Piracy is nowadays, compared to terrorism due to certain factors being shared such as hostage taking, setting of demands/ ransoms but the main difference among the two phenomena is that terrorism usually exists in established states that are under control and jurisdiction of a legal system presented by the government of those states; thus terrorists are prosecuted and penalised according to laws enforced by that state.
Piracy however, exists in dimensions that are not controlled by any state laws/open seas with space shared between many different nations and thus creates another problem in controlling this threat from a legal and ethical perspective.
Firstly, piracy results in and includes the following:
- Damage to private property/vessels and cargo.
- Threat to crew and passengers which mostly ends in death.
- Usage of military-grade weapons such as assault rifles and grenade launchers which were obtained illegally/smuggling.
- Occasional drug and human trafficking
Past effort was made to control maritime piracy as a threat to maritime security via an initiative by the UN. This initiative was focused on Somali piracy where Somalia was of interest by the UN since the 1990s and it involved the UN working with the TFG (Transitional Federal Government) in restoration of Somali state laws and carry them onto the territorial waters. This initiative has failed due to Somalia failing in provision of security on its territorial waters and thus attacks have increased since 2005 and peaked in 2011.
Analysing legal challenges posed by maritime piracy, it is visible that laws of Somalia and parts of West Africa are in-comprehensive of international and domestic law enforcement; especially applying it to pirates. Understanding jurisdiction of piracy counter-measures starts with nationality and territoriality associated with an attack where the State delivers judgement to the pirates. However, with international ships patrolling the waters and Somali courts unable to provide legal action the matter thus becomes more complicated.
If a certain state, for example has a ship in Somali waters that was hijacked by pirates and that state wants to take legal action against pirates; this depends if the ship and pirates have a nationality of that state where the attack happens. Along with this, laws of the state where the attack happened has to view piracy as a universal crime with permission to take action.
This challenge is expanded with the presence of private security firms that are hired for protection by vessel owners where firms who provide escort boats are present within a state that is different to that of the vessel it guards; with its crew also being of different nationalities as well.
Including all the above factors, piracy is a strange case where most laws that try to control it have dead ends that fail to meet certain conditions. Piracy saw approaches from the UN in the form of Resolution 1851, introduced at the Suppression of Unlawful Acts (SUA) convention in 1988, which allows parties to create and establish criminal offences that need to be controlled, create jurisdiction and accept offenders into custody.
Another factor which keeps most laws from controlling piracy is the political instability of Somalia and some parts of West Africa, regions where most pirate attacks originate from. Political instability causes state laws from all associated nations to not function and thus not ready to be enforced, leading to anti-piracy measures being in hands of other nations, ship owners, private security companies and organisations such as UN and IMO (International Maritime Organisation.)
Enforcement of laws against piracy by international parties makes it a universal crime demanding a universal law system; however this approach would also have its faults. Universal jurisdiction, for starters does not allow foreign vessels to pursue pirates to their hideouts that are located near territorial limits. Along with that, governments of nations may be reluctant to assist for political reasons.
Governments and local communities in countries such as Somalia may also be reluctant to co-operate due to a number of dis-incentives where co-operation will be expensive financially and logistically for the government while some members of the local community would be in favour of pirate activity. Prosecuting state laws will also refuse to imprison convicted/captured pirates along with governments being reluctant to prosecute countrymen/African solidarity.
So far, from a legal standpoint it is visible that piracy is a challenge to address in terms of rooting the threat from the point of origin; akin to terrorism where it is possible to invade a country of origin and declare manhunts, martial law etc. However, the rise of piracy lead to the rise of private security firms that are hired by vessel owners to provide protection to the vessel; a common measure taken but also legally penalised like the MV Seaman Guard Ohio, a private guard boat detained in India in 18th October 2013.
Piracy, so far, introduced an array of legal issues that interfere with fighting it and protecting vessels but piracy’s issues lie within political instabilities of countries of origin along with the under-development of laws and enforcement techniques and creation of offences. Private security brings more issues into the phenomenon by not following certain conditions; however they are fairly vague as seas have no fixed laws to abide by.
The MV Seaman Guard Ohio carried weapons that were not declared, but to whom they should be declared as the boat sails through uncontrolled locations along with having all the necessary clearance from their base of operations and owners of vessels they were contracted to protect.
Overall, piracy is an issue of two worlds: pirates and enforcers; with both sides producing legal challenges and therefore making this maritime conflict a street fight where rules are being made but barely regarded for various reasons. Maritime operations are protected by private corporations of somewhat dubious legality while law enforcement cannot prosecute or incarcerate pirates for another set of reasons ranging from local solidarity to benefit from the pirate activities. In order to prepare for potential losses as well as familiarise yourself with all the laws that would be expecting your vessel a proper consultancy project would help in this matter along with vessel survey for preparation to minimise losses as well as give insights to what can be used as leverage to gain something out of potential incidents.