Nair, Sandhya --- "A Contemporary Maritime Threat: An Analysis into the Effectiveness of the Law of the Sea in Combating Piracy" [2016] PerIntLawJl 6; (2016) 1 Perth International Law Journal 42

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THE CONTEMPORARY MARITIME THREAT: AN

ANALYSIS INTO THE EFFECTIVENESS OF THE L AW OF THE SEA IN COMBATING PIRACY

SANDHYA NAIR*

Within the framework of international law, there exists a well-acknowledged belief that each country has universal jurisdiction to prosecute pirates. As a result, contemporary legal provi- sions generate a pattern of ‘catch and release’ as pirates are repeatedly released soon follow- ing their arrest as a result of tolerant municipal legislations that fail to sufficiently reprimand the offender, or because of a country’s reluctance to indict due to political motives. This paper analyses whether the existing international legal regulations effectively combat modern day piracy, and determine if there is a need to enforce international anti-piracy provisions within the existing framework. The present evolution and characteristics of piracy acts appear to necessitate a more efficient universal enforcement legislative body to demonstrate authority over these acts.

I INTRODUCTION

Maritime piracy is an ongoing international issue that disrupts shipping waterways, threatens the safety and security of crew and vessel owners and hinders the international economy.¹ It is a ruthless, unforgiving practice.² In 2014, there were 245 pirate attacks that were reported internationally.³ These incidents comprised of 21 vessels being hi- jacked, 183 being bombed, and 13 being fired upon.⁴ Pirates executed four crewmem- bers, wounded a further 13 and abducted 9 from their ships.⁵ Reports have shown that the preponderance of these incidents happen in Southeast Asia, along the West Coast of Africa, off the Horn of Africa and along the coast of South America.⁶ At an internation- al level, states have continued with practical efforts to respond to the threat of piracy. Within the framework of international law, there exists a well-acknowledged belief that each country has universal jurisdiction to prosecute pirates.⁷ As a result, contemporary

* Sandhya Nair. Combined Masters of International Law and International Relations Student (The University of Western Australia). Responsibility for the text lies with this author and all errors are hers alone.

¹ James Kraska and Brian Wilson, ‘Commentary Maritime Diplomacy and Piracy in the Horn of Africa’ [2008] MarStudies 23; (2008) 161(1) Maritime Studies 13.

²  Karsten von Hoesslin, ‘Piracy and Armed Robbery at Sea in South East Asia: Organized and Fluid 1’ (2012) 35(7-8) Studies in Conflict & Terrorism 542.

³  International Crime Services, ‘SE Asia tanker hijacks rose in 2014 despite global drop in sea piracy, IMB reports reveal’ International Crime Services (online), 12 January 2015 <https://icc-ccs.org/news/1040-se- asia-tanker-hijacks-rose-in-2014-despite-global-drop-in-sea-piracy-imb-report-reveals>..

⁴  Ibid.

⁵  Ibid.

⁶  Diana Chang, ‘Piracy Laws and the Effective Prosecution of Pirates’ (2010) 33(2) Boston College Interna- tional and Comparative Law Journal 273.

⁷  David J. Bederman, International Law Frameworks (Foundation Press, 3^rd Edition, 2010).

legal provisions generate a pattern of “catch and release” as pirates are repeatedly re- leased soon following their arrest as a result of tolerant municipal legislations that fail to sufficiently reprimand the offender, or because of a country’s reluctance to indict due to political motives.⁸ This paper will analyze whether the existing international legal regulations effectively combat modern day piracy, and determine if there is a need to en- force international anti-piracy provisions within the existing framework. Part II of this paper first defines the issue of piracy. It then details the current international provisions regarding the indictment and sentencing of pirates. It examines the relevant interna- tional treaties, regional agreements and international institutions centered on maritime security and analyses their effectiveness in ensuring regional and domestic safety. What is found is that cracks exist within the contemporary legal framework. Part III proceeds to suggest a variety of potential reforms that could be applied to mend the deficient provisions. The present evolution and characteristics of piracy acts appear to necessitate a more efficient universal enforcement legislative body to demonstrate authority over these acts. Such authority might perhaps be instigated through the creation of an inter- national judicial body for piracy.

II THE CURRENT LEGAL FRAMEWORK ADDRESSING PIRACY

A Defining the Issue

Defining piracy has developed into a multidimensional problem that has engrossed scholars and jurists for centuries.⁹ The Oxford English Dictionary defines piracy as ‘the practice of attacking and robbing ships at sea’¹⁰, a definition confirmed by Treves.¹¹ While the everyday usage of the term ‘piracy’, is straightforward, it is when one applies the term to the law that complications arise.

Rubin submits that at present, despite the presence of a general, straightforward defi- nition of the term, there are at least six separate definitions of the term ‘piracy’.¹² Such definitions include:

⁸  Chang, above n 6, 274.

⁹  Max Mejia Jr., ‘Maritime Gerrymandering: Dilemmas in Defining Piracy, Terrorism and other Acts of Mar- itime Violence’ (2003) 2(2) Journal of International Commercial Law 153.

¹⁰  Oxford Dictionaries, Oxford English Dictionary, (Oxford University Press, 7^th Edition, 2013).

¹¹  Tullio Treves, ‘Piracy, Law of the Sea, and the Use of Force: Developments of the Coast of Somalia’ (2009) 20(2) European Journal of International Law 399.

¹²  Alfred P. Rubin, The Law of Piracy (University Press of the Pacific, 3rd Edition, 2006).

[in international law it is understood as being] related to unrecognized belligerency, like Confederate Straits commerce raiders and privateers during the American Civil War of 1861-1865 in the eyes of the Federal Government of the United States and;¹³

[in international law it is understood as being] related to the private acts of foreigners against other foreigners in circumstances making criminal jurisdiction by a third state acceptable to the international community despite the absence of the usual territorial or national links that are normally required to justify the extension abroad of national criminal jurisdiction.¹⁴

B Piracy within International Frameworks

Maritime piracy is a global offence that comes under every country’s jurisdiction ac- cording to customary international law.¹⁵ Consequently, universal jurisdiction bestows all nations with the ability to impeach and sentence pirates irrespective of where the attack happens.¹⁶ Due to universal jurisdiction, every country has the onus of prosecut- ing pirates under its individual municipal legislation regardless of a pirate’s individual citizenship, the flag-state of the vessel, or the destination of the cargo.¹⁷ Numerous Unit- ed Nations treaties address the issue of piracy. Among them, most importantly, are the United Nations Convention on the Law of the Sea (UNCLOS), and the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA).

1 United Nations Convention on the Law of the Sea

UNCLOS codified existing customary international law regarding piracy under Articles 100 to 107.¹⁸ Within international legislation, the law of piracy holds a special place. It is a rare occasion when states set aside the normal rules on state jurisdiction to allow a pirate to be admonished by domestic law when piracy is committed on the high seas, irrespective of the nationality of the victim or the pirate.¹⁹ Kavanagh notes that this is because under international law, piracy is an international crime and a pirate is an

¹³  Ibid.

¹⁴  Ibid.

¹⁵  Bederman, above n 7, 76.

¹⁶  Ibid.

¹⁷  Martin N. Murphy, Small Boats, Weak States, Dirty Money: The Challenge of Piracy (Columbia Univer- sity Press, 2008).

¹⁸  United Nations Convention on the Law of the Sea, opened for signature 10 Dec 1982, 1833 UNTS 397 (entered into force 16 November 1994)(UNCLOS).

¹⁹  John Kavanagh, ‘The Law of Contemporary Sea Piracy’ [1999] AUIntLawJl 8; (1999) Australian International Law Journal 127

enemy of the entire human race.²⁰ Being the enemy of all, the pirate may be punished by all. It is this “common enemy” notion which reinforces the universality principle of jurisdiction, allowing every country the right to prosecute an offender who commits an “international crime”.²¹

As UNCLOS is a categorization of customary international law, it applies to all states in- cluding those that are not party to the convention.²² The UNCLOS Articles centered on piracy outline its jurisdiction, definition and the responsibility of member states looking to track, arrest and indict pirates.²³ UNCLOS holds that there are four crucial features to the definition of piracy. First, piracy must be an illegal act involving violence, detention, or depredation.²⁴ Secondly, the act must be committed for private ends.²⁵ Thirdly, the incident must occur on the high seas.²⁶ Lastly, it must be involve at least two ships.²⁷ UNCLOS also reasserts the principle of universal jurisdiction allowing states the ability to arrest and indict pirates under their municipal laws.²⁸

2 Convention for The Suppression of Unlawful Acts Against the Safety of Maritime Navigation

In contrast to UNCLOS, SUA focuses on more serious attacks that can happen at sea.²⁹ The offence is defined far more broadly in terms of geographical scope than the UN- CLOS definition, while the nature of the offence is limited to attacks of a more serious nature.³⁰ SUA defines piracy as ’attempting to seize or damage a ship’ or ’intentionally seizing or damaging a ship’.³¹ SUA mends some of UNCLOS’s definitional limitations. It has removed the need to distinguish between the intentions of different attackers, so

²⁰  Ibid.

²¹  Ibid, 134.

²²  Lawrence Azubuike, ‘International Law Regime Under Piracy’ (2009) 15(1) Annual Survey of Internation- al & Comparative Law 43.

²³  UNCLOS, Articles 101-107.

²⁴  UNCLOS, Article 10.

²⁵  Ibid. ²⁶  Ibid. ²⁷  Ibid.

²⁸  Ibid, Article 105.

²⁹  Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, opened for signature 10 March 1988, 1678 UNTS 221 (entered into force March 1 1992) [hereinafter SUA].

³⁰  Rosemary Collins and Daud Hassan, ‘Applications and Shortcomings of the Law of the Sea in Combating Piracy: A South East Asian Perspective’ (2009) 40(1) Journal of Maritime Law and Commerce 89.

³¹  SUA, Article 3.

in situations where terrorism and piracy overlap, the offenders can be prosecuted.³² Ad- ditionally, the geographical boundaries are larger than that of UNCLOS. Under SUA, an offence is committed if the stricken vessel was slated to travel outside any one state’s jurisdiction, irrespective of where the actual incident happened.³³ Under SUA, a state’s jurisdiction is narrower than what UNCLOS provides. A country only has jurisdiction if a crime is committed against a vessel bearing that nation’s flag, within that nation’s territory, or committed against a citizen of that nation.³⁴ SUA moreover applies a respon- sibility on states party to the convention to extradite or indict the alleged pirate.³⁵ Should the arresting nation fail to establish jurisdiction, the convention compels that it transfers the suspect to a country that has effectively established jurisdiction.³⁶ So far, 156 states have endorsed SUA - however, the binding prosecute or extradite provision prevents several Southeast Asian countries from codifying it.³⁷ The reasons for this hesitation will be explored in further detail in the following part.

C Piracy within International Institutions

Alongside these conventions, various regional regulations were created in zones of great concern to battle piracy from a regional standpoint. Alongside these multilateral, re- gional treaties, there exists numerous international institutions such as the International Chamber of Commerce’s International Maritime Bureau (IMB) and the International Maritime Organization (IMO) that aim to safeguard the secure navigation of maritime vessels.

1 The International Maritime Bureau

The IMB is a non-profit institute whose primary aim is to combat maritime crime, such as piracy.³⁸ The organization established its Piracy Reporting Centre in Kuala Lumpur, Malaysia, through which it screens and delivers advice on the mounting issue of piracy

³²  Collins and Hassan, above n 30, 107.

³³  SUA, Article 4. ³⁴  Ibid, Article 6. ³⁵  Ibid, Article 10. ³⁶  Ibid.

³⁷  See International Maritime Organization, ‘Status of Conventions – Summary’, online at

<http://www.imo.org/Conventions/mainframe.asp?topic_id=247 .>

³⁸  International Crime Services. ‘IMB Piracy Reporting Centre’ International Crime Services (online),

<https://icc-ccs.org/piracy-reporting-centre.>

internationally.³⁹ Its affirmed purpose is to deliver an integrated information hub focused on pirate attacks and to inform and prepare shipping vessels and merchants for enter- ing high-risk zones.⁴⁰ For specificity, the IMB embraces a comprehensive definition of piracy that comprises proven, attempted and failed incidents regardless of whether the vessel has dropped anchor or is at sea.⁴¹ Hence, the IMB terms ‘piracy and armed robbery’ as:

[a]n 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.⁴²

The IMB’s extensive definition has an effect on the amount of incidents that it will track.⁴³ As this definition varies from the definitions of piracy provided by UNCLOS and SUA, not every attack identified by the IMB would be deemed as piracy under international law.⁴⁴

2 The International Maritime Organization

Unlike the IMB’s identified aim, the IMO is committed to advancing a framework to ensure protected, safe, and efficient transport over the high seas.⁴⁵ In a bid to increase safety at port services as well as the high seas, the IMO established strategies to mitigate two forms of threats: armed robbery at sea, and piracy, as outlined under UNCLOS.⁴⁶ Armed robbery at sea only happens in territorial waters that are within twelve miles of a state’s coastline,⁴⁷ whereas piracy can only transpire on the high seas. Identifying the prominence of municipal legislation in the effective prosecution of pirates, the IMO approved Resolution A. 1025 (26). It incites countries to codify supporting laws that would ratify their universal jurisdiction over piracy and create measures to enable the prosecution of pirates.⁴⁸ Resolution A. 1025 (26) additionally advocates procedures for

³⁹  Ibid. ⁴⁰  Ibid. ⁴¹  Ibid. ⁴²  Ibid.

⁴³  Keyuan Zou, ‘New Developments in the International Law of Piracy’ (2009) 8(2) Chinese Journal of International Law 323.

⁴⁴  Azubuike, above n 19, 45.

⁴⁵  Ibid, 50.

⁴⁶  Ibid.

⁴⁷  Chang, above n 6, 277.

⁴⁸  International Monetary Organization, Resolution A.1025 (26), adopted December 2 2009.

piracy investigation initiatives.⁴⁹ It proposes that flag states of the offended vessel ought to take primary on investigations for piracy attacks. Equally, the nation in whose terri- torial waters the attack happens should assume the responsibility of investigating armed robbery at sea.⁵⁰ The IMO does not only establish a technical framework to combat piracy and armed robbery at sea, it also targets to promote regional treaties to diminish piracy.⁵¹ It suggests regional conferences and seminars in piracy-prone areas to identify measures that may reduce pirate attacks in that particular region.⁵² Previously, it has delivered regional conferences in Brazil, the Gulf of Aden, and Southeast Asia.⁵³

D Piracy Within Regional Frameworks: The Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia

The growing seriousness of piracy has seen states forming multilateral agreements in a bid to combat the issue from a regional perspective. In November 2004, the Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia (ReCAAP) was adopted by 16 Southeast Asian states.⁵⁴ The agreement was a re- sult of a four year negotiation and entered into force on 4 September 2006. The agree- ment provides a framework for member states to pursue information sharing, capacity building and cooperative arrangements. To this end, an Information Sharing Centre was established in Singapore.⁵⁵ It is the first time that governments in Southeast Asia have entrenched their cooperation in battling piracy and armed robbery against ships through the formation of a permanent body with full time staff.⁵⁶ The center is a natural evolu-

⁴⁹  Ibid.

⁵⁰  Ibid.

⁵¹  International Maritime Organization, ‘Piracy and Armed Robbery Against Ships’ International Maritime Organization (online), 2015 <http://www.imo.org/en/OurWork/Security/PiracyArmedRobbery/Pages/De- fault.aspx> .

⁵²  Ibid.

⁵³  International Maritime Organization, ‘IMO Leads New Anti-Piracy Initiative’ International Maritime Organization (online), 13 March 2001 <http://www.imo.org/Newsroom/mainframe.asp?topic_id=67 & doc_ id=595 .>

⁵⁴  The countries who endorsed ReCAAP are: Bangladesh, Brunei, Cambodia, China, India, Indonesia, Ja- pan, the Republic of Korea, Laos, Malaysia, Myanmar, the Philippines, Singapore, Sri Lanka, Thailand and Vietnam. Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia, opened for signature November 11 2004, 44 ILM 829 (entered into force 4 September 2006) [hereinafter ReCAAP].

⁵⁵  ReCAAP Information Sharing Centre, ‘Report by the ReCAAP Information Sharing Centre for the Ninth Meeting of the United Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea’ United Nations (online), <http://www.un.org/Depts/los/consultative_process/mar_sec_submissions/re- caap.pdf .>

⁵⁶  Joshua H. Ho, ‘The Security of Sea Lanes in South East Asia’ (2006) 46(4) Asian Survey 558.

tion of real regional cooperation in anti-piracy measures. It has the potential to make a genuine difference in diminishing pirate attacks in the region through coordination of regional procedures. Furthermore, the information sharing initiatives stipulate a strong base for further cooperation in regional anti-piracy measures such as patrolling and prosecution.⁵⁷ ReCAAP uses the same definition of piracy that is found under UNCLOS but additionally includes the armed robbery of vessels as part of its definition.

III EXISTING CRACKS WITHIN THE INTERNATIONAL SYSTEM

The existing international and regional provisions regarding piracy areflawed for two main reasons. First, they fail to provide a universally applicable definition of piracy. Secondly, there are no uniform procedures in place for the arresting and prosecution of pirates.⁵⁸ A stark inconsistency exists between the guidelines set in place on an interna- tional level and those established within a state’s municipal legislation.⁵⁹

A United Nations Convention on the Law of the Sea

The main crack that exists within the framework of UNCLOS is that it limits piracy to the high seas. The high seas as defined in Article 86 consists of ‘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.’⁶⁰ This significantly limits the geographical location of incidents that can be considered piracy under UNCLOS. Nonetheless, Article 58(2) regards the piracy provisions, and other important provisions to be applicable within the exclusive eco- nomic zone (EEZ) ‘in so far as they are not incompatible with’ Part V of UNCLOS.⁶¹ Part V of UNCLOS details the rights and duties of coastal states and other customers of the EEZ - specifically concentrating on resources such as fisheries and seabed minerals. Hence it is generally recognized that the piracy provisions are not in conflict with Part V, and consequently are in effect within the EEZ.⁶² The widening of the ‘territorial sea’ definition under UNCLOS has done little in diminishing the numbers of pirate attacks.

⁵⁷  Ibid.

⁵⁸  Collins and Hassan, above n 30, 108-09.

⁵⁹  Ibid, 112.

⁶⁰  UNCLOS, Article 86.

⁶¹  Ibid, Article 58(2).

⁶²  Collins and Hassan, above n 30, 97.

In fact, Dubner notes that nowadays fewer pirate attacks occur on the high seas.⁶³ In- stead, it is now more common for attacks to occur closer to shore. The concentration of commercial ships near to ports and travelling within straits used for international navigation, such as the Malacca and Singapore Straits, make it easier for pirates to target these vessels.⁶⁴ Indeed, the Straits see the largest frequency of attacks on ships in the world.⁶⁵

The limitation of the high seas provision in UNCLOS additionally challenges the obli- gation in Article 100 for states to contain piracy. Under Article 100, there is no respon- sibility placed on states to contain piracy that happens within their territorial waters.⁶⁶ Accordingly, this enables states to evade taking responsibility for pirates based within their territorial limits, even if those pirates also attack vessels on the high seas.⁶⁷ In sum- mary, the high seas restrictions creates a significant impairment to the effectiveness of UNCLOS. Development of the piracy definition to incorporate at minimum the section of waters currently demarcated as territorial waters could reduce this failing.

Moreover, UNCLOS terms piracy as ‘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.’⁶⁸ Kavanagh criticizes this ‘private ends’ feature in the UNCLOS definition as it encompasses an intention prerequisite that disregards political terrorism and attacks that are launched without the need of profit.⁶⁹ For instance, a violent assault designed to capture global attention to a particular social movement’s fight for independence is not implemented for ‘private ends’⁷⁰ as it is not meant to yield a revenue for the offend- ers. Consequently, a hijacking is not considered piracy under UNCLOS. This provides pirates with a legal defense in the form of political motivations allowing them to fall through the cracks and avoid being indicted with a piracy charge.

While the right to board, search and seize foreign vessels and individuals on board exists

⁶³  Barry Hart Dubner, ‘Recent Developments in the International Law of the Sea (International Legal Devel- opments in Review 2001)’ (2002) 36(2) International Lawyer 721.

⁶⁴  Ibid.

⁶⁵  International Maritime Organization, above n 48.

⁶⁶  John Mo, ‘Options to Combat Maritime Piracy in Southeast Asia’ (2002) 33(3-4) Ocean Development & International Law 343.

⁶⁷  Ibid, 347.

⁶⁸  UNCLOS, Article 101(a). ⁶⁹  Kavanagh, above n 19, 137. ⁷⁰  Ibid.

under international law according to UNCLOS, the indictment of pirates is a matter of domestic law. It is consequently crucial that the rights bestowed under international law are applied within domestic jurisdictions so that the judiciary are able to deal effectively with those suspected of crimes at sea. Article 100 places an obligation on states to assist in the suppression of piracy which would include states taking initiatives to extradite alleged pirates from the arresting ship to another state for indictment.⁷¹ Very few states have acknowledged the UNCLOS mandate and legislated explicitly against piracy. The reasons for this reluctance of countries to embrace the rights created by UNCLOS to exercise extraterritorial jurisdiction over pirates are both political and economical in nature. Kenya, for instance, was a state which for a period was willing to accept the rendition of pirates and to prosecute them. However, without international funding, its readiness to dedicate its own resources to the project soon ceased resulting in the ‘catch and release’⁷² of several accused pirates. With some exceptions, other states similarly show no particular enthusiasm to step into the breach resulting in an inefficient execu- tion of international law when it comes to combating piracy.

B Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation

The SUA was drafted in response to the Achille Lauro and provides that states parties shall establish a number of criminal offences, most of which correspond in whole or in part with actions committed by pirates or armed robbers.⁷³ Such international maritime crimes were not offences under UNCLOS and while SUA may mend some of UN- CLOS’ shortcomings, there are still gaps evident within the convention. One noteworthy issue that develops from SUA is that of its ‘extradite or prosecute’ provision, which outlines that the states that apprehend pirating suspects are limited to either extradition or prosecution of the offenders. Halberstam notes that most scholars observe this limita- tion as being the ‘heart’ of SUA.⁷⁴ The ‘extradite or prosecute’ provision is codified in paragraph 1 of Article 10 of SUA and holds:

The State Party in the territory of which the offender or the alleged offender is found

⁷¹  UNCLOS, Article 100. ⁷²  Treves, above n 11, 399. ⁷³  SUA, Article 3.

⁷⁴  Malvina Halberstam, ‘Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety’ (1988) 82(2) The American Journal of International Law 269.

shall, in cases to which Article 6 applies, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without delay to its competent authorities for the purpose of prosecu- tion, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of the State.⁷⁵

The use of the term ‘shall’ within the provision ensures that States are not bound to the terms set. Rather, the decision to indict under the SUA is merely discretionary for states.⁷⁶ States also do not have an absolute responsibility to extradite. Hence, there exists a likelihood that a right to grant asylum is maintained.⁷⁷ The issue with this is ac- cording to the provision, when neither the coastal state nor the potential state for indict- ment press charges and neither state is a signatory of SUA, the offenders will be granted freedom.⁷⁸ What is significant here, is that many nations often do not partake in treaties with states who are normally prone to pirate attacks. This ensures that those arrested in accordance with the commital of such acts are released and free from extradition. In this sense, the SUA bears the same weakness as UNCLOS concerning varying penalty and resulting trial measures. Such procedures are determined by municipal legislation which changes considerably with states.⁷⁹ Consequently, the SUA is criticised for con- centrating on ‘handing the perpetrator over to the authorities, whereas the procedure of judging him or her is less important.’⁸⁰ The problem for this boils down to the lack of uniform regulations in all states. In some states the appropriate regulations have not been established in municipal legislation or have been included in an ineffective man- ner. The low efficiency of SUA as a form of legal regulation is a direct consequence of such a situation.

For those nations who are party to SUA, it enforces them with a heavy duty to coop- erate. These duties are more precise than UNCLOS. For instance, states are required to assist each other in undertaking measures within their own territorial boundaries to

⁷⁵  SUA, Article 10 (1).

⁷⁶  Tina Garmon, ‘International Law of the Sea: Reconciling the Law of Piracy and Terrorism in the Wake of September 11’ (2002) 27(1) Tulane Maritime Law Journal 257.

⁷⁷  Ibid.

⁷⁸  Ibid.

⁷⁹  Wojciech Stankiewicz, ‘International Terrorism at Sea as a Menace to the Civilization of the 21^st Century’ (2005) 48(6) The American Behavioral Scientist 683.

⁸⁰  Ibid, 692.

deter incidents found to be illegal under SUA.⁸¹ Additionally, each nation is also re- quired to endow ‘the greatest measure of assistance’ to another that is prosecuting an offender, including providing any applicable evidence.⁸² These regulations outline how states are to cooperate with one another, and form strong obligations for signatory states to actively pursue offenders. Young and Valencia note that political tensions rise from these regulations as such provisions can be interpreted as allowing ‘dominant naval powers to undermine the authority of regional powers’.⁸³ SUA bids for countries to aid in offsetting any groundwork for crimes that transpire within a state’s territory. Young and Valencia assert that this has the possibility of threatening a small nation’s national security - possibly even allowing foreign naval troops to enter their territorial waters.⁸⁴ SUA is hence politically problematic as its regulations are considered as advancing the states who previously held well-defined territorial borders along with a powerful maritime force.⁸⁵ Any advantage granted under the convention from an enlarged naval presence in the region by stronger states, such as the United States or Japan could be destabilized by an equivalent lessening in regional political stability from the threat of alleged invasions of a smaller nation.⁸⁶

C Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia

ReCAAP, like UNCLOS and SUA, is also limited in its scope. It permits states to ap- peal for aid from one another in capacities such as identifying and taking action against ‘persons and ships,’⁸⁷as well as sanctioning cooperative measures. However, it does not detail the method of assistance permitted. Whereas this might allow states to be vague in their wishes for assistance, it is probable that, like the UNCLOS cooperative clauses, the vagueness will render the obligation moot. Furthermore, ReCAAP has no provisions regarding maritime patrols, nor does it encompass any clauses providing for the use of force.⁸⁸ It also does not require anti-piracy training exercises to be carried out by the

⁸¹  SUA, Article 13(1).

⁸²  Ibid, Article 12.

⁸³  Adam J. Young and Mark J. Valencia, ‘Conflation of Piracy and Terrorism in Southeast Asia: Rectitude and Utility’ (2003) 25(2) Contemporary Southeast Asia: A Journal of International and Strategic Affairs 269.

⁸⁴  Ibid, 277.

⁸⁵  Ibid, 278.

⁸⁶  Ibid.

⁸⁷  ReCAAP, Article 3.

⁸⁸  Ashley J. Roach, ‘Enhancing Maritime Security in the Straits of Malacca and Singapore’ (2005) 59(1)

Journal of International Affairs 97.

states, which would increase a state’s practical ability to counter piracy.⁸⁹ Further, it does not expand the powers of pursuit of offenders between the ReCAAP states, so offenders can still flee to neighboring territorial waters to evade capture and a piracy indictment.

ReCAAP is also further weakened by the member states allowed to be party to its agree- ment. Pacific nations such as New Zealand and Australia have been intentionally omit- ted, as they are seen to be influential states with Western interests.⁹⁰ Many of the mem- ber states of ReCAAP do not have the same economic resources as that of New Zealand or Australia. New Zealand and Australia could offer substantial aid in terms of both resources and personnel to ensure efficient patrols of the region. By excluding these states from the agreement, the effectiveness of ReCAAP is highly restricted.

D Failure in a Uniform Definition and Consistent Legal Measures within the Interna- tional System

Further confusion stems from terminology relating to piracy used by international and regional institutions when considering which terminology they should adopt. The IMO recognizes two international maritime crimes that comes under their umbrella of pira- cy: piracy as outlined in UNCLOS, and armed robbery at sea.⁹¹ By contrast, the IMB disregards both the UNCLOS and SUA definitions, and in its place terms piracy ‘as an act of boarding any vessel 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.’⁹² The gap is further intensified on a regional cooperative level. ReCAAP has adopted the IMO two-part terminology of piracy.⁹³

Should the variation in the application of the definitions for piracy be not challenging enough, confusion is exacerbated by the notion that no international legal framework exists that demarcates clear procedures for the prosecution and punishment of pirates.⁹⁴ UNCLOS fails to establish a practical framework to ‘prosecute and punish pirates’⁹⁵

⁸⁹  Ibid.

⁹⁰  Collins and Hassan, above n 30, 111.

⁹¹  International Monetary Organization, above n 45.

⁹²  Zou, above n 43, 327.

⁹³  Ibid.

⁹⁴  Ibid, 338.

⁹⁵  Kavanagh, above n 19, 145.

as it allows the arresting state to ‘decide upon the penalties.’⁹⁶ Rather, UNCLOS only outlines the conditions under which universal jurisdiction pertains but fails to establish a universal sentence or authorize a single court to hear the charge of piracy.⁹⁷ Comparably, SUA fails to include appropriate procedures for the prosecution of pirates or appropriate punishments for the crimes outlined within its provisions.⁹⁸ This absence of consistency within international frameworks has led to several sentences for piracy that range from three years to life in prison.⁹⁹ Furthermore, a pirate is probably not going to have any knowledge of the municipal criminal legislation of the indicting state.¹⁰⁰ This diversity in indictment and sentencing can also pave the way for tensions to exist between states when certain nations are unwilling to devote their own resources to arresting and indict- ing pirates.¹⁰¹ Instead, as the prosecution of captured pirates is left to the discretion of each state,¹⁰² states which are unwilling to prosecute pirates at all are able to evade the responsibility to do so.¹⁰³ Subsequently, the execution of international piracy legislation is only as successful as the domestic legal establishments that are able and willing to prosecute the crime.¹⁰⁴ Hence, influential, developed states armed with advanced legal systems that encompass the international definitions of piracy are more prone to pros- ecuting and sentencing pirates than their less developed counterparts.¹⁰⁵ However, in contemporary society, developed states such as Australia and New Zealand have been excluded from such agreements. Such a trend has the unintentional result of enforcing a Western interpretation of justice and punishment on pirates from developing coun- tries.¹⁰⁶ This coupled with the added ambiguity of whether a pirate can be effectively indicted under a country’s domestic law reduces a country’s inclination to join in the pursuit and arrest of pirates completely.¹⁰⁷

The current medley of domestic legislation has proved to be a hindrance in the prose-

⁹⁶  UNCLOS, Article 105.

⁹⁷  UNCLOS, Article 105.

⁹⁸  Collins and Hassan, above n 30, 108.

⁹⁹  Joshua Michael Goodwin, ‘Universal Jurisdiction and the Pirate: Time for an Old Couple to Part’ (2006) 973(39) Vanderbilt Journal of Transnational Law 1005.

¹⁰⁰  Gabriel Bottini, ‘Universal Jurisdiction After the Creation of the International Criminal Court’ (2004) 36(2-3) New York University of International Law and Politics 503.

¹⁰¹  Collins and Hassan, above n 26, 103.

¹⁰²  As held by UNCLOS.

¹⁰³  Kavanagh, above n 19, 145.

¹⁰⁴  M. Cherif Bassiouni, Introduction to International Criminal Law (Ardsley, 2003).

¹⁰⁵  Ibid, 556.

¹⁰⁶  Ibid.

¹⁰⁷  Collins and Hassan, above n 30, 109.

cution and subsequent sentencing of pirates. This in turn has rendered the international system ineffective in addressing the contemporary issue of piracy.

IV POTENTIAL REFORMS TO THE FRAMEWORK

The cracks found within the international legal framework have demonstrated that there is a need for effective, uniform measures for the prosecution of piracy. The existing literature has proposed three potential solutions to address this issue. The first, permit regional courts to enforce international piracy laws.¹⁰⁸ Second, complement existing international treaties with bilateral and multilateral treaties.¹⁰⁹ Third, incorporate a uni- form definition of piracy coupled with consistent domestic legislation.¹¹⁰ From these three resolutions, the establishment of piracy tribunals within regional courts is the only one that can be applicable in a real world setting as it does not violate the territorial sov- ereignty of states nor does it require the creation of an excessive number of treaties.¹¹¹

Regional piracy tribunals could diminish the inconsistencies that currently exist with- in altering definitions of piracy within the international framework and the differing criminal prosecution measures that are adopted by states. It could impose a uniform definition of piracy as well as establish consistent criminal procedures and sentences for piracy offenses.¹¹² Hence, rather than countries adopting their own definition of pi- racy, the tribunals would ensure a consistent definition of piracy be applied across indi- vidual regions consequently ensuring that ‘uniformity in treatment’¹¹³ would eradicate the issues established by a range of sentences and criminal measures currently existing within the international system. Uniformity in treatment of offenders by each state is important to ensure certainty of punishment. This allows states to be confident that their resources in apprehending pirates are not wasted. This would result in a more efficient indictment of piracy. Regional cooperative agreements that currently stand serve as the perfect foundation from which to establish regional piracy tribunals and are able to mirror the treaty-based establishment of the International Criminal Court.¹¹⁴ ReCAAP, for instance, can create its own tribunal within one of its signatory nations. Additional-

¹⁰⁸  Ibid, 90.

¹⁰⁹  Kraska and Wilson, above n 1, 53.

¹¹⁰  Murphy, above n 17, 19-20.

¹¹¹  Collins and Hassan, above n 30, 92.

¹¹²  Azubuike, above n 22, 54.

¹¹³  Collins and Hassan, above n 30, 109.

¹¹⁴  Bassiouni, above n 98, 499.

ly, individual piracy tribunals are able invoke bases of jurisdiction under the territorial principle, where they would be able to assert jurisdiction over piracy crimes commit- ted in the territory of the prosecuting tribunal.¹¹⁵ This territory would include both the high seas and the territorial waters.¹¹⁶ This would diminish the issues related to armed robbery incidents that take place within territorial waters as well as the problems that arise from forming post hoc jurisdiction after a piracy incident occurs. Furthermore, by streamlining the judicial process, states would have an adequate alternative forum if they are unable or unwilling to prosecute pirates in their home countries.¹¹⁷

In contrast, the establishment of further bilateral and multilateral agreements to com- plement UNCLOS and SUA would fail to prove effective in the prosecution of pirates as such agreements are binding only to member states. While bilateral and multilateral agreements could aid in resolving prosecutorial and jurisdictional problems, they are only effective when the arresting nation has an agreement with all nations having an interest in the incident.¹¹⁸ Hence, establishing networks of mutual assistance through such agreements are only successful if all involved states are party to that particular agreement. Should the arresting nation not have an extradition agreement with those nations, the offenders could be released.¹¹⁹ With the existence of agreements such as ReCAAP, the groundwork has been established on which regional piracy tribunals could be created.

Furthermore, international institutions such as the IMB are equipped with the tools though which international maritime offenses could be investigated and are able to pro- vide support to states seeking to prosecute maritime criminals.¹²⁰ Consequently, inter- national institutions such as the United Nations or the IMO could simply merge the existing regional networks of cooperation with the IMB’s capabilities and set in motion the establishment of regional piracy tribunals.¹²¹

Altering the standing international definitions of piracy is not as impactful as the in- dictment of pirates as the method of pirate incidents in individual regions change based

¹¹⁵  Bottini, above n 100, 511.

¹¹⁶  Murphy, above n 17, 8; UNCLOS, Article 101.

¹¹⁷  Azubuike, above n 22, 58.

¹¹⁸  Kavanagh, above n 19, 157.

¹¹⁹  Collins and Hassan, above n 30, 108.

¹²⁰  International Crime Services, above n 32.

¹²¹  Ibid.

on factors such as geography, existing legal frameworks, and subsequent penalties for piracy offenses.¹²² Consequently, there is no global definition of piracy that could effi- ciently encompass the numerous forms of piracy incidents that exist.¹²³ Moreover, since universal definitions of piracy still necessitate supporting municipal legislation in order to indict a pirate, establishing a constant definition will not guarantee that individual nations will adopt the required measures to codify laws that relate to the new definition. Through the establishment of a solitary judiciary that has authority over all attacks of piracy, regardless of the nationalities of the accused or the participating states, pirates can be indicted effectively without the political red-tape that commonly accompanies piracy.¹²⁴

V CONCLUSION

Piracy remains an issue of massive concern in the international system today. Interna- tional legal frameworks aimed at reducing piracy are not sufficient in addressing the problem within the international system, as demonstrated by the lack of success in re- ducing both the seriousness and the frequency of attacks. Rather such legislation has suffered from defects including definitional complications, and practical issues in apply- ing their methods of arrest and prosecution. To overcome the various cracks that pres- ent within existing antipiracy frameworks, it is recommended that the existing regime be supplemented by the establishment of regional piracy tribunals. Individual tribunals could enforce their specific definition of piracy and complement this with consistent sentencing measures and penalties. This could offer a substitution platform for countries that are unable or simply unwilling to prosecute pirates themselves.

¹²²  Collins and Hassan, above n 30, 92.

¹²³  Ibid, 106.

¹²⁴  Kraska and Wilson, above n 1, 51.