Tuesday, November 13, 2012

Piracy & Maritime Terrorism: A 35-Year Retrospective

By Captain Keith F. Graham

Captain Graham began giving weekend seminars for the California Maritime Academy’s Continuing Education Department to those interested in the maritime matters in 1975, while on leave from the Navy to attend law school. The most popular topic over each sixteen-hour session on everything encompassed by international maritime law was “piracy”.

Over the intervening 35-plus years, the pertinent law has evolved in some respects and changed not at all in others. What follows is the second part of Captain Ingraham’s own legal “take”, his own opinions, his own view of this precinct of the maritime world. The first part of this series can be found on the web at www.pacmar.com/piracy.html.

Customary international law, including criminal jurisdiction over pirates, gave way to multi-national treaty law beginning with a series of United Nations Law of the Sea conferences and conventions. The latest treaty addressing piracy was the third United Nations Convention on Law of the Sea (known as UNCLOS III), which was signed in 1982 and became effective in 1994. The United States has not ratified the UNCLOS III Convention, although most of the community of nations did, and the US opposition to some of its terms had nothing to do with piracy definitions and authorities.

In the years since the Convention became effective, the US has announced that it considers most of UNCLOS III to be generally declarative of the law of the sea and the division of the oceans to the point of being a statement of new customary international law. Although this unusual stance theoretically preserves the sovereignty of the US in going its own way when desired, it has diluted the legal posture of the Nation when dealing with piracy. Rather than underscoring the right of the United States to deliver a clear, modern definition of piracy on its own unilateral terms (or even announce similar to Supreme Court Justice Potter Stewart‘s vintage comment on a thorny legal definition of pornography “that you know it when you see it”), any discussion of US observance of the terms of the Convention always begins with the caveat that our Nation is not technically a party to UNCLOS III.

To augment the international community’s collective response to rising threats at sea, the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) was drafted in Rome in 1988, entering into force in 1991. SUA seeks to prohibit violent and illegal attacks against vessels, property, and embarked personnel, covering acts that may not fall within the UNCLOS III Article 101 definition of piracy. In fact, SUA’s prohibitions are against “unlawful and intentional acts” which would capture armed robbery as well as traditional piracy, though not by name. Many members of the impacted world community have not, however, become members of the SUA Convention.

To illustrate the unhappy dichotomy that can result from imperfect and deficient international conventions, consider the following hypothetical:

You are the Master of a US registered luxury cruise ship operating between the Port of Long Beach and Hawaii. On the high seas en route to Hawaii, you are informed that an “Eco-Admiral” and two others from the “New World Ocean Order” – all armed with pistols – have commandeered the passenger section of the vessel in the name of “All Creatures of the Blue Planet” and “The People of the United States”. While the passengers are being held hostage, you are assured that no harm will ensue if the cruise ship heads for a Mexican port. The Eco-Admiral informs you by phone that he has no intention of storming the bridge by force and that he is fully aware that he will probably be arrested when the vessel reaches Mexico, but that this would simply underscore his cause to “all creatures of the Blue Planet” and the “People of the United States”. Prior to this unhappy episode, you had exchanged courtesy signals with an Australian destroyer ten miles off your port quarter. Your radio shack still remains under the cruise ship’s control and the Radio Officer apprizes the warship of the situation. What result? What can you as Master expect?

As the Master, you may or may not know whether the UNCLOS III Article 101 definition applies to your shipboard situation and controls the fate of your passengers and vessel. Is the activity “piracy” under one international authority and not under another? Even if you as Master conclude that your training and education allows proper legal characterization, is it moot if the government of Australia (which thankfully has a warship in the vicinity) has a different view of the legal world and the pertinent conventions? Remember a durable maxim in this area of international uncertainty, “One man’s terrorism [or piracy] is another man’s freedom fight.” The lack of clear and comprehensive world consensus on piracy recalls another maritime maxim, “An incident at sea can ruin your entire day.”

Another initiative in the effort to combat piracy springs from the International Maritime Organization (IMO), a specialized agency of the United Nations headquartered in London with the mandate to set standards and promote safety at sea. Beginning in 1998, IMO’s long-term anti-piracy project involves a cooperative framework of education, training, and incident reporting by member countries that enter into regional agreements. IMO acts as the clearinghouse for this piracy and armed robbery information and has issued its own circulars such as MSC.1/Circ.1333 “Recommendations to Governments for Preventing and Suppressing Piracy and Armed Robbery Against Ships”; MSC.1/Circ.1334 “Guidance to Shipowners and Ship Operators, Shipmasters and Crews on Preventing and suppressing Acts of Piracy and Armed Robbery Against Ships”; as well as other guides on vessel security alert systems, an investigatory code of practice, and measures to prevent the registration of phantom ships. These “how to” guides offer self-help countermeasures and presume true international law enforcement measures against piracy will continue to be infirm. However, it must be observed that IMO is not empowered by the UN to interdict piracy through any direct action. As a landmark 2008 Rand Corporation report entitled “The Maritime Dimension of International Security” opines, “The best that can be hoped for is the rational management of threats within acceptable boundaries.” This thought underlies a “less than global approach” by impacted nations.

Pirate Reporting Center
Another organization recording pirate attacks, raising public awareness including transmitting real-time warnings, and helping to trace vessels lost to their attacks is the International Maritime Bureau’s (IMB) Pirate Reporting Center. This nongovernmental organization was established in 1992 in Kuala Lumpur, Malaysia and utilizes the definition that piracy is “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 furtherance of that act.” The IMB scope is therefore broader than UNCLOS III and cures both the “situs problem” of Article 101 by including violence against a vessel, property or persons within a nation’s territorial waters as well as 101’s requirement that two ships be involved. Even though a relatively new association, IMB has rightfully gained a well-established niche as another mechanism to help control piracy worldwide.

Regional agreements are coming of age as yet another weapon in the arsenal. Acting upon the IMO model, the Regional Co-operation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (RECAAP) was initiated by 16 Asian countries in 2004. In 2006, RECAAP was expanded with an Information Sharing Center (ISC) in Singapore, a hot spot of Asian piracy. A similar IMO-type regional agreement is the 2009 Code of Conduct Concerning the Repression of Piracy and Armed Robbery Against Ships in the Western Indian Ocean and the Gulf of Aden concluded in Djibouti. Members not only share information but also agree to apprehend and prosecute pirates and armed robbers and care, treat, and repatriate victims of their crimes.

Model legislation has also been prepared as an antidote for existing gaps in international law that fail to control piracy. Developed for IMO use, this legislation could also establish principles for uniform vessel registration, penalize the purchase of pirated property, and further discourage the buying of hijacked vessels. However, the best model legislation remains just a model unless adopted, and, until adopted and enforced by a plurality of jurisdictions, its goals remain lofty but its implementation ineffective.

In the world legal dialogue regarding piracy, the United States should be a leader. Sadly, it is not. Not to trivialize the role of the US, (especially in effecting regional naval patrols with such high visibility results as the rescue in the 2009 M/V Maersk Alabama drama or the 2012 SEAL Team recovery of Americans held hostage by Somali pirates), but there is a penchant for very passive leadership in advancing the role of the law in making participation in piratical ventures too risky to consider. The US signs working agreements with allies but doesn’t direct the path forward in the international legal arena. We deliver suspected pirates for prosecution to surrogate venues like the former British colony of the Seychelles, for example. Maritime terrorism has co-opted the focus of the United States, and, unfortunately, the result is life at sea in the grey haze of legal insufficiency and poor understanding of arcane authorities.

Russian Response
By contrast, Russia appears far more resolute in the eyes of the world in undertaking legal response. (Ironically, this stance also has the effect of revitalizing Russia’s naval presence far from its traditional operating areas in the Post-Cold War era despite fiscal austerity). Russian military forces have successfully recaptured hijacked vessels, killing and wounding Somalis without hesitation in the process, and brought the surviving pirates to Moscow for prosecution. Similarly, Russia’s UN ambassador has introduced resolutions to the Security Council requiring a study on ways to enhance and enforce international legal response to the threat, building upon earlier UN announced sanctions and the authorization for third party pursuit of pirates into Somalia’s territorial waters.

In 2009, the Security Council had encouraged nations with a stake in the continuing menace to “conclude special agreements or arrangements” with countries bordering the troubled area. However, Russian diplomats note the inability and reluctant of those neighbors to assume the lion’s share of imprisoning, investigating, and prosecuting pirates and sea robbers. Russian initiatives in ultimately setting up national and international forums to try and punish pirates have been met with favor by several maritime powers, but the UN has been slow to act on them. Meanwhile, the posture of the United States at the UN on the issue of piracy has been bluntly characterized as “noticeably out to lunch.” The US is in no danger of being remembered on this international issue similar to Andrew Jackson’s, “One man with courage is a majority”. As difficult as it is for a former Cold Warrior to concede, I think the laurels for courage at this juncture go to our former adversaries.

The diplomatic posture of America’s ally, Britain, has been nothing short of incredible, especially in light of its maritime history and proud reputation for interdiction of piracies globally. Certainly Britain is an active participant with multinational coalition forces afloat in the waters around the Horn of Africa and the Gulf of Aden. Nonetheless, as incongruous and outrageous as it may seem, the British Foreign Office’s direction to the Royal Navy is not to detain captured pirates inasmuch as such actions could violate the human rights of detainees. Because pirates returned to their country of origin could potentially face death under Islamic law for murder or theft, the pirates could seek asylum in Britain. A New York Times editorial labeled Britain’s stance a “curiously pathetic approach to piracy.” What Britain has actively pursued is to utilize its former colony of Kenya, Somalia’s neighbor, to imprison and try pirates, which worked for a while, but in mid-2010, Kenya announced its legal system was over-taxed and its prisons already full. It became apparent that Kenya did not want to appear puppet-like in its criminal justice system responses.

The same sequence of events is now taking place off the Southeast Coast of Africa in the Seychelles. At the start of 2010, there were approximately 700 pirate detainees in 12 countries, including Somalia itself.

In sharp contrast to Britain, there is minimal energy spent balancing the merits of human rights dilemmas or housing of pirate prisoners in the People’s Republic of China. Once known for populating the ranks of sea rovers in Asia, China’s current measures against pirates are swift and lethal as reported both in the media and in legal seminars I conducted for the country’s ship pilots.

Next month I’ll discuss the level of cooperation and trust, or lack thereof, among countries seeking to reduce piracy.

Keith F. Graham recently retired from 35 years as an adjunct professor at the California Maritime Academy where he taught International Maritime Law; Admiralty; Maritime Environmental Law; Business Law; and Engineering Ethics. He presents maritime law seminars to Pacific Rim audiences and governmental authorities, which include specialized training on piracy, maritime terrorism, and countermeasures.