) at 197.
770
Menefee Contemporary Piracy and International Law (1995) at 1.
771
International Maritime Organisation ‘Piracy: Elements of national legislation pursuant to the
United Nations Convention on the law of the Sea, 1982’ LEG 98/8/1 (18 February 2011) at par. 13
(abbreviated in this section as the “IMO Report”). This document was appended to a circular letter
(No. 3180, 17 May 2011) issued by the International Maritime Organisation.
772
Privateering is essentially state-sponsored piracy. Madden ‘Trading the shield of sovereignty for
the scales of justice: A proposal for reform of international sea piracy laws’ 21 University of San
Francisco Maritime Law Journal (2009) 139 at 143.
149
that researchers in the early codification stage used an old definition of
piracy – adopted during the privateering era – on the premise that this old
definition was accepted as a part of customary international law, and was
therefore employed for the sake of expediency.773 Collins and Hassan offer
a different theory: the private ends element ‘was not intended to require an
intent to rob, but rather it was to exclude acts made by insurgents seeking
independence for their state – a political aim.’774 They also observed that,
under customary international law, attacks on vessels with a public aim,
such as highlighting a state’s struggle for independence, is a legitimate
defence to piracy charges.775 This appeared to be the context within which
the early codification occurred in the 1930s: many former colonies were
engaged in struggles for independence, and some nationalistic insurgents
would resort to maritime terrorist tactics.776 Extrapolating this argument
would lead to the conclusion that all acts of violence that lack state
sanction, are acts performed for private ends.777
(iii)
Two-ships: under article 101(a), the actus reus must be committed by the
crew or passengers of a private ship and directed against another ship (the
victim). This means that crew seizures, mutiny, or passenger takeovers of
one and the same vessel are excluded from the ambit of the definition,778 a
concept which stems from the notion that any ship is always under the
jurisdiction of its flag state. Therefore, any offence committed on board,
as in the case of a mutiny, falls under domestic, and not international
law.779 The restriction created by this element has been well documented,
773
Idem 145.
Collins and Hassan (2009) at 99. Geiß and Petrig (2011) at 61 also pose this theory, commenting
that the private-ends element was originally included in the definition of piracy to acknowledge the
historic exception for civil-war insurgencies that attacked solely the vessels of the government they
sought to overthrow.
775
Collins and Hassan (2009) at 99.
776
Idem.
777
Geiß and Petrig (2011) at 61. See Kraska (2011) at 127, where he states that pirates are not
licensed to act on behalf of a government, but instead are private individuals. See, also, Pedone and
Hart (2012) at 336; and Wambua (2014) at 80. Menefee in ‘Anti-piracy in the year of the ocean:
Problems and opportunity’ 5 ILSA Journal of International and Comparative Law (1999) 308 at
311, states that ‘the private ends requirement appears to exclude attacks by maritime terrorists and
arguably, environmental extremists, from being piracies, because of their public nature’.
778
Geiß and Petrig (2011) at 61; Pedone and Hart (2012) at 336. The IMO Report (at par. 14) merely
confirms this rule, citing the ILC’s commentary to its draft article 39 [A/CN.4/104 at 282].
779
Murphy ‘Piracy and UNCLOS: Does international law help regional States combat piracy?’ in
Lehr (ed.) Violence at Sea: Piracy in the age of global terrorism (2007) at 164.
774
150
especially as a result of the Achille Lauro incident – an event which
resulted in the SUA Convention being adopted.780
(iv)
Geographic limitation: Article 101(a) sets a clear geographical limitation
for the locus of an act of piracy. To constitute an act of piracy, the actus
reus outlined in the article must be committed on the high seas or in a place
outside the jurisdiction of any state. With respect to the latter, the ILC had
‘chiefly in mind acts committed by a ship or aircraft on an island
constituting terra nullius or on the shores of an unoccupied territory’.781
Geiß and Petrig also comment on this latter limitation, their observations
being especially relevant to the context of the present analysis. They
observed that, despite frequent reference to Somalia as a failed state, with
no government capable of exercising control over its territorial waters, ‘its
sovereignty has nevertheless, remained unquestioned and Somalia’s
territorial waters thus cannot qualify as “a place outside the jurisdiction of
any State”’.782 Thus, any further scrutiny of this limitation is of little
consequence to the present study. The discussion henceforth will focus on
the high seas, without further references to a place outside the jurisdiction
of any state. The restriction of the commission to the high seas deserves
detailed elaboration and a dedicated commentary – a discussion of the
development of the juridical nature of this realm was critically revisited in
the previous chapter. Under the present UNCLOS regime, however, the
realm is defined in the negative – by what is does not constitute: article 86
of UNCLOS declares that ‘the provisions of this Part [the High Seas, Part
VII] apply to all parts of the sea that are not included in the exclusive
economic zone, in the territorial sea or in the internal waters of a State’. It
is clearly distinguishable from the territorial sea, which a coastal state
could exercise sovereignty over, not exceeding 12 nautical miles measured
from the baselines.783 Thus, per article 101, acts of piracy are limited to a
place outside the jurisdiction of a state or on the high seas. This excludes
780
Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation,
adopted in 1988. See Geiß and Petrig (2011) at 61; see, generally, Halberstam ‘Terrorism on the
High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety’ 82 American
Journal of International Law (1988) 269-310; Murphy (2007) at 164; Wambua (2014) 76-91.
781
ILC Commentary: draft article 39 [A/CN.4/104] at 282.
782
Geiß and Petrig (2011) at 62.
783
See article 3 of UNCLOS. In the chapter 3, it was discussed how the extent of the breadth of the
territorial sea was determined according to the cannon-shot rule, and was reckoned to be 3 nautical
miles from the shore. The UNCLOS provisions increased the breadth to a maximum of 12 nautical
miles from the baselines, which, in effect, shrunk the realm of the high seas.
151
from the definition of piracy any acts of the same actus reus which meet
all the substantive requirements of article 101, but which occur within the
territorial waters of a sovereign state. UNCLOS is silent on the regulation
of piratical acts within territorial waters, entrusting enforcement and
adjudicatory jurisdiction to the sole authority of the state that exercises
sovereignty over said territorial waters. As indicated in the previous
chapter, notwithstanding the substantive elements being the same: a
piratical act committed on the high seas is termed under international law
as piracy jure gentium, whereas a piratical act in territorial waters is termed
armed robbery784 or piracy under municipal law. Whilst the difference
between the two acts is the locus, the consequences that arise are vastly
different: enforcement and adjudicatory jurisdiction over armed robbery
of ships in a state’s territorial waters vest in that state alone.785 Piracy jure
gentium attracts universal enforcement jurisdiction, as appears in section
105 of UNCLOS:
‘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. The courts of the State which carried out
the seizure may decide upon the penalties to be imposed, and
may also determine the action to be taken with regard to the
ships, aircraft or property, subject to the rights of third
parties acting in good faith.’ (Emphasis added).
Such universal enforcement jurisdiction is limited to the high seas or a
place outside the jurisdiction of a state, the result being its inapplicability
within territorial waters.
Whilst article 86 defines the realm of the high seas as commencing beyond
the limits of the exclusive economic zone, an exception is contained in
784
Armed robbery against ships is defined in article 2.2 of the Code of Practise for the Investigation
of Crimes of Piracy and Armed Robbery Against Ships [Adopted 2 December 2009] IMO Assembly
Resolution A.1025(26) as:
‘1. Any illegal act of violence or detention or any act of depredation, or threat thereof,
other than an act of piracy, committed for private ends and directed against a ship or
against persons or property on board such a ship, within a State’s internal waters,
archipelagic waters and territorial sea;’ (emphasis added).
See, generally, Birnie (1987) at 165.
785
See Dickinson (1925) at 339, where it is noted that ‘piracy by municipal law, on the other hand,
comprehends as much or as little as the law-making authority of the particular state may choose to
make it, and pirates by municipal law’.
152
article 58(2):
‘Articles 88 to 115 and other pertinent rules of international
law apply to the exclusive economic zone in so far as they
are not incompatible with this Part.’
The piracy articles fall within the parameters of this article, resulting in the
import of piracy provisions that apply to the high seas, into the realm of
the exclusive economic zone. Piracy jure gentium can therefore be
committed in a state’s exclusive economic zone,786 making the universal
jurisdiction provisions of article 105 applicable. Although this appears to
be the consensus from a plain reading of the provision,787 and most
commentators argue that piracy does not interfere with specific exclusive
economic zone (EEZ) rights of the coastal state – as outlined in article 56
–
788
some commentators have expressed reservations. One such
reservation was raised by Murphy: ‘because Article 58(3) states that in
exercising the high seas rights that apply in the EEZ, that is, those
permitted under Articles 88-115, states must pay due regard to the rights
and duties, laws, and regulations of the coastal state insofar as these are
not incompatible with the Convention’.789 The argument proposes that the
EEZ, in this respect, is more akin to territorial waters.790 Another
reservation was raised by Geiß and Petrig, who noted that ‘in exceptional
cases, violence between private fishery vessels within the exclusive
economic zone may lead to such incompatibility’ (emphasis added).
However, as illustrated in the second chapter of this thesis, in the study
and period, these were not exceptional but rather quite commonplace.
Kraska presents a noteworthy view in support of this:
‘From a piracy perspective, the 200-nautical-mile EEZ of
coastal states constitute the most important part of the
786
In other words, the geographic scope of article 101(a) should be read to include the exclusive
economic zone of any state (see IMO Commentary at par. 12).
787
See, for example, Collins and Hassan (2009) at 97, who comment that because the Part that deals
with the rights and duties of coastal states and other users of the EEZ, is focused on resources such
as fisheries and seabed minerals, it is thus generally accepted that the piracy provisions are not
incompatible with the Part, and therefore operate within the EEZ. See, also, Murphy (2007) at 162.
788
Geiß and Petrig (2011) at 64. See, also, Roach, in ‘Countering Piracy off Somalia: International
Law and International Institutions’ 104 American Journal of International Law (2010) 397 at 399,
who states that ‘[w]hat article 58(2) does do is emphasise that in the EEZ the coastal state has
enumerated sovereign rights and jurisdiction, generally economic in nature, that must be respected
by states engaged in combating piracy at sea’.
789
Murphy (2007) at 162.
790
Idem.
153
oceans. The EEZ is a resource-related zone adjacent to the
territorial sea, but the close proximity of the land and
density of people, ships, and resources makes the EEZ an
epicenter of piracy. Nearly all commercial fishing is in the
EEZ, and worldwide, more than 1 billion people depend on
fish as their primary protein source.’ 791
Kraska’s comment is more commensurate with the analysis of the Somali
region performed in the second chapter. Whilst the coastal state does not
enjoy full rights of sovereignty over the EEZ, the rights that are enjoyed in
this realm are substantial. Since a reading of article 58(2) clearly
exemplifies universal enforcement powers over piracy in the EEZ as being
vested in any state, notwithstanding a coastal state exercising significant
rights over the act as pointed out by Kraska, an argument could be
proposed that universal enforcement jurisdiction should extend to the
territorial sea. By analogy, the incursion of the coastal state’s sovereign
rights in the territorial sea through the exercise of universal enforcement
jurisdiction would essentially be no different from the incursion of the
coastal state’s sovereign rights in the EEZ. This argument must be
supported by caveats, which will be developed as this chapter progresses.
Presented above, are the main elements of the piracy definition, which have been
controversial, and in need of a more probative form of interpretation. While each of these
elements merit scholarly analysis, for the purposes of the present analysis, the presentation
of a critical appraisal of the first three elements is not crucial. Regarding the controversial
element of private ends, Geiß and Petrig expressed the possibility that ‘suspects could argue
that in attacking other vessels they acted with an exclusively political motivation, aiming
to fight off illegal fishery or the dumping of waste’.792 This, therefore, negates the private
ends element. They added, however, that such lines of defence could easily be refuted
because ‘without the authorisation of the Somali Transitional Federal Government for
committing acts of piracy and armed robbery at sea, activities of Somali nationals could
hardly be said to amount to public acts falling outside the ambit of the UNCLOS piracy
definition.’793 The payment of ransoms, as has been typical in the Somali region, could also
791
Kraska (2011) at 126.
Geiß and Petrig (2011) at 62.
793
Idem.
792
154
draw the inference of seeking a private end.794 The high seas element, however, is crucial
and forms the basis of the analysis conducted within this chapter.
II. THE HIGH SEAS’ LIMITATION
2.1
Distinguished from acts committed in the territorial sea
In the previous chapter, the jurisprudential development of the realm of the territorial seas
vis-à-vis the high seas was considered in detail. The fluidity and unfixed nature of these
jurisdictional regimes were expressed, as well as how the present rigid framework was
ultimately built on this unstable foundation. This element, under the present framework, is
problematic and highly relevant to the present context.795 The rationale for the distinction
between piracy jure gentium and piratical acts in territorial waters is based on the notion
that: (i) responsibility for combatting piracy in the territorial sea and the exercise of
enforcement and adjudicatory jurisdiction lies with the coastal state; (ii) there is an
underlying concept of respect for the sovereignty of the coastal state over its adjacent
waters.796 Some commentators have elaborated on the first notion. Madden commented that
if interference with shipping from piratical acts occurs, then the coastal state could resolve
the situation by creating its own municipal legislation.797 The jurisdictional competence is
exclusive and, in the territorial sea, the concept of piracy jure gentium did not apply.798
Birnie explained that this doctrine applies since crimes committed within the territorial
jurisdiction are perceived as crimes against the state and not the international community. 799
A key factor is that this competence is based on a presumption of capability – Madden
describes how, within customary international law, there was a presumption that states
were capable of prescribing and enforcing laws within their territorial jurisdictions.800 The
piracy provisions in UNCLOS are silent on the legality of such acts committed within
794
In this regard, Collins and Hassan (2009) at 100, distinguish between acts of piracy and terrorism:
pirates are motivated by pecuniary incentives and attempt to avoid attention, whereas, in contrast,
terrorists seek attention in order to highlight their cause.
795
See Geiß and Petrig (2011) at 63.
796
See Haywood and Spivak Maritime Piracy (2012) at 95.
797
Madden (2009) at 146. Birnie (1987) at 167 explains that the ‘acceptance of the territorial sea
doctrine settled part of the controversy concerning the relation between municipal and international
piracy laws; municipal law applied exclusively in the territorial sea to nationals or ships registered
in the state concerned and flying its flag’.
798
Birnie (1987) at 167.
799
Idem. See, also, Dickinson (1925) at 339, where he comments that ‘pirates by municipal law are
offenders only against the law of the state concerned’.
800
Madden (2009) at 146. Isanga (2010) at 1288, similarly comments that ‘by confining the scope
of the definition of piracy to acts committed in specific geographical areas, the UNCLOS assumes
the existence of a coastal sovereign state that is functional and capable of defending the territorial
waters off its coast’.
155
territorial waters.801 A consequence of this, as outlined by Isanga, is that ‘as long as
international rules regarding piracy do not apply to territorial waters, responsibility to
combat acts that would otherwise qualify as piracy belongs solely to the coastal state, even
though such a state in unwilling or unable, for political, financial, or other reasons, to
suppress robbery against vessels in its own sovereign waters’.802
2.2
Developments in the limits of the breadth of the territorial sea and its
consequences
This uncertainty in the breadth of the territorial sea is compounded by the fact that the final
codification, which culminated in UNCLOS, added millions of square miles to the
territorial waters when the limits of the breadth of the territorial sea was fixed at 12 nautical
miles803 As indicated in the second chapter, the expansion of the limits of the breadth of the
territorial sea under the UNCLOS regime means that fewer incidents of piracy occur in the
retreated realm of the high seas today.804 It is in this expanded realm of the territorial sea
where most piratical acts occur, concentrated around straits of international importance.805
As early as 1983, the secretariat of the United Nations Conference on Trade and
Development (UNCTAD) recognised that piratical acts ‘are as likely to occur within a port
area or territorial sea, where ships are waiting to enter a port ort traverse a strait, as they
are to occur on the high seas.’806 Birnie recognised in 1987 that only 7 to 15 percent of
recent incidents previously classified as piracy would still be classified as piracy under
UNCLOS.807 As Menefee noted in 1999: ‘it has been estimated that the shift in the 1982
Convention throws upwards of 85-93% of all piracies into the jurisdiction of coastal
states.808 A decade later, Isanga also observed that pirates target ships in territorial waters
home to some of the most popular commercial shipping lanes, and furthermore, that most
incidents of attacks on commercial vessels have occurred in territorial waters within the
jurisdiction of the coastal state.809 This was confirmed by the review of statistics conducted
in the second chapter. Given this result, the high seas’ limitation, as stated by Collins and
Hassan, forms a significant impediment to the effectiveness of the UNCLOS piracy regime.
They further suggested an expansion of the geographical limit to the piracy definition to
801
Haywood and Spivak (2012) at 95. See, also, Murphy (2007) at 155.
Isanga (2010) at 1288.
803
This shrunk the realm of the high seas. See Murphy (2007) at 158-159, 162.
804
Collins and Hassan (2009) at 98.
805
Haywood and Spivak (2012) at 95.
806
United Nations Conference on Trade and Development, Review and analysis of possible
measures to minimize the occurrence of maritime fraud and piracy. TD/B/C.4/AC.4/2 (21
September 1983) at par. 43.
807
Birnie (1987) at 173. See, also, Murphy (2007) at 163, and Murphy (2007) at 165, who describes
the epidemic of the present analysis as ‘the new (or renewed) form of piracy’.
808
Menefee (1999) at 315.
809
Isanga (2010) at 1287. See, also, Murphy (2007) at 157.
802
156
include ‘at least a portion of waters currently defined as territorial waters’ in order to
minimise the observed shortcoming.810 It was also because of this shortcoming that Dubner
wrote:
‘[I]f a “pirate” craft were to operate from the high seas against shipping within
the territorial waters of a state which lacked the naval resources to put an end
to these depredations, would the naval forces of a state, the merchant shipping
of which had as yet been unmolested, have to stand helplessly by until its
intervention were requested by the coastal state or by a state that had suffered
damage?’811
Dubner’s question, posed in 1980, is one that is still relevant. The analysis, conducted in
the second chapter, of piracy in the Somali region in the first decade of the 21st Century has
shown that the presumption of the capacity of a state to administer and enforce its municipal
law on piracy has faltered significantly. Isanga describes it aptly:
‘Somalia refutes this assumption in the extreme, as contemporary piracy is
rampant there due to dysfunctional and failed government, a paucity of laws
regulating piracy, and an inadequate system for legal enforcement.’812
2.3
Presumption of state capacity in the territorial sea
Accordingly, in the face of the contemporary realities highlighted above, and in greater
detail in the second chapter, the presumption that states can prescribe, administer and
enforce municipal laws pertaining to piracy must be examined. The presumption, as
pointed out by Madden, was perhaps valid in the Eighteenth Century, when states,
particularly prominent colonial powers, had a strong coastal battery which was sufficient
to deter pirates from operating within a state’s territorial sea. Furthermore, the realm of the
high seas, at this time, spanned a greater area due to the more confined limit of the breadth
of the territorial sea.813 The key impediment which has the power to refute this presumption
is that, some states, as in the case of the present analysis, might be incapable of combatting
piratical acts within their territorial waters simply because of a lack of the requisite
810
Collins and Hassan (2009) at 98. Murphy (2007) at 165 also commented that contemporary piracy
occurs in waters where the piracy provisions of UNCLOS have no effect.
811
Dubner The Law of International Sea Piracy (1980) at 5. See, also, Klein Maritime Security and
the Law of the Sea (2012) at 78, where a similar comment was made regarding encroachments on
exclusive enforcement jurisdiction of the coastal state.
812
Isanga (2010) at 1288. He highlights idem that ‘the incongruity here is apparent as an act may
constitute piracy if it is committed on the high seas but will not be covered by international rules
concerning piracy if it is committed in the internal or territorial waters of a coastal state’.
813
Madden (2009) at 146.
157
resources.814 Indeed, before the epidemic resurgence in the present case study, it was noted
by the UNCTAD secretariat in 1983 that ‘reported incidents are centred in specific regions
where there is a relatively high concentration of shipping traffic in combination with
insufficient police enforcement, arising either from local economic and social conditions
or because of the presence of extensive coastal areas not fully under central governmental
control.’815 This statement comprehensively describes the situation of the present analysis.
In chapter 3 it was shown that the juridical nature of the territorial sea developed from a
theory that a coastal state ought to have a belt of water adjacent to its coast as a buffer zone
to prevent pirates and other threats from operating in its waters. In these circumstances, the
threat originated external to the state, and the coastal state was primarily concerned with
protection and the exclusive exercise of its sovereignty. This is in contrast to contemporary
piracy, as manifested in the present analysis, where the threat originates domestically. The
state – through omission, incapacity, lack of resources or political will – fosters the
conditions needed for piratical activities to flourish. In this instance, it is not the coastal
state which is the primary victim, but the international commercial shipping industry
operating in close quarters through narrow straits as they transit under innocent passage
rules through the territorial sea. Perpetrators of the piratical acts retreat into their home
state’s territorial waters and are shielded from international enforcement through the shield
of sovereignty, along with corrupt government officials who may be complicit in their
activities. This appears to conflict with the basis of international law establishing piracy
jure gentium, which was to protect community interests in economic development and
humanitarian standards.816
2.4
Implications of the high seas’ limitation
The interaction between the UNCLOS regime and the significant concentration of piratical
acts in territorial waters against international merchant shipping has some implications: as
stated briefly above, the high seas’ limitation has a repercussion on the reach of the
universal enforcement powers vested by article 105 of UNCLOS.817 States exercising their
vested enforcement powers pursuant to this article on the high seas may engage in a hot
pursuit of pirate suspects under article 111. In this regard, Isanga poses the following
question: What happens when a suspected pirate vessel being pursued by a foreign
government’s warship manages to escape into the territorial waters of a coastal state that is
814
Idem.
UNCTAD (1983) at par. 44.
816
Birnie (1987) at 164.
817
See Geiß and Petrig (2011) at 60.
815
158
unwilling to continue pursuing the pirate vessel?818 He points out that article 111 of
UNCLOS expressly provides that the right of hot pursuit ceases as soon as the pursued ship
enters the territorial sea of its own state or a third state. A further implication of the
restrictiveness of the high seas’ limitation is that it undermines the obligation in article 100
of UNCLOS, cited at the commencement of this chapter. The article contains no
corresponding obligation of states to repress piracy that occurs in their territorial waters.
Collins and Hassan observe that this enables states to skirt responsibility for pirates and
piratical acts within their territorial waters, even if those pirates also prey upon ships on the
high seas.819 This lack of capacity and failure of coastal states to prevent piratical acts
within their territorial waters against international merchant shipping is, according to
Haywood and Spivak, ‘a failure to project power over its own territory and to govern its
territory at a level sufficient to meet its fundamental obligation to other states “to ensure
that its territory is not used in any manner which would disrupt the political, economic and
social stability of another state”’.820
Whilst all these reservations have been raised, it must be kept in mind that when
interpreting the UNCLOS piracy regime, consideration must be given to the requirements
of the Vienna Convention on the Law of Treaties (VCLT).821 Article 31(1) thereof states
that when interpreting these provisions, consideration must be given to their ordinary
meaning, their context and the object and purpose of UNCLOS.822 The preceding
conferences and documents that ultimately led to the adoption of the UNCLOS regime,
which will be analysed in the remainder of this chapter, could be said to be part of the
‘preparatory work’ of UNCLOS within the context of article 32 of the VCLT.823 However,
there is no ambiguity in the provisions of article 101(a) with respect to the high seas’
limitation, and the provisions are given their ordinary meaning.824 Given its shortcomings,
the concluding chapter at the close of this thesis will present a recommendation for its
revision de lege ferenda.
2.5
High seas’ limitation being dismissed as an area of contention
818
Isanga (2010) at 1291.
Collins and Hassan (2009) at 98.
820
Haywood and Spivak (2012) at 92. They cite the Declaration on the Inadmissibility of
Intervention and Interference in the Internal Affairs of State adopted at the 91 st Plenary Meeting, 9
December 1981, Art. II(b) (UN General Assembly Document A/RES/36/103).
821
1155 UNTS 331 (adopted 23 May 1969, entered into force 27 January 1980).
822
See, also, Churchill (2015) at 11; and Bellish ‘A highs seas requirement for inciters and
international facilitators of piracy jure gentium and its (lack of) implications for impunity’ 15 San
Diego International Law Journal (2013) 115 at 124-125.
823
Idem.
824
As set out in the IMO Commentary.
819
159
The criticism of the high seas’ limitation, notwithstanding the concerns presented above,
has not received much detailed academic scrutiny within the corpus of recent scholarship.
Johnson, writing in 1957, observed:
‘Where territorial waters are concerned, ships are already subject in some
measure to the jurisdiction of the coastal state as well as of the flag state, but
there seems no good reason to go further than that and authorise the
international community as a whole to assume jurisdiction over acts clearly
taking place within national territory.’825
As a prominent writer on the law of the sea, Churchill made a noteworthy comment in this
regard:
‘This criticism seems misplaced. If piracy could be committed in the territorial
sea and was subject to universal enforcement jurisdiction that applies to piracy
committed on the high seas or EEZ, it would cause potentially serious conflict
with the rights and jurisdiction of the coastal state … The suggestion that
piracy should be extended to the territorial seas seems fraught with difficulty.
If such an extension took place, it would mean the possibility of foreign
warships entering a coastal state’s territorial sea without its consent to arrest
pirates. Such a situation seems a recipe for conflict. Extending piracy to the
territorial sea is also unnecessary as there is nothing to stop a coastal state
from criminalising quasi-piratical acts (i.e. armed robbery) in its territorial sea
and arresting suspected offenders. Furthermore, the SUA Convention may
also be applicable.’826
Churchill’s comments, however, skirt over the main reservations about the high seas’
limitation, particularly the enforcement capability of states. His line of argument about the
extension of piracy jure gentium seems founded on notions of respect for state sovereignty.
Birnie expressed a similar view:
‘Although extending the scope of piracy jure gentium to encompass at least
the territorial sea would also be advantageous, it seems unlikely that coastal
states will accept this since they would regard it as an invasion of their
Johnson ‘Piracy in Modern International Law’ 43 Transactions of the Grotius Society (1957) 63
at 71.
826
Churchill (2015) 22, 31.
825
160
sovereignty.’827
This rigid adherence to concepts of state sovereignty, however, has been dealt with in the
previous chapter, shown to have a shallow foundation, and a suggestion made that such
rigidity should yield to a more contemporary understanding of sovereignty and its limits.
Churchill’s suggestion of the SUA Convention828 being applicable as a substitute for the
shortcomings contained in UNCLOS merits some consideration. Article 3 of SUA contains
a wide range of offences which fall within its ambit: it does away with the ‘two-ship’
element, and it has eliminated the controversy of the ‘private ends’ element in
differentiating between the motives of different attackers, so that in instances where
maritime terrorism and piracy overlap, the suspects can be prosecuted.829 Whilst this may
be the case, Collins and Hassan aptly point out that numerous clausus of offences contained
in article 3, even if interpreted broadly, will only cover the most serious, but less common
incidents of vessel hijacking, and not the most common forms of piracy and armed robbery
at sea.830 Relevant to the present analysis, are articles 4 and 6, which extend the
geographical limits in comparison to the UNCLOS provisions: the offences under article 3
apply when committed in almost all areas of oceans, including territorial waters.831 Whilst
this may prima facie appear to be the solution to the high seas restriction of UNCLOS,
there is a significant proviso to the extensive geographical ambit of SUA: it does not extend
the universal enforcement jurisdiction to cover such offences. Under article 6, in order for
a state to prosecute someone under SUA, the state must have a link or nexus to the
offence.832 Isanga illustrates that this ‘effectively undercuts the jus cogens and erga omnes
character of the crime of piracy, which confers universal jurisdiction to prosecute the
crime’.833 Furthermore, the obligations under the SUA apply exclusively to states that are
party to the treaty.834 This restriction defeated anti-piracy interventions since many states
where piracy is prevalent, such as Malaysia, Indonesia and Somalia, have not ratified the
SUA.835 Very few littoral Indian Ocean states have.836 Collins and Hassan speculated as to
827
Birnie (1987) 173-174.
Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation,
Rome, 10 March 1988, 1678 UNTS 221 (1988) (“SUA Convention”). Relevant extracts of the
Convention are reproduced et seq. hereof in the appendices.
829
See Collins and Hassan (2009) at 107; Wambua (2014) at 81.
830
Collins and Hassan idem.
831
See discussions in Isanga (2010) at 1292; Haywood and Spivak (2012) at 96; Collins and Hassan
(2009) at 107.
832
See, for example, discussion in Wambua (2014) at 81.
833
Isanga (2010) at 1293.
834
See article 6 of the SUA.
835
Haywood and Spivak (2012) at 96.
836
Stepek (2012) at 360. These have not changed to date hereof.
828
161
the reason why the ratification of SUA by states has not been so forthcoming: they note
that the SUA places vast obligations on signatory states to co-operate, the onerous
provisions having sometimes acted as a deterrent to some nations in ratifying the treaty. 837
They also noted that the provisions can be interpreted as permitting ‘dominant naval powers
to undermine the authority of regional powers … [compromising] a small state’s national
security – perhaps even permitting foreign maritime forces to enter their territorial
waters’.838 In other words, they surmised that the ‘main impediment to widespread regional
ratification of the treaty is the strict cooperative provisions, which are viewed as permitting
larger states to infringe a smaller state’s sovereignty’.839 This observation is an interesting
one: Churchill’s rejection of the criticism of the high seas’ limitation in UNCLOS in favour
of the sanctity of a state’s sovereignty and the avoidance of conflict at the forefront, appears
to be the same reason for the lack of ratification of the SUA.
It follows, then, that an enquiry into the high seas’ limitation is warranted. UNCTAD
reported that the ‘restriction of the term piracy in international law to only the high seas
may be viewed as an unfortunate limitation removing a large number of otherwise
includable acts’.840 The previous chapter exhibited, in detail, the historical shortcomings in
the development of the definition of piracy, and the extent and nature of the juridical realms
at sea. It remains undisputed that writers and draftsmen have experienced great difficulty
in defining piracy at the international level.841 Codification and progressive development
occurred during the 20th Century, which exposed these shortcomings in contemporary
resurgences.842 The UNCTAD secretariat described this situation aptly:
‘The treatment of piracy by international law has at times been considered to
be an insufficient response to the actual problem currently being experienced.
Generally the criticisms relate not directly to the powers granted to States but
indirectly via the definition of the term, which in turn controls the operation
of the extraordinary powers granted to states by article 105. Specifically, the
definition has been criticised as being too restrictive in referring only to acts
on the high seas.’843
837
Collins and Hassan (2009) at 109.
Idem.
839
Idem at 110.
840
UNCTAD (1983) at par. 216.
841
Birnie (1987) at 167.
842
Birnie (1987) at 165 describes how UNCLOS ‘further confounded matters since the definitions
adopted are narrow ones, not consonant with all states’ laws and have been expressed in somewhat
ambiguous terms’.
843
Idem at 215.
838
162
Had this observation, made in 1983, received further scrutiny, the international community
might have been better equipped to respond to the epidemic subject to the present analysis.
The issue is ripe for analysis and progressive development. Given that the source of
presenting proposals for a progressive development of the piracy provisions lies in a
scrutiny of the definition, this will be the aim of the remainder of the chapter, with the sole
focus being the high seas’ limitation.
The inquiry that forms the basis of the remainder of the chapter is: first, to ascertain why
the definition did not progressively develop to effectively apply to contemporary piracy;
second, during the codification process, what were the critical factors or considerations that
were raised but were eventually disregarded or omitted in the final stages of codification;
and third, whether any of these factors could find application or relevance to contemporary
piracy.
2.6
Lack of progressive development on the high seas’ limitation
When the crime of piracy is considered in historical perspective, as was the objective of
the previous chapter, it becomes apparent that the positive international law codifying and
regulating maritime piracy did not overlap with history as significantly as one would
expect.844 Two reasons could be advanced for this: first, as legal experts at the Harvard
University in the 1930s explained:
‘[P]aucity of pertinent cases and of evidence of modern state practice on most
of the important moot points in the law of piracy. Except for a few
international cases, chiefly concerning the status of insurgent vessels or of
irregular privateers, and a few municipal law cases, there are no official
determinations which will help an investigator cut a way through the jungle of
expert opinion. Indeed the lack of adjudicated cases and of pertinent instances
of state practise is the occasion for the chaos of expert opinion.’845
The choice of language emphasised above by the Harvard legal experts is apt: they explain
that the reason for this lack of precedent, at the time of them presenting their draft articles
on piracy, can be attributed to the fact that:
‘[L]arge-scale piracy disappeared long ago and that piracy of any sort on or
See Bellish ‘A high seas requirement for inciters and intentional facilitators of piracy jure gentium
and its (lack of) implications for impunity’ 15 San Diego International Law Journal (2013) 115 at
119.
845
Harvard Research in International Law: Draft Convention on Piracy 26 American Journal of
International Law Supplement (1932) 743 at 764 (emphasis added).
844
163
over the high sea is sporadic except in limited areas bordered by states without
naval forces to combat it. Piracy lost its great importance in the law of nations
before the modern principles of finely discriminated state jurisdictions and
freedom of the seas became thoroughly established.’846
This directly leads to the second reason, which is that most of the positive international law
dealing with piracy – as will be outlined in this chapter et seq – was codified when the
incidence of piracy was rare, scattered and sporadic.847 Much of the scholarship on the
matter waned during the periods of codification. This statement is supported by the
following line graph prepared by Google’s Ngram service, which is a tool that allows
researchers to track the use and frequency of a given phrase as it appears in around eight
million of the approximately twenty million books scanned by Google.848 The word
inputted into the tool was ‘maritime piracy’ and the period under review was 1800 to 2016.
Figure 3849
The period during which the various codification proceedings took place was between 1926
and 1982. The graph demonstrates that this period of codification coincided with a period
of relative inactivity in scholarship. The confluence of codification attempts during a period
of waning scholarly material dealing with the crime did have a consequence: it will be
shown below that delegates at the earliest codification conferences, possibly influenced by
the lack of incidents of piracy and the low level of interest in scholarship on the matter,
questioned whether the crime was even deserving of more than one article devoted to it in
the codification process. Another consequence is what could be termed a ‘motivational
846
Idem.
This graph was first illustrated and commented on in Bellish (2013) at 119-120.
848
Idem.
849
Google Books Ngram viewer: available at:
https://books.google.com/ngrams/graph?content=maritime+piracy&year_start=1800&year_end=2
008&corpus=15&smoothing=3&share=&direct_url=t1%3B%2Cmaritime%20piracy%3B%2Cc0
(retrieved on 25 October 2016).
847
164
malaise’, and is described best by Menefee:
‘When the problem is low-level, it is not worth considering. When it flares up,
as in the case of the China Sea controversies or the Achille Lauro, it becomes
controversial, but may alienate key State players whose acquiescence is
necessary for a solution. Repeatedly on the international level, one sees a
national fear of loss of sovereignty, even in areas where numerous incidents
suggest that its exercise is minimal at best. This remains a major stumbling
block to progress.’850
Modern piracy has shown the need for the revitalisation of piracy law – a concluding
comment made by Dickinson in 1924, a period when the subject of piracy was grossly
under-discussed, was that piracy ‘belonged to the law in reserve rather than to the law in
history.’851
With these considerations in mind, the chapter continues with a second major enquiry,
entailing a discussion of the various codification attempts, outlined in a chronological
sequence, in order to identify the critical factors raised during the deliberations relating to
the high seas’ limitation. This will be achieved through an analysis of the official
documents of these codification proceedings. While the analysis seeks to identify sources
to support the primary argument of this thesis relating to the high seas’ limitation, it is best
presented with background context and a holistic overview of its features and provisions.
III. THE LEAGUE OF NATIONS CODIFICATION CONFERENCE
AND THE MATSUDA REPORT (1926)
3.1
Background
Pursuant to an intergovernmental effort to promote the codification and development of
international law, the Assembly of the League of Nations passed a resolution on 22
September 1924, formally requesting the Council of the League to convene a ‘Committee
of Experts for the Progressive Codification of International Law’.852 According to the
extant International Law Commission, this was the ‘first attempt on a worldwide basis to
codify and develop whole fields of international law rather than simply regulating
850
Menefee Contemporary Piracy and International Law (1995) at 65.
Dickinson ‘Is the crime of piracy obsolete’ 38 Harvard Law Review (1924-25) 334 at 360.
852
Publications of the League of Nations, V. LEGAL, 1926, V.5, C.P.D.I. 16 (revised) at 1, Geneva,
9 February 1926. See, also, Rubin at 305; Guilfoyle ‘Piracy and Terrorism’ in Koutrakos and
Skordas The Law and Practice of Piracy at Sea: European and International Perspectives (2015) at
37.
851
165
individual and specific legal problems’.853 The Committee, by its terms of reference, was
required “to prepare a provisional list of subjects of international law, the regulation of
which by international agreement would seem to be most desirable and realisable at the
present moment”.854 Piracy was one of the topics selected for action on the list.
Questionnaire no. 6, adopted by the Committee at its second session held in January 1926,
posed the following issue:
‘Whether, and to what extent, it would be possible to establish by an
international convention, appropriate provisions to secure the suppression of
piracy.’855
3.2
The Matsuda Report and key draft provisions
Pursuant thereto, a sub-committee was established, consisting of M. Matsuda as
Rapporteur, and Chinese representative M. Wang Chung-Hui. Following the committee’s
deliberations, a report was prepared on the 26 January 1926, and circulated to governments
for their comments on 29 January 1926. It is worth commenting on some of the key
provisions of his draft piracy articles and their preface, as this purported codification
attempt was the forerunner of the subsequent attempts discussed below.
Matsuda’s report commences with a form of preamble which states that: ‘Authors of
treaties on international law often differ as to what really constitutes this international
crime’. He goes on to explain the reason for the confusion in his conclusions as being ‘due
to the failure to draw a clear distinction between piracy in the strict sense of the word, as
defined by international law, and piracy coming under the private laws and treaties of
individual States’.856 Rubin’s comment on this report reveals that this explanation ‘is not
traced to doctrinal differences or the changing perceptions of states over time or any other
of the sources of differing opinion analysed above’.857 The preceding chapter has shown
that this observation of Rubin is critical and that doctrinal differences and changing
perceptions had an impact on the evolution of the definition of piracy.
Matsuda presents his draft articles with the view that it would be preferable for the
Committee to adopt a clear definition of piracy which would be applicable to all states in
853
See the website of the International Law Commission: legal.un.org/ilc/league.shtml (retrieved on
17 November 2016).
854
See Publications of the League of Nations (1926) at 1.
855
Idem.
856
Publications of the League of Nations (1926) at 4. See, also, Rubin (1988) at 306.
857
Rubin (1988) at 306.
166
virtue of international law in general.858 Rubin further observes that this reflects the
assumption that there is a single conception of piracy in the international legal order
reflecting a stable natural law that did not change over time.859 It is worth noting in this
regard, however, that Matsuda’s report was not supported by scholarly citations or
commentary, evidence of state practice or judicial precedent, seemly distancing the entire
corpus of jurisprudence presented at length in the previous chapter hereof.860 Attempts, as
in the case of the present thesis, to analyse or interpret the draft articles are hindered by the
fact that Matsuda does not furnish any detailed purport of his drafting choices and
underlying conceptual framework.
The work of the Committee of Experts on piracy was brief.861 Matsuda’s report itself
consists of a brief discussion in section [A] dealing with piracy in international law, and
section [B] discussing piracy in terms of treaties and special laws of states. The draft
provisions are thereafter contained in eight articles.862
Turning now to aspects of the report that are relevant to the primary focus of the present
thesis – relating to the high seas’ limitation – Matsuda makes three significant statements
in section [A] which precede his presentation of the draft articles:
3.2.1
First, he comments on the locus of piracy:
‘Piracy has as its field of operation that vast domain which is termed “the high
seas”. It constitutes a crime against the security of commerce on the high seas,
where alone it can be committed. The same acts committed in the territorial
waters of a State do not come within the scope of international law, but fall
within the competence of the local sovereign power.’863
This notion was incorporated into article I of the draft provisions (emphasis added):
‘Piracy occurs only on the high sea and consists in the commission for
private end of depredations upon property or acts of violence against
persons.
858
Publications of the League of Nations (1926) at 4.
Rubin (1988) at 306.
860
This was observed by Rubin (1988) at 306 and Guilfoyle (2015) at 37. Rubin (at 307) offers a
way around this criticism of a lack of reference to historic and juridical analysis, which is to interpret
the draft articles as being presented de lege ferenda – i.e. as a proposal for a new law regardless of
history and theory. He notes that this approach was permissible as a progressive codification within
the terms of reference of the Committee, and ‘thus with the focus being forward, the consistency of
the new proposal with history and theory became unimportant’.
861
Guilfoyle (2015) at 37.
862
These articles are reproduced in full in the appendix et seq.
863
Publications of the League of Nations (1926) at 2.
859
167
It is not involved in the notion of piracy that the above-mentioned acts
should be committed for the purpose of gain, but acts committed with a
purely political object will not be regarded as constituting piracy.’
Two presumptions, as derived from Mastuda’s comments, fall flat when considered
within the context of present-day Somali piracy. The first relates to the scene of
international commerce as the high seas. It has been shown, in detail, in the second
chapter of this thesis, that significant volumes of the international merchant marine
transit territorial waters. Whilst he points out that the same acts occurring in the
territorial seas would fall into the competence of the local coastal state, it was not
envisaged that capacity and resources would be vital factors in enabling the coastal
state to exercise such competence.
3.2.2
Second, Matsuda incorporates the epithet of the pirate as the enemy of the
human race and, as a consequence, the pirate losing his nationality:
‘When pirates choose the scene of their acts of sea-robbery a place
common to all men and when they attack all nations indiscriminately,
their practices become harmful to the international community of all
States. They become the enemies of the human race and place
themselves outside the law of peaceful people … By committing an act
of piracy, the pirate and his vessel ipso facto lose the protection of the
State whose flag they are otherwise entitled to fly.’
This latter comment is embodied in article II of the draft provisions:
‘in committing an act of piracy the pirate loses the protection of the
State whose flag the ship flies.’
This line of thought closely follows the earlier discussion in the previous chapter,
where a pirate was conceived as the illegitimate enemy who loses the benefits and
protection of his nationality. The non-recognition of the nationality of the pirate was
shown as being one of the gateways to the application of universal jurisdiction in the
previous chapter.
3.2.3
Third, reverse hot-pursuit is considered:
‘May a warship pursue and arrest pirates in the territorial waters of a
foreign Power without thereby violating the sovereign rights of that
168
Power? Under normal circumstances, the sovereign of the territory
alone has the right, in territorial waters, to protect national and
international interests; but in the case of acts intended to safeguard
international relations, it would appear reasonable to assume that the
Government of the territory tacitly consents if it is not in a position to
continue the pursuit successfully; otherwise, if the coastal State could
not take the necessary measure to carry through the pursuit in time the
result would be to facilitate the flight of the pirate and enable him to
escape punishment. In such cases, however, the right to try for piracy
devolves upon the State to which the territorial waters belong. It is the
recognition due to its sovereignty.’864
This is embodied in article V of the draft provisions:
‘If the crew of a ship has committed an act of piracy, every warship has
the right to stop and capture the ship on the high sea.
On the condition that the affair shall be remitted for judgment to the
competent authorities of the littoral state, a pursuit commenced on the
high sea may be continued even within the territorial waters unless the
littoral state is in a position to continue such pursuit itself.’ (emphasis
added).
For the purposes of this thesis, this provision and Matsuda’s preface have the most
probative value. At the outset, he recognises the sovereignty of a state, which it exercises
exclusively over its realm, qualifying this power as being under normal circumstances. The
exception is where there is a need to safeguard international relations. This can be read as
extending to encompass the need to protect international commercial shipping. He also
recognises that the state has an obligation in this regard, and for the first time there is a
consideration about the capacity of a state to supress piracy and fulfil its obligation. Where
there is incapacity, the state tacitly consents to the incursion of a foreign naval power into
its territorial sea for the purposes of pursuing a pirate vessel. The coastal state, however, is
given the exclusive power to prosecute the pirates and exercise adjudicatory jurisdiction.
Whilst the foreign naval vessel is engaged in hot pursuit and enforcement jurisdiction on
the high seas, it is acting pursuant to international law. When it engages in hot pursuit in
the territorial sea of a foreign state, with its tacit consent as provided for in Matsuda’s draft,
it is still doing so by exercising enforcement jurisdiction under the auspices of international
law and not municipal law. One way of interpreting this permutation is that piracy jure
864
Idem at 3.
169
gentium can, therefore, be applied in the territorial sea. This contention will be revisited
and adapted in the presentation of recommendations in the final chapter of this thesis.
Rubin makes an interesting observation regarding these provisions. In the previous chapter,
an account was given on the Huascar incident, where British naval vessels captured pirate
suspects in Peruvian territorial waters. He speculates that these provisions were drafted to
look ‘as if somebody was trying to present as if a rule of established law some assertions
of principle that would cover the British action without unduly upsetting the Government
of Peru or those scholars, including eminent British scholars, who found the actual British
position as presented publicly to be argumentative and unconvincing.’865 However, this is
a subject of conjecture in the absence of an official commentary.
3.3
Responses to the draft provisions
There were numerous lengthy replies from Governments to the report in which serious
questions were raised. Furthermore, the varied nature of the replies made by Governments
makes the formation of an accurate analysis difficult.866 Twenty-nine states replied to the
questionnaire that was the subject of Matsuda’s report.867 Eighteen of these states
recognised the possibility and desirability of an international convention: nine replied in
the affirmative and the remaining nine replied in the affirmative, albeit with reservations
and observations.868 Three states did not think the regulation relating to the proposed
question was especially urgent or important, but they did not object to it being embodied
in an international agreement.869 Two states thought that the conclusion of a convention
was neither possible nor desirable.870
The Portuguese Permanent Commission presented the following comment and proposal:
‘The report (A,I) says that piracy has as its field of operation only on the high
seas; the inference is that the same acts, committed in the territorial waters of
a State, do not fall under international law. But history teaches that the attacks
of pirates in ancient times and in the Middle Ages were almost always
865
Rubin (1988) at 307.
Report to the Council of the League of Nations on the Questions which Appear Ripe for
International Regulation 22(1) American Journal of International Law (January 1928) 4 at 25.
867
Idem.
868
Idem.
869
Idem.
870
See, for example, the reply of the United States of America (at 33): ‘it is the view of the
Government of the United States that piracy, as that term is known in international law, is so nearly
extinct as to render of little importance consideration of that subject, as one to be regulated by
international agreement’.
866
170
committed near the coasts, and that, generally, the pirates landed and attacked
villages, plundering, looting, and murdering, and kidnapping the inhabitants.
It was thus that the Norman pirates acted on the western costs of Europe, and
later the Barbary pirates in the Mediterranean, through the latter, it must be
said, preferred to attack on the open sea. It is true that nowadays piracy in
either form has become rare. But from time to time piratical acts are still
committed, either on the high seas or on the coasts, especially in the Far East,
and there appears to be no great difference in the gravity of the offence
wherever the scene of the robbery.’871
Portugal’s submission to the Committee of Experts was therefore to add the following
phrase (inserted here in italics) into Article I: ‘Piracy occurs only on the high seas or on the
coasts and consists in the commission for private end of depredations upon property or acts
of violence against persons.’ As mentioned below, the topic of piracy was eventually
dropped from the agenda of the proposed codification conference, and the comment made
by Portugal above did not receive further analysis. The comment however, is relevant and
can be still raised in the present context.
3.4
Rejection
Nicholas Politis, the Rapporteur for one of the sub-committees, states, with regard to
piracy, that the issue ‘on which the conclusion of a universal agreement seems somewhat
difficult at the present time, is [not] important enough to warrant … insertion in the agenda
of the proposed Conference.’872 Rubin added that nothing more came of Matsuda’s report
or the documentation it provoked.873
3.5
Summative comments
This purported codification has not received much scholarly analysis, apart from the
comments by Rubin,874 since its removal from the agenda of the League’s proposed
codification conference. However, in revisiting this codification attempt: (i) the affirmation
of the pirate as hostis humani generis, stripped of its nationality; and (ii) the extension of
the application of universal jurisdiction (derived through the application of piracy jure
871
Report to the Council of the League of Nations (1928) at 29-30.
Publications of the League of Nations, V. LEGAL. 1927.V.28, reproduced in 22 Special
Supplement American Journal of International Law (1928) 345 at 346, cited in Rubin (1988) at 308.
873
Rubin (1988) idem.
874
See, generally, Rubin (1988) at 305-308. Geiß and Petrig (2011) refer to this codification attempt
in a brief paragraph at 37-38, and Guilfoyle (2015) refers to the same in the context of analysis
between piracy and terrorism.
872
171
gentium) into the territorial sea through a hot pursuit by descent from the high seas under
the tact consent of the coastal state, are both of particular value and relevance to the present
analysis. Accordingly, as this thesis progresses into the presentation of recommendations
to amend the framework, the factors raised by Matsuda in this report will be adapted.
IV. THE HARVARD UNIVERSITY DRAFT (1932)
4.1
Background
Whilst the Matsuda report evaded further scrutiny, the faculty at the Law School of Harvard
University drove their own research initiative to independently contribute to the League’s
codification conference. A committee was formed to research piracy under international
law. The reporter, Professor Joseph Bingham, presented the results of the research effort of
the committee in the form of a full draft convention consisting of nineteen articles. An
initial observation made of the draft convention illustrated that the drafters regarded it as
not merely ‘codifying, but also blending the international law of piracy into the system of
legal relationships that they believed applied in the world of their time.’ 875 Unlike
Matsuda’s report, the Harvard committee accompanied their draft articles with a
voluminous commentary and a list of citations. This makes a probative analysis feasible.
4.2
Holistic merits of the draft
Whilst some writers, like Birnie, suggested that the draft was the first to formalise or
crystallise the customary law,876 Bingham definitively cautions that:
‘In studying the content of the article, it is useful to bear in mind the chaos of
expert onion as to what the law of nations includes, or should include, in
piracy. There is no authoritative definition. Of the many definitions which
have been proposed, most are inaccurate, both as to what they literally include
and as to what they omit.’877
Rubin’s comment that the draft must be ‘evaluated on its own merits as a legislative
proposal, and cannot be supported as a reflection of a scholarly analysis of precedent and
theory’878 must therefore be kept in mind.
875
Rubin (1988) at 308-309.
Birnie (1987) at 169.
877
Harvard Research in International Law: Draft Convention on Piracy 26 Supplement American
Journal of International Law (1932) 743 at 769 (hereafter the Harvard University Draft). See, also,
Rubin (1988) at 313, and Menefee (1995) at 3-4.
878
Rubin (1988) at 313.
876
172
A perusal of the draft reveals a convoluted architecture present in its commentary and use
of scholarship.879 Commentaries on the articles appear as a quilt work consisting of
numerous quotations, most sources being European publicists from the 19th Century. Rubin
is critical of this approach and aptly observes that ‘there is no apparent attempt to evaluate
those writings by jurisprudential view or any other clue as to relative persuasiveness; there
is no chronological consistency’.880 There is no categorisation according to hierarchy with
primary sources, namely: state practice, diplomatic correspondence, municipal cases and
secondary sources in the form of opinions and commentaries by publicists.
The approach adopted by Bingham and his committee was more of a progressive
codification rather than a declaratory form of the customary definition.881 This is
acknowledged in the draft, which recognizes that society is not static:
‘The use of traditional ideas of the nature of piracy and the scope of the
common jurisdiction should be tempered and controlled by the realization of
the great changes that have occurred through the centuries in the conditions of
commerce and travel and in offences affecting them outside territorial
jurisdiction, in the actual relations of states, and in fundamental postulates of
the law of nations pertaining to our topic.’882
It goes on to reveal that law must be commensurate with this progression of society and its
institutions:
‘The doctrine of the freedom of the seas and the modern fine apportionment
of jurisdiction among states on territorial nationality, and protection of interest
bases, are of late growth, and if the modern law of piracy is to be well fitted
into this scheme it may be necessary to discard or modify some of the notions
which characterized the law of piracy of an age with a very different
adjustment of international relations.’883
It is apt to rekindle this notion from the basis of amending the present legal framework, as
this thesis has shown inter alia, in the previous chapters, fundamental changes in the modus
879
See the discussion in Rubin (1988) at 312-313.
Idem. His criticism of the Draft (at 312) centres on the view that ‘in their use of earlier scholarship
in general, however, the Harvard Researchers themselves seemed somewhat confused. Long
quotations from Stiel are preceded or followed with what appear to be supporting quotations from a
variety of sources addressing different problems from different jurisprudential perspectives and at
different times.’
881
See Menefee (1995) at 4.
882
Harvard University Draft (1932) at 787.
883
Idem.
880
173
operandi of contemporary pirates off the coast of the Horn of Africa, and the decolonisation
of Africa and its impact on the creation of the EEZ in the present UNCLOS regime with is
definitive jurisdictional realms.
4.3
Rationale of the drafters
The drafters commenced by setting out a clear distinction between piracy under
international law, which is committed beyond all territorial jurisdiction, and municipal law
piracy which may include offences committed in the territory of the state.884 From the
placement of emphasis in the foregoing distinction, it becomes readily apparent that the
locus is a primary consideration in determining the nature of the act.
They observe that in municipal law, piracy is principally a crime.885 They do not draw the
same observation in respect of piracy under international law because:
‘the law of nations is a law between states only, and limits their respective
jurisdictions. Private individuals are not legal persons under the law of
nations. The rights, duties, privileges, and powers which it defines are only
those of states. There is no legal universal society of private persons regulated
by international law.’886
They further noted that there was no super-government and no international tribunal to
administer international civil or criminal justice against private persons, and it was only
through voluntary action of some states that pirates were captured, prosecuted and
sentenced to punishment.887 The conclusion that they reached was that piracy is not a legal
crime or offence under international law, as documented in this comment:
‘Since, then, pirates are not criminal by the law of nations, since there is no
international agency to capture them and no international tribunal to punish
them and no provision in the laws of many states for punishing foreigners
whose piratical offence was committed outside the state’s ordinary
jurisdiction, it cannot truly be said that piracy is a crime or an offence by the
law of nations’.888
Rubin found that two schools of jurisprudential thought permeate the discourse of the
884
Harvard University Draft (1932) at 749. See, also, the observation by Rubin (1988) at 309.
Idem 751.
886
Idem 754.
887
Idem 755.
888
Idem 756.
885
174
drafters, the first of these being a naturalist view which classifies piracy as a ‘valid set of
rules established by universal reason and immediately applicable to individuals but
enforced only through the intermediacy of states, implying universal jurisdiction’. 889 The
second is a positivist view which denies ‘the very existence of an international law of
“piracy,” but asserting the existence of merely a subset of the municipal maritime laws of
many states by which jurisdiction over foreigners could be asserted on the basis of the
nationality of the victim of a depredation that did not occur solely within a single vessel or
other specific jurisdiction that could be claimed to be exclusive’.890 Rubin’s analysis of the
drafter’s commentary shows that the latter view prevailed as its jurisprudential basis.891
Given that the drafters rejected piracy being defined as a crime under the law of nations,
they also found that it was not the purpose of the draft convention to unify the various
municipal laws, or to provide uniform measures for punishing pirates.892
The question, then, of categorising piracy under international law was answered by the
drafters in the following way:
‘International law piracy is only a special ground of state jurisdiction – of
jurisdiction in every state…it is the basis of an extraordinary jurisdiction in
every state to seize and to prosecute and punish persons, and to seize and
dispose of property, for factual offences which are committed outside the
territorial and other ordinary jurisdiction of the prosecuting state and which
do not involve attacks on its peculiar interests.’893
Rubin also commented that this jurisprudential basis followed a positivist view.894 He noted
that this conclusion was founded per argumentative secondary analyses, much of which
was undertaken by scholars who did not seem to do much primary research either.895 Be
that as it may, the draft articles itself, for example: article 3, which outlines the definition,
has been seen as the ‘recognizable ancestor’896 of the definition enshrined in UNCLOS, as
documented earlier. An analysis of some of the key provisions of the draft is therefore an
important exercise for the purposes of this study.
889
Rubin (1988) at 310.
Idem.
891
Idem at 310-311.
892
Harvard University Draft (1932) at 760.
893
Idem at 759-760.
894
Rubin (1988) at 311.
895
Idem.
896
In the words of Menefee (1995) at 3.
890
175
4.4
Key provisions
The drafters prepared a draft convention consisting of nineteen articles, each accompanied
by a commentary. For the sake of completeness, the full text of the draft convention is
appended et seq. The key provisions relating to the definition and jurisdiction are presented
below:
4.4.1
Article 2 states ‘Every state has jurisdiction to prevent piracy and to seize
and punish persons and to seize and dispose of property because of piracy.
This jurisdiction is defined and limited by this convention.’
The article above outlines the common jurisdiction and confines it within the limits of the
draft convention. It provides the framework for the special basis of jurisdiction, namely
universal jurisdiction.
4.4.2. Article 3 provides: ‘Piracy is any of the following acts, committed in a
place not within the territorial jurisdiction of any state:
1.
Any act of violence or of depredation committed with intent to
rob, rape, wound, enslave, imprison or kill a person or with intent
to steal or destroy property, for private ends without bona fide
purpose of asserting a claim of right, provided that the act is
connected with an attack on or from the sea or in or from the air.
If the act is connected with an attack which starts from on board
ship, either that ship or another ship which is involved must be a
pirate ship or a ship without national character.
2.
Any act of voluntary participation in the operation of a ship with
knowledge of facts, which make it a pirate ship.
3.
Any act of instigation or of intentional facilitation of an act
described in paragraph 1 or paragraph 2 of this article.’
These three subsections are not a core focus of the present study, but there are some points
raised by the drafters pertaining to the locus which will be collated and emphasised here.
They cite two prominent writers in international law, Oppenheim897 and Wheaton.898 as
authorities on the view that piracy can only be committed on the high seas. Oppenheim’s
Cited at 789: ‘Piracy as an 'international crime' can be committed on the open sea only. Piracy in
territorial coast waters has as little to do with International Law as other robberies within the territory
of a State. Some writers maintain that piracy need not necessarily be committed on the open sea, but
that it suffices that the respective acts of violence are committed by descent from the open sea. They
maintain, therefore, that if a body of pirates land on an island unappropriated by a civilized Power,
and rob and murder a trader who may be carrying on commerce there with the savage inhabitants,
they are guilty of a crime possessing all the marks of commonplace professional piracy. With this
opinion I cannot agree. Piracy is, and always has been, a crime against the safety of traffic on the
open sea, and therefore it cannot be committed anywhere else than on the open sea.’
898
Cited at 789: ‘To constitute piracy jure gentium it is necessary, 1st, That the offence, being
adequate in degree – for instance, robbery, destruction by fire, or other injury to persons or property
–must be committed on the high seas, and not within the territorial jurisdiction of any nation.’
897
176
view was that piracy has always been a crime against the safety of traffic on the open sea.
Furthermore, he disagrees that piracy could be committed by descent from the open seas.
At face value, his reference to piracy as a crime contradicts the premise of the draft referred
to above, and moreover, it is not apparent that the term ‘open seas’ is synonymous with
‘high seas.’ His rejection of the view that piracy could be committed by descent from the
high seas is contradicted by another writer, cited by the drafters, Hall, who stated:
‘[P]iracy may be said to consist in acts of violence done upon the ocean or
unappropriated lands, or within the territory of the state through descent from
the sea, by a body of men acting independently of any politically organised
society’.899
Evidently included as an afterthought, the drafters state within the commentary of that
section:
‘In some parts of the world, where it is peculiarly difficult to suppress violence
and depredation against commerce in territorial waters, special agreements
providing for concurrent police jurisdiction may be needed (See Articles 17
and 18). These special cases, of course, cannot be covered by a draft
convention designed for general adoption.’900
The type of scenario above – where there are difficulties in suppressing violence in
territorial waters – envisaged by the drafters in this comment is indeed inclusive of the
present-day piracy as analysed in the second chapter of this thesis. It is common and
widespread, and is proposed not as being special cases, but rather existing as an inherent
characteristic of contemporary piracy. The argument advanced by this thesis is that it is
possible to extend such concurrent police jurisdiction to amend the existing framework for
general adoption. The limitation of the definition of piracy to a place not within the
territorial jurisdiction of any state by the drafters was based on a brief selection of quotes
from writers of international law, with the drafters further admitting that this article is the
most important and difficult one of the draft convention. Akin to the introductory
comments, they seem to go to great lengths to mention how ‘instead of a single relatively
simple problem, there are a series of difficult problems which have occasioned a great
diversity of professional opinion’.901 Even though there has been such a diversity of
899
Cited at 789.
Harvard University Draft (1932) at 790.
901
Idem 769. They go on to emphasise once again: ‘In studying the content of the 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 which have been proposed,
900
177
professional opinion, the drafters attempt no further synthesis or analysis of these
contradictory views or interrogation of the primary sources referred to. It is proposed that
this constitutes a significant shortcoming in the work of the drafters, and the overall
probative value of the commentary.
4.4.3
Article 6 provides: ‘In a place not within the territorial jurisdiction of
another state, a state may seize a pirate ship or a ship taken by piracy and
possessed by pirates, and things or persons on board.’
The commentary on this article is sparse. The article proposes that enforcement jurisdiction
could be exercised in two realms, namely: outside the jurisdiction of another state – the
high seas, and in the territorial waters of the seizing state.
4.4.4.
Article 7 provides (emphasis added):
‘1.
In a place within the territorial jurisdiction of another state, a state
may not pursue or seize a pirate ship or a ship taken by piracy and
possessed by pirates; except that if pursuit of such a ship is
commenced by a state within its own territorial jurisdiction or in a
place not within the territorial jurisdiction of any state, the pursuit
may be continued into or over the territorial sea of another state
and seizure may be made there, unless prohibited by the other
state.
2.
If a seizure is made within the territorial jurisdiction of another
state in accordance with the provisions of paragraph 1 of this
article, the state making the seizure shall give prompt notice to the
other state, and shall tender possession of the ship and other things
seized and the custody of persons seized.
3.
If the tender provided for in paragraph 2 of this article is not
accepted, the state making the seizure may proceed as if the
seizure had been made on the high sea.’
The architecture of article 7(1) outlines, first, the general rule that enforcement jurisdiction
cannot take place in the jurisdiction of another state, and goes on to provide that an
exception to this rule occurs where there is a ‘reverse hot pursuit’ scenario, wherein pursuit
commenced in the high seas or in the territorial sea of the pursuing state. Once there is such
an instance, as highlighted by the use of language within the provision, there is no limitation
on the authority of the pursuing state – the rights exercised would be the same as if on the
high seas. This authority is described by the drafters as a ‘special privilege and power’.902
The provision shifts the burden to the territorial sovereign to prohibit such a pursuit. Article
most are inaccurate, both as to what they literally include and as to what they omit. Some are only
impromptu, rough descriptions of a typical piracy.’ (my emphasis).
902
Idem at 832.
178
7(1) is similar to article V of the Matsuda draft discussed above. In this context, it is useful
to reiterate Matsuda’s comment that it would be ‘reasonable to assume that the Government
tacitly consents if it is not in a position to continue the pursuit successfully’.903 The drafters
state, however, that professional opinion is not uniform on the subject matter of this
article.904
When considered against present day piracy, the usefulness of this provision becomes
apparent: it is deferential to the rights of the territorial sovereign, and contains an element
of notification seen in article 7(2). Read together with articles 8905 and 9,906 there is evidence
of protection of the coastal state’s sovereignty through the provision of damages and
reparations for abuses of power. More importantly, it allows for the exercising of
emergency rights of pursuit into foreign territories, which, if hindered by an absolute
deference to the sovereign rights of the coastal state, could result in the suspects eluding
pursuers with significant adverse consequences to the security of international commerce
through the merchant marine.
4.5
Summative remarks
It was evident, even within the text of the draft itself, that the draft cannot be evaluated as
a codification or a legal analysis of customary law, judicial precedents, and state practice
together with a collation of academic commentary. However, notwithstanding the
shortcomings of the draft which were pointed out by Rubin in the aforementioned
paragraphs, for the purposes of this study, the draft has some value when it is evaluated as
an innovative legislative proposal. The Harvard University draft is often viewed in
academic scholarship and commentary as a precursor to the current legal framework, but,
apart from an analysis by Rubin, has received little scrutiny of the draft provisions
themselves. It is proposed that articles 7 to 9, building on the work of the Matsuda draft,
can be adapted to apply to present-day piracy. This will be revisited in the concluding
903
Publications of the League of Nations (1926) at 3.
They caution (at 833) that: ‘Some writers assert that the law of nations authorizes the pursuit of
pirates into foreign territorial waters, at least if the littoral state has not a force at hand to make the
capture and does not prohibit the pursuit. Some argue that the pursuit is legal even against the protest
of the littoral state. Although in some cases war ships have pursued and captured pirates in foreign
territorial waters, there is no determining precedent on the matter.’
905
This article provides that: ‘If a pursuit is continued or a seizure is made within the territorial
jurisdiction of another state in accordance with the provisions of paragraph 1 of Article 7, the state
continuing the pursuit or making the seizure is liable to the other state for any damage done by the
pursuing ship, other than damage done to the pirate ship or the ship possessed by pirates, or to
persons and things on board.’
906
This article provides that: ‘If a seizure because of piracy is made by a state in violation of the
jurisdiction of another state, the state making the seizure shall, upon the demand of the other state,
surrender or release the ship, things and persons seized, and shall make appropriate reparation.’
904
179
chapter of this thesis.
V. THE WORK OF THE INTERNATIONAL LAW COMMISSION (1955-56)
5.1.
Background
A statute was adopted by the United Nations General Assembly in 1947 which established
the International Law Commission (ILC) in order to undertake the mandate of the
Assembly under article 13(1)(a) of the Charter of the United Nations to ‘initiate studies and
make recommendations for the purpose of ... encouraging the progressive development of
international law and its codification’.907 The commission consisted of 34 experts in the
field of public international law.908 In 1954, as pursuant to Resolution 899 (XI)909 of the
UN General Assembly, the ILC was mandated to prepare a text that would form the
framework for an international agreement on the law of the sea.910 Later that year, a text
prepared by Dutch Rapporteur J.P.A. François, entitled ‘Regime of the High Seas’, was
published containing six articles pertaining to piracy.911 The text, produced in French, was
essentially a translation of the Harvard University draft articles.912
5.2.
The working drafts of the ILC
At its 290th meeting on 12 May 1955, the ILC began its discussion of the text by François.913
Rubin summarized the mood at the time: ‘it was apparent from the very beginning that the
word piracy had such an overlay of emotion and conflicting meaning that many political
compromises would have to be made’.914 A discussion was opened to debate article 23 of
the François text. As a special Rapporteur, François relied heavily on the work of the
Harvard University researchers. As mentioned earlier, article 23 is a reproduction of article
3 of the Harvard University draft, which contained the definition of piracy. François
mentioned that the article is founded on three important principles: (i) animus furandi did
not have to be present; (ii) only acts committed on the high seas could be described as
piracy; (iii) acts of piracy were necessarily acts committed by one ship against another ship
907
See the website of the Commission: http://legal.un.org/ilc/.
See article 2(1) of the Statute of the ILC.
909
United Nations, General Assembly, G.A. Res. 899 (IX), U.N. Doc. A/RES/899 (IX) (14
December 1954) at par. 2.
910
See, also, Geiß and Petrig (2011) at 39; Kraska (2011) at 117.
911
Yearbook of the International Law Commission 1954(2) Sixth session, Doc. A/CN.4/79 (for
convenience, referred to as the François text).
912
Geiß and Petrig (2011) at 39.
913
The record of the meeting is contained in the Yearbook of the International Law Commission
(1955) 1 at 37. Doc. A/CN.4/SR.209.
914
Rubin (1988) at 320.
908
180
– ruling out acts committed on board a single vessel.915 The second principle or element is
relevant for the purposes of this discussion. In four short paragraphs, he indicates that the
element of the high seas’ limitation was the view adopted by the Harvard University draft,
and that it has been followed by the majority of states and writers.916 He cites the Harvard
drafters’ reference to Oppenheim,917 and the dissenting view of Hall.918 The last comment
made by François was an interpretation of the words “territorial jurisdiction”, which he
emphasised were to be ‘construed in their narrowest sense as comprising the land territory,
the inland waters, and the territorial sea of a State, but not ships flying the flag of that
State’.919
The discussion of the Harvard University draft has shown conclusively that it could not
exist as a codification of existing jurisprudence due to the diversity of academic opinion
and state practice. The draft, rather, was evaluated as an innovative legislative proposal de
lege ferenda. François’ attempt to present a codification was therefore hindered due to his
exclusive reliance on this draft without caveats or further commentary – a perusal of the
minutes contained in the report reveals that the commissioners presented clear reservations.
Some were directed at the second principle relating to the high seas’ limitation and the
restrictiveness of some aspects of the Harvard University draft:
Mr Liang (secretary to the commission) noted that Professor Bingham, the principal drafter,
‘considered piracy only in relation to the jurisdiction of States on the high seas; it had not
been his intention to study piracy as a crime against the law of nations, or to report on
international criminal law’.920 The recorded minutes exhibited the view of Mr Scelle of
France, who:
‘deplored the tendency to formalism. He would be unable to support a
provision defining piracy by reference to jurisdiction and not the nature of the
act. Article 23 as at present drafted was based on a methodological error.
According to such a text the Barbary corsairs would not have been pirates,
because their acts had been committed on land.’921
915
The record of the meeting is contained in the Yearbook of the International Law Commission
(1955) 1 at 37, Doc. A/CN.4/SR.209 at 39, par. 32.
916
Idem at 41, par. 48.
917
Harvard Draft (1932) 790.
918
The record of the meeting is contained in the Yearbook of the International Law Commission
(1955) 1 at 37. Doc. A/CN.4/SR.209.
919
The record of the meeting is contained in the Yearbook of the International Law Commission
(1955) 1 at 37, Doc. A/CN.4/SR.290 at 41, par. 51.
920
Idem at 41, par. 58.
921
Idem at 43, par. 70.
181
Regrettably, it seems that Mr Scelle’s thesis was circumvented at the meeting:
‘Mr. Scelle, in his keen concern to establish an international police, considered
that acts committed on land should be treated on the same footing as acts
committed on the high seas, thereby departing from the doctrine held by most
authorities whereby States could only take steps against acts of piracy
committed on the high seas. The acceptance of the new idea propounded by
Mr Scelle would only serve to complicate the issue.’922
François then presented a redrafted working document, which was subsequently discussed
at the ILC’s 292th meeting on 16 May 1955.923 The relevant extract from his revised article
23 reads as follows:
‘Piracy in the sense of these rules is any act of violence or depredation,
committed for private ends by the crews or the passengers of a private vessel
against another vessel on the high seas, with intent to rob, rape, wound,
enslave, imprison or kill a person, or with intent to steal or destroy
property’.924
The enforcement provision is contained in article 26 of his redraft.925 Swedish
commissioner, Mr A.E.F. Sandström, immediately made a counterproposal, the relevant
extracts of which are as follows:
Article 23
‘1.
Any State may seize on the high seas a ship on or from which an act
of piracy has been committed or which is intended for piracy (pirate ship) and
possessed by pirates, the ship or ships taken by the pirates and the persons or
things on board the ships’.
Article 24
‘For the purposes of the present rules, piracy shall be understood to mean: "(a)
Any act of violence or depredation committed with intent to rob, wound,
enslave, imprison, or kill, or with intent to steal or destroy property, and
undertaken by private persons for private (non-political) ends, provided that
922
Idem at 43, par. 79.
The record of the meeting is contained in the Yearbook of the International Law Commission
(1955) 1 at 51, Doc. A/CN.4/SR.292.
924
Idem at 51, par. 4 (with my emphasis).
925
The article provides: ‘Every State may seize by its public vessels, in a place not within the
territorial jurisdiction of another State, ships committing acts of piracy, and things or persons on
board. The State may exercise jurisdiction over them.’
923
182
such act is connected with an attack at sea or an attack on land made from a
pirate ship”’.926
François observed that the main difference between his draft and Sandström’s proposal was
that the latter proposed to include, within the definition of piracy, attacks by pirates on a
coast.927 This can be interpreted to read as an attack within the territory of a state. Sir Gerald
Fitzmaurice also suggested incorporating areas that are res nullius (such as certain islands)
as places that are not within the territorial jurisdiction of a state.928
In responding to this contradictory view, François indicated that there were three schools
of thought on this issue:
(i)
first, piracy could only take place on the high seas;
(ii)
second, piracy could only occur in a place not within the territorial
jurisdiction of any State, a definition which included not only the high seas,
but also unoccupied lands such as had been mentioned by Sir Gerald
Fitzmaurice;
(iii)
third, a view held by few writers of international law, W. E. Hall, for
example, was that piracy could consist of acts of violence within the
territory of a state after descent from the sea.929
François contends that ‘the Harvard report, together with whole weight of jurisprudence,
was in favour of the limitation embodied in his own revised draft’.930 It is proposed that
this view had been misconstrued, given the earlier discussion about the diversity of
academic opinion on the subject. François does not furnish any citations to cases or
accepted legal principles which could apply by analogy. The three views listed above are
what were envisaged at the time, but, in keeping with the trends of contemporary piracy, a
fourth view, broadly related to the third view above, could have been posed, namely where
piracy is committed solely within the territory of the coastal state against international
commercial shipping which transited those waters.
Sandström, supported by Scelle, argued in support of the third view, as was minuted:
926
Yearbook of the International Law Commission 1(1955) 51. Doc. A/CN.4/SR.292 at 52, par. 6
(with my emphasis).
927
Idem at 52, par. 9.
928
Idem at 52, par. 12.
929
Idem at 52, par. 13.
930
Idem at 53, par. 14.
183
‘Mr. SANDSTROM said that in drafting his text he had had more in mind the
Commission's duty to promote the progressive development of international
law rather than its codification, and found it inadmissible that a warship
meeting a pirate vessel on the high seas should be obliged to refrain from
seizure because the act of piracy had been committed in territorial waters or
on land.’931
The process undertaken by the committee would be to vote on the principles and then
appoint a drafting committee to prepare a final text.932 Sandström’s text was put to a vote
and was rejected by six votes to four, with one abstention. This meeting also debated other
aspects of article 23, which have not been reproduced and analysed here as it is not essential
to the present research focus of this thesis. However, it is worth noting that the entire
meeting lasted a total of two hours and the agenda was complex. Through a voting process,
the views of François were adopted, without effectively engaging with the concerns of
Sandström and Scelle in that both that meeting, and the preceding 290th meeting. The
opportunity to carefully scrutinise the locus of piracy and all considerations that acts of
piracy could occur within territorial waters was circumvented in a setting that resembled a
legislative session rather than a codification process.
5.3
Culmination of the work of the ILC
The ILC held its seventh session in Geneva from 2 May to 8 July 1955. The report of the
ILC covering its work during this session contained a chapter relating to the regime of the
high seas, which was a product of the drafting committee.933 The report contained eight
articles devoted to piracy. It is in these articles, that the genesis of the present UNCLOS
provisions emerged. The relevant provisions are reproduced here:
Article 13
‘All States shall co-operate to the fullest possible extent in the repression of
Idem at 53, par. 16. Mr Zourek (at par. 18) queried whether ‘the Special Rapporteur excluded
from his definition of piracy attacks made on the coast by vessels descending from the high seas.
The consequence of such a limitation would be that once those vessels had returned to the high seas
they could not be pursued.’ François replied by saying (at par. 19): ‘unless pursuit had started in the
territorial sea, once the vessel had reached the high seas nothing could be done’.
932
Idem at 52, par. 10.
933
Doc. A/2934: Report of the International Law Commission covering the work of its seventh
session, 2 May – 8 July 1955.
931
184
piracy on the high seas.’
Despite the peremptory language contained in this article, especially by the use of the word
‘shall’, the commentary notes that ‘the state must be allowed a certain latitude as to the
measures it should take to this end in any individual instance’.934 Critical to this analysis is
the definition of piracy, which has been recorded in the next article as follows (emphasis
added):
Article 14
‘Piracy is any of the following acts:
1.
Any illegal act of violence, detention, or any act of depredation
directed against persons or property and committed for private ends
by the crew or the passengers of a private vessel or a private aircraft:
(a)
Against a vessel on the high seas other than that on which
the act is committed, or
(b)
Against vessels, persons or property in territory outside the
jurisdiction of any State.
2.
Any act of voluntary participation in the operation of a ship or of an
aircraft with knowledge of facts which make the ship or aircraft a
pirate ship or aircraft.
3.
Any act of incitement or of intentional facilitation of an act
described in paragraph 1 or paragraph 2 of this article.’
What is immediately evident from this article is the substantial deviation from the text of
the original Harvard University draft, and the working drafts by François. There are no
published records of the reasons or rationale behind the changes. The commission
considered six controversial elements, as cited in the preceding pages of this chapter.935
The element which needs to be restated here is that ‘piracy can be committed only in the
high seas or in a place outside the territorial jurisdiction of any State, and cannot be
committed within the territory of a State or in its territorial sea’.936 In relation to this
element, the commission recorded the following short commentary:
‘[T]he Commission considers, despite certain dissenting opinions, that where
934
Idem at 25.
See the text accompanying fn 19 supra.
936
Doc. A/2934: Report of the International Law Commission covering the work of its seventh
session, 2 May–8 July 1955 at 25.
935
185
the attack takes place within the territory of a State, including its territorial
sea, the general rule should be applied that it is a matter for the State affected
to take the necessary measures for the repression of the acts committed within
its territory. In this the Commission is also following the line taken by most
writers on the subject.’937
Some issues emerge from this commentary that remain open to question, namely, whether
there was a discussion on the extent of such dissenting opinions (as outlined in the previous
chapter of this thesis).938 Furthermore, in light of the commentary of the Harvard
researchers, the exclusive reliance on ‘the line taken by most writers on the subject’,
without published evidence of a probative analysis, is superficial. Whilst provision is made
for cooperation in the repression of piracy on the high seas,939 there is no corresponding
provision made for cooperative measures in the territorial sea under this framework, the
scenario under consideration being where a state, acting pursuant to this framework,
engages a vessel suspected of committing piracy and makes a seizure in the territory of a
foreign state with the consent and cooperation of that state. Under this framework, would
a state be required to exercise enforcement jurisdiction without any foreign assistance? This
lacuna in the conceptual framework would result in a scenario where a flotilla of foreign
naval forces could cooperate and coordinate naval interdiction measures effectively on the
high seas and within the exclusive economic zone, but the coastal sovereign would be
solely responsible for repressing piracy against international commercial shipping in its
waters.
Article 18 contains enforcement jurisdiction provisions, and universal jurisdiction was
limited to the high seas or in a place outside the jurisdiction of any state.940 The provision
is replicated in the present article 105 of UNCLOS.
This draft and commentary were distributed to governments by the ILC for further
discussion, and their responses considered by the commission at its 343rd meeting on 9 May
937
Idem.
See, for example, the case of People v Lol-Lo and Saraw (1922) referred to in chapter 3.
939
See article 13, cited in the text supra.
940
The article provided (with my emphasis): ‘On the high seas or in any other place not within the
territorial jurisdiction of another State, any State may seize a pirate ship or aircraft or a ship taken
by piracy and under the control of pirates, and property or persons on board. The courts of that state
may decide upon the penalties to be imposed, and determine the action to be taken with regard to
the property, subject to rights of third parties acting in good faith.’
938
186
1956.941 In the minutes of the meeting, regarding article 13, Mr Radhabinod Pal asked
whether, if the proposal was adopted, ‘a State in whose territorial waters an act of piracy
was committed would allow vessels of another State to intervene’.942 To this question, the
Chairman pointed out ‘that an essential condition of piracy was that it should be committed
outside the jurisdiction of any State. A vessel so captured would be subject to the
jurisdiction of the State of the vessel effecting the capture.’943 This response is another
instance of the presumption of state capacity in exercising enforcement jurisdiction within
its waters, and, as one Commissioner reaffirmed, ‘international co-operation could be
ensured only on the high seas’.944 Mr Sandström, whose suggestions were outvoted in
previous sessions, once again urged that ‘it was surely an obligation of States to suppress
piracy wherever it was committed’.945 It is worth noting Rubin’s observation that the bulk
of the Commission’s energy was spent discussing the desirability of including aircraft
within the definition.946 Taking into consideration the responses from governments, the ILC
adopted a final text and commentary at its eighth session in 1956, as articles 38 to 45.947
VI. THE FIRST UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA (1958) AND THE
BUILD UP TO UNCLOS (1982)
6.1
Convention on the High Seas of 1958
In 1957, the United Nations General Assembly decided to convene a conference on the law
of the sea.948 The conference, with participants from 86 states, was held in Geneva and
commenced on 24 February 1958, and ended nine weeks later in the late hours of 27 April
1958. It became apparent from the deliberations that piracy did not receive much attention.
Contextually, during this period, piracy was seen as a historical curiosity, and, to this end,
at the 11th meeting of the conference on 17 March 1958, this following was raised:
‘Although the experience of recent years had shown that piracy was by no
means a thing of the past, the Czechoslovak delegation considered that the
provisions concerning piracy in the draft articles occupied a disproportionate
941
343rd Meeting, Wednesday, 9 May 1956. Chairman: Mr F.V. Garcia-Amador; Rapporteur: Mr
J.P.A. François, reported in the Yearbook of the International Law Commission 1 (1956) at 45.
942
Idem at 46.
943
Idem.
944
Idem.
945
Idem.
946
Rubin (1988) at 332.
947
The report appears in Yearbook of the International Law Commission 2 (1956) at 282-283. The
definition of piracy appears in article 39.
948
United Nations, General Assembly, G.A. Res 1105 (XI), U.N. Doc. A/RES/1105 (XI) (21
February 1957).
187
amount of space.’949
Moreover, other delegates further supported this view. At the 27th meeting on 27 April
1958, there was a consideration of the draft articles adopted by the ILC. Uruguay proposed:
‘[T]he deletion in toto of articles 38 to 45 because piracy no longer constituted
a general problem, and its suppression was already the subject of numerous
international treaties with which the Commission’s articles might conflict’.950
Against this context, Czechoslovakia proposed that the entire regime pertaining to piracy
be reduced to a single article in the following terms:
‘All States are bound to take proceedings against and to punish acts of piracy,
as defined by present international law, and to co-operate to the fullest
possible extent in the repression of piracy.’951
Were this proposal adopted, it would have meant the entire corpus of piracy jurisprudence,
conflicting and convoluted though it may have been, being reduced to a single article.
Fundamental statutory interpretation rules would immediately reveal patent flaws in the
architecture of this article, for example: where multiple states are involved in the seizure
of suspects, which penal code would be applied? Furthermore, the article defines piracy by
referencing the ‘present international law’, meaning customary international law. The
comprehensive analysis conducted during the preceding chapter, and in the course of this
chapter, has shown that there was no standard definition for piracy under customary
international law. In relation to the context of the present discussion, this article makes no
mention of the locus of piracy. Although it could be argued that the locus could be
ascertained by reference to customary international law, the delegates proposing this article
stated that the ILC was mistaken in excluding attacks made in the territorial sea. It is useful
to reproduce their submission concerning this proposed article (emphasis added):
‘Mr. CERVENKA … pointed out that the definition of piracy in article 39 of
the Commission’s draft did not accord with existing rules of international law
949
United Nations Conferences on the Law of the Sea: Official Records 4-5 (1980) at 25. This
volume covered the work of the second committee (High Seas: General Regime).
950
Idem at 78. The Romanian delegation (at 78-79) supported this view, and ‘considered that the
International Law Commission had been mistaken in devoting so many articles to piracy, which was
no longer a very real problem. He had therefore been impressed by the Uruguayan representative’s
argument. States could be relied upon to take the necessary steps for protecting navigation on the
high seas.’ It is noteworthy that the delegation also based their assertions on the concept of state
capacity.
951
Idem at 128. Doc. A/CONF.13/C.2/L.46 (12 March 1958). This was a joint proposal by Albania
and Czechoslovakia.
188
and failed to enumerate all the categories of acts which in theory and practice
were encompassed by that concept. Furthermore, the definition erroneously
included acts committed on terra nullius, and was equally mistaken in
excluding attacks made in the territorial sea or on the mainland made by
vessels coming from the high seas and afterwards escaping thither … In fact,
the notion of piracy put forward in articles 39 to 42 was an obsolete one, and
no attempt had been made to legislate for the dangerous forms which it could
take in the present time. Though it would have been desirable to elaborate on
a new definition, his delegation realized that it would be impossible in the time
available’.952
From this comment, it is evident that delegates considered that a progressive development
of the law would be required instead of a codification of existing law. The dynamics of
these meetings are also evident, where time constraints placed a restriction on engaging in
a deeper analysis – the reference to attacks committed in territorial waters was not debated
further.
The streamlined proposal above did not prevail, but the ILC’s draft provisions itself did not
receive any extensive discussion either. Ultimately, the ILC draft, in an amended form, was
inserted into the Geneva Convention on the High Seas of 29 April 1958. They appeared as
articles 14 to 21.953
6.2
The United Nations Convention on the Law of the Sea, 1982 (UNCLOS)
UNCLOS was the culmination of the third United Nations Conference on the Law of the
Sea, held between 1973 and 1982 (UNCLOS III). The articles adopted at the 1958 Geneva
Conference were inserted with unexplained minor changes into UNCLOS and appear in
that Convention as articles 100-107, as presented in section 1.2 of the opening pages of this
chapter. Geiß and Petrig observe that there is widespread agreement that the piracy regime
contained in UNCLOS reflects customary international law in the present day.954 In article
101, which contains the definition of piracy, the requirement in subparagraphs (a)(i) and
(ii) – that piracy take place on the ‘high seas’ or ‘in a place outside the jurisdiction of any
State’ – excludes foreign action within the territorial sea of a state. At the conference, this
provision found its basis in article 39 of the ILC draft article and endorsed its commentary.
952
Idem at 78.
These articles are reproduced et seq in the appendix.
954
Geiß and Petrig (2011) at 41. See, also, Nandan and Rosenne (eds) United Nations Convention
on the Law of the Sea 1982: A commentary 3 (1995) at 197, where the commentary to article 101
(definition) states that this is a general definition under public international law.
953
189
There was no further interpretation at UNCLOS III.955 At the 1971 session of the Sea-Bed
Committee, Malta made a proposal regarding the wording of article 101, which read
(emphasis added):
‘Piracy consists of any of the following acts:
(a)
Any illegal acts of violence, detention or any act of depredation
committed by the crew or passengers of a private vessel or private
aircraft, and directed anywhere in ocean space or in the superjacent
atmosphere against another vessel or aircraft, or against persons or
property on board such vessel or aircraft’.956
This provision was not adopted, however. It is worth noting that this broadened the scope
of the provision to apply to all areas on or above the sea, or on the seabed beyond internal
waters.957
This lack of further analysis of the piracy provisions of UNCLOS III could be explained in
relation to the decline of pirate activity in the Mid-Twentieth Century, resulting in piracy
being disregarded as an acute or potential threat. Under the present regime, therefore, piracy
jure gentium cannot be committed in the territorial sea of a state and universal enforcement
jurisdiction does not apply in this realm.
VII. CONCLUDING REMARKS AND SUMMARY OF KEY FINDINGS
The Security Council, in all their resolution relating to the suppression of piracy off the
coast of Somalia, explicitly affirms that: ‘international law, as reflected in the United
Nations Convention on the Law of the Sea of 10 December 1982 (UNCLOS), sets out the
legal framework applicable to combatting piracy and armed robbery at sea’.958 Having
outlined said framework in this chapter, it was argued that this framework was restrictive,
the relative geographical limitations of the articles being highlighted and placed in context.
The high seas’ limitation placed a restriction on the exercise of universal enforcement
jurisdiction within territorial seas. The restriction came to the fore in the fight against piracy
off the coast of Somalia and the waters of the western Indian Ocean. It was shown how this
framework relies on the presumption that a state, left to its own devices, is capable of
combatting piracy committed against international commercial shipping in their territorial
955
See Nandan and Rosenne (1995) at 201.
A/AC. 138/53, article 18, reproduced in SBC Report 1971, at 105, 123 (Malta), and cited in
Nandan and Rosenne (1995) at 197.
957
Idem at 198.
958
See, for example, S.C. Res. 1916, preambular par. 4.
956
190
sea, and was based on a respect for the territorial sovereignty of the coastal state. It was
further argued that contemporary writers did not see the high seas’ limitation as an area of
contention – this chapter rejects that view.
This chapter sought to ascertain how this conceptual framework arose, and to understand
how this limitation developed during the codification process. A critical survey of the
drafting history of the codification process of the piracy regime was undertaken in a
chronological order, surveying the attempts of the League of Nations, the Harvard
University research in international law, the International Law Commission, the Geneva
Convention on the High Seas of 1958, and the UNCLOS in 1982. In traversing each of
these codification attempts, the present researcher tracked the issue of the high seas’
limitation and analysed the deliberations at each stage.
It was proposed that the Matsuda Draft was the first drafting attempt, but that it had no link
to the enormous corpus of piracy jurisprudence set out in the previous chapter of this thesis.
Some useful articles relating to the hot pursuit in the territorial seas were highlighted,
which, if adopted into the current framework, would have assisted in the fight against
contemporary piracy. The Harvard University research draft carried this pioneering
codification work further, and was supported by a voluminous commentary. A review of
this commentary demonstrated, however, that the historical and jurisprudential principles
upon which the draft rested were based on a deficient analysis of the historical position,
and could not be regarded as a codification of customary international law. The provisions
relating to pursuit and seizure in territorial waters, particularly within article 7, similar to
the Matsuda draft, were seen as particularly useful in the present context.
It was found that these useful provisions were not carried over into the codification process
undertaken by the ILC. No explanation in published minutes or reports were given
regarding the deliberations to remove these useful provisions from the framework. This is
seen as a significant shortcoming in the development of the framework, and has not been
the subject of scrutiny within any of the present scholarship and academic commentary.
Accordingly, this chapter has highlighted the gap in developing piracy jurisprudence by
considering deliberations in the codification attempts, which have not been revisited in
recent scholarship, especially in light of the circumstances of present-day piracy.
Furthermore, a detailed review of the work of the ILC, Geneva Convention, and UNCLOS
III revealed that, at each stage, commissioners raised queries about the high seas’ limitation
191
and these queries, without a substantive or probative analysis, were rejected in the process.
Holistically, the process failed, as Rubin describes:
‘The International Law Commission failed throughout its deliberations
concerning article 14 to focus on the evolving patterns of jurisprudential
thought and political and economic activity that lay behind the writings of
some of the Commissioners seem to have found persuasive; that instead
primary reliance for background information was placed on the Harvard
Research.’959
Rubin also makes an apt observation: ‘the final version appears to be at least as much the
product of exhaustion and the dynamics of a group drafting committee as of logic or a
knowledge of jurisprudent and history’.960 The dearth of incidents of both piracy and
scholarship on the subject during the mid Twentieth Century also significantly contributed
to deliberations, whereby the relevance of even inserting piracy rules in the codification
process of the international law of the sea was doubted at the time. The work of the ILC,
Geneva Convention, and UNCLOS III contained no substantive commentary on the high
seas’ limitation and ultimately placed its foundation on the Harvard University research
draft, which was flawed.
Ultimately, this chapter reveals that the present framework contained in UNCLOS was
premised on a hollow foundation, and suggests that some of the provisions identified in the
Matsuda and Harvard University drafts could be adapted and incorporated in an amended
UNCLOS framework, which would assist the fight against piracy in the present day. The
final chapter of this thesis will recommend a redrafted UNCLOS provision in the light of
both these findings, and the findings concerning sovereignty in the previous chapter. This
redrafted provision will argue for the inclusion of territorial waters applying to the
international framework, thereby making a distinctive contribution to the ongoing
deliberations on piracy law.
In the following chapter, this framework will be presented with relation to African context,
and will be undertaken in two parts. First, the effect of the resolutions to combat piracy
passed by the United Nations Security Council off the coast of Somalia, as well as its
implication on the high seas’ limitation of UNCLOS will be considered. Second, the
national application of this international framework will be reviewed against the South
959
960
Rubin (1988) at 333.
Idem.
192
African legal system, with a comparison of Kenyan domestic prosecution cases and
framework.
193
V
___________
LEGAL FRAMEWORKS APPLICABLE TO THE EAST AFRICAN SEABOARD
“You cannot control what you cannot patrol”961
I.
1.1
INTRODUCTION
Prefatory
Having adumbrated the nature and extent of piracy and armed robbery committed off the
east African seaboard in the second chapter, and having set out a probative analysis of the
origins, development and present state of the international framework to combat piracy,
this chapter now considers the application of the various legal frameworks to the east
African seaboard in this context. The chapter traverses in detail the international responses,
continental and regional initiatives as well as municipal approaches to combating piracy in
the region. In the second chapter, the statistical analysis revealed that piratical acts do occur
in territorial waters and this fact is the stimulus that underscores references in the course of
this chapter to the notion of universal enforcement jurisdiction within territorial waters of
coastal states.
1.2
Flow of the chapter
This chapter is presented in three broad parts:
1.2.1
The first part commences with a discussion of international and regional responses
applicable to the east African seaboard due to the circumstances of piracy set out
in the second chapter. As was discussed in the introductory chapter, a key provision
in the international framework is article 105 of UNCLOS. For ease of reference,
this article is briefly outlined and divided into its constituent elements: The first
element of the article provides: ‘On the high seas, or in any other place outside the
jurisdiction of any State’. This element unambiguously restricts enforcement
measures, as outlined in the next element, to the realm of the high seas and the
exclusive economic zone (EEZ), and prevents action from being taken in territorial
waters. The second element of the article states: ‘every State may seize a pirate
ship … or a ship … taken by piracy and under the control of pirates, and arrest the
961
Cited in Kings ‘SA all at sea over illegal fishing’ Mail and Guardian (20 May 2016) at 8.
194
persons and seize the property on board’. This is the clause that makes provision
for universal jurisdiction and details that enforcement measures must be carried
out by individual states. The third element provides: ‘The courts of the State which
carried out the seizure may decide upon the penalties to be imposed, and may also
determine the action to be taken with regard to the ships … or property, subject to
the rights of third parties acting in good faith.’ Here, it is proposed that a
discretionary power must be held by states to prosecute the suspects according to
the domestic law of the capturing state. There is some debate as to whether this
clause vests this power exclusively with the capturing state. Roach presents the
state of affairs with regard to prosecution in the following way:
‘Traditionally, pirates have been held accountable through prosecution in
national courts. At present, no treaty expressly requires states to
criminalize piracy, no agreement has been reached on what such laws
should contain, and no international court has jurisdiction to try pirates.’962
This section considers the application of this enforcement regime in light of the
fact that piratical acts occur in territorial waters, outside the bounds of the
application of article 105. The international response to circumvent the restriction
contained in article 105 was exemplified through the United Nations Security
Council that issued a series of resolutions that allows states to engage in
enforcement jurisdiction within the territorial waters of Somalia in an ad hoc and
sui generis deviation from the provision of article 105. The section unpacks and
analyses these resolutions and discusses its limitations and restrictions. Turning
then to a regional response, a complementary instrument, the Djibouti Code of
Conduct, is analysed and its merits are highlighted.
1.2.2
The second part of the chapter then shifts to discuss the approaches to anti-piracy
measures in municipal law. Two prominent states on the east African seaboard,
South Africa and Kenya are selected as a sample study. Although the domestic law
of states are of minimal import assessing or revisiting the framework of
international counter-piracy measures, Miles notes that ‘[s]tates remain the
dominant transacting entities on the international plane and it is states’ conceptions
Roach ‘Countering Piracy off Somalia: International Law and International Institutions’ 104
American Journal of International Law (2010) 397 at 414.
962
195
of their own rights and duties that shape the modern contours of the discipline.’ 963
It would thus not be unwarranted to consider in some detail the approach of
influential states along the east African seaboard in its reception of the international
framework and its domestic policy.
1.2.3
The final part of the chapter turns to a detailed treatment of the continental
approach to anti-piracy measures. The analysis will survey the work of the
Organisation of African Unity and its successor, the African Union. In surveying
the work of this organisation, the discussion will traverse how maritime security
reached to the forefront of AU policy making following the surge of piracy in the
region under analysis between 2009 and 2010. The measures and decisions taken
by the AU to combat piracy are set out in a chronological sequence leading to a
survey of two key instruments: the 2050 Africa Integrated Maritime Strategy and
the African Charter on Maritime Security, Safety and Development in Africa.
Following this survey, this section lastly sets out some observations on the general
tenor and development of the nascent African continental framework pertaining to
piracy and presents a case for the introduction of universal enforcement jurisdiction
for anti-piracy measures in territorial waters of AU member states. The
compatibility of this submission with the developing jurisprudence of the AU is
then tested.
The findings of the chapter are then presented holistically and sets the scene for the
recommendations which are proposed in the final chapter of this thesis.
II.
2.1
INTERNATIONAL AND REGIONAL FRAMEWORKS
Effect of the resolutions of the Security Council of the United Nations
2.1.1
The need for an additional enforcement remedy
The preceding two chapters considered in extenso the origins of the geographical limitation
of universal enforcement jurisdiction to the high seas, or a place outside the jurisdiction of
a state. When applied to the present piracy off the coast of Somalia, the limitation becomes
an apparent obstacle to the enforcement regime. As Guilfoyle points out, ‘the enforcement
jurisdiction granted to all States in international waters does not extend to pursuing pirate
963
Miles ‘The Franconia sails on: Revisiting the intellectual history of the territorial sea in the
United States, Canada and Australia’ 13 Oxford Commonwealth Journal (2013) 347 at 377.
196
vessels into the territorial sea of any State’.964 Klein further illustrates how foreign warships
or state vessels have no policing powers within the territorial sea or internal waters of
another state, without the consent of the coastal state.965 She proposes that this lack of
power is underlined by the limitations that inhere to the right of innocent passage, 966 and
further says that the termination of the right of hot pursuit ‘as soon as the pursued vessel
enters the territorial sea of its own or a third state reinforces the lack of policing powers of
other state in the territorial sea, even if pirates, the enemies of all human kind, are being
pursued’.967
The consequence of this was observed by Guilfoyle, who remarked: ‘the ability of pirates
to evade pursuit by crossing into territorial waters remains a real problem, particularly in
the waters off Somalia’.968 Accordingly, Roach illustrates that, ‘prior to June 2008, the
inapplicability of the international law of piracy in the territorial sea afforded pirates a safe
haven, to the frustration of counterpiracy naval forces’.969
It was within this context of geographical limitations that the United Nations Security
Council (SC) passed a series of resolutions, which inter alia expand the scope of
enforcement powers to allow for a more effective suppression of piracy in the region.970
In December 2007, the International Maritime Organisation (IMO) passed a resolution,
which inter alia called on the Transitional Federal Government (TFG) of Somalia to:
‘advise the Security Council that … it consents to [foreign] warships or
military aircraft … entering its territorial sea when engaging in operations
against pirates or suspected pirates and armed robbers endangering the safety
of life at sea … specifying any conditions attached to the consent given’.971
Guilfoyle ‘Piracy off Somalia: UN Security Council Resolution 1816 and IMO Regional
Counter-Piracy Efforts’ 57 International and Comparative Law Quarterly (2008) 690 at 694.
965
Klein Maritime Security and the Law of the Sea (2012) at 304.
966
Idem. She explains that under article 19(2) of UNCLOS, foreign vessels are prohibited from
conducting a range of military activities – as well as any other activity not having a direct bearing
on passage.
967
Idem.
968
Guilfoyle (2008) at 694. Geiß and Petrig (2011) at 70 similarly comment that in the case of
Somalia, ‘the repercussions of the … geographical limitations inherent in UNCLOS’ piracy
definition could potentially be of particular impact’.
969
Roach ‘Countering Piracy off Somalia: International Law and International Institutions’ 104
American Journal of International Law (2010) 397 at 400.
970
Geiß and Petrig (2011) at 70.
971
IMO Doc. A 25/Res 1002 (6 December 2007) at par. 6. See Guilfoyle (2008) at 694.
964
197
Accordingly, a letter was handed to the President of the SC by the Permanent
Representative of the Somalia Republic to the United Nations on 27 February 2008, which
conveyed the consent of the TFG.972 Subsequently, the SC had two options, as described
by Geiß and Petrig:
‘To draft a comprehensive and region-specific enforcement regime from
scratch, tailored specifically towards the repression of the criminal
phenomenon encountered in the Gulf of Aden, or to build upon the existing
enforcement regime contained in UNCLOS and to remedy its shortcomings
so as to better target piracy off Somalia’s coast.’973
They added that the SC ‘understandably and without any realistic alternative’ chose the
latter option.974 At the behest of France, Panama and the United States, on the 2 June 2008,
the SC, acting under Chapter VII of the UN Charter, passed Resolution 1816 with the
consent of the TFG of Somalia.975
2.1.2
Operative provisions of the UN SC resolutions
Of particular relevance to this study is that the resolution, subject to the caveats discussed
below, remedied the territorial limitation of the enforcement measures contained in article
105 of UNCLOS. The full text of this resolution is appended to this thesis et seq, and, while
this resolution has been renewed in a series of further resolutions, the content of this
particular resolution will be analysed here. Operative paragraph 7 provides (emphasis
added):
‘Decides that for a period of six months from the date of this resolution,
States cooperating with the TFG in the fight against piracy and armed
robbery at sea off the coast of Somalia, for which advance notification has
been provided by the TFG to the Secretary-General, may:
(a)
Enter the territorial waters of Somalia for the purpose of
repressing acts of piracy and armed robbery at sea, in a manner
consistent with such action permitted on the high seas with respect
to piracy under relevant international law; and
(b)
Use, within the territorial waters of Somalia, in a manner
consistent with action permitted on the high seas with respect to
piracy under relevant international law, all necessary means to
repress acts of piracy and armed robbery.’
972
See the preambular paragraphs of S/RES/1816 (2008).
Geiß and Petrig (2011) at 70.
974
Idem.
975
United Nations Security Council S/RES/1816 (2008), 2 June 2008. 5902 nd Meeting.
973
198
Considered in isolation, the provision, firstly, allows states operating within the parameters
of the resolution to pursue pirate vessels from the high seas into Somalian territorial waters
and, secondly, to counter violence against or on board vessels occurring within Somalia’s
territorial sea.976 This provision, when the safeguards and limitations discussed below are
excluded, is a dramatic deviation from the clear geographic limitation outlined in
UNCLOS. The types of enforcement measures envisaged to repress acts of piracy would
be: pursing, stopping and boarding the vessel, searching the vessel, seizing the vessel or
the property therein, and arresting the persons on board.977 The caveat, which appears in
subsection (a) and (b), namely ‘… in a manner consistent with such action permitted on the
high seas with respect to piracy under relevant international law’, has been interpreted to
show that the resolution does not, in fact, authorise means and measures beyond the
UNCLOS enforcement regime.978 A question immediately arose following analysis of this
provision: do the resolutions import the enforcement provisions of article 105 of UNCLOS
into the Somali territorial waters? Treves provides an affirmative response to this by
stating:
‘The basic effect of these provisions is to make the rules of international law
concerning piracy on the high seas applicable also to territorial waters, inter
alia permitting pursuit from the high seas into these waters and clarifying that
states acting under these rules within the territorial waters of Somalia may use
‘all necessary means.’979
However, Geiß and Petrig are more circumspect in their analysis of the provision and
highlight that, based on the wording ‘consistent with’ and the reference to UNCLOS, that
‘it can be inferred that the Council did not in any way intend to extend the direct
(geographical) application of UNCLOS to the territorial waters of a singular State’.980
Guilfoyle definitively states that the resolution does not make the international law of
piracy directly applicable to the Somalian territorial sea.981 His argument is that, under the
enforcement provisions on the high seas under article 105 of UNCLOS, it is the capturing
warship that ‘determines where pirates will be tried and may try them before its own courts
976
Guilfoyle (2008) at 695. See, also, Roach (2010) at 401, who comments that ‘it seems clear that
this authority includes capturing suspects who had committed acts of piracy seaward of the territorial
sea and were seeking safe haven ashore’.
977
Geiß and Petrig (2011) at 76-77.
978
Idem at 76.
979
Treves ‘Piracy, Law of the Sea, and use of force: Developments off the coast of Somalia’ 20
European Journal of International Law (2009) 399 at 404.
980
Geiß and Petrig (2011) at 71.
981
Guilfoyle Shipping Interdiction and the Law of the Sea (2011) at 66.
199
without consulting others’.982 Under the resolution, however, he argues that there is only a
grant of enforcement jurisdiction (pursuit and arrest), and not any authority to prosecute
the suspects.983 Given the general tenor of the document, it seems likely that the content of
the provisions of article 105 of UNCLOS are applied in Somalia as a whole, rather than
rendering the article directly applicable to Somali territorial waters.984
It is worth noting that the term ‘piracy’ is used in the resolution, referring to the regime
under UNCLOS as the framework to combat piracy.985 As detailed in the previous chapter,
article 101 of UNCLOS defines piracy, confining the act to the high seas or a place outside
the jurisdiction of any state. Accordingly, piratical acts committed in the territorial sea are
subject to the jurisdiction of the coastal state to define and punish – the acts in most
instances would be classified as armed robbery. The use of the term ‘piracy’ in the
resolution lends credence to the possibility of the applicability of piracy in the realm of the
territorial sea as a principle, while the reference to armed robbery in the resolution is not
accompanied by a definition of the term.986 Geiß and Petrig observe that the terminology
of the resolution, especially in relation to this phrase, is highly inconsistent,987 and that the
definitional elements of armed robbery at sea are ‘far from settled under international
law’.988 They provide an observation and interpretation relating to the use of the phrase,
‘piracy and armed robbery in the territorial waters and on the high seas off the coast of
Somalia’ in the resolution, which is pertinent to the context of this study. They find that the
resolution is ‘not entirely clear as to whether the main distinction between piracy and armed
robbery at sea is indeed the locus delicti … Potentially, this wording could be read as
eliminating the distinction between piracy and armed robbery, along the lines of whether
the act is committed on the high seas or in the territorial waters’.989 They conclude that
piracy, as referred to in the resolution, should be construed as referring to piracy as defined
Guilfoyle (2008) at 696. As article 105 of UNCLOS provides ‘The courts of the State which
carried out the seizure may decide upon the penalties to be imposed…’.
983
Idem. He submits (at 697) that ‘given that States exercising this power are meant to be cooperating
with Somalia, it seems most likely the UNSCR leaves the question of disposition to Somalia’.
984
See Geiß and Petrig (2011) at 71.
985
See the 4th preambular paragraph of the Resolution.
986
The International Maritime Organisation, Code of Practice for the Investigation of the Crimes of
Piracy and Armed Robbery Against Ships, IMO Doc. A22/ Res. 922 (22 January 2009) defines
armed robbery as ‘any unlawful act of violence or detention or any act of depredation, or threat
thereof, other than an act of piracy, directed against a ship or against persons or property on board a
ship, within a State’s jurisdiction over such offences’. See Geiß and Petrig (2011) at 73. See idem at
74, where they observe that ‘conduct taking place on the high seas, outside the jurisdiction of any
state, cannot constitute armed robbery at sea, according to these definitions’.
987
Geiß and Petrig (2011) at 72.
988
Idem at 73.
989
Geiß and Petrig (2011) at 74.
982
200
in article 101 of UNCLOS, and that the concept of armed robbery should be construed as
encompassing acts of violence against a ship990 committed in territorial waters.991
2.1.3
Limitations of the UN SC resolutions
With the introductory remarks on the operative parts of the resolution dispensed with,
commentators have noted how cautiously the SC framed the resolution.992 Guilfoyle
remarks that the restrictions upon the powers conferred by the resolution are readily
apparent.993 Regarding these limitations, Treves observes that they make the provisions
adopted ‘less revolutionary than they might appear, and seem aimed, in particular, at
fending off possible criticism of the Council acting as a ‘legislator’’.994 These limitations
or restrictions can be summarised in the following way:
(a)
The authorisation given under the resolution is given a limited ratione temporis:995
the opening line of paragraph 7 of the resolution confirms that those provisions
apply ‘for a period of six months from the date of this resolution’ with a possibility
of renewing the provisions.996
(b)
The authorisation is also given a limited ratione loci:997 paragraph 9 of the
resolution provides that the authorisation ‘applies only with respect to the situation
in Somalia’, and that the operation provision gives authorisation ‘to enter the
territorial waters of Somalia’ only and no other state. This is notwithstanding the
possibility of piratical attacks against international commerce traversing the
territorial waters of neighbouring states such as Kenya, Tanzania, Yemen and the
Seychelles.
(c)
Following from the limitation above, a further caveat in the architecture of the
wording is the emphasis placed on the ad hoc nature of the provisions, preventing
it from establishing a precedent or customary international law: paragraph 9 of the
resolution provides that it ‘shall not affect the rights or obligations or
responsibilities of member states under international law, including any rights or
obligations under the Convention, with respect to any other situation, and
Under the definitions of armed robbery, the ‘two-ship’ requirement is not an element.
Geiß and Petrig (2011) at 75.
992
Treves (2009) at 404.
993
Guilfoyle (2008) at 695. These restrictions are also cognisant of the preservation of other rights
exercised by states within the territorial sea - such as the right of innocent passage (par. 8 of the
Resolution).
994
Treves (2009) at 404.
995
See idem. See Guilfoyle (2008) at 695.
996
See pars 12 and 15 of the Resolution. These operative provisions have since been periodically
reviewed. See section 2.4 hereof et seq.
997
See, generally, Treves (2009).
990
991
201
underscores in particular that it shall not be considered as establishing customary
international law’. Treves comments that this caveat corresponds with the concerns
of developing states regarding maintaining the integrity of UNCLOS.998
(d)
The resolution expressly notes that this authorisation is predicated upon the consent
of the Somali TFG. Paragraph 9 thereof stipulates: ‘this authorization has been
provided only following receipt of the letter from the Permanent Representative of
the Somalia Republic to the United Nations to the President of the Security Council
dated 27 February 2008 conveying the consent of the TFG’. Because consent is the
sine qua non of the granting of the authorisation, Treves observes that this takes
away ‘all, or much of, the revolutionary content of the resolutions’.999 Indeed, he
argues that the kind of authorisation in the resolution could be granted by the
coastal state in the absence of a SC resolution,1000 further providing a useful
observation in this regard: ‘Under international law, states are free to dispose of
their rights in their territorial seas, for instance by allowing other states to conduct
police activities in them.’1001 The peculiar circumstances of the Somali situation
presented the need for intervention by the SC, especially since not every member
of the SC recognised the TFG, given the limited territory over which it exercises
effective control.1002 Therefore, a dual justification for authorisation needed to be
enacted for those state parties who did not recognise the authority of the TFG.1003
Those state parties found their authority in the SC’s invocation in the resolution of
chapter VII of the UN Charter.1004 Treves observes that state consent is not
necessary for action under chapter VII, one of the reasons he attributes to the
importance of the coastal state’s consent being to ‘pay homage to state
sovereignty’.1005
The discussion under (c) and (d) above effectively, as Hodgkinson argues, ‘prevented these
resolutions from allowing a state practice to develop that could expand the authority of
UNCLOS more broadly in the future through the development of customary international
law’.1006
998
Treves (2009) at 405. See, also, Klein (2012) at 281.
Treves (2009) at 406.
1000
Idem.
1001
Idem.
1002
Roach (2010) at 401.
1003
Idem.
1004
Idem.
1005
Treves (2009) at 407.
1006
Hodgkinson ‘The Governing International Law on Maritime Piracy’ in Scharf et al (eds)
Prosecuting Maritime Piracy: Domestic Solutions to International Crimes (2015) at 20.
999
202
2.1.4
Observations
Although the resolution was passed in 2008, with the option to renew it for a further period,
it has since been renewed in 12 month cycles,1007 and is currently in force under Resolution
2316 [2016]1008 until 8 November 2017. The longevity of the provisions of the resolution
is a testament to usefulness and need for the enforcement regime in UNCLOS to be
extended to the territorial sea. Although the draft resolution was adopted unanimously by
the state delegates to the SC,1009 some states ensured that their reservations were ultimately
incorporated into the wording of the document, which was thereafter accepted. Two
observations can be made:
First, as Geiß and Petrig note, these state delegates to the UN SC had ‘viewed the Council’s
tampering with an enforcement regime applicable exclusively within Somalia’s territorial
waters with scepticism’.1010 Houghton’s view is that the resolution ‘departed from
precedent by granting permission, notwithstanding controlled circumstances, to violate the
sanctity which every nation attached to its own territory’.1011 Klein similarly noted that,
‘despite concerns about the extent of piratical acts (armed robbery) occurring in areas under
coastal state sovereignty, there has been little willingness to move away from a position
that prioritises the legal rights of the coastal state’.1012 Hodgkinson emphasises this jealous
protection of state sovereignty by noting that ‘States may well be reluctant to cede any
authority or control over their sovereign waters unless they are unable to address the acts
of piracy on their own’.1013
The views of these commentators find support in the minutes of the meeting that led to the
adoption of the resolution.1014 At the SC meeting in which the resolution was adopted, the
representative for Indonesia remarked that his country ‘strongly believes that the principle
of respect for sovereignty and territorial integrity, as enshrined in the Charter, has to be
espoused by the Council at all times’.1015 They contended that the resolution should be
1007
The resolution was renewed by: S/RES/1897(2009), 30 November 2009, par. 7;
S/RES/1950(2010), 23 November 2010, par. 7; S/RES/2020(2011), 22 November 2011, par. 9;
S/RES/2077(2012), 21 November 2012, par. 12; S/RES/2125(2013), 18 November 2013, par. 12;
S/RES/2184(2014), 12 November 2013, par. 13; S/RES/2246(2015), 10 November 2015, par. 14.
1008
S/RES/2316(2016), 9 November 2016, par. 14.
1009
UN Security Council, 5902nd meeting (2 June 2008) S/PV. 5902 at 4.
1010
Geiß and Petrig (2011) at 77.
1011
Houghton ‘Walking the Plank: How the United Nations Security Council Resolution 1816, while
progressive, fails to provide a comprehensive solution to Somali piracy’ 16 Tulsa Journal of
Comparative and International Law (2009) 253 at 280.
1012
Klein (2012) at 304.
1013
Hodgkinson (2015) at 24.
1014
UN Security Council, 5902nd meeting (2 June 2008) S/PV. 5902.
1015
Idem at 3.
203
consistently formulated with two fundamental principles, namely: (i) consistency with
UNCLOS, wherein the resolution would not become a basis for customary international
law for the suppression of piracy;1016 and (ii) the resolution be applied exclusively to the
unique situation in Somalia and the waters off its coast, and only applying to the territorial
waters of Somalia, predicated upon its consent.1017 They emphasise the maintenance of the
integrity and sanctity of UNCLOS1018 to the extent that they believe that state parties ‘have
legal obligations to preserve the rights, obligations and responsibilities of Member States
derived from [UNCLOS]’.1019 Indonesia’s view was not in isolation – Libya noted that the
resolution ‘would not touch in the sovereignty of other countries or run counter to the
principles of international law or the law of the sea’.1020 China commented that it has
‘always respected the sovereignty, independence and territorial integrity of Somalia’. 1021
They were of the view that because piracy is an issue that links to the rights and interests
of state delegates, the SC must act with ‘great prudence’.1022 China further made remarks
similar to Indonesia, especially with regard to the exclusive applicability of the resolution
to the Somali situation and adherence to existing international law and the consent of
countries concerned.1023 These selected extracts provide a persuasive indication of states’
rigid adherence to the notion of sovereignty as a near-absolute concept. There is no
indication from these extracts, or from the academic commentary cited above, of any
growing acceptance of a broader framing of the concept of sovereignty along the lines of
argument detailed in chapter three of this thesis. It provides a precursor to the challenges
that could potentially be faced should a process commence to amend the UNCLOS regime,
which provides a permanent application of the action envisaged by the resolution.
However, some argumentative points could be advanced which support the overall
argument of extending the application of the UNCLOS enforcement regime into the
territorial sea, namely: (i) prolonging the application of the resolution from an initial period
of six months to almost eight years is demonstrative of the necessity of such a framework,
together with the analysis of statistics presented in chapter two, which showed a dramatic
decline in piratical activity in the region following naval intervention; (ii) there is a
willingness amongst states to share information about armed robbery and piracy – Klein
notes how multilateral anti-piracy agreements have made information-sharing a centrepiece
1016
Idem at 2.
Idem.
1018
Idem.
1019
Idem. They furthermore feel duty-bound to express reservations if the acts or instruments passed
by the SC could lead to ‘modifying, rewriting or redefining UNCLOS’.
1020
Idem at 4.
1021
Idem at 5.
1022
Idem.
1023
Idem.
1017
204
of their efforts,1024 indicating that, within a cooperative environment, predicated closely on
consent and consultation, extension of the UNCLOS piracy regime could be feasible; (iii)
Klein observes that ‘coastal states are obliged to alert shipping of any known danger to
navigation within its waters and arguably may be held responsible for a failure to protect
international shipping’1025 – states could avert sole responsibility for such a failure if
cooperation amongst states were to be extended into territorial seas.
Second, the South African delegation to the SC made a notable submission at the meeting:
‘we should be clear that it is the situation in Somalia, not piracy in and of itself, that
constitutes a threat to international peace and security. Piracy is a symptom of the situation
in Somalia.’1026 Klein explains the rationale for this, namely that there should not be a drive
to ‘ostensibly create a broader precedent for the Security Council stepping in to deal with
other serious of endemic situations of piracy and armed robbery at sea in specific
regions’.1027 It was the threat to international peace and security that was the driving force
behind the genesis of the resolution, and not piracy per se. During the period of the
resolution’s enactment, it was clear that piracy was viewed as a by-product of the situation
that thrived in the circumstances created by the fact that Somalia was a failed state,
ultimately necessitating the formulation of the resolution. Klein remarks:
‘it seems likely that ongoing, or particularly violent acts of, piracy and armed
robbery at sea could be viewed as a threat to international peace and securing
enabling the Council to act under Chapter VII if there was sufficient political
will to do so’.1028
This scenario envisages piracy occurring on a larger scale, and thus meriting the attention
of the Council act, and begs the question: What would become of scenarios where pirate
attacks are less frequent or sporadic? Piracy is an opportunistic crime – the statistics at the
time of writing this thesis show a decline in the instances of piracy which were epidemic
at during the passing of the resolution, but the statistics and reports of the IMO still confirm
sporadic instances of piracy. It is likely that these isolated incidents will continue in the
foreseeable future without the enforcement framework under UNCLOS in territorial seas,
especially once the resolution has lapsed. What is needed is a framework that is cognisant
of this modern characteristic of piracy.
1024
Klein (2012) at 304.
Idem at 302.
1026
UN Security Council, 5902nd meeting (2 June 2008) S/PV. 5902 at 4.
1027
Klein (2012) at 280.
1028
Klein (2012) at 280.
1025
205
Ultimately, notwithstanding the progressive step taken by the SC through its resolutions, it
is the limitations and restrictions in the resolutions that hinder the extension of UNCLOS
enforcement provisions within territorial seas beyond the parameters of the resolution.
Hodgkinson succinctly summarises the status quo: ‘accordingly, the high seas requirement
in the UNCLOS piracy definition remains an element that limits the applicability of the
UNCLOS to acts of piracy occurring in or emanating from within the territorial seas or the
territory of a sovereign state’.1029 The observations noted above, however, contain some
useful lessons for the purposes of the present research objective. These considerations will
be applied in the formulation of the revised framework in the concluding chapter of this
thesis.
2.2
The Djibouti Code of Conduct
As has been observed throughout the course of this thesis, piracy is not confined to a
particular realm, and the actus reus of piracy manifests itself in all jurisdictional realms of
the ocean. As Wambua contends, ‘the transnational nature of maritime issues highlights
the need for regional maritime cooperation between maritime states’.1030 Accordingly,
commensurate with the international and national framework, combatting piracy is an issue
which would find its way into regional partnerships and initiatives. In Africa, regional
cooperation agreements and partnerships, for example, throughout the African Union, have
been documented in some detail.1031 Wambua has highlighted, however, how attempts
made by African states regarding regional cooperation in the governance of maritime
interests have been ‘hindered by their national policies and legislation, often conflicting
and marred by duplicity.’1032 Furthermore, he observes that ‘States are often so fixated on
national interests that it is to the disadvantage of the regional common good’.1033 That being
said, Vrancken aptly counters that ‘States have long realised that one of those common
interests was to combat piracy’.1034 In this section, an influential regional initiative, the
Djibouti Code of Conduct is considered.
1029
Hodgkinson (2015) at 21.
Wambua ‘Enhancing regional maritime cooperation in Africa: The planned end state’ 18 African
Security Review (2009) 45 at 46 (cited herein at Wambua [2009a]).
1031
See, for example: Vrancken ‘The role of the African Union in combating piracy’ Special Edition
1 Acta Criminologica (2014) 53-75. A basic discussion can be found in Fouché ‘Policing of piracy
and armed robbery perpetrated against ships: The role of interstate partnerships in Africa’ 20 Acta
Criminologica (2007) 110-122; Meyer and de Vries ‘The role of Interpol in combating maritime
piracy’ Special Edition 1 Acta Criminologica (2014) 108-120; and Fouché ‘Harmonised legal
framework for Africa as an instrument to combat sea piracy’ in Petrig (ed.) Droit de la piraterie
maritime (2010) at 141-159.
1032
Wambua (2009a) at 53.
1033
Idem at 54.
1034
Vrancken (2014) at 54.
1030
206
2.2.1
Background
The IMO, at its 25th session, adopted Resolution A.1002(25) on ‘Piracy and Armed
Robbery against ships in waters off the coast of Somalia’, on 27 November 2007, which
inter alia ‘called upon Governments in the region to conclude, in cooperation with the
IMO, and implement as soon as possible, a regional agreement to prevent, deter and
suppress piracy and armed robbery against ships’.1035 To this end, a ‘sub-regional meeting
on piracy and armed robbery against ships in the Western Indian, Gulf of Aden and Red
Sea area was organised by the IMO in Dar es Salaam from the 14 to 18 April 2008’.1036
The objective was two-fold: first, ‘to enhance the level of awareness of Governments in the
region on the wide range of issues relating to piracy and armed robbery against ships’; and
second, to ‘prepare a draft regional agreement’.1037 At this meeting, a draft Memorandum
of Understanding was prepared (and is hereafter referred to as the draft code). The concept
of the draft code was modelled on the Regional Cooperation Agreement on Combatting
Piracy and Armed Robbery against Ships in Asia (ReCAAP),1038 and was later considered
at a meeting in Djibouti with various stakeholders on 29 January 2009. As a result of the
deliberations, the ‘Code of conduct concerning the repression of piracy and armed robbery
against ships in the western Indian Ocean and the Gulf of Aden’ was adopted (hereafter
referred to as the Code of Conduct).1039
The preambular paragraphs of the Code of Conduct commence by noting the concerns of
participant countries regarding ‘the crimes of piracy and armed robbery against ships in the
Western Indian Ocean and the Gulf of Aden and the grave dangers to the safety and security
of persons’. This phrase, however, notably omits any reference to the safety and security
of commerce transit at sea. It also reaffirms that ‘international law, as reflected in
UNCLOS, sets out the legal framework applicable to combating piracy and armed robbery
‘Code of Conduct concerning the repression of piracy and armed robbery against ships in the
western Indian Ocean and the Gulf of Aden’ (hereafter the ‘Djibouti Code of Conduct’), Preambular
paragraphs.
1036
International Maritime Organisation Council Doc. C 100/7 (25 April 2008) ‘Protection of Vital
Shipping Interests’ at 1.
1037
International Maritime Organisation Council Doc. C 100/7/Annex (25 April 2008) at 3.
1038
Idem at 2. See, also, Geiß and Petrig (2011) at 49.
1039
South Africa became the 19th signatory to the Djibouti Code of Conduct on 15 May 2012, around
the time the first incidents of piracy started to emerge in the Mozambique Channel – prompting
operation Copper. See ‘South Africa signs Djibouti Code of Conduct anti-piracy agreement’ Defence
Web (17 May 2012).
Available
at:
http://www.defenceweb.co.za/index.php?option=com_content&view=article&id=25619:southafrica-signs-djibouti-code-of-conduct-anti-piracy-agreement&catid=51:Sea&Itemid=106.
Wambua (2010) at 10, noted that Kenya had reviewed its legislation to meet the requirements of the
Code of Conduct.
1035
207
at sea’.1040 The Code of Conduct is clear on its deference to the sovereign rights of states,
as evident by its promotion of ‘mutual respect for the sovereignty, sovereign rights,
sovereign equality, jurisdiction, and territorial integrity of States’.1041 Geiß and Petrig
observe how the Code of Conduct has already been ‘praised as a milestone development
and a central instrument in the development of regional capacity to combat piracy’. 1042
Furthermore, the UN SC, in Resolution 1918, welcomed ‘the progress being made to
implement the IMO Djibouti Code of Conduct, and calls upon its participants to implement
it fully as soon as possible’.1043
2.2.2
Key provisions
The full text of the Code of Conduct is reproduced et seq in the annexures to this thesis,
and defines piracy by adopting article 101 of UNCLOS, and inserting a definition of armed
robbery. The purpose and scope is then outlined, whereby participants intend to cooperate
to the fullest possible extent in the repression of piracy and armed robbery, which inter alia
would entail: sharing and reporting relevant information; interdicting ships suspected of
engaging in piracy or armed robbery against ships; and ensuring that persons committing
or attempting to commit piracy or armed robbery against ships are apprehended and
prosecuted.1044
What is evident, even from the title being a ‘code of conduct’, is that it is not a legally
binding instrument,1045 and not open for accession by any state.1046 Article 4 lays out the
enforcement measures to repress piracy which is focus of the present study, and article 4(4)
is representative of the UNCLOS enforcement provision:
‘Any Participant may seize a pirate ship beyond the outer limit of any State’s
territorial sea, and arrest the persons and seize the property on board.’
1040
This paragraph supersedes the equivalent in the draft code which distinguished customary
international law from UNCLOS: ‘Bearing in mind the importance of the [UNCLOS] and of the
customary international law of the sea’ International Maritime Organisation Council Doc. C
100/7/Annex (25 April 2008) at 8.
1041
Code of Conduct at 4.
1042
Geiß and Petrig (2011) at 48-49.
1043
UN Security Council Resolution 1918, UN Doc. S/Res/1918 (27 April 2010) at par. 3. See Geiß
and Petrig (2011) at 49.
1044
Code of Conduct, Article 2. See, also, Roach (2010) at 411.
1045
Article 15(a) provides that ‘Nothing in this Code of conduct is intended to (a) create or establish
a binding agreement…’.
1046
See Geiß and Petrig (2011) at 50.
208
Article 4(5) provides for enforcement jurisdiction to extend into the realm of the territorial
sea, but expressly states that such measures may not take place without the permission of,
and being under the authority of the territorial sovereign:
‘Any pursuit of a ship, where there are reasonable grounds to suspect that the
ship is engaged in piracy, extending in and over the territorial sea of a
Participant is subject to the authority of that Participant. No Participant should
pursue such a ship in or over the territory or territorial sea of any coastal State
without the permission of that State.’
The limitations of this provision thus clearly do not extend the UNCLOS enforcement
jurisdiction, and resemble, to some extent, the provisions of the Harvard Draft Convention
on piracy as discussed in the previous chapter. Furthermore, article 15(j) reinforces the
affirmation of the authority of a state in its territory:
‘Nothing in this Code of conduct is intended to:
…
(j)
entitle a Participant to undertake in the territory of another
Participant the exercise of jurisdiction and performance of functions
which are exclusively reserved for the authorities of that other
Participant by its national law.’1047
It is worth noting that the draft code contained a more detailed process on the enforcement
and hot pursuit measures into the territorial sea,1048 however, these additional clauses were
1047
Similarly, article 4(7).
Article 4(5) as it appears in the draft code is reproduced here with the deleted aspects in italics:
‘Any pursuit of suspect ships extending in and over the territorial sea of a Participant is subject to
the authority of that Participant. No Participant should pursue a suspect ship in or over the territory
or territorial sea of any coastal State without the permission of that State. In those exceptional
circumstances when a law enforcement or other authorized ship of a Participant (“the Pursuing
Participant”) commences pursuit of a suspect ship seaward of any State’s territorial sea and the
suspect ship enters or manifests intent to enter the territorial sea of a Participant coastal State, then:
a.
the Pursuing Participant should notify the focal point of the Participant coastal State (as
designated pursuant to Article 8 of this Understanding) of the pursuit and estimated time and
location of arrival at the territorial sea; and
b.
the focal point of the Participant coastal State should notify the Pursuing Participant
whether:
i.
a law enforcement or other authorized ship from that State is available to respond and
intends to relieve the Pursuing Participant of the pursuit; or
ii.
upon receipt of the Participating coastal State’s permission, the Pursuing Participant may
pursue the suspect ship into the Participating coastal State’s territorial sea and the Participating
coastal State may provide any specific instructions as to the actions that the Pursuing Participant
may take.’
1048
209
removed from the final Code of Conduct without any substantive commentary explaining
the rationale for this position. The deleted clauses provided a mechanism for a channel of
communication between a ‘focal point’1049 in the coastal state, and the participant state
about to engage in pursuit of a suspect ship in the coastal state.
While the Code of Conduct emphasises cooperation to the fullest possible extent to repress
piracy and is seen as a progressive measure that goes a long way towards complimenting
the UNCLOS provisions, the emphasis on respect of sovereign rights, territorial integrity,
and the clear restriction and safeguards regarding foreign naval interdiction in territorial
seas effectively means that the Code of Conduct does depart from the restrictive application
of the UNCLOS enforcement regime. The aforementioned deleted provisions, including
the concept of establishing focal points of contact, are useful and will be revisited in the
recommendations at the close of this thesis.
III.
3.1
MUNICIPAL FRAMEWORKS: SOUTH AFRICA
Policy framework: background
In turning the discussion towards a South African context, a few considerations must be
made – a useful starting point being the prevailing seascape in South Africa. The shoreline
of South Africa is one of the largest in Africa, with an approximate length of 3 924
kilometres at the high-water line.1050 Being party to UNCLOS, South Africa also has the
largest Exclusive Economic Zone, with an area of 1 553 000 square kilometres.1051 South
Africa is located at the confluence of three oceans – the Atlantic, the Indian and the
Southern Oceans – and is at a maritime choke point for international commercial shipping.
According to the South African Defence Review of 2015, published by the Department of
Defence, ‘the maritime interests of South Africa are derived from its geographic location,
economic infrastructure and geo-political aspirations and obligations as a regional maritime
power’.1052 A founding premise of South African policy and rhetoric is contained in an
address by former President Nelson Mandela, made in 1997 at the 75th anniversary of the
South African Navy where he said:
Article 8 of the Code of Conduct, titled ‘Coordination and Information Sharing’, provides that
‘Each Participant should designate a national focal point to facilitate coordinated, timely, and
effective information flow among the Participants consistent with the purpose and scope of this Code
of conduct.’
1050
See: South African Defence Review (2015) at par. 12. Available at:
http://www.dod.mil.za/documents/defencereview/Defence%20Review%202015.pdf
1051
Idem at par. 13.
1052
Idem at par. 12.
1049
210
‘The sea is a vital national interest, and that is why we maintain a navy. Just
as we believe that all people should be free, so too as a nation we believe in
the freedom of the seas. That is a matter of national strategic interest. We are
a maritime nation trading all over the world. We accept our obligation to
combine with other maritime nations to uphold the freedom of the seas and to
protect our national interests through naval power.’1053
With this vast ocean realm surrounding the land territory of South Africa, it is apt to name
South Africa is a maritime nation. The threat of piracy during the period under review in
this thesis has been expressly acknowledged in South African policy and rhetoric. The
South African Defence Review in 2015 noted that ‘the substantial increase in acts of
maritime crime along Africa’s coastline threatens the security and stability of the
continent’.1054 Two consequences arise from South Africa’s geo-political position in the
context of the threat of maritime crime, namely South Africa’s international obligations,
and its own national interests.
First, with regard to its international obligations, it is stated in the South African Defence
Review that ‘South Africa lies along a strategic major international trade route, is located
far from its key trade partners whom it reaches by sea, and has international obligations for
providing safety of navigation and ships, ensuring freedom of the seas and security of
shipping’.1055 Lewis, citing an address by the then Minister of Transport, Mr. Sibusiso
Ndebele, comments further on this obligation: ‘South Africa’s maritime strategic interests
bring with them huge obligations that include providing for the safety and security of
navigation’.1056 Lewis illustrates that these obligation derive from inter alia South Africa
being a member of both the International Maritime Organisation, the International
Hydrographic Organisation, a subscriber to UNCLOS, and a signatory to the convention
on the Safety of Life at Sea (SOLAS).1057 South Africa is furthermore a key-role player in
the African Union and the Southern African Development Community (SADC). Lewis’
1053
Cited in Kasrils ‘Sea Power for Africa Symposium’ Ministry for Intelligence Services 29 August
2005. Available at: http://www.polity.org.za/article/kasrils-sea-power-for-africa-symposium29082005-2005-08-29.
1054
South African Defence Review (2015) at par. 28. The Review notes idem how Somali pirates
have operated ‘as far south as the Mozambique Channel’ and ‘as a direct consequence of the piracy
along the east coast, many shipping companies have had to use the Cape Sea Route instead of the
Suez Canal..’
1055
Idem at par. 14.
1056
Lewis (ed.) Mapping Counter Piracy Actors (2013) at 40.
1057
Idem at 41.
211
analysis concludes that there is a ‘growing pressure on the country to play an active role in
counter-piracy missions … due to its status as a leading power in the region’.1058
Second, with regard to national interests, the South African Defence Review concisely
summarises South Africa’s position:
‘South Africa has in essence an ‘island economy’ that is almost totally
dependent on maritime transport. The bulk of the country’s GDP is generated
through trade, with 90% of exports and imports being transported by sea. As
such South Africa has an “obligation to cooperate with other maritime nations
to uphold the freedom of the seas and to protect its national interests”.’1059
Minister Kasrils also emphasised the importance of maritime and naval power in
maintaining maritime stability, especially since: (i) ‘Africa depends heavily on seaborne
trade’; (ii) ‘offshore oil and gas are important resources’; (iii) ‘much of the world’s oil and
other cargo moves along our coasts’; (iv) ‘African fishing grounds are important sources
of protein for many countries in other parts of the world’.1060
Thus, in having international obligations and maintaining South African sovereign
interests, Lewis makes a critical observation: ‘sovereign right is balanced with a
responsibility to protect the area for the international community and so the country must
be seen to be playing an active role in counter-piracy operations’.1061
3.2
Piracy and South African interests
Acts of piracy can directly affect South African interests in a number of ways, the first of
which results from the being act committed within the South African territorial sea.
Historically, there have been very few instances of piracy directly off South Africa’s
coastline. Bulpin records the first known pirates to operate off the coast of Southern Africa
as arriving from Europe in 1508,1062 with his account further revealing a slight peak in
pirate activity around the Cape of Good Hope when pirates looted well-laden EastIndiaman ships sailing into Table Bay during the early 18th Century.1063 During the 19th
1058
Idem at 40.
South African Defence Review (2015) at par. 32.
1060
Kasrils (2005).
1061
Lewis (2013) at 41.
1062
Bulpin ‘Pirates and Piracy’ in Potgieter (ed.) 8 Standard Encyclopaedia of South Africa (1973)
at 581; Vrancken South Africa and the Law of the Sea (2011) at 457.
1063
Idem at 583.
1059
212
Century, there were scattered instances of mutiny and treason, as depicted in the section
3.4 below, while throughout the 20th Century, there were no accounts of piracy in the South
African territorial sea. Maritime crime manifested in other forms in South Africa, however,
namely in the early 1970s when there was an oil embargo against the Apartheid
government, wherein South Africa circumvented the blockage by sourcing illegal
shipments through an international network of maritime crime.1064 Fouché perused records
of the International Maritime Bureau, which contained a record of three instances of piracy
in South Africa in 2000, 2001 and 2003 respectively,1065 and, after interviewing members
of the South African police, he concluded that one act qualified as theft, and that the other
two qualified as attempts to interfere with the safe passage of a ship through the territorial
sea, not falling within the definition of piracy.1066
A second example of a threat to South African interests is when its nationals fall victim to
acts of piracy, for example: in November 2010, when a couple from Durban – Bruno
Pelizzari and Deborah Calitz – were hijacked by Somali pirates in their yacht off the coast
of Kenya.1067 The pirates demanded a ransom of R34 million for their release and they were
held hostage for 20 months.1068
A third example is exemplified where South Africa’s interests are jeopardised by piratical
acts in areas outside the jurisdiction of South Africa, an example being the cruise liner
industry in South Africa being adversely affected by piracy along the East African coast.
One media report in particular contained a comment by one of the cruise operators: ‘piracy
was having a negative impact on South Africa as his company was no longer able to offer
passengers an East African cruise between Mombasa, Kenya and Cape Town’.1069
Incidents of piracy in the territorial seas of South Africa are rare, however, and therefore
currently do not present an area of significant contention. What is relevant is the exercise
of South African naval power in law enforcement activities that combat piracy in waters
outside the jurisdiction of South Africa. South African approaches to naval power in its
See, generally, Desai ‘The present in the past: Maritime crime off the coast of Durban, South
Africa’ 29 Acta Criminologica (2016) at 171.
1065
Fouché ‘Policing Piracy and Armed Robbery of Ships in South Africa’s Territorial Waters and
Contiguous Zone’ Unpublished DTech thesis, Tshwane University of Technology (2006) at 13.
1066
Idem at 14.
1067
Fourie ‘Pirates halve ransom demand for couple’ Natal Mercury (14 April 2011) at 1.
1068
‘Pirate ordeal was hell - SA hostages’ (27 June 2012).
Available at: http://www.news24.com/SouthAfrica/News/Pirate-ordeal-was-hell-SA-hostages20120627.
1069
Cole ‘Piracy is costing SA: East Coast cruise liners hurt’ Daily News (12 May 2011) at 5.
1064
213
newer democratic dispensation find expression in a National Defence White Paper issued
by the Minister of Defence on 8 May 1996.1070 Some of the key provisions are:
‘Ch. 2:§ 11.2: South Africa shall pursue peaceful relations with other states.
It will seek a high level of political, economic and military co-operation with
Southern African states in particular.
Ch.4:§ 12: South Africa will encourage the development of a multi-lateral
common security approach in Southern Africa. In essence, the SADC states
should shape their political, security and defence policies in co-operation with
each other.
Ch.4:§ 13: A common approach to security in Southern Africa is necessary
for a number of reasons. First, many of the domestic threats to individual states
are shared problems and impact negatively on the stability of neighbouring
countries.
Ch 4.§ 16: Common security arrangements would have many advantages in
this context. They could facilitate the sharing of information, intelligence and
resources; the early warning of potential crises; joint problem-solving;
implementing confidence and security-building measures; negotiating
security agreements and treaties; and resolving inter-state conflict through
peaceful means.
Ch. 4.§ 29: Finally, South Africa has a common destiny with Southern Africa.
Domestic peace and stability will not be achieved in a context of regional
instability and poverty. It is therefore in South Africa’s long term security
interests to pursue mutually beneficial relations with other SADC states and
to promote reconstruction and development throughout the region.’
With such a strong orientation towards cooperation, coupled with the underlying byproduct of fostering stability in the region, it would be beneficial for South Africa to
become an anti-piracy actor for the continent and to play a leading role.1071 An issue arises,
however, when considering how well equipped South Africa is in exercising enforcement
1070
Available at: http:www.gov.za/documents/national-defence-white-paper.
See, for instance, a media report quoting the Commanding Officer of the Naval Base at Durban,
Commander Dieter Jones, who stated that ‘given the transnational nature of the crime (piracy) and
the non-discriminatory nature of its effect, it is of the utmost importance that all States, littoral and
landlocked, become involved, acknowledge a shared responsibility and tackle the crime as a
collective’. Cited in Helfrich ‘An insight into South Africa’s counter-piracy operation’ Defence Web
2 February 2016.
Available at:
http://www.defenceweb.co.za/index.php?option=com_content&view=article&id=42215:aninsight-into-south-africas-counter-piracy-operation&catid=111:sa-defence&Itemid=242.
1071
214
jurisdiction, and when further considering what domestic legal framework is in place to
facilitate this. The two issues will be considered in turn below.
3.3
Enforcement capability
Notwithstanding international condemnation of the upsurge of piracy at the time of the UN
SC Resolution to combat piracy in 2008 and calls for international co-operation, Otto
observed that ‘South Africa became involved as a counter-piracy actor rather late in the
day’.1072 According to a media report, South African Navy spokesperson, Jaco Theunissen,
said that ‘SA does not provide patrols or support outside South African waters unless
assistance is requested from a neighbouring African government. So far it has not been
asked to help.’1073 Otto further observed that it was not until the ‘ballooning effect of the
pirates' reach began to extend southwards towards the Mozambican Channel, that South
Africa’s interest was suitably piqued’.1074 During 2010, it was reported that ‘at least three
SADC-registered vessels were attacked. These were the Tanzanian-registered MV
Barakaale, the South African-owned SY Choizil, and Mozambique’s FV Vega 5.’1075 In a
statement issued by the Department of Defence in response to this security threat,1076 it was
mentioned that the South African Defence Force deployed warships in 2011 to
Mozambique in a deployment called ‘Operation Copper’, the frigates’ mission being to
maintain a permanent presence in the northern Mozambique Channel on a rotation basis.1077
In a media report, Navy Fleet media liaison officer, Commander Adrian Dutton, said ‘all
four frigates – SAS Amatola, SAS Isandhlwana, SAS Mendi and SAS Spioenkop – as well
as the Navy’s replenishment vessel, SAS Drakensberg, and two of it its offshore patrol
vessels (OPVs), SAS Galeshewe and SAS Isaac Dyobha, have done time on station in the
Mozambique Channel’.1078 Pursuant to this engagement, the counter-piracy initiatives
Otto ‘South Africa’s Engagement in Counter-Piracy’ Maritime Security Review, 10 November
2014. Available at: http://www.marsecreview.com/2014/11/south-africas-engagement-in-counterpiracy/.
1073
Baumann ‘Piracy on east coast is creeping closer’ Business Day (28 July 2010) at 4.
1074
Otto (2014).
1075
‘SADC responds to maritime piracy threat’ South African New Features: 12, no. 2, January
2012.
Available at: http://www.sardc.net/en/southern-african-news-features/sadc-responds-to-maritimepiracy-threat/. See, also, Otto (2014) and Lewis (2013) at 45; Coelho ‘Southern African Maritime
Security: Problems and prospects’ in Niewkerk and Hofmann (eds) Southern African Security
Review (2013) at 122.
1076
Otto (2014) remarks that South Africa was ‘not acting on its own recognizance, but rather
generously acquiescing to Mozambique’s request for assistance’.
1077
‘Operation Copper – Maritime Security on the Mozambican Channel’, Statement issued by the
Department of Defence.
Available at: http://www.dod.mil.za/operations/international/operation_copper.htm. See, also, Otto
(2014); Coelho (2013) at 122; and Lewis (2013) at 45.
1078
Martin ‘Operation Copper now only with SA and Mozambique’ Defence Web, 20 March 2014.
Available at:
1072
215
become formalised in a trilateral Memorandum of Understanding (MoU) signed by South
Africa, Mozambique and Tanzania in February 2012. Particulars of the MoU were issued
by the South African Department of Defence regarding the objectives of the operation:
‘The trilateral agreement will see the three countries working together in
securing territorial waters of each respective country. This includes the three
parties sending members to participate in the combined maritime operations
aimed at searching and interdicting bases of pirates and any other illegal
activities in the territorial waters.’1079
This statement is significant in the context of this study, as an enforcement measure to
suppress piracy is extended into territorial waters. This is clearly predicated on an
agreement which excludes the framework of UNCLOS. The powers granted to the navies
under the MoU are to, ‘among other things, patrol, search, arrest, seize and undertake hot
pursuit operations on any maritime crime suspect or piracy’.1080 Under the UNCLOS
regime, such measures can only take place on the high seas. A media report noted that the
SAS Drakensberg was involved in a piratical incident ‘when she was requested to take up
a stopper position by the European Union Naval Force to prevent a suspected pirate ship
from escaping EU pursuit in April 2012’.1081 The ongoing operation has been successful,
and the Department of Defence issued a statement saying that ‘the success of Operation
Copper is evident in that there have been no further pirate attacks in Southern African
waters, the local fishing fleets are back at sea and tourism is flourishing again because of
the increased security’.1082 In terms of the cost of the operation, Otto states that in 2013, the
allocation to Operation Copper was R585 million from a total annual budget of R40
billion.1083 The operation was designed to continue until such time as the Commander-in-
http://www.defenceweb.co.za/index.php?option=com_content&view=article&id=34071:operation
-copper-now-only-with-sa-and-mozambique&catid=108:maritime-security.
1079
‘Minister Sisulu signs MoU on Maritime Security Cooperation with Tanzania and
Mozambique’.
Available at:
http://www.dod.mil.za/ministry/media_statements/2012/moutanzaniamozambique.htm.
1080
Idem.
1081
Martin (2014). See, also, ‘South Africa signs Djibouti Code of Conduct anti-piracy agreement’
Defence Web (17 May 2012), where it was reported that the South African Navy was one of navies
from four different countries to pursue a pirate mother ship in the Mozambique Channel, after the
ship had unsuccessfully attempted to attack a Filipino merchant ship.
1082
‘Operation Copper – Maritime Security on the Mozambican Channel’, Statement issued by the
Department of Defence.
Available at: http://www.dod.mil.za/operations/international/operation_copper.htm.
1083
Otto (2014); Martin (2014). Lewis (2014) at 46, notes that defence spending in South Africa ‘is
just 1.3% of GDP … approximately 7 per cent of its budget is allocated to the Navy’s operational
budget … Such figures somewhat undermine the increasing naval rhetoric of promises to fulfill anti-
216
Chief of the Defence Force, President Zuma, decides to withdraw.1084 While South Africa
was able to allocate the resources to engage in the operation, questions of policy must be
answered on the sustainability of, and need for such operations. The policy could
potentially venture in one of two directions: a practical consideration, and a strategic
consideration.
In terms of practical consideration, one could enquire as to why South Africa spent such a
high proportion of its annual defence budget on this endeavour. Lewis describes a ‘guns
versus butter’ debate and asks ‘whether South Africa can justify spending on its military
when it has disproportionately vast numbers of its citizens in poverty emanating in part
from its earlier colonial and apartheid eras’.1085 Otto asks whether one ‘might conclude that
the expenditure on counter-piracy operations is a frivolous expense, given the state’s
primary responsibility of protecting its territory – a place to which pirates have yet to
venture’.1086 Furthermore, Coelho makes two comments regarding this direction of policy.
He first notes the ‘practical difficulties involved in maintaining such a force so far from its
base, maintenance challenges, and the budgetary demands, which have already provoked
political discomfort in the South African parliament’.1087 Second, he notes how the sharp
decrease in Somali piracy in southern African waters has created a growing disparity
between a threat which is now hardly visible and the means allocated to respond to it’. 1088
The operation would provide a fertile training ground for exercises in combat readiness,
and in learning to engage pirate suspects more effectively in the field. Another issue raised
under this practical consideration is the capacity of South Africa’s Defence Force. South
Africa spends quite far under the global average of 2% of GDP on defence, at 1.05%.1089
Kings, in a 2016 media feature citing the 2014 Defence Review, reports that ‘this spending
is at odds with the importance the ocean has to South Africa. Most of its imports and exports
come across the ocean. The ocean economy brings in R60 billion a year.’1090 He reports
that ‘SA Navy vessels can no longer be made combat ready to execute the full range of
missions they were designed for’,1091 meaning that ‘South Africa has little capacity to
patrol. The navy has four new frigates, three ancient offshore patrol vessels and three
piracy missions and will undoubtedly have negative repercussions on the stemming of pirate activity
in the area.’
1084
Martin (2014).
1085
Lewis (2014) at 47.
1086
Otto (2014).
1087
Coelho (2013) at 128. Lewis (2014) at 46 notes that ‘South Africa has priorities beyond those
of maritime security’.
1088
Idem.
1089
Kings (2016) at 8.
1090
Idem.
1091
Idem.
217
inshore patrol vessels to respond to any illegal fishing and piracy across 1.5 million square
kilometres.’1092 Coelho concludes that ‘whilst rhetoric clearly illustrates the importance that
South Africa places in the ability to secure both its waters and the waters of the continent
more generally, serious doubt has been placed on its ability to do so’.1093
Strategic considerations, on the other hand, call for continued engagement in counterpiracy operations when they arise. Otto remarks that such considerations could be a worthy
exercise in foreign policy employing foresight.1094 She remarks that South Africa has an
implied foreign policy objective of ‘being the foremost African actor participating in the
international space – the go-to partner on the continent who leads by example where issues
of African security are concerned’.1095 These can be seen in the extracts from the White
Paper on National Defence cited above. Coelho remarks how South Africa has ‘grand
geostrategic motives and a self-appointed status as rescuer of the region that requires the
support of a modern blue-water navy, despite what appear to be major problems in
maintaining it’.1096 Quite separate from these strategic foreign policy motives, and given
the nature of South Africa’s island economy and globalised interests, the consequences of
piracy would directly impact on South Africa’s interests even if piratical acts never occur
in its territorial waters.
These two policy directions mean that South Africa has to carefully balance its domestic
needs and developmental challenges with its maritime strategic interests. While in the past
decade there has been a global emphasis placed on responding to the consequences and the
threat of piracy off the East African seaboard, South Africa, as a developing nation, remains
at a crossroads where there are differing priorities when considering the context of low
military budgets and a poor economic environment,1097 and the need to assert its role as a
regional power on the African continent.
With this policy background in mind, the legislative framework in South Africa needs to
be considered. The discussion now turns to the law relating to piracy in South Africa, and
commences with an overview of the developing jurisprudence, subsequently outlining the
contemporary framework. When presenting the legal framework of South Africa, some
indication will be provided regarding its strengths in fostering an enforcement jurisdiction
1092
Idem.
Coelho (2013) at 45.
1094
Otto (2014).
1095
Otti (2014).
1096
Coelho (2013) at 128.
1097
Lewis (2013) at 39 and 47.
1093
218
regime outside South Africa’s territorial waters, and in the waters of neighbouring African
states.
3.4
Historical background of piracy and the law in South Africa: an excursus
It is not surprising, considering the sparse and scattered historical accounts above, that
piracy has not received much attention in the courts, legislation, and academic scholarship.
Given this dearth of primary and secondary sources specific to South Africa, this section
makes an attempt to explore and gather possible sources in order to trace the developing
jurisprudence in the country before looking at the contemporary legal landscape specific to
piracy. A search through the records contained in the National Archives of South Africa1098
reveals the existence of a piracy court in the Cape of Good Hope at the turn of the 19 th
Century, when two prisoners at the Castle of Good Hope – James Mortlock and Michael
Franklin Brooks – were charged in a ‘court of piracy summoned for that purpose’ on 16
April 1801. The archival record contains two petitions, the first being to the then Governor
of the Cape Colony, Sir George Yonge, to have the case transferred to England, and
‘referred to the opinion of the twelve Judges of England’, accompanied by a request for
permission to proceed to England under escort.1099 The second petition, dated 27 May 1801,
was addressed to Major General Francis Dundas, the then Governor of the Cape Colony,
requesting permission to obtain a copy of the proceedings against them. 1100 There is no
record on file of the circumstances which gave rise to the proceedings, nor of the actual
proceedings in the piracy court. However, the first petition contains an extract of the
judgment: ‘You, the prisoners at the Bar are guilty of adhering to, aiding and comforting
his Majesty’s enemies.’1101 This, therefore, appeared to be a case of treason held in an ad
hoc piracy court.
A few years later, on 27 September 1807, the Governor of the Cape Colony, the Earl of
Caledon (‘Lord Caledon’), despatched a communication to ‘Lord Viscount Castlereagh’,
Secretary of State, requesting receipt of instructions for the establishment of a piracy
commission.1102 On 13 April 1809, Lord Caledon received instructions from the Secretary
of State in London, under orders from the Lords Commissioners of the Admiralty
empowering him, together with others specified therein, with a commission to hold a court
for the trial of pirates.1103
1098
The present researcher makes no claim to this archival perusal being comprehensive.
Western Cape Provincial Archives: KAB/BO/120/01/16/1.
1100
Western Cape Provincial Archives: KAB/BO/120/01/24/1.
1101
Western Cape Provincial Archives: KAB/BO/120/01/16/1.
1102
Western Cape Provincial Archives: KAB/GH/1/123/00/1911/1.
1103
Western Cape Provincial Archives: KAB/GH/23/2/00/66/1.
1099
219
During this period, the British had re-occupied the settlement at the Cape of Good Hope in
1806, and they realised the need to re-establish a local Vice-Admiralty Court.1104 In 1806,
Lord Caledon received an Admiralty Commission, constituting him as the Vice Admiral of
the Colony.1105 Van Niekerk describes a ‘Vice Admiralty Court’ as an instrument of British
imperial design, established to ‘control the activities and protect the interests of British
citizens in colonial waters’.1106 He explains that, ‘although existing alongside ordinary,
colonial courts and even utilising their facilities and personnel, they were separate, imperial
courts, external to the local judicial system and unaffected by the creation or jurisdiction
of local courts’.1107 It would be apt for the Vice Admiralty Court in the colony to have been
vested with jurisdiction to prosecute matters pertaining to piracy,1108 however, Van
Niekerk, in describing the features of the Vice Admiralty Court, distinguished the court
from a piracy commission, an example being the one issued in 1809:
‘the permanent Cape Vice-Admiralty Court should be distinguished from an
ad hoc, temporary court, generally known as a Piracy Court or Commission
Court … but also confusingly referred to simply as an Admiralty Court. This
Court had criminal jurisdiction over (serious) offences committed on the high
seas, including, therefore, piracy, and was made up on seven Commissioners,
the judge of the local Vice-Admiralty Court being but one of the
Commissioners.’1109
It is worth noting that Van Niekerk’s analysis above included piracy on the basis of it being
an offence of the high seas. The substance of the piracy commission must then be
considered – these ad hoc courts did not appear to have been constituted frequently.1110 The
South African national archives contain a despatch from the Secretary of State, London,
‘renewing the Commission for Piracy on the High Sea’ on 1 September 1838.1111 The
despatch containing this commission is reproduced in the appendix et seq, the preambular
Van Niekerk ‘Denis O’Bryen (nominally) Second Marshal of the Vice-Admiralty Court of the
Cape of Good Hope, 1806-1832’ 21 Fundamina (2015) 142 at 143.
1105
Idem.
1106
Van Niekerk ‘The Natal Vice Admiralty Court: A brief historical introduction with specific
reference to its constitutional “crisis” of 1864’ 10 Fundamina (2004) 224 at 225.
1107
Idem.
1108
Van Niekerk states idem, at 227, that ‘Vice Admiralty Courts also exercised a criminal
jurisdiction, for instance in trying those accused in the colonies of piracy or criminal transgressions
of English maritime and merchant-shipping legislation.’
1109
Van Niekerk (2015) at 146-147.
1110
Idem at 146, fn 20.
1111
Western Cape Provincial Archives: KAB/GH/1/123/00/1911/1.
1104
220
paragraphs of which, cite the suite of British legislation pertaining to piracy, and empowers
the commission to ‘diligently discharge the respective Duties of taking Informations, and
of Apprehension, Commitment, and Bailment’ in matters of inter alia piracy.1112 Of
particular importance is the clause regarding how the offence of piracy may be committed:
‘whomsoever, and howsoever done or committed, or hereafter to be done or
committed, upon the Sea, or in any Haven, River, Creek, or Place where the
Admiral has Power, Authority, or Jurisdiction’.1113
As is explicit in this clause, the jurisdiction is wide and does not appear to be hindered by
the geographical distinction between the high seas and territorial seas. The jurisdiction
closely parallels the early English jurisprudence set out in the third chapter of this thesis.
The Vice Admiralty Courts in the Cape and Natal colonies, on the other hand, were never
busy,1114 and the piracy commissions were not frequent. The question of whether there were
any instances of piracy that were adjudicated a piracy commission in either the Cape or
Natal, or any of the colonial courts, has not been investigated thus far in academic
scholarship. Although, as Fouché concludes, ‘[i]t can thus be accepted that to date [2006]
no incidents of piracy have taken place in South Africa’,1115 the present researcher’s perusal
of archival records reveals one unreported case which merits a discussion here.
On 25 September 1850, William Porter, the Attorney-General of the Cape Colony, issued
an indictment against John Burgin, Archibald Currie, Allan Munro, James Smith, Horam
Leavitt, Archibald Leitch, Jules Dufant, Pierre Marie Pinnochet, James Ferguson, John
Adams, John Nelson and Thomas Crocker for the crime of piracy under the English
Statute:1116 An Act for the more effectual Suppression of Piracy of 1700, 1117 and assault in
the alternative. The facts of the indictment reveal that on 6 July 1850, the accused were
1112
Idem at 99.
Idem.
1114
Van Niekerk (2015) at 145, comments that the ‘Court [Cape Vice Admiralty Court] was never
really busy and the possibility of its discontinuance was even raised.’ He also comments in Van
Niekerk (2004) at 241, that the ‘Natal Vice Admiralty Court was never very busy’, and at 242
explains that the main reason for this was that ‘there was no major war in progress during the Court’s
lifetime and hence it could never exercise the jurisdiction most frequently exercised by the Vice
Admiralty Courts, namely prize jurisdiction’. His research into the Vice Admiralty Court in Natal
shows (at 247) that the Court only heard six cases: two were reported in the law reports and four
unreported judgments were contained in archival records – none of which pertained to piracy.
1115
Fouché ‘Policing Piracy and Armed Robbery of Ships in South Africa’s Territorial Waters and
Contiguous Zone’ Unpublished DTech thesis, Tshwane University of Technology (2006) at 14.
1116
11 & 12 William III c. 7 (1700); 4 Statutes at Large (1769 ed.) 40; Rubin (1988) at 362.
1117
Western Cape Provincial Archives: KAB/CSC/1/2/1/46.
1113
221
serving as mariners on board a British vessel, India, when they conducted a revolt on the
vessel, assaulting the Master, William Campbell, confining him in the cabin, and assuming
command of the ship for a period of three days. The matter was transferred on 6 September
1850 from the Supreme Court of the Cape Colony to an ordinary Circuit Court for the
Division of Uitenhage. Judgment was delivered by the Honourable Mr Justice Menzies on
25 September 1850. The case was heard before a jury, who found all the accused, except
Dufant and Furguson, guilty. The sentence imposed on some of the accused was one year
with hard labour, and the others were sentenced to four months with hard labour. No
judgment was issued on the merits of the case, nor was a transcript of the proceedings kept
on file. From the scant information regarding the incident, it is evident that this was a case
of mutiny, and, if applied to the present definition of piracy under UNCLOS, this would
not constitute an act of piracy for want of the ‘two-ship’ requirement. However, under the
Statute cited, an act of mutiny also qualified as an act of piracy.1118 The indictment states
that the act occurred approximately 20 miles (17 nautical miles) from ‘Cape L’Agulhas’ in
the Cape Colony, and that this position was simply recorded as being on the ‘high sea’. No
reference was made to any conception of territorial waters of the colony, or the breadth
thereof.1119
During the Twentieth Century, at roughly the same time that the work of the Harvard
Researchers commenced on preparing a draft convention, Stanley Morrison, a Professor of
Law at Stanford University, prepared a collection of piracy laws of various countries with
the purpose of rendering assistance in the preparation of the draft convention on piracy.1120
The entry for the Union of South Africa reads:
1118
See article IX of 11 & 12 William III c. 7 (1700). The domestic Defence Act, 42 of 2002, in
section 24(2), contains a clause which brings within the ambit of piracy, any piratical acts committed
by the crew of a warship or government ship that has mutinied and taken control of the ship. See
article 102 of UNCLOS.
1119
The preambular paragraph of the Statute idem contains this wide jurisdiction clause: ‘That all
Piracies, Felonies, and Robberies committed in or upon the Sea, or in any Haven, River, Creek, or
Place where the Admiral or Admirals have Power, Authority, or Jurisdiction, may be examined,
inquired of, tried, heard and determined, and adjudged, according to the Directions of this Act’. With
respect to this period of British rule at the Cape Colony, Vrancken in ‘The Marine Component of
the South African Territory’ 127 South African Law Journal (2010) 207 at 212, states that it is
‘unclear whether the waters adjacent to the Cape formed part of its territory’, and he cites idem a
dictum from a US Supreme Court judgment in United States v California 332 US 19 that:
‘the idea of a three-mile belt over which a littoral nation could exercise rights of ownership was but
a nebulous suggestion. Neither the English charters granted to [the American] settlers, nor the treaty
of peace with England, no any other document to which [the court] was referred, showed a purpose
to set apart a three-mile ocean belt for colonial or state ownership.’
1120
Morrison ‘Part V: A Collection of Piracy Laws of Various Countries’ 26 Supplement: Research
in International Law American Journal of International Law (1932) 887.
222
‘No laws relating to the subject of piracy appear to have been passed by any
South African legislature, either before or subsequent to Union. The British
legislation controls.’1121
Lansdown and Gardiner,1122 who discuss piracy in South African law post Union in their
seminal work on South African criminal law procedure, confirm this position.1123
To sum up the developing piracy jurisprudence in South Africa is thus not a complicated
task: prior to the unification in South Africa, the two colonies with maritime interests – the
Cape Colony and Natal – acted under instructions from London and applied English
statutes, notably with the wide jurisdiction contained therein. There were too few instances
of piracy to enable domestic courts or tribunals to significantly develop any legal principles
unique to the situation in Southern Africa. South Africa has played a role by making
submissions during the various stages of the codification process, as outlined in the
previous chapter, but this did not make any significant impact on the domestic legal regime.
As indicated in the previous section, the first three quarters of the twentieth century saw
little or no academic scholarship or legal developments in South Africa pertaining to piracy.
Vrancken and Pike remarked that ‘the law of the sea lacked any noteworthy scholarly
attention until the early 1970s when an interest in the field was generated mainly by the
convening of UNCLOS III’.1124
3.5
The present legal framework
With very little historical jurisprudence to draw upon, a framework which incorporated
international law concerning piracy into the domestic regime did not occur until quite
recently. Furthermore, there have been no cases brought before South African courts,
pursuant to any transfer agreement, to prosecute pirates.1125 The discussion below considers
1121
Idem at 942.
Lansdown and Gardiner 2 South African Criminal Law and Procedure 3rd ed. (1930).
1123
Idem at 726. It is also noteworthy that they cited the work of Hall (at 727), who put forward the
view (with my emphasis) that ‘piracy consists in acts of violence done upon the ocean or
unappropriated lands, or within the territory of a State through descent from the sea, by a body of
men acting independently of any politically organised society’. They reject this view and suggest
that the definition by Hall is ‘too wide and it would embrace acts which, though criminal, would
certainly not be regarded as piracy’ (idem). Despite these contrary views, they recognised that piracy
jure gentium has no universally recognised definition.
1124
Vrancken and Pike ‘Marine and Maritime Law in South Africa’ in Funke et al (ed.) Reflections
on the State of Research and Technology in South Africa’s Marine and Maritime Sectors (2015) at
29.
1125
The only recent matter, according to the information available to the present researcher, brought
before the South African courts involving piracy, was a civil application to set aside the deemed
arrest in rem of a vessel. The arrest was affected pursuant to s 3(4)(a) of the Admiralty Jurisdiction
Regulation Act, 105 of 1983 – to enforce a maritime lien for its crew members’ unpaid wages while
1122
223
the existing legislation and the framework it creates for South African anti-piracy measures.
The discussion will be considered from three perspectives: (i) the legal position regarding
piratical acts in South African territorial waters; (ii) the legal position regarding piratical
attacks on the high seas and the implications for enforcement and adjudicatory jurisdiction;
(iii) the position regarding piratical acts in the territorial waters of another state and the
implications for enforcement and adjudicatory jurisdiction. Each of these considerations
will be looked at in turn below.
3.5.1
Acts in South African territorial waters:
The first point of discussion to be had at the outset, as worded by Vrancken, is to determine
‘how far at sea the state has actually extended its territory in terms of domestic law’.1126
Given that international law provides that the territorial sea is part of the territory of the
coastal state, and international law is part of South African law,1127 Friedman, J in Yorigami
Maritime Construction Co Ltd v Nissho-Iwai Co Ltd held:
‘According to international law, if the municipal law of a State does not by a
statute extend its jurisdiction over its maritime belt, its Courts ought to
presume that since by the law of nations the jurisdiction of a State does extend
over its maritime belt, their sovereign has tacitly consented to that wider range
of its jurisdiction … By international law the territory of a State consists in
the first place of the land within its boundaries, but to this must be added, in
the case of a State with a sea coast, certain waters which are within or adjacent
to its land boundaries. These waters include its territorial waters.’1128
With a broader approach to interpreting the juridical nature of the territorial waters as
forming part of the territory of South Africa,1129 the Maritime Zones Act1130 in section 4(2)
provides that: ‘[a]ny law in force in the Republic, including the common law, shall also
apply in territorial waters’. Therefore, South African law extends to piratical acts
they were hijacked and held hostage by Somali pirates for a ransom: Windrush Intercontinental SA
v UACC Bergshav Tankers AS (556/2015) [2016] ZASCA 199 (6 December 2016).
1126
This issue was considered in detail in Vrancken (2010) at 208. See, also, Soni ‘Territorial waters
and jurisdiction’ 12 Comparative and International Law Journal of Southern Africa (1979) 199205; Botha ‘Municipal jurisdiction over territorial waters’ 4 South African Yearbook of International
Law (1978) 177-178.
1127
See South Atlantic Islands Development Corporation Ltd. v Buchan, 1971 (1) SA 234 (C) at
238; Sanders ‘The applicability of customary international law in South African law – the Appeal
Court has spoken’ 11 Comparative and International Law Journal of Southern Africa (1978) 198207.
1128
1977(4) SA 682 (C) at 695 E-F; Vrancken (2010) at 210 and 218.
1129
Vrancken (2010) 217-223.
1130
15 of 1994.
224
committed in its territorial waters. Vrancken and Hoctor note that there was no specific
crime of piracy in erstwhile domestic legislation, because such ‘acts which may have fallen
within the ambit of piracy could be prosecuted on other grounds for liability. These could
either take the form of the common-law crimes of robbery, assault or murder as the case
may be, or statutory offences’.1131
Fouché notes that: first, ‘a pirate attack on a ship in South Africa’s EEZ would be
considered an attack on a ship in a place within the jurisdiction of a state and in terms of
South African legislation would be dealt with as robbery and not piracy’;1132 and second,
the EEZ has the effect of ‘shrinking considerably the area formerly known as the high seas,
and the only area in which piracy can be committed’.1133 It is submitted that such a findings
are incongruous with the provisions of article 58(2) of UNCLOS, which reserves the EEZ
for an enumerated list of competencies, and for which all other purposes, the EEZ is treated
in the same manner as the high seas.1134
3.5.2
Acts on the high seas or places outside the jurisdiction of South Africa
Earlier in this chapter, much was said about South Africa’s role in anti-piracy activities and
enforcement of the UNCLOS regime. The powers vested in the South African National
Defence Force must therefore be placed in a legal context. South Africa ratified UNCLOS
on 23 December 1997,1135 and thereby began a process to domesticate the provisions of
UNCLOS into legislation. This was achieved by the enactment of certain provisions of the
Defence Act 42 of 2002 (hereafter referred to as the DA).1136 Salient provisions of the DA
pertaining to piracy are contained in chapter four, which provides for ‘law enforcement
powers of Defence Force at sea’. An overview of these provisions is herein outlined:1137
Section 24(1) replicates the provisions of article 101 of UNCLOS, with a few immaterial
changes,1138 while section 24(2) incorporates the provisions of article 102 of UNCLOS,
especially relating to acts of piracy committed by the crew of a warship or government
Vrancken and Hoctor ‘The contribution of the Defence Act to the fight against piracy’ 31 Obiter
(2010) 428 at 429.
1132
Fouché (2006) at 200.
1133
Idem at 201-202.
1134
As discussed in the previous chapter, at length.
1135
See: http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm.
1136
A full treatment of the piracy provisions of the DA was undertaken in Vrancken and Hoctor
(2010) at 428-433.
1137
A full reproduction of this section appears in the annexure appended et seq.
1138
See Vrancken and Hoctor (2010) at 430. They note idem that the inclusion of the ‘Master’ as a
member of the crew for the purposes of section 24(1)(a), was because domestic law ‘regarded the
master separately from … other persons serving on board’.
1131
225
ship, which seized control of said ship through mutiny. Section 24(3) vests authority in
South African courts to prosecute suspects who commit the offence of piracy.1139 When
compared to the piracy prosecutions conducted by Kenya, as outlined below, a key
impediment was observed, namely the absence of the equivalent provisions of section 24
of the DA in Kenyan domestic legislation at the time.
Section 25 of the DA deals with enforcement jurisdiction,1140 and provides that this would
be done in accordance with articles 105 and 107 of UNCLOS. This is a domestication of
the UNCLOS enforcement regime, and, as discussed in the prefatory to this chapter, applies
to acts of piracy committed on the high seas or places outside the jurisdiction of any state.
The adjudicatory aspect of article 105 of UNCLOS, which provides that ‘[t]he courts of the
State which carried out the seizure may decide upon the penalties to be imposed, and may
also determine the action to be taken with regard to the ships, aircraft or property, subject
to the rights of third parties acting in good faith’, has received differing interpretations,
particularly with regard to transfer agreements whereby foreign navies which capture
pirates hand them to a third party state (in this instance Kenya) for prosecution. Geiß and
Petrig note that ‘some scholars maintain that the second sentence of Article 105 UNCLOS
provides the competence to criminally prosecute piracy suspects exclusively to the seizing
state, i.e. that only the State arresting the pirates would be granted adjudicative jurisdiction
over the alleged offenders’.1141 Gathii, at the time of piracy prosecutions in Kenya where
the pirates were transferred for prosecution by third party capturing states, argued that the
‘prosecutions are arguably illegal under Article 105 of [UNCLOS]’.1142 However, Geiß and
Petrig oppose this limited interpretation of Article 105, and find that, on this basis,
‘domestic criminal law defines the crime, procedure and sanction; while the universal
competence to criminally prosecute pirates is provided under customary international
The section provides that ‘Any person who commits an act of piracy is guilty of an offence,
which may be tried in any court in the Republic designated by the Director of Public Prosecutions
and, upon conviction, is liable to a fine or to imprisonment for any period, including life
imprisonment.’
1140
The section provides:
‘(1)
An officer of the Defence Force may seize a ship or aircraft and the property on board, and
arrest any person on board, in accordance with articles 105 and 107 of UNCLOS;
(2)
Any officer of the Defence Force who exercises any power referred to in this section inside
or outside the Republic, must be regarded as being a peace officer as defined in section 1 of the
Criminal Procedure Act, 1977;
(3)
Any ship, aircraft or property seized, or any person arrested, in terms of this section, must
as soon as possible be brought to the Republic or to any other authority determined by the Minister
of Foreign Affairs, with the concurrence of the Ministers of Defence and of Justice, to be dealt with
in accordance with applicable law.’
1141
Geiß and Petrig (2011) at 148 and 197.
1142
Gathii ‘Jurisdiction to prosecute non-national pirates captured by third states under Kenyan and
International Law’ 31 Loyola of Los Angeles International and Comparative Law Review (2009)
373 at 375.
1139
226
law’.1143 Returning focus back to the DA, these reservations about transfers seem to be
addressed in section 25(3), which provides that the arrested suspect or seized property ‘must
be brought to the Republic or to any other authority’.1144 Also worth noting is the
peremptory orientation of the provision by the obligation of South Africa to bring the
suspects and property to South Africa, or to facilitate a hand-over to another authority,
especially by the use of the term ‘must’, whereas the wording of article 105 of UNCLOS
is permissive by use of the word ‘may’.1145
3.5.3
Acts in foreign territorial seas
Customary international law on piracy or piracy jure gentium, as reflected in UNCLOS,
clearly stipulates that the powers conferred therein on states to exercise universal
jurisdiction in anti-piracy measures, are limited to the high seas or a place outside the
jurisdiction of any state. Accordingly, no provision provides a general mandate to enter the
territorial waters of another state to repress piracy. It follows, therefore, that no
corresponding provision exists in South African legislation, which confers this power to
the South African National Defence Force to exercise enforcement jurisdiction in the
territorial waters of another state. It has been seen in aforementioned sections that, pursuant
to Memoranda of Understanding with neighbouring states, South Africa engaged in
enforcement jurisdiction in the territorial waters of states in the Mozambique Channel, as
predicated on consent and cooperation. The DA facilitates this approach: section 22(3)
provides: ‘No enforcement outside the territorial waters of the Republic may take place(a) in the territorial waters of a foreign state, unless it takes place on board a South African
ship or in pursuance of an agreement on co-operation in law enforcement with that state’.
Furthermore, measures to facilitate cooperation in interdiction measures can be found in
section 29 of the DA.1146 These provisions can be seen as a strength in fostering an
enforcement regime external to South Africa’s territorial waters.
Geiß and Petrig (2011) at 148. Roach (2010) at 404 also notes that ‘[t]he argument that only the
state of the capturing force has international jurisdiction to try the pirates is inconsistent with the
strong duty of cooperation in the international law of piracy articulated by Article 100’.
1144
Vrancken and Hoctor (2010) at 432, note that ‘[i]t is unclear whether the “other authority” must
be a South African authority which may only exist in exceptional circumstances … or whether it
may, and would in most instances be, a foreign authority’.
1145
This could be interpreted to mean that the practice of ‘catch and release’ would be contrary to
the provisions of this section. In any event, a missive issued by the Department of Defence stipulates:
‘[t]he current practice of ‘catch-and-release’ of pirates should be stopped since it allows experienced
pirates to execute more sophisticated acts of piracy. Therefore SADC should strengthen and
harmonise regional and domestic legal frameworks for arrest, awaiting trial detention, prosecution
and imprisonment or repatriation of pirates.’
See: http://www.dod.mil.za/operations/international/operation_copper.htm.
1146
The section provides: ‘Co-operation with foreign states
1143
227
3.6
Summative remarks
Notwithstanding a scant historical jurisprudence to combat piracy, as seen in the excursus
to this section, the DA, as the primary piece of legislation in engaging in enforcement
measures and ensuing prosecution,1147 is consistent with the present international
framework. South Africa, by virtue of sections 231-233 of its Constitution,1148 would be
bound by the provisions of article 100 of UNCLOS, which requires that ‘[a]ll 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’. Based this incorporation of customary
international law into domestic law, changes to the UNCLOS regime, as will be proposed
in this thesis, can be integrated into the DA regime. It has been shown that anti-piracy
measures are needed in territorial waters. South Africa’s problems, however, do not lie with
its legal framework, but rather with policy considerations and its ability to manage differing
priorities in the context of its developing economy, low military spending, and the need to
assert its role as a regional power on the African continent.
IV.
4.1
MUNICIPAL FRAMEWORKS: KENYA
Kenyan jurisprudence
Unlike in South Africa, according to Wambua, the word piracy was ‘unknown to many
Kenyan legal scholars and indeed was of little significance to most Kenyan legal
(1)
Subject to subsection (2), any officer of the Defence Force serving on a warship or military
aircraft of the Defence Force or any other ship or aircraft on government service specially authorised,
may, in respect of any violation of the law of a foreign state(a)
seize any vessel;
(b)
arrest any person on board such vessel;
(c)
seize any property on board such vessel;
(d)
conduct a hot pursuit operation in relation to such vessel;
(e)
escort such vessel to a foreign port;
(f)
surrender such vessel, person or property to the authorities of the foreign state contemplated
in paragraph (e); and
(g)
assist in any of the actions contemplated in paragraphs (a) to (e).
(2)
An action contemplated in subsection (1) may only be taken(a)
in pursuance of a reciprocal agreement on co-operation in law enforcement at sea between
the Republic and the relevant foreign state;
(b)
if the law enforcement measure taken, is consistent with the agreement;
and
(c)
if the relevant foreign state may take the law enforcement measures contemplated in
subsection (1) (a) to (e) under international law.’
1147
While the DA is the primary piece of legislation, it is noteworthy that the offences listed in
article 3 of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation (1988), has been domesticated in the Protection of Constitutional Democracy against
Terrorist and related activities Act 33 of 2004.
1148
The Constitution of South Africa, 1996.
228
practitioners until 2006’.1149 While Kenya was not a major role-player in exercising naval
countermeasures within the region, as pursuant to UN SC Resolution 1816, it was a major
player in the second leg of article 105 of UNCLOS – dealing with the prosecution of pirates
who were captured,1150 and thus merits a review in this section of the thesis. While the
primary enquiry of this thesis regards the extension of the enforcement regime into the
territorial sea, the direct result of such enforcement jurisdiction, namely the discretion to
prosecute the captured suspects, deserves some attention here. Particular attention will be
placed on aspects of Kenyan law, and the opinions of the principal commentators on
Kenya’s legal system, especially as it pertains to pirates.
A starting point would be to cite the now repealed section of the Penal Code of Kenya,
which criminalised the offence of piracy:
‘Any person who, in territorial waters or upon the high seas, commits any act
of piracy jure gentium is guilty of the offence of piracy.’1151
This provision, deceptively short and vague,1152 raises an interesting question on the locus
of piracy. The reference to piracy jure gentium is a reference to customary international
law, which is generally accepted as having been codified in UNCLOS.1153 The UNCLOS
provisions, as set out in numerous places in this thesis, is confined to the high seas or a
place outside the jurisdiction of a state. The wording of the provision extends the notion of
piracy to territorial waters,1154 thus expanding the ambit of the UNCLOS provision.
Although it is understood as referring to Kenyan territorial waters,1155 the provision does
not explicitly define the ‘territorial waters’ to be exclusively that of Kenya. Furthermore, it
was held by the Kenyan High Court that the provision does not provide an express
Wambua ‘The legal framework for the adjudication of piracy cases in Kenya: Review of the
jurisdictional and procedural challenges and the institutional capacity’ in Petrig (ed.) Sea Piracy
Law: Selected National Frameworks and Regional Legislative Approaches (2010) at 3.
1150
Hodgkinson (2015) at 45. See, also, Sterio ‘Incorporating International Law to establish
jurisdiction over piracy offences’ in Scharf et al (ed.) Prosecuting Maritime Piracy (2015) at 97.
1151
Section 69(1) of the Penal Code, Chapter 63, The Laws of Kenya (2009) at 43.
1152
Gathii (2009) at 373, considers that the provision provides ‘prosecutorial authorities with little
guidance on what the elements of the crime of piracy jure gentium are’.
1153
See the discussion in chapter 4 at section 6.2. In Ex Parte Mohamud Mohamed Hashi and others
MISC. Application no. 434 of 2009 (9 November 2010), however, the Judge (at 39) held that ‘the
offence of piracy [adapting the provisions of article 101 of UNCLOS] in section 371 of the new Act
[Merchant Shipping Act of 2009, discussed infra] is a new offence and separate and distinct from
the “piracy jure gentium” which came into existence centuries ago and found its way into our law
in 1967.’
1154
Gathii (2010) at 421-422; Sterio (2015) at 96.
1155
See Gathii (2009) at 372.
1149
229
definition of what constitutes the high seas.1156 Gathii observes that this provision
‘presumably creates universal jurisdiction meaning that a pirate’s contacts with Kenya are
totally irrelevant when determining whether or not a Kenyan court has jurisdiction to
prosecute the pirate’.1157
Pursuant to certain Memoranda of Understanding,1158 Kenya agreed to prosecute captured
pirates in its courts. The pirate suspects were not nationals of Kenya, and none of the pirates
being tried were captured by the Kenyan military.1159 The first matter was brought before
the Chief Magistrate’s Court in Mombasa in 2006, and the accused, Hassan Ahmed and
nine others, were charged and convicted for piracy under the Penal Code cited above for
the hijacking of the Indian-flagged MV Safina al Bisarat on the high seas. As to
jurisdiction, the Magistrate found that she had jurisdiction to hold the trial under the Penal
Code, which is in accordance with international law.1160 She also held that ‘piracy is a crime
against mankind which lies beyond the protection of any state’.1161
They appealed their conviction to the High Court before Azangalala J. One of the grounds
of appeal was that the Magistrate erred in law in her finding that she had jurisdiction to try
the case. The basis of contention was that none of the parties involved were Kenyan, and
that the offence was committed on the high seas. Azangalala J was satisfied with the act
committed constituting piracy, which is justiciable under the Penal Code.1162 In the
alternative, the judge held that, even if the Penal Code were silent on the offence of piracy,
the court a quo would have been guided by article 101 of UNCLOS,1163 whose provisions
would have applied if there had been deficiencies in the Penal and Criminal Procedure
Code.1164 The judge accepted the version of counsel on both sides that UNCLOS had been
1156
Ex Parte Mohamud Mohamed Hashi and others at 24.
Gathii (2009) at 372. See, also, Wambua (2009) at 18-19.
1158
Acts adopted under title V of the EU treaty: council decision 2009/293/CFSP of 26 February
2009, Official Journal of the European Union (2009) at L79/47-59. See Surbun ‘The developing
jurisprudence to combat maritime piracy: A crime of the high seas?’ 43 Comparative and
International Law Journal of Southern Africa (2010) 1 at 8; Geiß and Petrig (2011) at 276
(containing excerpts); and Hodgkinson (2015) at 46.
1159
For a complete discussion on this, see Gathii (2009) 363-404; Roach (2010) 397-416; Gathii
‘Kenya’s Piracy Prosecutions’ 104 American Journal of International Law (2010) 416-436;
Wambua (2010) 14-19; Wambua ‘Prosecution of maritime piracy cases in Kenya: Testing the SUA
Convention Model on piracy prosecution’ 2014 Special Edition 1 Acta Criminologica 76-91; Sterio
(2015) 95-99; and Hodgkinson (2015) 45-47.
1160
Cited in the appeal judgment: Hassan M. Ahmed v Republic (2009) eKLR at 3.
1161
Idem. The use of the term ‘crime against mankind’ is synonymous with the phrase hostis humani
generis discussed in chapter 3 of this thesis. See, also, Gathii (2010) at 423.
1162
Idem at 5.
1163
Idem.
1164
Idem. Gathii (2010) at 425, comments that ‘the LOS Convention is used to affirm the existence
of universal jurisdiction over piracy as an independent basis for exercising jurisdiction over non1157
230
domesticated in Kenyan law.1165 She held further that, ‘even if the Convention had not been
ratified and domesticated, the Learned Principal Magistrate was bound to apply
international norms and instruments since Kenya is a member of the civilized world and is
not expected to act in contradiction to expectations of member states of the United
Nations’.1166
The judgment as a whole was brief with very little probative analysis,1167 but it provides a
binding precedent, which gave Kenyan Magistrates’ courts the jurisdiction to hold piracy
prosecutions against non-nationals captured outside the country. The case was a departure
from Kenya’s traditional dualist stance.1168 Gathii observes that ‘Kenyan courts have
adopted an especially expansive understanding of their jurisdiction to prosecute these
pirates without addressing the problems posed by the fact that article 105 of the UNCLOS
presupposed jurisdiction primarily belongs to States which actually capture pirates’.1169
In 2009, Kenya passed a new Merchant Shipping Act1170 (MSA) ‘in order to provide a
precise definition of the offence and incorporate the provisions of [UNCLOS] and
[SUA]’.1171 The MSA helped ensure Kenyan domestic law compliance with international
law.1172 Wambua summarises the effect of the MSA, which ‘not only extended the
jurisdiction of the Kenyan Courts to try piracy committed by non-nationals on the High
Kenyan nationals charged with committing offences on the high seas. Thus, international law, rather
than domestic law, is invoked not simply to fill a statutory gap or to help in interpreting a statute but
as a legal justification establishing the piracy jurisdiction of Kenyan courts over non-nationals who
had committed the offense extraterritorially and been captured by foreign forces.’
1165
Wambua (2014) at 85, finds that this position taken by the judge was erroneous. He states that
‘Kenya is a dualist state and therefore parliament had to pass enabling legislation to give effect to
international conventions which the country has signed, acceded or ratified.’
1166
Idem at 6. The judge cites idem a ‘Text book on International Law by Martin Dixon NA at page
76’, which states that ‘It seems clear that piracy, war crimes and crimes against humanity are crimes
susceptible to universal jurisdiction under customary international law.’
1167
Wambua (2009) at 17.
1168
For an overview of the dualist and monist debate, see Wambua (2014) at 79.
1169
Gathii (2009) at 423.
1170
Entry into force: 1 September 2009, Part XVI [Maritime Security]. Gathii (2010) at 429,
observes that the MSA ‘definitively established jurisdiction in Kenyan courts over non-nationals
captured on the high seas.’ See, also, Gathii (2009) at 390.
1171
See UN Doc. S/2011/30 [25 January 2011] at par. 51.
1172
Hodgkinson (2015) at 47; Sterio (2015) at 98. Sterio (2015) cites two judgments following the
enactment of the MSA: the first was where a trial-level judge ‘ordered the freedom of several
suspected pirates in 2010, declaring that the [MSA] gave Kenya jurisdiction only over piracy cases
in its own territorial waters’ (at 98, citing a media report: Machuchi ‘AG Files appeal against ruling
on piracy cases’ Daily Nation (11 April 2011)). Sterio cites further how this judgment was
overturned on appeal with the appellate court holding that ‘Kenyan courts have jurisdiction to
prosecute suspected pirates regardless of the geographic location of their alleged criminal acts and
regardless of the suspects’ nationalities’ (idem at 98, citing a media report: DiLeonardo ‘Kenya
Appeals Court allows jurisdiction over international piracy cases’ Jurist (18 October 2012)).
231
Seas, it also defines more extensively and comprehensively the offense of piracy than was
previously defined under the repealed section’.1173
Section 369 adopts and domesticates the UNCLOS definition of piracy in article 101, and
also defines ‘armed robbery against ships’.1174 Section 370 adopts the offences of hijacking
and destruction of ships in article 3 of SUA, with that same section going further than SUA
with the inclusion of subsection 370(4):
‘Subject to subsection (5), subsections (1) and (2) shall apply –
(a) whether the ship referred to in those subsections is in Kenya or
elsewhere;
(b) whether any such act as is mentioned in those subsections is committed
in Kenya or elsewhere; and
(c) whatever the nationality of the person committing the act.’
Wambua1175 and Gathii1176 both find that this subsection confers a jurisdiction wider than
the SUA. A further development in the Kenyan system is the move towards a monist state
with a clause in its new Constitution which indicates that ‘the general rules of international
law shall form part of the law of Kenya’, and ‘any treaty of convention ratified by Kenya
shall form part of the law of Kenya under this Constitution’.1177 Having defined the offences
of piracy and armed robbery, section 371 provides:
‘Any person who –
(a)
commits any act of piracy;
(b)
in territorial waters, commits any act of armed robbery against
ships
shall be liable, upon conviction, to imprisonment for life.’
These provisions of the MSA constitute Kenya’s legislative regime on piracy. What has
not been commented on, however, regarding the incorporation of article 101 of UNCLOS
1173
Wambua (2014) 82.
‘armed robbery against ships’, according to the section, means ‘any unlawful act of violence or
detention or any act of depredation, or threat thereof, other than an act of piracy, directed against
persons or property on board such a ship, within territorial waters or waters under Kenya’s
jurisdiction’ (my emphasis).
1175
(2014) at 82.
1176
(2009) at 382.
1177
Kenya Constitution, article 2(5) and 2(6) (2010); See Sterio (2015) at 95.
1174
232
in the MSA in section 369, is the omission of the locus on piracy. The section adopts
UNCLOS as follows, with the parts of the omitted UNCLOS wording in parenthesis:
‘“piracy” means—
(a)
any [illegal] act[s] 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; or
(ii)
against a ship, aircraft, persons or property in a
place outside the jurisdiction of any State’.
If read in isolation, section 369(1)(a)(i) proposes that piracy can occur anywhere and not
solely on the high seas. Since the first piracy prosecution in 2006, Kenyan courts and
legislature have engaged with the jurisdictional complexities, with the judicial officers
often noting the dearth of jurisprudence in Kenya on piracy. The locus of the crime in this
context, raised questions regarding the extraterritorial application of Kenyan law before the
passing of the MSA. It remains to be seen, however, whether the omission of the term ‘high
seas’ in the MSA definition of piracy will have any further consequence.
4.2
Summative remarks
Kenya has made a progressive step in the enactment of the MSA, and its monist stance
under its new Constitution allows for an easier incorporation of potential amendments to
the UNCLOS regime. Of particular value to the present discussion has been Kenya’s
extended jurisdiction under section 369 and 370 when compared to the provisions of
UNCLOS. In comparing the South African and Kenyan position relating to piracy off the
East African seaboard, the South African emphasis has been on enforcement, while Kenyan
emphasis has been on prosecution. It has been shown how the locus of a piratical act has
been a critical element in forging an enforcement and prosecutorial regime.
233
V.
5.1
AFRICAN CONTINENTAL FRAMEWORK
Prefatory
To assess the regime pertaining to piracy from a continental perspective, it is necessary and
useful to traverse Africa’s position on maritime matters holistically, before specific
strategies pertaining to maritime security and ultimately piracy are examined. The section
will firstly consider the approach of the Organisation of African and Unity (OAU) and
thereafter consider the efforts of its successor, the African Union (AU).
5.2
Antecedents of continental perspectives pertaining to the law of the sea: a
brief general survey
On a Wednesday morning, on 1 November 1967 at a meeting of the First Committee of the
UN General Assembly,1178 the Permanent Representative of Malta to the UN, Dr. Arvid
Pardo delivered a seminal address1179 which startled the international community and was
described in later years as ‘prophetic’ by the UN1180 and well documented in subsequent
scholarly commentary.1181 He called upon delegates to consider the resources of the ocean,
particularly the deep sea bed, as the common heritage of all mankind.1182 He spoke in detail
about the undiscovered riches and resources of the ocean1183 and how major technological
developments were making the seabed accessible and exploitable.1184 He observed that the
‘[c]urrent international law encourages the appropriation of this vast area by those who
have the technical competence to exploit it’.1185 Writing during the period of the Cold War,
he highlighted the grave consequences of the state of affairs and bemoaned that:
The agenda for the meeting was: “[An] Examination of the question of the reservation
exclusively for peaceful purposes of the sea-bed and ocean floor, and the subsoil thereof, underlying
the high seas beyond the limits of present national jurisdiction, and the use of their resources in the
interests of mankind.”
1179
United Nations Official Records (XXII) First Committee, 1515th Meeting (1 November 1967).
The full text of the speech can be accessed at:
http://www.un.org/depts/los/convention_agreements/texts/pardo_ga1967.pdf.
1180
See United Nations Press Release SEA/1619 (1999).
Available at: https://www.un.org/press/en/1999/19990716.SEA1619.html
1181
See for example Anand (ed) 3 Law of the Sea: Caracas and Beyond (1980) at 1 and Rembe
(1980) at 39.
1182
He asks at par 64: “…[I]t is clear that the sea-bed beyond the 200-metre isobaths will soon be
subject to exploitation. The only question is, will it be exploited under national auspices for national
purposes, or will it be exploited under international auspices and for the benefit of mankind?”
1183
See for example at par. 26 of his address.
1184
See for example at par. 44 of his address.
1185
Par. 90 of his address.
1178
234
‘[s]ome countries may therefore be tempted to use their technological
competence to achieve near unbreakable world dominance through
predominant control over the sea-bed and ocean floor. This, even more than
the search for wealth, will impel countries with the requisite technical
competence competitively to extend their jurisdiction over selected areas of
the ocean floor. The process has already started and will lead to a competitive
scramble for sovereign rights over land underlying the world’s seas and
oceans, surpassing in magnitude and in its implication last century’s colonial
scramble for territory in Asia and Africa. The consequences will be very
grave: at the very least a dramatic escalation of the arms race and sharply
increasing world tensions, cause also by the intolerable injustice that would
reserve the plurality of the world’s resources for the exclusive benefit of less
than a handful of nations’.1186
Pardo’s call for a regime to effectively administer the resources of the oceans was well
received and created the impetus towards UNCLOS III and ultimately the regime created
by the adoption of UNCLOS.1187 For the purposes of this discussion however, it is not the
global attention garnered by his address, but rather the interest of African states, which
merits further analysis here. Akintoba observed that ‘Pardo’s speech found an especially
receptive audience among African states because it specifically expressed concern for the
plight of developing counties and mankind as a whole. It also represented the initiative of
a developing country, one whose developmental priorities dovetailed neatly with those of
the African bloc’.1188 It reinforced the feeling of African nations at the time regarding the
resources of the ocean in general. Frank Njenga of Kenya, who conceived the concept of
the EEZ1189 remarked that ‘Africa had been watching as the supposedly inexhaustible
fishery resources off her coast were being ruthlessly and callously decimated by
1186
Par. 91 of his address.
See United Nations Press Release SEA/1619 (1999).
Available at: https://www.un.org/press/en/1999/19990716.SEA1619.html.
Pardo was thus unsurprisingly referred to as the “Father of the Law of the Sea Conference.” See also
Anand (ed.) (1980) at 2.
1188
Akintoba African States and Contemporary International Law: A case study of the 1982 Law of
the Sea Convention and the Exclusive Economic Zone (1996) at 4.
1189
At the 1972 Geneva session of the UN Sea-bed Committee, Kenya submitted the “Draft Articles
on Exclusive Economic Zone Concept.” UN Doc. A/C 138/SCII/L.10. Njenga’s raison d’etre for the
proposal was: ‘The exclusive economic zone concept is an attempt at creating a framework to
resolve the conflict of interests between the developed and developing countries in the utilization of
the sea. It is an attempt to formulate a new jurisdictional basis which will ensure a fair balance
between the coastal states and other users of neighbouring waters.’ See Asian-African Legal
Consultative Committee (AALCC) Report of the 13th Session (January 1972) at 24. See generally
Akintoba (1996) at 72-72; Rembe (1980) 116-123.
1187
235
irresponsible activities of long-distance factory ships, industries of developed
countries’.1190
Accordingly Akintoba observed that Pardo’s address ‘supplied a significant impetus that
propelled African interests forward and compelled collective African action and
participation in UNCLOS III. Joining with Latin American states in claiming resource
zones off their coast, African states began the process of reassessing their position on
ocean-related issues’.1191 The OAU, as a continental organisation, was the vehicle with
which to harmonise and unify the African position on these ocean-related issues. Its task
was not as easy one however. Njenga commented on the realities and context that African
states found themselves facing at the time. He remarked that:
‘They were confronted with an existing Law of the Sea, which…had evolved
over centuries to cater to the interests of maritime powers, a law which had
never concerned itself with African interests since Africa had played no role
in its formation. On the contrary most of the principles that had evolved were
inimical to Africa. The principle of freedom of the sea had been the channel
for the degradation of African resources over the centuries. It was used to
further the most barbaric crime against humanity – the slave trade – and also
to colonize and subjugate a whole continent to foreign domination’.1192
Rembe, also similarly commented that:
‘Most of the African States did not participate in devising the Geneva
Conventions, and favoured a new law which would reflect their views and
interests, particularly a law that would accelerate their economic and social
development, and reduce the inequalities between the developed and
developing countries’.1193
The position was against the backdrop of a continent with a vast maritime realm adjacent
to its coast1194 which had many diverging interests. Njenga, for example, described these
Njenga ‘Historical Background of the Evolution of the Exclusive Economic Zone and the
Contribution of Africa’ in Pontecorvo The New Order of the Oceans: The Advent of a Managed
Environment (1986) at 133.
1191
Akintoba (1996) at 6.
1192
Njenga (1986) at 132-133.
1193
Rembe (1980) at 122.
1194
See Akintoba (1996) at 62 for a detailed description of the geographical dimensions of the
continent’s maritime domain. See also Rembe (1980) at 3-4.
1190
236
diverging interests existing between between landlocked and coastal states, states with
broad continental shelves and those states with a negligible continental shelf, and states
with rich fisheries and those without.1195 The geostrategic importance of the continent was
readily apparent with confluences of merchant shipping transiting important shipping lanes
around the continent from the Straits of Gibraltar, the Cape of Good Hope, and the
Mozambique Channel to the Bab el Mandeb. Akintoba rightly commented that ‘Africa
stands at the crossroads of five continents’.1196
At the time of Pardo’s address, the fledgling OAU, which was formed only a few years
prior, did not contain any seminal instrument or policy pertaining to maritime matters. Its
Charter1197 contained no express provisions pertaining to maritime matters. It is
noteworthy, however, that one of the objectives of the Charter was ‘[t]o defend their
[African states] sovereignty, their territorial integrity and independence’.1198 Furthermore,
this notion was duplicated in one of the principles of the Charter, namely the ‘[r]espect for
the sovereignty and territorial integrity of each State and for its inalienable right to
independent existence’.1199 In the same vein, another purpose of the Charter is an obligation
on member states to coordinate and harmonise their general policies in the field of
cooperation for defence and security.1200
The ‘Lusaka Statement on the Sea-bed by Non-Aligned Countries’1201 which was issued in
September 1970 and submitted to the UN General Assembly echoed the earlier sentiments
of Pardo that the seabed and ocean floor beyond the limits of national jurisdiction are the
common heritage of mankind and the area shall be used for peaceful purposes. They also
supported the convening of a conference on the law of the sea to deal holistically and
comprehensively with all the maritime zones and regimes. Akintoba noted that statement
represented the ‘first substantive input of African counties to the law of the sea debate’.1202
1195
Njenga (1986) at 141.
Akintoba (1996) at 63.
1197
479 UNTS 39, adopted in Addis Ababa on the 25 May 1963 and entered into force on the 13
September of that year.
1198
See article II (1)(c).
1199
See article III (3)
1200
Article II (2)(f).
1201
NAC/CONF. 3/Res 11. The African member states included: Algeria, Botswana, Burundi,
Cameroon, Central African Republic, Chad, Congo, Equatorial Guinea, Ethiopia, Ghana, Kenya,
Lesotho, Liberia, Libya, Mali, Mauritania, Morocco, Nigeria, Rwanada, Senegal, Sierra Leone,
Somalia, Sudan, Swaziland, Tanzania, Togo, Tunisia, Uganda, Zaire and Zambia. See Rembe (1980)
at 209; Akintoba (1996) at 70. See also South African Institute of International Affairs Resolutions
of the Third Conference of Non-Aligned States: with selected Conference Statements and Comments
(1971) at 15.
1202
Akintoba (1996) at 70.
1196
237
In 1971, two resolutions were adopted by the OAU1203 and in 1972 a further resolution,
titled ‘Resolution on the Law of the Sea’ was adopted at the nineteenth ordinary session of
the OAU Council of Ministers.1204 The resolution boldly asserted that ‘the Law of the Seas
at present in force does not take into account the interests of African countries…’1205 and
saw the need for ‘…OAU Member States to concert on all the points and to harmonize their
positions in order to present a common front on the occasion of any confrontation on the
Law of the Sea’.1206 Also in 1972, the African States’ Regional Seminar on the Law of the
Sea adopted the Yaoundé Conclusions.1207 Rembe observed that the Yaoundé Conclusions
were ‘the first comprehensive attempt by African States to put together areas of consensus
and departure on the law of the sea’.1208
These developments were then articulated in the OAU Declaration on the Issues of the Law
of the Sea,1209 which was a unified continental strategy and response on matters pertaining
to the law of the sea in Africa.1210 Although the declaration covered a wide range of matters,
they were in response to and conformed to the context and general political sentiment
prevailing in the continent at the time. Thus, the declaration made no reference to matters
pertaining to security generally and piracy specifically. The OAU passed several
1203
Resolution on Fisheries OAU Doc. CM/Res. 250 (XVII) and Resolution on the Permanent
Sovereignty of African Countries over their Natural Resources OAU Doc. CM/Res. 245 (XVII).
Akintoba (1996) at 71 commented that although ‘these actions and resolutions predated formal
introduction of the EEZ concept, various attributes of the concept were clearly beginning to emerge
at this time.’
1204
Resolution on the Law of the Sea OAU Doc. CM/Res. 289 (XIX).
1205
Idem, third preambular paragraph.
1206
Idem, seventh preambular paragraph.
1207
Report of the African States’ Regional Seminar on the Law of the Sea, Yaounde, Cameroon
(June 1972): UN General Assembly Official Records Supplement 21: A/AC. 138/79. Reproduced
in Rembe (1980) at 217 and International Legal Materials 12 (January 1973) at 210. See also
Akintoba (1996) at 72. The statement was issued with recommendations under the following heads:
(1) on the territorial sea, the contiguous zone and the high seas; (2) on historic rights and historic
bays; (3) on the biological resources of the sea, fishing and maritime pollution and (4) on the
continental shelf and sea-bed. The last paragraph stated that ‘The participants expressed the
unanimous wish that these recommendations should be notified to all African States and the OAU.
The following African states participated in the seminar: Algeria, Benin, Cameroon, Central African
Republic, Cote d’Ivoire, Egypt, Equitorial Guinea, Ethiopia, Kenya, Mauritania, Nigeria, Senegal,
Sierra Leone, Tanzania, Togo, Tunisia and Zaire.
1208
Rembe (1980) at 120.
1209
OAU Doc. A/CONF.62/33 (1974). Reproduced in UN 3 UNCLOS III: Official Records (1974)
at 63-65 and Rembe (1980) at 220.
1210
The declaration emphasized that ‘African countries have a right to exploit the marine resources
around the African continent for the economic benefit of African peoples’ (ninth preambular
paragraph). The declaration was set out very briefly under nine heads, namely: territorial sea and
straits; regime of islands; exclusive economic zone concept including exclusive fishery zone,
regional arrangements, fishing activities in the high seas, training and transfer of technology,
scientific research, preservation of the marine environment; and an international regime and
international machinery for the sea-bed and ocean floor and subsoil thereof beyond the limits of
national jurisdiction.
238
resolutions on law of the sea matters during the 1970s and these inter alia emphasized the
1974 OAU declaration and the need for a harmonised approach as African nations
continued their negotiations in the various sessions of UNCLOS III.1211
Thus, the role of Africa in UNCLOS III was solidified. The input of African states were
novel, as Njenga commented: ‘If we go to the 1973 Conference steeped in the old concepts
of the law of the sea, we are bound to fail. We must find new concepts to resolve existing
conflicts of interests in the sea, so that a fair and equitable framework for the exploitation
of the seas is created’.1212 Rembe also observed that the input of the African states was ‘not
advanced on purely legal principles; it had been infused with moral arguments, economic,
political and scientific factors’.1213 African states foresaw that through promoting the EEZ
in the UNCLOS III deliberations, they were forging a ‘just legal and social order which
will reflect the modern technological, economic and political realities, and replace past
abuses and inequities’.1214
Despite these positive developments, subsequent to conclusion of UNCLOS III, the OAU
engaged with minimal policy-making relating to the law of the sea matters.1215 Indeed,
Njenga, writing a few years later in 1986, lamented that: ‘hardly any African country – for
that matter the OAU – is doing anything to realise the immense resources potential of the
seas around Africa, which are its economic zone’.1216
With all the above said, is not surprising, however, that maritime security with a focus on
piracy did not feature explicitly in any of the instruments passed by the OAU during its
existence. Firstly, Akintoba reflected on the aspirations of African coastal states during this
period which were ‘to secure greater employment and income of their people, as well as to
1211
A list of the most pertinent resolutions (between 1971 and 1980) were:
OAU Doc. CM/Res 238 (XVI)(1971) Problems of the Seabed; OAU Doc. CM/Res 289 (XIX)
(1972) Resolution on the Law of the Sea; OAU Doc. CM/Res 382 (XXIII) (1974) Resolution on the
Law of the Sea; OAU Doc. CM/Res 520 (XXVII) (1974) Admission of the People’s Republic of
Angola to [UNCLOS III]; OAU Doc. CM/Res (XXVII) (1976) International Zone Extending
Beyond National Jurisdiction; OAU Doc. CM/Res 570 (1977) Resolution on the Law of the Sea;
OAU Doc. CM/Res 745 (XXXIII) (1979) Resolution on the Law of the Sea; OAU Doc. CM/Res
795 (XXXV) (1980) UN Conference on the Law of the Sea; OAU Doc. CM/Res (XXXVII) (1981)
UN Conference on the Law of the Sea; OAU Doc. ECM/Res. 1 (XII) (1979) Resolution Concerning
Future Sessions of [UNCLOS III]; OAU Doc. ECM/Res (1979) Resolution on the Law of the Sea.
1212
AALCC Report of the 13th Session (January 1972) at 209; See also Akintoba (1996) at 72.
1213
Rembe (1980) at 120.
1214
Idem at 121-122.
1215
The African Maritime Transport Charter was adopted in 1994 and was an instrument primarily
responsible for the development of the maritime transport sector. Because the charter never came
into force and was focused on shipping, it is of little import for the purposes of this analysis.
1216
Njenga (1986) at 146.
239
obtain government revenues and foreign exchange earnings from more viable fishing and
processing plants’.1217 References to maritime security were scant or not at the forefront of
the discourses at the time.1218 Secondly, the preoccupation was mostly on landward
security1219 and finally, until the resurgence of piracy in 2006, there had been no significant
incidents of piracy off the African coast that merited continental or global concern about
maritime security in the region. The task of securing Africa’s waters thus fell upon the
OAU’s successor, the AU.
5.3
The contemporary work of the African Union and the salience of maritime
security1220
Vrancken remarked that ‘[w]hen the Constitutive Act of the AU was adopted in 2000, the
dreams and aspirations which spurred the adoption of the OAU Charter remained largely
unfulfilled’.1221 Waweru commented that ‘[t]he OAU was constituted around the idea of
‘Pan-Africanism’ where all member states were to be equal partners and respect for the
sovereignty of member nations was paramount’.1222 He went on to comment that a key
feature was that ‘[m]ember States declared and affirmed their adherence to the principle of
non-interference in the internal affairs of States’.1223 He painted a grim picture of the
subsequent state of affairs when he observed that ‘the plan invariably served to entrench
dictators and protect them from external interference by neighbouring African nations, and
in effect rendering the OAU incapable of dealing with internal conflict situations in
Africa’.1224 Although in the 1990s, one of the OAU’s objectives was realised with the
dismantling and end of the apartheid regime in South Africa in 1994, the attention of the
world was also drawn that same year to the genocide in Rwanda. Through much of that
1217
Akintoba (1996) at 90.
However, the after a long hiatus in the 1980s, OAU did pass a Convention on the Prevention
and Combating of Terrorism in 1999, which came into force in 2002 and in 2000 the OAU Assembly
adopted the ‘Solemn declaration on security, stability, development and co-operation in Africa.
OAU Doc. AHG/Decl. 4 (XXXVI) (2000).
1219
See Vreÿ ‘Turning the Tide: Revisiting African Maritime Security’ 41 Scientia Militaria: South
African Journal of Military Studies (2013) 1 at 2. See Bueger ‘Communities of Security Practice at
Work? The Emerging African Maritime Security Regime’ 6 African Security (2013) 297 at 298
where he observed that: ‘Maritime security has been a long-neglected stepchild of African security
politics.’
1220
Unless otherwise cited, the instruments adopted by the various bodies of the AU that are
discussed in this chapter were sourced from the website of the AU at: https://au.int/. and more
specifically the link therein to ‘peace and security’: http://www.peaceau.org/en/.
1221
Vrancken ‘The Role of the African Union in Combating Piracy’ 1 Acta Criminologica: Southern
African Journal of Criminology (2014) 53 at 55.
1222
Waweru The Role of the African Union in Addressing Maritime Piracy in Eastern Africa
unpublished Master of Management in Security dissertation (University of the Witwatersrand)
(2014) at 18. The hypothesis of the dissertation was answered through a quantitative analysis.
1223
Idem.
1224
Idem.
1218
240
decade, political crises and wars proliferated many reaches of the continent from civil wars
in Sierra Leone and Liberia to Somalia and it became apparent that the OAU was illequipped to meet the challenges which the continent would face in the following century.
On the eve of its fortieth anniversary, in July 2002 at the Durban summit, African Heads
of State oversaw the birth of the AU. The Constitutive Act1225 of the AU was adopted two
years earlier, at the Lomé summit in 2000. The AU described itself as ‘[shifting] focus from
supporting liberation movements in the erstwhile African territories under colonialism and
apartheid, as envisaged by the OAU since 1963 and the Constitutive Act, to an organisation
spear-heading Africa’s development and integration’.1226 The AU Commission1227 noted
that:
‘The adoption of the Constitutive Act marked a radical shift from the cardinal
OAU principle of national sovereignty and non-intervention in national
affairs. Although the Constitutive Act upholds the principle of noninterference, it also reserves the right of the Union “to intervene in a Member
State in respect of grave circumstances namely: war crimes, genocide and
crimes against humanity”.’1228
The role of the AU in combatting piracy and particularly the enforcement jurisdiction to
combat piracy, merits a detailed comment in this section. Being a continental organisation,
the reach of AU initiatives would cover the entire eastern African seaboard, which is the
contextual basis for the present study. The survey below would consider the AU’s
recognition of maritime security and piracy and set out and amplify the pertinent decisions
from the various bodies of the AU in this regard, in a chronological sequence.1229 The
survey will conclude with an assessment of the extent to which AU mechanisms could
complement the extant international framework and whether enforcement jurisdiction
under the auspices of the AU to combat piracy could extend into territorial waters of
member states.
United Nations Treaty Series 2158 (2003) at 3. Cited hence as the ‘Constitutive Act.’
African Union ‘AU in a Nutshell’ available at: https://au.int/en/history/oau-and-au.
1227
This organ of the AU is described in the section et seq.
1228
African Union Commission [Peace and Security Department] African Peace and Security
Architecture Roadmap: 2016-2020 (2015) at 12-13.
1229
By setting out developments in a chronological sequence, an assessment can be made about the
developing salience of maritime security and piracy, as perceived by the AU.
1225
1226
241
5.3.1
Overview of the institutional framework of the AU
Before this survey is undertaken, it would not be unwarranted to briefly describe the
institutional framework of the AU1230 and a key feature, the African Peace and Security
Architecture (APSA). The framework is derived from the Constitutive Act and contains the
following branches:
(i)
The Assembly: The Assembly is described as the supreme organ of the AU1231 and
it composed of Heads of State or Government or their duly accredited
representatives.1232 It has a number of functions which inter alia comprises the
power to ‘determine the common policies of the Union’1233 and to ‘give directives
to the Executive Council on the management of conflicts, war and other emergency
situations and the restoration of peace’.1234
(ii)
The Executive Council: The Executive Council reports to the Assembly and
generically considers issues which are referred to it.1235 The Council is composed
of ‘Ministers of Foreign Affairs or other such Ministers as designated by the
Governments of Member States’.1236 The functions of the Council are to
‘coordinate and take decisions on policies in areas of common interest to Member
States’1237 which includes inter alia transport and communications.1238
(iii)
The Specialised Technical Committees: These committees were created to address
sectoral issues and are at a Ministerial level. They assist the Council with a number
of functions1239 with two committees being relevant to the purposes of maritime
security and piracy, firstly the Committee on Transport, Transcontinental and
1230
See also Vrancken (2014) at 55-59; Waweru (2014) at 18-27.
Article 6(2) of the Constitutive Act.
1232
Idem article 6(1).
1233
Idem article 9(1)(a).
1234
Idem article 9(1)(g).
1235
Idem article 13(2).
1236
Idem article 10(1).
1237
Idem article (13)(1).
1238
Idem article 13(1)(f).
1239
These functions as listed in article 15 of the Constitutive Act are: ‘(a) Prepare projects and
programmes of the Union and submit in to the Executive Council; (b) Ensure the supervision,
follow-up and the evaluation of the implementation of decisions taken by the organs of the
Union; (c) Ensure the coordination and harmonization of projects and programmes of the Union; (d)
Submit to the Executive Council either on its own initiative or at the request of the Executive
Council, reports and recommendations on the implementation of the provision of this Act; and (e)
Carry out any other functions assigned to it for the purpose of ensuring the implementation of the
provisions of this Act.’
1231
242
Interregional Infrastructures, Energy and Tourism1240 and secondly the Committee
on Defence, Safety and Security.1241
(iv)
The Permanent Representatives’ Committee: This committee is designated to
prepare the work of the Council and acts on the Council’s instructions.1242
(iv)
The Commission: This is the secretariat of the AU1243 with inter alia a policy
formulation role.1244 The commission is led by a chairperson and a deputy together
with eight commissioners allocated to eight portfolios.1245
(v)
The Pan African Parliament and the Court of Justice: These are established in terms
of article 17 and 18 respectively.1246
It was a logical course of action during the genesis of the AU to promote peace and security,
given the scourge of conflicts on the continent at the time.1247 Its predecessor, the OAU,
did establish a Mechanism for Conflict Prevention, Management and Resolution1248 for this
purpose with limited success. The AU Commission recounted that ‘the scope and gravity
of the conflicts, as well as their complex nature, soon revealed the limitations of the
Mechanism, which among other things, was not equipped with the means for the
deployment of peace keeping operations, a responsibility left exclusively to the United
Nations’.1249 Article 5(2) of the Constitutive Act gave the AU Assembly the power to
establish any further organisations and pursuant thereto, the Assembly adopted the Protocol
Relating to the Establishment of the Peace and Security Council of the African Union in
2002.1250 It established the Peace and Security Council (PSC) as a ‘standing decision-
See ‘Decision on the specialized technical committees’ AU Doc. Assembly/AU/Dec. 227 (XII)
(2009) at 2(4).
1241
Idem.
1242
Article 21 of the Constitutive Act.
1243
Idem article 20.
1244
See ‘Statutes of the Commission’ AU Doc. ASS/AU/2(I) (2002) at article 3(2).
1245
The relevant portfolios to this study are: namely ‘Peace and Security (Conflict Prevention,
Management and Resolution, and Combating Terrorism...)’ (Article 12(1)(a) of the Statutes of the
Commission); and ‘Infrastructure and Energy (Energy, Transport, Communications, Infrastructure
and Tourism…)’ (Article 12(1)(c)). The details of the portfolio which are contained in parenthesis
after the listing in article 12 of the Statues of the Commission end with ellipses, which can be
interpreted to mean that the list is not a numerous clausus).
1246
These organs will not be canvassed for the purposes of the present study.
1247
The eighth preambular paragraph of the Constitutive Act states: ‘CONCIOUS [sic] of the fact
that the scourge of conflicts in Africa constitutes a major impediment to the socio-economic
development of the continent and of the need to promote peace, security and stability as a
prerequisite for the implementation of our development and integration agenda.’ Article 3(f) thereof
states that one of the objectives of the AU is to ‘promote peace, security and stability on the
continent’.
1248
See OAU Doc. AGH/Decl 3 (XXIX) (June 1993) at par. 11.
1249
AU Commission (2015) at 12.
1250
Adopted at the first ordinary session of the Assembly on 9 July 2002 (referred to hence as the
‘the Protocol’). It came into force in August 2003. See also AU Doc. AHG/Dec 160 (XXXVII) (July
2001).
1240
243
making organ for the prevention, management and resolution of conflicts’1251 and further
provided that the PSC ‘shall be a collective security and early-warning arrangement to
facilitate timely and efficient response to conflict and crisis situations in Africa’.1252 Its
objectives are inter alia to promote peace, security and stability in Africa1253 and also to
develop a common defence policy for the Union.1254 Whilst the PSC maintains the principle
of respect for the sovereignty, integrity and non-interference in the internal affairs of
member states,1255 it goes further by allowing the Union to intervene in member states in
two circumstances, to wit: firstly pursuant to a decision of the Assembly in respect of grave
circumstances (war crimes, genocide and crimes against humanity)1256 and secondly where
a member state requests the intervention from the Union in order to restore peace and
security.1257 Piracy is thus precluded from the first ground of intervention and the second
ground implies that enforcement jurisdiction to combat piracy within the territory of a
member state could be exercised at the request or consent of the member state. However,
the Solemn Declaration on a Common African Defence and Security Policy1258 expanded
on the first ground above with an additional ground of intervention where there is ‘…a
serious threat to legitimate order, in order to restore peace and stability to the Member
States of the Union, upon the recommendation of the Peace and Security Council’.1259
Strydom comments that the reference to the restoration of peace and stability involves the
issue of peace enforcement.1260 A submission will be raised in the concluding chapter of
this thesis that during 2009, the peak of the piracy epidemic off the eastern African seaboard
would have constituted a serious threat to the security and stability of the maritime region,
thereby falling within the ambit of the grounds for intervention laid out above.
Article 2(1) of the Protocol. The PSC has been described as ‘the centre of major decision-making
on the continent and is viewed as such by the international community.’ See AU Commission (2015)
at 14.
1252
Idem.
1253
Article 3(a) of the Protocol.
1254
Article 3(e) of the Protocol read with article 4(d) of the Constitutive Act. Strydom, in his
inaugural lecture at the Rand Afrikaans University in 2003 remarked that ‘the architects of the
council had in mind a role which goes beyond security issues strictu sensu…[t]his combining of
peace and security functions proper with police functions (preservation of life and property) and
economic measures (sustainable development), makes it rather difficult to arrive at a proper
demarcation of the PSC’s intended role, as well as of its powers and functions vis-à-vis other organs
of the AU.’ See Strydom ‘Peace and security under the African Union.’ 28 South African Yearbook
of International Law (2003) 59 at 62.
1255
Article 6(e) and (f) of the Protocol.
1256
Article 4(j) of the Protocol, read with article 4(h) of the Constitutive Act.
1257
Article 4(k) of the Protocol, read with article 4(j) of the Constitutive Act.
1258
Adopted at the second extraordinary session of the Assembly on 28 February 2004.
1259
Idem article 11(f). It is also significant to note another one of the principles of the policy in
article 12: ‘The indivisibility of African States: the security of one African country is inseparably
linked to the security of other African countries, and the continent as a whole.’ The former article
also appeared in article 4 of the Protocol on Amendments to the Constitutive Act of the African
Union (adopted in July 2003).
1260
Strydom (2003) at 71.
1251
244
In addition to the establishment of the PSC, the Protocol provides inter alia the following
mechanisms: the Panel of the Wise,1261 the Continental Early Warning System1262 and the
African Standby Force (ASF).1263 The ASF is directly mandated under article 13(3)(c) of
the Protocol to intervene in a member state to restore peace and stability in the
circumstances prescribed under the Constitutive Act. Under this framework, the ASF
would therefore be the most appropriate mechanism through which enforcement
jurisdiction to combat piracy can be exercised. Collectively, these mechanisms established
by the Protocol constitute the pillars of the APSA. The Common African Defence and
Security Policy is also complemented by the AU Non-Aggression and Common Defence
Pact,1264 the implementation of which is vested with the PSC under the authority of the
Assembly.1265 It would be apt at this stage to note a few of the articles from the Pact which
are pertinent to the present study: article 5(b) provides that ‘[e]ach State Party shall prevent
its territory and its people from being used for encouraging or committing acts of
subversion, hostility, aggression and other harmful practices that might threaten the
territorial integrity and sovereignty of a Member State or regional peace and security’. The
actus reus of piracy would fall within the ambit of this article. Article 5(b) goes on to state
that: ‘[e]ach State Party shall prohibit the use of its territory for the stationing, transit,
withdrawal or incursions of irregular armed groups, mercenaries and terrorist organizations
operating in the territory of another Member State’. Applying the eiusdem generis rule of
statutory interpretation, the modus operandi of Somali pirates, described in the second
chapter hereof, could be read into the provisions of the article. Lastly, article 6(a) provides
that: ‘[s]tate Parties undertake to extend mutual legal and all other assistance in the event
of threats of terrorist attack or other organized international crimes’. The article is silent on
whether ‘other assistance’ could encompass peace enforcement and enforcement
jurisdiction and the locus of such action or assistance.
Article 11(3) of the Protocol provides that ‘[t]he panel of the Wise shall advise the [PSC] and
the Chairperson of the Commission on all issues pertaining to the promotion, and maintenance or
peace, security and stability in Africa.’
1262
Under article 12 of the Protocol, this is an information and intelligence gathering network
designed to facilitate the anticipation and prevention of conflicts. The information is assessed by the
chairperson of the Commission to advise the PSC of potential conflicts and threats to peace and
security in the continent and recommend the best course of action.
1263
See Article 13 of the Protocol.
1264
Adopted by the assembly at its fourth ordinary session in January 2005 (referred to hence as the
Pact).
1265
Article 9 of the Pact.
1261
245
Having set out the continental institutional framework, and cited the key framework
instruments in general terms, the survey will describe how the AU approached the piracy
pandemic through its decisions, declarations and other instruments.
5.3.2
Recognition of maritime security
In the Constitutive Act of the AU, there is no explicit reference to maritime matters in
general or maritime security specifically. Baker noted however, that ‘[i]f Africans hope to
realize a prosperous future as stake-holders in an emerging market or even as global market
leaders, they will need first to master the maritime domain’.1266 In principle, a key
impediment to overcome was ‘sea blindness’ or a lack of recognition of the strategic
importance of Africa’s maritime realm. Baker commented that ‘for too long governments
and institutions have turned blind eyes toward the African seas and allowed security
problems, corruption, bureaucracy, and weak infrastructure to rob Africans and their honest
partners of food, energy, wealth and prosperity’1267 In a discussion paper prepared by the
Brenthurst Foundation, it was similarly observed that ‘[p]rotecting Africa’s resources,
waterborne trade and citizenry is vital, but it is clear that limited resources and perhaps a
lack of recognition of the importance of this sector, have constrained the continent’s ability
to effectively protect its waterways from a variety of threats’.1268
The proliferation of threats to Africa’s security, particularly in the maritime domain, as
amplified by the scourge of piracy and the attractive opportunity to sustainably exploit
maritime resources and opportunities underscored the need for a continental maritime
strategy. Baker outlined this need in the following terms:
‘[T]he international community needs an African strategy for maritime
development, a plan to tie together existing and future actions, to help
establish an African maritime economy that creates wealth from the sea for
Africans, and to mobilize international instruments so as to assist in
implementing African maritime initiatives toward good governance. In short,
we need to find a way collectively to revolutionize the African maritime sector
and to chart a course toward an African maritime economy’.1269
Baker ‘Toward an African Maritime Economy’ 64 Naval War College Review (2011) 39 at 40.
Idem.
1268
The Brenthurst Foundation ‘Maritime Development in Africa: An Independent Specialists’
Framework’ Discussion Paper (2010) 3 at 7.
1269
Baker (2011) at 40. He highlights the need for a continental strategy to tie together and unify
initiatives to counter the then status quo of regional initiatives that were not comprehensive of
1266
1267
246
Similarly, the research undertaken by the Brenthurst Foundation in 2010 similarly found
that ‘Africa is the only region in the world that does not have its own maritime policy or
strategy, despite the acknowledged importance of this component of any national or
regional economy’.1270
Integral to any proposed maritime continental strategy is the creation of a security
architecture bespoke to maritime security. The impact of a comprehensive maritime
security strategy was highlighted by Baker who aptly observed that: ‘[s]afety and security
create confidence in a market, by reducing physical risks, cutting insurance costs, and
improving operating timelines’.1271 The Brenthurst Foundation also noted that: ‘a
collaborative security architecture, would allow the conduct of free trade, i.e in a safe and
secure environment. It would require the enforcement of maritime legislation to remove
those factors that would negatively affect the free flow of goods. Maritime legislation
would, in turn strengthen the maritime institutions which are crucial for a maritime strategy.
The combination of strengthened and coherent legislation and institutions would …
enhance the policing of, and prosecution for, illegal acts, e.g. piracy…’.1272
Maritime security first found a formal expression in the AU in a decision of the Executive
Council in 2003.1273 The Council recognised ‘safety and security of maritime activities in
general and in particular maritime transport as vital for the orderly and regular development
of maritime economies of African States’.1274 It further recognized the ‘importance of
seaborne trade in the economies of African countries’.1275 The decision requested the
Commission to ‘carry out the revision of the African Maritime Charter1276 and the Model
Maritime Legislation with a view to adapting them to the prevailing conditions’.1277
However, the first tangible steps toward the creation of a continental maritime strategy was
seen when the AU Commission collaborated with the South African based Brenthurst
complimentary of initiatives in other regions. For example he cites how some countries like Nigeria
‘have made improvements in port efficiency’ however ‘their advances are offset by poor security.’
(at 42).
1270
Brenthurst Foundation (2010) at 6.
1271
Baker (2011) at 43.
1272
Brenthurst Foundation (2010) at 8.
1273
AU Doc. EX/CL/Dec 60 (III) (July 2003).
1274
Idem at par. 2.
1275
Idem at par. 3.
1276
Adopted in 1994.
1277
Idem at par. 5.
247
Foundation1278 and the African Centre for Strategic Studies in Washington with the task of
formulating such an overarching strategy. A draft strategy was presented in a detailed
discussion paper1279 produced in 2010. The strategy underscored the importance of
maritime trade with maritime security as a ‘key component of collective security’.1280 It
notes that whilst the security regime involves partnerships with international stakeholders,
there was nothing that was ‘truly African owned or that is designed primarily for the benefit
of Africans at the continental level’.1281 The goals embodied in the draft strategy were inter
alia ‘strengthening Africa’s collective security architecture to ensure safe passage’1282 and
to ‘ensure that Africa is well represented in international maritime law…[with] its own
maritime law framework…[that] would complement international law, while allowing for
specific provisions relevant to African needs and capacities’.1283 The draft strategy
identified current and future challenges to African security and growth, broadly categorised
these into growth challenges, environmental challenges and security challenges. In respect
of security challenges, piracy was identified. The primary challenge in relation to piracy
was insufficient coastal protection capacity.1284 An issue to be addressed, as identified by
the strategy was ‘penalties for piracy, for example, must be the same wherever the offence
is committed in African waters’.1285
This strategy was never taken forward and developed into an instrument under the auspices
of the AU. It thus remains merely a white paper. It was conceded in the draft strategy that
‘[t]he lack of resources and of a comprehensive African-owned maritime security strategy
has obliged Africa to “outsource” many aspects of its maritime security to international or
“external” organizations in order to provide for its needs’.1286 It can be speculated that
because formulating a draft strategy was outsourced, it ironically was never adopted or
incorporated into an instrument promulgated under the AU. Baker observed that ‘since no
1278
A think tank which inter alia prepares policy advice.
See generally: http://www.thebrenthurstfoundation.org/
1279
See Brenthurst Foundation (2010) supra.
1280
Idem at 3. The strategy emphasized that maritime security ‘forms part of the foundation for any
economic development through the improvement of global competitiveness for its goods and
services. However, Africa has yet to decide on the relative importance of its maritime environment
against competing priorities – and allocate the requisite resources to ensure that it remains an asset’
(idem). It also concluded that ‘vast stretches of Africa’s coastline are, in effect, ungoverned spaces’
(idem at 16).
1281
Idem at 10-11.
1282
Idem at 12 (with my emphasis).
1283
Idem.
1284
Idem at 14 where the paper cites a former chief of the Nigerian Navy who admitted that ‘in its
present state, [the navy] could not protect the nation’s territorial waters because it was ill-equipped
and underfunded.’
1285
Idem at 27.
1286
Idem at 8.
248
commission within the AU participated in its creation, once again a noble effort has failed
to gain a sense of ownership among various actors within the African Union itself’.1287
5.3.3
The piracy impetus and developments between 2009-2010
Earlier in this thesis, an analysis was presented of the incidence of piracy off the eastern
African seaboard between 2006 and 2016. It was shown how incidents dramatically spiked
in 2006 from a relative dormancy. It was only in 2009 however, when the specific issue of
piracy was deliberated before the various organs of the AU. In a report prepared by the
Chairperson of the AU Commission in June 2009, it was noted that:
‘The issue of maritime security and safety has taken on a higher profile in the
past year, largely as a result of the resurgence of piracy off the coast of
Somalia. Individual countries and intergovernmental organizations have
deployed important sea assets to tackle the trend of piracy off the coast of
Somalia’.1288
In terms of acting to counter this trend, the Commission intended to ‘create a coastguard
network for Eastern and Southern Africa to monitor and deter all illegal activities in those
areas’.1289 The commission also emphasised ‘the need to adopt a multifaceted
comprehensive approach, including in-land capability and capacity building, to tackle the
phenomenon of piracy off the coast of Somalia’.1290
Piracy was also appeared in the agenda of the PSC, and in July 2009, it expressed its:
‘Serious concern at the mounting insecurity in the maritime spaces around
Africa, and Somalia in particular, and strongly condemns all illegal activities
in these regions, including piracy…The Assembly welcomes the initiatives
undertaken by the Commission to develop a comprehensive and coherent
strategy to combat these scourges…’.1291
1287
Baker (2011) at 46.
AU Doc. EX.CL/520 (XV) (June 2009) at par. 160.
1289
Idem at par. 256.
1290
Idem at par. 160.
1291
AU Doc. Assembly/AU/Dec. 252 (XIII) (July 2009) at par. 18. This paragraph was first measure
adopted by the AU towards the development of a comprehensive maritime strategy.
1288
249
This decision of the Assembly affirmed its desire to have an overarching continental
strategy to deal with maritime security. The Assembly in general terms expressed its ‘grave
concern over the growing phenomenon of piracy, hostage taking and the resultant demands
for ransom’.1292
During this period, Libya made a proposal for the establishment of an African Defence
Council and an ‘African Agency for the Protection of Territorial and Economic Waters of
African Countries’.1293 This proposal received the attention of the Assembly a month later
with a decision underscoring ‘the need for Africa to have an effective instrument to help
countries of the continent protect its own regional waters…’.1294 The Assembly decided to
‘include the functions of the African Agency to protect regional waters and the economies
of African countries into the functions of the African Union Authority’.1295 It is not clear
from these decisions whether ‘protection’ encompasses enforcement jurisdiction pertaining
to piracy and armed robbery and whether the use of the term ‘regional waters’ includes the
territorial sea and the exclusive economic zone.
In August 2009, a special session of the Assembly was convened to consider the resolution
of conflicts on the continent, and amongst the measures to be taken in a plan of action,
piracy was expressly mentioned and it was decided:
‘[t]o convene an international conference to discuss the adoption of an
international convention on the phenomenon of maritime piracy and its
underlying causes, as well as the promotion of effective international
cooperation, which, in conformity with the Convention on the Law of the Sea,
ensures the freedom of maritime navigation and preserves the right of States
on their Exclusive Economic Zone and their territorial waters, as well as that
of local populations to benefit from the resources therein’.1296
A burgeoning set of developments took place shortly thereafter in October 2009 at the
second AU conference for Ministers Responsible for Maritime Transport in Durban. An
overhauled African Maritime Transport Charter was adopted,1297 which, contrary to the first
Maritime Transport Charter of 1994, contained several references to maritime security. The
general tenor of these references relate to cooperation: the preamble refers to ‘the
1292
AU Doc. Assembly/AU/Dec. 256 (XIII) (July 2009) at par. 1.
AU Doc. EX.CL520 (XV) Rev.2 (June 2009) at par. 1 (with my emphasis).
1294
AU Doc. Assembly/AU/Dec. 259 (XIII) (July 2009) at par. 2 (with my emphasis).
1295
Idem at par. 3.
1296
AU Doc. SP/Assembly/PS/PLAN (I) (August 2009) at par. 3 (xi).
1297
See AU Doc. AU/MT/MIN/1 (II) (October 2009).
1293
250
importance of cooperation in the implementation of maritime conventions and regulations,
particularly in the areas of safety, security, protection of the marine environment and
maritime labour’.1298 One of the principles of the charter is ‘[s]afe, secure and efficient
shipping on clean oceans…’.1299 There is a general article on cooperation which provides
that ‘[m]ember States agree to cooperate at regional, continental and international levels to
prevent and control maritime pollution in order to protect and conserve the marine
environment and to suppress all unlawful acts, piracy, terrorism, etc’.1300 There is further
article on sharing of information and mutual assistance.1301 The charter requires member
states to harmonise their legislation and take other necessary measures to give effect to the
charter and other relevant international instruments.1302 In particular, the charter obliges
member states to ‘adopt effective measures to combat acts of piracy, armed robbery and
other unlawful acts against shipping through co-operation with other international
bodies’.1303
A complementary instrument, marked as the Durban Resolution on Maritime Safety,
Maritime Security and Protection of the Marine Environment in Africa was also adopted at
this conference of ministers.1304 The resolution condemned and deplored ‘all acts of piracy
and armed robbery against vessels in waters of the coast of Somalia and the Gulf of
Aden’.1305 It recognised the ‘importance of cooperation and capacity building in the
implementation of maritime instruments, particularly in areas of safety, security, protection
of the marine environment and facilitation of international maritime traffic’.1306 The
resolution envisaged member states taking a role of supporting international1307 and
1298
Idem 7th preambular par.
Idem at article 4(3)(d).
1300
Idem at article 12(4).
1301
Idem at article 24 which provides that: ‘(1) Member States undertake to put in place an efficient
maritime communication network in order to make optimum use of mechanisms for control, followup and intervention at sea and ensure better organization of maritime traffic. (2) Member States
should strive to create a strategic framework for the exchange of information and mutual assistance
in order to enhance measures that can improve the safety, security and preventions systems and
make it possible to combat unlawful acts perpetrated at sea.’
1302
Idem at article 26(1).
1303
Idem at article 26(2).
1304
AU Doc. AU/MT/MIN/DRAFT/Res.(II) (October 2009). The articles in this resolution are not
numbered.
1305
Idem at 3. It also acknowledges that UNCLOS ‘sets out the legal framework applicable to
combating piracy and armed robbery at sea, as well as other ocean activities.’
1306
Idem at 1.
1307
Idem at 3: ‘Support the efforts of the [IMO] and [UNSC] in coordinating an international
response to the scourge of piracy along the coast of Somalia including the establishment of piracy
information Centers and building of sub-regional capacity and capabilities.’
1299
251
regional counter piracy efforts1308 and harmonising their domestic legislation.1309 The
resolution invited member states to ‘put in place an efficient communication network in
order to make optimal use of the mechanisms for control, follow-up and intervention at sea
and ensure better facilitation of international maritime traffic’.1310 The resolution was
endorsed by the Executive Council of the AU in 2010.1311
Following from the decision of the Assembly in July 2009 welcoming the development of
a comprehensive strategy to combat threats to the maritime domain, the AU
Commission1312 organised a meeting and workshop of experts from member states on
maritime security and safety on the 6-7 April 2010 in Addis Ababa.1313 The Concept Note
for the workshop stated that it was ‘expected to result in the adoption of a Declaration on
an African strategy in the area of Maritime security and safety, as well as a Plan of Action
outlining the measures to be taken and the timelines for their implementation.’1314 The
workshop consisted of four sessions.1315 In the welcome address, Dr. Elham Ibrahim1316
remarked that ‘[i]t is obvious that the rapid escalation of piracy activity off the coast of
Somalia and the Gulf of Guinea has alarmed African states and served as a wake-up call to
the leadership in Africa to take concrete action to rid the continent of these scourges which
are undermining economic activity and the image of the continent.’1317 The chair of the
AU, H.E. Mr. Ernest Makawa, in his lengthy opening statement highlighted the threats and
vulnerabilities of Africa’s maritime domain, which included piracy. He indicated that
maritime security ‘would be the condition that reflects the ability of public and private
entities to conduct legitimate activities such as territorial protection, resource extraction,
Idem: ‘Encourage the implementation of the Djibouti Code of Conduct…for those countries that
are party to it.’
1309
Idem: [E]nact national legislation where appropriate and take all necessary measures to give full
effect to relevant international instruments in the area of maritime, port safety and security in order
to ensure safe, secure, efficient, and environmentally friendly shipping.’
1310
Idem at 4.
1311
AU Doc. XL/Dec. 542 (XVI) (February 2010) at par. 2-4.
1312
Particularly the Peace and Security Department with Lt. Com. Samuel Kamé-Domguia as a key
figure for spearheading a maritime security and safety strategy.
1313
See AU Commission: Division of Communication and Information: Press Release No. 47/2010
‘Maritime Security and Safety in Africa: Moving from talking to taking concrete action.’ See also:
AU Nota Verbale PSD/101/2/A/095.10 (12 January 2010).
1314
Unmarked AU Document ‘Concept Note: Towards the elaboration of an African strategy for
maritime security and safety’ (January 2010).
1315
Unmarked AU Document ‘Draft Programme’ (April 2010). The sessions were divided into the
following thematic groups: (i) threats and vulnerabilities in Africa’s maritime domain; (ii) ongoing
maritime security initiatives in Africa at continental and regional levels; (iii) international efforts on
maritime security and safety and (iv) workshop report and recommendations.
1316
AU Commissioner for Infrastructure and Energy.
1317
Unmarked AU Document ‘Speech of Dr. Elham M.A. Ibrahim, Commissioner for Infrastructure
and Energy of the African Union at the opening of the workshop on maritime security 6-7 April
2007 [sic], Addis Ababa, Ethiopia’ at par. 6.
1308
252
trade, transport and tourism, free of threats or losses from illegal acts or aggression, for an
integrated and prosperous Africa.’1318 He suggested the establishment of several expert
working groups, which inter alia consisted of (i) Chiefs of African Navies/Coast Guards
to ‘scrutinize issues of situational awareness in the whole African maritime domain and to
uphold cooperative efforts between Navies/Coast Guards of the AU member States’1319 and
(ii) experts to ‘technically define the outer delimitation of the Combined Exclusive
Maritime Zone of Africa (CEMZA) which will serve as the space-framework of all African
maritime strategic actions.1320
Makawa suggested a three-fold test must be passed in developing the AIM-strategy:1321 The
first test relates to suitability (i.e. ‘will it achieve the desired Ends, i.e. to protect and allow
efficient exploitation of Africa’s maritime domain for the benefit of the people of
Africa?).1322 The second test relates to acceptability (i.e. does it have Member States and
regional support? Is it worth the cost?).1323 The third test relates to feasibility (i.e. do we
have the means to execute the ways?).1324 A final noteworthy point from Makawa’s address
was his statement that ‘[d]ue to the trade of slaves and colonialism, these oceans have
always been considered as threats, instead of opportunities.’1325 To counter this, as he drew
his address to a close, he suggested a pan-African ‘no more sea-blindness’ campaign which
would aim to also enhance political will at the various decision-making platforms.1326
At the workshop1327, Mr. Vita Onwuasoanya1328 delivered a presentation on maritime
security in the context of UNCLOS.1329 He reaffirmed that UNCLOS provides preventative
and enforcement measures regarding unlawful acts at sea and that there are different
enforcement rights in the different maritime zones.1330 Apart from highlighting the relevant
Unmarked AU Document ‘Opening Statement by the country chairing the African Union
(Malawi) H.E. Mr. Ernest M. Makawa’ (April 2010) at 3.
1319
Idem at 7.
1320
Idem at 8. It was also stated idem that the Africa Nuclear Weapon-Free Zone Treaty will be
extended to the CEMZA which will be ‘an additional African move to help improve global security
standards.’
1321
The comprehensive maritime strategy envisaged by AU decision 252 supra was later termed as
the AIM Strategy which refers to ‘Africa Integrated Maritime’ strategy.
1322
Idem.
1323
Idem.
1324
Idem.
1325
Idem at 1.
1326
Idem at 8.
1327
At the third session on day two.
1328
Associate Law of the Sea/Ocean Affairs Officer, Division for Ocean Affairs and the Law of the
Sea, Office of Legal Affairs, United Nations.
1329
See generally http://www.un.org/Depts/los/index.htm. A copy of the slide presentation is
available through: http://slideplayer.com/slide/4277554/.
1330
Idem at slide 4.
1318
253
articles in UNCLOS pertaining to piracy, he confirmed that ‘piratical acts within the
territorial sea are considered armed robbery at sea and, are subject to the jurisdiction of the
coastal state.’1331 Accordingly, there was no indication from the findings and
recommendations of this workshop of deliberations relating to the extension of universal
enforcement jurisdiction for piratical acts within the realm of the territorial sea.
Lastly, a key recommendation of the workshop, with a reference to piracy was the need ‘to
promote holistic approaches to address the issue of piracy. Such approaches should be
informed by a proper understanding of this phenomenon and the context in which it is
taking place, and involve both security measures at sea and efforts to promote land based
initiatives.’1332
Following this workshop, the Assembly in July 2010 considered the matter of piracy once
more at an ordinary sitting. The relevant paragraph of the record of the session stated that
the Assembly:
‘[Reiterates its deep concern] over the persistence and spread of maritime
piracy, which is an international crime pursuant to relevant international
instruments, including resolution 1918 (2010), and [welcomes] the holding in
Addis Ababa, on 6 and 7 April 2010, of a workshop on Maritime Security and
Safety. The Assembly [lends its support] to the efforts being made by the
Commission towards the implementation of the conclusions of the Workshop,
including the elaboration of a continental strategy for the management of the
continent’s maritime domain and the involvement of the ASF in efforts to
promote maritime security and safety, and [stresses], in this context, the
importance of adequate protection of the African maritime domain…against
organized crime… The Assembly [reiterates its call], as contained in the
Tripoli Plan of Action, for the convening, within the framework of the United
Nations, of a conference to develop an international Convention on Piracy’1333
On a different platform within the AU, the Specialized Technical Committee on Defence,
Security and Safety requested the Ministers of Defence of member states in January 2011
1331
Idem at slide 6.
Unmarked AU Document: ‘Experts workshop on maritime security and safety: Conclusions and
Recommendations’ (April 2010) at par. 10 (iv).
1333
AU Doc. Assembly/AU/Dec. 294 (XV).2 (July 2010) at par. 27.
1332
254
to ‘explore the possibility of establishing a Standby Force to fight piracy on Africa’s costs
[sic] including [the] Indian Ocean, the Golf [sic] of Guinea [and the] Horn of Africa’.1334
5.4
A bespoke maritime security framework
5.4.1
The 2050 African Integrated Maritime Strategy (AIMS)
Pursuant to the decisions of the Assembly cited above1335 in which it was decided that ‘a
rational and coordinated policy for maritime and coastal activities with a view to making
the best of the Continent’s maritime wealth’,1336 the AU Commission took on the challenge
of elaborating and formulating the AIMS.1337 In formulating the strategy, two conferences
of African Ministers in charge of Maritime Affairs were held in Addis Ababa in April and
December 2012 and was preceded by three workshops of experts in April and December
2011 and in December 2012.1338 The strategy was adopted by a Ministerial Declaration on
6 December 2012 at the second conference of African Ministers responsible for Maritimerelated Affairs.1339 The Assembly adopted the strategy in 2014.1340
Before traversing the relevant components and objectives of the strategy which are relevant
for the purposes of this study, its status in law is noteworthy. It is a soft law instrument and
is complementary to extant instruments. It provides that the strategy shall ‘be interpreted
and implemented in conjunction with all relevant AU, national and international regulatory
frameworks and on-going maritime initiatives in Africa…’1341 and notes that ‘[n]othing in
this document shall be construed or applied contrary to the sovereignty of any of the AU
Member States in accordance with the principles of international law.’1342
1334
AU Doc. EX.CL/Dec. 626 (XVIII) (January 2011) at par. 6 (ii).
Namely AU Doc. Assembly/AU/Dec. 252 (XIII) (July 2009) and AU Doc. Assembly/AU/Dec.
294 (XV) (July 2010).
1336
See AU Doc. EX/CL/826 (XXIV) Add 1 (January 2014) at par. 6.
1337
Referred to interchangeably in this section as ‘the strategy’.
1338
Idem at par. 8.
1339
AU Doc. DECL/M/II/CAMRMRA/2012 (December 2012) at 3. The declaration also recognized
(idem at 1) ‘the importance of inter-agency and cross-border cooperation in the development and
implementation of maritime policies, particularly in the areas of safety, security, protection of the
marine environment and maritime labour.’ The declaration further endorsed (idem at 4) ‘the proposal
to establish, within the AU Commission, a fully-fledged Department of Maritime Affairs to
comprehensively address cross-cutting and multifaceted inland waterways, oceans and geostrategic
challenges and opportunities.’
1340
AU Doc. Assembly/AU/Dec. 496 (XII) (January 2014). The full text of the strategy is
reproduced for convenience and ease of reference in the appendices to this thesis.
1341
AIMS (Unmarked AU document, version 1.0) (2012) at par. 27. See also par. 60.
1342
Idem at par. 13. See also par. 12 which provides that ‘it is further assumed that all related binding
legal instruments are ratified (or under consideration for ratification) and domesticated.’
1335
255
The rationale for the strategy was articulated as:
‘…a tool to address Africa’s maritime challenges for sustainable development
and competitiveness. The strategy aims to foster more wealth creation from
Africa’s oceans, seas and inland water ways by developing a thriving maritime
economy and realizing the full potential of sea-based activities in an
environmentally sustainable manner.’1343
However, the accomplishment of this vision is marred by a series of real and potential
threats to the maritime domain of the continent.1344 Amongst the list of threats identified
are: ‘Transnational Organized Crimes in the maritime domain (includes…piracy and
armed robbery at sea…)1345
In responding to these threats and vulnerabilities, the strategy sets out a series of strategic
objectives which will underscore the activities pursued under the strategy. Listed amongst
these strategic objectives are: (i) the establishment of a Combined Exclusive Maritime Zone
of Africa (CEMZA);1346 (ii) to enhance political will at community, national, regional and
continental levels;1347 (iii) to ensure the safety and security of maritime transportation
systems,1348 and (iv) preventing hostile and criminal acts at sea.1349 The strategy adopts the
IC5 principle: i.e. ‘Information Sharing, Communication, Collaboration, Cooperation,
Capacity-building and Coordination.’1350
The strategy then proposes a framework for strategic actions under a series of thematic
headings. The strategic actions pertinent to this study are: (i) the CEMZA;1351 (ii) interagency/transnational cooperation and coordination on maritime safety and security;1352 (iii)
regional maritime operational centers1353 and (iv) maritime governance, which includes
approaches to combatting piracy and armed robbery at sea.1354
1343
Idem at par. 11. See also par. 18.
Idem at par. 15. See also par. 7(i).
1345
Idem at par. 16(i) (with my emphasis).
1346
Idem at par. 21(i).
1347
Idem at par. 21(iii).
1348
Idem at par. 21(v).
1349
Idem at par. 21(vii).
1350
Idem at par. 22.
1351
Idem at par. 29-30.
1352
Idem at par. 31.
1353
Idem at par. 32-34.
1354
Idem at par. 70-71.
1344
256
Turing respectively to these specific strategic actions in more detail ad seriatim, the
CEMZA is premised on being a ‘common African maritime space without barriers’ and is
aimed at ‘boosting intra-African trade and eliminating or simplifying administrative
procedures in intra-AU maritime transport, the aim being to make it more attractive, more
efficient and more competitive, and do more to protect the environment’.1355 It is envisaged
that the CEMZA would contain a common information sharing environment which would
‘allow for the convergence of existing and future monitoring and tracking systems used for
[inter alia] maritime safety and security…’1356 The desired effect of CEMZA is to ‘to grant
Africa enormous cross-cutting geo-strategic, economic, political, social and security
benefits, as it will engender collective efforts and reduce the risks of all transnational
threats, environmental mismanagement, smuggling and arms trafficking’.1357
With regard to inter-agency/transnational cooperation and coordination on maritime
security, the strategy includes ‘the development of an inter-agency approach, a Naval
Component capacity within the framework of the African Standby Force (ASF), and the
establishment of a representative continental working group of Chiefs of African Navies
and/or Coast Guards (CHANS) to scrutinise issues of situational awareness and collaborate
towards the enhancement of Africa’s Maritime Domain Awareness (MDA), and to uphold
cooperative efforts between Navies/Coast Guards of the AU Member States and
international partners.’1358 This provision also contains a clause which is particularly
relevant for the purposes of this study, namely to ‘[i]ncrease joint regional surveillance
operations at sea, and the establishment of seagoing navies and/or coast guard networks
around Africa, with cross-border hot pursuit function’.1359 These provisions will be
revisited in the recommendations in the following chapter of this thesis.
Regional maritime operation centres could play a crucial role in combatting piracy. Its
broad goals, which can be incorporated into anti-piracy measures are to: ‘i) to increase the
effectiveness and the efficiency of the African Standby Force (ASF) as African Navies
participate in integrated operations, a move to improve Africa’s Maritime response
capabilities; and ii) to improve situational awareness in the AMD, involving all
organisations and agencies with a key role in maritime safety and security’.1360
1355
Idem at par. 30.
Idem.
1357
Idem at par. 29.
1358
Idem at par. 31.
1359
Idem at par 31(iii) (with my emphasis).
1360
Idem at par 32 (with my emphasis).
1356
257
The strategic actions then focus on maritime governance with a specific reference to piracy
and armed robbery at sea. It notes at the outset how the ‘AU has advocated a comprehensive
approach towards combating piracy and armed robbery at sea’ and emphasised the
complimentary role of the AU with other organs external to the AU.1361 Joint cooperation
was emphasised in anti-piracy measures with the strategy directing that the ‘AU shall
encourage Member States, consistent with their available resources and related priorities,
their respective national laws and regulations, and applicable rules of international law, in
cooperation with the IMO and any other relevant organisations, to mutualize their assets so
as to cooperate to the fullest possible extent in the repression of piracy and armed robbery
against ships.’1362 Such cooperation would have a number of benefits and the strategy
specifies that it would encourage: ‘(i) burden sharing; (ii) tracking financial flows; (iii)
sharing and reporting relevant information; (iv) interdicting ships and/or aircraft suspected
of engaging in piracy or armed robbery against ships; (v) apprehension and prosecution of
persons committing or attempting to commit piracy or armed robbery against ships, and
(vi) facilitating proper care, treatment, and repatriation for seafarers, fishermen, other
shipboard personnel and passengers subject to piracy or armed robbery against ships,
particularly those who have been subjected to violence.’1363
In the result, Potgieter and Walker sum up the effect of AIMS, which intends to ‘[serve] as
a common template for all stakeholders to guide maritime-related actions to enhance
maritime viability for an integrated and prosperous Africa.’1364
A few months after the adoption of strategy by the assembly, the PSC observed its tenth
anniversary and a declaration was issued in June 2014 to commemorate its
establishment.1365 The declaration makes no reference to the AIM strategy but called on the
AU Commission and Secretariats of the Regional Economic Committees and Regional
Mechanisms to ‘come up with a comprehensive AU strategy for addressing the
phenomenon of extremism, terrorism and other emerging threats to peace and security in
Africa such as piracy, human trafficking, drug trafficking, religious tensions, the spread of
1361
Idem at 70. In particular the strategy listed (idem) the efforts of the following external organs:
‘the work of the Contact Group on Piracy Off the Coast of Somalia (CGPCS), as well as all IMO
initiatives to combat piracy and armed robbery against ships, including the Best Management
Practices (BMPs) for vessel protection in High Risk Areas (HRA)12 and the Djibouti Code of
Conduct (DCC) concerning the repression of piracy and armed robbery against ships in the Western
Indian Ocean and the Gulf of Aden.’
1362
Idem.
1363
Idem at par 70 (a)-(f) (with my emphasis).
1364
Potgieter and Walker ‘The 2050 African Integrated Maritime Strategy (AIMS): Content and
Progress’ in Vreÿ and Mandrup Towards Good Order at Sea: African Experiences (2015) at 106.
1365
AU Doc. PSC/HSG/Dec. (CDXLIV) (June 2014).
258
small arms and light weapons. Furthermore, we call for the development of mechanisms
within the APSA to deal with these emerging threats.’1366
5.4.2
African Charter on Maritime Security and Safety and Development in
Africa (Lomé Charter)
In June 2014, the Togolese Republic made a proposal to the assembly to host a conference
on maritime security and safety.1367 The Assembly decided that in light of the importance
of the issue of maritime security and safety and based on the recommendations of the
meeting of Ministers of Defence and Security held in May 2015, an extraordinary AU
summit on maritime security and safety and development in Africa would be scheduled to
take place from in November 2015.1368 This summit was postponed to ensure adequate
preparations.1369 The summit was held recently during October 2016 in Lomé, Togo, with
an aim of adopting and signing an African Charter on Maritime Security and Safety and
Development.1370 The antecedent measures on maritime security on the continent prior to
the adoption of this charter have largely constituted soft-law, non-binding instruments.1371
In contrast, the Lomé charter would constitute a legally binding treaty between signatory
parties. The charter, however, does not supersede the provisions of the AIM strategy, as
one of the objectives of the charter is to ‘boost the implementation of the 2050 AIM strategy
in conformity with International Maritime Law.’1372
At the outset, the Lomé charter recognises how ‘cross-border crime contribute[s] to the
spread of insecurity and instability and pose[s] serious risks to international maritime
navigation’1373 and contends that ‘the prevention, management and the eradication of these
scourges can only succeed through the enhancement of cooperation…’1374
1366
Idem at par. 8 (with my emphasis).
AU Doc. Assembly/AU/Dec. 583 (XXV) (June 2015) at par. 22.
1368
Idem.
1369
AU Doc. Assembly/AU/Dec. 593 (XXVI) (January 2016) at par. 2.
1370
Idem at par. 3-4. The African Charter on Maritime Security and Safety and Development would
be referred to hence as ‘the Lomé charter.’ See also AU Doc. EXT/Assembly/AU/Dec.1 (VI)
(October 2016).
1371
For example, as demonstrated in the foregoing section of this thesis dealing with the AIM
strategy. The Lomé charter was not publically accessible at the time of the writing of this thesis,
however a copy was procured and is retained on file by the present researcher from the South African
Department of International Relations and Cooperation, Soutpansberg Road, Pretoria. The full text
of the charter is reproduced as an appendix et seq.
1372
Article 3(f) of the Lomé charter.
1373
17-18th preambular par. of the Lomé charter. In this regard, it is submitted that piratical activities,
as elucidated in the second chapter of this thesis would fall within this scope of these articles as
cross-border crimes.
1374
Idem at 20th preambular par.
1367
259
The Lomé charter provides a list of definitions of key terms, of which the following relevant
terms are defined, to wit: ‘maritime security’1375, ‘armed robbery against ships’1376 and
‘piracy.’1377 The charter is constituted by the following chapters: (i) general provisions; (ii)
measures to prevent and combat crimes at sea; (iii) maritime governance; (iv) development
of the blue/ocean economy; (v) cooperation; (vi) monitoring and control and (vii) final
provisions.
The relevant objectives of the charter are: (i) to ‘to prevent and suppress national and
transnational crime, including…piracy [and] armed robbery against ships…’1378 (ii) to
‘promote and enhance cooperation in the fields of maritime domain awareness, prevention
by early warning and fight against piracy [and] armed robbery against ships…’1379 (iii) to
‘establish appropriate national, regional and continental institutions and ensure the
implementation of appropriate policies likely to promote safety and security at sea’1380 and
(iv) to ‘promote inter-agency and transnational coordination among Member States, within
the spirit of the [APSA].’1381 The scope of the charter is meant to cover ‘the prevention and
control of all transnational crime at sea, including…piracy, armed robbery against
ships…and other unlawful acts at sea, under the jurisdiction of a State Party in its area of
responsibility.’1382
Substantial obligations rest with state parties with regard to maritime governance and
measures to prevent and combat crimes at sea. These are measures which a state would
undertake ‘according to its own realities.’1383 From a maritime governance perspective,
states must ‘ensure good governance based on better information sharing, effective
communication, and efficient coordination of their actions.’1384 Each state is also required
to ‘protect its maritime territories and ensure its maritime security and safety in conformity
Idem at article 1, which is defines ‘maritime security’ as ‘the prevention of and fight against all
acts or threats of illicit acts against a ship, its crew and its passengers or against the port facilities,
maritime infrastructure, maritime facilities and maritime environment.’
1376
Idem at article 1, which defines ‘armed robbery against ships’ as ‘any illegal act of violence, or
detention or any act of depredation, or threat thereof, other than an act of piracy, committed for
private ends and directed against a ship or against persons of property on board such a ship, in an
area falling within the jurisdiction of a State.
1377
Idem at article 1, where the definition of ‘piracy’ is an exact reproduction of the definition of
piracy contained in article 101 of UNCLOS.
1378
Idem at article 3(a).
1379
Idem at article 3(d).
1380
Idem at article 3(e).
1381
Idem at article 3(f).
1382
Idem at article 4(a) (with my emphasis).
1383
Idem at article 6.
1384
Idem at article 12.
1375
260
with the relevant international laws and principles.’1385 This provision does not expressly
mention the security of international maritime commercial navigation.
Turning to the responsibilities of the respective states, the charter requires each state to
firstly ‘develop its capacity to protect its maritime area and provide assistance to other
States Parties or third States as may be required.’1386 Secondly, each state must ‘strengthen
law enforcement at sea…’1387 and thirdly, each state must ‘maintain patrols, surveillance
and reconnaissance in the anchorage areas, the exclusive economic zone and continental
shelf for law enforcement, search and rescue operations.’1388
Developing capacity and mustering the resources required to execute these responsibilities
is vital and states are required to adopt policies to guarantee the availability of resources1389
and encourage the sharing of responsibilities and financial obligations between flag states
and coastal states.1390 Lastly the charter directs that state parties must undertake to establish
a maritime security and safety fund.1391
These obligations are underscored by underlying principle of territorial integrity and
national sovereignty of member states1392 where a state is left to its own devices to
administer its maritime realm. However, to implement these obligations, states must garner
the requisite political will, develop capacity and allocate resources. Accordingly, these
obligations, which rest on a state are onerous. This burden is somewhat softened by an
article in the charter which provides that ‘State Parties shall cooperate and coordinate their
actions in combating transnational organized crimes of all kinds including…acts of piracy
and armed robbery against ships…’1393
1385
Idem at article 14.
Idem at article 6(a).
1387
Idem at article 6(b): the article further provides that this should be done ‘through the training
and the professionalization of navies, coast guards, and agencies responsible for maritime safety and
security, custom[s] authorities and port authorities.’
1388
Idem at article 6(c).
1389
Idem at article 9 which provides these funds are derived from ‘either by public funds or by
forging public-private partnerships, needed for investment in equipment, operations and training in
the field of maritime security and safety in accordance with their domestic procedures.’
1390
Idem at article 10 which provides that each state party ‘shall encourage cooperation between
Flag States and Coastal States, so that, in a spirit of co-responsibility, the financial obligations of
security and safety in the African maritime domain are shared and supported by the different actors
concerned.’
1391
Idem at article 11.
1392
Idem at article 2(e).
1393
Idem at article 32. See also article 37 which provides for a continental cooperation framework:
‘State Parties shall establish a framework for close cooperation in the field of maritime security and
safety with the national cross-sectoral mechanisms, the Regional Economic Communities and other
relevant bodies.’
1386
261
5.5
Observations
Having comprehensively described the continental approach to maritime security, it is
apposite to note some observations and consider these observations in light of a principal
objective of this thesis, namely to extend the application of the universal enforcement
regime to combat piracy into territorial waters of African states. The recommendations
arising therefrom will be presented in the ensuing chapter. These recommendations will be
presented in the alternative to the main recommendation which details a series of
amendments to UNCLOS itself. These alternative recommendations would be
complementary to the extant international regime, as reflected by UNCLOS. Given that the
developments described in the foregoing sections are nascent and fledgling, with limited
published scholarship in the field, I have taken some liberty to engage in a broader
speculative analysis.
5.5.1.
Holistic observations
Strydom noted that ‘[t]he re-emergence of the [OAU] in the apparel of the [AU] was
enthusiastically sold to the world as a turning point in the dismal record of post-colonial
effort to rid the African continent of bad governance and to change its image as a lost
continent where human misery, underdevelopment and violent conflicts have left millions
without an horizon of hope’.1394 He further noted how the AU was promoted differently
from its predecessor and its new rescue operations were ‘not, as in the past, imposed from
the outside, but were conceived and developed by African leaders themselves, and were
specifically designed to address Africa’s unique problems’.1395 Strydom pondered about
how this personal involvement and ownership of an idea by the African leaders would
transform despair into hope when the OAU itself was, after all, also an ‘own affair’.1396
However, a decade on after Strydom’s remarks, the developments described in the
foregoing section have shown a forward-looking movement towards developing and
solidifying bespoke maritime strategies to ultimately benefit the people of the continent.
This recent movement is innovative and decisions and instruments were since adopted by
the AU to secure the ocean, which hitherto was not at the forefront of the AU’s policy. 1397
These responses are seen as a clear and marked shift away from the self-imposed
1394
Strydom (2003) at 59.
Idem.
1396
Idem.
1397
Vreÿ ‘Turning the Tide: Revising African Maritime Security’ 41 Scientia Militaria (2013) at 1,
where he states that ‘[a] pattern of explicit commitments to secure African offshore assets is a rather
recent manifestation.’
1395
262
seablindness.1398 This seablindness was attributed to an ‘inherited and institutionalized
ignorance or mystification of the sea’.1399 A consequence of seablindness is where
‘stakeholders misunderstand or fail to realise the economic importance of Africa’s seas and
oceans and the contribution they do and can make to development and prosperity’.1400 The
benefit of negating seablindness is that stakeholders can ‘better understand how much
maritime activities contribute and the total worth then spending priorities can be determined
and additional resources invested to both secure and grow maritime industries’.1401
The piracy epidemic between 2006 and 2012 off the eastern African seaboard, chronicled
earlier in this thesis, was the catalyst to negate this seablindness1402 which Potgieter referred
to as a ‘blessing in disguise’ because it ‘stimulated political action in this sphere, illustrated
maritime security weaknesses of Africa and made Africans aware of the value of their vast
maritime interests’.1403 In the result, Potgieter also notes that ‘[n]ow, African leaders cannot
ignore it [maritime security] anymore and maritime security issues are central to the
security debate.’1404 Walker noted how the AIMS was initially focused on the need to
combat piracy but it was later expanded in scope ‘to incorporate ways in which African
counties might benefit from not only enhanced maritime security, but also development
and governance’.1405 In addition, the adoption of AIMS was not only a significant step in
1398
Idem at 4.
Potgieter and Walker (2015) at 110.
1400
Wilton Park and Institute for Security Studies ‘Report: Implementing Africa’s maritime security
strategies’ (2015) WP 1407 at 3.
Available at: https://www.wiltonpark.org.uk/wp-content/uploads/WP1407-Report.pdf. The report
also notes (at 5) that ‘[t]he presence and persistence of seablindness is partly attributable to the
landcentric nature of policy making, and the relative absence of African states from the maritime
domain. This has resulted in underfunding of maritime authorities, which have struggled as a result
to maintain maritime security or good order at sea over their maritime domains.’
1401
Idem.
1402
See for instance: Beuger ‘After piracy: Towards an African Maritime Security Architecture’ in
Vreÿ and Mandrup Towards Good Order at Sea: African Experiences (2015) at 47, where he writes:
‘[t]he problem of Somali piracy has led to a fundamental re-evaluation of the importance of maritime
security for the African continent…[and] has opened a window of opportunity to re-organise
maritime security governance and build sustainable institutions.’ The same author in ‘Communities
of Security Practice at Work? The Emerging African Maritime Security Regime’ 6 African Security
(2013) 297 at 298 also states that this window of opportunity presents an opportunity ‘for
considering the maritime in the African security architecture and to improve the maritime security
relations on the continent.’
1403
Potgieter ‘Leadership and Political Will – Crucial for Maritime Security in East Africa’
Architecture’ in Vreÿ and Mandrup Towards Good Order at Sea: African Experiences (2015) at
252.
1404
Idem at 259.
1405
Walker ‘Reviving the AU’s maritime strategy’ 96 ISS Policy Brief (February 2017) at 1.
1399
263
negating seablindness, it is commendable, particularly when compared to the European
Union, which adopted a maritime strategy after the AU.1406
These developments have reached a stage where they could be categorised and studied
against trite principles in security jurisprudence. In pursuing the objectives of a common
security policy, Strydom refers to the Maastricht Treaty, which provides for three key
instruments, namely common strategies; joint actions and common positions.1407 Bueger
states that understanding mechanisms of cooperation and convergence in these
circumstances could be done through the prism of a ‘security community’.1408 He describes
that main criterion of a security community as ‘members who have a shared understanding
of what constitutes a threat and what does not, what requires security action and what does
not’.1409 The security community is characterised by three traits, namely (i) a joint
enterprise1410; (ii) mutual engagement1411 and (iii) a shared repertoire.1412 The AIMS
embodies these traits.
In the result, the growth of maritime security jurisprudence has moved beyond the piracy
agenda. Vreÿ observes that ‘there is a wider ambit of threats and responses that now
embodies African maritime security.’1413 Stockbruegger commented that ‘[t]his ‘African’
conceptualization [of maritime security] goes beyond the narrow piracy centrist perspective
that has driven international maritime security efforts so far’.1414 This shift towards
recognising other threats to maritime security and stability is apparent in the AIMS and
Lomé Charter. This is compounded by the fact that incidents of piracy across the maritime
domain of the eastern African seaboard has declined significantly since late 2012. The ISS
1406
See Wilton Park and Institute for Security Studies (2015) at 4. The European Union Maritime
Security Strategy (EUMSS) for the global maritime domain was adopted by the European Council
in June 2014. See:
https://ec.europa.eu/maritimeaffairs/policy/maritime-security_en.
1407
Strydom (2003) at 68.
1408
Beuger (2013) at 299.
1409
Idem at 301.
1410
This encompasses joint projects, an example being the establishment of the CEMZA. See Beuger
(2013) at 311.
1411
Beuger (idem at 302) highlights that this ‘points to the importance of continuous interactions,
communication, and deliberations among a community’s members.’ These would include
conferences and symposiums.
1412
Bueger (idem at 302 and 309) states that this ‘consists of all of the tools that the community uses
in its practices [which includes] various artifacts, such as meeting documents [e.g. meeting
protocols, conference papers, declarations and statements, legal instruments], databases, or
communication technology…’
1413
Vreÿ (2013) at 2.
1414
Stockbruegger ‘Reclaiming the Maritime? The AU’s New Maritime Strategy’ (2014) Cardiff
University. Available at: http://piracy-studies.org/reclaiming-the-maritime-the-aus-new-maritimestrategy/
264
and the UK based think tank, Wilton Park posed the following questions, namely: ‘as
pirates no longer no longer pose an immediate threat, should maritime investment in
capacity building be continued? Has the reduction in piracy shown that current capacity is
sufficient?’1415 It is submitted that engaging with these questions is premature, particularly
when one reflects on the catalysts of the reduction. The following section will show that
more could be need to be achieved in respect of anti-piracy operations in Africa and that
the challenges posed by the threat of piracy, albeit not imminent, is certainly not extinct.
It is trite from the description of the efforts of the AU above that there is an African centrist
approach to address the challenges to the security of the waters in the African maritime
domain and rightly so. These mechanisms have an ultimate aim of ushering long term and
sustainable prosperity to the continent and its people. In explaining the move away from
the narrow piracy centrist perspective, Stockbruegger, however, comments that ‘[t]he
international counter-piracy approach thus reflects the interests of global economic powers
dependent on maritime trade (largely western states) rather than those of African states,
people and coastal communities.’1416 He cannot be faltered for the accuracy of this
observation, however, this does reflect a myopia, which was systematic in the erstwhile
self-imposed seablindness. It is true that global merchant shipping requires unhindered and
secure passage as it transits through the African maritime domain and the security of these
sea lanes becomes a priority that underscores the international counter-piracy approach.
Vreÿ aptly observes that:
‘Africa’s oceans harbour important resources and lines of communication that
call for protection, and if necessary, more aggressive defence. Globalisation –
and its economic pillar in particular – relies on African waters as cogs in the
safe flow of maritime traffic along international shipping routes. African cooperation to safeguard the maritime common is imperative.’1417
However, the maintenance of the smooth flow of global merchant shipping through the
African maritime domain is closely linked with the economic, commercial wealth and
development of the continent.1418 Vreÿ comments in this regard that ‘the oceans also tie
Africa into global maritime trading and industrial networks that hold critical strategic
advantages for Africa as well as the wider international community, as the continent
becomes a future economic entity for markets, labour and resources.’1419 He goes to
1415
Wilton Park and Institute for Security Studies (2015) at 3.
Stockbruegger (2015).
1417
Vreÿ (2013) at 3.
1418
See Potgieter (2015) at 240.
1419
Vreÿ (2013) at 3
1416
265
emphasise that ‘[a]s Africa enters the global economy as an attractive investment
destination and resource hub, every African country depends increasingly on the free and
uninterrupted flow of trade across oceans to benefit from the economic advantage to deliver
goods on time to and from Africa. Africa can thus ill afford the current uncertainty tainting
shipping routes off sections of the west and east African seaboards.’1420
Accordingly, there lies a need to solidify the integration of global anti-piracy approaches
into the continental, and ultimately the regional and national enforcement regimes in
through a complementary approach.
5.5.2
Specific observations on the efforts of the AU pertaining to piracy and the
case for the extension of universal enforcement jurisdiction into territorial
waters.
With this analysis of the continental approach at hand, this section reverts ad rem to a main
enquiry of this thesis, proposing the extension of universal enforcement jurisdiction to
combat piracy into the realm of the territorial sea. It is significant to note that such a
proposal has never featured in AU deliberations or instrument pertaining to maritime
security, although it will be shown in subsection (ii) below that this notion can be
compatible with the emerging jurisprudence of the AU.
The continued relevance of universal jurisdiction was elaborated earlier in this thesis1421
and it is explained below in the first part of this section why international and foreign
intervention through the exercise of enforcement jurisdiction should be extended into
territorial waters of African states. This proposal is prefaced by caveats and restrictions
which will be set out in the concluding chapter of this thesis. These caveats and restrictions
have the effect of rendering this proposal as a complementary approach to the extant
international regime embodied in UNCLOS. The second part of this section evaluates the
compatibility of this proposal with the emerging jurisprudence of the AU, described above
pertaining to maritime security.
(i)
The case for foreign and international naval intervention
Whilst there is an emergent African centrist approach maritime security on the continent
where challenges facing the African maritime domain are articulated by African leaders
and framed from an African perspective, it will be shown that implementation and
1420
1421
Idem at 5.
See generally section IV of chapter 3.
266
enforcement of instruments and policies formulated as a countermeasure to these
challenges would require international and foreign cooperation and assistance because of
the following three factors:
The first factor concerns capacity and capacity building.1422 The spacial limits of the
African maritime domain is large. Along the eastern seaboard of the continental mainland
on the western rim of the Indian Ocean, five states exercise sovereignty over their
respective territorial seas. The sheer size of this domain presents obvious challenges in
enforcing sovereignty, particularly constabulary powers. This is compounded by the lack
of functioning naval and coastguard capacity in most of the states in this region. Kornegay
rightly observed that the Somali piracy crisis exposed ‘Africa’s utter lack of capacity to
secure its maritime portion of the global commons.’1423 Vreÿ also noted that a ‘lack of
governance by African authorities to uphold sovereignty in the waters under their
jurisdiction is accentuated by weak African navies due to the latter not being considered as
important as armies.’1424 Vreÿ further appositely encapsulated the state of affairs in the
following terms:
‘Countries are threatened from the sea and, although this threat historically
shows a tendency to highlight the warfighting profile, the current African
threat echoes the murky world of criminality, low-intensity threats and bad
maritime governance. Ungoverned seas remain a danger to African states that
have limited or no capacity to extend and uphold jurisdiction at sea and cannot
police even soft maritime threats in a credible way’.1425
In answering what is required of Africa states to remedy this state of affairs and execute
strategies and policy through operationalisation, commentators have drawn a demanding
list. Konegay, for example, observes that ‘[p]utting these plans into effect would, in turn,
require investment in building awareness, expenditure of political capital, and investment
in capabilities pertaining to people, resources and appropriate mechanisms. This would
1422
Wilton Park and Institute for Security Studies (2015) at 8 describe three interlinked levels in
which the term capacity building can be conceptualised: i.e. ‘[f]irstly, at a strategic level, pertaining
to the functioning and relationships of various global and international maritime institutions,
partnerships and actors. Secondly, at an operational level, which prioritises the regional
implementation and operationalisation of strategies through coordinated activities such as joint
patrols. Thirdly, at a tactical level, which concerns the creation of national development plans,
acquisition programmes for naval and maritime assets and capacity building…’
1423
Kornegay ‘South Africa and SADC in the Indian Ocean maritime security equation’ 8 Journal
of the Indian Ocean Region (2012) 71 at 72.
1424
Vreÿ (2013) at 3.
1425
Idem at 5.
267
have to involve efforts in education and legislation. Given Africa’s fragmented political
landscape, this is a tall order…’1426 Bueger similarly writes that ‘[b]uilding and maintaining
naval capacities is a core challenge. Procurement can, however, be a costly and politically
difficult exercise. Electorates might reject the significant investments required and
corruption can drive up costs. Since navies require advanced training to become
operational, this is also a long term project. Training officers can easily take decades’.1427
In further illustrating the present state of affairs, the AU did not follow through and
implement some of the decisions referred to earlier in this chapter. Firstly, Egede noted that
‘the [AU] does not have an African joint naval task force and/or join coast guard operations
to deal with piracy and armed robbery’.1428 Secondly, although the AU Commission
intended to create a coastguard network for eastern and southern Africa with the aim of
deterring all illegal activities in those areas in 2009,1429 this has not yet materialised.
Thirdly, the proposed conference to discuss the epidemic of piracy was never convened
and finally, the proposal to establish a standby force to fight piracy on Africa’s coasts was
not taken any further.
Whilst the instruments of the AU acknowledge the challenges of capacity building to
enforce and implement these instruments, they have come under criticism for its overly
broad purview.1430 Engel, for example contends that ‘its [AIMS] rhetoric resembles too
much that of the OAU’s many lofty grand plans from the 1980s and 1990s….’ and further
that ‘[t]he issue areas covered are too many, and the concept of maritime security and safety
has still not been defined precisely. Too many agendas of different actors are brought
together’.1431 It becomes apparent that if the instruments are cast too widely, then the
specific capacity challenges become tougher to achieve. The Lomé Charter illustrates this
well with an article which requires state parties to ‘undertake to establish a Maritime
Security and Safety Fund’1432 without tangible suggestions on how this would be achieved.
Potgieter thus encapsulates how to close the gap between what must be achieved and the
capability and capacity to achieve it:
1426
Kornegay (2012) at 81.
Bueger (2013) at 312.
1428
Egede ‘Institutional gaps in the 2050 Africa’s Integrated Maritime Strategy’ 1 Iilwandle Zethu:
Journal of Ocean Law and Governance in Africa (2016) 1 at 3.
1429
AU Doc. EX/CL/520 (XV) (June 2009) at par. 160.
1430
See for example Potgieter (2015) at 255 contends that AIMS is ‘too ambitious because it lacks
an emphasis on maritime governance, the tangible ways in which to achieve economic and business
growth, and the creation of maritime employment opportunities.’
1431
Engel The African Union, the African Peace and Security Architecture, and Maritime Security
(2014) at 16.
1432
See article 11.
1427
268
‘[r]esources are always scarce in the competitive political and economic
environment in Africa and it will require visionary leadership and political
will to ensure wider political and social support, the apportionment of
resources, and proper governance processes to ensure successful delivery.
Successful implementation will therefore depend on finding a balance
between ends, ways and means’.1433
The challenge is daunting, and it is necessary, but through the intervention of global
partners, the continent could go a long way in operationalising its strategy and vision for
the maritime realm. Emphasis lies in the mutual benefit where global and foreign leaders
could champion for the protection of their valuable maritime interests through naval
engagement. African leaders would be to some extent relieved of the financial burden of
exercising enforcement jurisdiction over a large maritime domain. The leaders of African
navies could benefit from training through joint naval exercises in the region.
The second factor is a persistent lack of political will amongst member states of the AU. If
there is to be an appropriate capacity building and a commitment to maritime security
amongst these member states, there must be an implementation and ratification of legal
instruments domestically. Egede observed that there is a ‘rather slow and long drawn
ratification process of treaties by AU member States, resulting in such treaties taking a long
time to come into force and become binding on member states’.1434 Several commentators
have observed this slow ratification process.1435 They observed how the Maritime Transport
Charter of 1994 and its revision in 2010 have not yet come into force.1436 Walker noted that
although the African Maritime Transport Charter was ‘welcomed as a major step forward
in improving African maritime development, albeit with some criticisms of its
shortcomings, it has largely disappeared from sight’.1437 Walker observed how the Strategic
Task Force (STF) which was mandated to promote and implement the AIMS has been
unsuccessful. At the time of writing, the STF met only once in July 2015 but failed to meet
the quorum, with only seven member states participating.1438 Further meetings did not take
1433
Potgieter (2015) at 255.
Egede ‘Lome Charter on African Maritime Security: Next Steps’ (2017). Cardiff University.
Available at:
http://piracy-studies.org/africas-lome-charter-on-maritime-security-what-are-the-next-steps/.
1435
See Egede (Idem), Walker (2017) at 4 and Engel (2014) at 16.
1436
Idem.
1437
Walker (2017) at 4.
1438
Idem at 5.
1434
269
place due to a lack of budget.1439 He went on to note that the ‘failure of the STF to convene
any official meetings and its subsequent inability to accomplish its goals became the major
stumbling block to the implementation of aims’.1440 Walker points out that this is alarming
because a failure to reach quorum is indicative of a ‘broader indifference – or even a sheer
lack of interest – among the member states and RECs over whether the strategy is
implemented’.1441 It is difficult to offer a panacea to a lack of political will, as it is multifaceted, but if a lack of funding was one of the catalysts of inaction, this could, in part, be
remedied through the assistance (and participation) of global partners who have an interest
in the maritime security of the region. This may provide some incentive and stimulus to
member states to act more decisively.
The third factor relates to the catalysts of the reduction of the Somali piracy epidemic.
Hopkins apud Bueger describes four factors which were attributable to the decline of piracy
in the region: (i) there has been a declining support for pirates by local communities who
have a greater awareness of the corrosive effect of pirates;1442 (ii) the use of private
maritime security companies and the arming and hardening of merchant vessels, together
with industry adoption of best management practices (BMP) as a self defence
mechanism;1443 (iii) increased willingness of states to prosecute pirate suspects in their
domestic courts;1444 and (iv) an international naval presence in the region which engaged
in surveillance, patrol and guarding.1445 Bueger appositely observed that ‘[t]hree of the
reasons provided are related to the changing character of law enforcement. The
international naval programme directly affects and improves enforcement in the region’s
waters.’1446 The extent and central role of naval intervention was significant and Potgieter
described how this intervention and programme included patrols, escort duties, supporting
and conducting small-scale operations by special forces and involvement in alliance
building and maritime assistance exercises like training and capacity building.1447 It is
noteworthy that the credit for the reduction through law enforcement was attributed to the
international naval programme with an absence of input from indigenous continental
mechanisms such as the ASF. Indeed the reaction to the Somali piracy epidemic by the AU
was belated. Whilst there were harbingers of the surge of piracy in the region as early as
1439
Idem.
Idem.
1441
Idem.
1442
Beuger (2015) at 41.
1443
Idem.
1444
Idem.
1445
Idem.
1446
Idem.
1447
Potgieter (2015) at 248.
1440
270
2005, the AU only acknowledged the impact of piracy in 2009 in a declaratory fashion
without concrete steps which would be implemented expediently as a countermeasure. In
contrast, by 2009, the UN had taken decisive action and passed Security Council
Resolutions and the IMO adopted the Djibouti Code of Conduct.
These factors present a compelling case for the importance of effectively integrating an
international naval response in the African maritime domain. Whilst the high seas and EEZ
inherently allow for such universal enforcement jurisdiction to combat piracy, the territorial
waters of respective member states of the AU remain outside the jurisdictional reach of an
international naval programme. The following sub-section thus comments on the
compatibility of the fledgling continental jurisprudence on maritime security with the
proposal to extend such universal enforcement jurisdiction into territorial waters.
(ii)
Compatibility with the existing AU developing jurisprudence and
architecture
Having adumbrated the developing jurisprudence on maritime security, by surveying
decisions and instruments passed by the AU, this section commences by highlighting
references from the survey undertaken relating to international cooperation. References to
cooperation in general and amongst member states of the AU would also be considered on
an analogous basis. Secondly, the section then interprets these instruments and decisions
with the aim of exposing potential avenues of enforcement action which could transcend
the traditional boundaries under the extant UNCLOS regime.
In respect of references to cooperation1448: the Brenthurst Foundation maintained that a
‘collaborative security architecture would allow the conduct of free trade, i.e. in a safe and
secure environment’.1449 In 2009, the assembly called for a conference on piracy which
would promote ‘effective international cooperation, which in conformity with the
[UNCLOS], ensures the freedom of maritime navigation…’1450 The Maritime Transport
Charter, as detailed previously in this chapter contained several references to cooperation
and obliged member states to adopt effective measures to combat acts of piracy and armed
robbery through co-operation with other international bodies.1451 The Durban Resolution
envisaged member states taking a role of supporting international and regional counter
1448
The references cited hence in this paragraph contain my emphasis.
Brenthurst Foundation (2010) at 8.
1450
AU Doc. SP/Assembly/PS/PLAN (I) (August 2009) at par. 3 (xi).
1451
See article 26(2) of the charter.
1449
271
piracy efforts.1452 The Lomé Charter also noted that ‘the prevention, management and the
eradication of these scourges can only succeed through the enhancement of
cooperation’.1453
Turing to the second aspect of the present discussion, a number of initiatives can be
revisited and re-interpreted: Firstly the proposal by Libya to establish an ‘African Agency
for the Protection of Territorial and Economic Waters of African Countries’1454 requires
further analysis. As discussed earlier in this section, the concept of protection in this context
is not defined, but using a broad interpretation, it could be submitted that ‘protection’
includes enforcement jurisdiction pertaining to piracy. The reference to ‘territorial and
economic waters’ was not accompanied by any definitions but it is submitted that this most
likely refers to territorial waters and the exclusive economic zone as delimited under the
UNCLOS regime. If these interpretations are considered, the agency envisaged in Libya’s
proposal could engage in enforcement jurisdiction in territorial waters of African states to
suppress piracy. It is significant to note that this proposal gained acceptance and was
adopted by the AU.1455 However, this Agency was never established1456 and it remains
unclear whether the AU’s reference to ‘regional waters’ in the decision to adopt the
proposal was a precursor to the concept of the CEMZA.
Secondly, ministers responsible for Maritime Affairs emphasised the importance of interagency and cross-border cooperation.1457 One of the AIMS clauses, cited earlier is of
importance, namely the establishment of seagoing navies and coast guard networks with
cross-border hot pursuit function.1458 It was deduced in the second chapter of this thesis,
how those involved in acts of piracy and other illicit activities in the maritime domain often
fail to respect national borders.1459
Thirdly, the strongest case for cross-boundary enforcement lies in the CEMZA concept that
is set out in the AIMS, and which was highlighted earlier. This is primarily because the
CEMZA is premised as being a common maritime space without barriers. However, for a
1452
AU Doc. AU/MT/MIN/DRAFT/Res.(II) (October 2009) at 3.
20th preambular par. Of the Lomé Charter.
1454
AU Doc. EX.CL520 (XV) Rev.2 (June 2009) at par. 1
1455
AU Doc. Assembly/AU/Dec. 259 (XIII) (July 2009) at par. 3.
1456
See Potgieter and Walker (2015) at 102-103.
1457
AU Doc. DECL/M/II/CAMRMRA/2012 (December 2012) at 1.
1458
See par. 31 (iii) of AIMS.
1459
See also Potgieter (2015) at 241. He also emphasized, at 242, how ‘transgressions in the maritime
domain could occur on the high seas, in territorial waters, in ports or inshore areas. But, as
perpetrators operate from bases on land…most of the transgressions are within the jurisdiction of
states…’
1453
272
concept that is an innovative as CEMZA, it still remains soft law without any direct legal
implications to the UNCLOS regime. The CEMZA is limited to the proviso in the AIMS
itself where no part of the strategy is to be construed or applied contrary to the sovereignty
of any AU member state.1460 It is however necessary to unpack this concept, and the first
enquiry is to ascertain the limits of the breadth of the CEMZA: firstly, whether it aims to
centralize the EEZ of respective member states into one borderless zone for the purposes
set out in article 30 of AIMS, secondly whether the territorial seas of member states also
fall into the ambit of CEMZA and thirdly to clarify the interface between CEMZA and the
border delimitation contained in the existing UNCLOS regime. These questions are not
answered in the AIMS itself and furthermore there are no travaux préparatoires publically
available pertaining to the conceptualization of the CEMZA with a view to its inclusion in
the AIMS. The operationalisation of the CEMZA is dependent on the provisions contained
in article 29 of AIMS, which requires ‘the establishment of a dedicated Strategic Special
Task Force (S2TF) to prepare the technical file which will underpin the Solemn Declaration
of the CEMZ. The technical file will include charts presenting the CEMZA limits’.1461
Preparing such a technical file and charts would itself present a challenge considering the
underdeveloped continental hydrographic capacity.1462 To date, this task has not been
undertaken, leaving the questions posed above unanswered. Given the dearth of primary
sources pertaining to the CEMZA, it is unsurprising that there is a corresponding dearth of
scholarly commentary on the concept. Potgieter and Walker note that ‘…it is not at all clear
what this [CEMZA] actually means for the various participants and stakeholders.’1463 The
ISS and think tank Wilton Park also noted that ‘AIMS contains innovative and potentially
transformative concepts such as the [CEMZA]. These urgently need to be better researched
and analysed’.1464
The potential implications of CEMZA have also drawn some concern, for example,
Benkenstein observed that ‘African governments will undoubtedly be concerned about the
full implications of CEMZA in relation to national sovereignty, particularly with regard to
resource utilization’.1465 Egede queries ‘if the idea of the CEMZA is to transcend the
sovereignty/sovereign rights given to each coastal State over their marine space by the
1460
See article 13 of AIMS.
See article 29 of AIMS.
1462
See the steps set out in article 68 and 69 of AIMS.
1463
Potgieter and Walker (2015) at 110. See also Egede (2017).
1464
Wilton Park and Institute for Security Studies (2015) at 2.
1465
Benkenstein ‘Aligning Africa’s Maritime Ambitions with Broader Indian Ocean Regionalism’
25 SAIIA Policy Insights (September 2015) at 4.
1461
273
provisions of [UNCLOS]…this would obviously require rather complex negotiations
amongst AU member States…’1466
In light of CEMZA being so broadly articulated in AIMS, without the benefit of the
envisaged technical file, and the concerns of encroachment into national sovereignty of
member states, it is not difficult to see how the concept of the CEMZA could fall into
oblivion, in a way similar to the fate of the African Maritime Transport Charter. It would
not be prudent, however to completely dismiss this innovative concept on these grounds,
but to also consider the merits of CEMZA on the basis of its objectives and its potential
contribution to the counter-piracy jurisprudence on the continent. There is further no
indication in articles 29 and 30 of AIMS that the CEMZA would compromise the sovereign
rights of states to the resources in their EEZ.
In examining the merits, article 30 of AIMS provides a strong case for cooperation in a
wide spectrum of activities which cannot be solely construed as undue encroachments on
national sovereignty, but useful mechanisms which would aid individual states. From a
commercial perspective, it aims to boost intra-African trade and intra-AU maritime
transport through simplified and more efficient procedures. From a public or civic
perspective, the CEMZA aims to do more to protect the environment and to develop a
common information sharing environment which would better facilitate monitoring and
tracking systems used inter alia for safety and security, law enforcement, fisheries and
border control. If fisheries control were to be used as an example, a borderless realm within
the CEMZA would enable free movement of coast guard fleets and other law enforcement
vessels to monitor compliance with applicable legislation and swiftly pursue offenders. The
jurisdictional hurdles inherent in the traditional maritime boundaries would be alleviated.
Member states could easily see the benefits of this approach because the aim of pooling
law enforcement resources over a large maritime domain would be most efficient in the
borderless maritime commons created by CEMZA. This efficiency could have positive
effects by deterring or reducing illegal fishing and plunder of resources in these commons
– something that member states would readily support. Similarly, the CEMZA was
expected to ‘engender collective efforts and reduce the risks of all transnational threats’.1467
It was shown in the second chapter of this thesis that acts of piracy and armed robbery are
in most instances transnational. Whilst universal enforcement jurisdiction to combat piracy
exists under the UNCLOS regime on the high seas and EEZ, if the CEMZA were to include
1466
1467
Egede (2017).
See article 29 of AIMS.
274
territorial waters of states within its ambit, then such universal enforcement jurisdiction
could apply, subject to caveats and in the limited circumstances which would be proposed
in the final chapter of this thesis. The benefits of this approach would need to be highlighted
to member states in the same way as cross-border fisheries control would benefit member
states. In the premises, the CEMZA could facilitate much needed pooling of resources and
capacity in an environment with lessened obstacles created by the extant jurisdictional
framework. Proponents of the CEMZA concept, however, would face integration
challenges. The ISS and Wilton Park observed that these challenges will revolve around
‘how best to go about reconciling top-down visions of maritime integration contained in
the [AU] and Regional Economic Strategies with the bottom-up realities of working
together faced by member states such as, boundary demarcation, joint resource extraction
and sharing and information sharing (particularly of potentially sensitive information
concerning naval capability’.1468 Although the CEMZA was not referred to in the recently
adopted Lomé Charter, it would be conjecture to presume that the concept has been
accordingly been discarded. Indeed, draft annex I of the Charter defines broad ranging
concepts such as ‘Maritime Africa’1469 and ‘Maritime Domain’.1470 The Charter, although
a binding instrument, was envisaged to be complementary to the AIMS. Further discourse
is needed to engage with the technical file for the CEMZA, allay fears of encroachment
and top-down approaches and balance these with the benefits to be gained from the
borderless CEMZA regime.
Fourthly, the Lomé Charter appropriates the UNCLOS definition of piracy, but also defines
the term ‘armed robbery against ships’ as ‘any illegal act of violence, or detention or any
act of depredation, or threat thereof, other than an act of piracy, committed for private ends
and directed against a ship or against persons of property on board such a ship, in an area
falling within the jurisdiction of a State’ (with my emphasis). The territorial sea of a state
is the principal maritime zone falling within the jurisdiction of a state. As outlined on
several occasions previously in this thesis, the state is left to its own devices to combat
piracy and exercise enforcement and adjudicative jurisdiction in its territorial waters.
However, the charter contains several references to cooperation in the repression of armed
robbery against ships: i.e. (i) the objective ‘to prevent and suppress national and
1468
Wilton Park and ISS (2015) at 2.
Defined as ‘the concept that encompasses Africa’s entire maritime estate, including its marine
environment, the resources contained thereof and all maritime economic activities that take place
within the continent.’
1470
Defined as ‘without prejudice to the definition in Article 1 of the Lomé Charter included: (i)
maritime areas under the national jurisdiction of States Parties; and (ii) Maritime Areas beyond
national jurisdiction.’
1469
275
transnational crime, including… armed robbery against ships…’1471 (ii) to ‘promote and
enhance cooperation in the fields of maritime domain awareness, prevention by early
warning and fight against …armed robbery against ships…’1472 (iii) the scope of the charter
being to cover ‘the prevention and control of all transnational crime at sea,
including…piracy, armed robbery against ships…and other unlawful acts at sea, under the
jurisdiction of a State Party in its area of responsibility’1473 and (iv) State Parties shall
cooperate and coordinate their actions in combating transnational organized crimes of all
kinds including…acts of … armed robbery against ships…’1474 The AIMS also provides
that the ‘AU shall encourage Member States, consistent with their available resources and
related priorities, their respective national laws and regulations, and applicable rules of
international law, in cooperation with the IMO and any other relevant organisations, to
mutualize their assets so as to cooperate to the fullest possible extent in the repression of
… armed robbery against ships’1475 with a view to encouraging the interdiction of ships
suspected of engaging in armed robbery against ships.1476
These provisions are invasive of the exclusive right of member states to prevent and repress
armed robbery against ships according to their domestic legislation and policy in their
territorial waters. If the charter enjoys widespread ratification in the years to come, it will
be indicative of a change of approach and a willingness of states to allow encroachments
into sovereign territory in the circumstances set out above for the purposes of interdiction
and enforcement jurisdiction.
5.6
Evaluative and consolidatory remarks
In this section, the context of continental maritime security was considered by examining
in detail the antecedents of continental perspectives pertaining to the law of the sea in
general. The survey then highlighted the genesis of the AU and its institutional framework.
The salience and recognition of maritime security in the AU was laid out followed by a
comprehensive analysis of the AU’s response to the epidemic of piracy off Somalia and
along the east African seaboard. These responses were the forerunners to a recent bespoke
maritime security framework in the form of the AIMS and Lomé Charter. A detailed
commentary was provided on these instruments followed by some holistic observations.
1471
Lomé Charter at article 3(a).
Idem at article 3(d).
1473
Idem at article 4(a) (with my emphasis).
1474
Idem at article 32.
1475
AIMS at article 70.
1476
Idem at article 70(d).
1472
276
The key research question on the extension of universal enforcement jurisdiction into
territorial waters was tested against this framework and a case was made for the importance
of international intervention followed by a further argument drawing on interpretations of
the instruments and deliberations of the AU which would support the key research question.
The innovations of the AU and the suggestions advanced by this thesis have also raised in
this section the crucial concern about encroachments into the sovereign jurisdiction of
member states, with a particular reference to African member states. These concerns harken
back to the formative years of the OAU, discussed earlier in this section, where the
emerging trend amongst newly independent African states was to assert sovereignty and
push for greater rights over the resources in the waters adjacent to the continent. The efforts
of Njenga in formulating the EEZ is a useful example in this regard. The sovereignty over
these waters was seen as sacrosanct and trite in all subsequent instruments pertaining to
maritime matters on the continent. It has been advanced in this thesis that the exercise of
universal enforcement jurisdiction to combat piracy in controlled and specific
circumstances, particularly where there is incapacity on the part of the coastal state, would
not be as invasive an encroachment on sovereign rights as illegal fishing by foreign national
in the EEZ would be and a change in mindset and normative thinking will need to be
inculcated. Strydom considers how ‘common security interests would have a chance to
triumph over narrowly defined own security interests’.1477 He makes a particularly apt
observation and proposes that:
‘A change of mindset in this regard will have to coincide with the abandoning
by African leaders of their nineteenth century concept of state sovereignty,
which in the past was all too easily used as an excuse for their paralysis in the
face of political and humanitarian crises on the continent’.1478
Potgieter and Walker similarly note that innovative concepts like the CEMZA is
‘dependent on a change in values and norms’ and ‘[t]he seas become in effect a pansovereign area, the basis of new thinking and policy’.1479 They observe that these
innovations ‘mirror the AU’s stance on sovereignty and intervention whereby sovereignty
is transcended’.1480 These views of Strydom, Potgieter and Walker are rooted, for example,
with the AU Commission noting that the Constitutive Act of the AU marked a ‘radical shift
1477
Strydom (2003) at 67.
Idem.
1479
Potgieter and Walker (2015) at 107.
1480
Idem.
1478
277
from the cardinal OAU principle of national sovereignty and non-intervention in national
affairs’.1481
However, in moving towards this changing mindset, there was still a criticism that the
international naval programme merely showed that the international community was not
concerned with the real problems of Somalia where the perpetrators have their stronghold,
but rather with the associated symptoms.1482 This was because the focus was essentially on
the security of global shipping and the safeguarding of their commercial interests. 1483
Potgieter notes that from an African perspective, the focus should be on the roots and causes
of maritime insecurity.1484 It is submitted that if the AU provides a stronger framework for
the intervention of the international community in counter-piracy interdiction and
enforcement jurisdiction on their terms1485, then the continent would benefit from the
capacity building, resources and training which would be brought by the international
community into the fray. Ultimately this would strengthen the security and stability of the
region and allow maritime trade to proceed unhindered and for the developmental
objectives of the AIMS to flourish. The by-product of the intervention of the international
community would thus be the enhancement of the continent’s maritime security, and if this
is done in conjunction with a framework provided by the AU, there is a possibility that this
would foster a sustainable indigenous maritime security regime for the continent, and in
particular, the east African seaboard. In turn, this secure maritime environment would
advance what Kornegay terms as the ‘continental sovereignty’ of Africa.1486
VI. CONCLUDING REMARKS
This chapter commenced by showing how the key international enforcement provision for
anti-piracy measures, article 105 of UNCLOS, has a restricted geographical application. It
was further shown that piratical acts occurring in territorial waters of the east African
seaboard escaped the universal enforcement provisions of the article. To circumvent this
limitation, passing of initiatives took place at both an international level – through the
passing of resolutions by the Security Council – and at a regional level.
1481
AU Commission (2015) at 12-13.
Potgieter (2015) at 249.
1483
Idem at 249 and 258.
1484
Idem at 258.
1485
Suggestions in this regard will be proposed in the final chapter of this thesis.
1486
Kornegay (2012) at 74 and at 87 where he notes that the continental sovereignty of Africa would
be advanced by enhancing the continent’s maritime security.
1482
278
In closing this chapter, it can be concluded that there has been a need to exercise foreign
enforcement jurisdiction in territorial waters, especially due to the unique circumstances of
modern Somali piracy – the initiatives presented above have sought to achieve that.
However, in surveying the context and content of these initiatives, its limitations became
apparent: the Security Council resolutions were temporary – ad hoc and sui generis
measures and the regional Code of Conduct and MoU between South Africa, Tanzania and
Mozambique are non-binding instruments. The initiatives have been reactionary in nature
– a response to the sharp increase in piratical activity between 2006 and 2012.
It is submitted that there is a need for a permanent enforcement regime in place which
extends universal enforcement jurisdiction into territorial waters in qualified
circumstances. Geiß and Petrig were cited earlier in this chapter, but it is apt to restate their
comment on the two options that were placed before the Security Council. The first option
was to ‘[t]o draft a comprehensive and region-specific enforcement regime from scratch,
tailored specifically towards the repression of the criminal phenomenon encountered in the
Gulf of Aden’.1487 The second option was to ‘to build upon the existing enforcement regime
contained in UNCLOS and to remedy its shortcomings so as to better target piracy off
Somalia’s coast’.1488 It was evident that the UN Security Council chose the latter approach
and the resolutions circumvented the high seas limitation in the UNCLOS provisions. The
operative provisions of these resolutions have been periodically extended for 12 month
terms and they are currently in force.1489
Whilst continuing to periodically renew these resolutions may be an option for the
international community, the resolution and its successive renewals do not offer a
permanent solution because of its tentative nature, carefully worded caveats and restricted
geographical application. Should piratical attacks occur further south off the coasts of
Kenya, Tanzania or Mozambique, these would fall outside the ambit of the resolution.
Furthermore, if the statistics of instances of piratical acts continue on the current trajectory
and decline to the extent that such acts become dormant, this could result in piracy falling
out of the agenda of the Security Council with the consequence that the resolution may not
be renewed and would consequently lapse. Thus, after such lapse, if subsequent isolated or
sporadic piratical acts occur in the region, foreign naval capacity which may wish to
promptly interdict suspects in the territorial waters of coastal states would be precluded
from exercising the unique jurisdiction conferred by the resolution.
1487
Geiß and Petrig (2011) at 70.
Idem.
1489
See UN Security Council Doc. S/RES/2383 (2017) at par. 14.
1488
279
Geiß and Petrig noted above that the first option of formulating a new region specific
enforcement regime was not a realistic alternative.1490 The remaining option of building
upon the UNCLOS regime would be an appropriate course of action. It is suggested that a
modification of the regime in UNCLOS through a revision of key articles, particularly
article 105 to extend its application into territorial seas in defined circumstances would
prima facie be a logical remedy to the adverse consequences of the high seas limitation.
The final chapter proposes an exemplar of how such a modification could be formulated
and the process of effecting such a modification.
However, the analysis of the Security Council resolution revealed a harbinger of what to
expect when proposals are put forward to modify UNCLOS. It was apparent that states are
protective of their sovereignty and prefer to maintain the integrity and sanctity of the
UNCLOS regime as it stands.1491 The third chapter of this thesis, however, canvassed how
this absolute notion of sovereignty over the territorial sea has a hollow foundation, and
found that there is an evolving new conceptual framework for sovereignty in the 21st
Century which is eroding some of the foundations of the concept of state sovereignty.
National political will to deviate from this accepted norm, as embodied in the potential
modification of UNCLOS, however, would be a significant challenge.
Whilst the integrity of state sovereignty appears to be a paramount concern from the global
perspectives of states relating to the UNCLOS regime, this chapter has revealed a different
orientation on the continental platform under the auspices of the AU and its member states.
Through the course of the analysis of the institutional and legislative framework of the AU
and the decisions and initiatives arising from it, the facilitation of cooperation,
collaboration, intervention and the pooling of resources both on a continental and
international front appears to be a common theme and provides a tenor of developing AU
jurisprudence. This orientation appears to trump the traditional notions of state sovereignty
and non-interference. It is in this context, that the penultimate section of this chapter made
a case for and proposed the extension of universal enforcement jurisdiction to interdict
suspects in the territorial waters of the states on the east African seaboard. This proposal
would be integrated into the AU legislative framework and would be shown to be
compatible with the developing jurisprudence of the AU. In this regard, the final chapter
1490
Geiß and Petrig (2011) at 70.
Researchers in the law of the sea would be well acquainted with the legislative history of
UNCLOS, particularly the length of the deliberations and that the convention is, holistically, a
‘package deal’ as a result of a compromise of various competing interests.
1491
280
will present a model that is built into the AU institutional and legislative framework for
universal enforcement jurisdiction in the territorial waters of AU member states with a
permanent and wide geographical application. The model will be complimentary to the
extant UNCLOS framework. Whilst Vrancken appropriately observes with regard to the
AU that ‘the limited powers of the organisation inevitably constrain its overall
contribution’,1492 the model that is proposed is supported and strengthened through a
mutually beneficial interaction with foreign and international stakeholders.
These findings and observations, together with those of the previous chapters, will now be
consolidated in the following final chapter of this thesis.
1492
Vrancken (2014) at 63.
281
VI
___________
RECOMMENDATIONS AND CONCLUSION
I. INTRODUCTION
Having traversed historical foundations of piracy law through academic opinion and
selected cases, followed by a survey of the development of the codification of these
doctrines and its regional and national application – the aim of this final chapter is to
consolidate the findings and to present some recommendations. Piracy off the east African
seaboard between 2006 and 2016 was analysed and provided the impetus to revisit and
challenge an established principle of law, which confined the definition of piracy and
universal enforcement jurisdiction to the high seas or a place outside the jurisdiction of a
state. In this chapter, the key findings of the previous chapters are presented, followed by
a discussion of some practical recommendations. Lastly, the discussion will forecast
challenges relating to the adoption of these recommendations, and bring the study to a close
with a few parting remarks.
II. SUMMATIVE ASSESSMENT AND SUBMISSIONS
2.1.
Summative assessment of the chapters
Chapter 2 contextualised the study to the East African seaboard and demonstrated that
incidents which have the same actus reus of piracy occur within territorial waters, and acts
of piracy committed on the high seas descend into territorial waters. The chapter
enumerated the incidents of piracy and armed robbery at sea through an analysis of the
reports prepared by the IMB and the IMO. It was shown that the role of naval interdiction
was significant in reducing the incidents of piracy in the region. However, even though
these incidents have reduced significantly, the chapter concluded with precautionary
remarks that should favourable conditions once again manifest – then the incidents of
piracy could resurge.
In Chapter 3, the legal analysis commenced. The chapter considered two lines of
jurisprudence: the developing jurisprudence that defined piracy, and the developing
jurisprudence on the extent and juridical nature of the territorial sea. The chapter contained
four substantive sections:
282
The first section revisited one of the earliest and most frequently cited terms to
describe pirates: namely as hostis humani generis. The section, having traversed
the conflicting opinions of jurists from Cicero to Travers Twiss, concluded that
what remains is a phrase that could be described as an unreliable epithet and a
metaphorical invective.
The second section considered the definition of piracy in early cases and doctrines.
The expansive jurisdiction over piracy over all parts of the ocean was apparent in
R v Dawson.1493 The dominance of British naval power over the oceans was evident
by the Nineteenth Century, and the section presented incidents like the Qawasim
in the Persian Gulf, the Huascar incident in Peru, and the Kwok-A-Sing saga in
Hong Kong. This showed the potential for abuses of foreign power within the
territorial waters of the coastal state and cases such as the Serhassan pirates and
the Magellan pirates which favoured a broad reach of naval power over all parts
of the ocean, and which did not distinguish between the high seas and territorial
sea. The section also contained an overview of American jurisprudence during the
19th Century, which highlighted the interface between the mechanism for punishing
pirates under the law of nations and under municipal law and its extraterritorial
reach. The Supreme Court in US v Smith1494 recognised the diversity of opinions
on the definition of piracy and presented a definition of piracy which contained no
reference to the high seas or territorial sea.
The chapter then examined the locus of piracy and the third section then reviewed
the concept of universal jurisdiction – which is applied exclusively on the high
seas. The bases of jurisdiction were set out, followed by pointing out the rationale
for universal jurisdiction over piracy based on three grounds: (i) heinousness; (ii)
denationalisation; and (iii) the security of international commerce. Judicial
precedents over incidents were discussed and were found to be too sparse and too
scattered to develop any consistent jurisprudential doctrines. The discussion
concluded by finding that the exercise of universal jurisdiction over piracy has
enduring value. However, it was only applicable to piracy jure gentium and not
piracy as defined by municipal law. The key distinction between piracy jure
gentium and piracy under municipal law is the locus of the act. This led to the final
1493
1494
(1696) 13 How. St. Tr. 451.
18 U.S. (5 Wheat) 153 (1820).
283
part of the discussion in the chapter on the realm of the high seas vis-à-vis the realm
of the territorial sea.
In the final part of the chapter, the extent and juridical nature of the territorial sea
was surveyed. It was shown that there was uncertainty, ambiguity and conflicting
academic opinions on the extent of the territorial sea. Furthermore, in the
development of the juridical nature of the territorial sea, it was shown that there
was a diversity of opinion, and unpacking the nature of the sovereignty entailed an
understanding of the division between dominium and imperium. The survey in the
chapter points to numerous theories on the juridical nature of the territorial sea.
They ranged firstly from a broad territorialist thesis that sees the sea as a
prolongation of a state’s land territory to the second thesis that rejects the
possibility of the territorial sea as a subject to the sovereignty of the coastal state,
and instead views the territorial sea as part of the high seas – leaving the coastal
state with jurisdiction for specific purposes. The chapter reviewed and collated the
various theories that support the latter thesis.1495 The existence of these theories
suggests that there are views that are alternative to the traditional Westphalian
notions of absolute sovereignty. Contemporary views on sovereignty were set out
briefly, and it was shown that movements towards globalisation, interdependence
and cooperation have eroded the traditional approach to sovereignty as an absolute
and unlimited authority.
Chapter 4 considered the development of the codification of the international framework.
The current provisions of UNCLOS were set out and the narrow application and impact of
the high seas’ limitation was emphasised. The chapter importantly notes how the impact of
the high seas’ limitation was dismissed as an area of contention. It was highlighted that
there was a lack of progressive development on the high seas’ limitation due to a paucity
of cases and the perception, at the time, that piracy was extinct or a historical curiosity. The
chapter then examined each of the codification attempts, with a focus on the high seas’
limitation. The Matsuda report was the first codification attempt to recognise the possibility
of a reverse hot pursuit in the territorial sea where there is a need to safeguard international
relations. In its draft provisions, the reverse hot pursuit provisions are interpreted to purport
that piracy jure gentium can therefore extend into the territorial sea. A detailed discussion
followed on the provisions of the Harvard Draft and its voluminous commentary. The Draft
1495
For convenience of recollection, these theories are: the police theory, conservation theory,
competence theory, and servitude theory. See section 5.3.3 (v)(a)-(d) of chapter 3.
284
also contained reverse hot pursuit provisions. It is noteworthy that these two attempts rested
on a deficient analysis of the large corpus of jurisprudence regarding piracy and the
territorial sea – as highlighted in chapter 3. In the analysis of the subsequent work of the
International Law Commission (ILC) the reverse hot pursuit provisions were not included
in the draft instruments. The travaux preparatories highlighted that in the deliberations
during the ILC projects and the first and third United Nations Conferences on the Law of
the Sea, the commissioners, at each stage, queried the high seas’ limitation – which were
rejected without a substantive or probative analysis.
Chapter 5 considered the application of the various legal frameworks applicable to the east
African seaboard. It was shown that the incidents of piracy off Somalia required an
additional enforcement remedy, as the high seas limitation prevented international and
foreign naval interdiction in the territorial sea, which was prone to attacks and seen as a
haven for the perpetrators. From an international perspective, need for an additional
enforcement remedy was addressed by the passing of Security Council Resolution 1816,
which authorised interdiction in the Somali territorial sea. The chapter considered the ad
hoc nature, limitations and deliberations which lead up to the adoption of the resolution.
The deliberations provided a harbinger of the potential obstacles of obtaining the consent
of states to new provisions which would encroach on their sovereign rights. The most
significant regional effort under the auspices of the IMO was the Djibouti Code of Conduct
was seen as a positive development which goes a long way towards complementing the
UNCLOS regime. Its successful adoption is seen as a progressive development where
states, mindful of the importance of consent and consultation, are prepared to break away
from the sacrosanct approach to their sovereign rights in recognition of regional and global
community needs. The chapter then turns to a municipal level and reviewed the approach
to piracy in the region by two key players: South Africa and Kenya. It was found that South
Africa’s enforcement measures are consistent with the international framework and the
country has concluded a trilateral anti-piracy agreement with Mozambique and Tanzania
which allows entry into each other’s territorial waters in order to suppress piracy. It was
shown that Kenya has taken progressive steps to incorporate the international framework
through the enactment of the Merchant Shipping Act of 2009. In these national frameworks,
it was shown that the locus of a piratical act has been a crucial element in the forging of an
enforcement and prosecutorial regime. Lastly, the chapter presented a detailed treatment of
the continental anti-piracy responses. The section highlighted how ‘seablindness’ was
ingrained for decades in policymakers on the continent, but the piracy epidemic off Somalia
in the decade under review in this thesis generated a new impetus and became a catalyst to
drive the recognition of maritime security and the shift away from seablindness. A case for
285
universal enforcement jurisdiction to interdict piratical acts in territorial seas was made.
Due to institutional and capacity constraints and a general lack of political will on the
continent, international and foreign intervention and cooperation in maritime security
endeavours in the problematic Horn of Africa region played a significant role in the rapid
decline of piracy at the end of the period under review. The detailed survey of the initiatives
of the AU and key instruments, namely the AIMS and the Lomé Charter has pointed
towards a new emerging jurisprudence which shifts away from the traditional approach of
the OAU which favoured the concept of absolute state sovereignty and enshrined the
principle of non-intervention. In surveying the instruments and decisions of the AU
structures, trends towards increased collaboration, cooperation and pooling of resources
amongst members states and between international partners have become apparent. Crossborder operations are envisaged and innovative frameworks such as the CEMZA in the
AIMS point toward a changing mindset and in principle appear to be compatible with the
proposals which will be advanced later in this chapter as the secondary submission.
2.2.
Overview of the primary submission
The grounds for challenging the high seas’ limitation were made on the basis of: (i) the
hollow jurisprudential foundation; (ii) the rejection and disappearance of relevant articles
during the codification processes and revisiting its significance in light of contemporary
challenges; and (iii) the emerging trends in the manner of application in regional
instruments and domestic legislation. The grounds for challenging the high seas’ limitation
have been elucidated and addressed in the preceding chapters. Based on this primary
submission, the next section will present further recommendations in the form of a revision
of the UNCLOS articles on piracy.
2.3
Overview of the secondary submission
The secondary submission, in contrast to the primary submission, complements the existing
UNCLOS framework and is geographically applicable to the coastal regions of the African
continent. It is submitted that a model of universal enforcement jurisdiction over piratical
acts in the territorial waters of AU member states can be integrated into the existing
institutional framework of the AU.1496 This submission is supported by the findings of the
1496
In this regard, all the states on the east African seaboard are member states of the African Union
(dates of accession in parenthesis): South Africa (6 June 1994); Mozambique (18 July 1975);
Tanzania (25 June 1963); Kenya (13 December 1963) and Somalia (25 June 1963).
286
previous chapter which points towards a penchant for collaborative efforts between the AU
and international or foreign stakeholders.
The submission analyses the AU’s right of intervention in its member states, as emphasised
in its Constitutive Act, and submits that piratical acts would fall within one of the grounds
of intervention, namely a serious threat to legitimate order. This provision can circumvent
the need for Security Council authorisation and state consent. The AU Standby Force (ASF)
provides the mechanism for such intervention. The submission recommends an additional
deployment scenario to the policy framework of the ASF which facilitates joint
intervention interdiction operations between the ASF and foreign and international naval
capacity in territorial seas of member states. Submissions are also made to incorporate the
AU Continental Early Warning System (CEWS) into this framework. The framework for
the joint intervention interdiction operations are proposed as a further annex to the Lomé
Charter.
In effect, the proposed model will accommodate any foreign or international naval
deployments that engage in interdicting piratical acts in territorial waters. It will be shown
that the model does not provide for the blanket exercise of universal enforcement
jurisdiction, but it is exercised under the aegis of the AU institutional framework through
cooperative deployment with the ASF and minimal formalities required. The model thus
aims to be housed within a permanent and binding AU framework.
III. PRIMARY SUBMISSION: PRACTICAL RECOMMENDATIONS
The summary above – which highlights salient findings from discussions in the previous
chapters – presents a largely academic debate. To enhance the usefulness of these findings
and discussions, aspects thereof will be drawn into a practical amendment1497 to the
UNCLOS provisions, followed by a brief commentary setting out the rationale and
motivation.
Madden in ‘Trading the shield of sovereignty for the scales of justice: A proposal for reform of
international sea piracy laws’ 21 University of San Francisco Maritime Law Journal (2008-9) 139
at 155, comments that ‘the creation and modification of international law ought to be practical, rather
than a strictly academic endeavor. International law is a tool that should exist to serve the needs and
objectives of the community of nations’.
1497
287
3.1
Amendment of UNCLOS
Harrison commented that from the late Nineteenth Century ‘it was widely believed that the
codification of international law on significant areas of international law would contribute
to the maintenance of international peace and security by promoting clarity in the
applicable law, thereby avoiding the causes of international conflict’.1498 Furthermore,
Tanaka considers that the international law of the sea ‘should be considered as a dual legal
system comprising both a zonal management approach which primarily seeks to coordinate
interests of individual States and an integrated management approach focusing on the
protection of community interests at sea’.1499 UNCLOS provides the framework envisaged
above and was described at the time of its adoption as ‘the greatest legislative effort
undertaken by the United Nations and probably the greatest ever undertaken in the annals
of international law as a whole’.1500
In the present study of piracy on the east African seaboard, in reviewing the Security
Council Resolution 1816 in chapter 5, the preamble to the resolution affirmed that
UNCLOS sets out the legal framework applicable to combatting piracy and armed
robbery.1501 The enforcement regime set out in the resolution is modelled on UNCLOS.1502
Furthermore, the regional agreement, the Djibouti Code of Conduct, focused on
incorporating the provisions of UNCLOS into domestic law.1503
3.2
Specific recommendations
Although the achievement of UNCLOS has been acclaimed, Murphy has remarked that ‘no
human act is perfect. Each bears the marks of its maker and the time of its gestation.
Treaties are not immune from this law and UNCLOS is no exception’.1504 The existing
1498
Harrison Making the Law of the Sea: A study in the development of International Law (2011) at
28.
1499
Tanaka The International Law of the Sea (2015) at 453. Article 101(a)(i) and (ii) of UNCLOS
provide that the actus reus of piracy is directed against ‘against another ship … or against persons
or property on board such ship’ (my emphasis). Property, as envisaged in this section, would include
the commercial cargo being transported, and therefore acts of piracy are seen as predating upon
international commerce which is a shared community interest.
1500
Statement of Norway, 186th meeting, 17 Official Records of the Third United Nations
Conference on the Law of the Sea 27 at par. 42. Cited in Harrison (2011) at 27.
1501
U.N. Doc. S/RES/1816 (2 June 2008) at premabular par. 4.
1502
Shnider ‘Universal jurisdiction over “operation of a pirate ship”: The legality of the evolving
piracy definition in regional prosecutions’ 38 North Carolina Journal of International and
Commercial Regulation (2012-3) 473 at 479.
1503
IMO Doc. C/102/4 (2009) at article 11. See, also, Shnider (2012-3) at 480.
1504
Murphy ‘Piracy and UNCLOS: Does International Law Help Regional States Combat Piracy?’
in Lehr (ed.) Violence at Sea: Piracy in the age of global terrorism (2007) at 155.
288
provisions of UNCLOS relating to piracy are once again reproduced, with framework
suggestions and alterations to the provisions appearing in italics – followed by a
commentary:
3.2.1
Revision of Article 100 (Duty to cooperate in the repression of piracy):
‘(1)
(2)
All states shall cooperate to the fullest possible extent in the
repression of piracy:
(i)
on the high seas; or
(ii)
in any place outside the jurisdiction of any State; or
(iii)
in a place within a State’s territorial sea that is
incapable of exercising jurisdiction.’
States should designate a national focal point to facilitate
coordinated, timely and effective communication and
cooperation with states exercising duties under
subparagraph 1(iii) of this article and for the purposes of
article 105(3).’1505
Comments: What is patent from the insertions to this article is the extension of enforcement
jurisdiction into the territorial sea of the coastal state in subsection 1(iii). This aspect will
be discussed in the section below. Subsection 2 is drawn from a similar concept contained
in article 8 of the Djibouti Code of Conduct.1506 While the objective of the designated
national focal point is ‘to facilitate coordinated, timely, and effective information flow
among the Participants consistent with the purpose and scope of this Code of conduct’,1507
it is suggested that – as envisaged in the deleted draft provision of the Code1508 – this
national focal point would serve as a conduit of cooperation in interdiction operations
between the coastal state and the capturing state. Immediate and swift responses are an
inherent feature in naval interdiction. Given that piracy would flourish in areas without an
effective government, obtaining the necessary approval through the usual diplomatic
channels would not be feasible in the context of naval interdiction. This is further
complicated where, in the context of failed states, the authorities who would issue such
approval, would typically not be legitimate or recognised. The designated focal point would
be an immediate channel of communication.1509
1505
Article 105 dealing with enforcement jurisdiction is discussed in section 3.2.3, below.
See section 5.2.2 of chapter 5.
1507
See article 8(1).
1508
See section 5.2.2 of chapter 5.
1509
A parallel could be drawn with the concept of a Secretary of State’s Representative (SOSREP)
for maritime salvage and intervention. See par. 5.5 of ‘The National Contingency Plan A Strategic
Overview for Responses to Marine Pollution from Shipping and Offshore Installations’ (2014),
available at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/478676/1501120_N
CP.pdf.
1506
289
3.2.2
Article 101 (Definition of piracy)
Piracy consists of any of the following acts:
‘(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)
(ii)
(iii)
on the high seas, against another ship or aircraft, or
against persons or property on board such ship or
aircraft;
against a ship, aircraft, persons or property in a
place outside the jurisdiction of any State;
against a ship, aircraft, persons or property in a
place within a State’s territorial sea that is
incapable of exercising jurisdiction.’
Comments:
Madden approached an amendment of this article in the following way:
‘piracy consists of any acts of violence or detention, or any act of depredation,
committed at sea.’1510
At face value, this suggested revision by Madden solves the high seas’ limitation in article
101 of UNCLOS, as it currently stands. The use of ‘committed at sea’ in the suggested
revision by Madden is reminiscent of the early piracy jurisprudence which used generic
terms such as the open ocean, ocean, and sea. It is submitted however, that the adoption of
Madden’s revision would not conform to the general tenor of UNCLOS, where jurisdiction
and control and use of ocean resources are based on management of specific zones.
The suggested approach would be to maintain the integrity of the UNCLOS framework and
retain notions of distinct jurisdictional zones. The revised article defines an act of piracy as
occurring in the territorial seas – and is only applicable where the coastal state is incapable
of exercising jurisdiction. The concept of capacity is given its ordinary meaning and is
related to the ability to control. This suggestion addresses one of the key impediments
prohibiting the extension of piracy jure gentium into the territorial sea: the presumption of
state capacity. It is submitted that this approach would still recognise the sovereignty of the
coastal state, when viewed through the analysis of the juridical nature of the territorial sea,
revisited in chapter 3. The notions of imperium and dominium discussed in chapter 3 can
find a contemporary interpretation as a conceptual framework, where imperium would
1510
Madden (2011) at 155 (with my emphasis).
290
equate with the ability to exercise control and enforcement jurisdiction over the territorial
sea, and dominium would refer to the sovereign rights of the coastal state. Earlier, in chapter
3,1511 it was concluded, based on the writings of several historical commentators, that
imperium and dominium are concepts that are independent of each other. The survey of the
writings of jurists in chapter 3, particularly Loccenius, suggested that it is possible to cede
a form of imperium or temporary power for the purposes of protection – without derogating
from the rights of the coastal state. A division of rights, without derogating from
fundamental rationales behind those rights, is not uncommon: in the realm of the EEZ the
coastal state enjoys and exercises certain sovereign rights and yields to the general
freedoms of the sea exercised by all nations. The survey of different theories on the juridical
nature of the territorial sea1512 convincingly suggests inherent limitations in the concept of
sovereignty over the territorial sea. This thesis is a proponent of the view that the extension
of enforcement jurisdiction over piracy into the territorial sea would minimally infringe on
the sovereign rights of the coastal state in the exclusive circumstance where the coastal
state has no capacity to enforce its jurisdiction over the territorial sea. The emphasis on this
view would be crucial, should states vote to adopt the amendments which are suggested
above.
At the other end of the spectrum, Azubuike proposes that where a failed state cannot
exercise control over its territorial waters in the suppression of piracy, then it ought not to
hold exclusive rights over those waters to suppress piracy. He writes:
‘where a State has demonstrably failed, the international community, through
the United Nations Security Council, should be bold to declare it as such with
the result that the normal attributes of a State may temporarily be denied it.
Every right carries with it a concomitant duty. If a State is not able to perform
its duty to the international community, its statehood should legitimately be
called into question. The result of this analysis, with respect to the law of
piracy, is that where a State has failed, it really cannot assert its right to the
inviolability of its territorial waters.’1513
1511
See section 5.3.3 (iii) of chapter 3.
See section 5.3.3 (v) of chapter 3.
1513
Azubuike ‘International law regime against piracy’ 15 Annual Survey of International and
Comparative Law (2009) 43 at 52.
1512
291
His view, however – that statehood would be called into question – would not gain a
foothold and garner favour amongst states, should such a provision be inserted into the
UNCLOS articles.
3.2.3
Article 105 – Seizure of a pirate ship or aircraft
1.
Every State may:
(a)
(b)
On the high seas, or in any other place outside the
jurisdiction of any State; or
in a place within a State’s territorial sea, in
circumstances where that State that is incapable of
exercising jurisdiction,
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.
2.
The courts of the State which carried out the seizure in
subparagraph 1(a) of this article may decide upon the
penalties to be imposed, and may also determine the action
to be take with regard to the ships, aircraft or property,
subject to the rights of third parties acting in good faith.
3.
Any State carrying out a seizure under subsection 1(b) of
this article must:
(a)
(b)
4.
notify and report the pursuit and seizure to the
designated national focal point of the coastal state;
tender possession of the ship and property seized
and the custody of the persons arrested to the
coastal state.
If a tender provided for in subsection 3(b) of this article is
not accepted by the coastal State, the State making the
seizure may proceed in terms of subsection 2 of this article.
Comments: The effect of the amendment to the architecture and additions to this article, is
that the universal jurisdiction granted to all states on the high seas now extends into the
territorial sea of a state. In chapter 2, the discussion of the business model or modus
operandi of pirates operating off Somalia has shown that the act traverses both the high
seas and the territorial sea, and in some instances the entire act was committed in the
territorial sea. This has the implication that an amendment which only provides for reverse
hot pursuit would not be applicable, as the act commenced on the high seas. Building on
the previous codification attempts such as the Harvard Draft, which provided for reverse
292
hot pursuit,1514 this provision is broader in its scope and can be interpreted to extend
enforcement powers for acts committed wholly in the territorial seas not exclusively for
acts committed by descent from the high seas.
The provisions of subsection 3 of the revised article are critical for securing the adoption
and coming into force of this amendment, as they provide for a consultative process through
the conduit of the designated national focal point, and is a recognition of a state having a
preferent right of jurisdiction. Subsection 3(a) is drawn from the concept of a focal point
in the Djibouti Code of Conduct – particularly the deleted provisions of article 4(5) of the
Code.1515 Under the deleted provisions, the focal point of the coastal state would notify the
capturing state whether they intend to relieve the capturing state by deploying their own
vessel or issue any specific instructions as to the actions that may be taken by the capturing
state in the territorial waters of the coastal state. The onus would lie on the coastal state to
raise these considerations through the national focal point. Subsection 3(b) and 4 have been
adapted from article 7(2) and 7(3) of the Harvard Draft.1516 Rejection of the tender by the
coastal state in subsection 4 can be seen as a tacit consent by the coastal state to allow the
exercise of enforcement jurisdiction in its territorial sea, pursuant to the provisions of this
article.
1514
See Article 7(1) of the Harvard Research in International Law (Harvard Draft) 26 American
Journal of International Law (1932). Nyman in ‘Modern Piracy and International Law: Definitional
Issues with the Law of the Sea’ 5/11 Geography Compass (2011) 863 at 866, defines reverse hot
pursuit as the ‘ability of a ship to pursue a pirate from international waters into a state’s territorial
waters’. It is also worth noting the following extract from a publication of the United States
Department of the Navy The Commander’s Handbook on the Law of Naval Operations NWP 114M (2007):
‘3.5.3.2 Pursuit of Pirates into Foreign Territorial Seas, Archipelagic Waters, or Airspace
If a pirate vessel or aircraft fleeing from pursuit by a warship or military aircraft proceeds
from international waters or airspace into the territorial sea, archipelagic waters, or
superjacent airspace of another country, every effort should be made to obtain the consent of
the nation having sovereignty over the territorial sea, archipelagic waters, or superjacent
airspace to continue pursuit … The inviolability of the territorial integrity of sovereign
nations makes the decision of a warship or military aircraft to continue pursuit into these
areas without such consent a serious matter. However, the international nature of the crime
of piracy may allow continuation of pursuit if contact cannot be established in a timely
manner with the coastal nation to obtain its consent. In such a case, pursuit must be broken
off immediately upon request of the coastal nation, and, in any event, the right to seize the
pirate vessel or aircraft and to try the pirates devolves on the nation to which the territorial
seas, archipelagic waters, or airspace belong.
Pursuit of a pirate vessel or aircraft through or over international straits overlapped by
territorial seas or through archipelagic sea lanes or air routes, may proceed with or without
the consent of the coastal nation or nations, provided the pursuit is expeditious and direct and
the transit passage or archipelagic sea lanes passage rights of others are not unreasonably
constrained in the process.’ See, also, Murphy (2007) at 163.
1515
The deleted provisions are reproduced in section 5.2.2 of chapter 5 of this thesis.
1516
These provisions were discussed in detail in section 4.4.4 of chapter 4. These suggested
amendments to UNCLOS are also informed by the findings in respect of the Matsuda Report in
section 3.5 of chapter 4.
293
These revised articles can then be drawn into domestic legislation, in a manner similar to
those described in chapter 5.
3.3
Prognosis
3.3.1
Amendment procedure
Article 312 of UNCLOS provides the general amendment procedure.1517 A 10-year waiting
period for the article to take effect expired on 16 November 2004.1518 Given that the above
recommendations amount to a specific amendment, they would need to be presented in
writing to the UN Secretary-General. The article provides that this proposal will be
circulated to state parties. If at least half the state parties, within 12 months, accept the
request, then a conference will be convened. A simplified amendment procedure is
contained in article 313,1519 where a proposal is adopted automatically if no state party
objects. However, this simplified procedure may not be as simple and expeditious in these
circumstances because article 313(1) refers to a process involving ‘an amendment’,
whereas the proposals herein contain a series of amendments. In addition, article 313(2)
contains the proviso that if one state party objects to the amendment, then the process would
1517
Article 312 of UNCLOS provides:
‘1. After the expiry of a period of 10 years from the date of entry into force of this
Convention, a State Party may, by written communication addressed to the SecretaryGeneral of the United Nations, propose specific amendments to this Convention, other
than those relating to activities in the Area, and request the convening of a conference to
consider such proposed amendments. The Secretary-General shall circulate such
communication to all States Parties. If, within 12 months from the date of the circulation
of the communication, not less than one half of the States Parties reply favourably to the
request, the Secretary-General shall convene the conference.
2. The decision-making procedure applicable at the amendment conference shall be the
same as that applicable at the Third United Nations Conference on the Law of the Sea
unless otherwise decided by the conference. The conference should make every effort to
reach agreement on any amendments by way of consensus and there should be no voting
on them until all efforts at consensus have been exhausted.’
1518
Harrison (2011) at 65. He remarks idem that ‘the temporal limitation was aimed at preserving
the integrity of the Convention for its initial period of operation’.
1519
Article 313 provides: Amendment by simplified procedure:
‘1. A State Party may, by written communication addressed to the Secretary-General of
the United Nations, propose an amendment to this Convention, other than an amendment
relating to activities in the Area, to be adopted by the simplified procedure set forth in
this article without convening a conference. The Secretary-General shall circulate the
communication to all States Parties.
2. If, within a period of 12 months from the date of the circulation of the communication,
a State Party objects to the proposed amendment or to the proposal for its adoption by the
simplified procedure, the amendment shall be considered rejected. The Secretary-General
shall immediately notify all States Parties accordingly.
3. If, 12 months from the date of the circulation of the communication, no State Party has
objected to the proposed amendment or to the proposal for its adoption by the simplified
procedure, the proposed amendment shall be considered adopted. The Secretary-General
shall notify all States Parties that the proposed amendment has been adopted.’
294
be halted and the proposal rejected. It therefore seems unlikely that the simplified procedure
would be the most effective approach to a proposal that encroaches on state sovereignty.
Furthermore, article 315 deals with signature, ratification and accession, and article 316
provides for the entry into force of amendments. Harrison has noted, however, that since
the coming into force of UNCLOS, neither of these amendment procedures has been
invoked.1520 In the premises, the probability of a conference being convened to amend the
provisions set out above is low.
3.3.2
Impact
The recommendations above present a prima facie logical solution to the research problem
presented at the outset of this thesis. However, based on the observations noted below, it
would appear unlikely that a modification or amendment to UNCLOS, as recommended
above, would be adopted if these observations of a sampling of state practice persists.
Indeed, I am cautious and mindful not to delude myself into believing that these
submissions and specific recommendations would elucidate with finality and provide a
neatly packaged solution for the issues and challenges in this discipline which international
scholars far more experienced than myself debate over and are still finding solutions for.
The key observation, which would hinder the progression of these recommendations to a
debate in a policy making forum and revealed during the course of this thesis, relates to the
continuing state practice that points to an aversion to challenging the framework laid by
the current UNCLOS regime. Indeed, drawing on the history of the third United Nations
Conference on the Law of the Sea (UNCLOS III), Harrison pointed out that it took place
in a much more politically charged atmosphere than had been the case with previous
attempts at law making.1521 It is clear that sovereignty and territorial integrity is still a
sacrosanct component of the international legal system.1522 The question of whether
encroachments of sovereign rights arising from these amendments would be acceptable to
states is still an open one. In the discussion in chapter 5 relating to the passing of the UN
Security Council Resolution 1816, the deliberations leading up the adoption of the
1520
Harrison (2011) at 70. A possible explanation for this can be found in Geiß and Petrig Piracy
and armed robbery at sea (2011) at 52, where they note that ‘UNCLOS is traditionally perceived to
reflect a subtle balance of extensively negotiated compromises that is only acceptable to States
parties as a package deal. Thus, a widely held perception is that a modification of singular elements
or even entire sections would off-set the negotiated compromise and would necessitate
modifications of UNCLOS in its entirety. For the time being, States appear to be strongly committed
to uphold this package-deal.’
1521
Harrison (2011) at 40.
1522
See, for example, U.N. Doc. S/RES/1816 (2 June 2008) at premabular par. 6, which ‘[reaffirms]
its respect for the sovereignty, territorial integrity, political independence and unity of Somalia’.
295
resolution were particularly instructive. Some state delegates, like Indonesia and China,
expressed in unambiguous terms that the sovereignty and territorial integrity of the coastal
state is a paramount consideration.1523
What becomes apparent is that any attempt to modify or amend the UNCLOS framework
would be met with resistance by some states.1524 The surveys shown in this thesis reveal
that this resistance has often been summarily meted out from early codification attempts in
the early twentieth century to the recent deliberations in the Security Council. The
reasoning for this sacrosanct approach to respect for the territorial integrity of the respective
states could be explained in various ways, for example, it may be a key factor in the
geopolitics of territorial disputes1525 or simply because their respective coastlines and
regions or shipping interests are not affected by piracy and the unique circumstances that
manifested due to piracy off the east African seaboard.
Thus, unless there is a significant change in the mindset of states, the proposed
modifications would remain confined to a draft paper. To move, in measured strides,
towards this direction of a change in mindset requires ‘political will’ on the part of
individual states. It is apposite to quote Potgieter’s description of this term as having ‘an
influence on the choices political leaders make and on the way these choices are
implemented, and it is central to achieving or not achieving political outcomes’.1526 He goes
on to state that ‘[p]olitical will is dependent on having leading figures to ‘champion’ a
specific issue and to ensure that implementation occurs. But such ‘champions’ require good
information to ensure that they can communicate clearly and promote their support of
specific initiatives’.1527 In Potgieter’s comment lies a source of the holistic value of the
primary aim of this thesis: that champions or policy makers in various platforms1528 need
1523
See section 2.1.4 of chapter 5.
It was beyond the scope of this thesis to gain a broader view of the current individual or collective
attitudes of states regarding encroachments of their sovereignty. It is suggested – to follow on from
this thesis – a further detailed study sourcing and listing the various coastal states’ views in this
regard would be particularly informative in assessing the prospects of states approving the
convening of an amendment conference to discuss the proposals in the primary submission of this
thesis.
1525
For example, see generally Philippines v China 2013-19 (Permanent Court of Arbitration).
1526
Potgieter ‘Leadership and Political Will – crucial for maritime security in East Africa’ in
Mandrup and Vreÿ Towards Good Order at Sea: African Experiences (2015) at 244 (with my
emphasis).
1527
Idem (with my emphasis).
1528
Once this occurs at a domestic level, there is further potential to escalate this change of mindset
to policy makers at a multilateral level. For example, Tieku suggests that ‘[AU] Commissioners will
need to ensure that the politicians agree on issues that advance the general interests of Africans…’
Tieku ‘Explaining the clash and accommodation of interests of major actors in the creation of the
African Union’ 103 African Affairs (2004) 249 at 266.
1524
296
to be well appraised with sound information, who can then circulate and proliferate these
ideas which need deep reflection grounded by detailed analyses. Potgieter and Walker
caution how ‘conferences often focus on superficial or ‘popular’ or newsworthy themes
instead of dissecting deeper issues.’1529 The survey in this thesis also reveals how critical
opportunities to deeply dissect issues concerning sovereignty and the high seas’ limitation
which could had a wider impact were missed: for example, in chapter 4 it was revealed
how key submissions made in a 1955 meeting of the ILC were simply outvoted in a meeting
lasting two hours.1530 Decades later, in 2010, when a meeting of experts convened under
the auspices of the AU Commission to underscore the formulation of the AIMS, the
UNCLOS framework was discussed in superficial terms.1531 In this spirit, the holistic
analysis presented in this thesis, in which the high seas’ limitation was challenged on
historical and contemporary grounds, is submitted as the first comprehensive attempt in
scholarship with the aim of serving as a repository for policy makers to reflect more deeply
on these issues.
Although the possibility of modifying the framework in UNCLOS is unlikely for the
reasons set out above, it is submitted that this does not detract from the usefulness of the
specific recommendations made in this primary submission as an academic endeavour and
a stimulus for deeper reflection by policy makers for two reasons. First, early codification
attempts that considered issues such as reverse hot pursuit in the early twentieth century
have never been considered in academic scholarship in any great detail,1532 however this
thesis sets out its relevance through the prism of contemporary challenges manifesting off
the east African seaboard. The circumstances under which those key provisions and
submissions were rejected well over half a century ago also markedly differ from the
present circumstances of Somali piracy; the creation of the EEZ and the decolonisation of
Africa.1533 Second, the specific recommendations drafted herein are offered as the first
detailed legislative proposal showing an exemplar of a modified UNCLOS framework in
response to the research problem in this thesis. Having an exemplar provides a foundational
reference point for testing its compatibility with respective states current and future policy.
Finally, as a parting remark at this interval, the analysis of regional, national and continental
measures along the east African seaboard contains weightier evidence to suggest a view
1529
Potgieter and Walker (2015) at 97.
See section 5.2 of chapter 4.
1531
See section 5.3.3 of chapter 5.
1532
See for example section 4.5 of chapter 4 where the only author who appears to analyse these
codification attempts was Rubin (1988).
1533
See the discussion in section 2.5 and 2.6 of chapter 4. Indeed
1530
297
that resistance to compromises to traditional concepts of state sovereignty will yield to the
broader interests of the international community and the protection of international trade
from the predation of piracy.
IV. SECONDARY SUBMISSION: PRACTICAL RECOMMENDATIONS
4.1
General observations
In the previous chapter, a survey was undertaken of the continental approach concerning
maritime security and specifically to maritime security, with an analysis of the recent
bespoke continental instruments relevant to maritime security. From this analysis, a case
was made for the incorporation of universal enforcement jurisdiction within territorial
waters for the purposes of combating piracy within an AU continental framework. This
section considers one way in which this proposal could be formulated into the existing
institutional architecture.
The survey in the previous chapter has shown that while there were calls for piracy
conferences, special technical committees and a specialised maritime department within
the AU Commission,1534 to date, none of these initiatives has been taken forward. It is
therefore suggested that existing mechanisms are utilised and improved upon to achieve
the proposal presented above. Using existing mechanisms have some advantages and the
ISS and Wilton Park note that ‘there are important issues of how to achieve synergies,
promote complementary rather than duplicative approaches, coherence, and coordination
on the part of both African organisations and countries and international donors and
partners’.1535 Kame-Domguia, the coordinator of the AIMS Task Force in the AU
Commission, noted with regard to east Africa that ‘[t]he region in general has insufficient
Maritime Domain Awareness and unreliable Maritime capability. Examples include navy,
coastguard, and civilian maritime agencies. Furthermore, they lack a single agency or
coordinating body that operates on the maritime security issues i.e. there are too many
actors and programs that are uncoordinated’.1536 Using existing mechanisms could possibly
foster a greater integration of maritime security policies within the APSA. In its 2016-2020
Roadmap, it was observed for example, that ‘[t]he African Union’s maritime security
1534
See Walker (2017) at 3.
Wilton Park and ISS (2015) at 1.
1536
Kame-Domguia ‘The African Union Commission’s 2050 Africa’s Integrated Maritime Strategy’
Briefing Paper commissioned for the Fourth UAE Counter Piracy Conference: ‘Securing State
Recovery: Sustaining Momentum at Sea, Confronting Instability on Land.’ Dubai (October 2014).
See: www.counterpiracy.ae.
1535
298
policy is weakly integrated into APSA: This [is due to] the absence of a Plan of Action for
the operationalization of the [AIMS] [and] a lack of effective mainstreaming of maritime
security into CEWS’.1537
4.2
Recommendations
The proposal to extend universal enforcement jurisdiction into territorial waters of AU
member states is proffered as an alternative to the proposals in the previous section
regarding amendments to the UNCLOS text. These proposals are intended to be
complementary to the extant regime contained in the UNCLOS. The approach will entail a
revisit of the framework for the ASF and the CEWS, as well as a recommendation for a
further annex to the Lomé Charter. The proposals are made ad referendum and suggest one
of the ways in which the integration of maritime security policies into the APSA can be
fostered.
4.2.1
Intervention under the aegis of the African Union Standby Force
(i)
Preface and milieu
Foreign naval interdiction in territorial waters to suppress or prevent an act of armed
robbery against ships without the authorisation or consent of the coastal state would be
tantamount to an intervention in a state and is not an automatic privilege granted by
international law to foreign navies. The Constitutive Act of the AU provides for specific
grounds of intervention. Article 4(h) thereof provides the following principle, i.e. ‘the right
of the Union to intervene in a Member State pursuant to a decision of the Assembly in
respect of grave circumstances, namely war crimes, genocide and crimes against
humanity’. Piracy and armed robbery are expressly excluded from this list. However, this
numerus clausus was expanded when the Protocol on Amendments to the Constitutive Act
of the African Union revised this article to read as ‘the right of the Union to intervene in a
Member State pursuant to a decision of the Assembly in respect of grave circumstances,
namely war crimes, genocide and crimes against humanity as well as a serious threat to
legitimate order to restore peace and stability to the Member State of the Union upon the
recommendation of the Peace and Security Council’.1538 It is submitted that the perceived
lawlessness of the waters and the threat to security of shipping and humanitarian concerns
1537
APSA Roadmap 2016-2020 (2015) at 52. See also Engel (2014) at 21, where he notes that
‘Maritime security and safety was not, however, fully integrated into the AU’s African Peace and
Security Architecture. Thus far, it does not feature in the African Standby Force or in the Continental
Early Warning System.’
1538
See article 4 (with my emphasis). This provision was replicated in article 11(f) of the Solemn
Declaration on a Common African Defence and Security Policy.
299
caused by piracy and armed robbery along the east African seaboard during the period of
analysis in this thesis could arguably have fallen within the ambit of the threat stipulated in
the revised intervention article. In support of this submission, the Security Council, in its
most recent resolution pertaining to the situation in Somalia expressed concern about the
‘ongoing threat that resurgent piracy and armed robbery at sea poses to the prompt, safe,
and effective delivery of humanitarian aid to Somalia and the region, to the safety of
seafarers and other persons, to international navigation and the safety of commercial
maritime routes, and to other ships, including fishing vessels operating in conformity with
international law’.1539
This intervention article has been described as groundbreaking and significant in that it
transcends the traditional models of state sovereignty. Dersso appropriately captured the
significance of this article in the following way:
‘This provision, together with the emphasis on ending conflicts and promoting
peace and security, reverses the primacy that the OAU accorded to the state
and its state centric principles over people and the rights and interests of
citizens. Most notably, it revises the understanding and scope of the
application of the principles of state sovereignty and non-interference. By
narrowing the scope of application of state sovereignty and non-interference,
this provision removed the issues covered by these principles from the
exclusive domestic jurisdiction of the state and made them matters of
continental concern.’1540
Darkwa similarly commented that the intervention article ‘was a stark deviation from the
OAU’s non-interventionist stance and a clear demonstration of African leaders’
determination to prevent the use of sovereignty as a shield for human rights violations’.1541
The specific institutional mechanism within the AU to enforce this intervention article is
the ASF. Article 13(1) of the PSC Protocol provides that ‘In order to enable the [PSC]
1539
United Nations Security Council Doc. S/RES/2383 (2017) at preambular par. 4. It is worth
restating Klein Maritime Security and the Law of the Sea (2012) at 304, where he remarked that: ‘it
seems likely that ongoing, or particularly violent acts of piracy and armed robbery at sea could be
viewed as a threat to international peace and securing and enabling the Council to act under Chapter
VII if there was sufficient political will to do so.’
1540
Dersso ‘The role and place of the African Standby Force within the African Peace and Security
Architecture.’ Institute for Security Studies: Paper 209 (2010) at 4.
1541
Darkwa ‘The African Standby Force: The African Union’s tool for the maintenance of peace
and security’ 38 Contemporary Security Policy (2017) 471 at 473.
300
perform its responsibilities with respect to the deployment of peace support mission and
intervention pursuant to article 4(h) and (j) of the Constitutive Act, an [ASF] shall be
established’. As was set out in the previous chapter, the ASF is an integral component of
the APSA. Darkwa reflected that ‘[f]ourteen years after the [PSC Protocol] provided for
the establishment of the [ASF], the ASF was declared to have attained full operational
readiness [only] on January 15, 2016.’1542 She goes on to state that the ‘ASF is one of the
self-help tools of the AU, which emerged as a part of the determination of African leaders
to prevent the situations of the late 1980s and 1990s’.1543 Dersso similarly comments that
the ‘ASF is intended to be one of the mechanisms through which the AU seeks to respond
to future conflicts and crisis situations on the continent ‘timely and efficiently’.1544
In terms of its composition and concept, the PSC Protocol provides that the ASF ‘shall be
composed of standby multidisciplinary contingents, with civilian and military components
in their countries of origin and ready for rapid deployment at appropriate notice.’1545 These
deployments are availed to the AU through the REC/RM on request.1546 Dersso notes that
the ‘ASF is not the equivalent of a national army for, unlike a national army, it is not a
standing force’.1547 Furthermore Darkwa comments that although ‘the Protocol does not
specifically mention the police, this has since been rectified and a police component is now
part of the ASF’.1548 The ASF is further federalised into five geographic regional
brigades.1549
The Protocol also sets out the mandate for the ASF in article 13. The article lists the
situations in which the ASF is deployed which inter alia are peace support missions,1550
intervention under article 4(h) of the Constitutive Act of the AU1551 and a wider provision
1542
Darkwa (2017) at 471.
Idem at 472-473.
1544
Dersso (2010) at 1.
1545
Article 13(1) of the PSC Protocol.
1546
Darkwa (2017) at 474. REC/RM refers to Regional Economic Community/Regional
Mechanism.
1547
Dersso (2010) at 7.
1548
Darkwa (2017) at 474. See par. 3.13 of the ASF Policy Framework: AU Doc. Exp/ASF-MSC/2
(I).
1549
See Dersso (2010) at 7. These regional brigades are: ‘The Southern African Development
Community (SADC) brigade (SADCBRIG); The East African Peace and Security Mechanism
(EAPSM) brigade, which is known as the Eastern Africa Standby Brigade (EASBRIG); The
Economic Community of West African States (ECOWAS) brigade (ECOBRIG); The North African
Regional Capability (NARC) brigade, which is known as the North African Standby Brigade
(NASBRIG); The Economic Community of Central African States (ECCAS) brigade
(ECCASBRIG), or Multinational Force of Central Africa (FOMAC).’
1550
See articles 13(3)(b), 13(3)(d) and 13(3)(e) of the PSC Protocol. See also Dersso (2010) at 9.
1551
See article 13(3)(c).
1543
301
for any other functions as may be mandated by the PSC or the Assembly.1552 In the Policy
Framework for the Establishment of the ASF and the Military Staff Committee 1553 the
following six conflict and mission scenarios were identified for ASF deployment:1554
‘(1)
(2)
(3)
(4)
(5)
(6)
as a mission under a regional banner of the AU to provide military
advice to a political mission;
as an observer mission to be co-deployed with the UN;
as a stand-alone observer mission either under the AU or a regional
banner;
as an AU/regional peacekeeping force under Chapter VII of the
Charter of the UN;
as an AU peacekeeping force for complex multidimentional
peacekeeping operations;
as an AU intervention mission in situations of mass atrocities such as
genocide, ethnic cleansing, and crimes against humanity.’1555
With the exception of mission scenario 2 above, the ASF is dependent on the resources and
capacity of its member states. The ASF Policy Framework, however, did consider the issue
of collaboration with the international community. It noted that ‘while external initiatives
have helped improve some African peace support capacities, the level of external assistance
has been lower than expected, and has not always focused on key African concerns. In
particular, the OAU/AU has not been fully involved in determining the nature and scope
of the initiatives’.1556
It is submitted that the framework under the Constitutive Act and the ASF is not fully
articulate of maritime security concerns and the particular threat of piracy and armed
robbery, notwithstanding the developments under the various organs and decisions of the
AU set out in the previous chapter.1557 In evaluating the potential enforcement mechanisms
that could be adopted, the current international law presents the following limitations,
namely international and foreign naval programs cannot exercise naval interdiction in
territorial seas without the express consent of the coastal state or pursuant to a UN Security
Council Resolution.1558 On the other hand, the Constitutive Act and the ASF, as set out in
1552
See article 13(3)(g).
Adopted at the third meeting of the African Chiefs of Defense Staff (1-15 May 2003): AU Doc.
Exp/ASF-MSC/2 (I).
1554
Idem. See par. 1.6 of Chapter 1.
1555
Idem. The scenarios in the text accompanying this footnote were reproduced the adaptation in
Darkwa (2017) at 475.
1556
AU Doc. Exp/ASF-MSC/2 (I) at par. 2.28.
1557
Engel (2014) at 22 notes that ‘to fully integrate maritime security into the [ASF], the issue needs
to systematically be put on the agenda at the continental level through the Specialized Technical
Committee on Defence, Safety and Security.’
1558
See also article 4(5) of the Djibouti Code of Conduct.
1553
302
the PSC Protocol and Policy Framework does not expressly provide for such foreign and
international naval interdiction in territorial seas of member states. Given the arguments
advanced in the previous chapter demonstrating the need for foreign and international
resources and capacity and through an interpretation of the developing jurisprudence that
favours cross-border interdiction, the following recommendation in respect of the ASF is
proffered. This recommendation is read with the additional recommendations set out et seq.
(ii)
Recommended addition and commentary
It was submitted in the previous section that the amendment to article 4(h) of the
Constitutive Act of the AU, could view acts of piracy and armed robbery as ‘a serious threat
to legitimate order to restore peace and stability to the Member State of the Union’ and thus
trigger the application of the intervention mechanism under that article to restore security
and stability to the maritime realm in the region.
However, the relevant articles of the Protocol to the PSC must be commensurately amended
to reflect amended article 4(h). The articles of the Protocol which require amendment are:
article 4(j)1559 which sets out one of the principles of the PSC, article 7(e)1560 which
enumerates one of the powers of the PSC, and article 13(3)(c)1561 that sets out one of the
mandates of the ASF. In addition to the Protocol to the PSC, the Policy Framework for the
ASF would require a new seventh scenario of deployment in addition to the six mission
scenarios listed in the previous section. This seventh scenario would be premised on two
grounds: first, to adapt to the amended article 4(h) of the Constitutive Act, and second to
bring foreign naval intervention and interdiction within the aegis of the intervention under
the auspices of the ASF. Since the Policy Framework is not a binding legal instrument, this
mission scenario will also be articulated in a recommended annex to the Lomé Charter, set
further below. The seventh mission scenario of the ASF could read as:
It currently reads as: ‘the right of the Union to intervene in a Member State pursuant to a decision
of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against
humanity, in accordance with Article 4(h) of the Constitutive Act.’
1560
It currently reads as: ‘recommend to the Assembly, pursuant to Article 4(h) of the Constitutive
Act, intervention, on behalf of the Union, in a Member State in respect of grave circumstances,
namely war crimes, genocide and crimes against humanity, as defined in relevant international
conventions and instruments.’
1561
It currently reads as: ‘intervention in a Member State in respect of grave circumstances or at the
request of a Member State in order to restore peace and security, in accordance with Article 4(h) and
(j) of the Constitutive Act.’
1559
303
‘As a joint intervention mission co-deployed with foreign naval capacity to
repress piracy and armed robbery against ships1562 in the territorial waters1563
of member states.’
Dersso noted that ‘peace support missions [i.e. mission scenario 1-5 of the ASF Policy
Framework] are generally deployed with the support and consent of the authorities in the
host country, whereas intervention deployment [mission scenario 6] is by nature
forcible.’1564 Intervention is thus appropriate in circumstances where the state is incapable
of granting consent and cooperation i.e. where the government is not functional or
incapable of exercising its sovereign rights.
The mandating authority for these deployments is a relevant consideration. The authority
to formulate regional agreements can be found in article 52(1) of chapter VIII of the UN
Charter which provides that ‘[n]othing in the present Charter precludes the existence of
regional arrangements or agencies for dealing with such matters relating to the maintenance
of international peace and security as are appropriate for regional action provided that such
arrangements or agencies and their activities are consistent with the Purposes and Principles
of the United Nations’. Accordingly, it is within the powers of the AU to formulate regional
arrangements, as is demonstrated by the mission scenarios for the ASF. However, in order
to enforce such regional arrangements, authorisation must be provided by the UN Security
Council, as provided for in article 53, which states that: ‘[t]he Security Council shall, where
appropriate, utilize such regional arrangements or agencies for enforcement action under
its authority. But no enforcement action shall be taken under regional arrangements or by
regional agencies without the authorization of the Security Council…’
Intervention pursuant to article 4(h) of the Constitutive Act, however, is different. In a
document outlining key elements of the policy documents of the ASF, by the STC on
Defence, Safety and Security, it was set out that ‘[f]or an intervention in Scenario 6 under
Article 4(h) of the Constitutive Act, the authority is vested in the Assembly of the AU.
While international sanction is preferred under Chapter VIII of the UN Charter, this is not
a pre-condition for action by the AU. All efforts will be made to obtain a UN mandate and
seek the cooperation of the UN’.1565
1562
This could be extended to include other transnational maritime security threats.
This could be replaced by inserting ‘CEMZA’, however, this would be dependent on the
production of a technical file that would determine the limits of the breadth of this zone.
1564
Dersso (2010) at 9.
1565
‘Key Elements of the Policy Documents of the African Standby Force’ Fourth Ordinary meeting
of the STC on Defense, Safety and Security: Preparatory Meeting of Experts and sixth meeting of
1563
304
Dersso comments that article 4(h) and mission scenario six ‘break new ground in
international law by vesting the AU with a legal authority to intervene in a state. In other
words, the AU has come to assume greater legal authority than what the UN Charter grants
to regional organizations with respect to the maintenance of peace and security’.1566 He also
notes that article 4(h) and mission scenario six are ‘the first legal instruments to codify the
right of an intergovernmental organisation to intervene for preventing or stopping the
perpetration of such serious international crimes that go beyond those provided for under
Article 33 of the UN Charter’.1567
In distinguishing article 4(h) and the associated mission scenario six from the other mission
scenarios of the ASF, which are predicated on consent and the authorisation of the UN
Security Council, Dersso commented that because the grounds for intervention were grave
circumstances, namely genocide, war crimes and crimes against humanity, they fall outside
the purview and requirements of article 54 of the UN Charter dealing with the maintenance
of international peace and security.1568 However, the impact of the amendment to article
4(h) and whether intervention action under the new ground of a serious threat to legitimate
order would require prior Security Council authorisation has not been considered. It is
submitted, however, that the sui generis nature of article 4(h) ought to be retained and
intervention under the new ground in the article should proceed without prior Security
Council authorisation. This authority would be derived from the PSC directly.1569 The
primary basis for this submission is that the circumstances under which piracy and armed
robbery constitutes a threat differs markedly from an ongoing land-based conflict. The
actus reus of piracy and armed robbery are inherently opportunistic, occurring from time
to time, over a vast maritime area.1570 Furthermore, the concentration, frequency and
magnitude of attacks have significantly lessened in recent years.1571 These incidents, which
collectively could constitute a serious threat to legitimate order over the maritime domain
the African Chiefs of Defense Staff and Heads of Security and Safety Services.’ Unmarked AU
Document (December 2010) at par. 11.
1566
Dersso ‘The legality of intervention by the [ASF] in grave circumstances’ ISS Today (24 June
2009).
Available at: https://oldsite.issafrica.org/iss-today/the-legality-of-intervention-by-the-africanstandby-force-in-grave-circumstances.
1567
Dersso (2010) at 10.
1568
Dersso (2009). See also article 54 of the UN Charter which provides that ‘The Security Council
shall at all times be kept fully informed of activities undertaken or in contemplation under regional
arrangements or by regional agencies for the maintenance of international peace and security.’
1569
See par. 2.2 of the ASF Policy Framework which provides that the ‘PSC is a legitimate
mandating authority under Chapter VIII of the UN Charter.’
1570
As was discussed in section 1.2 of chapter 2 of this thesis.
1571
See table 2 in chapter II of this thesis.
305
and threaten the security of the merchant marine requires a rapid enforcement
mechanism1572, particularly for the purposes of reverse hot pursuit into territorial seas. The
time taken before an endorsement is received from the Security Council could defeat the
purpose for which it was requested.1573 Unlike other conflict scenarios where belligerents
could be identified in an organised structure such as a terrorist organisation or a political
separatist group, acts of piracy and armed robbery are committed by various groups and
possibly on an ad hoc basis. It would thus not be pragmatic to seek authorisation on a case
by case basis.
This would not mean, however, that consultation with the Security Council would be absent
as the Protocol of the PSC provides for the need to forge closer cooperation with the UN. 1574
Lastly, Dersso comments that ‘to the extent that this authority [article 4(h)] of the AU is
treaty based, member states of the AU can be considered to have surrendered their
sovereign right against intervention as envisaged under Article 2(7) of the UN Charter’.1575
This represents a radical change from the earlier OAU stance on non-intervention, however
it is submitted that this interpretation of the effect of article 4(h) with respect to diminishing
the right against intervention conforms with the analysis contained in the previous chapter
which analysed the developing jurisprudence and potential for changing norms to flourish.
In this jurisprudence, the emphasis was drawn on international cooperation, cross-border
hot pursuit and references to combating armed robbery and the detailed CEMZA analysis
which advocates for a borderless maritime domain.
1572
Par. 5.2 (c) of the ASF Policy Framework sets out deployment timelines for intervention
operations, however this envisages a robust military force to be deployed in 14 days.
1573
Dersso (2010) at 16-17 notes that ‘the political processes of deciding on UN deployment in the
Security Council as well as the technical/bureaucratic procedures of planning and deploying UN
forces could take a minimum of six months…The concept of the ASF also endows Africa with its
own mechanism for a timely response to conflicts and for intervention in the case of grave
circumstances.’
1574
The fourth premabular paragraph of the PSC Protocol provides: ‘MINDFUL of the provisions
of the Charter of the United Nations, conferring on the Security Council primary responsibility for
the maintenance of international peace and security, as well as the provisions of the Charter on the
role of regional arrangements or agencies in the maintenance of international peace and security,
and the need to forge closer cooperation and partnership between the United Nations, other
international organizations and the African Union, in the promotion and maintenance of peace,
security and stability in Africa.’ Article 17(1) thereof similarly provides that: ‘In the fulfilment of
its mandate in the promotion and maintenance of peace, security and stability in Africa, the Peace
and Security Council shall cooperate and work closely with the United Nations Security Council,
which has the primary responsibility for the maintenance of international peace and security. The
Peace and Security Council shall also cooperate and work closely with other relevant UN Agencies
in the promotion of peace, security and stability in Africa.’
1575
Dersso (2009).
306
Having set out a continental framework for intervention to combat piracy and armed
robbery under the aegis of the ASF, further detail would need to be set out on how and
when foreign navies could deploy in interdictory missions under this framework. It will be
proposed that this could be conveniently set out as an additional draft annex to the recently
adopted Lomé Charter. The Charter is the most recent strategic approach with a view to
coordinating specific actions to secure the maritime domain by combating piracy occurring
along the African coastline.
4.2.2
Additional annex to the Lomé Charter
(i)
Preface
As discussed in greater detail in the previous chapter, parties to the Charter must undertake
a series of responsibilities to protect their respective maritime areas1576 however there is a
proviso that these responsibilities are undertaken by each state party ‘according to its own
realities’.1577 It was shown in this thesis that these realities revealed multi-faceted
challenges for state parties, ranging from inter alia financial constraints, resource and
capacity constraints, seablindness and a lack of political will or the extreme circumstances
of a failed state, as was the case of Somalia before the establishment of the TFG.
Collectively, these challenges left a significant portion of the African maritime domain,
which lay under the respective jurisdiction of states, ungoverned and fostered conditions
for acts of armed robbery against ships or piracy to flourish. Although the Charter envisages
cooperation at various stages,1578 such cooperation is aimed between state parties and
continental and regional structures of the APSA. The issue of cooperation with foreign
stakeholders who share an interest in the securing the African maritime domain by virtue
of international commercial shipping, is not addressed.
It is therefore submitted that this could be addressed through the formulation of a draft
annex to the Charter. The Charter presently contains eight draft annexes.1579 Egede noted
that ‘[d]uring the adoption of the Lomé Charter, it was felt that certain Specialized
Technical Committees (STCs) did not have the opportunity to be involved in the
1576
See particularly article 6 and 14 of the Charter.
Idem, article 6.
1578
See for example at article 3(d), 3(f), 10, 13 and 37.
1579
These being: (I) definitions; (II) general provisions; (III) living marine resources; (IV) extraction
of non-living marine resources and energy; (V) climate and environmental sustainability; (VI)
poverty eradication, employment and social development; (VII) blue/ocean economy, and (VIII)
African maritime cabotage.
1577
307
elaboration process of the Charter, especially as regards the developmental aspects.’1580 A
recent decision of the AU Assembly requested the AU Commission to:
‘take all necessary measures in order to convene Extraordinary Session of the
relevant Specialized Technical Committees (STCs) which were not involved
in the elaboration process of the Charter namely: The STCs on Trade,
Industrial Minerals, STC on Transport, Infrastructure, Energy and Tourism,
STC on Monetary Affairs, Economic Planning and Integration and other
relevant STCs to enable them to consider issues falling within their respective
mandate and submit their contributions to the African Charter, in the form of
annexes for the Assembly for consideration in July 2017.’1581
To date, this extraordinary session has not been convened. It is submitted that it would
therefore be an opportune moment to consider the inclusion of a ninth annex pertaining to
the issues advanced in the present paragraph.1582 Such annex would receive the
consideration of the STC on Defence, Security and Safety.
(ii)
Suggested Annex
The following formulation is proffered as a draft annex:
Annex IX:
Foreign and International Naval cooperation to repress piracy and armed robbery
against ships.
Paragraph 1
In implementing article 4(a) of the Charter, each State Party:
1.
Acknowledges that each respective coastal state has the responsibility to protect its
maritime territory and ensure its maritime safety and security.
1580
Egede (2017).
AU Doc. Decision EXT/Assembly/AU/Dec.1 (VI) (October 2016). Egede (2017) explains the
process pertaining to the finalization of the annexes and its incorporation into the Charter: ‘the
finalised draft Annexes would be distributed to the AU member States for their input prior to the
convening of joint STC meetings. After the inputs of the joint STC meetings, draft Annexes would
then be submitted to the Justice and Legal Affairs STC which would consider and submit the draft
Annexes to the Assembly for adoption. As far as this author is aware, the draft Annexes have not
yet been submitted the joint STC meetings.’
1582
It should be noted that under article 52(1) of the Charter, a State party, when ratifying or acceding
to the Charter could submit a reservation with respect to any of its provisions.
1581
308
2.
Acknowledges, without prejudice to its sovereign rights over its maritime territory,
the importance of fostering foreign and international cooperation to repress piracy
and armed robbery against ships.
3.
Further acknowledges that their respective maritime territories are shared by
foreign and international stakeholders through the innocent passage of merchant
vessels in such territories.
Paragraph 2
1.
In the event that a State party is unable to effectively exercise its obligations
contained in article 6, 12 and 14 of the Charter, the CEWS (Continental Early
Warning System) must be notified immediately of this situation by the respective
State party.
2.
In circumstances where the respective coastal state party is unable to notify the
CEWS in terms of sub-paragraph 2(1), the PSC may issue such a notification to
the CEWS.
3.
Each State Party shall establish a national support contingent to be deployed to the
African Standby Force (ASF) in terms of articles 13(2) and 17 of the Protocol
Relating to the Establishment of the Peace and Security Council of the African
Union for the purposes of repressing acts of piracy and armed robbery against
ships. These respective support contingents from State Parties, shall collectively
constitute an ASF anti-piracy support contingent to be deployed in joint missions
set out in paragraph 3 below. These support contingents may consist of: boarding
teams, seamen and officers, diplomatic and medical personnel.
Paragraph 3
1.
Each State Party authorises the entry of a joint intervention mission, consisting of
a foreign or international naval contingent, accompanied by an ASF anti-piracy
contingent, into its maritime territory in the circumstances set out in paragraph
2(1).
2.
The joint intervention mission contemplated in paragraph 3(1) is for the purposes
of interdicting and repressing acts of piracy and armed robbery against ships.
Intervention missions include hot pursuit mission by descent from the high seas or
exclusive economic zone into the maritime territory of a State Party.
3.
A foreign or international naval contingent is required to:
(i)
communicate with the CEWS to ascertain the status referred to in
paragraph 2(1) prior to any deployment in the maritime territory of
member states.
309
(ii)
provide the principal naval vessel/s, aircraft, associated personnel,
communication systems and boarding/interdictory equipment required for
the joint intervention mission/s.1583
(iii)
conduct anti-piracy missions in maritime territories only in collaboration
with an ASF anti-piracy support contingent and in the circumstances set
out in paragraph 2(1).
(iv)
assist, where possible, in initiatives to assist the ASF support contingent in
training, logistics, equipment, communications and funding.
(v)
notify and report any seizure or arrest pursuant to a joint-intervention
mission to the CEWS and tender possession of the ship and/or property
seized and custody of the persons arrested to the State Party in whose
jurisdiction such seizure or arrest occurred.
4.2.3
Additional role of the Continental Early Warning System
‘If we do not know about trouble that is brewing, we can do nothing to prevent it’1584
It was noted by the AU that ‘[w]ithout the capacity to monitor, analyse and develop tailored
and timely responses and policy options to threats to peace and security on the Continent,
the African Union would be severely limited in its ability to address these
appropriately’.1585 Thus, the Continental Early Warning System is ‘core to the fulfilment
of the Union’s conflict prevention, management and resolution mandates’.1586 The AIMS
envisages the establishment of ‘standardized Regional Maritime Headquarters (MHQ) with
Maritime Operational Coordination Centers (MOC) with mutualized response capabilities
in all RECs/RMs’.1587 The organs envisaged by the AIMS also have a broadly similar role
to CEWS in that it aims ‘to improve situational awareness in the AMD, involving all
organizations and agencies with a key role in maritime safety and security’.1588 Under this
AIMS provision, interdiction operations in territorial waters, including cases of hot pursuit
are dependent on the approval and authority of the member state and on the establishment
1583
The constabulary role of the naval vessel must be emphasized: Potgieter (2015) at 256 notes
that: ‘Navies and coastguards must therefore redefine their roles as they are versatile instruments
that can engage a variety of tasks, from the traditional military roles to diplomatic roles and
maintaining good order at sea. Renewed emphasis is therefore placed on the so-called secondary
function of navies – the constabulary role.’
1584
Vasu Gounden ‘An early warning on Africa’s early warning system’ ISS Peace and Security
Council Report (11 August 2015) available at: https://issafrica.org/pscreport/addis-insights/anearly-warning-on-africas-early-warning-system.
1585
‘The CEWS Handbook’ AU Doc. PSD/EW/CEWS HANDBOOK (2008) at 7.
1586
Idem.
1587
See article 32 of AIMS.
1588
Idem.
310
of cross-border hot pursuit arrangements.1589 However, this article does not provide a clear
framework for situations of reserve hot pursuit by descent from the high seas and EEZ and
where the member state is unwilling or incapable of communicating such approval or
authority. Furthermore, the provision envisages cooperation between AU member states
and does not elucidate mechanisms for international cooperation. Given the ambitious
objectives such as the convening of a piracy conference, which to date have not
materialised, it is anticipated that the adoption of specific cross border hot pursuit
agreements would not be forthcoming in the short term and particularly because of the
significant reduction of piracy at the end of the period of study in this thesis. In the absence
of such agreements, interdiction operations would be hindered when international or
foreign navies engaged in such interdiction operations would need to apply for the approval
and authorisation of the coastal state to enter its territorial waters. The extant framework
does not provide for a near real-time assessment of events and rapid authorisation to enable
an effective and timely interdiction operation.
The recommendations in the section above incorporate the CEWS as having a central role
in the revised framework. It is submitted that using the existing CEWS framework would
be appropriate instead of duplicating roles by establishing different organs to serve a similar
mandate. This is a significant consideration bearing in mind that resource and capacity
constraints are evident. Two reasons are offered for this submission: first, the CEWS is a
mechanism which is currently in operation1590 and second, there have been frequent calls
for the greater integration of maritime security within the APSA.1591
The place of the CEWS in the APSA was briefly set out in the previous chapter and it
developed from a Summit meeting of the AU in Maputo in July 2003 where Heads of State
mandated the AU Commission to take the necessary steps for the establishment of the
CEWS in anticipation of the entry into force of the PSC Protocol later in the same year.1592
1589
See article 34 of AIMS.
See Cilliers ‘Towards a Continental Early Warning System for Africa’ ISS Paper 102 (April
2005) at 5 where he notes that ‘[t]he Situation Room now [a feature of the CEWS] now operates on
a round-the-clock basis and acts as point of contact for the AU and field operations.’ See also African
Union Peace and Security Department ‘African Peace and Security Architecture (APSA)’ [online
video] 17 July 2013 at 07:30 minutes.
Available at: https://www.youtube.com/watch?v=xwnWrOH32WU&t=36s. The CEWS Handbook
(2008) at 22 notes that the ‘CEWS is making use of state-of-the-art technology which places it in a
unique position not only vis-à-vis other EWS on the continent, but also internationally.’
1591
See for example Engel (2014) at 22 recommends the need to ‘fully integrate maritime security
into the Continental Early Warning System, the data collection and monitoring function of CEWS
needs to be expanded to systematically cover related information; also, reporting formats should be
amended to include the maritime security domain…’
1592
See Institute for Security Studies ‘Non-Paper on the Operationalization of the Continental Early
Warning System (CEWS)’ (November 2004) at 7.
1590
311
Cilliers highlighted the importance of the establishment of CEWS by noting that ‘[t]he
OAU was built on consensus and the sanctity of the principle of non-interference in internal
affairs of Member States, and found it difficult to respond to emerging crises until clear
warning signals were lost amidst armed conflict, widespread human suffering and open
war’.1593 CEWS is founded on the provisions of article 12 of the PSC Protocol.1594 An early
warning system is premised on three stages, namely: information collection and sharing;1595
analysis of that information1596 and formulating responses1597 The CEWS Handbook
provides that ‘the purpose of the information and analysis produced by the CEWS is to
facilitate the anticipation and prevention of conflicts by advising AU decision-makers on
threats to peace and security and recommend the best courses of action’.1598 It is particularly
noteworthy that the CEWS is envisaged as ‘an open-source system where information is
gathered from a variety of different sources’.1599 This feature distinguishes the system from
Available at: https://oldsite.issafrica.org/uploads/CEWSNOV04.PDF.
1593
Cilliers (2005) at 3. The CEWS Handbook (2008) at 21 notes that ‘the AU is the first African
institution to introduce a fully-fledged [early warning system]’.
1594
The article provides:
‘1.
In order to facilitate the anticipation and prevention of conflicts, a Continental Early
Warning System to be known as the Early Warning System shall be established.
2.
The Early Warning System shall consist of:
a.
an observation and monitoring centre, to be known as "The Situation Room",
located at the Conflict Management Directorate of the Union, and responsible for
data collection and analysis on the basis of an appropriate early warning indicators
module; and
b.
observation and monitoring units of the Regional Mechanisms to be linked
directly through appropriate means of communications to the Situation Room, and
which shall collect and process data at their level and transmit the same to the
Situation Room.
3.
The Commission shall also collaborate with the United Nations, its agencies, other relevant
international organizations, research centers, academic institutions and NGOs, to facilitate
the effective functioning of the Early Warning System.
4.
The Early Warning System shall develop an early warning module based on clearly defined
and accepted political, economic, social, military and humanitarian indicators, which shall
be used to analyze developments within the continent and to recommend the best course of
action.
5.
The Chairperson of the Commission shall use the information gathered through the Early
Warning System timeously to advise the Peace and Security Council on potential conflicts
and threats to peace and security in Africa and recommend the best course of action. The
Chairperson of the Commission shall also use this information for the execution of the 18
responsibilities and functions entrusted to him/her under the present Protocol.
6.
The Member States shall commit themselves to facilitate early action by the Peace and
Security Council and or the Chairperson of the Commission based on early warning
information.
7.
The Chairperson of the Commission shall, in consultation with Member States, the
Regional Mechanisms, the United Nations and other relevant institutions, work out the
practical details for the establishment of the Early Warning System and take all the steps
required for its effective functioning.’
1595
See CEWS Handbook (2008) at 18 and 45.
1596
Idem at 18 and 54.
1597
Idem at 18 and 64.
1598
Idem at 68.
1599
Idem at 17.
312
concepts of traditional intelligence and state security. 1600 Cilliers explains that ‘[b]y
definition, early warning systems use open source material and generally aim to serve
human capacity, not national or state interests. Ironically, it is this characteristic that makes
early warning systems appealing to intergovernmental organisations such as the AU that
would have great difficulty in accessing (or using) state intelligence from one member
country vis-à-vis another member country’.1601 This open system thus facilitates interaction
and collaboration with a wide variety of stakeholders beyond the AU structures, which is
relevant when foreign and international naval capacity undertake anti-piracy interdiction
operations.1602 It is apposite at this stage to make a final remark from Cilliers regarding the
suitability of the CEWS framework:
‘Since the purpose of early warning (as apposed to intelligence) is the
formulation of strategic options directed at taking preventive action in the
common (regional or international) good as apposed [sic] to the national
interest, it is possible and desirable to bring these components (early warning
and prevention action) closer to one another. In a sense, the transparent nature
of early warning systems provides a check and balance on the orientation of
the analysis – a situation not possible in the secret world of traditional
intelligence analysis.’1603
Having thus traversed the suitability of the CEWS, what remains is to finally recommend
that the function of the CEWS, as adumbrated in the CEWS Handbook, be extended to
accommodate the roles suggested in the abovementioned draft additional annex to the
Lomé charter.
4.3
Benefits of the model
Without prejudice to other possible arrangements which could be concluded at bilateral or
multilateral levels, a few comments can be made proposing and highlighting the benefits
of this model. First, from a continental perspective and those of its member states: (i) the
model can be formulated with minimal legislative changes and can be operationalised
through the existing institutional framework of the AU; (ii) the method of co-deployment
proposed requires minimal resource commitments from the ASF, apart from human
1600
See Cilliers (2005) at 1.
Idem.
1602
See CEWS Handbook (2008) at 72.
1603
Cilliers (2005) at 2.
1601
313
capacity. In this model the substantive naval resources are provided through the
international or foreign stakeholder; (iii) it is envisaged that through these joint deployment
missions, the ASF personnel would gain practical and real time training and skills building;
(iv) the use of the ASF and the CEWS in these operations add to the legitimacy of the
intervention of foreign or international naval capacity within the territorial waters or
proposed CEMZA of member states; (v) the model does not provide for a blanket exercise
of universal jurisdiction in the territorial seas of member states or the proposed CEMZA as
there are still caveats contained in the model which recognises the sovereignty and
territorial integrity of the coastal state and set out the circumstances under which this model
may operate; and (vi) the AU enjoys the goodwill of African states. Second, from the
perspective of foreign and international stakeholders, the model allows for swift action with
minimal authorisations, apart from the requirement of channels of communication with the
CEWS and embarking ASF personnel on their warships engaging in the interdiction
operation.
V. PARTING REMARKS
Since the resurgence of Somali piracy in around 2006, there have been a plethora of studies
emerging,1604 and measures taken, at international, regional and national levels – as a
specific response to this particular resurgence.1605 The resurgence reached unprecedented
levels in a short period of time between 2009 and 2011, causing much alarm.1606 At the end
of the decade under review, in 2016, only three incidents of piracy or armed robbery
occurred off the East African seaboard, compared to 161 during 2011. It is predicted that
should such trends in terms of declining incidents of piracy continue, Somali piracy would
soon no longer feature prominently in the global media and on the agenda of the United
Nations and other regional bodies. Because piracy was also dormant when commentators
and draftsmen converged to codify international law, they created a sparse legal framework
that remains unchanged since the mid Twentieth Century. This is despite numerous ad hoc
measures like the UN Security Council Special Resolutions,1607 which under controlled
circumstances and restrictions aimed to counter the high seas’ limitation in UNCLOS.
1604
See, for example, the discussion in Scharf, Newton and Sterio (eds) Prosecuting Maritime
Piracy: Domestic solutions to international crimes (2015) at 3.
1605
See chapter 5 holistically.
1606
See section 2 of chapter 2.
1607
Discussed in section 2 of chapter 4 of this thesis. This dormancy in piracy also explains why the
draftsmen of the Harvard Draft in 1932 realised that ‘the reason for the startling lack of international
case authority and modern state practice is apparent, as soon as one remembers that large scale piracy
disappeared long ago and that piracy of any sort on or over the high sea(s) is sporadic except in
limited areas bordered by states without the naval forces to combat it’. See Harvard Research in
International Law (Harvard Draft) 26 American Journal of International Law (1932) at 749.
314
The resurgence of piracy off the east African seaboard was a missed opportunity to revisit
the piracy regime in UNCLOS – while the scourge attracted global attention. However,
some opinions presented in the second chapter of this thesis suggest that piracy has now
merely reached a dormant stage, and could resurge should favourable conditions manifest
along with the absence of naval interdiction.
Franson, in delivering a keynote address at the International Symposium on Coastal Zone
Piracy in 2006, commented in simple terms on the following characteristic of piracy:
‘In many ways, this is a crime like any other … People rob banks, they rob
supermarkets, they rob people in their houses – why not rob a ship? It is a
crime like any other crime. You do it for money and because you desperately
need money or you want lots of money. The reason why armed robbery against
ships is attracting attention is that shipping is an international venture and if
affects the international shipping community … Then what do we do about it?
Piracy and armed robbery will probably never go away. Why should these
types of crimes disappear when no other type of crime disappears?
Nevertheless, something can be done to curtail it.’1608
Notwithstanding the decline in piracy off the east African seaboard at the end of the period
under review, Franson’s remarks characterise piracy as an enduring crime.1609 The
preceding chapters of this thesis1610 have shown the long history of acts of piracy committed
at sea. While this study contextualised modern piracy around the East African seaboard,
acts occur in many parts of the world, as can be seen in annual reports compiled by the
IMO and IMB. This modern piracy, according to Murphy, means that ‘[i]nstead of cruising
the oceans, modern pirates operate in coastal waters relatively close to the shore. It is a
phenomenon that can be observed around the globe: in the Caribbean, off Ecuador, off
Africa mainly in the vicinity of Nigeria and Somalia, around the Bay of Bengal, and in
Southeast Asia in particular, where it is far from sporadic’.1611
Franson ‘Keynote address: Coastal zone piracy’ in Mejia and Xu (eds) Coastal Zone Piracy and
other unlawful acts at sea (2007) at 175.
1609
Geiß and Petrig (2011) at 52 observed that ‘violence against ships and persons on board,
continued to pose a threat throughout the 20th century. This is likely to hold true in the 21 st century.
There will be plenty of opportunities given that in the course of globalization the international
shipping industry has grown exponentially, becoming itself a motor of globalization.’
1610
See, generally, chapter 3.
1611
See Murphy (2007) at 157-8. See, also: section 2 of chapter 2 of this thesis.
1608
315
Given the enduring and opportunistic nature of piracy, it follows that the legal framework
should also evolve to account for the changing circumstances.1612 Dickinson wrote in 1925
that ‘[w]hile the occasions for invoking its [piracy’s] rules are less frequent now than
formerly, it may still be made a potent factor in preventing lawlessness upon the seas. It
belongs emphatically to the law in reserve rather than to the law in history.’1613 Harrison
thus observes that: ‘[t]he drafters of [UNCLOS] were aware that if the Convention was to
provide an enduring legal framework, it must be able to evolve and take into account legal,
political, scientific and technological developments’.1614
As a final submission, it is suggested that the above amendments and associated
commentary should conform to a report of the United Nations Secretary-General’s highlevel panel on threats, challenges and change, entitled: ‘A more secure world: our shared
responsibility’. An extract from the synopsis of the report, states that:
‘[I]n the twenty-first century, more than ever before, no State can stand wholly
alone. Collective strategies, collective institutions and a sense of collective
responsibility are indispensable. The case for collective security today rests
on three basic pillars. Today’s threats recognize no national boundaries, are
connected, and must be addressed at the global and regional as well as the
national levels. No State, no matter how powerful, can by its own efforts alone
make itself invulnerable to today’s threats. And it cannot be assumed that
every State will always be able, or willing, to meet its responsibility to protect
its own peoples and not to harm its neighbours’.1615
FINIS
1612
This is a notion that is well entrenched in the law. For example, in In re Piracy Jure Gentium
[1934] Vol. 49 Lloyds List 411 (PC) at 417, the Lord Chancellor, Viscount Sankey, remarked: ‘we
are not now in the year 1696 [referring to the date of R v Dawson]; we are now in the year 1934.
International law was not crystallised in the 17th century, but is a living and expanding code.’ See
also Surbun (2010) at 22.
1613
Dickinson ‘Is the crime of piracy obsolete?’ 38 Harvard Law Review (1924-5) 334 at 360.
1614
Harrison (2011) at 62. He also cites idem a Statement of Sri Lanka, 187th meeting, 17 Official
Records of the Third United Nations Conference on the Law of the Sea at 48, par. 161: ‘It is in the
nature of all things that they do not remain static, that there will be growth and there will be decay.
The march of technology and changing perceptions and aspirations will, in time, place pressures
upon the regimes we establish today.’
1615
‘A more secure world: our shared responsibility’ United Nations (2004) at 1. Available at:
http://www.un.org/en/peacebuilding/pdf/historical/hlp_more_secure_world.pdf.
316
AUXILIARY MATERIAL
______
317
BIBLIOGRAPHY
_____________
1.
Inventory of International Instruments & Official documents
1.1
Conventions and Draft Conventions
United Nations Convention on the Law of the Sea, 1982
Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation, 1988
Vienna Convention on the Law of Treaties, 1969
Harvard Research in International Law: Draft Convention on Piracy 26 American
Journal of International Law (1932) Supplement, 743.
Convention against Illicit Traffic in Narcotic Drugs and Pyycotrophic Substances
UN Doc. E/CONF.82/15 (1988)
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children (2000) 40 International Legal Materials 335.
1.2
United Nations
United Nations, General Assembly, G.A. Res. 899 (IX), U.N. Doc. A/RES/899
(IX) (14 December 1954)
United Nations, General Assembly, G.A. Res 1105 (XI), U.N. Doc. A/RES/1105
(XI) (21 February 1957).
United Nations Official Records (XXII) First Committee, 1515th Meeting (1
November 1967).
Declaration on the Inadmissibility of Intervention and Interference in the Internal
Affairs of State adopted at the 91st Plenary Meeting, 9 December 1981, Art. II(b)
(UN General Assembly Document A/RES/36/103)
UN Doc. A/C 138/SCII/L.10 (1972).
UN General Assembly Official Records Supplement 21: A/AC. 138/79.
1.3
United Nations Security Council:
S/RES/1816(2008)
S/RES/1897(2009)
S/RES/1950(2010)
S/RES/2020(2011)
S/RES/2077(2012)
S/RES/2125(2013)
S/RES/2184(2014)
S/RES/2246(2015)
S/RES/2316(2016)
R/RES/2383 (2017)
1.4
(2 June 2008)
(30 November 2009)
(23 November 2010)
(22 November 2011)
(21 November 2012)
(18 November 2013)
(12 November 2013)
(10 November 2015)
(9 November 2016)
(7 November 2017)
International Maritime Organisation:
The International Maritime Organisation, Code of Practice for the Investigation of
the Crimes of Piracy and Armed Robbery Against Ships, IMO Doc. A22/ Res. 922
(22 January 2009)
318
1.5
Organisation of African Unity and the African Union:
Charter of the Organisation of African Unity 479 UNTS 39 (1963)
Constitutive Act of the African Union UNTS 2158 (2003)
African Integrated Maritime Strategy (AIMS) (Unmarked AU document, version
1.0) (2012)
African Charter on Maritime Security and Safety and Development (Lomé
charter),
AU Doc. EXT/Assembly/AU/Dec.1 (VI)
OAU Doc. CM/Res. 250 (XVII)
OAU Doc. CM/Res. 245 (XVII)
OAU Doc. CM/Res. 289 (XIX)
OAU Doc. A/CONF.62/33
OAU Doc. CM/Res 238 (XVI)
OAU Doc. CM/Res 289 (XIX)
OAU Doc. CM/Res 382 (XXIII)
OAU Doc. CM/Res 520 (XXVII)
OAU Doc. CM/Res 570 (XXVII)
OAU Doc. CM/Res 745 (XXXIII)
OAU Doc. CM/Res 795 (XXXV)
OAU Doc. ECM/Res. 1 (XII)
OAU Doc. AGH/Decl 3 (XXIX)
OAU Doc. AHG/Decl. 4 (XXXVI)
AU Doc. Assembly/AU/Dec. 227 (XII)
AU Doc. ASS/AU/2(I)
AU Doc. AHG/Dec 160 (XXXVII)
AU Doc. EX/CL/Dec 60 (III)
AU Doc. EX/CL/520 (XV)
AU Doc. EX/CL/520 Rev.2 (XV)
AU Doc. Assembly/AU/Dec. 252 (XIII)
AU Doc. Assembly/AU/Dec. 256 (XIII)
AU Doc. EX.CL520 (XV) Rev.2
AU Doc. Assembly/AU/Dec. 259 (XIII)
AU Doc. SP/Assembly/PS/PLAN (I) (August 2009)
AU Doc. AU/MT/MIN/1 (II)
AU Doc. AU/MT/MIN/DRAFT/Res.(II)
AU Doc. XL/Dec. 542 (XVI)
AU Commission: Division of Communication and Information: Press Release No.
47/2010
AU Nota Verbale PSD/101/2/A/095.10
Maritime security experts workshop: Addis Ababa (2010):
Unmarked AU Document ‘Concept Note: Towards the elaboration of an African
strategy for maritime security and safety’ (January 2010)
Unmarked AU Document ‘Draft Programme’ (April 2010)
Unmarked AU Document ‘Speech of Dr. Elham M.A. Ibrahim
Unmarked AU Document ‘Opening Statement by the country chairing the African
Union (Malawi) H.E. Mr. Ernest M. Makawa’ (April 2010)
Unmarked AU Document: ‘Experts workshop on maritime security and safety:
Conclusions and Recommendations’ (April 2010)
AU Doc. Assembly/AU/Dec. 294 (XV)
AU Doc. EX.CL/Dec. 626 (XVIII)
AU Doc. EX/CL/826 (XXIV)
319
AU Doc. DECL/M/II/CAMRMRA/2012
AU Doc. Assembly/AU/Dec. 496 (XII)
AU Doc. PSC/HSG/Dec. (CDXLIV)
AU Doc. Assembly/AU/Dec. 583 (XXV)
AU Doc. Assembly/AU/Dec. 593 (XXVI)
AU Doc. Exp/ASF-MSC/2 (I)
‘Key Elements of the Policy Documents of the African Standby Force’ Fourth
Ordinary meeting of the STC on Defense, Safety and Security: Preparatory
Meeting of Experts and sixth meeting of the African Chiefs of Defense Staff and
Heads of Security and Safety Services.’ Unmarked AU Document (December
2010)
AU Doc. Decision EXT/Assembly/AU/Dec.1 (VI)
AU Doc. PSD/EW/CEWS HANDBOOK (2008)
1.5
Official Reports and Travaux Preparatoires:
United Nations Conference on Trade and Development, Review and analysis of
possible measures to minimize the occurrence of maritime fraud and piracy.
TD/B/C.4/AC.4/2 (21 September 1983)
Report on the situation with respect to piracy and armed robbery at sea off the coast
of Somalia’ UN Doc. S/2016/843 (7 October 2016)
Report of the Monitoring Group on Somalia and Eritrea, UN Doc S/2011/433 (July
2011)
Report of the Secretary-General on possible options to further the aim of
prosecuting and imprisoning persons responsible for acts of piracy and armed
robbery at sea off the coast of Somalia, including, in particular, options for creating
special domestic chambers possibly with international components, a regional
tribunal or an international tribunal and corresponding imprisonment
arrangements, taking into account the work of the Contact Group on Piracy off the
Coast of Somalia, the existing practice in establishing international and mixed
tribunals, and the time and resources necessary to achieve and sustain substantive
results, UN Doc. S/2010/394 (26 July 2010).
ICC IMB Piracy and Armed Robbery Against Ships, Report for the period 1
January to 30 June 2016
ICC IMB Piracy and Armed Robbery Against Ships, Annual Report (2013)
ICC IMB Piracy and Armed Robbery Against Ships, Annual Report (2012)
ICC IMB Piracy and Armed Robbery Against Ships, Annual Report (2011)
‘Reports on Acts of Piracy and Armed Robbery against Ships’ Annual Reports
issued by the IMO:
MSC.4/Circ. 133 (19 March 2009);
MSC.4/Circ. 152 (29 March 2010);
MSC.4/Circ. 169 (1 April 2010);
MSC.4/Circ. 180 (1 March 2012);
MSC.4/Circ. 193 (2 April 2013);
MSC.4/Circ. 208 (1 March 2014);
MSC.4/Circ. 219/Rev.1 (28 April 2015);
MSC.4/Circ. 232/Annex
MSC.4/Circ 232/Annexure 4 (Annual Report: 2015).
320
IMO Doc. A 25/Res 1002 (6 December 2007)
International Maritime Organisation Council Doc. C 100/7 (25 April 2008)
International Maritime Organisation Council Doc. C 100/7/Annex (25 April 2008)
International Maritime Organisation ‘Piracy: Elements of national legislation
pursuant to the United Nations Convention on the Law of the Sea, 1982’ LEG
98/8/1 (February 2011)
Report to the Council of the League of Nations on the Questions which Appear
Ripe for International Regulation 22(1) American Journal of International Law
(January 1928) 4
Report of the International Law Commission covering work of its eighth session
(A/3159) Yearbook of the International Law Commission 2 (1956)
Report of the International Law Commission covering the work of its seventh
session, 2 May – 8 July 1955. Doc. A/2934
International Law Commission: 343rd Meeting, Wednesday, 9 May 1956.
Chairman: Mr F.V. Garcia-Amador; Rapporteur: Mr J.P.A. François Yearbook of
the International Law Commission 1 (1956) at 45.
Yearbook of the International Law Commission 1954(2) Doc. A/CN.4/79
Yearbook of the International Law Commission (1955) 1 Doc. A/CN.4/SR.209.
Yearbook of the International Law Commission (1955) 1 Doc. A/CN.4/SR.292.
UN Security Council, 5902nd meeting (2 June 2008) S/PV. 5902
United Nations Conferences on the Law of the Sea: Official Records 4-5 (1980)
Doc. A/CONF.13/C.2/L.46 (12 March 1958)
A/AC. 138/53, article 18, reproduced in SBC Report 1971
68 British and Foreign State Papers 753
36 Hansard Parliamentary Debates (3rd ser.) 787-802
Publications of the League of Nations, V. LEGAL, 1926, V.5, C.P.D.I. 16 (revised)
at 1, Geneva, 9 February 1926
Statement of Norway, 186th meeting, 17 Official Records of the Third United
Nations Conference on the Law of the Sea.
Lusaka Statement: NAC/CONF. 3/Res 11 (1970)
2.
Inventory of Regional Instruments
Acts adopted under title V of the EU treaty: council decision 2009/293/CFSP of
26 February 2009, Official Journal of the European Union (2009) at L79/47-59
Djibouti Code of Conduct IMO Doc. C/102/4 (2009)
321
3.
Register of Statutes
3.1
English Statutes
Offences at Sea Act, 28 Henry VIII c. 15 (1536) ‘For Pirates’
11 & 12 William III c. 7 (1700)
6 Geo. IV c. 49 (1825), Piratical Ships (Bounty Act)
13 & 14 Vic. C. 26 (1850), Piracy (Bounty Act)
Hong Kong Ordinance, No. 2 of 1850
3.2
American Statutes
An act for the punishment of certain crimes against the United States 1st
Cong. 2d Sess., 1 Stat. 112 (Act of 30 April 1790).
An Act to protect the commerce of the United States, and to punish the
crime of piracy; 15th Cong., 2nd Sess., ch. 77 (3 March 1819).
16th Cong, 1st Sess., ch. 113 (Piracy Act of May 15, 1820)
3.3
Kenyan Statute
Penal Code, Chapter 63, The Laws of Kenya (2009)
Merchant Shipping Act 2009, Part XVI [Maritime Security]
3.4
South African Statutes
Admiralty Jurisdiction Regulation Act, 105 of 1983
Maritime Zones Act 15 of 1994
The Constitution of South Africa, 1996
Defence Act 42 of 2002
Protection of Constitutional Democracy Against Terrorist and Related
Activities Act 33 of 2004.
4.
Register of Cases
Lotus case PCIJ series A no 10.
Case Concerning the Arrest Warrant (Democratic Republic of Congo v Belgium)
I.C.J. Reports 2002
Philippines v China 2013-19 (Permanent Court of Arbitration).
4.1
English cases:
Rex v Dawson (1696), 13 How. St. Tr. 451
Serhassan Pirates 2 W. Rob. 354 (1845).
Magellan Pirates [1853] 1 Spink Ecc. & Ad. 81
R v Green 14 How. St. Tr. 1199.
The Attorney-General for Our Lady the Queen for the Colony of Hong
Kong and Kwok-A-Sing L.R. 5 P.C 179 (1873).
In re Piracy Jure Gentium Henley (ed.) Lloyd’s List Law Reports 49 [9
August 1934]
Bolivia v Indemnity Mutual Marine Assurance Co. Limited (1909) 1 K.B.
875
322
4.2
American cases:
United States v Palmer 16 U.S. (3 Wheat.) 610 (1818).
United States v Klintock 18 U.S. (5 Wheat.) 144 (1820)
United States v Furlong 18 U.S. (5 Wheat.) 203 (1820)
United States v Smith 18 U.S. (5 Wheat.) 153 (1820)
United States v Brig Malek Adhel 43 US (2 How.) 210 (1844)
United States v The LaJeune Eugine 26 F. Cas. 832, 843 (C.C.D. Mass
1822) (No. 15551)
The Ambrose Light 25F 408 [1885].
The Tachiona 234 F. Supp. 2d
People v Lol Lo and Saraw 43 Phil. Rep 19 (S.C. 1922)
United States v Layton 509 F. Supp. 212, 223 (N.D. Cal. 1981)
United States v Hassan 747 F. Supp. 2d 642 (E.D. Va. 2010)
United States v Said 757 F. Supp. 2d 554 (E.D. Va. 2010).
4.3
Kenyan cases:
In Ex Parte Mohamud Mohamed Hashi and others MISC. Application no.
434 of 2009 (9 November 2010)
Hassan M. Ahmed v Republic (2009) eKLR
4.4
South African cases:
South Atlantic Islands Development Corporation Ltd. v Buchan, 1971 (1)
SA 234 (C)
Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co Ltd 1977(4) SA
682 (C)
Windrush Intercontinental SA v UACC Bergshav Tankers AS (556/2015)
[2016] ZASCA 199 (6 December 2016)
5.
Archival sources:
Western Cape Provincial Archives: KAB/BO/120/01/16/1.
Western Cape Provincial Archives: KAB/BO/120/01/24/1.
Western Cape Provincial Archives: KAB/BO/120/01/16/1.
Western Cape Provincial Archives: KAB/GH/1/123/00/1911/1.
Western Cape Provincial Archives: KAB/GH/23/2/00/66/1.
Western Cape Provincial Archives: KAB/CSC/1/2/1/46
323
6.
Old Authorities
Anderson (printer)
Azuni
Blackstone
Coke
Coke
Everingham
Heineccius (ed.)
Hobson
Johnson
Kent
Molly
Peter
Rolfe (trans)
Twiss
de Vattel
Wynne
7.
The Tryal of Thomas Green and his Crew, Pursued before
the Judge of the High Court of Admiralty of Scotland and
the Assessor appointed by the Lords of Privy Council
(1705)
The maritime law of Europe (1806)
4 Commentaries on the Laws of England (1765)
4 Institutes of the Laws of England (1797)
1 First Part of the Institutes of the Laws of England
(1838)
The Tryals of Joseph Dawson, Edward Foreseith, William
May, William Bishop, James Lewis and John Sparkes
(1696).
Scriptorum de iure nautico et maritime fasciculus: Io.
Franc. Stypmanni ius maritimum et nauticum, Reinoldi
Kuricke de adsecurationibus diatriben et Io. Loccenii ius
maritimum complexus (1740)
8 The Papers of John Marshall (1995)
A General History of the Robberies and Murders of the
most notorious Pyrates (1724).
1 Commentaries on American Law (1832)
De Jure Maritimo et Navali (1769)
3 Statutes at Large (1850)
2 De Jure Belli Libri Tres by Alberico Gentili (1933)
The law of nations considered as independent political
communities: On the rights and duties of nations in time
of peace (1884).
Law of Nations (1833)
1 Life of Sir Leoline Jenkins (1724)
Books
Akintoba
Al Qasimi
Anand (ed)
Brownlie
Burnett
Cawthorne
Colombus
de Souza
Engel
Dubner
Dugard
Dupuy and Vignes
Fenn
Fulton
African States and Contemporary International Law: A
case study of the 1982 Law of the Sea Convention and the
Exclusive Economic Zone (1996)
The Myth of Arab Piracy in the Gulf (1986)
3 Law of the Sea: Caracas and Beyond (1980)
Principles of Public International Law (1998)
Dangerous Waters: Modern day piracy and terror on the
high seas (2002)
Pirates of the 21st century (2009)
The International Law of the Sea (1967)
Piracy in the Graeco-Roman World (1999)
The African Union, the African Peace and Security
Architecture, and Maritime Security (2014)
The law of international sea piracy (1980)
International Law: A South African Perspective (2006)
1 A handbook on the new law of the sea (1991)
The Origin of the right of fishery in territorial waters
(1926)
The Sovereignty of the Sea: An historical account of the
claims of England to the dominion of the British seas, and
the evolution of the territorial waters, with special
324
reference to the rights of fishing and the naval salute
(1911)
Geiß and Petrig
Piracy and Armed Robbery at Sea (2011)
Gidel
Le Droit international public de la mer (1934)
Gosse
The History of Piracy (1932).
Guilfoyle
Shipping Interdiction and the Law of the Sea (2011)
Harrison
Making the Law of the Sea: A study in the development of
International Law (2011)
Haywood and Spivak Maritime Piracy (2012)
Heller-Roazen
The Enemy of All: Piracy and the Law of Nations (2009)
Klein
Maritime Security and the Law of the Sea (2012)
Konstam
Piracy: the complete history (2008).
Kraska
Contemporary Maritime Piracy (2011)
Langewiesche
The Outlaw Sea (2004)
Lansdown and Gardiner 2 South African Criminal Law and Procedure (1930).
Lauterpacht (ed)
1 International Law: A treatise by L. Oppenheim (1955)
Lewis (ed.)
Mapping Counter Piracy Actors (2013)
McCarthy
Privateering, Piracy and British Policy in Spanish
America 1810-1830 (2013).
Menefee
Contemporary Piracy and International Law (1995)
Murphy
Contemporary Piracy and Maritime Terrorism: The
threat to international security (2007)
Nandan et al
United Nations Convention on the Law of the Sea 1982: A
commentary (1995)
O’Connell
1 The International Law of the Sea (1982)
Oppenheim
International Law (1926)
Oudendjik
Status and Extent of Adjacent Waters: A historical
Orientation (1970)
Oudendijk and Verzijl International Law in Historical Perspective 4 (1971)
Palmer
The New Pirates: Modern Global piracy from Somalia to
the South China Sea (2014)
Pedone and Hart
Piracy in comparative perspective (2012)
Petrig (ed.)
Sea Piracy Law: Selected National Frameworks and
Regional Legislative Approaches (2010)
Philips
A Captain’s Duty (2010)
Pitney and Levin
Private Anti-piracy Navies (2013)
Rembe
Africa and the International Law of the Sea: A study of the
contribution of the African States to the Third United
Nations Conference on the Law of the Sea (1980)
Rubin
The law of piracy (1988)
Georges Scelle
Manuel élémentaire de droit international public (1943)
Scharf et al
Prosecuting Maritime Piracy (2015).
Shaw
Title to Territory in Africa: International Legal Issues
(1986)
Sorensen
Manual of Public International Law (1968)
Stern
Destroyer Battles: Epics of Close Naval Combat (2008)
Tanaka
The International Law of the Sea (2015)
Tarwacka
Romans and Pirates: Legal Perspective (2009)
Verzijl
International Law in Historical Perspective 3 (1970)
Vrancken
South Africa and the Law of the Sea (2011)
325
8.
Book Chapters:
Attard and Mallia
‘The High Seas’ in Attard (ed.) et al 1 The IMLI Manual
of International Maritime Law: The Law of the Sea (2014)
Banloaoi
‘The Abu Sayyaf Group: The threat of Maritime Piracy
and Terrorism’ in Lehr (2007)
Beuger
‘After piracy: Towards an African Maritime Security
Architecture’ in Vreÿ and Mandrup Towards Good Order
at Sea: African Experiences (2015)
Brus
‘Bridging the Gap between State Sovereignty and
International Governance: The Authority of Law.’ in
Kreijen (ed) State, Sovereignty, and International
Governance (2002)
Bulpin
‘Pirates and Piracy’ in Potgieter (ed.) 8 Standard
Encyclopaedia of South Africa (1973)
Churchill
‘The Piracy provisions of the UN Convention on the Law
of the Sea – Fit for Purpose?’ in Koutrakos and Skordas
The Law and Practice of Piracy at Sea (2015) 22
Coelho
‘Southern African Maritime Security: Problems and
prospects’ in Niewkerk and Hofmann (eds) Southern
African Security Review (2013)
Fouché
‘Harmonised legal framework for Africa as an instrument
to combat sea piracy’ in Petrig (ed.) Droit de la piraterie
maritime (2010)
Franson
‘Keynote address: Coastal zone piracy’ in Mejia and Xu
(eds) Coastal Zone Piracy and other unlawful acts at sea
(2007)
Greig
‘International Community, Interdependence and All That
… Rhetorical Correctness?’ in Kreijen (ed.) State,
Sovereignty, and International Governance (2002)
Guilfoyle
‘Piracy and Terrorism’ in Koutrakos and Skordas The
Law and Practice of Piracy at Sea: European and
International Perspectives (2015)
Hodgkinson
‘The Governing International Law on Maritime Piracy’ in
Scharf et al (eds) Prosecuting Maritime Piracy: Domestic
Solutions to International Crimes (2015)
Jennings
‘Sovereignty and International Law’ in Kreijen (ed.)
State, Sovereignty, and International Governance (2002)
Lehr and Lehmann
‘Somali – Pirates’ New Paradise’ in Lehr (ed) Violence at
sea: Piracy in the age of global terrorism (2007)
326
Murdoch
‘Piracy and the UK’ in Koutrakos and Skordas The Law
and Practice of Piracy at Sea (2015)
Murphy
‘Piracy and UNCLOS: Does International Law Help
Regional States Combat Piracy?’ in Lehr (ed.) Violence at
Sea: Piracy in the age of global terrorism (2007)
Njenga
‘Historical Background of the Evolution of the Exclusive
Economic Zone and the Contribution of Africa’ in
Pontecorvo The New Order of the Oceans: The Advent of
a Managed Environment (1986)
Potgieter
Leadership and Political Will – Crucial for Maritime
Security in East Africa’ Architecture’ in Vreÿ and
Mandrup Towards Good Order at Sea: African
Experiences (2015)
Potgieter and Walker ‘The 2050 African Integrated Maritime Strategy (AIMS):
Content and Progress’ in Vreÿ and Mandrup Towards
Good Order at Sea: African Experiences (2015)
Rahman
‘The international politics of combating piracy in
Southeast Asia’ in Lehr (ed) Violence at sea: Piracy in the
age of global terrorism (2007)
Rothwell
‘Oceans Management and the Law of the Sea in the
Twenty-First Century’ in Elferink and Rothwell (ed.)
Oceans Management in the 21st Century: Institutional
Frameworks and Responses (2004)
Schermers
‘Different Aspects of Sovereignty’ in Kreijen (ed.) State,
Sovereignty, and International Governance (2002)
Staden and Vollaard
‘The erosion of State Sovereignty: Towards a Postterritorial World?’ in Kreijen (ed.) State, Sovereignty, and
International Governance (2002)
Stepek
‘Challenges of Jurisdiction and Prosecution’ in Pedone
and Hart Piracy in Comparative Perspective: Problems,
strategies, law (2012)
Sterio
‘Incorporating International Law to establish jurisdiction
over piracy offences’ in Scharf et al (ed.) Prosecuting
Maritime Piracy (2015)
Treves
‘Historical Development of the Law of the Sea’ in
Rothwell et al (eds) The Oxford Handbook on the Law of
the Sea (2015)
Vrancken and Pike
‘Marine and Maritime Law in South Africa’ in Funke et
al (ed.) Reflections on the State of Research and
Technology in South Africa’s Marine and Maritime
Sectors (2015)
327
Wambua
9.
‘The legal framework for the adjudication of piracy cases
in Kenya: Review of the jurisdictional and procedural
challenges and the institutional capacity’ in Petrig (ed.)
Sea Piracy Law: Selected National Frameworks and
Regional Legislative Approaches (2010)
Journal Articles
Azubuike
‘International law regime against piracy’ 15 Annual
Survey of International and Comparative Law (2009) 43
Baker
‘IV – A Charge by Sir Leoline Jenkins, at an Admiralty
Session, 1674-5’ Law Magazine and Review; a Quarterly
Review of Jurisprudence and Quarterly Digest of
Reported Cases 10 (1884-5) 5th Serv. 412.
Baker
‘Toward an African Maritime Economy’ 64 Naval War
College Review (2011) 39
Bassiouni
‘Universal Jurisdiction for International Crimes:
Historical Perspectives and Contemporary Practice’ 42
Virginia Journal of International Law (2001) 81
Bellish
‘A highs seas requirement for inciters and international
facilitators of piracy jure gentium and its (lack of)
implications for impunity’ 15 San Diego International
Law Journal (2013) 115
Benkenstein
‘Aligning Africa’s Maritime Ambitions with Broader
Indian Ocean Regionalism’ 25 SAIIA Policy Insights
(September 2015) 4
Cilliers
‘Towards a Continental Early Warning System for Africa’
ISS Paper 102 (April 2005) 5
Birnie
‘Piracy: Past, present and future’ Marine Policy (July
1987) 163
Botha
‘Municipal jurisdiction over territorial waters’ 4 South
African Yearbook of International Law (1978) 177
Bueger
‘Communities of Security Practice at Work? The
Emerging African Maritime Security Regime’ 6 African
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336
REGISTER OF ARTEFACTS
__________
337
APPENDIX
I
_______
SELECT PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE
LAW OF THE SEA, 1982
‘ARTICLE 100
Duty to cooperate in the repression of piracy
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.
ARTICLE 101
Definition of piracy
Piracy consists of any of the following acts:
(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) 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).
ARTICLE 102
Piracy by a warship, government ship or government aircraft
whose crew has mutinied
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.
ARTICLE 103
Definition of a pirate ship or aircraft
A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in
dominant control to be used for the purpose of committing one of the acts referred to in
article 101. The same applies if the ship or aircraft has been used to commit any such act,
so long as it remains under the control of the persons guilty of that act.
ARTICLE 104
Retention or loss of the nationality of a pirate ship or aircraft
A ship or aircraft may retain its nationality although it has become a pirate ship or aircraft.
The retention or loss of nationality is determined by the law of the State from which such
nationality was derived.
338
ARTICLE 105
Seizure of a pirate ship or aircraft
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. The courts of the State which
carried out the seizure may decide upon the penalties to be imposed, and may also
determine the action to be taken with regard to the ships, aircraft or property, subject to the
rights of third parties acting in good faith.
ARTICLE 106
Liability for seizure without adequate grounds
Where the seizure of a ship or aircraft on suspicion of piracy has been effected without
adequate grounds, the State making the seizure shall be liable to the State the nationality of
which is possessed by the ship or aircraft for any loss or damage caused by the seizure.
ARTICLE 107
Ships and aircraft which are entitled to seize on account of piracy
A seizure on account of piracy may be carried out only by warships or military aircraft, or
other ships or aircraft clearly marked and identifiable as being on government service and
authorized to that effect.’
339
APPENDIX
II
______
OFFENCES AT SEA ACT, 28 HENRY VIII, c 15 (1536) FOR PIRATES
Reproduction of the original text
ARTICLE II.
(1) And be it enacted by the Authority aforesaid, That such Persons to whom such
Commission or Commissions shall be directed, or four of them at the least, shall have full
Power and Authority to enquire of such Offences, and of every of them, by the Oaths of
twelve good and lawful Inhabitants in the Shire limited in their Commission, in such like
Manner and Form, as if such Offences had been committed upon the Land within the
same Shire;
(2) and that every Indictment, found and presented before such Commissioners, of any
Treasons, Felonies, Robberies, Murders, Manslaughters, or such other Offences, being
committed or done in or upon the Seas, or in or upon any other Haven, River or Creek,
shall be good and effectual in the Law;
(3) and if any Person or Persons happen to be indicted for any such Offence done or herea
fter to be done upon the Seas, or in any other place above limited, that then such Order,
Process, Judgment and Execution shall be used, had, done and made, to and against every
such Person and Persons so being indicted, as against Traytors, Felons and Murderers, for
Treason, Felony, Robbery, Murder or other such Offences done upon the Land, as by the
Laws of this Realm is accustomed;
(4) and that the trial of such Offence or Offences, if it be denied by the Offender or
Offenders, shall be had by twelve lawful Men inhabited in the Shire limited within such
Commission, which shall be directed as is aforesaid, and no Challenge or Challenges to
be had for the Hundred;
(5) and such as shall be convict of any such Offence or Offences, by Verdict, Confession
or Process, by Authority of any such Commission, shall have and suffer such Pains of
Death, Losses of Lands, Goods and Chattels, as if they had been attainted and convicted
of any Treasons, Felonies, Robberies, or other the said Offences done upon the Lands.
ARTICLE III.
And be it enacted by Authority aforesaid, That for Treasons, Robberies, Felonies,
Murders
and Confederacies done upon the Sea or Seas, or in any Place above rehearsed, the
Offenders shall not be admitted to have the Benefit of his or their Clergy, but be utterly
excluded thereof and from the same, and also of the Privilege of any Sanctuary.
ARTICLE IV.
Provided alway, That this Act extend not to be prejudicial or hurtful to any Person or
Persons for taking any Victual, Cables, Ropes, Anchors or Sails, which any such Person
or Persons (compelled by Necessity) taketh of or in any Ship which may conveniently
spare the same, so the same Person or Persons pay out of Hand for the same Victual,
Cables, Ropes, Anchors or Sails, Money or Money-worth to the Value of the Thing so
taken, or do deliver for the same a sufficient Bill obligatory to be paid in Form
340
following, that is to say, If the taking of the same Things be on this Side, the Straits of
Marroke, then to be paid within four Months, and if it be beyond the said Straits of
Marroke, then to be paid within twelve Month next ensuing the making of such Bills, and
that the Makers of such Bills well and truly pay the same Debt at the Day to be limited
within the said Bills.
ARTICLE V.
Provided alway, That whensoever any such Commission for the Punishment of Offences
aforesaid, or of any of them, shall be directed or sent to any Place within the Jurisdiction
of the Five Ports, that then every such
Commission shall be directed unto the Lord Warden of the said Ports for the Time being,
or to his Deputy, and unto three or four such other Person or Persons, as the Lord
Chancellor for the Time being shall name and appoint; any Thing in this present Act to
the contrary notwithstanding.
ARTICLE VI.
Provided alway, That whensoever any Commission shall be directed unto the Five Ports
for the Inquisition and Trials of any the Offences expressed in this Act, that every such
Inquisition and Trial to be had by Virtue of such Commission, shall be made and had by
the Inhabitants in the said Five Ports, or the Members of the same; any Thing in this act
to the contrary thereof notwithstanding.’
341
APPENDIX
III
______
SELECT PROVISIONS OF THE SUA CONVENTION, 1988
ARTICLE 3
‘1.
Any person commits an offence if that person unlawfully and intentionally:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
2.
seizes or exercises control over a ship by force or threat thereof or any
other form of intimidation; or
performs an act of violence against a person on board a ship if that act is
likely to endanger the safe navigation of that ship; or
destroys a ship or causes damage to a ship or to its cargo which is likely to
endanger the safe navigation of that ship; or
places or causes to be placed on a ship, by any means whatsoever, a device
or substance which is likely to destroy that ship, or cause damage to that
ship or its cargo which endangers or is likely to endanger the safe
navigation of that ship; or
destroys or seriously damages maritime navigational facilities or seriously
interferes with their operation, if any such act is likely to endanger the safe
navigation of a ship; or
communicates information which he knows to be false, thereby
endangering the safe navigation of a ship; or
injures or kills any person, in connection with the commission or the
attempted commission of any of the offences set forth in subparagraphs (a)
to (f).
Any person also commits an offence if that person:
(a)
(b)
(c)
attempts to commit any of the offences set forth in paragraph 1; or
abets the commission of any of the offences set forth in paragraph 1
perpetrated by any person or is otherwise an accomplice of a person who
commits such an offence; or
threatens, with or without a condition, as is provided for under national
law, aimed at compelling a physical or juridical person to do or refrain
from doing any act, to commit any of the offences set forth in paragraph
1, subparagraphs (b), (c) and (e), if that threat is likely to endanger the safe
navigation of the ship in question.’
342
APPENDIX
IV
______
DRAFT PROVISIONS FOR THE SUPPRESSION OF PIRACY
(MATSUDA REPORT), 1926
ARTICLE I
‘Piracy occurs only on the high sea and consists in the commission for private end of
depredations upon property or acts of violence against persons.
It is not involved in the notion of piracy that the above-mentioned acts should be committed
for the purpose of gain, but acts committed with a purely political object will not be
regarded as constituting piracy.
ARTICLE II
It is not involved in the notion of piracy that the ship should not have the right to fly a
recognised flag, but in committing an act of piracy the piracy loses the protection of the
State whose flag the ship flies.
ARTICLE III
Only private ships can commit acts of piracy. Where a warship, after mutiny, cruises on its
own account and commits acts of the kind mentioned in Article I, it thereby loses its public
character.
ARTICLE IV
Where, during a civil war, warships of insurgents who are not recognised as belligerents
are regarded by the regular Government as pirates, third Powers are not thereby obliged to
treat them as such.
Insurgents committing acts of the kind mentioned in Article I must be considered as pirates,
unless such acts are inspired by purely political motives.
ARTICLE V
If the crew of a ship has committed an act of piracy, every warship has the right to stop and
capture the ship on the high sea.
On the condition that the affair shall be remitted for judgment to the competent authorities
of the littoral state, a pursuit commenced on the high sea may be continued even within the
territorial waters unless the littoral state is in a position to continue such pursuit itself.
ARTICLE VI
Where suspicions of piracy exist, every warship, on the responsibility of its commander,
has the authority to ascertain the real character of the ship in question. If after examination
the suspicions are proved to be unfounded, the captain of the suspected ship will be entitled
to reparation or to an indemnity as the case may be. If, on the contrary, the suspicions of
piracy are confirmed, the commander of the warship may either proceed to try the pirates,
if the arrest took place on the high sea, or deliver the accused to the competent authorities.
343
ARTICLE VII
Jurisdiction in piracy belongs to the state of the ship making the capture, except: (a) in the
case of pursuit mentioned I article V, paragraph 2; (b) in the case where the domestic
legislation or an international convention otherwise decides.
ARTICLE VIII
The consequences of capture, such as the validity of the prize, the right of recovery of the
lawful owners, the reward of the chapters, are governed by the law of the State to which
jurisdiction belongs.’
344
APPENDIX
V
______
HARVARD RESEARCH IN INTERNATIONAL LAW:
DRAFT CONVENTION ON PIRACY
(HARVARD UNIVERSITY DRAFT)
1932
ARTICLE 1
‘As the terms are used in this convention:
1.
2.
3.
4.
5.
The term “jurisdiction" means the jurisdiction of a state under international law as
distinguished from municipal law.
The term "territorial jurisdiction" means the jurisdiction of a state under
international law over its land, its territorial waters and the air above its land and
territorial waters. The term does not include the jurisdiction of a state over its ships
outside its territory.
The term "territorial sea" means that part of the sea which is included in the
territorial waters of a state.
The term "high sea" means that part of the sea which is not included in the territorial
waters of any state.
The term "ship" means any water craft or air craft of whatever size.
ARTICLE 2
Every state has jurisdiction to prevent piracy and to seize and punish persons and to seize
and dispose of property because of piracy. This jurisdiction is defined and limited by this
convention.
ARTICLE 3
Piracy is any of the following acts, committed in a place not within the territorial
jurisdiction of any state:
1.
Any act of violence or of depredation committed with intent to rob, rape, wound,
enslave, imprison or kill a person or with intent to steal or destroy property, for
private ends without bona fide purpose of asserting a claim of right, provided that
the act is connected with an attack on or from the sea or in or from the air. If the
act is connected with an attack which starts from on board ship, either that ship or
another ship which is involved must be a pirate ship or a ship without national
character.
2.
Any act of voluntary participation in the operation of a ship with knowledge of
facts which make it a pirate ship.
3.
Any act of instigation or of intentional facilitation of an act described in paragraph
1 or paragraph 2 of this article.
ARTICLE 4
1.
A ship is a pirate ship when it is devoted by the persons in dominant control to the
purpose of committing an act described in the first sentence of paragraph 1 of
Article 3, or to the purpose of committing any similar act within the territory of a
345
state by descent from the high sea, provided in either case that the purposes of the
persons in dominant control are not definitely limited to committing such acts
against ships or territory subject to the jurisdiction of the state to which the ship
belongs.
2.
A ship does not cease to be a pirate ship after the commission of an act described
in paragraph 1 of Article 3, or after the commission of any similar act within the
territory of a state by descent from the high sea, as long as it continues under the
same control.
ARTICLE 5
A ship may retain its national character although it has become a pirate ship. The retention
or loss of national character is determined by the law of the state from which it was derived.
ARTICLE 6
In a place not within the territorial jurisdiction of another state, a state may seize a pirate
ship or a ship taken by piracy and possessed by pirates, and things or persons on board.
ARTICLE 7
1.
In a place within the territorial jurisdiction of another state, a state may not pursue
or seize a pirate ship or a ship taken by piracy and possessed by pirates; except that
if pursuit of such a ship is commenced by a state within its own territorial
jurisdiction or in a place not within the territorial jurisdiction of any state, the
pursuit may be continued into or over the territorial sea of another state and seizure
may be made there, unless prohibited by the other state.
2.
If a seizure is made within the territorial jurisdiction of another state in accordance
with the provisions of paragraph 1 of this article, the state making the seizure shall
give prompt notice to the other state, and shall tender possession of the ship and
other things seized and the custody of persons seized.
3.
If the tender provided for in paragraph 2 of this article is not accepted, the state
making the seizure may proceed as if the seizure had been made on the high sea.
ARTICLE 8
If a pursuit is continued or a seizure is made within the territorial jurisdiction of another
state in accordance with the provisions of paragraph 1 of Article 7, the state continuing the
pursuit or making the seizure is liable to the other state for any damage done by the
pursuing ship, other than damage done to the pirate ship or the ship possessed by pirates,
or to persons and things on board.
ARTICLE 9
If a seizure because of piracy is made by a state in violation of the jurisdiction of another
state, the state making the seizure shall, upon the demand of the other state, surrender or
release the ship, things and persons seized, and shall make appropriate reparation.
346
ARTICLE 10
If a ship seized on suspicion of piracy outside the territorial jurisdiction of the state making
the seizure, is neither a pirate ship nor a ship taken by piracy and possessed by pirates, and
if the ship is not subject to seizure on other grounds, the state making the seizure shall be
liable to the state to which the ship belongs for any damage caused by the seizure.
ARTICLE 11
1.
In a place not within the territorial jurisdiction of any state, a foreign ship may be
approached and on reasonable suspicion that it is a pirate ship or a ship taken by
piracy and possessed by pirates, it may be stopped and questioned to ascertain its
character.
2.
If the ship is neither a pirate ship nor a ship taken by piracy and possessed by
pirates, and if it is not subject to such interference on other grounds, the state
making the interference shall be liable to the state to which the ship belongs for
any damage caused by the interference.
ARTICLE 12
A seizure because of piracy may be made only on behalf of a state, and only by a person
who has been authorized to act on its behalf.
ARTICLE 13
1.
A state, in accordance with its law, may dispose of ships and other property
lawfully seized because of piracy.
2.
The law of the state must conform to the following principles:
(a)
(b)
(c)
The interests of innocent persons are not affected by the piratical
possession or use of property, nor by seizure because of such possession
or use.
Claimants of any interest in the property are entitled to a reasonable
opportunity to prove their claims.
A claimant who establishes the validity of his claim is entitled to receive
the property or compensation therefor, subject to a fair charge for salvage
and expenses of administration.
ARTICLE 14
1.
A state which has lawful custody of a person suspected of piracy may prosecute
and punish that person.
2.
Subject to the provisions of this convention, the law of the state which exercises
such jurisdiction defines the crime, governs the procedure and prescribes the
penalty.
3.
The law of the state must, however, assure protection to accused aliens as follows:
(a) The accused person must be given a fair trial before an impartial tribunal
without unreasonable delay.
(b) The accused person must be given humane treatment during his
confinement pending trial
(c) No cruel and unusual punishment may be inflicted.
347
(d)
4.
No discrimination may be made against the nationals of any state.
A state may intercede diplomatically to assure this protection to one of its nationals
who is accused in another state.
ARTICLE 15
A state may not prosecute an alien for an act of piracy for which he has been charged and
convicted or acquitted in a prosecution in another state.
ARTICLE 16
The provisions of this convention do not diminish a state's right under international law to
take measures for the protection of its nationals, its ships and its commerce against
interference on or over the high sea, when such measures are not based upon jurisdiction
over piracy.
ARTICLE 17
1.
The provisions of this convention shall supersede any inconsistent provisions
relating to piracy in treaties in force among parties to this convention, except that
such inconsistent provisions shall not be superseded in so far as they affect only
the interests of the parties to such treaties inter se.
2.
The provisions of this convention shall not prevent a party from entering into an
agreement concerning piracy-containing provisions inconsistent with this
convention which affect only the interests of the parties to that agreement inter se.
ARTICLE 18
The parties to this convention agree to make every expedient use of their powers to prevent
piracy, separately and in co-operation.
ARTICLE 19
1.
If there should arise between the High Contracting Parties a dispute of any kind
relating to the interpretation or application of the present convention, and if such
dispute cannot be satisfactorily settled by diplomacy, it shall be settled in
accordance with any applicable agreements in force between the parties to the
dispute providing for the settlement of international disputes.
2.
In case there is no such agreement in force between the parties to the dispute, the
dispute shall be referred to arbitration or judicial settlement. In the absence of
agreement on the choice of another tribunal, the dispute shall, at the request of any
one of the parties to the dispute, be referred to the Permanent Court of International
Justice, if all the parties to the dispute are parties to the Protocol of December 16,
1920, relating to the Statute of that Court; and if any of the parties to the dispute
is not a party to the Protocol of December 16, 1920, to an arbitral tribunal
constituted in accordance with the provisions of the Convention of the Pacific
Settlement of International Disputes, signed at The Hague, October 18, 1907.’
348
APPENDIX
VI
______
EXTRACTS FROM THE CONVENTION ON THE HIGH SEAS, GENEVA, 1958
ARTICLE 14
All States shall co-operate 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.
ARTICLE 15
Piracy consists of any of the following acts:
(1)
Any illegal acts of violence, 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:
(a)
On the high seas, against another ship or aircraft, or against
persons or property on board such ship or aircraft;
(b)
Against a ship, aircraft, persons or property in a place outside the
jurisdiction of any State;
(2)
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;
(3)
Any act of inciting or of intentionally facilitating an act described in sub-paragraph
I or sub-paragraph 2 of this article.
ARTICLE 16
The acts of piracy, as defined in article 15, 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.
ARTICLE 17
A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in
dominant control to be used for the purpose of committing one of the acts referred to in
article 15. The same applies if the ship or aircraft has been used to commit any such act, so
long as it remains under the control of the persons guilty of that act.
ARTICLE 18
A ship or aircraft may retain its nationality although it has become a pirate ship or aircraft.
The retention or loss of nationality is determined by the law of the State from which such
nationality was derived.
ARTICLE 19
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 taken by piracy and under the control of pirates, and
arrest the persons and seize the property on board . The courts of the State which carried
out the seizure may decide upon the penalties to be imposed, and may also determine the
349
action to be taken with regard to the ships, aircraft or property, subject to, the rights of,
third parties acting in good faith.
ARTICLE 20
Where the seizure of a ship or aircraft on suspicion of piracy has been effected without
adequate grounds, the State making the seizure shall be liable to the State the nationality of
which is possessed by the ship or aircraft, for any loss or damage caused by the seizure.
ARTICLE 21
A seizure on account of piracy may only be carried out by warships or military aircraft, or
other ships or aircraft on government service authorized to that effect.
350
APPENDIX
VII
______
EXTRACTS FROM THE DEFENCE ACT 42 OF 2002 (SOUTH AFRICA)
CHAPTER 4
LAW ENFORCEMENT POWERS OF DEFENCE FORCE AT SEA (ss 21-29)
Ԥ21
Definitions
In this Chapter a word or expression has the meaning ascribed to it in any
appropriate convention and, unless the context indicates otherwise(a) 'innocent passage' means the right of innocent passage contemplated
in section 2 of the Marine Traffic Act, 1981 (Act 2 of 1981);
(b) 'military aircraft' means an aircraft of the armed forces of a State having the
military marks of that State, commanded by a member of the armed forces and
the crew of which is subject to regular armed forces discipline;
(c) 'UNCLOS' means the United Nations Convention on the Law of the Sea
adopted at Montego Bay on 10 December 1982;
(d) 'warship' means a ship belonging to the armed forces of a State bearing the
external marks distinguishing such ships of its nationality, under the command
of an officer duly commissioned by the government of that State and whose
name appears in the appropriate service list or its equivalent, and the crew of
which is under regular armed forces discipline.
§22
Criminal and civil law enforcement by Defence Force
(1)
(2)
If requested by a competent Minister, the Chief of the Defence Force, with
the concurrence of the Minister of Defence, may authorise the use of any
military aircraft of the Defence Force or any warship of the Defence Force
or any member of the Defence Force for the purpose of enforcing any
provision of South African law at sea.
An officer on board an aircraft or a warship contemplated in subsection (1)
may enforce South African law in(a)
(b)
(c)
(3)
No enforcement outside the territorial waters of the Republic may take
place(a)
(b)
(4)
the internal waters of the Republic;
the territorial waters of the Republic, but any measures taken must
be carried out in accordance with paragraphs 3, 4 and 5 of article
27, and paragraphs 2 and 3 of article 28, of UNCLOS; and
subject to subsection (3), outside the territorial waters of the
Republic.
in the territorial waters of a foreign state, unless it takes place on
board a South African ship or in pursuance of an agreement on cooperation in law enforcement with that state; and
against foreign ships or those on board them, except in
circumstances permitted by international law.
An officer of the Defence Force acting in accordance with subsection (2)-
351
(a)
(b)
(c)
(5)
§23
who exercises any power referred to in this section inside or
outside the Republic, must be regarded as being a peace officer as
defined in section 1 of the Criminal Procedure Act, 1977 (Act 51
of 1977), and may exercise such power in the same manner as a
peace officer exercising such powers within the Republic;
may exercise all other powers referred to in this Chapter; and
may exercise all or any of the powers conferred on any
enforcement authority in terms of the relevant legislation, the
provisions of which are being enforced by the said officer.
This section does not affect powers contemplated in sections 25, 26, 27
and 28, or any other matters which are within the original and exclusive
jurisdiction of the Defence Force.
Interests to be considered
(1)
(a)
(b)
(c)
(2)
§24
If the Master of a foreign ship in relation to which and on board of
which enforcement measures are being taken in accordance with
section 22 (2) (b) so requests, directly or through any military
aircraft or warship authorised in terms of section 22 (1), the
Department of Foreign Affairs must notify a diplomatic agent or
consular officer of the flag state of such ship before any
enforcement measures are taken.
The Department of Foreign Affairs or the Defence Force, as the
case may be, must, if reasonably possible, facilitate contact
between such diplomatic agent or consular officer and the crew of
the ship in question.
In a case of emergency or if there is danger that such ship might
escape, the notification contemplated in paragraph (a) may be
communicated while the enforcement measures are being taken.
In considering whether or in what manner an arrest should be made, due
regard must be had to the interests of safe navigation.
Piracy
(1)
For purposes of this Act, piracy is(a)
(b)
(c)
(2)
any illegal act of violence or detention, or any act of depredation,
committed for private ends by the crew, including the Master, 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;
any act of voluntary participation in the operation of a ship or of
an aircraft with knowledge of facts making it a ship or aircraft
contemplated in subsection (1); and
any act of inciting or of intentionally facilitating an act
contemplated in paragraph (a) or (b).
Any act of piracy committed by the crew of a warship or military aircraft,
government ship or government aircraft which has mutinied and taken
352
control of such ship or aircraft, must for purposes of this section be
regarded as having been committed by the crew of a private ship or aircraft.
(3)
§25
§26
§27
§28
Any person who commits an act of piracy is guilty of an offence, which
may be tried in any court in the Republic designated by the Director of
Public Prosecutions and, upon conviction, is liable to a fine or to
imprisonment for any period, including life imprisonment.
Seizure of pirate ship or aircraft
(1)
An officer of the Defence Force may seize a ship or aircraft and the
property on board, and arrest any person on board, in accordance with
articles 105 and 107 of UNCLOS.
(2)
Any officer of the Defence Force who exercises any power referred to in
this section inside or outside the Republic, must be regarded as being a
peace officer as defined in section 1 of the Criminal Procedure Act, 1977
(Act 51 of 1977).
(3)
Any ship, aircraft or property seized, or any person arrested, in terms of
this section, must as soon as possible be brought to the Republic or to any
other authority determined by the Minister of Foreign Affairs, with the
concurrence of the Ministers of Defence and of Justice, to be dealt with in
accordance with applicable law.
Right of visit on high seas by warships of Defence Force
(1)
Any South African warship may exercise the right of flag verification as
provided for in paragraph 2 of article 110 of UNCLOS in the
circumstances mentioned in paragraph 1 of that article.
(2)
If the suspicion referred to in article 110 of UNCLOS is proved to be wellfounded, the ship may be seized and any person who is reasonably
suspected of having committed an offence justiciable by a criminal court
of the Republic, may be arrested, whereupon such seized ship and any
arrested person shall be dealt with in accordance with section 25 (3).
Hot pursuit of ships
(1)
Any warship or military aircraft of the Defence Force may exercise on
behalf of the Republic or on the behalf of a foreign state, the right of hot
pursuit of any ship in accordance with article 111 of UNCLOS.
(3)
The seizure of a ship and the arrest of any person on board such ship may
be effected by any officer of any ship or aircraft which acts in accordance
with this section.
(3)
An officer of the Defence Force who exercises any power referred to in
this section inside or outside the Republic, must be regarded as being a
peace officer as defined in section 1 of the Criminal Procedure Act, 1977
(Act 51 of 1977).
Warships or military aircraft of Defence Force to render assistance
353
(1)
Subject to subsection (2), a warship or military aircraft of the Defence
Force must(a)
render assistance to any person found at sea in danger of being
(b)
proceed with all possible speed to the rescue of persons in distress
at sea, if informed of their need for assistance, in so far as such
action may be reasonably expected of such warship or aircraft; or
after a collision at sea, render assistance to the other ship, its crew
and passengers, and where the collision involves the warship, if
possible, inform the other ship of its name, its flag state and the
port at which it will call.
lost;
(c)
(2)
§29
(3)
A warship or military aircraft may only render assistance or proceed to the
rescue as contemplated in subsection (1), if(a)
it can be effected without serious danger to the warship or military
aircraft, its crew and its passengers; and
(b)
in times of armed conflict, it can be effected without serious
prejudice to an operation in which the warship or military aircraft
is engaged at the time.
Co-operation with foreign states
(1)
Subject to subsection (2), any officer of the Defence Force serving on a
warship or military aircraft of the Defence Force or any other ship or
aircraft on government service specially authorised, may, in respect of any
violation of the law of a foreign state(a) seize any vessel;
(b) arrest any person on board such vessel;
(c) seize any property on board such vessel;
(d) conduct a hot pursuit operation in relation to such vessel;
(e) escort such vessel to a foreign port;
(f) surrender such vessel, person or property to the authorities of the
foreign state contemplated in paragraph (e); and
(g) assist in any of the actions contemplated in paragraphs (a) to (e).
(2)
An action contemplated in subsection (1) may only be taken(a)
in pursuance of a reciprocal agreement on co-operation in law
enforcement at sea between the Republic and the relevant foreign
state;
(b)
if the law enforcement measure taken, is consistent with the
agreement; and
(c)
if the relevant foreign state may take the law enforcement
measures contemplated in subsection (1) (a) to (e) under
international law.
Subsections (1) and (2) apply with the necessary changes to enforcement
in respect of violations of South African or foreign law by officers of the(a)
Defence Force on board a foreign warship, military aircraft or
other authorised foreign vessel or aircraft; and
354
(b)
(4)
armed forces of a foreign state on board a warship or military
aircraft of the Defence Force or on board any other authorised
South African vessel.
An officer contemplated in subsection (3) (b) must be regarded as being a
peace officer as defined in section 1 of the Criminal Procedure Act, 1977
(Act 51 of 1977), when taking enforcement measures in respect of the
violation of any South African law.
355
APPENDIX
VIII
______
UNITED NATIONS SECURITY COUNCIL
RESOLUTION 1816 (2008)
Adopted by the Security Council at its 5902nd meeting
on 2 June 2008
The Security Council,
Recalling its previous resolutions and the statements of
its President concerning the situation in Somalia,
Gravely concerned by the threat that acts of piracy and
armed robbery against vessels pose to the prompt, safe and
effective delivery of humanitarian aid to Somalia, the safety of
commercial maritime routes and to international navigation,
Expressing its concerns at the quarterly reports from the
International Maritime Organization (IMO) since 2005, which
provide evidence of continuing piracy and armed robbery in
particular in the waters off the coast of Somalia,
Affirming that international law, as reflected in the United
Nations Convention on the Law of the Sea of 10 December
1982 (“the Convention”), sets out the legal framework
applicable to combating piracy and armed robbery, as well as
other ocean activities,
Reaffirming the relevant provisions of international law
with respect to the repression of piracy, including the
Convention, and recalling that they provide guiding principles
for cooperation 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, including but not limited to boarding,
searching, and seizing vessels engaged in or suspected of
engaging in acts of piracy, and to apprehending persons
engaged in such acts with a view to such persons being
prosecuted,
Reaffirming its respect for the sovereignty, territorial
integrity, political independence and unity of Somalia,
Taking into account the crisis situation in Somalia, and
the lack of capacity of the Transitional Federal Government
(TFG) to interdict pirates or patrol and secure either the
international sea lanes off the coast of Somalia or Somalia’s
territorial waters,
356
Deploring the recent incidents of attacks upon and
hijacking of vessels in the territorial waters and on the high seas
off the coast of Somalia including attacks upon and hijackings
of vessels operated by the World Food Program and numerous
commercial vessels and the serious adverse impact of these
attacks on the prompt, safe and effective delivery of food aid
and other humanitarian assistance to the people of Somalia, and
the grave dangers they pose to vessels, crews, passengers, and
cargo,
Noting the letters to the Secretary-General from the
Secretary-General of the IMO dated 5 July 2007 and 18
September 2007 regarding the piracy problems off the coast of
Somalia and the IMO Assembly resolution A.1002 (25), which
strongly urged Governments to increase their efforts to prevent
and repress, within the provisions of international law, acts of
piracy and armed robbery against vessels irrespective of where
such acts occur, and recalling the joint communiqué of the IMO
and the World Food Programme of 10 July 2007,
Taking note of the Secretary-General’s letter of 9
November 2007 to the President of the Security Council
reporting that the Transitional Federal Government of Somalia
(TFG) needs and would welcome international assistance to
address the problem,
Taking further note of the letter from the Permanent
Representative of the Somali Republic to the United Nations to
the President of the Security Council dated 27 February 2008,
conveying the consent of the TFG to the Security Council for
urgent assistance in securing the territorial and international
waters off the coast of Somalia for the safe conduct of shipping
and navigation,
Determining that the incidents of piracy and armed
robbery against vessels in the territorial waters of Somalia and
the high seas off the coast of Somalia exacerbate the situation
in Somalia which continues to constitute a threat to
international peace and security in the region,
Acting under Chapter VII of the Charter of the United
Nations,
1.
Condemns and deplores all acts of piracy and armed
robbery against vessels in territorial waters and the high seas
off the coast of Somalia;
2.
Urges States whose naval vessels and military
aircraft operate on the high seas and airspace off the coast of
Somalia to be vigilant to acts of piracy and armed robbery and,
in this context, encourages, in particular, States interested in
the use of commercial maritime routes off the coast of Somalia,
to increase and coordinate their efforts to deter acts of piracy
and armed robbery at sea in cooperation with the TFG;
3.
Urges all States to cooperate with each other, with
the IMO and, as appropriate, with the relevant regional
organizations in connection with, and share information about,
acts of piracy and armed robbery in the territorial waters and
on the high seas off the coast of Somalia, and to render
assistance to vessels threatened by or under attack by pirates or
armed robbers, in accordance with relevant international law;
357
4.
Further urges States to work in cooperation with
interested organizations, including the IMO, to ensure that
vessels entitled to fly their flag receive appropriate guidance
and training on avoidance, evasion, and defensive techniques
and to avoid the area whenever possible;
5.
Calls upon States and interested organizations,
including the IMO, to provide technical assistance to Somalia
and nearby coastal States upon their request to enhance the
capacity of these States to ensure coastal and maritime security,
including combating piracy and armed robbery off the Somali
and nearby coastlines;
6.
Affirms that the measures imposed by paragraph 5
of resolution 733 (1992) and further elaborated upon by
paragraphs 1 and 2 of resolution 1425 (2002) do not apply to
supplies of technical assistance to Somalia solely for the
purposes set out in paragraph 5 above which have been
exempted from those measures in accordance with the
procedure set out in paragraphs 11 (b) and 12 of resolution 1772
(2007);
7.
Decides that for a period of six months from the date
of this resolution, States cooperating with the TFG in the fight
against piracy and armed robbery at sea off the coast of
Somalia, for which advance notification has been provided by
the TFG to the Secretary-General, may:
(a) Enter the territorial waters of Somalia for the
purpose of repressing acts of piracy and armed robbery at sea,
in a manner consistent with such action permitted on the high
seas with respect to piracy under relevant international law; and
(b) Use, within the territorial waters of Somalia, in a
manner consistent with action permitted on the high seas with
respect to piracy under relevant international law, all necessary
means to repress acts of piracy and armed robbery;
8.
Requests that cooperating states take appropriate
steps to ensure that the activities they undertake pursuant to the
authorization in paragraph 7 do not have the practical effect of
denying or impairing the right of innocent passage to the ships
of any third State;
9.
Affirms that the authorization provided in this
resolution applies only with respect to the situation in Somalia
and shall not affect the rights or obligations or responsibilities
of member states under international law, including any rights
or obligations under the Convention, with respect to any other
situation, and underscores in particular that it shall not be
considered as establishing customary international law, and
affirms further that this authorization has been provided only
following receipt of the letter from the Permanent
Representative of the Somalia Republic to the United Nations
to the President of the Security Council dated 27 February 2008
conveying the consent of the TFG;
10. Calls upon States to coordinate their actions with
other participating States taken pursuant to paragraphs 5 and 7
above;
358
11. Calls upon all States, and in particular flag, port and
coastal States, States of the nationality of victims and
perpetrators or piracy and armed robbery, and other States with
relevant jurisdiction under international law and national
legislation, to cooperate in determining jurisdiction, and in the
investigation and prosecution of persons responsible for acts of
piracy and armed robbery off the coast of Somalia, consistent
with applicable international law including international
human rights law, and to render assistance by, among other
actions, providing disposition and logistics assistance with
respect to persons under their jurisdiction and control, such
victims and witnesses and persons detained as a result of
operations conducted under this resolution;
12. Requests States cooperating with the TFG to inform
the Security Council within 3 months of the progress of actions
undertaken in the exercise of the authority provided in
paragraph 7 above;
13. Requests the Secretary-General to report to the
Security Council within 5 months of adoption of this resolution
on the implementation of this resolution and on the situation
with respect to piracy and armed robbery in territorial waters
and the high seas off the coast of Somalia;
14. Requests the Secretary-General of the IMO to brief
the Council on the basis of cases brought to his attention by the
agreement of all affected coastal states, and duly taking into
account the existing bilateral and regional cooperative
arrangements, on the situation with respect to piracy and armed
robbery;
15. Expresses its intention to review the situation and
consider, as appropriate, renewing the authority provided in
paragraph 7 above for additional periods upon the request of
the TFG;
16.
Decides to remain seized of the matter.
359
APPENDIX
IX
______
REVISED CODE OF CONDUCT CONCERNING THE REPRESSION OF PIRACY,
ARMED ROBBERY AGAINST SHIPS, AND ILLICIT MARITIME ACTIVITY IN
THE WESTERN INDIAN OCEAN AND THE GULF OF ADEN AREA
The Governments of Comoros, Djibouti, Egypt, Eritrea, Ethiopia, France, Jordan, Kenya,
Madagascar, Maldives, Mauritius, Mozambique, Oman, Saudi Arabia, Seychelles,
Somalia, South Africa, Sudan, the United Arab Emirates, the United Republic of Tanzania
and Yemen (hereinafter referred to as "the Participants"),
RECOGNIZING the need to develop and revise the existing Djibouti Code of Conduct in
view of increasing threats to maritime activities,
CONSIDERING the relevant provisions of United Nations General Assembly resolution
70/1 on Transforming our world: the 2030 Agenda for Sustainable Development, including
the Sustainable Development Goals detailed therein and, in particular, Goal 14 "Conserve
and sustainably use the oceans, seas and marine resources for sustainable development"
and Goal 16 "Promote peaceful and inclusive societies for sustainable development,
provide access to justice for all and build effective, accountable and inclusive institutions
at all levels";
CONVINCED THAT international seaborne trade between Participants and other States,
developing efficient ports and infrastructure, nurturing national shipping lines and
promoting seafaring as a career, and developing the "blue economy", that is managing and
protecting fisheries, securing offshore energy production, and creating the stable conditions
that encourage investment and tourism, will help to ensure sustainable economic growth,
food security, employment, prosperity and stability;
DEEPLY CONCERNED about the crimes of piracy, armed robbery against ships and other
illicit maritime activity, including fisheries crime, in the Western Indian Ocean and the
Gulf of Aden and the grave dangers to the safety and security of persons and ships at sea
and to the protection of the marine environment arising from such acts;
REAFFIRMING that international law, as reflected in UNCLOS, sets out the legal
framework applicable to maritime economic development, maritime governance and
maritime law enforcement, including combating piracy, armed robbery at sea and other
illicit maritime activity;
RECALLING that the Assembly of the International Maritime Organization (hereinafter
referred to as "IMO"), at its twenty-fifth regular session, adopted, on 27 November 2007,
resolution A.1002(25) on Piracy and armed robbery against ships in waters off the coast of
Somalia which, among other things, called upon Governments in the region to conclude,
in cooperation with IMO, and implement, as soon as possible, a regional agreement to
prevent, deter and suppress piracy and armed robbery against ships;
RECALLING FURTHER that this led to the development of the Code of conduct
concerning the repression of piracy and armed robbery against ships in the western Indian
Ocean and the Gulf of Aden (the Djibouti Code of Conduct), adopted on 29 January 2009;
360
NOTING that the General Assembly of the United Nations, at its seventy-first session,
adopted, on 23 December 2016, resolution 71/257 on Oceans and the law of the sea which
amongst others:
- recognizes the crucial role of international cooperation at the global, regional,
sub-regional and bilateral levels in combating, in accordance with international
law, threats to maritime security, including piracy, armed robbery at sea, terrorist
acts against shipping, offshore installations and other maritime interests, through
bilateral and multilateral instruments and mechanisms aimed at monitoring,
preventing and responding to such threats, the enhanced sharing of information
among States relevant to the detection, prevention and suppression of such threats,
the prosecution of offenders with due regard to national legislation and the need
for sustained capacity-building to support such objectives;
- emphasizes the importance of promptly reporting incidents to enable accurate
information on the scope of the problem of piracy and armed robbery against ships
at sea and, in the case of armed robbery against ships at sea, by affected vessels to
the coastal State, underlines the importance of effective information sharing with
States potentially affected by incidents of piracy and armed robbery against ships
at sea, and notes with appreciation the important role of the International Maritime
Organization; - calls upon States to take appropriate steps under their national law
to facilitate the apprehension and prosecution of those who are alleged to have
committed acts of piracy;
- recognizes that some transnational organized criminal activities threaten
legitimate uses of the oceans and endanger the lives of people at sea, as well as the
livelihoods and security of coastal communities; - notes with concern the
continuing problem of transnational organized crime committed at sea, including
illicit traffic in narcotic drugs and psychotropic substances, the smuggling of
migrants, trafficking in persons and illicit trafficking in firearms, and threats to
maritime safety and security, including piracy, armed robbery at sea, smuggling
and terrorist acts against shipping, offshore installations and other maritime
interests, and noting the deplorable loss of life and adverse impact on international
trade, energy security and the global economy resulting from such activities;
- recognizes the importance of enhancing international cooperation at all levels to
fight transnational organized criminal activities, including illicit traffic in narcotic
drugs and psychotropic substances, within the scope of the United Nations
instruments against illicit drug trafficking, as well as the smuggling of migrants,
trafficking in persons and illicit trafficking in firearms and criminal activities at sea
falling within the scope of the United Nations Convention against Transnational
Organized Crime; - recognizes that illicit trafficking in wildlife is, in some cases,
committed by transnational organized criminal groups using maritime routes,
contributes to damage to ecosystems and livelihoods and requires enhanced
regional and global cooperation and coordination in response, in accordance with
international law;
- urges all States, in cooperation with the IMO, to actively combat piracy and armed
robbery at sea by adopting measures, including those relating to assistance with
capacity-building through training of seafarers, port staff and enforcement
personnel in the prevention, reporting and investigation of incidents, by bringing
the alleged perpetrators to justice, in accordance with international law, and by
adopting national legislation, as well as providing enforcement vessels and
equipment and guarding against fraudulent ship registration; and
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- welcomes the recent achievements against piracy and armed robbery at sea off
the coast of Somalia resulting from efforts at the global and regional levels and the
significant decrease in reported incidents of piracy off the coast of Somalia, which
are at the lowest level since 2006, in this regard continues to be gravely concerned
by the ongoing threat that piracy and armed robbery at sea continue to pose in the
region off the coast of Somalia;
NOTING that the General Assembly of the United Nations, at its seventy-first session,
adopted, on 7 December 2016, resolution 71/123 on Sustainable fisheries, including
through the 1995 Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 relating to the
Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish
Stocks, and related instruments; NOTING ALSO that through resolution 71/123, the
General Assembly of the United Nations, inter alia, emphasized once again its serious
concern that illegal, unreported and unregulated fishing remains one of the greatest threats
to fish stocks and marine ecosystems and continues to have serious and major implications
for the conservation and management of ocean resources, as well as the food security and
the economies of many States, particularly developing States, and renewed its call upon
States to comply fully with all existing obligations and to combat such fishing and urgently
to take all steps necessary to implement the International Plan of Action to Prevent, Deter
and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU); and noted with
satisfaction the recent ratifications, acceptances and approval of and accessions to the
Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and
Unregulated Fishing (PSMA) of the Food and Agriculture Organization of the United
Nations (FAO), which have resulted in the entry into force of that Agreement;
NOTING FURTHER that the Security Council of the United Nations has adopted a number
of resolutions in relation to piracy and armed robbery in waters off the coast of Somalia,
transnational organized crime in the maritime domain, and other illicit maritime activity;
RECALLING the Assembly of IMO, at its twenty-second regular session, adopted, on 29
November 2001, resolution A.922(22) on the Code of Practice for the Investigation of the
Crimes of Piracy and Armed Robbery against Ships which amongst others invited
Governments to develop, as appropriate, agreements and procedures to facilitate
cooperation in applying efficient and effective measures to prevent acts of piracy and armed
robbery against ships;
TAKING INTO ACCOUNT the Special measures to enhance maritime security adopted
on 12 December 2002 by the Conference of Contracting Governments to the International
Convention for the Safety of Life at Sea, 1974 as amended (SOLAS), including the
International Ship and Port Facility Security (ISPS) Code; INSPIRED by the Regional
Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia
adopted in Tokyo, Japan on 11 November 2004, the original text of the Djibouti Code of
Conduct adopted in Djibouti on 29 January 2009, and the Code of conduct concerning the
repression of piracy, armed robbery against ships and illicit maritime activity in west and
central Africa adopted in Yaoundé, Cameroon on 25 June 2013;
RECOGNIZING the urgent need to devise and adopt effective and practical measures for
the suppression of piracy, armed robbery against ships, illegal, unreported and unregulated
fishing and other illicit maritime activity;
RECALLING that the Convention for the Suppression of Unlawful Acts Against the Safety
of Maritime Navigation, 1988 and 2005 and the associated Protocols for the Suppression
of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf
(hereinafter referred to as "SUA Treaties") provide for parties to make the offences set forth
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in it punishable by appropriate penalties, establish jurisdiction, and accept the delivery of
persons responsible for or suspected of seizing or exercising control over a ship by force
or threat thereof or any other form of intimidation; DESIRING to promote greater regional
cooperation between the Participants, both coastal States and landlocked States, and
thereby enhance their effectiveness, in the prevention, interdiction, prosecution, and
punishment of those persons engaging in piracy and armed robbery against ships on the
basis of mutual respect for the sovereignty, sovereign rights, sovereign equality,
jurisdiction, and territorial integrity of States;
WELCOMING the initiatives of IMO, the United Nations Office on Drugs and Crime, the
United Nations Development Programme, the African Union, the European Union, the
European Commission, the Indian Ocean Commission, the League of Arab States, the
North Atlantic Treaty Organization, donor States and other relevant international entities
to provide training, technical assistance and other forms of capacity building to assist
Governments, upon request, to adopt and implement practical measures to apprehend and
prosecute those persons engaging in transnational organized crime in the maritime domain,
maritime terrorism, and illegal, unreported, and unregulated (IUU) fishing;
NOTING FURTHER the need for a comprehensive approach to address the poverty and
instability that create conditions conducive to piracy, which includes strategies for effective
environmental conservation and fisheries management, and the need to address the possible
environmental consequences of piracy;
CONVINCED that the following Code of conduct will promote regional maritime
cooperation and a stable maritime environment, contribute to the peace, good order and
continuing prosperity of the western Indian Ocean and the Gulf of Aden area;
Have agreed as follows:
ARTICLE 1
DEFINITIONS
For the purposes of this Code of conduct, unless the context otherwise requires:
1.
2.
3
"Piracy" consists of any of the following acts: (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; - 38 - (ii) against a ship, aircraft, 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).
"Armed robbery against ships" consists of any of the following acts: (a) unlawful
act of violence or detention or any act of depredation, or threat thereof, other than
an act of piracy, committed for private ends and directed against a ship or against
persons or property on board such a ship, within a State's internal waters,
archipelagic waters and territorial sea; (b) any act of inciting or of intentionally
facilitating an act described in subparagraph (a).
As defined in the International Plan of Action to Prevent, Deter and Eliminate
Illegal, Unreported and Unregulated Fishing:
3.1
Illegal fishing refers to activities:
3.1.1 conducted by national or foreign vessels in waters under the
jurisdiction of a State, without the permission of that State, or in
contravention of its laws and regulations;
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3.1.2
4
5
conducted by vessels flying the flag of States that are parties to a
relevant regional fisheries management organization but operate
in contravention of the conservation and management measures
adopted by that organization and by which the States are bound,
or relevant provisions of the applicable international law; or
3.1.3 in violation of national laws or international obligations, including
those undertaken by cooperating States to a relevant regional
fisheries management organization.
3.2
Unreported fishing refers to fishing activities:
3.2.1 which have not been reported, or have been misreported, to the
relevant national authority, in contravention of national laws and
regulations; or
3.2.2 undertaken in the area of competence of a relevant regional
fisheries management organization which have not been reported
or have been misreported, in contravention of the reporting
procedures of that organization.
3.3
Unregulated fishing refers to fishing activities:
3.3.1 in the area of application of a relevant regional fisheries
management organization that are conducted by vessels without
nationality, or by those flying the flag of a State not party to that
organization, or by a fishing entity, in a manner that is not
consistent with or contravenes the conservation and management
measures of that organization; or
3.3.2 in areas or for fish stocks in relation to which there are no
applicable conservation or management measures and where such
fishing activities are conducted in a manner inconsistent with State
responsibilities for the conservation of living marine resources
under international law.
For the purposes of this Code of conduct, "Transnational organized crime in the
maritime domain" consists of any of the following acts when committed at sea:
(a) trafficking in arms, (b) trafficking in narcotics and psychotropic substances, (c)
illegal trade in wildlife and other items in contravention of the Convention on
International Trade in Endangered Species of Wild Fauna and Flora, (d) piracy and
armed robbery against ships, (e) illegal oil bunkering, (f) crude oil theft, (g) human
trafficking, (h) human smuggling, (i) illegal dumping of toxic waste.
"Secretary-General" means the Secretary-General of the International Maritime
Organization.
ARTICLE 2
PURPOSE AND SCOPE
1.
Consistent with their available resources and related priorities, their respective
national laws and regulations, and applicable rules of international law, the
Participants intend to cooperate to the fullest possible extent in the repression of
transnational organized crime in the maritime domain, maritime terrorism, IUU
fishing and other illegal activities at sea with a view towards:
(a)
(b)
(c)
sharing and reporting relevant information;
interdicting ships and/or aircraft suspected of engaging in transnational
organized crime in the maritime domain, maritime terrorism, IUU fishing
and other illegal activities at sea;
ensuring that persons committing or attempting to commit transnational
organized crime in the maritime domain, maritime terrorism, IUU fishing
and other illegal activities at sea are apprehended and prosecuted; and
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(d)
2.
facilitating proper care, treatment, and repatriation for seafarers,
fishermen, other shipboard personnel and passengers subject to
transnational organized crime in the maritime domain, maritime terrorism,
IUU fishing and other illegal activities at sea, particularly those who have
been subjected to violence.
The Participants intend this Code of conduct to be applicable in relation to
transnational organized crime in the maritime domain, maritime terrorism, IUU
fishing and other illegal activities at sea in the Western Indian Ocean and the Gulf
of Aden area.
3.
The Participants shall carry out their obligations and responsibilities under this
Code of conduct in a manner consistent with the principles of sovereign equality
and territorial integrity of States and that of non-intervention in the domestic affairs
of other States.
4.
Operations to suppress transnational organized crime in the maritime domain,
maritime terrorism, IUU fishing and other illegal activities at sea in and over the
territorial sea of a Participant are the responsibility of, and subject to the sovereign
authority of that Participant.
ARTICLE 3
MEASURES AT THE NATIONAL LEVEL
1.
The Participants intend to develop and implement, as necessary:
(a)
(b)
(c)
(d)
A national strategy for the development of the maritime sector and a
sustainable "blue economy" that generates revenue, employment and
stability;
Appropriate national maritime security policies to safeguard maritime
trade from all forms of unlawful acts;
National legislation, practices and procedures, informed by national
maritime threat assessments, which together provide the security necessary
for the safe and secure operation of port facilities and ships at all security
levels; and
National legislation which ensures effective protection of the marine
environment and sustainable management of marine living resources,
2.
The Participants intend to establish, as necessary, a multi-agency, multidisciplinary national maritime security and facilitation committee or other system
for coordinating the related activities between the departments, agencies, control
authorities, and other organizations of the State, port operators, Companies and
other entities concerned with, or responsible for the implementation of, compliance
with, and enforcement of, measures to fight transnational organized crime in the
maritime domain, maritime terrorism, IUU fishing and other illegal activities at
sea.
3.
The Participants intend to establish designated authorities for maritime security
ashore, including, establishing in all national ports, port security and facilitation
committees charged with implementing national policies on security, border
controls, health and safety and trade facilitation, pursuant to relevant international
conventions and agreements.
4.
The Participants intend to establish, as necessary, a national maritime security plan
with related contingency plans (or other system) for harmonizing and coordinating
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the implementation of security measures designed to enhance the security in the
international maritime transport sector with those of other modes of transport.
5.
The Participants intend to prosecute, in their domestic courts and in accordance
with relevant domestic laws, perpetrators of all forms of piracy and unlawful acts,
including IUU fishing, against seafarers, ships, port facility personnel and port
facilities,
6.
The organization and functioning of this national system is exclusively the
responsibility of each State, in conformity with applicable laws and regulations.
ARTICLE 4
PROTECTION MEASURES FOR SHIPS
The Participants intend to encourage States, ship owners, and ship operators, where
appropriate, to take protective measures against transnational organized crime in the
maritime domain, maritime terrorism, and other illegal activities at sea, taking into account
the relevant international Conventions, Codes, Standards and Recommended Practices, and
guidance adopted by IMO and the maritime industry. The Participants intend to cooperate
in the implementation of measures to protect ships.
ARTICLE 5
MEASURES TO REPRESS PIRACY
1.
2.
3.
4.
5.
6.
7.
The provisions of this Article are intended to apply only to piracy.
For purposes of this Article and of Article 12, pirate ship means a ship intended by
the persons in dominant control to be used for the purpose of committing piracy,
or if the ship has been used to commit any such act, so long as it remains under the
control of those persons.
Consistent with Article 2, each Participant to the fullest possible extent intends to
cooperate in:
(a)
arresting, investigating, and prosecuting persons who have committed
piracy or are reasonably suspected of committing piracy;
(b)
seizing pirate ships and/or aircraft and the property on board such ships
and/or aircraft; and
(c)
rescuing ships, persons, and property subject to piracy. 1 Such conventions
and agreements could include, but are not limited to, the Special measures
to enhance maritime security detailed in SOLAS chapter XI-2 and the ISPS
Code; the Convention on the Facilitation of International Maritime
Transport, 1965, as amended; and the ILO/IMO Code of Practice on
Security in Ports .
Any Participant may seize a pirate ship beyond the outer limit of any State's
territorial sea, and arrest the persons and seize the property on board.
Any pursuit of a ship, where there are reasonable grounds to suspect that the ship
is engaged in piracy, extending in and over the territorial sea of a Participant is
subject to the authority of that Participant. No Participant should pursue such a ship
in or over the territory or territorial sea of any coastal State without the permission
of that State.
Consistent with international law, the courts of the Participant which carries out a
seizure pursuant to paragraph 4 may decide upon the penalties to be imposed, and
may also determine the action to be taken with regard to the ship or property,
subject to the rights of third parties acting in good faith.
The Participant which carried out the seizure pursuant to paragraph 4 may, subject
to its national laws, and in consultation with other interested entities, waive its
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8.
primary right to exercise jurisdiction and authorize any other Participant to enforce
its laws against the ship and/or persons on board.
Unless otherwise arranged by the affected Participants, any seizure made in the
territorial sea of a Participant pursuant to paragraph 5 should be subject to the
jurisdiction of that Participant.
ARTICLE 6
MEASURES TO REPRESS ARMED ROBBERY AGAINST SHIPS
1.
2.
3.
The provisions of this Article are intended to apply only to armed robbery against
ships.
The Participants intend for operations to suppress armed robbery against ships in
the territorial sea and airspace of a Participant to be subject to the authority of that
Participant, including in the case of hot pursuit from that Participant's territorial
sea or archipelagic waters in accordance with Article 111 of UNCLOS.
The Participants intend for their respective focal points and Centres (as designated
pursuant to Article 11) to communicate expeditiously alerts, reports, and
information related to armed robbery against ships to other Participants and
interested parties.
ARTICLE 7
MEASURES TO REPRESS ILLEGAL, UNREPORTED AND UNREGULATED FISHING AND
ASSOCIATED CRIMES
1
The Participants intend to consult at the bilateral and sub-regional levels in the
formulation and harmonization of policies to ensure the sustainable use of marine
living resources that straddle national maritime zones, or which are highly
migratory, or occur on the high seas. Participants shall develop and harmonize
measures particularly on:
(a)
Port state measures, including ratification, approval and accession to the
Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal,
Unreported and Unregulated Fishing (PSMA);
(b)
Mandatory vessel tracking, such as vessel monitoring systems (VMS) and
automatic identification systems (AIS) for all vessels fishing outside of
their national jurisdiction;
(c)
Mechanisms for sharing VMS information from these systems through
secure channels with appropriate authorities; (d) Mandatory identification
of all vessels fishing outside of their national jurisdiction and keeping of
accurate and updated national vessel registers;
(e)
Ensure a due diligence process for their vessels intending to fish in waters
outside their national jurisdiction i.e. inside national waters of a third
country and/or in the High Seas;
(f)
Strict regulation of transhipment activities, particularly at sea;
(g)
Control over the activities of nationals involved in fishing activities
independently of the nationality of the vessel, or the waters they fish in;
(h)
Ensuring compliance with flag State obligations as described in FAO
Voluntary Guidelines on Flag State performance.
2
The Participants intend to cooperate and collaborate among themselves and with
the sub-regional fisheries bodies, the FAO and other relevant international
organizations on preventing and combating illegal, unreported and unregulated
fishing, and associated crimes to protect fisheries resources for sustainable long
term utilization to sustain livelihoods in the Western Indian Ocean and the Gulf of
Aden area. In particular, the Participants intend to:
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(a)
(b)
(c)
Integrate activities related to combating IUU fishing in other international,
regional and sub-regional initiatives related to repressing transnational
organized crime in the maritime domain, maritime terrorism, and other
illegal activities at sea;
Participate fully in relevant international projects and initiatives, such as
INTERPOL Environmental Crime Project Scale, an international initiative
to detect, suppress and combat fisheries crimes;
Form Task Forces or other mechanisms to facilitate the sharing and
analysis of information and intelligence, and collaborative action against
illegal operators within the fisheries sector to include cooperation with
other agencies, bodies and States relevant to crimes in the fisheries
domain.
ARTICLE 8
MEASURES IN ALL CASES
1.
The Participants intend that any measures taken pursuant to this Code of conduct
should be carried out by law enforcement or other authorized officials from
warships or military aircraft, or from other ships or aircraft clearly marked and
identifiable as being in government service and authorized to that effect.
2.
The Participants recognize that multiple States, including the flag State, State of
suspected origin of the perpetrators, the State of nationality of persons on board
the ship, and the State of ownership of cargo may have legitimate interests in cases
arising pursuant to Articles 5 and 6. Therefore, the Participants intend to liaise and
cooperate with such States and other stakeholders, and to coordinate such activities
with each other to facilitate the rescue, interdiction, investigation, and prosecution.
3.
The Participants intend, to the fullest possible extent, to conduct and support the
conduct of investigations in cases of transnational organized crime in the maritime
domain, maritime terrorism, IUU fishing and other illegal activities at sea taking
into account the relevant international standards and practices, and, in particular,
recommendations 2 adopted by IMO.
4.
The Participants intend to cooperate to the fullest possible extent in medical and
decedent affairs arising from operations in furtherance of the repression of piracy
and armed robbery against ships.
ARTICLE 9
EMBARKED OFFICERS
1.
In furtherance of operations contemplated by this Code of conduct, a Participant
(hereafter referred to as "the designating Participant") may nominate law
enforcement or other authorized officials (hereafter referred to as "the embarked
officers") to embark in the patrol ships or aircraft of another Participant (hereafter
referred to as "the host Participant") as may be authorized by the host Participant.
2.
The embarked officers may be armed in accordance with their national law and
policy and the approval of the host Participant.
3.
When embarked, the host Participant should facilitate communications between
the embarked officers and their headquarters, and should provide messing and
quarters for the embarked officers aboard the patrol ships or aircraft in a manner
consistent with host Participant personnel of the same rank.
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4.
Embarked officers may assist the host Participant and conduct operations from the
host Participant ship or aircraft if expressly requested to do so by the host
Participant, and only in the manner requested. Such request may only be made,
agreed to, and acted upon in a manner that is not prohibited by the laws and policies
of both Participants.
5.
When duly authorized by the host participant, embarked officers may:
(a)
(b)
(c)
(d)
(e)
(f)
embark on law enforcement vessels of any of the Participants;
enforce the laws of the designating Participant to suppress transnational
organized crime in the maritime domain, maritime terrorism, IUU fishing,
and other illegal activities at sea in the waters of the designating
Participant, or seaward of its waters in the exercise of the right of hot
pursuit or otherwise in accordance with international law;
authorize the entry of the law enforcement vessels on which they are
embarked into and navigation within the waters of the designating
Participant;
authorize the law enforcement vessels on which they are embarked to
conduct patrols in the waters of the designating Participant; 2 Resolution
A.922(22) on the Code of Practice for the Investigation of the Crimes of
Piracy and Armed Robbery against Ships as it may be revised.
authorize law enforcement officials of the vessel on which the embarked
officer is embarked to assist in the enforcement of the laws of the
designating Participant to suppress transnational organized crime in the
maritime domain, maritime terrorism, IUU fishing, and other illegal
activities at sea; and
advise and assist law enforcement officials of the other Participant in the
conduct of boarding of vessels to enforce the laws of the other Participant
to suppress transnational organized crime in the maritime domain,
maritime terrorism, IUU fishing, and other illegal activities at sea.
ARTICLE 10
ASSET SEIZURE AND FORFEITURE
1.
Assets seized, confiscated or forfeited in consequence of any law enforcement
operation pursuant to this Code of conduct, undertaken in the waters of a
Participant, should be disposed of in accordance with the laws of that Participant.
2.
Should a flag State Participant have consented to the exercise of jurisdiction by
another Participant pursuant to Article 13, assets seized, confiscated or forfeited in
consequence of any law enforcement operation of any Participant pursuant to this
Code of conduct should be disposed of in accordance with the laws of the boarding
Participant.
3.
To the extent permitted by its laws and upon such terms as it deems appropriate, a
Participant may, in any case, transfer forfeited property or proceeds of their sale to
another Participant or an intergovernmental body specialising in the fight against
transnational organized crime in the maritime domain, maritime terrorism, and
other illegal activities at sea.
ARTICLE 11
COORDINATION AND INFORMATION SHARING
1.
Each Participant should designate a national focal point to represent the national
maritime security and facilitation committee and to facilitate coordinated, timely,
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and effective information flow among the Participants consistent with the purpose
and scope of this Code of conduct. In order to ensure coordinated, smooth, and
effective communications between their designated focal points, the Participants
intend to use the piracy information exchange centres Kenya, United Republic of
Tanzania and Yemen (hereinafter referred to as "the Centres"). The Centres in
Kenya and the United Republic of Tanzania are situated in the maritime rescue
coordination centre in Mombasa and the sub-regional coordination centre in Dar
es Salaam, respectively. The Centre in Yemen is situated in the Regional Maritime
Information Sharing Centre (ReMISC) in Sana'a. Each Centre and designated focal
point should be capable of receiving and responding to alerts and requests for
information or assistance at all times. Participants are also encouraged to make full
use of other national and regional initiatives that promote communication,
coordination and cooperation, both civilian and military.
2.
Each Participant intends to:
(a)
(b)
(c)
declare and communicate to the other Participants its designated focal
point(s) at the time of signing this Code of conduct or as soon as possible
after signing, and thereafter update the information as and when changes
occur;
provide and communicate to the other Participants the telephone numbers,
telefax numbers, and e-mail addresses of its focal point, and, as
appropriate, of its Centre and thereafter update the information as and
when changes occur; and
communicate to the Secretary-General the information referred to in
subparagraphs (a) and (b) and thereafter update the information as and
when changes occur.
3.
Each Centre and focal point should be responsible for its communication with the
other focal points and the Centres. Any focal point which has received or obtained
information about an imminent threat of, or an incident of, transnational organized
crime in the maritime domain, maritime terrorism, IUU fishing, and other illegal
activities at sea, or any other action that requires an urgent response including
shipping accidents, should promptly disseminate an alert with all relevant
information to the Centres. The Centres should disseminate appropriate alerts
within their respective areas of responsibility regarding imminent threats or
incidents to ships.
4.
Each Participant should ensure the smooth and effective communication between
its designated focal point, the national maritime security and facilitation committee
and competent national authorities for maritime safety, security, and protection of
the marine environment as well as relevant non-governmental organizations.
5.
Each Participant should make every effort to require ships entitled to fly its flag
and the owners and operators of such ships to promptly notify relevant national
authorities, including the designated focal points and Centres, the appropriate
search and rescue coordination centres and other relevant the contact points of
incidents of transnational organized crime in the maritime domain, maritime
terrorism, IUU fishing, and other illegal activities at sea.
6.
Each Participant intends, upon the request of any other Participant, to respect the
confidentiality of information transmitted from a Participant.
7.
To facilitate implementation of this Code of conduct, the Participants intend to
keep each other fully informed concerning their respective applicable laws and
370
guidance, particularly those pertaining to the interdiction, apprehension,
investigation, prosecution, and disposition of persons involved in transnational
organized crime in the maritime domain, maritime terrorism, IUU fishing, and
other illegal activities at sea. The Participants may also undertake and seek
assistance to undertake publication of handbooks and convening of seminars and
conferences in furtherance of this Code of conduct.
ARTICLE 12
INCIDENT REPORTING
1.
The Participants intend to undertake development of uniform reporting criteria in
order to ensure that an accurate assessment of the threat of transnational organized
crime in the maritime domain, maritime terrorism, IUU fishing, and other illegal
activities at sea in the Western Indian Ocean and the Gulf of Aden is developed.
Such reporting criteria should take into account the recommendations adopted by
IMO. The Participants intend for the Centres to manage the collection and
dissemination of this information in their respective geographic areas of
responsibility. 3 For example the Maritime Liaison Office Bahrain (MARLO), the
United Kingdom Maritime Trade Office Dubai (UKMTO), the Maritime Security
Centre-Horn of Africa (MSCHOA), the NATO Shipping Centre, the Seychelles
Coast Guard and centre in Madagascar. 4 MSC/Circ.1333/Rev.1 on
Recommendations to Governments for preventing and suppressing piracy and
armed robbery against ships as it may be revised. 5 MSC/Circ.1334 on Guidance
to shipowners and ship operators, shipmasters and crews on preventing and
suppressing acts of piracy and armed robbery against ships as it may be revised.
2.
Consistent with its laws and policies, a Participant conducting a boarding,
investigation, prosecution, or judicial proceeding pursuant to this Code of conduct
should promptly notify any affected flag and coastal States and the SecretaryGeneral of the results.
3.
The Participants intend for the Centres to:
(a)
(b)
collect, collate and analyse the information transmitted by the Participants
concerning transnational organized crime in the maritime domain,
maritime terrorism, IUU fishing, and other illegal activities at sea,
including other relevant information relating to individuals and
transnational organized criminal groups committing such acts in their
respective geographical areas of responsibility; and
prepare statistics and reports on the basis of the information gathered and
analysed under subparagraph (a), and to disseminate them to the
Participants, the shipping community, and the Secretary-General.
ARTICLE 13
ASSISTANCE AMONG PARTICIPANTS
1.
A Participant may request any other Participant, through the Centres or directly, to
cooperate in detecting any of the following persons, ships, or aircraft:
(a)
(b)
persons who have committed, or are reasonably suspected of committing,
transnational organized crime in the maritime domain, maritime terrorism,
IUU fishing, and other illegal activities at sea;
pirate ships, where there are reasonable grounds to suspect that those ships
are engaged in piracy;
371
(c)
(d)
other ships or aircraft, where there are reasonable grounds to suspect that
those ships or aircraft are engaged in transnational organized crime in the
maritime domain, maritime terrorism, IUU fishing, or other illegal
activities at sea; and
ships or persons who have been subjected to piracy or armed robbery
against ships.
2.
A Participant may also request any other Participant, through the Centres or
directly, to take effective measures in response to reported acts of transnational
organized crime in the maritime domain, maritime terrorism, IUU fishing, and
other illegal activities at sea.
3.
Cooperative arrangements such as joint exercises or other forms of cooperation, as
appropriate, may be undertaken as determined by the Participants concerned.
4.
Capacity building cooperation may include technical assistance such as
educational and training programmes to share experiences and best practice.
ARTICLE 14
TRAINING AND EDUCATION
1.
The Participants intend to cooperate on the development and promotion of training
and educational programs on security-related matters in respect of the management
of the marine domain, particularly for the maintenance of safety and law and order
at sea, and the preservation and protection of the marine environment and
sustainable use of marine living resources. Such cooperation might include:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
2.
Coordination of training activities through a system of national focal
points and under the Djibouti Regional Maritime Training Centre
Coordination Mechanism;
the offer of places on national training courses to other States, subject to
payment of relevant costs;
sharing curriculum and course information;
the exchange of naval and law enforcement personnel, scientists and other
experts;
the exchange of views on maritime issues;
holding conferences, seminars, workshops and symposia on maritime
subjects of common interest; and
fostering cooperation among maritime training institutions and research
centres
Participants are invited to institute regular meetings to enhance cooperation and
coordination in their maritime enforcement activities.
ARTICLE 15
REVIEW OF NATIONAL LEGISLATION
Participants are encouraged to incorporate in national legislation, transnational organized
crime in the maritime domain, and other illegal activities as defined in Article 1 of this
Code of conduct, in order to ensure, as appropriate, effective indictment, prosecution and
conviction in the territory of the Participants; and to facilitate extradition or handing over
when prosecution is not possible. Each Participant intends to develop adequate guidelines
for the exercise of jurisdiction, conduct of investigations, and prosecution of alleged
offenders.
372
ARTICLE 16
DISPUTE SETTLEMENT
The Participants intend to settle by consultation and peaceful means amongst each other
any disputes that arise from the implementation of this Code of conduct.
ARTICLE 17
CONSULTATIONS
1
Within five years of the effective date of this Code of conduct, and having
established national maritime security and facilitation committees and designated
the national focal points referred to in Article 11, the Participants intend to consult,
with the assistance of IMO, on the merit of developing a binding agreement.
2
The Participants shall engage in regular consultations with each other and with
IMO to review the implementation of this Code of conduct.
ARTICLE 18
CLAIMS
Any claim for damages, injury or loss resulting from an operation carried out under this
Code of conduct should be examined by the Participant whose authorities conducted the
operation. If responsibility is established, the claim should be resolved in accordance with
the national law of that Participant, and in a manner consistent with international law,
including Article 106 and paragraph 3 of Article 110 of UNCLOS.
ARTICLE 19
MISCELLANEOUS PROVISIONS
Nothing in this Code of conduct is intended to:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
create or establish a binding agreement, except as noted in Article 17;
affect in any way the rules of international law pertaining to the competence of
States to exercise investigative or enforcement jurisdiction on board ships not
flying their flag;
affect the immunities of warships and other government ships operated for noncommercial purposes;
apply to or limit boarding of ships conducted by any Participant in accordance with
international law, beyond the outer limit of any State's territorial sea, including
boardings based upon the right of visit, the rendering of assistance to persons, ships
and property in distress or peril, or an authorization from the flag State to take law
enforcement or other action;
preclude the Participants from otherwise agreeing on operations or other forms of
cooperation to repress piracy and armed robbery against ships;
prevent the Participants from taking additional measures to repress transnational
organized crime in the maritime domain, maritime terrorism, IUU fishing, or other
illegal activities at sea through appropriate actions in their land territory;
supersede any bilateral or multilateral agreement or other cooperative mechanism
concluded by the Participants to repress piracy and armed robbery against ships;
alter the rights and privileges due to any individual in any legal proceeding;
create or establish any waiver of any rights that any Participant may have under
international law to raise a claim with any other Participant through diplomatic
channels;
373
(j)
(k)
(l)
(m)
entitle a Participant to undertake in the territory of another Participant the exercise
of jurisdiction and performance of functions which are exclusively reserved for the
authorities of that other Participant by its national law;
prejudice in any manner the positions and navigational rights and freedoms of any
Participant regarding the international law of the sea;
be deemed a waiver, express or implied, of any of the privileges and immunities
of the Participants to this Code of conduct as provided under international or
national law; or
preclude or limit any Participant from requesting or granting assistance in
accordance with the provisions of any applicable Mutual Legal Assistance
Agreement or similar instrument.
ARTICLE 20
RELATIONSHIP BETWEEN THIS CODE OF CONDUCT AND THE DJIBOUTI CODE OF CONDUCT
This revised Code of conduct will supersede the Djibouti Code of Conduct as between the
Participants to this Code of conduct which are also Participants to the Djibouti Code of
Conduct.
ARTICLE 21
SIGNATURE AND EFFECTIVE DATE
1.
2.
The Code of conduct is open for signature by Participants on 12 January 2017 and
at the Headquarters of IMO from 16 January 2017.
The Code of conduct will become effective upon the date of signature by two or
more Participants and effective for subsequent Participants upon their respective
date of deposit of a signature instrument with the Secretary-General.
ARTICLE 22
LANGUAGES
This Code of conduct is established in the Arabic, English and French languages, each text
being equally authentic.
DONE in Jeddah this twelfth day of January two thousand and seventeen.
IN WITNESS WHEREOF the undersigned, being duly authorized by their respective
Governments for that purpose, have signed this Code of conduct. Signed (signatures
omitted) in Jeddah on 12 January 2017 by Comoros, Djibouti, Ethiopia, Jordan,
Madagascar, Maldives, Mozambique, Saudi Arabia, Seychelles, the United Arab Emirates,
the United Republic of Tanzania and Yemen.
374
APPENDIX
X
_______
2050 AFRICA’S INTEGRATED MARITIME STRATEGY (AIM STRATEGY)*
I.
INTRODUCTION
1.
Water covers more than two-thirds of the earth’s surface and affects life
everywhere. As the second biggest continent and the largest island, Africa’s 43
million km² area1 covers one-fifth of the total surface of the earth. Its total length
of coastline, including its islands, is over 26,000 nautical miles. Thirty-eight (38)
African countries are either coastal or island states while fifty-two (52) of its over
one hundred port facilities handle containers and various forms of cargo. Whilst
African owned ships account for about 1.2% of world shipping by number and
about 0.9% by gross tonnage, the ports handle only 6% of worldwide water borne
cargo traffic and approximately 3% of the worldwide container traffic.
2.
International trade is very critical to many African economies, with over 90% of
Africa’s imports and exports conducted by sea. Over the past four decades, the
volume of global sea borne trade has more than quadrupled. Ninety percent of
world trade and two-thirds of energy supplies are carried by sea. The world’s
oceans and seas are interlinked, and action in one sea or one policy area with a
direct or indirect impact on the sea may have positive or negative effects on other
seas and policy areas. Whilst over 46% of Africans live in absolute poverty—a
figure that is still rising—fish makes a vital contribution to the food and nutritional
security of over 200 million Africans and provides income for over 10 million.
Regrettably, Africa’s export of fish and fishery products has not shown significant
improvement in the past decade. Likewise, the increasingly intense use of the
oceans and seas by various sectors, combined with climate change, has added to
the pressure on the marine environment.
3.
The AMD offers all African nations, vast growth opportunities and a network of
sea-lanes of enormous importance for their security and prosperity. It is of huge
importance in terms of natural resources and energy, trade and industry, scientific
and leisure activities. International commerce by water affects people and
industries throughout the entire continent, including landly-connected countries. In
addition, the numerous vessels, ports, shipyards, and support industries in the
AMD provide thousands of jobs for Africans. Clearly, disruptions or inefficiencies
in Africa’s maritime system with its supply chains and industries can thus have
costly impact on a large number of participants in the economies of many African
countries.
4.
Accordingly, the development of AMD requires innovative solutions and careful
management systems to ensure its long-term sustainability, as well as the
implementation of national and international regulations and instruments to
address current challenges amidst new, shifting global dynamics (e.g. shifting
geographic trade patterns, emerging economic powers, environmental dynamics,
etc.).
5.
The Anthem of the AU reads, in part, as follows: “O sons and daughters of Africa,
flesh of the sun and flesh of the sky, let us make Africa the Tree of Life”. To bring
this about, the OAU, which formally became the AU in 2002, set itself the goal to
*
Extracted verbatim from: http://cggrps.org/wp-content/uploads/2050-AIM-Strategy_EN.pdf.
375
build, by the year 2025: 1 Including the 13 million km2 Exclusive Economic Zones
of AU Member States. 9 SKD “A united and integrated Africa2 ; an Africa imbued
with the ideals of justice and peace; an interdependent and robust Africa
determined to map for itself an ambitious strategy; an Africa underpinned by
political, economic, social and cultural integration which would restore to
PanAfricanism its full meaning; an Africa able to make the best of its human and
material resources, and keen to ensure the progress and prosperity of its citizens by
taking advantage of the opportunities offered by a globalized world; an Africa
capable of promoting its values in a world rich in its disparities3 .”
6.
There are seven missions that have been assigned to the AU Commission (AUC)
to bring this vision into reality. They are related and embrace the ideals of peace,
stability and all aspects of security, in particular human security. The seven
missions are to:
i.
ii.
iii.
iv.
v.
vi.
vii.
7.
Establish an effective and responsible AU;
Build consensus around a shared Vision and Agenda in the Continent;
Promote the emergence of societies based on the principles of the rule of
law, good governance and human security;
Promote regional economic cooperation as a foundation for irreversible
integration in the Continent;
Develop integrated infrastructure;
Address the structural causes of poverty and underdevelopment;
Enhance the dynamism of African culture and creativity.
The maritime dimension of the seven missions embraces virtually all major issues
that Africa is confronted with, namely:
i.
ii.
iii.
iv.
Diverse illegal activities which include toxic waste dumping and discharge
of oil, dealing in illicit crude oil, arms and drug trafficking, human
trafficking and smuggling, piracy and armed robbery at sea;
Energy exploitation, climate change, environmental protection and
conservation and safety of life and property at sea;
Research, innovation and development;
Maritime sector development including competitiveness, job creation,
international trade, maritime infrastructure, transport, information,
communication and technology, and logistics;.
8.
For this reason, the time has come for Africa to rethink how to manage her inland
water ways, oceans and seas. They are a key pillar for all AU Member States’
economic and social development, and are vital in the fight against poverty and
unemployment. There is also the urgent imperative to develop a sustainable “blue
economy” initiative which would be a marine version of the green economy, one
that improves African citizens well-being while significantly reducing marine
environmental risks as well as ecological and biodiversity deficiencies.
9.
In view of the above, African Heads of State and Government called upon the AUC
at the 13th Ordinary Session of AU Assembly “to develop a comprehensive and
coherent strategy” They 2 The Africa one is referring to is indeed the whole of
Africa, including its inland waters as well as its adjoining oceans and seas, from
North to South, from East to West without distinction as to race, color and religion.
3 African Union Commission, Strategic Plan of Action for the period 2004 – 2007.
4 Decision [Assembly/AU/Dec.252(XIII)] adopted by the 13th Ordinary Session
of the AU Assembly held in Sirte, Libya, on July 2009. 10 SKD also charged the
RECs/RMs of Africa to develop, coordinate and harmonize policies and strategies;
376
and improve African maritime security and safety standards as well as African
maritime economy for more wealth creation from its oceans and seas, ultimately
ensuring the well-being of African people.
10.
The need for the 2050 AIM Strategy is also inherent in the objectives and principles
of the Constitutive Act (Article 3 and 4). Article 3 of the Protocol relating to the
establishment of the Peace and Security Council (PSC) of the AU provides that the
objectives for which the PSC was established shall include the development of a
Common African Defense and Security Policy (CADSP) for the AU, in accordance
with Article 4(d) of the Constitutive Act.
11.
In line with the aforementioned, the 2050 AIM Strategy is hereby developed as a
tool to address Africa’s maritime challenges for sustainable development and
competitiveness. The Strategy aims to foster more wealth creation from Africa’s
oceans, seas and inland water ways by developing a thriving maritime economy
and realizing the full potential of sea-based activities in an environmentally
sustainable manner. It goes without saying that the preservation of Africa’s marine
environment is vital to growing its GDP, share of global and regional trade,
competitiveness, longterm growth and employment. Accordingly, the
accompanying Plan of Action to the Strategy outlines the required objectives that
are defined by related activities, outcomes, time frames and executing agents. The
objectives cover projections for new institutions and structures, wealth creation
and human resource development, as well as capacity building for maritime
governance.
12.
It is assumed that obvious limitations such as resources, to include the soft power,
as well as capacity and capabilities, could be mitigated with a strong political will
from Africa’s political leadership, reinforced cooperation and effective
coordination of all maritime-related policies at the different decision-making levels
of responsibility. It is further assumed that all related binding legal instruments are
ratified (or under consideration for ratification) and domesticated.
13.
Nothing in this document shall be construed or applied contrary to the sovereignty
of any of the AU Member States in accordance with the principles of international
law.
14.
Before identifying the economic benefits (which are wealth creation from AMD)
and the resources required to implement the strategy, this document will outline a
set of definitions, threats and vulnerabilities in AMD, the Vision Statement of the
2050 AIM Strategy, its Strategic End State, its Strategic Objectives and the
framework for strategic actions.
II.
THREATS AND VULNERABILITIES.
15.
AMD draws attention to a broad array of real and potential threats that could result
in mass casualties and inflict catastrophic economic harm to African States. In
addition to loss of revenue, they could fuel violence and insecurity. Some of them,
such as drug trafficking, could feed corruption, finance the purchase of illegal
weapons, corrupt the youth, pervert democracy/rule of law, distort economies and
destabilize communal life. As the actors threatening Africa’s maritime domain
continue to grow in number and capability, there must be a corresponding African
endeavor to address these at the national, regional and continental levels.
16.
Among others, the threats and vulnerabilities in the AMD include:
377
i.
ii.
iii.
iv.
v.
vi.
III.
17.
Transnational Organized Crimes in the maritime domain (includes Money
Laundering, Illegal Arms and Drug Traffic, Piracy and Armed Robbery at
Sea, Illegal Oil bunkering / Crude Oil Theft along African coasts, Maritime
Terrorism, Human Trafficking, Human Smuggling and Asylum Seekers
Travelling by Sea);
Illegal, Unreported and Unregulated Fishing - IUU Fishing - and
overfishing, and Environmental Crimes (includes deliberate shipwrecking
and oil spillage as well as dumping of toxic wastes);
Natural Disasters, Marine Environmental Degradation and climate change;
Strategic Communications Systems;
Vulnerable legal framework;
Lack of and/or poorly maintained aids to navigation and modern
hydrographic surveys, up-to-date nautical charts and maritime safety
information in a number of AU Member States.
2050 AFRICA’S INTEGRATED MARITIME STRATEGY.
The “2050 Africa’s Integrated Maritime Strategy (2050 AIM Strategy)” consists
of the overarching, concerted and coherent long-term multilayered plans of actions
that will achieve the objectives of the AU to enhance maritime viability for a
prosperous Africa.
IV. VISION STATEMENT.
18.
The overarching vision of the 2050 AIM Strategy is to foster increased wealth
creation from Africa’s oceans and seas by developing a sustainable thriving blue
economy in a secure and environmentally sustainable manner.
V. STRATEGIC END STATE.
19.
Increased wealth creation from AMD that positively contributes to socio-economic
development, as well as increased national, regional and continental stability,
through collaborative, concerted, cooperative, coordinated, coherent and trustbuilding multilayered efforts to build blocks of maritime sector activities in concert
with improving elements of maritime governance.
VI. GOALS.
20.
The 2050 AIM Strategy aims to achieve the following:
i.
ii.
iii.
A comprehensive understanding of existing and potential challenges,
including allocation of resources to identified priorities over a predetermined time-frame.
A comprehensive, concerted, coherent and coordinated approach that
improves maritime conditions with respect to environmental and socioeconomic development as well as the capacity to generate wealth from
sustainable governance of Africa’s seas and oceans.
A common template for the AU, the RECs/RMs, and relevant
Organizations; and Member States, to guide maritime review, budgetary
planning and effective allocation of resources, in order to enhance
maritime viability for an integrated and prosperous Africa. 12 SKD iv. A
business plan that specifies milestones, capacity building targets and
implementation requirements, including technical and financial support
from within Africa and also from development partners.
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VII. STRATEGIC OBJECTIVES.
21.
In keeping with the AU principles and the deep-rooted values enshrined in the
Constitutive Act of the AU with applicable programs, the following objectives will
guide the 2050 AIM Strategy’s activities:
i.
ii.
iii.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
Establish a Combined Exclusive Maritime Zone of Africa (CEMZA)
Engage civil society and all other stakeholders to improve awareness on
maritime issues
Enhance political will at community, national, regional and continental
levels iv. Enhance wealth creation, and regional and international trade
performance through maritime-centric capacity and capability building
Ensure security and safety of maritime transportation systems
Minimize environmental damage and expedite recovery from catastrophic
events
Prevent hostile and criminal acts at sea, and Coordinate/harmonize the
prosecution of the offenders
Protect populations, including AMD heritage, assets and critical
infrastructure from maritime pollution and dumping of toxic and nuclear
waste
Improve Integrated Coastal Zone/Area Management in Africa
Promote the ratification, domestication and implementation of
international legal instruments
Ensure synergies and coherence between sectoral policies within and
between the RECs/RMs
Protect the right of access to sea and freedom of transit of goods for
landlyconnected States.
VIII. PRINCIPLES AND VALUES OF THE 2050 AIM STRATEGY.
22.
In addition to “Think Africa Above All” as enshrined in Article 4 of the
Constitutive Act of the AU, the principles and values informing the 2050 AIM
Strategy are those contained in the aforementioned Article. Information Sharing,
Communication, Collaboration, Cooperation, Capacity-building and Coordination
(IC5) shall remain its guiding philosophies, with the overall objective being to
achieve increased development and integration of the continent.
23.
The start point, as depicted below at the base of the inverted pyramid, is hardly
visible. However, the enduring IC5 within and between the RECs/RMs would
broaden the base and embrace the entire continent. The prospect for Maritime
Viability “consolidation” as depicted will constitute the End State. The “Urgent Vs
Important” matrix will help in setting up a sound prioritization scheme of
implementation for the first 8-year period covering 2010 to 2018.
IX. STAKEHOLDERS.
24.
Stakeholders of improved maritime conditions include AU Member States, local
communities, specialized regional institutions and associations, the African
maritime private sector, strategic development partners and the international
community as a whole. Towards the implementation of the AIM Strategy, the
envisaged expectations of these stakeholders include;
(a)
(b)
(c)
transparency and accountability,
efficient and prudent utilization of resources,
timely and accurate information reports,
379
(d)
(e)
(f)
(g)
advice, guidance and support for institutional functionality and
sustainability,
coordination in the harmonization of the legal and regulatory regimes,
cooperation and coordination, and
effective and timely response to emerging challenges in Africa.
This will require enhanced collaborative, concerted, cooperative, coordinated,
coherent and trust-building multilayered approach among the AU, RECs/RMs,
relevant African organizations, Member States, the private sector as well as
international development partners, in order to promote the AU’s objectives.
25.
Africa’s maritime sector and related areas of capacity building can be further
described using the following activities:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
xiii.
xiv.
xv.
xvii.
xviii.
xix.
xx.
xxi.
Maritime governance;
Maritime commerce;
Maritime defense and security (military and civilian, public and private
protective services);
Maritime education and scientific research (hydrography, oceanography,
fisheries, coastal and inland training, research and transfer of technology);
Maritime tourism (ashore and afloat);
Fisheries and aquaculture industry;
Shipbuilding and ship repair industries;
Maritime transport and auxiliary services;
Wealth creation;
Ports and harbours management;
Maritime safety of navigation (navigational warnings, meteorological
services and warnings, search and rescue services, hydrographic services,
aids to navigation, ships' manning, etc.)
Promotion of African vessel ownership;
Promotion and protection of African shippers' interests;
Promoting welfare of seafarers;
Access to sea and freedom of transit of landly-connected States; xvi.
Offshore exploration and exploitation;
Development of inland water ways;
Maritime infrastructure development.
Promotion of African Classifications societies;
Promotion of a panafrican fleet;
Promotion of an African unified and harmonised Maritime Code.
X. CHALLENGES AND VIABILITY.
26.
The challenge in developing the 2050 AIM Strategy is that it must pass
four viability tests:
i.
ii.
Suitability – The End State must be achievable and consistent with
the Strategy’s Plan of Action, that is, attainment and sustainment
of increased wealth creation from AMD that positively contributes
to environmental and socio-economic development, as well as
increased national, regional and continental stability.
Acceptability – The Strategy must have the support and ownership
of Member States, RECs/RMs, and it must be cost-effective in
implementation.
380
iii.
iv.
Feasibility – The Plan of Action must clearly identify all
resources, including funding requirements for execution within
realistic time-frames.
Compatibility – The Strategy must be compatible with extant
African and internationally agreed maritime instruments and legal
frameworks.
XI. EXISTING REGULATORY FRAMEWORKS AND ON-GOING INITIATIVES.
27.
This 2050 AIM Strategy shall be interpreted and implemented in conjunction with
all relevant AU, national and international regulatory frameworks and on-going
maritime initiatives in Africa, which include, but not limited to:
i.
The specialized regional institutions and associations, Indian Ocean
Memorandum of Understanding (MoU), Mediterranean MoU and the
West and Central Africa MoU on Port State Control (Abuja MoU), which
are instruments signed in response to the global initiative for the
eradication of substandard vessels, working conditions of seafarers and
preservation of marine environment.
ii.
The UN Convention on the contract of international goods transported
wholly or partially by sea (2009 Rotterdam Rules), the UN Convention on
transit trade of landlocked States (1965) and the Convention on the
facilitation of International Maritime Transport (FAL Convention-1965).
iii.
The Maritime Organization of West and Central Africa (MOWCA) MoU
on Establishment of an Integrated Coast Guard Function Network.
iv.
The Sea Power for Africa Symposium (SPAS), a periodical gathering of
African Heads of Navies and Coast Guards.
v.
African Regional Strategy for Disaster Risk Reduction (DRR) initiated by
African Union and its then NEPAD Secretariat6 , in conjunction with the
UN International Strategy for Disaster Reduction, the African
Development Bank (AfDB) and UN Development Programme Bureau for
Crises Prevention and Recovery (UNDP/BCPR), as well as the UN
Environmental Programme (UNEP) and Almaty Action Programme.
vi.
Abuja Declaration on Sustainable Fisheries and Aquaculture in Africa
(2005).
vii.
AU Ouagadougou Action Plan (2007) to Combat Trafficking in human
beings, especially women and children and the ‘AUC Initiative against
Trafficking (AU.COMMIT) Campaign’ (2009), launched by the
Department of Social Affairs of the AUC in partnership with the UN/AU
Social and Human Development Cluster (SHD).
viii.
The Zone "D" Multinational Center of Coordination of Regional Centre
for the Maritime Security of Central African States (CRESMAC).
ix.
The African Maritime Transport Charter (AMTC), 2010, as well as the
Durban resolution on maritime safety, maritime security and protection of
the marine environment in Africa.
xi.
ECCAS Merchant marine Community Code.
xii.
Other significant initiatives such as: a. Agreements on delineation,
delimitation and demarcation of maritime boundaries among Member
States. b. Development and Implementation of Integrated Maritime
Strategies within and among RECs/RMs. c. International counter–piracy
operations and maritime capacity building programmes.
XII. FRAMEWORK FOR STRATEGIC ACTIONS.
28.
In line with the identified objectives and end state of the AIM Strategy, this section
articulates the bases for necessary activities and outcomes that are necessary for
381
the implementation of the Strategy. Consequently, the activities and outcomes,
including execution time frames and the responsible agencies are provided in the
accompanying 2050 AIM Strategy Plan of Action annexed to this document.
a) Combined Exclusive Maritime Zone of Africa (CEMZA).
29.
NEPAD is a programme of the AU and since the formal integration intothe
structures and processes of the AU in January 2012, the NEPAD Secretariat has
since been renamed to the NEPAD Planning and Coordinating Agency (NPCA).
Africa is to establish as appropriate and when permissible, a Combined Exclusive
Maritime Zone of Africa (CEMZA). This will require the establishment of a
dedicated Strategic Special Task Force (S2TF) to prepare the technical file which
will underpin the Solemn Declaration of the CEMZA. The technical file will
include charts presenting the CEMZA limits. CEMZA is expected to grant Africa
enormous cross-cutting geo-strategic, economic, political, social and security
benefits, as it will engender collective efforts and reduce the risks of all
transnational threats, environmental mismanagement, smuggling and arms
trafficking.
30.
The CEMZA, being a common African maritime space without barriers is a
concept which aims at “Boosting intra-African Trade”, eliminating or simplifying
administrative procedures in intra-AU maritime transport, the aim being to make
it more attractive, more efficient and more competitive, and do more to protect the
environment. The CEMZA will contribute to the integration of the internal market
for intra-AU maritime transport and services. The AU shall further set out guiding
principles for the development of a common information sharing environment for
the CEMZA. This should allow for the convergence of existing and future
monitoring and tracking systems used for maritime safety and security, protection
of the marine environment, fisheries control, trade and economic interests, border
control and other law enforcement and defence activities.
b)
Inter-Agency/Transnational Cooperation and Coordination on Maritime Safety
and Security.
“On its part, the AU is in the process of complementing its efforts by setting the
tone to address Maritime Security and Safety, including Situational Awareness in
the maritime domain of the African continent, by thoroughly addressing the issue
in the new Commission’s Strategy”. (H.E. Amb. Ramtane Lamamra, AUC’s
Commissioner for Peace and Security, 6046th UNSC Meeting, New York, 16 Dec.
08)
31.
Steps toward promoting inter-agency and transnational cooperation and
coordination on maritime safety and security shall include the development of an
inter-agency approach, a Naval Component capacity within the framework of the
African Standby Force (ASF), and the establishment of a representative continental
working group of Chiefs of African Navies and/or Coast Guards (CHANS) to
scrutinize issues of situational awareness and collaborate towards the enhancement
of Africa’s Maritime Domain Awareness (MDA), and to uphold cooperative
efforts between Navies/Coast Guards of the AU Member States and international
partners. The AU, in collaboration with maritime agencies across the continent,
including those from coastal and noncoastal Member States, will designate
appropriate representatives to the CHANS. The CHANS will strive to: i. Foster
development of requisite capacities to achieve effective MDA in Africa. ii. Pool
national and regional political will by enhancing understanding of the importance
of MDA as a critical enabler in building Africa’s maritime domain security and
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safety. iii. Increase joint regional surveillance operations at sea, and the
establishment of seagoing Navies and/or Coast Guard networks around Africa,
with cross-border hot pursuit function. Theme of the 18th AU Assembly Summit,
January 29 – 30, 2012, Addis Ababa, Ethiopia. iv. Achieve a "shared situational
awareness capability" that will link all the relevant agencies and sustain
interagency cooperation, by integrating relevant Command, Control,
Communications, Computers, Intelligence, Surveillance and Reconnaissance
(C4ISR) systems and operational concepts. v. Promote the establishment of
Regional Centers of Excellence for training, operations and equipment
development on maritime safety and security. vi. Promote the establishment of
Liaison Team mechanism among neighbouring Member States and within
RECs/RMs bearing in mind the IMO Recommendations on Regional Agreement
on Cooperation on Preventing and Suppressing Acts of Piracy and armed Robbery
Against Ships (IMO MSC 1/ Circ 1333). vii. Establish in collaboration with
relevant and interested stakeholders, Continental and Regional agreements,
arrangements, and capabilities including, but not limited to, mutualization of assets
to address such common agendas as law enforcement, Search and Rescue,
Humanitarian Crises, Disaster Relief, etc. viii. Push for the requirement for
Continental, Regional and National harmonization of Force Structure Element
capability requirements. ix. Enhance cooperation through existing regional
organizations associated with fisheries, maritime commerce, and transport,
maritime tourism and academia. x. Rally round a cross-sector interagency
approach to improve the concept of Integrated Coastal Area Management (ICAM)
in Africa.
c) Regional Maritime Operational Centers.
32.
In partnership with interested stakeholders, the AU is working towards the rapid
establishment of standardized Regional Maritime Headquarters (MHQ) with
Maritime Operational Coordination Centers (MOC) with mutualized response
capabilities in all RECs/RMs. The goals of Regional MHQ and MOCs are twofold:
i) to increase the effectiveness and the efficiency of the African Standby Force
(ASF) as African Navies participate in integrated operations, a move to improve
Africa’s Maritime response capabilities; and ii) to improve situational awareness
in the AMD, involving all organizations and agencies with a key role in maritime
safety and security. It is in this spirit that during the 5th Ordinary Meeting of the
Special Technical Committee on Defence, Safety and Security (STCDSS), held in
Addis-Ababa, Ethiopia, on 26 October 2011, the African Ministers of Defence,
Safety and Security adopted the proposal made by the Commission to establish a
Maritime Information and Coordination Cell (MIC2).
33.
For coordination, all the Regional MHQs and MOCs shall be inter-operable and
interlinked to each other and to the AU-based MHQs and MOCs to form a network
of situational awareness information sharing. In order to benefit from economies
of scale and the streamlining information flows, monitoring existing situation and
reporting entities within Member States and the RECs/RMs should be aligned and
staff members could be exchanged between the Regional MHQs and MOCs.
34.
All AU Member States shall establish a 24-hour communications nodal point for
coordination of national input and/or response. In accordance with Article 111 of
UNCLOS, Member States’ intent for operations to deter or disrupt acts of piracy
and armed robbery against ships in the territorial sea and airspace of another
Member State shall be subject to the approval and authority of that Member State,
including in the case of hot pursuit. To increase the ability to deliver successful
outcomes, all AU Member States are encouraged to establish cross-border hot
383
pursuit arrangements. Further, due cognizance shall be given to the IMO
Recommendations on Regional Agreements on Cooperation on Preventing and
Suppressing Acts of Piracy and armed Robbery Against Ships (IMO MSC 1/ Circ
1333).
d) Fisheries and Aquaculture.
35.
Building on the NEPAD’s 2005 Abuja Declaration on sustainable fisheries and
aquaculture in Africa, the 2010 Conference of African Ministers of Fisheries and
Aquaculture (CAMFA) as well as on the UN Conservation and Fish stocks
management agreements, the AIM Strategy shall incorporate and implement a
Common Fisheries Policy for the conservation, management and exploitation of
fish stocks in accordance with the ecosystems and precautionary approach for the
whole CEMZA, when established.
36.
In order to further deter IUU fishing activities, sanctions “of sufficient gravity as
to deprive the offenders of the benefits accruing from their illegal activities” shall
be put in place as per the 2005 Rome Declaration on IUU Fishing, which might
include seizure of assets and prosecution, with the toughest stand for
compensation. All Member States are encouraged to report any IUU fishing
activity to the AU for supplementary stringent dissuasive actions through all
available channels deemed appropriate.
37.
The effective implementation of the universal duty to cooperate in the conservation
of marine living resources is required. This necessitates coordinated action by AU
Member States, RECs/RMs and Regional Fisheries Management Organizations
(RFMOs) to ensure that the provisions of Articles 62, 63, 64, 117 and 118 of the
UNCLOS are promoted and essentially met.
38.
AU Member States are urged to endeavour to deter IUU fishing activities.
Recommended measures include: (i) Effective licensing and control of vessels
allowed to fish by Flag States; (ii) Real-time positional reporting by licensed
vessels via Vessel Monitoring Systems (VMS); (iii) Surveillance and interception
of irresponsible fishing by on-water patrols; (iv) Implementation of technical
regulations for the safety of non-convention fishing vessels; and (v) Promotion of
effective Flag State implementation in a broader context through the enforcement
of RFMO measures, such as ‘white’ or ‘black lists’ to identify ‘bad actors’.
39.
The RECs/RMs are requested to present proposals to develop a common strategy
that will warrant 24/7 patrolling of the seas. This calls for effective
communications and rapid response capabilities with OPVs, fast boats, Maritime
Patrol Aircraft (MPA), Unmanned Aerial Vehicles (UAVs) and helicopters for
surveillance and deterrence actions. In collaboration with relevant stakeholders,
the AU shall make an assertive call for the declaration of Marine Reserve Areas
and enforcement of the rules and regulations governing them, as a way to preserve
Africa’s marine biodiversity, protect marine endangered species threatened
because of unsustainable overfishing in Africa and, by the same token, encourage
ecotourism, confront a host of environmental problems, such as soil degradation
and coastal inundation, climate change and encourage scientific research on
biodiversity. The AU shall advocate a concerted role for the international
community, African Maritime Bank, African Development Bank and the World
Bank to facilitate the development of this vision in Member States.
40.
African governments, the RECs/RMs and the AU shall facilitate collaboration
among research entities, provide funding, expertise and dissemination of
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innovative practices. Adopting state-of-the-art technologies is very important for
the competitiveness of the African maritime sector in the global market, through
initiatives on research and development, including pooling of knowledge into an
African marine data centre.
41.
In partnership with relevant stakeholders to include the FAO and RFMOs, the AU
shall promote research, fisheries and aquaculture industry growth and development
as well as marine conservation. It shall also promote biodiversity and the
preservation of the marine ecosystems, as well as the protection of endangered and
threatened species and the habitats upon which they depend.
42.
Fisheries and aquaculture from lakes, reservoirs, rivers, ponds, and wetlands
contributed about 25% (34 million metric tons) of reported world fisheries
production in 20038 . Inland fisheries or aquaculture can play a significant role in
the economy of the RECs/RMs and AU Member States. Where small-scale inland
fisheries or aquaculture has been supported and well managed, fish-related
activities have played a critical role in generating wealth and sustaining economic
growth. With relevant stakeholders, the AU shall encourage all Member States to
further develop sustainable inland fisheries or aquaculture.
43.
The AU shall work towards seeking the appropriate level of compensation for the
fivedecades of losses due to IUU and over fishing in AMD. A compensation fund
shall be established and its proceeds invested in the development of sustainable
fishing industries across Africa.
44.
Any analysis aimed at informing policy makers must rely on robust and precise
data in order to be effective. Currently, sector performance monitoring is very
limited, if not non-existent. Ideally, there is a need for regular data updates and
trend analysis that interprets information gathered. There are various repositories
of very useful and relevant information in the continent.
45.
The AU shall work towards the establishment of a nodal point where a
database accommodating cross-sector maritime data can be warehoused. The
objective here is to integrate existing, but fragmented initiatives in order to
facilitate access to primary data for public authorities, maritime services, related
industries and researchers.
e) Integrated Marine Tourism and Leisure Strategy for Africa.
46.
Tourism in Africa is most promising, but it is often underappreciated. In recent
years, the tremendous power and potential that travel and tourism holds for the
continent has been unraveling. In terms of numbers, Africa receives more tourists
than the Caribbean, Central America and South America combined. This
development makes a strong case for increased investment in tourism. Tourism
creates jobs and opportunities for entrepreneurship, reduces poverty, promotes
stability, preserves heritage and culture and builds global connections. Despite this,
more work needs to be done in making the case for the travel and tourism industry.
Therefore, the AU shall work with the UN Word Tourism Organization on ecosustainable marine tourism in Africa.
47.
Marine recreation can be defined as comprising all recreational facilities along
and/or nearby coastal areas and cruise ship tourism. It includes all activities driven
by the ocean environment and marine resources, including marine ecology and
related activities such as surfing, fishing, sailing, scuba diving, among others.
385
48.
The AU shall therefore address the need to commit to the development of a
comprehensive maritime tourism and recreation strategy for the continent (with
environmental impact assessments) which will look at the following issues: i.
Common concept and understanding of maritime tourism in the context of the
continent. ii. Review of market trends related to marine tourism and recreation in
the context of the continent. iii. Social and economic potential of marine tourism
and recreation for the continent. iv. Evaluation of marine tourism and recreation
facilities in the continent and the opportunity for improvement. v. SWOT analysis
on marine tourism and recreation towards setting up appropriate vision, strategy,
organizational plan and action plan for sustainable and viable maritime tourism in
the continent. vi. Human resource cultivation for marine recreation and capacity
for business analysis to support marine tourism and recreation
f) Giant Africa Aquariums (GA2).
49.
The past 24 years has witnessed the renaissance of marine aquariums globally. For
instance, the Giant Africa Aquariums (GA2) is a concept aimed at building a panAfrican portfolio of profitable walkthrough aquariums. The aquarium environment
is modelled on local marine conditions and provides a unique combination of
educational and entertainment facilities in addition to generating income and
employment.
50.
In partnership with international conservation organizations and interested
stakeholders, the AU shall encourage all Member States to build Giant Aquarium
with panoramic view of marine life, which will provide a vital additional value to
the selected cities.
g) Integrated Maritime Human Resources Strategy for the Continent.
51.
Currently, there are limited in-depth studies to operationally define the maritime
sector human resources development value chain in Africa. As a result there are no
specific models of the maritime sector human resources development footprint that
would facilitate the building of a comprehensive human resources development
strategic plan to direct the growth of human resources that will elevate the maritime
sector as a recognized contributor to the continent’s economy. There is therefore
the need to have an integrated human resources strategy for the maritime sector to
support the provision of skills taking into account gender balance in the entire
maritime value chain which includes shipping and logistics, offshore activities,
fishing, tourism and recreation, and safety and security.
52.
The AU shall set up a research exercise that will link up with member states’
human resources development agendas as well as explore economic growth and
job creation opportunities more widely along the maritime value chain.
53.
The AU shall tackle the need to protect the current employment generation levels
and provide catalysts for growth and development across all sectors of the maritime
industry, which include shipping, marine resources, marine tourism and leisure,
marine manufacturing and construction, commercial support and business services
and public interests. This will enable the maritime sector to act as a new
employment creation driver of the continental economy.
54.
The African Maritime Human Resources Development Strategy must look into the
following issues: i. Nature of Africa’s maritime industry including human resource
requirements. ii. Identification of principal sources for competitive advantage. iii.
Nature of deliberate investment required in the education and training of the
386
maritime workforce, including in maritime administration, marine safety etc. iv.
Strategies to expand workforce in the maritime sector. v. Conduciveness of work
conditions to attract new comers into the maritime sector. vi. Competitiveness of
Africa’s skilled manpower in the maritime sector. vii. Improved relationship
between the maritime industry, universities, Further Education and Trainings
(FETs) and colleges. viii. Mechanism for the recognition of prior learning. ix.
Support programmes for research in maritime education. x. Data gathering and
statistical information for improved policy making in the maritime sector.
h) Disaster Risk Management.
55.
In collaboration with relevant stakeholders such as the World Meteorological
Organization (WMO), the UNESCO's Intergovernmental Oceanographic
Commission (IOC) and the IMO, the AU shall encourage and support the
implementation of continuous and integrated multisectoral and multi-disciplinary
Maritime Disaster Management Strategy for Africa, with measures aimed at
preventing or reducing risks of disasters; lessening severity or consequences of
disasters; emergency preparedness, rapid and effective response to disasters; and
post-disaster recovery and rehabilitation in the AMD. In this regard consideration
shall be given to early warning sensors and centers and build on the concept of
disaster relief and humanitarian aid from the sea.
56.
In collaboration with relevant stakeholders, the AU shall also (a) make an assertive
call to establish and constantly update co-operation and hence co-ordination
between Member States so as to enhance regional co-operation, especially between
or among those sharing common borders and Search And Rescue (SAR) areas; (b)
conduct regular, inclusive, multi-agency maritime disaster management exercises,
in national and regional sea areas; and (c) maintain compliance with relevant
international conventions.
i) Handling and Shipment of Hazardous Materials and Dangerous Goods.
57.
The handling and shipment of hazardous materials and dangerous goods is a
serious matter that requires AU Member States compliance with regulatory
requirements, especially the International Maritime Dangerous Goods (IMDG)
Code. All workers handling hazardous materials or dangerous goods shall follow
regulatory requirements, in line with the Convention on Hazardous and Noxious
Substances, and the Basel Convention and the 1996 Bamako Convention on the
Ban of the Import to Africa and the Control of Trans-boundary Movement and
Management of Hazardous Waste within Africa. The AU shall encourage Member
States to ensure, through appropriate legislation in collaboration with relevant
stakeholders, the safe handling and transport of hazardous goods and materials.
j) Maritime Boundaries/Delineation.
58.
Through the AU Border Programme, in accordance with the UN Convention on
the Law of the Sea (UNCLOS), the AU shall make an assertive call to peacefully
solve existing maritime boundary issues between Member States including within
bays, estuaries, and inland waters (lakes and rivers). 59. Member States shall be
encouraged to claim their respective maritime limits, including their extended
continental shelf where applicable. Member States are further urged to accept and
fulfill all those responsibilities that emanate from the establishment of maritime
zones as foreseen by UNCLOS and the IMO SOLAS Convention.
k) Maritime Governance.
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i.
60.
Legal and Regulatory Regimes.
The AU shall encourage Member States to develop legal frameworks for
coordinated State intervention at sea and inland water ways and subsequent
actions. The AU shall further actively and continuously encourage high levels of
commitment within RECs/RMs and other regional initiatives, including RFMOs,
to harmonize national maritime laws and to enhance bi-lateral and regional
strategic synergies, including signing and ratification and accession by Member
States of the relevant international maritime instruments. The Commission shall
urge RECs/RMs and Member States to take full advantage of the provisions
contained in these various international instruments. Alongside initiatives aimed at
addressing the root causes of piracy and other maritime crimes, AU Member States
shall be encouraged to put in place the necessary legal frameworks for the
prosecution of perpetrators engaged in these crimes.
ii.
Illegal Oil Bunkering/Crude Oil Theft.
61.
In addition to the broader issues of underdevelopment and insecurity in the Gulf of
Guinea, only concerted, coordinated and sustained actions by all relevant
stakeholders has the potential to address illegal oil bunkering and crude oil theft.
Such actions will apply to both the demand and supply side. It will also require
attention to the root causes of the problem. Building on the success of the “conflict
diamonds” campaign, the AU and relevant stakeholders shall develop Regional
Energy Security Strategies to address illegal oil bunkering/crude oil theft by
focusing on the market for the illegally bunkered oil and stolen oil.
62.
RECs/RMs and affected Member States shall endeavour to develop and expand
coastal surveillance systems and information sharing mechanisms with relevant
parties. Relatively cheap and unsophisticated surveillance equipment such as
remote sensors and UAVs can be deployed to monitor vandalism of pipelines and
track movement of suspicious cargo.
iii.
Money Laundering, Illegal Arms and Drug Trafficking.
63.
Greater and stronger development is needed across all RECs/RMs so as to provide
legal framework of prevention aimed at combating money laundering, arms and
drug trafficking, and related crimes. Information-sharing shall be promoted among
affected countries in order to disrupt trafficking networks. In partnership with
relevant stakeholders (UNODC, Interpol, etc.), the AU shall create a C4ISRequipped Trans-Saharan Crime Monitoring Network to improve information,
monitor suspicious activities, exchange evidence, facilitate legal cooperation, and
strengthen national and regional efforts against these organized crimes. Such a
Trans-Saharan crime monitoring network would ensure a first and practical
response to a growing problem, such an early warning device, linked to the AU’s
Continental Early Warning System (CEWS), will help review situations that
warrant careful investigation.
64.
At the national level, Member States shall be encouraged to stiffen penalties
associated with money laundering, illegal arms and drug trafficking. AU Member
States shall strive to harmonize policies and laws in this area to curb these transboundary crimes, borrowing from the workings of the Council of Europe Group of
States against Corruption [GRECO] and Money Laundering and Corruption
[MONEYVAL] which carry out evaluations and peer reviews to ensure that
Member States have effective systems to counter corruption, money laundering
388
and terrorist financing. The AU already has a peer review mechanism in place,
namely the African Peer Review Mechanism (APRM), whose mandate can be
expanded.
iv.
65.
The AU shall develop mechanism to detect and prosecute cases of dumping of
toxic waste in the AMD, with the toughest position for compensation. The AU
together with relevant partners shall support the NEPAD Joint Implementation
Mechanism of the Nairobi and Abidjan Conventions in the implementation of the
marine and coastal environment component of the NEPAD. Full support shall also
be given to the Environment Initiative of the NEPAD and the Sirte Declaration on
Agriculture and Water on comprehensive environment protection and
management, as well as other relevant conventions, such as CITES (Convention
on International Trade in Endangered Species of Wild Fauna and Flora), and the
Convention on Biological Diversity
v.
66.
Container Security and Control Programme.
In order to prevent arms, drug trafficking and other illicit activities, the AU shall
work towards the establishment of effective container security and control
programme in coastal States all around Africa.
vi.
67.
Environmental Crimes.
Flag State and Port State Control.
Building on initiatives such as the relevant MoUs on Port State Control, the AU
shall work towards complementing RECs/RMs and Flag States towards eradicating
the operation of substandard shipping practices and to enhance security and safety,
protection of the marine environment from pollution and improvement of the
working and living conditions of personnel on board ships. The Nairobi
Convention is the Convention for the Protection, Management and Development
of the Marine and Coastal Environment of the Eastern African Region. The
Abidjan Convention is the Convention for Cooperation in the Protection and
Development of the Marine and Coastal Environment in the West and Central
African Region. Furthermore, building on the 2009 FAO’s Port State Measures
Agreement (PSMA) to prevent, deter and eliminate IUU fishing, the AU shall work
towards ensuring that Members States accede to these Agreements as well as solicit
the support of partners in the implementation of Article 22 (Requirements of
Developing States). Enhancing Flag State implementation and Port State Control
will further build capacity to exercise maritime safety and security oversight over
vessels.
vii.
Hydrography, Oceanography and Meteorology
68.
The AU shall make an assertive call to concerned Member States to become
members of the International Hydrographic Organization (IHO), World
Meteorology Organisation (WMO) and UNESCO Intergovernmental
Oceanography Commission (IOC) so as to advance maritime safety, efficiency and
the protection and sustainable use of the marine environment. This will help create
a global environment in which AU coastal Member States provide adequate and
timely hydrographic data, products and services and ensure their widest possible
use. viii. Aids to Navigation (AtoN).
69.
The AUC shall make an assertive call for concerned Member States to the
International Association of Marine Aids to Navigation and Lighthouse Authorities
389
(IALA) so as for coastal and relevant landly connected Member States to advance
maritime safety of navigation, the protection and sustainable use of the marine
environment by : (i) Providing appropriate aids to navigation as the volume of
traffic and the degree of risks requires, (ii) Obtaining the greatest possible
uniformity in aids to navigation, take into account the international
recommendations and guidelines when establishing such aids, and (iii)
Undertaking to arrange for information relating to aids to navigation to be made
available to all concerned. (iv) Establishing Vessel Tracking System (VTS) where
traffic volume or risks justify it. a VTS to follow guidelines adopted by IMO b
Ships to be encouraged by Administrations to use VTS
ix. Piracy and Armed Robbery at Sea.
70.
Since 2008, the AU has advocated a comprehensive approach towards combating
piracy and armed robbery at sea. The AU fully supports the work of the Contact
Group on Piracy Off the Coast of Somalia (CGPCS), as well as all IMO initiatives
to combat piracy and armed robbery against ships, including the Best Management
Practices (BMPs) for vessel protection in High Risk Areas (HRA) and the Djibouti
Code of Conduct (DCC) concerning the repression of piracy and armed robbery
against ships in the Western Indian Ocean and the Gulf of Aden. Therefore, the
AU shall encourage Member States, consistent with their available resources and
related priorities, their respective national laws and regulations, and applicable
rules of international law, in cooperation with the IMO and any other relevant
organisations, to mutualize their assets so as to cooperate to the fullest possible
extent in the repression of piracy and armed robbery against ships. This would be
with a view towards: encouraging (a) burden sharing, (b) tracking financial flows,
(c) sharing and IALA Recommendations and Guidelines Available for download
at www.au.int/maritime. reporting relevant information; (d) interdicting ships
and/or aircraft suspected of engaging in piracy or armed robbery against ships; (e)
apprehension and prosecution of persons committing or attempting to commit
piracy or armed robbery against ships, and (f) facilitating proper care, treatment,
and repatriation for seafarers, fishermen, other shipboard personnel and passengers
subject to piracy or armed robbery against ships, particularly those who have been
subjected to violence.
71.
The AU shall provide support and technical assistance to vulnerable African states,
to enhance their capacity to ensure effective coastal and maritime patrols. In this
regard, special attention shall be given to the development of effective
Navies/Coast Guard(s).
x.
Maritime Terrorism.
72.
Within the past decade, there have been major developments in the regulation of
international shipping, particularly through the introduction of the International
Ship and Port Facility Security (ISPS) Code. Consequently, AU Member States
that have not yet implemented the ISPS Code should move quickly to do so, and
introduce other maritime MDA and security measures.
73.
In line with the framework of the UN Strategy on counter-terrorism, the AU, the
RECs/RMs, and Member States will strive to support the African Center for the
Study and Research on Terrorism (ACSRT) in the operationalization of the
Terrorism Early Warning system as well as all the ACSRT activities listed in its
strategic plan. 74. The AU shall make an assertive call for preventive measures
with efforts to address both real and perceived grievances and underlying social,
economic, and political conditions which give rise to this content. Therefore, the
390
AU, the RECs/RMs and Members States will give priority attention to addressing
underlying conditions conducive to the spread of terrorism in the continent, as well
as respect for human rights and the rule of law. These conditions include: poverty,
prolonged unresolved conflicts, dehumanization of victims of terrorism, lack of
rule of law and violations of human rights, ethnic, national and religious
discrimination, political exclusion, Corporate Social Responsibility (CSR), socioeconomic marginalization and lack of good governance.
xi.
Human Trafficking, Human Smuggling and Asylum Seekers
Travelling by Sea.
75.
Trafficking in persons is a criminal offence addressed by many international
instruments and programmes. Among those are the UN Convention against
Transnational Organized Crime and its Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children (2000); the United
Nations Global Initiative to Fight Human Trafficking (UN.GIFT) programme
(2004) and in the context of Africa, the Ouagadougou Action Plan to Combat
Trafficking in Human Beings, Especially Women and Children (2006). The
UNODC has developed a United Nations Counter - Kidnap Manual on best
practices for law enforcement authorities to combat kidnapping.
76.
To deal with the scourge of human trafficking, a bigger part of the work will consist
in awareness-raising, through media and training workshops, and capacity building
in source and transit countries to deal with human trafficking. The AU shall work
towards addressing the root causes of human trafficking, which include poverty,
unbalanced distribution of wealth, unemployment, armed conflicts, poor law
enforcement system, degraded environment, poor governance, societies under
stress, corruption, lack of education, lack of respect for universal human rights and
discrimination, increased demand for sex trade and sex tourism.
77.
The AU in collaboration with relevant stakeholders shall continue to assist Member
States with the development and implementation of sound migration policies
aimed at addressing trafficking in human beings, especially women and children.
xii.
Strategic Communications Systems.
78.
Mobile phones and the Internet have had beneficial impacts on supporting the
livelihoods of rural people, particularly small scale business women and men in
Africa, where mobile phones are the most widely-used form of communications
technology. However, while their benefits are yet to be fully exploited for
improving strategic communications in support of the maritime industry, the
maritime industry has been exposed to a myriad of related risks such as cyber
attacks and related crimes.
79.
Cybercrime is of particular concern for the AU because of the cross-border nature
of the issue., The AU, RECs/RMs, Member States, the private sector and civil
society, shall work together to improve cybercrime.
80.
In order to prevent, defend against and respond to cyber threats, the AU shall
encourage cooperation between the RECs/RMs and Member States, with the
cooperation of the UN International Telecommunication Union (ITU), the
International Multilateral Partnership Against Cyber Threats (IMPACT) and the
UN Office on Drugs and Crime (UNODC). This targeted cooperation will assist
AU Member States in mitigating the risks posed by cybercrime and cybercrime
through activities such as maritime database generation and maritime information
391
exchange networks. The AU, RECs/RMs and Member States shall regularly carry
out multi-agency cyber drill exercises which involve testing the response
technologies.
xiii.
81.
Maritime spatial planning is a comprehensive, adaptive, integrated, coherent,
ecosystembased, and transparent spatial planning process, based on sound science.
By mapping activities and determining the maritime space settled for each activity,
the process provides a characterization of the current uses and helps to establish
potential areas for future uses of AMD. This will provide a policy process for the
AU, the RECs/RMs and Member States to better determine how maritime zones
are sustainably used and protected – now and for future African generations.
Within the framework of the 2050 AIM Strategy, Maritime spatial planning will
aim at balancing frequently competing sector-based interests, so that: a) marine
space and resources are used efficiently and sustainably, b) decisions can be taken
based on sound data and in-depth knowledge of the sea and inland water ways, and
c) investors have greater legal certainty, encouraging Africa’s blue economic
development.
xiv.
82.
Maritime Spatial Planning.
Environmental and Biodiversity Monitoring.
Africa depends on environmentally friendly maritime domain and self-sustaining
biological systems that include many kinds of organisms. This requires the
preservation of the variety of life, by a) ensuring the sustainable use, conservation
and regeneration of the maritime resources, b) promoting the economical, social
and environmental importance of the sea and inland water ways, c) establishing a
set of indicators to evaluate the sustainable performance of the activities and their
monitoring. The AU, the RECs/RMs and Member States shall support such efforts
which require inventory knowledge and a full understanding of natural and
artificial changes in AMD’s biodiversity. With an innovative monitoring and
assessment approach based on joint set of marine biodiversity indicators as well as
testing in practice the monitoring and assessment techniques, in partnership with
relevant international stakeholders, the AU shall spearhead the development of
concepts for assessment of conservation status of AMD’s biodiversity, including
species and habitats and impacts of various human activities.
XIII. ECONOMIC BENEFITS: WEALTH CREATION FROM AMD.
83.
There cannot be sustainable socio-development without peace and security, and
without development and empowerment no sustainable peace will occur.
Therefore, to further boost maritime viability in Africa, building on the securitysocio-development nexus, the AU shall establish a cross-sectoral Strategic
Foresight Marine Task Force (SFMTF) to assess the broad spectrum of current
marine activities, bearing in mind the future potential for wealth creation from
sustainable development in the AMD and how to make Africa’s maritime industry
more competitive for international and regional trade and as a source of sustainable
food supply and energy. This would require identifying sectors with the most
growth potential (such as ports, aquaculture, renewable energy, submarine
telecommunications, tourism and marine biotechnology) as well as the
sustainability and security of Africa’s energy supply not only from hydrocarbons
but from renewable marine resources which could further support economic
development and sustainable job creation.
XIV. IMPROVED MARITIME TRADE AND COMPETITIVENESS .
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84.
Africa’s share in world trade stands at about 3% on average, while intra-African
trade averages around 10 percent of Africa’s total trade. Further, Africa’s share of
exports to the world has declined over the years - standing at an average of 2.5 %,
a net decline from 10% in the 1950s. In addition, Africa attracts only 2-3% of
global Foreign Direct Investment (FDI) and contributes another 1% to world GDP.
It is imperative upon Africa to make transformational progress in its
competitiveness and share of global and regional trade. To do so will necessitate
addressing the various parameters that impinge on the continent’s competitiveness,
trade performance and economic development. In this regard enhancing access and
exploitation capacity in the AMD provides substantial economic opportunities and
potential with improvements, including supporting efforts to boost intra-African
trade and the creation of Continental Free Trade Area (CFTA) . In view of Africa’s
trade performance, the continent has to make its maritime transport industries (ship
building, marine equipment and port industries) more competitive in the regional
and global markets.
85.
Although maritime ports play a vital role in developing world trade and commerce,
most ports in Africa are small and very few are capable of handling some of the
largest ships. Apart from limitations of geography and siltation, a number of the
ports also suffer from capacity constraints. The 6th Ordinary Session of the AU
Ministers of Trade held in Kigali from 29 October – 2 November 2010 took a
Decision to fast track the establishment of a Continental -African Free Trade Area
(CFTA) which was subsequently endorsed AU Assembly of Heads of States and
Government and which also called for the focus of its January 2012 Ordinary
Session to be on the theme “Boosting Intra‐African Trade” and poor performance
(in terms of port dwell time of vehicles). Given the size of many African ports and
the poor state of road networks the volume of container traffic passing through
marine ports is far less than their handling capacities. Currently, inland waterways
in the continent are insufficiently utilized and in most cases poorly developed,
which adds to difficulties in conducting business among Africa countries. To
supplement the ports, rivers and lakes could serve as an inexpensive, energy
efficient and environmentally friendly form of transport and provide tremendous
prospects for penetrating land-connected countries. But exploitation of these inland
waterways is one of the weakest links in the transport system. Further, improving
the connectivity and access constraints within and between African countries to
internal and external market destinations would greatly strengthen the
competitiveness of countries, regions and the continent. This shall include a
feasibility survey for the creation of a Pan-African owned Shipping Line.
86.
In cooperation with relevant stakeholders such as the UNESCO's
Intergovernmental Oceanographic Commission (IOC), a continental wide dynamic
and multidisciplinary Oceans and Seas Research Institute of Africa (OSERIA)
shall be established as soon as possible by the AU to undertake marine scientific
and technical surveys and research activities in the whole AMD. The OSERIA will
promote scientific research and understanding of the environment for protection,
economic activity or conservation. This will also include stepping up search for
undersea mineral reserves in the whole AMD.
87.
The AU shall encourage Member States to develop an Industrial Benefits Policy
(IBP), a market-driven policy that will ensure that Member States benefit from all
marine related procurement. IBP will require that non-African companies that win
marine sector related contracts with AU Member States undertake business
activities in the said Member State at the same value of the contract they have been
awarded, over a specified period of time (e.g., they must buy goods and/or services
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from the companies of the said Member States). The IBP obligations are to be
contractual commitments and part of overall contracts.
88.
In this regard, the AU shall develop an ICAM Plan that would map out strategies
to provide for the best long term and sustained use of marine natural resources and
for perpetual maintenance of the most beneficial natural environment. The ICAM
plan will consider, coordinate and integrate the interests of all appropriate
economic sectors in such a way as to establish a balance between the special
conditions of marine resources conservation and economic development. The plan
will harmonize the different sectors pursuing marine resources exploitation such
as fisheries, tourism, municipal discharge, oil, gas and mineral exploration,
scientific research and marine transport.
89.
Sufficient knowledge about marine resources is a precondition for sound
management of the resources. Local traditional knowledge can play an important
role in the management of marine resources. In drawing up the ICAM plan,
therefore, the AU will, to the best extent possible, make use of available local
traditional knowledge.
90.
Furthermore, there will also be a need to better understand the requirements of
marine related SMEs in terms of better access to financing, improved regulatory
frameworks and better linkages to regional value chains.
91.
Concerning the facilitation of maritime trade, emphasis should be put on setting up
of infrastructures and support equipments to shippers, to include: single windows,
logistic platforms, dry docks, warehouses, satellite tracking of containers.
XV. CAPACITY AND CAPABILITY BUILDING.
92.
The AU shall encourage sub-regional cooperation in the construction and
equipping of standardized commercial vessels, patrol vessels and other specific
naval vessels, machinery and electrical installations and life-saving appliances in
Africa. Efforts shall be intensified with RECs/RMs and Member States, to
significantly improve Africa’s share of global ship ownership by gross tonnage
from 0.9% to at least 7% by 2050.
93.
In order to improve the picture of one or more aspects of a REC/RM or Member
States’ maritime sector and facilitate discussion among actors with maritime
responsibilities, the AU shall spearhead a full-scale maritime sector assessment
that will lead to the activation of relevant reform programmes. The envisaged
Maritime Sector Reform (MSR) shall map and assess existing capabilities and gaps
so as to enable improved cooperation, capacity-building and coordination between
all stakeholders towards enhancing wealth creation in a safe and secure AMD
across each of the six cross-cutting categories of activities in the maritime sector
(Commerce, Transport, Extractive Industries, Defence and Security, Tourism, and
Education, and Scientific Research). Specifically the four building blocks for
capacity and capability building are: i. MDA (MDA architecture design,
compliance procedures, public participation, interoperable C4ISR architecture,
information sharing, environmental protection); ii. Maritime professionals
(recruitment process, leadership doctrine, training, pay and benefits, public
support, professional relationship); iii. Maritime infrastructure (piers/quays and
port facilities, dockyards/shipyards, command centers, aids to navigation and
hydrography infrastructure and facilities, C4ISR infrastructure, maintenance
facilities, training facilities); iv. Maritime surveillance and response capabilities
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(legal authorities, patrol vessels and operational equipment, command and control,
operational procedure, sub-regional and cross-country interoperability).
94.
Further SWOT and Gap analysis shall be conducted to make an assessment of the
current situation and identify tangible points for reaching intended capacity and
capability building aims, to achieve the 2050 AIM Strategy objectives. This
systematic approach shall lend itself to a return-on investment understanding of
cost of improvements versus cost of doing nothing.
XVI. OUTREACH INITIATIVES.
95.
Safe, healthy and productive seas and oceans are central to Africans’ well-being,
economic security and sustainable socio-development. In order to further
emphasize our individual and collective responsibility to look after the marine
environment and carefully manage its resources, a pan-African “No more seablindness” campaign shall be launched by the AU and the RECs/RMs, with a
yearly event, including use of global media platforms, to sensitize the general
public on the importance of the sea. AU Member States shall undertake to
incorporate into their education systems at all levels the significance of their
maritime zones as part of their geographical territory. The AU shall organize a
Maritime Security and Development Conference (MSD Conference) on an annual
basis to bring together cross-sector experts from public and private sectors to
exchange views on various cross-cutting marine related issues. Ministerial level
participants will also be invited so as to bridge discussions with politics decision
makers and uphold the indispensable political will. This will allow the AU, the
RECs/RMs, Member States and relevant stakeholders to highlight the many ways
in which oceans, seas and inland water ways contribute to society.
96.
In 2008, the UN General Assembly designated 8 June the “World Oceans Day”14,
for promoting links between maritime communities and organizations, and
increasing awareness for the importance of Africa’s oceans and seas to economic
development, environmental sustainability and quality of life throughout Africa’s
vast coastal area. The AU shall push for the effective observance of this Day within
Member States, particularly, by ensuring coherent efforts among national
institutions responsible for marine science, marine pollution, nautical training,
conservation of fisheries, mammals and other living marine resources as well as
their associated ecosystems, maritime administration, safety and security.
97.
An African regatta, racing formally structured events with comprehensive rules
describing the schedule and procedures of the event, including social and
promotional activities which surround the racing events shall be organized on a
yearly basis at Community, National and Regional levels to uphold awareness of
the outreach initiative.
XVII. REPRESENTATION IN INTERNATIONAL INSTITUTIONS.
98.
Putting Africa’s maritime sector in the center stage during international discussions
associated with African or global maritime agenda is crucial for long-lasting,
meaningful development of AMD. Therefore, AU shall push for a right-sized
representation of the African continent in the various organs of marine related
international institutions, so as to ensure that the voices of Africa are properly heard
in relevant international forums.
395
XVIII. RESOURCES STRATEGY.
99.
At the AU level, the 2050 AIM Strategy Task Force was set up on 3 June 2011. As
soon as possible, the AU shall establish a standalone Department of Maritime
Affairs (DMA) to develop and coordinate all policies implementation on the AIM
Strategy in AMD. The DMA will work on enhancing collaborative, concerted,
cooperative, coordinated, coherent and trust-building efforts throughout the
continent and with partners to augment global maritime safety and security
standards. The DMA shall seek to assess and realize the economic multiple cobenefits potential of Africa’s millions of hectares of marine area; promote the
sustainable development of marine industry through strategic funding programmes
and essential scientific services; and safeguard Africa’s marine environment
through research and environmental monitoring. The DMA shall strive to expand
and link Africa’s cooperative efforts beyond and across traditional regional
maritime boundaries, and bridge Africa’s initiatives to build a network of
partnership that is as global in nature as are the world’s common maritime threats
and challenges.
100.
In partnership with all relevant stakeholders, the DMA shall develop a
comprehensive long-term generative strategy of human and material resources
development aimed at creating the required means to sustain the 2050 AIM
Strategy. This should be complementary to the Logistic Strategy approach
prevalent within development interventions undertaken in Africa which does not
allow enough scope for the continent to generate its own resources to address
development challenges. At regional levels, DMA shall set up inter-agency
committees with designated Focal Resolution 63/111, paragraph 171. Points to
monitor progress and review the 2050 AIM Strategy implementation blocks in the
RECs/RMs.
101.
The AU shall establish the African Naval Architects and Marine Engineers Forum
(ANAMEF) that will provide a forum for the advancement of marine engineering
profession in Africa as applied to the marine field. The ANAMEF will be dedicated
to advancing the art, science and practice of naval architecture, shipbuilding and
marine geo-engineering. It is to realistically plan to design and build (in Africa)
quality ships in order to top up its yards and marine equipment industries and
generate a wide range of specialized skillful manpower. Member States within
RECs/RMs shall be encouraged to join efforts towards standardizing shipbuilding
activities with a view to achieving economy of scale.
102.
The AUC shall establish the African Safety of Navigation Forum (ASNF) that will
provide a platform for the advancement of the implementation, compliance with,
and sustainability of Safety of Navigation as provided for in Chapter V of the
International Convention on the Safety Of Life At Sea (SOLAS) 1974.
103.
To sustain maritime viability in Africa, a 2050 AIM Strategy Capital Fund (2050
AIMSCAF) to provide research funds and equity venture capitals to new and
expanding marine sector projects throughout Africa shall be set up as soon as
possible. The 2050 AIMSCAF investors will include Member States as well as
private sector and other investment fund in and out of Africa. It will also co-invest
with, arrange and/or lead a syndicate of investors as appropriate to a transaction.
104.
The AU shall establish a 2050 AIM Strategy High Level College of Champions
(2050 AIM Strategy HLC2) to champion the 2050 AIM Strategy. Composed of
selected very high profiled African leaders, the 2050 AIM Strategy HLC2 is to
leverage, through sustained lobbying throughout Africa and around the world, the
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necessary tangible and intangible sources of power, political will and buy-in, as
well as marshal the required resources for the implementation of the 2050 AIM
Strategy.
XIX. RESULT-BASED MONITORING AND EVALUATION.
105.
The 2050 AIM Strategy is to be reviewed every three (3) years to ensure alignment
of the strategic objectives with global geo-strategic contexts.
106.
Each REC/RM and AU Member State should designate a focal point to facilitate
coordinated, smooth, timely, and effective information and communications flow
among the Member States and the Regional MHQs and MOCs consistent with the
purpose and scope of this 2050 AIM Strategy.
107.
The AU, the RECs/RMs, Member States and relevant stakeholders shall set up a
Steering Committee to address monitoring, evaluations and reports for the 2050
AIM Strategy to track progress towards the End State, and to enable refocusing the
key performance areas and the lines of actions.
The development of the African Monitoring Evaluation and Reporting Tool
(AMERT) software by the AU will help monitor all kinds of indicators, both
qualitative and quantitative. 32 SKD Progress in implementation will be closely
coordinated to ensure high-level of accomplishment of programme activities and
the attainment of the desired results.
108.
X. RISK STRATEGY.
109.
In order to define how risks will be managed throughout the lifetime of the 2050
AIM Strategy, a Risk Strategy and supporting plan acknowledging actual and
potential threats to its successful delivery and determining the activities required
to minimize or eliminate them shall be developed and reviewed regularly.
110.
The Risk Strategy will include:
a)
b)
Analysis of risk, which involves the identification and definition of risks,
plus the evaluation of potential impact and consequent action;
Risk management, which covers the activities involved in the planning,
monitoring and controlling of actions that will address the threats and
problems identified, so as to improve the likelihood of the 2050 AIM
Strategy achieving its stated objectives.
XXI. CONCLUSION.
“More than ever before in human history, we share a common destiny. We can
master it only if we face it together”. (Kofi Annan, Former UN Secretary-General.)
111.
Full scale top-down and bottom-up efforts synchronized, this 2050 AIM Strategy
is not an end, but it is an avenue to get to the End, which is growth in Africa. It
presents a vision for the achievement of maritime viability for the people and
interests of the whole African continent. Moreover, it underscores the AU’s
commitment to strengthening our regional and international partnerships and
advancing economic well-being around the globe. As a vision for the future, it
certainly faces some serious challenges. Collectively, these challenges can and
shall be overcome. There is no doubt that this occurrence will lead to the planet’s
geo-strategic return to the lost afrocentricity.
397
112.
Thus, as Africa is now navigating its future, effective implementation of this 2050
AIM Strategy will require enhanced and committed cooperation from local
communities, Member States, RECs/RMs, the AU and the broader international
community. It will also require a concerted application of a collective endeavor to
enhance maritime viability frameworks; deploy layered approach through
information sharing based on military sea power, law enforcement authorities, and
private sector partners’ competencies; pursue scientific research and development.
It will also improve Africa’s response posture to deal with any incident which may
occur. It will require the utmost political will of Member States.
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APPENDIX
XI
______
AFRICAN CHARTER ON MARITIME SECURITY AND SAFETY AND
DEVELOPMENT IN AFRICA
(LOMÉ CHARTER)
PREAMBLE
We, the Heads of State and Government of the Member States of the African Union (AU);
CONSIDERING the Constitutive Act of the African Union of 11 July 2000, in particulars
Articles 3 (a), (b), (e) and (f);
HAVING REGARD to the provisions of the Charter of the United Nations of 26 June 1945,
in particular its Chapters VI, VII and VII;
COGNISANT of the United Nations Convention on the Law of the Sea of 10 December
1982,in particular its Articles 100,101 and 105, defining the legal framework for the fight
against piracy and armed robbery against ships and the International Convention for the
Safety of Life at Sea, 1 November 1974;
CONSIDERING the International Convention for the Prevention of Pollution from Ships
of 2 November 1973;
CONSIDERING the Convention for the Suppression of Unlawful Acts against the Safety
of Maritime Navigation of 10 March 1988 and its Protocol of 14 October 2005;
NOTING the Basel Convention of Transboundary Movements of Hazardous Waste and
their Disposal of 22 March 1989;
CONSCIOUS of the United Nations Convention against Transnational Organised Crime
(Palermo Convention) of 15 November 2000, and its three Supplementary Protocols;
CONSIDERING the Bamako Convention on the Ban on the Import into Africa and the
Control of Transboundary Movement and Management of Hazardous Wastes within Africa
of 30 January 1991;
CONSIDERING also the Convention for the Suppression of Unlawful Acts against the
Safety of Maritime Navigation adopted in Rome on 10 March 1988;
RECALLING the provisions of the OAU Convention on the Prevention and Combating of
Terrorism of 14 July 1999 and the Protocol to the OAU Convention on the Prevention and
Combating of Terrorism of 1 July 2004;
FURTHER RECALLING the provisions of the Revised African Maritime Transport
Charter of 26 July 2010;
MINDFUL of the African Union Agenda 2063 and the United Nations 2030 Agenda;
FURTHER MINDFUL of the relevant provisions of the United Nations Security Council
Resolutions, which call for the development and implementation of regional, sub-regional
and national maritime safety and security and flight against piracy strategies;
RECALLING 2050 Africa’s Integrated Maritime Strategy (2050 AIM Strategy) adopted
on 27 January 2014, whose implementation shall be in conformity with International
Maritime Law;
AWARE of the geostrategic importance of the seas, oceans and inland waterways in the
socio-economic development of Africa and their role in the sustainable development of the
continent;
FURTHER CONSIDERING that the persistence of conflicts constitute a serious threat to
peace and the security and undermines our efforts to raise the standard of living of our
peoples;
DEEPLY CONCERNED by the scourge of terrorism, extremism in all its forms and
transnational organised crime as well as the different threats against peace and security in
Africa;
399
ACKNOWLEDGING that the proliferation of small arms and light weapons as well as
cross-border crime contribute to the spread of insecurity and instability and pose serious
risks to international maritime navigation;
REAFFIRMING our commitment to combat maritime crime, threats and challenges to
protect and secure our seas and oceans;
CONVINCED that the prevention, management and the eradication of these scourges can
only succeed through the enhancement of cooperation, with a view to coordinating the
efforts of coastal, island and land-locked African States within the framework of the
African Union;
CONCERNED about the protection of biodiversity and the sustainable use of marine
resources of the planet in accordance with the Convention on Biological Diversity, adopted
in Rio de Janeiro, on 5 June 1992,the Convention on the Protection, Management and
Development of the Marine and Coastal Environment in Eastern Africa, adopted in Nairobi
on 21 June 1985 and the Convention for Cooperation in Protection, Management and
Development of the Marine and Coastal Environment of the Atlantic Coast of the West,
Central and Southern Africa Region adapted in Abidjan on 23 March 1981;
DEEPLY COMMITTED to peace and security in the Mediterranean Sea, the Red Sea, the
Gulf of Aden, the Atlantic Ocean and the Indian Ocean, and WELCOMING the
determination, through Maritime Strategies of the Regional Economic
Communities/Regional Mechanisms, the Indian Ocean Commission, and the Gulf of
Guinea Commission to work closely with the Commission of the African Union on the
implementation, in conformity with International Maritime Law, of the 2050 AIM Strategy;
ALSO WELCOMING the convening Yaoundé, Cameroon from 24 to 25 June 2013 of the
Joint Summit of the Economic Community of Central African States (ECCAS), the
Economic Community of West African States (ECOWAS) and the Gulf of Guinea
Commission (GGC) on Maritime Safety and Security, which culminated in the
establishment of the Interregional Coordination Centre (ICC) based in Yaoundé,
Cameroon.
FIRMLY RESOLVED to work tirelessly to ensure peace, security, safety and stability,
protection of the marine environment and facilitation of trade in the maritime space and
development of our countries;
HEREBY AGREE AS FOLLOWS:
CHAPTER I: GENERAL PROVISIONS
ARTICLE 1
DEFINITIONS
1)
For the purpose of this Charter, the following terms and expressions shall apply:
“African Space Policy and Strategy’ refers to the first concrete steps to realize an African
Space Programme, as one of the flagship programmes of the AU Agenda 2063 adopted on
31 January 2016;
“2050 AIM Strategy” refers to the 2050 Africa’s Integrated Maritime Strategy adopted by
the Assembly on 27 January 2014;
“Armed robbery against ships’ means any illegal act of violence or detention or any act of
depredation, or threat thereof, other than an act of piracy, committed for private ends and
directed against a ship or against persons or property on board such a ship or against any
persons or property on board such a ship, in an area failing within the jurisdiction of a State;
“Assembly” means the Assembly of Heads of State and Government of the African Union:
“AU Agenda 2063” refers to the African Union vision adopted on 27 January 2014;
“Bamako Convention” refers to the Bamako Convention on the ban on the Import into
Africa and the Control of Transboundary Movement and Management of Hazardous
Wastes with Africa adopted by the Organisation of African Unity on 30 January 1991;
400
“Blue/Ocean Economy” means sustainable economic development of oceans using such
technics as regional development to integrate the use of seas and oceans, coasts, lakes,
rivers ,and underground water for economic purposes, including, but without being limited
to fisheries, mining, energy ,aquaculture and maritime transport, while protecting the sea
to improve social wellbeing;
“Charter” means the African Union Charter on Maritime Security and Safety and
Development in Africa;
“Coastal State” refers to any state having a coast;
“Commission” means the African Union Commission;
“Drug trafficking” means the global illicit trade involving the cultivation, manufacture,
distribution and sale of substances which are subject to drug prohibition laws;
“Flag State” means – the State under whose laws a vessel is registered or licensed which
has authority and responsibility to enforce regulations over vessels registered under its flag,
including those relating to inspection, certification, and issuance of safety and pollution
preventing documents.
“Illegal, unreported and unregulated (IUU) fishing” means:
i.
Illegal fishing means activities:
a) Conducted by national or foreign vessels in waters under the jurisdiction
of a State, without the permission of that State ,or in contravention of its
laws and regulations;
b) Conducted by a vessel flying the flag of State that are parties to a relevant
regional fisheries management organization but operate in contravention
of the conservation and management measures adopted by that
organization and by which the States are bound, or relevant provisions of
the applicable international law; or
c) In violation of national laws or international obligations, including those
undertaken by cooperating States to a relevant regional fisheries
management organization.
ii.
Unreported fishing means fishing activities:
a) Which have not been reported, or have been misrepresented, to the relevant
national authority, in contravention of national laws and regulations; or
b) Undertaken in the area of competence of a relevant regional fisheries
management organization which have not been reported or have been
misreported, in contravention of the reporting procedures of that
organization.
iii.
Unregulated fishing means fishing activities:
a) In the area of application of relevant regional fisheries management
organization that are conducted by vessels without nationality, or by those
flying the flag of a State not party to that organization, or by a fishing
entity, in a manner that is not consistent with or contravenes the
conservation and management measures of that organization; or
b) In areas or for fish stocks in relation to which there are no applicable
conservation or management measures and where such fishing activities
are conducted in a manner inconsistent with State Responsibilities for the
conservation of living marine resources under International Law.
“Inland waterways” means any navigable rivers, creeks, lakes, tidelands, lagoons, below
water baseline, or channel leading into such place having facilities, harbours, berths, jetties,
pontoons or buoys and wharves within the limits of the inland waterways in any place in a
country and includes any place declared to be an inland waterway under relevant national
legislation, as defined in the 2050 AIM Strategy;
“International Maritime Organisation (IMO) SOLAS Convention” refers to the
International Maritime Organisation International Convention for the Safety of Life at Sea
of 1 November 1974;
401
“Marine biodiversity” refers to the variety and variability of life on Earth; it is a measure
of the variety of organisms’ present n different ecosystems including genetic variations,
ecosystems variations or species variations (number of species) within the Maritime
Domain;
“Marine Governance” means the national and international, legal and regulatory
framework and associated enforcement processes that ensure the peaceful and sustainable
use of the seas for commerce, food, energy and raw material;
“Marine Pollution” refers to the introduction and or spread of invasive organisms into the
ocean or the harmful, or potentially harmful effects resulting from the entry into the ocean
o chemicals, particles, industrial, agricultural and residential waste or noise and any other
polluting factors carried by means of air or land pollution;
“Marine Resources” means the things that plants, animals and humans need for life that
originates in the sea;
“Maritime Domain” refers to all areas and resources of, on, under, relating to, adjacent to,
or bordering on the sea, ocean or lakes, intra-coastal and inland navigable waterways,
including all maritime-relate activities, infrastructure, cargo, vessels and other means of
conveyance, it also includes the air above the seas, oceans, lakes, intra-coastal and inland
navigable waterways and oceans electromagnetic spectrum as wall, as defined in the 2050
AIM Strategy;
“Maritime Safety’ means all measures taken for the safety of ships and offshore
installations, their crew and where appropriate, their passengers, the safety of the
navigation and the facilitation of maritime traffic, maritime infrastructure, maritime
facilities and maritime environment;
“Maritime Security” means the prevention of and fight against all acts or threats of illicit
acts against a ship, its crew, and its passengers or against the port facilities, maritime
infrastructure, maritime facilities and maritime environment;
“Maritime Territories” means maritime spaces under the jurisdiction or responsibility of
the State Party;
“Maritime Zones” means maritime zones as defined in the United Nations Convention of
the Law of the Sea (UNCLOS) adopted on 10 December 1982;
“Member State” means a Member State of the African Union;
“Palermo Convention” refers to the United Nations Convention against Transnational
Organized Crime adopted by the United Nations General Assembly on 15 November 2000;
“Pavilion State” means the state under whose legislation a merchant ship is registered with
and which has authority and responsibility to ensure compliance with the regulations on
ships flying its flag, including regulations relating to inspection, certification and issuance
of safety and anti-pollution documents;
“Piracy” means:
a) Any illegal act or violence or detention committed for private ends by the crew or
passengers of a private ship or a private aircraft, and directed:
i.
On high seas against another ship or aircraft, or against persons or
property, on board such ship or aircraft;
ii.
Against a ship, aircraft 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 intentionally facilitating an act as described in paragraphs
(a) or (b);
“Pirate Ship” means a ship under the effective control of individuals who have the intention
to use it to commit such an act as long as they are under the control of these individuals;
“Port State Control” means the inspection of foreign ships in national ports to verify that
the condition of the ship and its equipment comply with the requirements of international
regulations and that the ship is manned and operated in compliance with these rules;
“Revised African Maritime Transport Charter” refers to the Revised African Maritime
Transport Charter adopted by the African Union on 26 July 2010;
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“Requested State” means the State that is requested for something;
“Requesting State” means the State that is requesting something;
“Ship” means a vessel or mobile facility of any type whatsoever operating in the marine
and or inland waterways environments and includes hydrofoil boat, aircushion vehicles,
submersibles, floating craft and fixed or floating platforms operated for the purpose of
providing movements for goods and passengers and the provision of marine services;
“Signatory” means a Member State that has signed this Charter;
“States Parties” means Member States that have ratified, accepted, approved or acceded to
this Charter in accordance with their respective constitutional rules and the Charter has
entered into force for those States;
“Subsidiarity Principle” refers to the principle that seeks to guarantee a degree of
independence for a lower authority in relation to a higher body or for a local authority in
relation to central government. It therefore involves the sharing of powers between several
levels of authority;
“Terrorist Acts” refers to terrorist:
a) Any act or threat to act in violation of the criminal laws of the State Party likely to
endanger the life, physical integrity, freedoms of an individual or group of
individuals, which results or may result in the damages to private or public
property, natural resource, the environment or cultural heritage and committed
with the intention of :
I.
Intimidating, creating a situation of terror, forcing, exerting pressure or compelling
any government, body. institution, population or section thereof to take or refrain
from taking any initiative, adopt, abandon any particular standpoint or act
according to certain principles;
II.
Disrupting the normal functioning of public services, providing essential services
to populations or creating a crisis situation within the populations;
III.
Creating general insurrection in a State Party.
b) Anypromotion,financing,contribution,order,aide,incitement,encouragement,attem
pt,threat,conspiracy,organization or equipment of any individual with the intention
of committing any act mentioned in paragraphs a)(I) to (III).
“Trafficking in persons” means the recruitment, transportation, transfer, harbouring or
receipt or persons, by means of the threat or use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or
of the giving or receiving of payments or benefits to achieve the consent of a person having
control over another person, for the purpose of exploitation;
“Transnational Organised Crime” means organized crime coordinated across national
borders, involving groups of three or more persons existing for a while acting together, to
or committing one or more serious offences to obtain, directly or indirectly, a financial or
other material benefit or networks of individuals working in more than one country to plan
and execute illegal business ventures. In order to achieve their goals, these criminal groups
use systematic violence and corruption;
“United Nations 2030 Agenda” refers to the United Nations plans for achieving a better
future for all adopted by the United Nations General Assembly on 25 September 2015;
“UN Basel Convention” refers to the Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal adopted by the United Nations
General Assembly on 31 April 1989; and
“UNCLOS” refers to the Convention on the Law of the Sea adopted by the United Nations
on 10 December 1982.
2) In this Charter, any references to sea includes oceans and inland waterways.
ARTICLE 2
PRINCIPLES
403
Each State reaffirms its commitment to the principles and objectives contained in the
Charter of the United Nations adopted on 26 June 1945,the Constitutive Act of the African
Union adopted on 11 July 2000, the Universal Declaration of Human Rights adopted on 10
December 1948,the African Charter of Human and Peoples Rights adopted on 27 June
1981,the Agenda 21 on Sustainable Development, adopted I Rio de Janeiro, on 14 June
1992,the Palermo Convention adopted on 15 November 2000,the Bamako Convention
adopted on 30 January 1991,and other relevant legal instruments as well as the following
fundamental principles :
a) The promotion of peace, security ,stability and development;
b) The protection of fundamental human rights and freedoms, as well as the
observances of the rules of International Humanitarian Law;
c) The free movement of people and goods;
d) The sovereign equality and interdependence of the Member States;
e) The territorial integrity and national sovereignty of Member States; and
f) Subsidiarity.
ARTICLE 3
OBJECTIVES
The objectives of the present Charter shall be to:
a) Prevent and suppress national and transnational crime, including terrorism, piracy,
armed robbery against ships, drug trafficking, smuggling of migrants, trafficking
in persons and all other kinds of trafficking transiting through the sea and IUU
fishing;
b) Protect the environment in general and the marine environment in the space of
coastal and insular States, in particular;
c) Promote a flourishing and sustainable Blue/Ocean Economy;
d) Promote and enhance cooperation in the fields of maritime domain awareness,
prevention by early warning and fight against piracy, armed robbery against ships,
illicit trafficking of all kinds, the pollution of seas, cross-border crime,
international terrorism and the proliferation of small arms and light weapons;
e) Establish appropriate national, regional and continental institutions and ensure the
implementation of appropriate policies likely to promote safety and security at sea;
f) Promote the inter-agency and transnational coordination and cooperation among
Member States, within the spirit of the African Peace and Security Architecture of
the African Union;
g) Boost the implementation of the 2050 AIM Strategy in conformity with
International Maritime Law;
h) Promote the training and capacity building of the maritime, port and industrial
sector, for the safe and responsible use of the maritime domain;
i) Cooperate in the field of Search and Rescue in line with the IMO SOLAS
Convention;
j) Further sensitize communities living next to seas for sustainable development of
African coastlines and biodiversity;
k) To promote and protect the right of access to the sea of landlocked countries in
accordance with the provisions of this Charter, the legal instruments of the AU and
other regional and international instruments;
l) Raise the level of social welfare of the concerned population;
ARTICLE 4
SCOPE
The present Charter shall cover:
a) The prevention and control of all transnational crime at sea, including terrorism,
piracy, armed robbery against ships, drug trafficking, smuggling of migrants,
trafficking in persons and all other kinds of trafficking, IUU fishing, prevention of
404
the pollution at sea and other unlawful acts at sea, under the jurisdiction of a State
Party in its area of responsibility;
b) All measures to prevent or minimize accidents at sea caused by ships or crew or
aimed at facilitating safe navigation;
c) All measures for the sustainable exploitation of marine resources and optimization
of the developmental opportunities of sectors related to the sea.
CHAPTER II: MEASURES TO PREVENT AND COMBAT CRIMES AT SEA
ARTICLE 5
SOCIO-ECONOMIC MEASURES TO PREVENT CRIMES AT SEA
Each State Party shall endeavour to:
a) Continue its efforts to take appropriate measures to create productive jobs, reduce
poverty and eliminate extreme poverty, encourage awareness of maritime related
issues in order to establish the best living conditions, and to strengthen social
cohesion through the implementation of a fair, inclusive and equitable policy to
address the socio-economic issues;
b) Stimulating the creation of jobs along the coasts, particularly by codifying and
promoting artisanal fishery through the training of sector stakeholders,
encouraging the local processing of fishery products, and facilitating their
marketing at national, sub-regional and international levels.
ARTICLE 6
STATES PARTIES RESPONSIBILITY
Each State Party undertakes, according to its own realities, where applicable, to;
a) Organise its actions at sea and to develop its capacity to protect its maritime area
and to provide assistance to other States Parties or third State as may be required;
b) Strengthen law enforcement at sea, through the training and the professionalization
of navies, coast guards, and agencies responsible for maritime safety and security,
custom authorities and port authorities;
c) Maintain patrols, surveillance and reconnaissance in the anchorage areas, the
exclusive economic zone and continental shelf for law enforcement, search and
rescue operations.
ARTICLE 7
NATIONAL COORDINATING STRUCTURES
1)
2)
Each State Party shall take measures to curb maritime crime and other forms of
unlawful acts, as part of on-going dialogue and effective cooperation between the
relevant national institutions.
Each State Party shall establish a national coordinating structure and centre for
awareness on maritime related issues to ensure the coordination of actions aimed
at safeguarding and enhancing maritime safety and security.
ARTICLE 8
HARMONIZING OF NATIONAL LEGISLATION
Each State Party shall, where appropriate:
a) Harmonise its national laws to conform with relevant international legal
instruments including UNCLOS,SOLAS and the Protocol of the 2005 Convention
for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation
of 1 November 2005; and
b) Train the staff responsible for their implementation, in particular personnel within
the justice system.
405
ARTICLE 9
RESOURCES TO GUARANTEE MARITIME SECURITY AND SAFETY
Each State shall adopt policies that guarantee the availability of resources either by public
funds or by forging public-private partnerships, needed for investment in equipment,
operations and training in the field of maritime security and safety in accordance with their
domestic procedures.
ARTICLE 10
FINANCIAL OBLIGATIONS OF FLAG STATES AND COASTAL STATES
Each State Party shall encourage cooperation between Flag States and Coastal States, so
that, in a spirit of co-responsibility, the financial obligations of security and safety in the
African maritime domain are shared and supported by the different actors concerned.
ARTICLE 11
MARITIME SECURITY AND SAFETY FUND
State Parties undertake to establish a Maritime Security and Safety Fund.
Chapter III: MARITIME GOVERNANCE
ARTICLE 12
MARITIME GOVERNANCE
Each State Party shall ensure good maritime governance based on better information
sharing, effective communication, and efficient coordination of their actions.
ARTICLE 13
MARITIME BOUNDARIES
Each State Party shall endeavour to delimit its respective maritime boundaries in
conformity with provisions of relevant international instruments.
ARTICLE 14
PROTECTION OF MARITIME TERRITORIES
Each State Party shall protect its maritime territories and ensure its maritime security and
safety in conformity with the relevant international laws and principles.
ARTICLE 15
FLAG STATE RESPONSIBILITIES AND PORT STATE CONTROL
Each State Party shall fulfil its Flag State and Port State Control responsibilities within
their jurisdiction to;
a) Eradicate sub-standard shipping practices;
b) Enhance security and safety; and
c) Protect the marine environment from pollution.
ARTICLE 16
TRAFFICKING IN HUMAN BEINGS AND SMUGGLING OF MIGRANTS BY SEA
Each State Party shall develop and implement sound migration policies aimed at
eliminating trafficking in human beings, especially women and children, as well as
smuggling of migrants by sea.
406
ARTICLE 17
DRUG TRAFFICKING
Each State Party shall develop and implement balanced and integrated strategies aimed at
combatting drug trafficking and related challenges in the maritime domain.
ARTICLE 18
SAFETY OF NAVIGATION
Each State Party undertakes to promote safety of navigation as well as the protection and
sustainable use of the maritime environment by:
1) Providing appropriate aids to navigation according to available resources;
2) Ensuring the best possible standardisation in aids of navigation; and
3) Facilitating access to information relating to aids of navigation.
CHAPTER IV: DEVELOPMENT OF THE BLUE/OCEAAN ECONOMY
ARTICLE 19
EXPLOITATION OF THE MARITIME DOMAIN
1) Each State Party shall explore and exploit their respective maritime domains in
accordance with the relevant international principles and standards.
2) Each State Party shall facilitate the engagement of non-state actors, especially the
private sector, in the development and implementation of the blue/ocean
economy.
ARTICLE 20
FISHERIES AND AQUACULTURE
1) Each State Party shall implement appropriate fisheries and aquaculture policies
for the conservation, management and sustainable exploitation of fish stocks and
other biological resources.
2) Each State Party shall carry out the necessary reforms for good governance in the
fishery sector and the promotion of continental fishing and aquaculture to
contribute to the creation of employment in the sector, reduced food insecurity
and malnutrition and promote economic diversification.
3) Each State Party shall take appropriate measures to effectively combat IUU
fishing activities within the framework of its respective national jurisdictions and
to take legal steps aimed at prosecuting the perpetrators engaged in IUU fishing.
ARTICLE 21
CREATION OF WEALTH AND JOBS THROUGH COASTAL AND MARITIME TOURISM
Each State Party undertakes to promote coastal and maritime tourism as a key sector, with
due consideration to the environmental dimensions, that generates considerable revenue
and creates jobs, and agree to promote the sustainable development of all associated
activities.
ARTICLE 22
INTEGRATED HUMAN RESOURCES STRATEGY FOR MARITIME DEVELOPMENT
1) Each State Party shall develop an integrated human resources strategy for the
maritime sector to support the provision of skills, taking into account gender
balance, in the entire maritime value chain which includes shipping and logistics,
offshore activities, fishing, coastal and maritime tourism, and safety and security.
407
2) Each State Party shall set up human resources development agenda, including
training, in accordance with the potential for economic growth and job creation
opportunities more widely along the maritime value chain.
ARTICLE 23
COMPETITIVENESS IMPROVEMENT
Each State Party shall improve competitiveness of its maritime industries, particularly in
international trade. To this end, each State Party commits to:
a) Encourage the creation and development of African maritime companies;
b) Promote access of African operators to maritime transport auxiliary services and
professions;
c) Create an enabling environment to foster equity investment by African operators
in foreign companies operating in Africa in maritime transport auxiliary services
and professions;
d) Prioritize trans-African cabotage to national and regional African maritime
companies, in order to promote intra-African trade and facilitate the socioeconomic interaction of the continent.
ARTICLE 24
DEVELOPMENT OF INFRASTRUCTURE AND EQUIPMENT RELATING TO MARITIME
ACTIVITIES
1) Each State Party shall develop and strengthen its infrastructure to enable its port
facilities to achieve its economic growth potential and competitiveness.
2) Each State Party shall encourage public-private partnerships to facilitates
modernisation of African maritime industries in order to provide a standard quality
services and contribute to the attainment of the objectives of sustainable
development.
ARTICLE 25
MEASURES TO MITIGATE CLIMATE CHANGE AND ENVIRONMENTAL THREATS
1) Each State Party shall adopt specific adaption and mitigation measures to contain
climate change and environmental threats to the marine environment in conformity
with relevant international instruments.
2) Each State Party shall establish information exchange and early warning systems
on marine pollution, including the dumping of toxic and hazardous waste and
unauthorized emissions from the high seas.
ARTICLE 26
PROTECTION OF MARINE BIOLOGICAL SPECIES, FAUNA AND FLORA
Each State Party shall preserve the marine environment and protect the biological species
of marine fauna and flora in the development process of its environment and biodiversity.
ARTICLE 27
TOXIC AND HAZARDOUS WASTE DUMPING
1) Each State Party shall develop a mechanism for the detection, prevention and
reporting of marine pollution, particularly through the dumping of toxic and
hazardous waste.
2) Each State Party shall prohibit the import, export, handling, accumulation or
dumping of trans-boundary hazardous waste, including radioactive materials,
408
chemical and organic waste in conformity with provisions of the Bamako and Basel
Conventions.
ARTICLE 28
PREVENTION OF ILLEGAL EXPLOITATION AND THEFT OF MARINE RESOURCES
1) Each State Party shall endeavour to prevent and effectively fight the illegal
exploitation and theft of marine resources in its respective maritime territory.
2) Each State Party shall prohibit trade in products derived from illegal exploitation
and plundering of marine resources within its maritime domain.
3) Each State Party shall prohibit trade in products derived from illegal exploitation
and plundering of marine resources from any State Party.
ARTICLE 29
MARITIME DISASTER RISK MANAGEMENT
Each State Party shall develop an integrated multi-sectoral and multidisciplinary strategy
for ensuring disaster risk management and reducing the severity and impacts of disaster.
CHAPTER V; COOPERATION
ARTICLE 30
COOPERATION IN THE EXPLOITATION OF THE MARITIME DOMAIN
Each State Party shall cooperate at national, regional and continental levels, in:
1) Developing and exploiting marine resources in their territorial waters through
scientific and technological exchanges, partnerships for research and innovation as
well as the promotion and strengthening of the blue/ocean economy, in accordance
with relevant international principals and standards;
2) Facilitating business partnerships in the maritime domain;
3) Harnessing state-of-the-art technologies, in conformity with the African Space
Policy and Strategy and other relevant instruments for maritime security and
safety.
ARTICLE 31
COOPERATION IN FISHING AND AQUACULTURE
1) Each State Party shall cooperate in order to ensure the sustainability of marine
biodiversity.
2) State Parties shall cooperate within the framework of the Fisheries Committees
established by its regional competent bodies and specialized institutions in order
to strengthen and promote sustainable management of fishery resources.
ARTICLE 32
COOPERATION IN COMBATING CRIMES AT SEA
1) State Parties shall cooperate and coordinate their actions in combating
transnational organized crimes of all kinds including the circulation and trafficking
of arms, maritime terrorism, drug trafficking, trafficking in protected species or of
its trophies, money laundering and its predicate offences, acts of piracy and armed
robbery against ships, taking of hostages at sea, theft of oil and gas, trafficking in
persons, smuggling of migrants, pollution of the seas and oceans, IUU fishing, and
illegal dumping of toxic and hazardous waste.
2) State Parties shall take adequate measures, individually and collectively, to
effectively fight organised crime, and ensure that the perpetrators of such crimes
are effectively prosecuted and denied the advantage of the proceeds of their crimes.
409
ARTICLE 33
MARITIME INFORMATION SHARING
1) State Parties shall establish a platform for exchange and sharing of experiences and
best practices on maritime safety and security.
2) State Parties shall endeavour to develop a system of information-sharing
integrating national, regional and continental structures for maritime domain
awareness aimed at;
a) Preventing the commission of unlawful acts at sea;
b) The arrest and detention of individuals preparing to or committing any unlawful
acts at sea; and
c) The seizure or confiscation of ships and equipment used in the commission of any
unlawful acts at sea.
ARTICLE 34
COOPERATION IN INTELLIGENCE SHARING
State Parties shall encourage cooperation in sharing intelligence between its national
services, regional and continental agencies and appropriate international specialized
organs, to ensure the effectiveness of the fight against unlawful acts at sea.
ARTICLE 35
STRATEGIES FOR AWARENESS ON MARITIME RELATED ISSUES
Each State Party shall adopt appropriate maritime strategies for awareness on maritime
related issues adapted to its national, regional and international maritime security and safety
situations in order to create greater awareness of the seas and oceans.
ARTICLE 36
SCIENTIFIC AND ACADEMIC COOPERATION
Each State Party shall encourage:
1) The strengthening of cooperation between its universities and training and research
institutes in relation to seas and oceans including those of the Pan African
University;
2) Maritime scientific research campaigns for development purposes; and
3) Support initiatives by training institutions in respect of capacity building in
maritime safety and security.
ARTICLE 37
CONTINENTAL COOPERATION FRAMEWORK
State Parties shall establish a framework for close cooperation in the field of maritime
security and safety with the national cross-sectoral mechanisms, the Regional Economic
Communities and other relevant bodies.
ARTICLE 38
REGIONAL COOPERATION STRUCTURES
State Parties shall establish, where they do not exist, regional cooperation structures in the
fight against crime at sea.
ARTICLE 39
NATIONAL COORDINATION FRAMEWORK
410
1) Each State Party shall develop national legal frameworks to coordinate their
respective legal interventions at sea.
2) Each State Party shall endeavour to incorporate cooperation mechanisms in its
national legal frameworks with a view to effectively combatting crime at sea.
3) Each State Party undertakes to promote, strengthen and sustain maritime rescue
coordination centres and the maritime rescue sub-centres for the efficient
organization of maritime search and rescue services.
ARTICLE 40
JUDICIAL AND LEGAL COOPERATION
1) State Parties agree to mutual judicial and legal cooperation on the basis of the
present Charter;
2) Each State Party shall cooperate on the basis of its bilateral or multilateral
agreements, or in the absence of a cooperation agreement, on the basis of its
national legislation.
3) Notwithstanding the differences in the legal framework of each State Party,
national legislation shall guarantee joint investigation mechanisms, secure
information exchange procedures, judicial requests, extradition and transfer of
detainees and other related mechanisms.
CHAPTER VI: MONITORING AND CONTROL
ARTICLE 41
COMMITTEE OF STATE PARTIES
1) A 15 – member Committee of State Parties is hereby established which shall be
responsible for monitoring the implementation of this Charter and recommending
follow-up actions.
2) The Committee shall be composed of the Ministers responsible for maritime affairs
or such other Ministers or Authorities as may be designated by the Governments
of the States Parties.
3) The Committee members shall be elected every three years, from among the five
regions of the continent on the basis of rotation, gender and geographical
distribution in accordance with AU procedures and practice.
4) State Parties shall adopt the rules of procedure of the Committee.
ARTICLE 42
STATE PARTIES REPORTS
Each State Party to the present Charter shall undertake to submit to the Committee a report
on the measures they have undertaken to give effect to the provisions of this Charter:
1) Within two years of the entry into force of the Charter for the State Party
concerned; and
2) Thereafter, every five years.
ARTICLE 43
REPORTS OF THE COMMITTEE
The Committee of the State Parties shall present, every two years, to the Assembly of the
Union, a report on the progress made in the implementation of the Charter.
ARTICLE 44
SECRETARIAT OF THE COMMITTEE
The commission shall act as the Secretariat of the Committee of the States Parties.
411
ARTICLE 45
SETTLEMENT OF DISPUTES
1) Any dispute or differences arising between State Parties with regard to the
interpretation, application and implementation of this Charter shall be settled by
mutual consent between the States concerned, including through negotiations,
mediation, conciliation or other peaceful means;
2) In the event of failure by the disputing parties to settle the dispute or difference in
accordance with Article 45(1), the disputing Parties may, by mutual consent, refer
the dispute to:
a) The African Court of Justice Human and Peoples’ Rights, where
applicable; or
b) An Arbitration Panel of three (3) Arbitrators whose appointment shall be
as follows:
I.
Two (2) Arbitrators each appointed by a Party to the dispute; and
II.
A third Arbitrator who shall be President of the Panel and
appointed by the Chairperson of the African Union Commission.
3) The decision of the Panel of Arbitrators shall be finding and binding.
ARTICLE 46
ANNEXES, GUIDELINES AND MODALITIES
1) Member States shall adopt, as and when necessary, Annexes to complement this
Charter. The Annexes shall be an integral part of this Charter.
2) A State Party which accedes to this Charter prior to the adoption of Annexes retains
the right to subsequently accede to the Annexes.
3) In the event of a State Party acceding to this Charter after the adoption of annexes,
the State Party must declare its intention to be bound by one or all of the Annexes.
4) State Parties shall also adopt guidelines and modalities to guide State Parties in
fulfilling their obligations under this Charter.
CHAPTER VII: FINAL PROVISIONS
ARTICLE 47
POPULARIZATION OF THE CHARTER
Each State Party shall take all appropriate measures to ensure the widest possible
dissemination of this Charter.
ARTICLE 48
SAFEGUARD CLAUSE
1) No provision in this Charter shall be interpretated as derogating from the principles
and values contained in other relevant instruments for the promotion of the
Maritime Security and Safety and Development in Africa.
2) Nothing in this Charter shall be construed as preventing a Party from taking any
action, compatible with the provisions of the United Nations Charter or any other
international instrument and that is limited to the exigencies of the situation, as it
considers necessary to its external or internal security.
ARTICLE 49
SIGNATURE, RATIFICATION AND ACCESSION
1) This Charter shall be open to Member States of the Union for signature, ratification
or accession.
412
2) The instrument of ratification or accession to the present Charter shall be deposited
with the Chairperson of the Commission who shall notify Member States of the
Union of the deposit of the instruments of ratification or accession.
ARTICLE 50
ENTRY INTO FORCE
1) This Charter shall enter into force thirty (30) days after the deposit of the fifteenth
(15th) instrument of ratification.
2) The Chairperson of the Commission shall notify all Member States of the entry
into force of the present Charter.
3) For any Member State Acceding to the present Charter, the Charter shall come into
force in respect of that State on the date of the deposit of its instrument of accession.
ARTICLE 51
RESERVATIONS
1) A State Party may, when, ratifying or acceding to this Charter, submit in writing
reservation with respect to any of the provisions of this Charter. Reservations shall
not be incompatible with the object and purpose of this Charter.
2) Unless otherwise provided, a reservation may be withdrawn at any time.
3) The withdrawal of a reservation must be submitted in writing to the Chairperson
of the Commission who shall notify other States Parties of the withdrawal
accordingly.
ARTICLE 52
DEPOSITORY
This Charter shall be deposited with the Chairperson of the Commission, who shall transmit
a certified true copy of the Charter to the Government of each signatory State.
ARTICLE 53
REGISTRATION
The Chairperson of the Commission shall upon the entry into force of this Charter, register
the Charter with the United Nations Secretary General in conformity with Article 102 of
the Charter of the United Nations.
ARTICLE 54
WITHDRAWAL
1) At any time after three years from the date of entry into force of this Charter, a
State Party may withdraw by giving written notification to the Depository.
2) Withdrawal shall be effective one year after receipt of notification by the
Depository, or on such later date as may be specified in the notification.
3) Withdrawal shall not affect any obligation of the withdrawing State Party prior to
the withdrawal.
ARTICLE 55
AMENDMENT AND REVISION
1) Any State Party may submit proposal(s) for the amendment or revision of this
Charter. Such proposal(s) shall be adopted by the Assembly.
2) Proposals for amendment or revision shall be submitted in writing to the
Chairperson of the Commission who shall transmit such proposals to the Assembly
at least six months before the meeting at which it shall be considered for adoption.
413
3) Amendments or revisions shall be adopted by the Assembly by consensus or,
failing which, by two-thirds majority of the Assembly.
4) The amendment or revision shall enter into force thirty (30) days after the deposit
of the receipt of the fifteenth (15th) instrument of ratification to the Chairperson of
the Commission of the African Union.
ARTICLE 56
AUTHENTIC TEXTS
This Charter is drawn up in four (4) original texts, in Arabic, English, French and
Portuguese languages, all four (4) texts being equally authentic.
IN WITNESS WHEREOF the undersigned, being duly authorized to that effect, has signed
this Charter.
ADOTED BY THE EXTRAORFINARY SESSION OF THE ASSEMBLY, HELD IN
LOME̒, TOGO, ON 15 OCTOBER 2016.
414
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Piracy jure gentium in territorial seas: a perspective from the East African seaboard
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