Piracy in Modern International Law

Abstract

This chapter scrutinizes practical implications of the current issues of piracy in the international law as well as the efforts of the coastal states and international navies in addressing this crime. The lowest number in reported piracy and armed robbery incidents since 1994 was registered in first half of 2022. It was reached by means of the armed guards, increased naval presence and proper application by ship owners of the Best Management Practices to Deter Piracy and Enhance Maritime Security. The chapter also examines the geographical and conceptual limitations of the definition of the piracy, what results in the use of more broad terms: the concept of ‘maritime violence’ in theory, a broad definition of piracy in commercial contracts. The practice of ransom payment is considered in the absence of the ransom-related rule of international law as well as such negative effect of the ransoms payment as further supporting of pirate activity. The chapter also demonstrates the negative impact of the regional tensions on the number of the piratical and robbery attacks (for example, the case of South China Sea and the Gulf of Aden) and the need of the further inter-state cooperation in the area of combatting piracy.

1. Introduction

This paper examines the legal concept of piracy within the framework of international law. The article scrutinizes the existing rules of international customary and treaty law applicable to the repression of piracy and contains an executive summary of arising problems. The ways and methods that were employed for overcoming piracy were analyzed.

Although the framework for the repression of piracy under international law is provided in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the authority of this convention and international law was undermined by the tensions between the Philippines and China over the South China Sea and resulted in refusal of China to comply with the decision of the Arbitration court. Since the concerns arise that such strong disagreements between the parties can negatively impact the maritime security, states have to improve the dialog on the management of the sea regarding the piracy.

In first half of 2022, the reduction in reported piracy and armed robbery incidents was registered (58 against 68 in first half of 2021) due to the efforts of the coastal states and international navies in addressing this crime. This number is the lowest since 1994. The drop in the number of incidents was reached by means of the armed guards, increased naval presence and proper application by ship owners of the Best Management Practices to Deter Piracy and Enhance Maritime Security.

The definition of piracy is scrutinized in this article. However, it should be noted that current numbers are likely under-reported.

The geographical and conceptual limitations of the definition of piracy exclude from the UNCLOS definition of piracy the attacks in the territorial sea or in the internal waters of a coastal state, committed by stowaways or crew members, ship hijacking, attacks of criminals onboard and so on for political ends and national interests. As a result, in international law, the concept of ‘maritime violence’ was developed. In commercial contracts, piracy is defined more broadly.

The practice of the ransom’s payment is considered in framework of available international law rules.

This paper discusses some legal gaps in the anti-piracy regime as well as the need of the states to develop further cooperation to combat maritime piracy in order to make anti-piracy regime more effective.

This article is divided into six parts. After short introduction in Part I, Part II provides a general overview of international law of the sea. Part III contains contemporary piracy data. Part IV explores international and regional piracy law as well as the concepts of maritime violence and non-legal definitions of piracy. Part V provides an overview of impact of modern piracy on international commerce. It identifies a number of deficiencies in the international legal framework. Part VI considers a number of legal and practical proposals to suppress piracy.

The article ends with an appropriate conclusion and references.

2. General overview

Maritime transportation ([1], p. 73) accounts for about 90% of world trade, and therefore, anti-piracy legal measures play a crucial role in ensuring the stability of maritime transportation and modern trade in general. The contemporary law of the sea as well as law of the piracy was codified in the 1982 UNCLOS ([2], p. 298). This convention is binding on the states that have signed and duly ratified the document. The United States, Turkey, Iran did not ratify UNCLOS.

Although UNCLOS is a universally accepted convention, some states in their territorial claims do not align with UNCLOS. For example, these are the East China Sea disputes between Japan and Korea, between China and Japan and between Japan and Russia, the South China Sea’s disputed islands claimed by China, Vietnam, Malaysia, the Philippines, Brunei and Taiwan, the Paracel Islands claimed by China and Vietnam [3].

In 2013, the Philippines even initiated the case before the UNCLOS Arbitral Tribunal in The Hague [4] on territorial claims in the South China Sea, the legality of China’s alleged harassment of Philippines vessels and damage to the marine environment [5].

China claims sovereignty and historic rights over these territories based on the exercising authority and control over the entire South China Sea prior to and during the period of its colonization and occupation by Japan. China confirms its title over the islands of the South Сhina Sea by means of the historic documents beginning with X-XIII century.

The Philippines contested Chinese claims for ‘historic rights’ over the islands and other maritime features in the South China Sea based on the rules of the UNCLOS ([2], pp. 265–267).

On 12 July 2016, the Arbitral Tribunal in the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China) [6] issued a ruling in a case between the Philippines and the People’s Republic of China (PRC or China) [5].

The tribunal concluded that China’s claims to historic rights within the ‘nine-dash line’ were contrary to UNCLOS. The tribunal also ruled that China breached the provisions of UNCLOS by prohibiting fishing in areas of the South China Sea and construction of artificial islands, installations and structures at Mischief Reef as well as its obligations concerning the protection and preservation of the marine environment in the South China Sea (harvesting endangered species, construction of artificial islands, installations and structures damaging the coral reef ecosystem [6]).

Herewith the tribunal upheld the Philippines’ sovereign rights and jurisdiction within 200-nautical-mile exclusive economic zone and affirmed that the maritime claims of China were expansive and had no basis in international law [7], undermining the rule of international law in the oceans and the UNCLOS ([8], p. 30).

Based on the 2006 Declaration, which excludes any of the procedures provided for in Section 2 of Part XV of the Convention ([2], p. 269) from the compulsory dispute settlement procedure of the Convention in accordance with Art. 298 UNCLOS ([9], p. 42), China rejected this ruling. The whole week before the announcement of the decision the military training of the People’s Liberation Army of China was carried out [10].

Since the UNCLOS does not have any enforcement mechanism for such cases, the Philippines just continues to insist on this decision by means of diplomacy and particularly in negotiations [6].

Refusing to comply with the decision, China not only undermines the authority of UNCLOS and international law, but also deepens regional tensions [5]. The concerns arise that such strong disagreements between the parties can negatively impact the maritime security in the region and the number of the piratical and robbery attacks (the acts of violence not in the disputed territories, but in the area in their vicinity). This is also illustrated by the case of the Gulf of Aden, when the territorial conflicts resulted in the piracy and armed robbery at sea attacks in this area.

The territorial dispute results in the active counteraction from regional coastal states, the United States and their allies having their own interests in this region attracting the Navy forces of different states. As a result of the tensions in the disputed territories of the South China Sea pirates from Malaysia, Vietnam, Indonesia and Philippines received the morally legitimated right to act against the Chinese trade and fishing vessels in the South Chinese Sea. The similar ‘legitimization’ has already resulted in the increase of the Somali piracy in the beginning of the 2000s ([11], pp. 123–124).

Several gangs work in the South China Sea with their own control zones and capture ships in order to receive ransoms (Singapore’s and Jakarta’s piracy syndicates Southern part of the South China Sea, Hong Kong syndicate in northern part of the South China Sea. At present, the situation with piracy in the South China Sea is comparatively quite ([11], pp. 1160), according to the statistics there is no piracy attacks and armed robbery at sea attack in the South China Sea since 2014, although there were 31 incidents in 2010, 13 in 2011, 2 in 2012, 4 in 2013, 1 in 2014 in South China Sea ([12], p. 6). Although the piracy and armed robbery incidents stopped, nevertheless, the vessels are advised to continue to remain vigilant, especially during the night ([13], p. 20).

Generally, there are few incidents in the Chinese waters and a lot of incidents in the Philippines waters. On the maritime spaces of the Philippines in 2010, five incidents were registered, 2011–5, 2012–3, 2013–3, 2014–6, 2015–11, 2016–10, 2017–22, 2018–10 ([12], p. 6), in 2019–3, 2020–4, 2021–5, 2022–2, on the Chinese waters – 1 incident in 2010, 2 in 2011, 1 in 2012, 4 in 2015, 7 in 2016, 2 in 2017, 3 incidents in 2018, 3 in 2019, no reported incidents in 2020–2022 ([13], p. 6). On the territory of the Philippines, some ships were robbed and their crews were kidnapped for ransom ([13], p. 20). A conclusion could be made that the Philippines is not capable to exercise a control over the South China Sea in the proper manner combatting enough piracy and armed robbery in the South China Sea. The historic document shows that the Chinese government exercising its jurisdiction took care on combating banditry and piracy in South China Sea from the middle of the sixteenth century, strengthening defense at sea and punishing piracy and banditry in the South China Sea, conducting naval patrols ([14], pp. 458–468).

In order to improve the situation with the piracy, it is necessary to stop the political disputes and to prevent the U.S. intervention in the local problems that have to be solved directly between the coastal states [10]. Both the states have to improve the dialog on the management of the sea also regarding the piracy [5].

The concentration of Navy vessels in the disputed areas also causes the increase of the piratical attacks in the areas with main trade routes.

The legal definition of ‘warship’ in art. 29 UNCLOS implies 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 the State and whose name appears in the appropriate service list or its equivalent and manned by a crew which is under regular armed forces discipline.

The status of warships in the Law of the Sea ([15], p. 144) enjoys the innocent passage, transit passage and archipelagic sea lanes passage, however, with certain limitations. According to Art. 236 UNCLOS, the provisions of this Convention regarding the protection and preservation of the marine environment do not apply to any warship; however, each State shall ensure, by the adoption of appropriate measures, that such vessels or aircraft acts in a manner consistent, so far as is reasonable and practicable, with this Convention.

Warships enjoy the right to innocent passage in territorial waters. The coastal state may not hinder the innocent passage of the foreign vessel in its territorial sea without proper reasons. If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately (Art. 30 UNCLOS).

Submarines are also allowed to transit submerged. According to Art. 19 UNCLOS, passage shall not be prejudicial to the peace, good order or security of the coastal State and be aimed at collecting information to the prejudice of the defense or security of the coastal State.

Warships enjoy the right to transit passage through straits used for international navigation. In 1949, the International Court of Justice (ICJ) in the Corfu Channel case declared that the right to innocent passage through international straits for warships goes without the previous authorization of a coastal State and could not be suspended by the coastal state. In transit passage, warships must refrain from any threat or use of force against the States bordering the straits and activities that might violate the principles of international law. If warships or military aircraft constitutes a threat or use force, the coastal state can hamper passage.

Transit passage may not be suspended by the coastal State, whereas innocent passage may be temporarily suspended.

Archipelagic sea lanes passage also has to be exercised by the warship solely for the purpose of continuous, expeditious and unobstructed transit.

One of the examples of the passage of naval vessels raising a lot of disputes in the international law is the passage of warships through the Black Sea.

The UNCLOS did not govern the passage of warships through the Black Sea, the maritime traffic in which is regulated in the Montreux Convention. Since 28 February 2022, Türkiye blocked the Bosporus and the Dardanelles in accordance with Article 19 of the Montreux Convention for Russian naval vessels, since the Russia and Ukraine were considered to have a war. However, some Russian merchant vessels with military equipment navigated via the Bosporus Strait after this closure causing disputes in the international community.

Another examples concern US warships sailing in Taiwan Strait in the end of the August 2022. The US warships navigated in the territory, which is considered by China not international waters, but a part of Taiwan, a province to be reunited, by force if necessary, launched military exercises in the area and raised concerns about the US attempt to interfere in China’s internal affairs. In summer 2022, the US Navy destroyers insisting on their right on innocent passage in this area also sailed in disputed South China Sea area without permission or prior notification, causing the use of force against it from the China side.

This incident with the U.S. Navy (submarines underwater) entering the territorial sea of other states, not complying with the requirements of the Convention, clearly demonstrates the existence of the different concepts to the innocent passage and territorial sea in the international law.

The United States does not see the violation of the international law in this case, because they consider that military vessels were situated on the territory of the rayon of the ‘international waters’, but not the territorial sea according to the UNCLOS. This Convention was not signed by the United States due to including the reasons of insufficient consideration of military strategic interests of the United States in the data collection ([16], p. 27), including the intelligence ([17], p. 26) during the innocent passage of the submarines through the territorial sea of the other states precisely in the underwater position and the possibility to move the Navy unimpeded ([18], p. 60–68). The representatives of the United States even acknowledge that the submarines periodically enter the territorial sea of the other states.

It seems that the rules of the international law do not provide to the warships the right to enter the territorial sea and international straits with violation of innocent or transit passage. These disputes shall be regulated with the assistance of the international legal mechanisms and increasing of the maritime security.

As the maritime industry continues to recover from the effects of the pandemic, we are now faced with the challenges caused by the ongoing crisis in the Ukraine and Black Sea region.

The 2022 International Chamber of Commerce (ICC) International Maritime Bureau (IMB) piracy report mentions inter-state territorial dispute between Ukraine and Russia. However, the report indicates that this conflict is not piracy-related. Nevertheless, the report advises to stay clear of Ukrainian coast, since that mines are reported in the Black sea ([13], p. 22).

The situation in Ukraine could not be characterized as piracy. Nevertheless, a number of commercial issues including insurance scenario in respect of both vessels and crew of vessels caught in Ukrainian ports, crew repatriation from vessels, the prolonged detention of the ship arise.

In the year 2022, the Joint War Committee added into its usual list of piracy hotspots inland waters of Russia within the Crimean Peninsula, part of River Don, part of River Donets and the Sea of Azov and Black Sea waters, all inland waters of Ukraine, inland waters in south of Belarus. These listed areas will be incorporated into all war risk policies. Although in Russia this war can only be referred to as a ‘special military operation’, war exclusion clauses will apply. Since usual marine insurance policies exclude war or hostile actions, additional war insurance shall be purchased for these high-risk areas. However, claims covered by sanctions will not be paid at present.

3. Modern piracy data

The piracy causes a significant harm on the global economy amounting to several million US dollars annually ([19], p. 318) due to increasingly high ransom demands, property theft, damage to vessels and the general insurance costs in the maritime shipping industry. The maritime shipping needs protection, since even international humanitarian aid vessels from the United Nations (UN) World Food Programme and other international programs addressing poverty and instability are being attacked by pirates’ acts ([20], p. 234).

The efforts of the coastal states and international navies in addressing this crime seem to be successful. In first half of 2022, the reduction in reported piracy and armed robbery incidents was registered (58 against 68 in first half of 2021) ([13], p. 25). This number is the lowest since 1994: in 1996, 228 attacks were reported in the world, in 1997–252, 439 incidents in 2011, 297 in 2012, 264 in 2013, 245 in 2014, 246 in 2015, 191 in 2016, 180 in 2017, 201 in 2018, 162 in 2019, 195 in 2020, 132 in 2021. The drop in the number of incidents was reached by means of the armed guards, increased naval presence and proper application by ship owners of the Best Management Practices to Deter Piracy and Enhance Maritime Security. However, it should be noted that current numbers are likely under-reported.

Some unreported incidents took place in the Malacca Straits. Over 25% of all incidents reported globally in first half 2022 have been occurred in the Singapore Straits ([13], p. 25): 11 in 2020, 16 in 2021, 16 in 2022.

According to the statistics the Gulf of Guinea, Indonesia and Peru continue to be dangerous for seafarers; however, there is a significant reduction in the number of incidents of piracy and armed robbery in the Gulf of Guinea (includes the coastal lines of Benin, Cameroon, Equatorial Guinea, the Republic of the Congo, Togo, the Republic of Côte d’Ivoire, Ghana, Nigeria and the Democratic Republic of the Congo, Liberia, Gabon, Angola, São Tomé and Príncipe): 12 incidents were reported in the first half of 2022 in the Gulf of Guinea: 10 incidents as armed robbery, 2 as piracy ([13], p. 25).

The Gulf of Guinea by 2011 was threatening international maritime shipping and seafaring off the coast of Nigeria, according to ICC IMB’s data. In 2012, 43 attacks on vessels were reported in the Gulf. Beginning in 2013, the rate of pirate acts in the region showed a tendency to decline (see Table 1).

Year	The number of pirate attacks
	in the Gulf of Guinea	near Nigerian coast	in the world (totally)
2014	40	18	245
2015	31	14	246
2016	55	36	191
2017	40	33	180
2018	82	48	201
2019	35	21	162
2020	35	14	195
2021	22	4	132
2022	12	0	58

Table 1.

The total number of pirate attacks in the region [12, 13, 21, 22].

In its last Resolution 2634 (2022) adopted on the Gulf of Guinea by the UN Security Council (SC) on 31 May 2022, the coastal states of the Gulf of Guinea were called to criminalize piracy and armed robbery at sea under their domestic laws and to investigate and to prosecute or extradite, in accordance with applicable international law, perpetrators of piracy and armed robbery at sea.

Seven incidents were registered in the Indonesian archipelagic waters in the first half of 2022 compared with five incidents in the first half of 2021.

Only one reported attack in 2021 was attributed to Somali pirates, no incidents were reported for the area of Golf of Aden from 1 January to 30 June 2022 to the IMB ([13], p. 17). The successful solution for the long piracy crisis in Somalia region is based on the common actions of the world community.

The piracy off the coast of Somali first became a threat to international maritime shipping and seafaring in general during the civil war in the country. Then the piracy reached the level of the organized crime ([23], p. 551). The number of pirate attacks grew slowly but inevitably: according to the ICC IMB’s data, there were 10 pirate acts in 2006, 78 attacks in 2007, 44 attacks in 2009, 51 attacks in 2010, and in 2011, there were reported 125 pirate acts of various kinds, all off the coast of Somali. In 2009, in the Gulf of Aden, 100 assaults were reported, in 2010, there were 33 attacks, and in 2011, 20 pirate acts ([24], p. 223). However, after a distinct surge in 2011, the number of pirate attacks off the coast of Somali dropped in 2013 to only 20 cases (by very nearly 90% as against figures of 2012). By the end of 2013, the situation off the coast of Somali had calmed down so obviously that the region ceased to be regarded as the ‘flash point’ of maritime piracy [21]. In 2014, 11 attacks took place, in 2015, 2019, 2020, 2022 no incidents, in 2016–2 incidents took place, in 2017 - 9 incidents took place, 3 incidents took place in 2018, 1 incident in 2021 ([12], p. 6).

Although there were no reported incidents in the Gulf of Aden in 2022, the vessels transiting the area were advised to apply the necessary security measures.

In Malacca Straits, the number of incidents has dropped substantially due to the increased patrols by the littoral states since 2005. Nevertheless, vessels are advised to continue maintaining strict anti-piracy/robbery watches when transiting the Straits ([13], p. 20).

It should be noted here, however, that many pirate acts are never reported, so we actually can find no exact statistical data on the issue. Most vessel owners do not officially report piracy to the law enforcement and even to insurers, because procedures involved are long and awkward: the vessels are being delayed in ports during investigations. Also, this information could have a negative impact on the image of their company as well as loss of clients.

Such reports may result in increment of insurance rates ([25], p. 94) by as much as 30%; that is why, most carriers do not report piracy incidents.

4. International piracy law

The crime of piracy was mentioned in Ancient Greek writings and in a treaty between the Romans and the Carthaginians in around 509 B.C. Later the acts of piracy took place since 1500s in the areas of the Caribbean, South America, the Mediterranean Sea and the Indian Ocean ([26], p. 718).

The act of piracy makes the perpetrators hostes humani generis, that is, common enemies of mankind. Piracy is a universal crime, so any state can detain and arrest pirates and take appropriate repressive measures against them ([27], p. 161), capture and punish the pirate ([28], p.184). The universal jurisdiction does not apply to acts committed within national jurisdictions. In addition to this, no chase or pursue of pirates can be done by one state’s vessels in the waters of another state until made legal.

In 1926, the League of Nations examined the first draft of the Convention on the combat with piracy ([29], p. 1159). The draft was not approved ([30], p. 354).

During the first UN Conference on the Law of the Sea, the 1958 Convention on the High Seas was adopted with the obligations of all States to cooperate to the fullest possible extent in the repression of piracy (art. 14). The conventional definition of piracy in art. 15 of the 1958 Convention on the High Seas was limited to the high seas and the economic exclusive zone. A crime may be qualified as piracy being committed only in this area. The rules on liability for the seizure of a ship or aircraft on suspicion of piracy without reasonable grounds ([31], p. 159] are also set in the 1958 Convention.

4.1 The UNCLOS framework

The definition of piracy is contained in articles 100–107 of the 1982 UNCLOS.

Article 101 defines piracy as any illegal act 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 on the high seas or in a place outside the jurisdiction of any State against another ship or aircraft or against persons or property on board such ship or aircraft. Participation in such acts, inciting or intentionally facilitating such acts, also constitutes an international crime ‘piracy’.

This definition of piracy has limitations, since it applies only to attacks committed in the high seas (as well as exclusive economic zone or to another place outside jurisdiction of any State) for private purposes, the involvement of two ships is necessary. In such a way, the attacks in the territorial sea or in the internal waters of a coastal state, committed by stowaways or crew members, ship hijacking, attacks of criminals onboard and so on for political ends and national interests are excluded from the UNCLOS definition of piracy.

This is considered as a gap in the international law, since 80% of all attacks are committed by pirates within jurisdiction and the territorial sovereignty of a coastal state ([32], p. 3; [33], p. 94).

The ‘private ends’ requirement in the UNCLOS definition of piracy has a historical basis: in the past, some states employed pirates and used them against their enemy states ([34], p. 104). Such privateers were given permission by their governments to pillage foreign ships in order to supplement their resources ([26], p. 718).

However, these geographical and conceptual limitations of piracy definition contained in the UNCLOS do not disturb efficiency and sufficiency of the rules of international law applicable to combat against piracy ([35], pp. 3–4), since UNCLOS is complemented through other legal instruments.

4.2 Anti-piracy provisions of Rome conventions, 1988

Since the UNCLOS limits the concept of piracy by the ‘two-ships’ requirement of UNCLOS, ‘internal hijackings’ or the forceful taking of control of a ship by members of its crew or passengers ([36], p. 21), holding a ship’s crew and other passengers by a group of passengers for ransom purposes, the commitment of military action against a ship by warships or other authorized vessels on government service are excluded from the UNCLOS.

The 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) и the 1988 Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf (SUA PROT) also do not apply to territorial waters. Nevertheless, these documents cover the acts irrespective the motivation and without the ‘two-ships’ requirements.

The development of the SUA documents resulted after attack on the Italian ship ‘Achille Lauro’ in 1985, when some passengers demanded release of Palestinian prisoners ([37], p. 860). The SUA documents were developed and adopted with the purpose to ensure that appropriate action is taken against persons committing unlawful acts against ships.

Both documents entered into force on 1 March 1992. As of 31 August 2022, 166 Contracting States ratified the SUA (approximately 95.16% of the gross tonnage of the world’s merchant fleet), 156 states (approximately 94.84% of the gross tonnage of the world’s merchant fleet) – the SUA PROT.

It is likewise significant that SUA has not been ratified by states such as Eritrea, Somalia, Indonesia or Thailand, Malaysia, Butane, Indonesia, Nepal, Papua New Guinea, Thailand, Macao. The non-ratification of these agreements for these countries is dangerous, since namely in this region the main source of the piracy threat is situated.

The 1988 SUA Convention contains the obligation of Contracting Governments whether to extradite or prosecute alleged offenders. This principle “aut dedere, aut judicare” is unknown for the law of piracy. This mechanism guarantees the punishment of the perpetrators of the acts of piracy and other attacks.

The Convention obliges Contracting State to either extradite or prosecute alleged offenders (Art.7), if an offense is committed against a ship flying its flag or in its territory or by a national of this State (Art. 6). This is an additional guarantee that the perpetrators of such acts will be punished.

The Convention considers as unlawful acts the unlawful and intentional seizure of ships by force; acts of violence against persons on board ships; and the placing of devices on board a ship which are likely to destroy or damage it; damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship etc. (Art. 3).

Protocol of 2005 to the SUA (SUA 2005) was adopted in 2005, entered into force in 2010 and ratified by 52 states. Protocol of 2005 to the SUA PROT (SUA PROT 2005) was adopted in 2005, entered into force in 2010 and ratified by 45 states.

This Protocols 2005 add to the unlawful acts against the safety of maritime navigation covered by SUA documents the following acts: intimidation of a population or compelling of a Government or an international organization to do or abstain from doing any act, a) using explosive, radioactive material or biological, chemical, nuclear (BCN) weapon/discharging oil, liquefied natural gas or other hazardous and noxious substances (HNS) from a ship/using a ship to cause death or injury, b) transporting on board a ship any explosive, radioactive material, any BCN weapons or any source material, etc. (Art. 3bis).

The Protocols 2005 also consider a vessel as a destroying instrument, causing damage or harm to people or property ([38], p. 165).

The Protocols 2005 also contain new provisions to board a ship flying the flag of another Contracting State if there are reasonable grounds to suspect that the ship or a person on board the ship is involved in committing an offense prosecuted by the Convention (Art. 8bis). The mechanism of stopping and seizure of the vessels in the high seas is elaborated in details.

These Protocols are the legal basis for activity on stopping and boarding the vessel on the high seas.

4.3 Concept of maritime violence and non-legal definitions of piracy

The geographical and conceptual limitations of the definition of the piracy result in the use of more broad terms.

In international law, the concept of ‘maritime violence’ was developed, covering the common elements of all crimes committed at sea and not only piracy ([39], p. 45). A new concept of maritime violence comprises all crimes at sea such as piracy, terrorist attacks, illegal transportation of weapons and drugs, armed robbery, slave trade, illegal migration, transnational organized crimes and illegal waste dumping at sea.

The concept of maritime violence is not finally formulated in international law ([40], p. 26).

The ‘private ends’ requirement in the international law concept of the piracy excludes politically motivated acts. However, in the case law acts of violence committed by environmental activists are also qualified as ‘piracy’ by national courts. For example, in 1986, the Belgic Court of Cassation ruled in Castle John v. NV Mabeco (Castle John and Nederlandse Stichting Sirius v. NV Mabeco and NV Parfin) against a vessel of Greenpeace accused of committing ‘an act of piracy’ against a vessel of Holland for polluting, according to Greenpeace, the environment. Such qualification of the acts of violence committed by environmental activists as ‘piracy’ is not legally accurate and contradicts the rules of the international law on UNCLOS ‘for private ends’ for piracy definition ([29], p. 1172).

The IMB developed its own definition of piracy including criminal acts committed not only on the high seas or in EEZ, but also unlawful acts against vessels in internal waters and territorial seas.

Acts of violence in internal waters and territorial seas, committed not ‘for private ends’, are also covered by journalistic use of the term ‘piracy’ when referring to such examples as acts of seizure by Iran of a British tanker ‘Stena Impero’ in the Iranian territorial sea and by Great Britain of an Iranian tanker in the Strait of Gibraltar ‘Grace 1’ in 2019.

Another example of such classification of an incident as an act of piracy is a seizure of Navy Ukranian ships the Nikopol, the Berdyansk and Yany Kapu in the Azov sea on 25 November 2018 [41]. The statements supporting Ukraine classified this act as piracy violating the UNCLOS, although the Ukrainian vessels violated the borders of the Russian territorial sea. However, Russia considered the navigation of these ships as violating its state borders in accordance with articles 19 and 21 UNCLOS by the illegitimate entry into the temporarily closed sea area of the territorial sea of the Russian Federation. Only after a series of international proceedings, the conflict was settled.

The attempt of the Greenpeace activists on 18 September 2013 to scale the Prirazlomnaya drilling platform as a protest against oil production in Arctic was charged first as an act of piracy. This incident raised a discussion around the broad interpretation of the term piracy, since the Greenpeace icebreaker under the Dutch flag ‘Arctic Sunrise’ was seized by Russian security forces. Although the Netherlands instituted arbitral proceedings against Russia in the ITLOS in Hamburg, Russia did not participate in the ITLOS proceedings, ignored the tribunal’s ruling [42]. First, the protests of the environmental activists were considered as a piracy, later the condemned actions were reclassified to Part 2 Section 213 of the Criminal Code (fraud) in hooliganism. The detained persons were afterwards released on bail and granted amnesty, the arrest of the vessel was lifted.

5. Piracy in commercial contract

Although UNCLOS restricts piracy to the high seas, piracy is defined more broadly in commercial contracts and covers all violent theft or attempted theft committed in any part of the sea. In such a way, term of piracy in the contracts of carriage diverges from rules of the international public law.

A special insurance coverage is provided for against the risk of piracy for the shipping industry ([43], pp. 432–433). Insurance premium levels depend on the current situation in the area of navigation.

For example, during the piracy crises in the area of the Gulf of Aden, the cost of kidnap and ransom insurance premium for this area has risen almost 10 times. In 2008, the area of the Gulf of Aden and Western part of the Indian ocean were classified as a ‘war risk area’ with special insurance premiums. Insurance of risk of piracy for navigation during several days in the dangerous waters cost up to 30,000 US dollars; however, such insurance covered the ransom payment up to 2–3,000,000 US dollars, pirate’s negotiation services, even the medical services if it is necessary. It should be noted that the ransom payments reached huge amounts. In 2013, the ransom for release of the Greek tanker ‘Smyrni’ with the crew of 26 people was paid in amount of 9,500,000 US dollars. Another example is the seizure of the new Saudi tanker ‘Sirius Star’ in the coastal waters of Kenya in 2008, when 8,000,000 US dollars were paid as a ransom for the release of this vessel.

However, the negative effect of the ransom’s payment is a further supporting of further pirate activity. It is difficult to combat this practice, since it is often cheaper for a ship-owner to accept the demands of pirates and to pay ransom rather than to leave it to the law enforcement bodies to take a decision on the release of the vessel and its crew from pirates.

In any case, there is no ransom-related rule of international law ([44], p. 59).

Sometimes the payment of a ransom to the pirates is considered although not illegal, but contrary to public policy. Consequently, a contract of insurance may be rendered invalid or unenforceable on public policy grounds.

In the case Masefield AG v Amlin Corporate Member Ltd. – one of the insurance claims for the losses resulting from piracy dealt in the English courts ([26], p. 719), the ransom payment was declared as not contrary to public policy, since it is not illegal, and it had to be paid in order to rescue the vessel crews. The Masefield decision confirmed that ransom payments are not unlawful under the English law ([26], p. 732), since there is no legislation against the payment of ransoms, no other option, but to pay the ransom, when the crews of the vessels are taken as hostages.

Since kidnap and ransom cover (for both people and property) are applied for a long time in the insurance practices, ransom payments shall be recoverable as a sue ([45], p. 64). After paying a ransom in order to secure the release of a vessel, cargo and crew, the owners often seek to recover it and associated release expenses. In the Masefield decision, it was ruled by the court that seizure by pirates would not constitute actual total loss or constructive total loss ([46], p. 138).

However, the payment of ransom is prohibited and illegal, when the link to terrorism exists (United Kingdom (UK) Terrorism Act 2000, UK Counter Terrorism and Security Act 2015, 18 United States Code (U.S.C.) § 2339 A(a)).

In such a way, owners paying a ransom must carry out due diligence to ensure that they have no reasonable cause to suspect terrorist involvement.

In 2013, the Baltic and International Maritime Council (BIMCO) Piracy Clause for Time Charter Parties (2013 BIMCO Piracy Clauses for Consecutive Voyage Charter Parties and Contracts of Affreightments (COAs), for Single Voyage Charter Parties, for Time Charter Parties) setting rights and obligations of a party in response to piracy risk was amended by London Arbitration, since kidnap and ransom and loss of hire insurance were not reimbursed by charterers to the owners as not mentioned in the 2009 Piracy Clause. By 2013, amendments of the Piracy Clause these costs were placed on charterers. The danger-based test for determining whether or not to proceed to or through an area exposed to piracy risks was introduced.

In order to receive recovery and bring pirates to justice, it is necessary to obtain evidence of the occurred piracy attack. Immediately after the release of a vessel and crew, it is necessary to debrief the crew and collect other relevant evidence in the correct manner. After the attack, it is important to provide a detailed report of the incident to Flag State, IMB, the International Criminal Police Organization (INTERPOL), etc. in order to assist the prosecuting authorities.

6. Anti-piracy measures taken by the international community

6.1 Need for cooperation

Each state has the obligation under international law to act against pirate ships ([44], p. 17). Art. 14 of the Convention on the High Seas [47] stipulates that states are obliged to cooperate in combating the piracy in the high seas and in other marine regions outside any jurisdiction. Art. 100 of UNCLOS obliges every State-party to cooperate with other states ‘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’.

It is fundamental to enhance the regional cooperation to combat piracy ([43], p. 447) in order to make anti-piracy policy effective. Some states participate in coordinated regional anti-piracy initiatives. Naval patrols in the Horn of Africa and in the Gulf of Aden have reduced the number of piracy attacks ([43], p. 409). Further efforts from neighboring coastal countries themselves, with the aim of providing financial support, exchanging technology and information and carrying out supervisory activities and taking monitoring measures in the waters of the region, are required ([48] p. 2178).

Particularly, Art. 100 UNCLOS 1982, is not sufficient to oblige every state to engage in a direct pursuit and chase of pirates at sea. This appears to be a legal gap and a general weakness of the anti-piracy regime [49] and requires further specification in regional documents on cooperation.

Especially cooperation needs to be developed in the fields of piracy investigations, constabulary enforcement and prosecution and sentencing of pirates.

6.2 Preventive measures

In order to combat criminality at sea, it is necessary not only to develop cooperation in the repression of piracy, but also to strengthen the preventive measures. Before pirates attack and hijack vessels, they assess their vulnerability and identify their weak operational security. Consequently, additional anti-piracy measures should include a more accurate identification of the personality of people getting onboard (and their luggage); development of security plans; alternative shipping routes; higher speed of vessels combating piracy; ‘security dogs’ on board the ship; etc. Furthermore, better organization of day-and-night watching is suggested, especially regarding the approaching small boats and also better technical devices making possible quick requests for assistance ([50], p. 147).

In case of the pirate’s attack, following devices could be used: water cannons, non-lethal electric secure fences, tasers (electric shocks). Long-range acoustic device (LRAD) is a sound beam with high-pitched noise that is higher than the tolerance level of an average human being. It drives away the pirates. The anti-piracy laser device uses non-lethal laser beam as a visual warning for pirates. Boat traps (nets) dysfunctions propellers of pirates’ boats. Anti-piracy curtain consists of a series of water whirling hoses. Slippery foam is used at all access points making the deck or sides of a ship slippery to prevent pirates from climbing it.

Changing of the route of the freight vessel as an alternative anti-piracy measure could be applied. However, it means for a ship-owner additional costs and a waste of time. For example, an alternative route for the Strait of Malacca may be the Lombok Strait and the Sunda Strait, but that means for a ship-owner three additional days of transportation ([33], p. 91). In such a way, many ship-owners prefer to go through ‘pirate zones’ paying additional insurance, resulting even in increasing transport costs and insurance premiums ([51], p. 408).

6.3 Naval operations

The piracy may be combatted not only by a series of the preventive and prosecuting measures stipulated in the international and regional conventions specially elaborated and adopted for these purposes. The military naval operations may also be conducted to fight piracy.

Such efforts to combat piracy are especially significant in the area of Somalia. Success in the struggle against Somali piracy came from a number of collaborative operations by the international community. The UN SC intervention in the problem of Somali piracy was based upon certain UN SC resolutions granting ad hoc authorization to combat piracy with the use of military force. For example, the UN SC resolutions authorized states to enter Somali territorial waters and to use military force there (UN SC Resolution 1816 of 2 June 2008; Resolution 1846 of December 2, 2008.

In UN SC Resolution 1838 of 7 October 2008, UN SC Resolution 1851 of 16 December 2008, etc. the UN SC emphasizes that such regulations are applicable solely to the Somali situation and not to the territory of other neighboring countries ([48], p. 2175). These resolutions do not establish new general norms of the customary international law. However, this anti-piracy resolution was highly successful and demonstrated the efficiency of international concerted efforts.

In 2011, in the waters off the coasts of the Gulf of Guinea, located along the coasts of Benin, Cameroon, Equatorial Guinea, Conga, Togo, Cote d’Ivoire, Ghana, Nigeria and Democratic Republic of Congo, another international piracy crisis was triggered, especially off the coast of Nigeria [21, 22]. Although piracy situation in the Gulf of Guinea was not considered to be serious enough for international interference, coastal states were forced to combat piracy at the regional level. Such cooperation was necessary, among other things, in financial issues. For instance, joint patrolling of territorial waters between Nigeria and Equatorial Guinea was 90% financed by Nigeria. In this region, satellite technologies are also used for tracking and searching for consignments of oil and petroleum products stolen. The Shell Corporation, for example, added unique synthetic detector substances to their petroleum products to allow identification of stolen oil when it enters the legal market.

Measures adopted by the UN and coastal states brought positive results; while more than 40 attacks were committed in Gulf of Guinea in 2012 (31 – off the coast of Nigeria), the number of attacks in the Gulf has been decreasing gradually since 2013. In 2014, 40 attacks were committed in the Gulf of Guinea; and, again 31, 55, 40, 82, 35, 35, 22 and 12 were registered there in 2015, 2016, 2017, 2018, 2019, 2020, 2021 and 2022 respectively [12, 13, 22].

There are some notable examples of combat with piracy, starting with the situation in the Strait of Malacca, a global strategic waterway in the contemporary trade system. Although coordinated patrols have been conducted in the Straits of Malacca and Singapore since July 2004, the piracy problem still exists in the area.

The successful experience of combating piracy in some areas, such as waters of the coasts of Somalia, Malacca strait and South-Eastern Asia, may be applied to other problematic regions of the world, including Eastern African and Latin American coasts ([40], p. 40).

Naval patrolling is widely recognized as the most effective means of combatting piracy. Elaborate bilateral agreements between coastal countries on military coastguard patrolling along their respective maritime boundaries were recommended.

6.4 Naval operations

One of the effective anti-piracy measures is an armed guards on board, although in many states it is prohibited for merchant vessels to carry weapons aboard (also prohibited by the SUA Protocols and by the IMO ([52], p. 73)).

Besides, the private security vessels such as Blackwater do not have the authority to intervene, as opposed to authorized by Art. 107 UNCLOS warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect to seize on account of piracy.

Security companies exercise only the on-board protection of individual ships.

Professional private security firms involved in anti-piracy legal policy charge ship-owners approximately USD $30,000–60,000 per trip through ‘troubled waters’. The IMO supports such projects, and ship-owners often use the services of major private security firms such as Blackwater ([53], p. 89).

In order to combat piracy, it is necessary to increase a number of international anti-piracy funds and financing of programs at sea combating piracy and other maritime crimes. Such additional financing is needed in order to finance the anti-piracy patrolling by warships, for example. The patrolling of Somalian waters demonstrated the effectiveness of the armed naval vessels for the protection of the merchant and fishing ships ([54], p. 152).

6.5 International jurisdiction

No specialized international court was established for piracy as opposed to international war crimes (the International Criminal Court, specialized regional courts such as the International Criminal Tribunal for Rwanda) ([43], p. 429), although according to Art. 19 of the Convention on the High Seas 1958 and art. 105 of UNCLOS, every State may seize a pirate ship. This rule includes seizing pirate ships and arresting persons and seizing property on board ([55], p. 170).

Since piracy is a universal crime, the courts of every state may initiate the procedure against pirates. However, it would be more effective to prosecute piracy in a specialized international forum, which could be established specially for these purposes.

7. Conclusions

Piracy activity on specific maritime routes leads to increasing transport costs and insurance premiums and even undermines the authority of UNCLOS and international law.

In the article, the deficiencies of international anti-piracy legal instruments were scrutinized.

The definition of piracy in international law has limitations, since it applies only to attacks committed in the high seas (as well as exclusive economic zone or to another place outside jurisdiction of any State) for private purposes, the involvement of two ships is necessary. In such a way, the attacks in the territorial sea or in the internal waters of a coastal state, committed by stowaways or crew members, ship hijacking, attacks of criminals onboard and so on for political ends and national interests are excluded from the UNCLOS definition of piracy.

The geographical and conceptual limitations of the definition of the piracy result in the use of more broad terms.

The proposals to improve the regulation of piracy resulted in the development by the IMB of its own practical definition of piracy including criminal acts committed not only on the high seas or in EEZ, but also unlawful acts against vessels in internal waters and territorial seas. The contracts of carriage also widely use the term of piracy, diverging from rules of the international public law.

In international law, the concept of ‘maritime violence’ was developed, covering the common elements of all crimes committed at sea and not only piracy.

The efforts of the coastal states and international navies in addressing this crime seem to be successful. In first half of 2022, the reduction in reported piracy and armed robbery incidents was registered (58 against 68 in first half of 2021) – the lowest number since 1994. The drop in the number of incidents was reached by means of the armed guards, increased naval presence and proper application by ship owners of the Best Management Practices to Deter Piracy and Enhance Maritime Security. However, it should be noted that current numbers are likely under-reported, so there are no exact statistical data on the issue. Vessel owners are reluctant to officially report piracy to the law-enforcement and even to insurers, because procedures involved are long and awkward. The vessels are being delayed in ports during investigations as well as for loss of clients. Also, this information could have a negative impact on the image of their company.

It remains difficult to combat the practice of ransom payment, since it is often cheaper for a ship-owner to accept the demands of pirates and to pay ransom rather than to leave it to the law enforcement bodies to take a decision on the release of the vessel and its crew from pirates. However, ransoms payment further supports pirate activity.

Art. 100 of the UN Convention on the Law of Sea, 1982 shall be considered as not sufficient to bind a state upon engaging in a direct pursuit and chase of pirates at sea. This legal gap appears to be a general weakness of the anti-piracy regime, which must be specified in much greater detail in regional documents regulating cooperation, especially for the areas of piracy investigations, constabulary enforcement and prosecution and sentencing of pirates.

In order to avoid the moral ‘legitimization’ of the actions against the trade and fishing vessels in the disputed maritime areas, it is necessary to escape strong disagreements between the coastal states, since the territorial conflicts and the concentration of Navy vessels in the controlled areas result in the piracy and armed robbery at sea attacks in such areas. It seems possible to make a conclusion on the necessity to regulate such disputes not only by means of the mechanisms of the international law, but also by means of the regional instruments.