Law in-depth
Piracy under International Law
Md Mahmudul Hasan
Piracy is considered as a heinous crime under international law. According to traditional international law, navigation in the high seas with the object of committing violent acts against other persons and property for private (or their own) interests and without being authorised or permitted by any state, is called piracy.
The law relating to piracy was codified in the Geneva Convention on High Seas, 1958. Article 15 of the convention defines 'Piracy' in the following words: Piracy consists of any of the following acts:
(i) Any illegal act of violence, detention, or any act of depredation committed for private ends by the crew or the passengers of a private ship or a private aircraft and directed (a) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft, (b) against a ship, aircraft, persons or property in a place outside the jurisdiction of any state.
(ii) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft.
Precedents
(i) The armed ship in the sea should be under the authority of some state and if such a ship is not under the authority of any state, it would be treated in the category of pirate ships, irrespective of the fact whether it has committed piracy or not (25 Fed. Rep. 408-US case)
(ii) Actual robbery is not an essential element of the crime of piracy. A frustrated attempt to commit a piratical robbery is equally piracy. [(1934) AC 586].
(iii) Whatever may be the diversity of definitions in other respects, all writers concur in holding that robbery or forcible depredations upon the sea animo furandi is piracy. [(1820) 5 Wheat 153, 161-US case].
Essential elements of piracy: Following are the essential elements of piracy
(i) Violence or robbery at high seas must be for private ends. Such acts committed by warships, government ships or aircraft cannot be called 'piracy'. For example, in the Second World War German U-boats sank enemy ships in the area of long-distance blockade in the high seas without any prior intimation. This act cannot be called 'piracy' because it was committed under the authority of the state of Germany.
(ii) Illegal acts of violence, detention or any act of depredation committed for private ends must be against the crew or passengers of a private ship or private aircraft. According to Article 102 of the UN Convention on the Law of the Sea, the acts of piracy committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship or aircraft.
(iii)Illegal acts of violence, detention or any act of depredation may be either on the high seas or in a place outside the jurisdiction of any state.
(iv) Violence, detention or any act of depredation may constitute piracy provided that above elements are satisfied.
(v) Committing of actual robbery is not essential for piracy. Even an unsuccessful attempt to commit robbery at high seas will constitute piracy.
(vi) According to the Article 15 (2) of Geneva Convention on the High Seas, any act of voluntary participation in the operation of a ship or an aircraft with knowledge of facts making it a pirate ship or aircraft will also constitute piracy.
Universal jurisdiction in respect of the crime of piracy: The concept of universal jurisdiction has been accepted and adopted in the 1958 Geneva Convention on the High Seas. Article 19 of the convention provides that on the high seas, or in any other place outside the jurisdiction of any state, every state may seize a pirate ship or aircraft, or a ship taken by piracy and under the control of pirates, and arrest the persons and seize the property on board.
The courts of the state which carried out the seizure may decide upon the penalties to be imposed and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third pirates acting in good faith. This provision has been retained without any changes in Article 105 of the 1982 UN Convention on the Law of the Sea.
Where the seizure of a ship or aircraft on suspicion of piracy has been affected without adequate grounds, the state making the seizure shall be liable to the state, the nationality of which is possessed by the ship or aircraft, for any loss or damage caused by the seizure. A seizure may be carried out by warships or military aircraft or other ships or aircraft on government service authorised to that effect.
A warship which encounters a foreign merchant ship on the high seas may board her on the ground suspecting that the ship is engaged in piracy. This may be done on other grounds also if permitted by treaty. In case, however the suspicions prove to be unfounded, and provide that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.
The writer is a student of LLB (Hons), University of Asia Pacific, Dhaka.
