Somewhat Short of a Universal Jurisdiction

Universal Jurisdiction

Article 105 of the United Nations Convention on the Law of the Sea of 1982[1] allows any State either on the high seas, or in any other place outside the jurisdiction of any State, to seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board as to decide upon the penalties to be imposed, and to determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.[2] This rule which has been codified only in the XX century is called ‘universal jurisdiction’ or the ‘universality principle’.[3]

However, as of today despite the universal acceptance of this rule as one of the oldest international customs[4] the issue of the practical implementation of the universal jurisdiction of states based on the aforementioned principle is extremely serious. In the absence of clear legal regulations governing its use, universal jurisdiction not only reduces the effectiveness of international struggle against piracy but in many cases is a limiting factor.

The universality principle is a unique legal phenomenon: in contrast to other types of international jurisdiction, universal jurisdiction is not based on the idea of sovereignty or acquiescence of a state, rather it strives to overcome them. Therefore, universal jurisdiction is often defined as one that might be exercised by a state against the will of others who possess either territorial or other forms of jurisdiction. The universal jurisdiction doctrine stems from the fact that some crimes are so dangerous both for each and every state and international legal order in general that their perpetrators should not enjoy impunity by resorting to the principle of respect for state sovereignty and inviolability of borders.[5]

Up-to-date, the vast majority of scholars are of the view that piracy is the only crime whose universal jurisdiction enjoys customary status. However, despite the fact that universal jurisdiction over piracy has existed for years there has been an extremely small number of judicial cases on piracy initiated by resort to this principle. Unfortunately, the fact that many states still do not allow their courts to exercise universal jurisdiction over pirates only worsens the situation.[6]

Moreover, any state which has such a jurisdiction may voluntarily abandon it in favor of another state.[7] Given such a situation, a fair state abandoning its jurisdiction would assume that the requiring state has a jurisdictional priority, whereas an unfair state would consider the feasibility of its actions on bringing the perpetrators to justice instead of being guided by the aim of protecting its citizens or fulfilling its international obligations. In any case the result will be the same: criminals might remain at large and continue their criminal craft.

The principle of universality is enshrined in miscellaneous international acts which theoretically should facilitate its implementation. However, in practice, the existing legal regulations are not sufficient as either to construct the mechanism of appropriate actions or to clarify the meaning of the principle. In this regard the work of the International Law Commission[8] on the synthesis of current practices and the development of common criteria for its contemporary use is deemed to be of an extreme importance.

Yet, the paradoxical situation related to the criminal jurisdiction still remains. Whereas some criminal offences entail the will of several states to exercise their jurisdiction over it, piracy as a crime of serious concern to international legal order does not enjoy the same privilege whilst states refuse to exercise jurisdiction referring to the existence of a right rather than an obligation. Thus, by avoiding proper action states actually shift the burden of punishing those responsible for piracy to states whose vessels or citizens will become victims of this crime the next time it happens. As a result, the principle which was conceived as a guarantee of the inevitability of punishment in practice turns into an instrument enabling states to avoid their international and domestic obligations.

Written by Jan Guardian


[1]       UN General Assembly, Convention on the Law of the Sea, 10 December 1982 [online][accessed 29 December 2012].

[2]       Ibid., art. 105.

[3]       For more information on universal jurisdiction, see: E. Kontorovich, A Positive Theory of Universal Jurisdiction. George Mason Law & Economics Research Paper No. 04-25, Arlington, VA: GeorgeMasonUniversity, 2004.

[4]       W. B. Cowles, Universality of Jurisdiction over War Crimes. 33 (2) California Law Review 189 (1945).

[5]       Mary Robinson, ‘Foreword’, The Princeton Principles on Universal Jurisdiction, PrincetonUniversity Press, Princeton, 2001, p. 16.

[6]       E. Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation, 45(1) Harvard International Law Journal 183 (2004).

[7]       See e.g.: A-G Israel v Eichmann , Supreme Court Judgment of 29 May 1962, (1968) 36 International Law Reports 291, para. 12(d).

[8]       UN General Assembly, Principle of ‘Universal Jurisdiction’ Again Divides Assembly’s Legal Committee. GA/L/3415, Sixty-sixth General Assembly, Sixth Committee, 12 October 2011 [online][accessed 29 December 2012].

The Troubled Waters of India: Problem of Sea Piracy and the Law

Written by Garima Tiwari

Sea Piracy – a not very talked about subject and also not understood well because it doesn’t directly affect the daily lives of most people. But it is a major concern for shippers, insurance agencies, underwriters, crews and cargo owners and it does ultimately affect all consumers because it can drive up the price of goods, including oil, other commodities and manufactured products. In a way, shipping companies have pretty much been on their own to cope with piracy. Then national navies took up the cause, with loosely coordinated patrols to waive off pirates. This cooperation was enhance by reporting mechanisms and armed guards on ships. Then armed guards came on commercial vessels. Most guards are from private maritime security companies, and some came from host militaries.[i] This issue of confused safety regime came much into light in February 2012, when the Italian Marines based on the tanker Enrica Rexie allegedly fired on an Indian fishing trawler off Kerala, India killing two of her eleven crew. The Marines allegedly mistook the fishing vessel as a pirate vessel. The incident sparked a diplomatic row between India and Italy. [ii] Enrica Rexie was ordered into Kochi where her crew were questioned by officers of the Indian Police.

It must be noted that currently, India does not have a separate domestic legislation on piracy despite the fact that India is a signatory to both United Nations Convention on the Law of the Sea adopted by the United Nations on the 10th December, 1982 and 1988 Suppression of Unlawful Activities Convention. [iii]

In the absence of a dedicated legal mechanism; normally the pirates are charged under the Indian Penal Code(IPC) with Trespassing (Sections 441 & 447), Waging War Against the Country(Section 121), Attempt to Murder(Section 307) and Armed Robbery(Sections 397 and  398) and other laws such as Foreigners and Passport Act. Besides these, certain provisos of the archaic British Admiralty Law were also invoked. An attempt to repeal this vintage Admiralty Law with was initiated in 2005 through a draft Indian Admiralty Bill. Also the UN General Assembly Resolution 64/71 of 12 Mar 2010 which urged all member states to take necessary steps under their national law to facilitate the apprehension and prosecution of personnel who are alleged to have committed acts of piracy. The resolution also called for cooperation with the International Maritime Organization by adopting appropriate procedures including adoption of national legislation.[iv]

Given the increasing incidence of piracy, including within India’s Exclusive Economic Zone, and the increasing number of pirates apprehended by the Indian Naval forces, a need was felt for a domestic legislation on piracy which could provide the necessary legal framework within the country for prosecution of persons for piracy related crimes and in response the Piracy Bill 2012 has been laid.[v] India is not the only country grappling with the intricacies of law dealing with piracy and therefore, the bill might be of some help to other countries in need of it.

Following are some of the features of the Bill:

  1. Definition of Piracy is verbatim from the United Nations Convention on the Law of the Sea, 1982.
  2. Punishment: An act of piracy is punishable with imprisonment for life except where the accused has caused death in committing the act of piracy or attempt thereof in which case he may be punished with death and in addition the Designated Court may also subject to any restitution or forfeiture of property involved in the commission of the offence. On one hand, there is a demand for abolishing death penalties at all forums, including death as a punishment might not be taken well by the international community at large.
  3. An attempt to commit piracy or any unlawful attempt intended to aid, abet, counsel or procure for the commission of an offence of piracy shall also constitute an offence and is liable on conviction to be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine. In addition, an accomplice to an act of piracy shall be liable on conviction to be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine.
  4. Extradition and Reciprocity: The offence shall be deemed to have been included as extraditable offences and provided for in all extraditable treaties made by India. In the absence of a bilateral extradition treaty, the offences under this Act shall be extraditable offences between India and other Convention States on the basis of reciprocity.  What is interesting here is that for the purposes of application of the provisions of the Extradition Act, 1962 to the offences under this Act, any ship registered in a Convention State shall, at any time while that ship is plying, be deemed to be within the jurisdiction of that Convention State whether or not it is for the time being also within the jurisdiction of any other country.
  5. Extension to Exclusive economic Zones: It is also for the first time that the Indian jurisprudence is being extended beyond the territorial waters with particular reference to the Exclusive Economic Zone(EEZ) of India. This might raise some debate since the contiguous zones and EEZ for all practical purposes are considered as high seas except for certain environmental, fiscal related purposes and for the use of maritime resources by the coastal state.
  6. 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 or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect.

The Bill seeks to address the ambiguous nationality issues of Somali pirates[vi] operating from a dysfunctional territory by including stateless persons under the ambit of the legislation. The second issue that has been dealt with is the ‘two ship dilemma’ when one or more of the crew members directly or indirectly facilitate an act of piracy. It also allows for inabsentia prosecution of the offences, and also provides for dedicated Sessions Court under each High Court through a consultative process with stringent bail provisions.  An interesting aspect of the Bill is that it puts the onus of proving the innocence on the accused, instead the basic caveat of ‘being innocent until found guilty’.[vii]

In addition there are some talks on coping with the problem like India, Sri Lanka and Maldives will soon sign a trilateral agreement on maritime cooperation to pool resources and share data in the region for better control over the territorial waters, and detect suspicious movements. The agreement aims for cooperation in carrying out surveillance, anti piracy operations and in curbing illegal activities including maritime pollution. A key aspect of information sharing is Maritime Domain Awareness. India had also agreements with Royal Thai and Indonesian naval forces to conduct coordinated patrolling in the east, around the region of the Malacca Straits.[viii]

While the law and agreements are in pipelines, an issue that came up sometime back was whether private military security companies (PMSC) are proving successful. It is agreed that there are many benefits of the PMSC but, the limitation comes from the lack of clear rules of engagement (ROE) on the use of force at sea and the consequences the contractors might face. There is a particular need for greater awareness of the consequences of opening fire against suspected pirates and insurgents who are subsequently found to be innocent. This is evident in light of the incident when the Italian guards wrongfully killed the fishermen.Accidental death or injury, for instance, could expose contractors, and conceivably those that employ them, to exorbitant liability claims and, worse, criminal charges as happened in India. [ix]

It is critical therefore, that a solid international legal framework regulating the use of PMSCs and their ROEs is developed. A  strong law, is definitely needed to avoid the ambiguities yet as the challenge is clearly beyond the capability of national navies alone, collaboration with the shippers is essential to getting control of this problem. Lacking international agreement to address the problem could, in the worst cases, lead to conflict.


[i] Lawrence P. Farrell Jr., Piracy: A Threat to Maritime Security and the Global Economy, November 19, 2012 available at http://www.marsecreview.com/2012/11/piracy-a-threat-to-maritime-security-and-the-global-economy/

[vi] A Template for Those at Risk: India’s Response to Maritime Piracy 2010-11 by  Swadesh M Rana, OEF Project Adviser and Focal Point for South Asia available at http://southasia.oceansbeyondpiracy.org/sites/default/files/a_template_for_those_at_risk_indias_response_to_maritime_piracy_2010-11v3.pdf

[ix] Peter Chalk  , Private Maritime Security Companies (PMSCs) and Counter-Piracy available at http://www.counterpiracy.ae/upload/Briefing/Peter%20Chalk-Essay-Eng.pdf

Clear Waters Ahead: National Piracy Prosecutions in Italy and the US

Written by: Regina Paulose

The United Nations Convention on the Law of the Sea (UNCLOS), considered to be customary international law, defines an act of “piracy”[1] as any one of the following acts:

(a) 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 or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) 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;

(c) Any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).[2]

The punishment for piracy is left up to the state that captures the pirates.[3]  Under the US Code, piracy is defined as, “whoever on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.”[4]  Prior to the recent cases that have been filed in Federal Court, the governing case was US v. Smith (from 1820) which interpreted piracy as “robbery at sea.”[5]

While things remained quiet with regards to the interpretation of sea piracy laws in the US, the decision in US v. Said disturbed the status quo waters. A federal judge dismissed the charge of piracy at the pre-trial stage, interpreting piracy to narrowly mean a “robbery at sea.”[6] The prosecutor filed an interlocutory appeal, and the Appeals Court remanded the case for proceedings to be consistent with US v. Dire.[7]

In US v. Dire, the defendants, a group of Somali pirates, approached a vessel assuming it was an unarmed merchant vessel.[8] Dire and two other defendants on the skiff were armed and began shooting at the vessel, which was actually the USS Nicholas on an anti-piracy mission. The defendants attempted to flee after the crew of the Nicholas returned fire, but were caught before reconnecting with its mothership. There were two more defendants aboard the mothership who were also apprehended. During questioning the defendants each separately confessed the scheme to hijack the vessel.

The defendants on appeal asserted that their attack did not amount to piracy under USC 1651 because it was not a “robbery at sea.”[9] In summary, the Appeals Court disagreed and found that USC 1651 “incorporates a definition of piracy that changes with advancements of the laws of nations.” Further, piracy under the law of nations encompasses the violent conduct of the defendants.[10]

The Dire decision should  allow the Said court to reconcile its decision in light of the analysis made in Dire. This should make the laws in the US consistent with regards to the interpretation of what piracy constitutes.

In the EU, Italy has also begun national prosecutions of pirates. The newest piracy cases to emerge in Italy are the Montecristo Hijack trials and the Valdarno.[11] In October 2011, the Montecristo, an Italian cargo ship carrying scrap metal, was attacked by Somali pirates.[12] The crew “sealed” themselves off in the citadel room. The crew continued to watch the pirates attack the ship with RPG’s from the citadel. The pirates boarded the Montecristo. When a helicopter was heard outside, the crew fired flares and flashed SOS signs to indicate they needed help. They were rescued by British and US warships who then arrested the pirates onboard the Montecristo.[13] The pirates were brought to Italy for trial and were charged with “attempted hijacking” among other charges.[14] The Somali pirates were convicted and sentenced between 16 to 19 years.

In Valdarno, the pirates were not able to board the vessel, but attempted to stop the vessel by firing at it. They were apprehended by the Italian military on board a Yemeni ship, thus making one of the critical issues whether Italy had proper jurisdiction. This issue was not flushed out in litigation because the defendants accepted plea deals.[15]

All of these cases point to a possible increase in national prosecutions of piracy cases. These cases indicate that the emerging jurisprudence seems to be consistent with international norms and that countries are willing to prosecute these criminals. This should come as good news to the Kenya Piracy Court which claimed in 2010 that it would “stop prosecuting piracy cases” unless other countries were willing to “share the burden.”[16]  The importance of the Kenya Court should be emphasized. The cases prosecuted by Kenya have been used in decisions such as Dire to further illustrate what the legal norms and the exact contours of piracy are.

In light of these cases, perhaps one important discussion the international community should take the time to have is what kind of sentences and plea offers should be acceptable in piracy cases. While each case will have a different set of facts, the trends in litigation indicate that challenges to jurisdiction are extremely common. If sentences are similar it would prevent defendants from “forum shopping.” All the defendants in the cases discussed so far are from Somalia. Many of them are motivated to engage in this behavior because of the lack of opportunities and the quick availability of funds. It is important that during sentencing national judges also consider incorporating educational and opportunities for rehabilitation (if needed) if they exist within the prison system. Otherwise, once the pirates have served their sentences, they will return to venture out to the high seas for work again.


[1] This definition is similar to the 1958 UN Convention on the High Seas

[2] UNCLOS Article 101

[3] UNCLOS Article 105, “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 or aircraft 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 parties acting in good faith.”

[4] 18 USC §1651

[5] US v Smith 18 US 153 (1820)

[6] US v. Said, 757 F. Supp. 2d at 556- 57, See Douglas Guilfoyle, “Prosecuting Pirates in national courts: US v. Said and piracy under US law” EJIL: Talk! August 23, 2010) available at: http://www.ejiltalk.org/prosecuting-pirates-in-national-courts-us-v-said-and-piracy-under-us-law/. See also Professor Eugene Kontorovich, who argues that the lack of a definition was because Congress foresaw changes to the definition in “Piracy Charges dismissed by Federal Judge” The Volokh Conspiracy blog, (August 17, 2010), available at: http://www.volokh.com/2010/08/17/piracy-charges-dismissed-by-federal-judge/

[7] US v. Said, US Court of Appeals Fourth Circuit, No. 10 -4970, May 23, 2012, available at: http://www.ca4.uscourts.gov/opinions/Published/104970.p.pdf

[8] These were the facts presented at the trial of the defendants. US v. Dire, No. 11-4310, 4th Circuit Court of Appeals, May 23, 2012, 5.

[9] Dire at 9

[10] Dire at 41

[11] Enzo Mangini, Somali Pirates Sentences, November 28, 2012, Maritime Security Review, http://www.marsecreview.com/2012/11/somali-pirates-sentenced/

[12] Maritime Security Review, Vessel Re-Taken, October 11, 2011, available at: http://www.marsecreview.com/2011/10/vessel-taken/

[13] This is the reported testimony presented during trial by the crew members aboard the Montecristo.  Enzo Mangini, Montecristo Hijack Trial, October 26, 2012, available at: http://www.marsecreview.com/2012/10/montecristo-hijack-trial/

[14] Italian Prosecutor Scavo charged the pirates under Italian Navigation Code Article 1135.  See also Matteo Crippa, Historic Piracy Trial Opens in Italy, March 27, 2012, available at: http://piracy-law.com/2012/03/27/historic-piracy-trial-opens-in-italy/

[15] Mark Lowe, “Italy Jails More Somali Pirates” Maritime Security Review, December 4, 2012, available at: http://www.marsecreview.com/2012/12/italy-jails-more-somali-pirates/

[16] BBC, “Kenya Opens Fast Track Piracy Court in Mombasa” June 24, 2010 available at: http://www.bbc.co.uk/news/10401413