Eadie, Dr Edward N. --- "Definitions of piracy, particularly that of the International Maritime Bureau" [2001] MarStudies 16; (2001) 119 Maritime Studies 10
Definitions of piracy, particularly that of the International Maritime Bureau
Dr Edward N. Eadie[1]
Introduction
Traditionally, piracy jure gentium has been regarded as a customary international crime with commonly held acknowledgment of universal jurisdiction under which all States can take action independent of where the piracy occurred or the nationality of the pirates and their victims (Letts 1999), subject to the provision of international customary law that piracy jure gentium can take place only on the high seas or other area outside national jurisdiction. Such jurisdiction in relation to piracy has been incorporated into both the Geneva Convention on the High Seas 1958 and the United Nations Convention on the Law of the Sea (LOSC) 1982.
LOSC Definition of Piracy
Under LOSC Article 101 (United Nations 1983) piracy is defined as any of the following acts:
(a) 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;
(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 sub-paragraphs (a) and (b).
Moreover, under LOSC Article 58(2) the provisions of LOSC Articles 101-107 in relation to piracy are extended to apply within the exclusive economic zone (EEZ) provided they are not incompatible with LOSC Part V relating to the EEZ. Fundamental elements in the LOSC definition of piracy are that it must take place on the high seas (including the extension to the EEZ), be for private ends, and involve another ship or aircraft (Bateman 1997, Letts 1999). Thus, piracy as defined under LOSC cannot take place within the territorial sea of a sovereign state, cannot be for political purposes, and cannot originate from within a ship or aircraft subject to attack. Furthermore, under LOSC Article 107 seizure on account of piracy can only be carried out by warships or military aircraft, or other authorised ships or aircraft clearly marked and identifiable as being on government service (United Nations 1983).
IMO Rome Convention on Unlawful Acts
In view of the exclusion of politically inspired acts under the LOSC definition of piracy, and motivated by the unplanned hijacking of the Achille Lauro following the unexpected discovery by a steward of terrorists bound for Israel cleaning weapons in a cabin of the ship, an international convention of the Inter-national Maritime Organisation (IMO) entitled Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988 (the Rome Convention) was negotiated and entered into force in 1992 (Bateman 1997). Unlawful acts covered by the Rome Convention include the seizure of a ship by force, an act of violence against persons on a ship, and the placing onboard of devices likely to damage or destroy a ship. Subsequently, the Convention was extended by Protocol to cover fixed platforms at sea as used in petroleum exploration. However, a mobile rig regarded in law as a vessel is subject to the same jurisdiction in relation to both piracy and maritime terrorism as that applying to a ship. In contrast to piracy the Rome Convention does not have universal jurisdiction in relation to enforcement, but places an obligation on a State to establish jurisdiction through connection to the unlawful act. Moreover, the Convention requires a State having jurisdiction to either extradite those involved in a piratical or terrorist act, or institute prosecution itself. However, the Rome Convention has wider application than the piracy provisions under LOSC in that it covers maritime terrorism as well as private acts, and the perpetrators of the unlawful act need not come from another vessel, but can be onboard already as in the case of the Achille Lauro. According to Captain Pottengal Mukundan, Director of the International Maritime Bureau (Mukundan 2000) the Rome Convention has been ratified by only forty-three countries, and of these only India, China, and Japan are in Asia.
IMB Definition of Piracy
The International Maritime Bureau (IMB), which forms part of the International Chamber of Commerce (ICC) Commercial Crime Services based in London with a regional office known as the Regional Piracy Centre (RPC) located in Kuala Lumpur, defines piracy for statistical purposes (ICC Commercial Crime Services 2000) as:
An act of boarding or attempting to board any ship with the intent to commit theft or any other crime and with the intent or capability to use force in the furtherance of that act.
Thus, the IMB definition of piracy covers attempted as well as actual attacks and applies whether a ship is berthed, at anchor or at sea.
Basis for Breadth of IMB definition
It is appropriate to consider possible reasons why the IMB might have adopted a much broader definition of piracy than that in LOSC Article 101. An obvious starting point as pursued by Letts (1999) is to examine whether there is a commercial motive arising from the relationship of the IMB to the ICC of which it is part. The membership of the ICC comprises, among others, both shipowners and marine insurers. In the case of shipowners there is generally carrier immunity from liability in relation to piracy arising from the provisions of the amended Hague Rules contained collectively in the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading 1924 as amended by Protocol of 1968 (Visby Rules) and Protocol of 1979 (SDR Protocol). Indeed, many States have enshrined the amended Hague Rules in domestic legislation covering all international shipments into and out of the country. Under Article 4 Rule 2(c) of the amended Rules the carrier is absolved from liability arising from perils of the sea that under international shipping law include piracy. In consequence, it is in the interest of shipowners to have attacks at sea classified as piracy from the perspective of commercial expediency as suggested by Letts (1999), and in theory at least this would be consistent with the broader definition of piracy adopted by the IMB.
In the final analysis, however, the question of whether or not piracy is responsible for a specific loss will be determined by the facts of the case in relation to the legal meaning of piracy rather than the definition of piracy used by the IMB even though this definition probably has been influenced by various legal provisions as discussed later. Moreover, as observed by Letts and considered in more detail below, losses incurred by the owner of cargo or a ship due to piracy are generally covered by marine insurance, and an increase in such claims will be reflected in higher insurance premiums. Indeed, there has been a reluctance and in some cases a prohibition on the part of shipowners concerning the reporting of piracy attacks (Bateman 1997) because such reporting might possibly result in increased insurance premiums as well as shipping delays and damage to reputation, although the wisdom of such an approach by shipowners is seriously questioned by Ellen (1997), who compares the relationship of pirates to shipowners with that of bank robbers to bankers. Even though shipowner members of the ICC might benefit from the broad definition of piracy adopted by the IMB as suggested by Letts (1999), the extent of any such benefit is by no means clear for the reasons outlined.
In relation to the marine insurer members of the ICC it is concluded by Letts (1999) that inflated piracy reports would be against their interest as marine insurance policies generally provide for recovery of loss arising from perils of the sea and these include acts of piracy. In consequence, the interests of marine insurers in relation to piracy reports appear to be different from those of shipowners, although both are members of the ICC, so there is no clear economic rationale why ICC members overall should wish to inflate piracy reports. Moreover, as discussed above, it is the actual legal position in relation to piracy rather than the definition of piracy adopted by the IMB that determines commercial advantage or disadvantage of ICC members, and furthermore marine insurance premiums will be adjusted to reflect actual risks, so that a commercial basis for the broad IMB definition of piracy directly related to membership of the ICC is difficult to establish.
It is interesting to observe that in 1997 a group of seven Protection and Indemnity (P&I) Clubs essentially providing indemnity to shipowners against risks not otherwise covered by marine insurance pledged funds over a three-year period to ensure the short term future at least of the Regional Piracy Centre (RPC) in Kuala Lumpur (Chalk 1998), and in doing so presumably regarded the advantages arising from the work of the RPC as justifying the cost of its operations. According to Ellen (1997) this funding has not come from the most obvious source, and arose from the concern of and pressure from a member regarding the potential environmental dangers of piracy. Clearly, the environmental damage could be enormous if, for instance, a fully laden oil tanker became involved in collision or grounding as the result of a piracy attack in the Malacca or Singapore Straits, and such tankers with low freeboard travelling at reduced speed in narrow congested sealanes present an easy target for pirates.
In framing the definition of piracy the IMB would have been aware of conflicting definitions of piracy arising from the existence of both international and domestic law in relation to it. Indeed, in the case of Australia the Crimes Act 1914 defines piracy as an act capable of being performed on the high seas or in the coastal sea of Australia that includes the territorial sea outside the limits of a State or Territory (Letts 1999), so it is given a broader meaning in domestic law than under LOSC. The existence of such ‘statutory piracy’ in various legislative regimes might well have been a factor in influencing the IMB to adopt a wide definition of piracy. Moreover, in Re Piracy Jure Gentium (Ivamy 1976) the Privy Council in 1934 expressed the opinion that actual robbery was not an essential element in the crime of piracy jure gentium, and that a frustrated attempt to commit piratical robbery was equally piracy. This probably explains why the IMB definition of piracy covers attempted as well as actual attacks.
Independent of any legal ramifications of the definition of piracy adopted by the IMB, it would be to the advantage of shipowners through greater protection to ships, cargoes, and seafarers as well as involving fewer claims on marine insurers if the adoption of a wide definition of piracy as used by the IMB had the effect of contributing to greater national, regional, and international action in combating piracy and reducing the incidence of attacks. The IMB definition of piracy has been framed for statistical purposes (ICC Commercial Crime Services 2000), and the IMB would have been aware that any data it published would almost certainly have been taken at face value by the press. Indeed, journalists cannot be expected to appreciate the subtleties and confusion associated with jurisdictional aspects of piracy, and besides they are frequently working to a strict deadline. Moreover, a report in the press about piracy makes much more sensational reading than does use of the term sea robbery or even maritime mugging to describe an attack that took place. Consequently, the adoption of a broad definition of piracy is likely to lead through press and other reports to greater attention being taken by coastal states as well as regional and international organisations to the existence of a problem, and if such attention results in action against piracy it is in the interests of both shipowners and marine insurers who are among the members of the ICC. Even though, as discussed earlier, direct economic benefit to ICC members overall from the broad definition is not clear, indirect advantages arising from action to reduce piracy could be considerable.
A serious piracy problem, as occurred in the waters of the Malacca and Singapore Straits between 1990 and 1992, subsequently in the South China Sea, the territorial waters around Hong Kong and Macau, and other parts of Northeast Asia during 1993 to 1995, and more recently in Indonesian territorial waters (Chalk 1998), provides a bad reputation for proximate regional States, particularly if they appear to be indifferent to its existence. The piracy problem could lead also to a reduction in the quality and quantity of shipping visiting the region with adverse economic consequences for local ports as well as cost and inconvenience to exporters and importers. The publicised seriousness of the piracy problem in the seas around Singapore and Malaysia during 1990 to 1992 was probably an important factor in the actions taken by Singapore, Malaysia, and Indonesia which included increased anti-piracy patrols (Chalk 1998), and this had the effect of substantially reducing the piracy problem in that region. Moreover, another advantage of drawing the attention of coastal states through publicity to a piracy problem is that it results in greater domestic policing. This is the most effective means of tackling and eradicating piracy through the use of traditional law enforcement methods which attack it at source through the investigation of such matters as the disposal of stolen goods and links to organised crime (Bateman 1997). Indeed, relatively few pirates are actually captured at sea.
Adverse publicity about a piracy problem can result also in bilateral regional cooperation between countries, as established between Indonesia and Singapore in 1992, as well as between Indonesia and Malaysia in 1992, Malaysia and the Philippines in 1994, and Vietnam and Thailand in 1998 (Chalk 1998), in order to tackle the problem. Such cooperation is particularly important in regions like Southeast Asia where the existence of adjacent and opposite States leads to jurisdictional problems through uncertainty in the location of maritime boundaries as well as from overlapping exclusive economic zones and continental shelves. Indeed, pirates are well aware of such jurisdictional sensitivities that result in restrictions on pursuit and take advantage of them. Even though western power naval presence during the Cold War probably provided a deterrent to pirates, the use of naval forces is not the most appropriate means for combating piracy, and particularly not a matter for extra-regional navies that could be involved in long unplanned voyages as well as disruption to activities in bringing captured pirates within their jurisdiction for prosecution (Bateman 1997). Moreover, naval forces are reluctant to enter or act within the territorial waters of another State in the pursuit or suppression of pirates, and in the case of the Royal Australian Navy officers are instructed to intervene only in the context of saving life at sea and not to protect property or arrest pirates (Bateman 1997). Furthermore, even where there is a bilateral agreement between States designed to counteract piracy, such as that involving Indonesia and Malaysia (Chalk 1998), jurisdictional sensitivity prevents the patrol boats of one country from entering the waters of the other in pursuit of pirates although the other State is advised that pirates are entering its jurisdiction.
Publicity about serious piracy problems contributes also to encouraging international organisations such as the IMO to take greater action in relation to piracy. Moreover, in 1981 the IMO recognised the IMB by special resolution (Letts 1999), and in so doing gave added credence to the work of the IMB as well as subsequently to reports issued by the RPC. Such reports also heighten the awareness regarding piracy of other organisations such as the Nautical Institute and the International Shipping Federation, and the IMB provides a useful statistical basis on which they can act. Even though the overall statistics on piracy issued by the IMB are inflated by the inclusion of minor or trivial attacks, the IMB also publishes the number of attacks that involve violence (Bateman 1997). Moreover, the IMB provides a valuable practical service to shipowners, masters, and law enforcement agencies (Mukundan 2000) through the provision of information and advice that includes the Weekly Piracy Report (ICC Commercial Crime Services 2000), and has played an important role also in locating ‘phantom ships’ that have been stolen and their identity changed so they are essentially lost. According to Letts (1999) initiatives taken by maritime organisations to assist coastal states in the suppression of piracy include the establishment of a rapid response force of mercenaries and investigation squads to supplement government efforts.
Another important potential contribution of the IMB in drawing attention to what it regards as a serious piracy problem is the role publicity incorporating statistical information based on the IMB definition can play in getting piracy onto the agenda of comprehensive security issues. In this way it could make a valuable contribution as a regional maritime confidence and security-building measure (MCSBM) as advocated by Bateman (1997) in relation to maritime terrorism even though such terrorism needs to be considered differently from piracy.
Is the IMB definition justified?
The IMB definition of piracy can be criticised in that it incorporates incidents such as the theft of paint, mooring ropes, or outboard motors which can be regarded as somewhat minor, particularly when compared with piracy attacks that involve considerable violence and brutality including murder, danger to human life and ships, and potentially enormous damage to the environment (Bateman 1997). Indeed, less serious attacks classified by the IMB (Chalk 1997) as Low-Level Armed Robbery (LLAR), and generally comprising opportunist attacks that occur most frequently in territorial waters when a ship is berthed or at anchor, could more appropriately be described as sea robbery or maritime mugging, the latter being a term coined by Fursdon (1995) based on the analogy of such attacks with mugging on the streets of London, Paris, or New York. However, any definition of piracy (including that in LOSC Article 101) can be subject to controversy and criticism, and as discussed previously, the IMB definition does have some legal basis derived from definitions in domestic legislation as well as authoritative legal cases and opinions.
Possibly, the most compelling justification for the broad definition adopted by the IMB is that it results in dramatic publicity in relation to piracy. If this leads to greater action by the national governments of coastal States, regional cooperation among States, and international action to reduce piracy of whatever kind, it can be regarded as a positive outcome in the interest of seafarers, shipowners, cargo owners, marine insurers, and the environment. Indeed, it is of little immediate consequence to a seafarer confronted by a violent and life threatening situation whether an attack is taking place on the high seas or in the territorial waters of a coastal State. In practice, what is needed is a lower incidence of piratical attacks of all kinds, and if the broad definition of piracy adopted by the IMB helps in this way as a result of attention-drawing publicity and consequent action at national, regional, or international level it is a good thing.
Problem with Enforcement rather than Definition
The outcome of a number of serious cases of piracy, particularly those involving ‘phantom ships’, indicates that failure to achieve an effective outcome can arise from lack of enforcement rather than the adequacy of defining piracy. Such a situation is illustrated by the case of the Cypriot-registered Anna Sierra (Ellen 1997, Bateman 1997, & Chalk 1998) which was hijacked off the Thai-Cambodian border during passage from Thailand to the Philippines in September 1995. After being imprisoned onboard for two days by the pirates the crew of the Anna Sierra were put adrift in lifeboats without food, water, or navigation equipment, but by good fortune were later rescued in heavy seas by the crews of two Vietnamese fishing boats. Subsequently, assisted by the efforts of the RPC in tracking it down, the Anna Sierra was located in the southern Chinese port of Beihai with its name falsely changed to the Honduran registered Arctic Sea. When the ship was found the cargo of sugar and the pirates were still onboard, and the name Anna Sierra remained visible on the bow. Even though this was seemingly a clear case of piracy with the ship, cargo, and offenders all together, the pirates were eventually released (Ellen 1997). Indeed China, which had ratified LOSC, neither prosecuted the pirates nor returned the ship to its flag state Cyprus, and Cyprus did not act against the pirates as it had not ratified LOSC. Moreover, under the Rome Convention the pirates could have been prosecuted by China under domestic law.
Another example where lack of enforcement prevented action against pirates is that of the Malaysian registered Petro Ranger (Letts 1999) which was captured by pirates in the South China Sea in April 1998, and arrived subsequently in Chinese territorial waters with its name changed and the cargo of fuel siphoned off. However, action against the pirates was frustrated by Chinese authorities through failure to act on a request by Malaysia for the extradition of those onboard. Moreover, China did not take action itself against those accused of piracy, but repatriated them to Indonesia, and furthermore tried to justify its actions by claiming the Petro Ranger was engaged in smuggling activities and not piracy so that the matter of universal jurisdiction did not arise. However, there is strong suspicion that Chinese officials were involved in the piracy, and even some suggestion though unlikely that China was covertly using piracy as an indirect means of exerting its influence in relation to disputed jurisdictional claims in the South China Sea (Chalk 1998). In any event the lack of Chinese action appears to thwart what are otherwise satisfactory legal provisions related to piracy. Moreover, in the case of the Petro Ranger it is unlikely that a request by the Australian master of the Petro Ranger to the Prime Minister of Australia to pressure Indonesia into prosecuting the repatriated pirates will achieve anything in the present climate of tension between Australia and Indonesia (Letts 1999).
During October 1999 the Japanese owned and Panamanian registered Alondra Rainbow on a voyage from Indonesia to Japan with a cargo of aluminium ingots was hijacked by masked pirates armed with guns and swords, and the crew cast adrift in an open raft from which they were subsequently rescued by Thai fishermen (ICC Commercial Crime Services 1999). The IMB played an important role in tracking the hijacked vessel until it entered Indian territorial waters where it was intercepted by an Indian coast guard vessel, but ignored instructions to stop (Mukundan 2000). The hijacked vessel bearing the false name of Mega Rama and flying the Belize flag then proceeded at speed out of Indian waters, but was eventually apprehended by an Indian naval missile Corvette in international waters about 270 miles off the coast of India. Subsequently, the Alondra Rainbow was towed to Mumbai in India, where the captured hijackers have been charged with piracy. However, legal problems have arisen as the relevant provisions under LOSC had not been incorporated into Indian domestic law. In view of this it has been suggested by the IMB (Mukundan 2000) that ‘in the absence of a specific offence of piracy under the Indian penal code, the old English Piracy Act may still apply’. Moreover, as India has ratified the Rome Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, this could possibly be used to prosecute the offenders, although as with LOSC there could be legal problems if India has not incorporated this convention into domestic law. Thus, as seen in the cases of the Anna Sierra, Petro Ranger, and Alondra Rainbow, enforcement problems can arise in connection with piracy even though the international provisions relating to it appear adequate.
Conclusions
The IMB definition of piracy is much broader than that given in LOSC Article 101. In adopting this broader definition the IMB appears to have taken into account the existence of wide definitions of piracy contained in various domestic legislation such as that of Australia as well as opinions expressed in authoritative legal cases. However, the IMB definition has been framed for statistical purposes, and the law in relation to piracy is that embodied in international conventions and domestic legislation as well as relevant case law. Even though there is no clear overall direct economic advantage to ICC members, who include both shipowners and marine insurers arising from the breadth of the IMB definition, there do appear to be indirect advantages to all parties involved in or using the shipping industry flowing from publicity originating from the IMB that includes statistical information compiled on the basis of the broad definition of piracy adopted. This publicity can provide the catalyst for greater action at national, regional, and international level to combat piracy, and any such action is in the interest of all parties involved including seafarers, shipowners, cargo owners, marine insurers, and indeed the environment. Such enhanced action is even more important as problems can be encountered, particularly involving ‘phantom ships’, from the inability or unwillingness of States to enforce what are otherwise adequate international legal provisions related to piracy.
Acknowledgements
In connection with the preparation of the present paper the author wishes to thank Commodore Sam Bateman of the Centre for Maritime Policy at the University of Wollongong for his constructive comments as well as for encouragement and support, and Mrs Jillian Stevens of Adelaide for her dedication with the word processing.
References
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[1] Research Consultant, Adelaide, South Australia. Dr Eadie holds masters degrees in law and business (each related to shipping) from London University and the Australian Maritime College as well as doctorates in science and commerce from the universities of Adelaide and Oxford. Currently, he is doing a Master of Arts in Maritime Policy at the University of Wollongong.