A Note On The ICJ Judgement In NICARAGUA v COLOMBIA and its relevance to International Crime and Criminal Law

Written by: Professor Steven Haines[1]

On 19 November 2012 in The Hague, the International Court of Justice (ICJ) handed down its Judgement in the case between Nicaragua and Colombia concerning the two States’ dispute over territory and maritime jurisdiction in the south-western region of the Caribbean.[2] The following day, Claire O’Neill McCleskey posted an article on the InSightCrime website in which she raised the possibility that the Court’s decision would have negative consequences in relation to the combating of serious crime in the region.[3]   What was it about the case that prompted this immediate reaction – and was that reaction justified?  Indeed, are there any international criminal law consequences of the Judgement?  The aim of this note is to provide a brief account of the case, its background and the manner in which the Court dealt with it, and to follow that up with some comment on whether or not there are likely to be significant consequences in relation to international crime and criminal law.

Background to the Case

The case was initiated by Nicaragua in December 2001.  Seventy-three years earlier, the 1928 Barcenas-Esguerra Treaty had dealt with issues of sovereignty of islands in the region and for some time after that there was no obvious dispute between the two States.  There were certainly no maritime boundary issues because, in 1928, the only cause for such would have been a dispute over overlapping claims to three nautical mile territorial seas; the islands were so far offshore (over 100 nautical miles) that this was simply not an issue – or regarded as potentially so.

On the basis of its interpretation of the 1928 treaty, Colombia exercised sovereignty over several islands that were in very much closer proximity to the Nicaraguan coast than they were to Colombia’s.  Three island groups in particular – San Andres, Providencia and Santa Catalina – were habitable islands that were expressly dealt with in the 1928 treaty.  Today they are important tourist destinations in the region.  San Andres (pop: 70,000) is just over 100 nautical miles from the Nicaraguan coast, while Providencia (pop: 5,000) and Santa Catalina are about 50 nautical miles to the north east of San Andres and about 125 nautical miles from the Nicaraguan coast.  All three islands are in the region of 380 nautical miles from the Colombian coast.  Two other physical features located to the north of San Andres, Providencia and Santa Catalina – Quitasueňo and Serrana – are very low lying, uninhabited banks or cays that were not expressly covered by the provisions of the 1928 treaty but which Colombia has always since then regarded as its territory.  There was, though, some doubt as to the extent to which Quitasueno remained dry at high tide, a factor that the Court was required to consider.  If it remained above sea level at high tide, it would be classed as an island and would generate a territorial sea – although almost certainly not an EEZ, as to do so it would need to be able to sustain human habitation or economic life under Article 121(3) of the 1982 United Nations Convention on the Law of the Sea (1982 UNCLOS).  If it was submerged at high tide it would not qualify for island status, would not be appropriable as sovereign territory, and could not, therefore, generate a territorial sea or any other jurisdictional zone.

At the time the 1928 treaty was negotiated, the potential for substantial resource exploitation in the waters between the two States had not been a consideration and had not influenced the terms of the treaty. The islands claimed by Colombia generated a three mile territorial sea but Colombian sovereignty over them had relatively little geo-political, legal or, indeed, economic, impact on the region.  As the resources of the continental shelf emerged as a significant factor shaping the law of the sea in the second half of the twentieth century, however, the terms of the 1928 treaty increasingly came to be seen by Nicaragua as disadvantageous. Colombian sovereignty over the islands would have substantial impact as newly extended coastal state jurisdiction was established.  The location of the islands had the potential greatly to restrict the extent of Nicaraguan continental shelf and exclusive economic claims while at the same time giving Colombia a disproportionately large area of jurisdiction.  Nicaragua came to regard the situation as inequitable in the new era of extended jurisdiction and maritime resource exploitation, especially given the fact that the islands at the heart of the dispute were three times as distant from the Colombian mainland as they were from the Nicaraguan.  The latter began to challenge Colombian sovereignty of the islands. The result was that the claims of both States to continental shelf and exclusive economic jurisdiction overlapped significantly and the dispute intensified as the potential for economic exploitation increased.

In very general terms, this is the historical background to the dispute (more detail can be found in the Court’s Judgement and in the papers presented by both sides during the case.) Nicaragua took the case to the ICJ confident that the Court would award it sovereignty over key islands.  It then expected the Court to define a maritime boundary using Nicaraguan sovereignty of the islands to establish its continental shelf and exclusive economic zone (EEZ) in substantial areas previously claimed by Colombia.  Colombia, on the other hand, while reluctant to place the dispute with the Court, was anticipating a rejection of Nicaraguan claims for sovereignty over the islands, which it assumed would leave the Colombian claimed continental shelf and EEZ largely intact.

The Progress of the Case and the Court’s Judgement

The Court took seventeen days short of eleven years to reach its Judgement. One might ask why it took so long.  The answer lies in a combination of procedural requirements, the need for the Court initially to consider its own jurisdiction before moving on to the merits of the dispute itself, and technical complexities.

Following Nicaragua’s filing of its Application in 2001, there followed the usual promulgation by the Court of deadlines for the submission of the Nicaraguan Memorial and the Colombian Counter-Memorial; these were set for April and June 2003 respectively.  In July 2003, however, Colombia raised preliminary objections as to the Court’s jurisdiction and the proceedings on the merits were duly suspended.  Public hearings on the preliminary objections were held in June 2007 and the Court handed down its judgement on these in December that year.  With one important exception (see below), it concluded that it did have jurisdiction to adjudicate on the dispute.

Colombia was then given a new deadline of 11 November 2008 to submit its Counter-Memorial on the merits.  This was met and there followed a further round of deadlines for a Nicaraguan Reply (18 September 2009) and a Colombian Rejoinder (18 June 2010).  Public hearings on the merits were eventually held between 23 April and 4 May 2012, with the Judgement handed down six months later.

Maritime boundary disputes are frequently complicated by technical factors and this was certainly true in this case, in which hydrographic evidence concerning maritime features and tidal effects was submitted to the Court by both parties. Their representatives in the proceedings included both legal counsel and scientific and technical advisers, and each party challenged the other’s scientific and technical methodologies in the process.  The principal technical issues in focus in relation to the question of sovereignty were to do with whether or not certain physical features qualified as islands or cays, or were merely raised banks that only dried at some point below high tide. The precise physical characteristics of the features and of the tides that affected them were important in determining whether or not it was possible for either State to claim them as territory and whether they would then, as a consequence, generate extensions of coastal state jurisdiction (territorial jurisdiction, exclusive economic jurisdiction, or jurisdiction over the continental shelf).  Following the determination of sovereignty, further technical details were to do with the construction of the single maritime boundary delimiting the two States’ continental shelves and EEZs.

While the time taken to reach the Judgement following Nicaragua’s initiation of the case may appear unduly excessive to those unfamiliar with the ICJ’s proceedings, it was by no means unusual, and the technical issues were also complex.  The time was necessary for all of the details of the case to be thoroughly researched and presented and then analysed by the Court.

Nicaragua submitted the dispute to the ICJ to achieve two objectives: first, a ruling that it has sovereignty of various islands and cays located between Nicaragua and Colombia; and, second, the delimitation by the Court of the maritime boundary between the two States.  One can see that Nicaragua wished to be granted sovereignty of certain islands in order to maximise the extent of its continental shelf and exclusive economic zone – the islands having a potentially significant influence on the extent of the resource zones that would be partially generated by them.

While the case was reasonably complex at the technical level, we need only briefly state its outcome.  The result was somewhat unexpected from the point of view of both parties.  To start with, the Court had concluded in its Judgement on Colombia’s Preliminary Objections that it had no jurisdiction to consider Nicaragua’s claim to the islands of San Andres, Providencia and Santa Catalina because sovereignty had been determined in Colombia’s favour by the 1928 treaty.  In effect, it was ruling in favour of Colombian claims to sovereignty over the islands.  It also confirmed Colombian sovereignty over various other islands, including Quitesueno and Serrana.  What it then went on to do was acknowledge the need, for reasons of equity, to grant no significance to Quitesueno and Serrana in relation to delimitation of the continental shelf or EEZ.  While Colombia has the right to a 12 nautical mile territorial sea around these islands, it has no prospect of relying on them to generate either a continental shelf or an EEZ. The islands were effectively left as Colombian territorial enclaves within the Nicaraguan continental shelf and EEZ.  While welcoming the Court’s decision over sovereignty, Colombia effectively lost the case in the final analysis because of the extensive sea area (approximately 30,000 square miles of ocean) it lost as a result of the ruling.

The Impact of the Case on International Crime and Criminal Law

It must be said that on first reflecting on this case, it appears to have no substantial relevance to international criminal law at all.  As already explained, it was to do with rival maritime claims that, while producing tension, had not previously resulted in the parties to the dispute resorting to force.  One narrow definition of ‘international criminal law’ is that implied in the Statute of the International Criminal Court (ICC), which has jurisdiction over genocide, war crimes, crimes against humanity and aggression. Unless war were to break out between the two States, it is virtually impossible to imagine circumstances in which the case would have relevance to ICC-based criminal law.

Both Nicaragua and Colombia have accepted the Court’s Judgement, although the latter feels aggrieved by it.  Apart from initially challenging the ICJ’s jurisdiction, Colombia has subsequently been highly critical of its ruling.  Colombian president, Juan Manuel Santos, declared on 28 November that the Judgement was ‘unjust and erroneous’ and announced that his government would ‘no longer recognise the World Court in border disputes’.[4] He went on to say, however, that Colombia’s ‘emphatic rejection’ of the resultant maritime boundary would not result in any extra-legal action; it will only rely on international legal processes to challenge it.  It must be said that it is difficult to imagine what legal processes Colombia now intends to resort to.  The ICJ’s Judgement is final and there is no avenue for appeal against a Court Judgement, which is legally binding on the parties.  Despite post-Judgement rhetoric, Colombia has so far not acted irresponsibly in relation to it and remains within the law.  On current assessment, its disappointment with the Judgement seems unlikely to cause the dispute to rumble on, and certainly not to the extent that force will be deployed (which would raise questions concerning aggression and the application of the law of armed conflict/international humanitarian law).  We can reasonably hope that the dispute has been resolved peacefully and that both parties will respect that.

We can also reasonably rule out the possibility of this case having any relevance to ICC-based international criminal law.  If, however, we adopt a broader definition of what constitutes ‘international crime’ there is at least a suggestion that the Judgement has consequences.  A broader definition arguably includes all serious crimes having a significant international dimension.  Given the international nature of the oceans, crimes committed at sea will almost invariably have potentially significant international dimensions.

One group of crimes with profound international consequences is to do with the manufacture, sale and trafficking of illicit narcotics.  These activities are a seriously worrying feature in the Central American/Caribbean region, with Colombia itself a major source of illicit narcotics, with cartels like the Medellin, Cali and Norte del Valle extensively engaged in the production and export of drugs into North America, using maritime routes through the region.  It was the narcotics problem in the region that prompted McCleskey to post her article and to ask whether the Court’s ruling would be ‘Good news for drug traffickers’.  Her interjection was perhaps a little surprising, but it clearly demands some consideration, at the very least.

Unfortunate Consequences for Law Enforcement?

The thrust of McCleskey’s article was that the substantial reduction in the extent of Colombia’s maritime jurisdiction and consequential increase in Nicaragua’s, combined with the latter’s relatively weak navy, would undermine efforts to combat the narcotics trafficking activities of drugs cartels operating out of Colombian territory and using the waters off Nicaragua to traffic narcotics from Colombia to the United States (see map below).  A key consideration is that a number of criminal groups operating out of Colombia have recently been using sea routes through the San Andres islands.  This activity has been targeted by the Colombian navy but, McCleskey suggests, Colombia’s loss of jurisdiction over waters very close to the islands will undermine these efforts.  To quote from her article:

‘……the withdrawal of the Colombian Navy, from what are now Nicaraguan waters, may benefit drug traffickers operating in the region, among them the Revolutionary Armed Forces of Colombia (FARC) and the Urabenos, due to the comparative weakness of the Nicaraguan Navy. Colombia…..has a large, modernized navy, while Nicaragua’s navy is small and relatively low-tech.’


Source: www.InSightCrime.org

According to The Economist newspaper, in an article published on 8 December 2012, ‘Nicaragua celebrated (the Judgement) by dispatching ships to patrol its new waters. “By now [the navy has] established sovereignty in that whole territory,” said Daniel Ortega, its president’.  This comment was from an article that also included the map below.[5]  That map, as well as the title of The Economist article, makes reference to Colombian (and ‘former Colombian’) ‘territorial waters’.  When coupled with the quote from Daniel Ortega, in which he refers to the Nicaraguan navy having established ‘sovereignty in that whole territory’ judged by the ICJ to be within Nicaragua’s continental shelf and EEZ, an uninformed reader may gain the wholly erroneous impression that the waters in question now have the status of Nicaraguan territory.  The same impression is gained from a reading of McCleskey’s article on the possibility of the Court’s ruling advantaging Colombian drug cartels and those trafficking their wares.  The two articles reinforce each other’s fundamental misunderstanding of the juridical status of the waters subject to the ICJ’s Judgement.

The Economist

Source: The Economist, 8 Dec 12

The impression that may be gained from the two articles and the manner in which they have been presented is that law enforcement activities targeting drugs traffickers in the region will be significantly affected by the Colombian navy’s inability now to operate in those waters affected by the dispute before the ICJ.  This, to put if very simply and starkly, is just plain nonsense.  The authors of these two articles seem to lack an adequate level of understanding of the juridical nature of the waters in question.  The legal or juridical status of the waters is as continental shelf or EEZ.  These are both resource zones whose legal significance is restricted to activities of an economic nature.

There is absolutely nothing in the law of the sea preventing the Colombian navy operating throughout this region up to, but admittedly not within, the outer limit of the Nicaraguan territorial sea (which is a mere 12 nautical miles from the Nicaraguan coast).    Maritime law enforcement operations are not affected by the range of rights and obligations contained in the 1982 UNCLOS, the instrument that is the formal source of both continental shelf and exclusive economic jurisdictions.  The existence of neither continental shelf nor exclusive economic jurisdictions results in rights or obligations that significantly curtail naval operational activities.  Navies do have to operate taking into account the rights of those vessels engaged in legitimate resource exploitation activities, within both jurisdictions, but the chances of navies’ obligations in this respect resulting in any serious undermining of their ability to conduct drug interdiction operations are virtually nil.  The relevant parts of 1982 UNCLOS are also now widely recognised as forming a part of the customary international law of the sea and are, therefore, binding on all States – even those that are not themselves party to the convention.  Colombia has the right to deploy its navy up to the limits of the Nicaraguan 12 nautical mile territorial sea and, in order to give meaning to that right, Nicaragua is under a correlative obligation not to prevent it doing so.  The waters above the continental shelf and forming the EEZ are, for non-economic purposes, to be regarded still as having the status of the high seas.

Closing Remarks

One of the most worrying issues within the law of the sea at present is the potential for coastal States to assume rights and to impose obligations on others that are no part of the consensus arrangements that were codified in 1982 UNCLOS.  That convention was a package deal that balanced the extension and enhancement of coastal state jurisdiction with the freedom to use the high seas for navigation and other legitimate activities.  The suggestion that navies should remove themselves from other States’ areas of continental shelf jurisdiction or EEZs serves profoundly to undermine that balance and the pattern of rights and correlative obligations that define zones of maritime jurisdiction.  Statements, such as that made by President Ortega to the effect that the Nicaraguan navy had secured the new ‘territory’ granted to Nicaragua by the ICJ, are arguably irresponsible political rhetoric; they are arguably also deserving of some measure of challenge from other States.  When respectable internationally renowned publications like The Economist fail to use the correct terminology when describing issues of this nature, there is also a need for their errors to be highlighted; if they are not they may add to the gradual spread of erroneous assumptions about vital rights and obligations at sea.

This ICJ Judgement should in no substantial manner adversely affect the way in which the Colombian navy goes about its lawful business interdicting illicit narcotics traffickers in the waters of the south-western Caribbean.  Indeed, there may even be some hope of enhanced cooperation in the region now that this dispute is legally settled.  Both Colombia and Nicaragua have clear national interest in putting an end to this traffic through their waters – and the United States also has a major interest in supporting them both.  Perhaps now that the territorial and maritime boundary dispute is resolved, a responsible diplomatic approach by the US to bring the two parties together in a spirit of cooperation will see drug interdiction improved in these waters.  In resolving the dispute, the ICJ has probably done much to stabilise and normalise relations between Nicaragua and Colombia.  In the long term, far from benefiting the drugs cartels, this Judgement may well serve to create the conditions for a further curtailing of their activities.

[1]  Professor at University of Greenwich, United Kingdom

[2]   Territorial and Maritime Dispute (Nicaragua v Colombia), Judgement, 19 November 2012.

[4]   See article by Associated Press ‘Colombia’s president: We will no longer recognize World Court in border disputes’ at www.todaycolombia,co/2012/11/29

[5]    ‘An islet for a sea: Colombia smarts from a loss of territorial waters’, The Economist, 8 December 2012.

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].

Ahoy Captain! Universal means UNIVERSAL!

By Ronald Rogo  rogo.ronald@gmail.com


                                                               “The code is the law!”

                                            Captain Teague in Pirates of the Caribbean

The fight against piracy has gained urgency in recent times, especially off the coast of the Somalia waters. Perhaps the most troubled waters in the world, the increased incidents of piracy have not only caused unnecessary deaths but increased the costs of doing business[1].  The international community has therefore been forced to seek for solutions to this vice. The United Nations Security Council, for example, has passed several resolutions on combating piracy off the coast of Somalia[2], most of which give authority to the member states to enter and use force, even within the territorial waters of Somalia, in order to combat piracy. This, in essence, was an echo of the principle of universal jurisdiction which was first enunciated in relation to acts of piracy. The principle of universal jurisdiction, essentially states that any country has the jurisdiction to try certain crimes, irrespective of the fact that there is no clear nexus between the criminal activities and the trial state[3]. The universal jurisdiction of states in relation to acts of piracy is also recognized under the United Nations Convention on the Law of the Sea of 10 December 1982 (UNCLOS). Article 105 gives any signatory state the power 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” whenever a vessel is on the high seas[4]. The rationale is that since the high seas are essentially “no man’s land” criminal activities that occur here should not go unpunished due to the lack of territorial or national jurisdiction by any state.

The issue of the universal jurisdiction of states was expounded in the Kenyan case of Republic V Chief Magistrates Court, Mombasa Ex-Parte Mohamud Mohamed Hashi & 8 Others[5]. In this case the applicants were arrested on the High Seas of the Gulf of Aden in the Indian Ocean by the German Naval Vessel, the FGS Rhineland – PFALZ, with the help a U.S. helicopter assigned to the USS – Monterey. They were then taken to Mombasa Kenya and placed in the custody of the Kenyan police. They were later charged with the offence of piracy jure gentium for attacking  the sailing vessel named MV Courier while armed with three AK 47 Rifles, one pistol Tokalev, one RPG-7 portable Rocket Launcher, one SAR 80 Rifle and one Carabire rifle and putting the lives of the crew in fear. The accused persons filed a judicial review application in the High Court of Kenya challenging their charges on the basis that the alleged offense took place in the high seas of the Gulf of Eden. The Kenyan courts, they argued, did not therefore have the jurisdiction to try them since “the offence alleged was committed outside the territorial jurisdiction of Kenya and outside the Kenyan waters…neither a Kenyan citizen or Kenya property was involved…the arrest was made by the German Navy taking part in operations in the Gulf of Aden”. The High Court accepted this argument holding inter alia, that “The High Seas are not and cannot be a place in Kenya or within the territorial waters of Kenya. In fact by definition they are strictly deemed to be outside the jurisdiction of all states in the world or on earth unless some law in the state brings it into their local jurisdiction whether Municipal Law or an International Convention etc”. The High court further held that the trial court “had no jurisdiction over the matter when the charges were preferred, and when the proceedings took place. The said court acted without jurisdiction when they took the pleas of the Applicants and heard the case up to the close of the prosecution case. The whole process was therefore null and void, ab initio. A nullity from the word go”[6]. However, the High Court of Kenya ignored the provisions of UNCLOS providing for universal jurisdiction[7]. This decision was later overturned by the Court of Appeal. The Court of Appeal held that the High Court failed “to appreciate the applicability of the doctrine of universal jurisdiction in reference to the case at hand”[8].

That said, it is important to note that Article 105 of UNCLOS provides that “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” (emphasis mine). In other words the State that seizes any vessel on the high seas ought to be the one that actually tries the suspected pirates[9]. This rule has largely been ignored in current practice where states in the developed world only arrest the pirates and “dump” them in countries in the developing world[10]. A few examples should suffice to illustrate the point. On February 19, 2012, four suspected Somali pirates, captured by the Danish naval troops, were taken to Kenya after being rejected by the government in Seychelles.  In March 2009, seven suspected pirates were arrested in the Gulf of Aden by the US Navy after a tanker, Polaris, sent a distress call that they were being attacked[11]. Eugene Kotnorovich estimates that “universal jurisdiction was used in prosecuting only 0.53% of clearly universally punishable piracy cases between 1998 and 2007, with the figure increasing to 2.5% between 2008 and June 2009, and reporting that Kenya accounts for all but three cases of invoking universal jurisdiction over piracy in the past 12 years, with responsibility for 79% of cases[12] (emphasis mine).

The reasons for this misnomer are varied. However, the most common issue is the question of what to do with the pirates if they are acquitted or once they have served their sentence. Since the principle of non refoulement applies universally as a peremptory norm of international law, the states where the trials are held will be “stuck” with the pirates either on acquittal or upon serving sentence as they often cannot return them to Somalia and the trial state will be obliged to offer them asylum[13].William Langeweshice, quotes an Indian official, for example of stating: “What would happen if India convicted and imprisoned them, but after their release Indonesia refused to recognize or accept them? . . . They would become stateless people . . . Then the problem for India would be where to send them”[14]. But this problem creates greater burdens to poorer countries like Kenya and Seychelles which have an additional cost to the trial process. An already overwhelmed police and prison system is further stretched without significant financial assistance from the international community[15]. I therefore hold the view that the current practice is not sustainable. The country that arrests the suspected pirates ought to be the one that prosecutes. After all, universal jurisdiction means just that…universal!

[1] For more analysis of effects of piracy off the coastal shelf refer to previous posts on this blog on the subject.

[2] United nations Security Council Resolutions No. 1816, 1838, 1846 and 1851 of 2008, 1897 of 2009, 1918 and 1950 of 2010, 1976, 2015 and 2020 of 2011.

[3] The common nexus in relation to criminal jurisdiction relates to criminal activities that occur within the territory of a given state. However, some states also have jurisdiction over some criminal activities committed by their nationals overseas and criminal activities overseas where their nationals are victims.

[4] In Article 86 of UNCLOS, the high seas is taken to mean “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, or in the archipelagic waters of an archipelagic State”

[6] Ibid

[8] The full decision of the Court of Appeal can be accessed online at http://piracylaw.files.wordpress.com/2012/10/kenya-hashi-appeal-opinion.pdf. The same position was held in the case of Hassan M. Ahmed V Republic [2009] eKLR. It can be accessed online at http://kenyalaw.org/CaseSearch/view_preview1.php?link=66028601162227766885163

[9] Admittedly, the provision is a drafted in permissive rather than in a rigid way. However, it is my view that it represents the rule-of-the-thumb arrangement, only to be departed from in exceptional cases.

[10] For analysis of the number of piracy related trials held by various countries go to http://www.cbrne-terrorism-newsletter.com/resources/2011%20-%20Prosecuting%20Pirates_Challenges%20for%20the%20Prisons.pdf

[12] Eugene Kontorovich & Steven Art, An Empirical Examination of Universal Jurisdiction for Piracy (Northwestern Public Law Research Paper No. 09-26, 2010); 104 AM. J. INT‘L. L. 8-9 (forthcoming 2010), available at http://ssrn.com/abstract=1519518

[13] The principle of non refoulment is also expounded in CAT Article 3(1), ICCPR Article 7, and ECHR Article 3, which all protect individuals from being returned to a country where they are at risk of torture, inhuman or degrading treatment, or punishment.

[14] William Langewiesche, The Outlaw Sea: Chaos And Crime On The World‘S Oceans 75 (2004)

A Sea Free From Piracy – When Mare Will be Really Liberum?

Written by Lina Laurinaviciute


A spot of a small boat approaching a merchant vessel crossing the Red sea or a cruise ship riding to the sunny Seychelles can be a sign of a great danger and a terrible misfortune if not noticed in time. Hugo Grotius, the Dutch philosopher, more than 400 years ago in his book “Mare Liberum” (The Free Sea) declared that it was not possible to own sea.[1] However, soon it was realized that its treasures were not without a master. In the same 17th century Sir Edward Coke, an English jurist and Member of Parliament, expressed concern about the criminals – the pirates, who were characterized as the hostis humani generis (enemy of all mankind). The recent situation, especially in Somalia, reveals, that this problem still has an alarming tendency even in the 21st century.

Indeed, nowadays, the character of a pirate is far from the one romanticized by Capt. Jack Sparrow. Usually, they are local seamen looking for a quick score, highly-trained guerrillas, rouge military units, or former seafarers recruited by crime organizations. Armed with knives, machetes, assault rifles and grenade launchers, they steal out in speedboats and fishing boats in search of supertankers, cargo ships, passenger ferries, cruise ships, and yachts, attacking them at port, on the open seas, in international waters.[2] Also, the “Jolly Roger” – a famous flag of pirates, is not used by pirates themselves, but indicates a great danger in the various maps of maritime risk intelligence.

The first international efforts to define piracy were made by signing the United Nations (hereinafter – UN) Geneva Convention on the High Seas in 1958 and the following UN Convention on the Law of the Sea, signed in 1982, which stated that piracy consists of any of these 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).[3]

The estimated figures of the International Maritime Bureau’s (IMB) Piracy Reporting Centre show, that worldwide in 2012, pirates have committed 278 attacks, hijacked 27 vessels, took more than 400 hostages, from which 147 are still held by Somali pirates.[4] In addition, 58 attempted attacks were reported.[5] Indeed, the drop in Somali piracy has brought global figures for piracy and armed robbery at sea down compared with 2011, when 439 worldwide piracy attacks were reported. Nonetheless, there can be no room for complacency till entire ships are hijacked and cargo crews simply vanish.[6] Mariners are warned to be cautious and to take necessary precautionary measures, especially when transiting through the coasts of Somalia, Nigeria, Benin, South East Asia and Indonesia.[7]

As mentioned before, in Somalia attacks have dropped significantly, mostly due to the increased military action on suspected skiffs, military anti-piracy operations and increase in armed guards onboard ships. However, Somali pirates still remain the greatest global threat, as the majority of the worldwide piracy attacks are attributed to them. Usually, the tactics of the Somali pirates is to attack ships in the northern, eastern and southern coast of Somalia. According to the IMB’s report of 2011, these pirates have also attacked vessels much farther off the Somali coast. They have moved deeper into the Indian Ocean, off Seychelles and the Maldives, and further south along the East African coast, off Kenya, Madagascar, and Mozambique.[8] To proceed with attacks very far out to sea, pirates normally use “mother vessels”, which are able to launch smaller boats to attack and hijack unsuspecting passing vessels.[9]

In the case of Nigeria all waters are considered to be risky. Pirates attack, hijack and rob vessels, kidnap crews along the coast, rivers, anchorages, ports and surrounding waters.[10] Piracy in the Gulf of Guinea has been over shadowed by Somali piracy in recent years and is becoming increasingly dangerous (34 incidents from January to September 2012, up from 30 last year) and has pushed westward from Benin to Togo, Ivory Coast and Ghana.[11] The recent attacks indicate a worrying development of a dangerous business in the region. Attacks in Indonesia remain a concern as well. These attacks, which are normally launched during the night, have largely taken place in the Malacca Strait, through which 30 percent of the world’s trade and half of the world’s oil shipments pass.[12]

As reported by the IMB, pirates’ attacks are often violent, planned and aimed at stealing oil, gas or other products which can be easily sold on the open market. To cover their tracks once the vessel is hijacked, they damage the communication equipment and at times even the navigation equipment. A ransom demanded for the release of the vessel and crew is also a prospective criminal deal of piracy.[13] An estimated global cost of piracy for 2010 was in the range of $7 to $12 billion, while for 2011 $7 billion were estimated only as Somali piracy’s impact on the global economy.[14] Piracy and armed robbery have great economic consequences, as they are disrupting the delivery of humanitarian aid, especially to Somalia, threatening vital sea lines of communication, economic interests and security of countries at risk, as well as international maritime security and commerce.

As a result of these challenges, many ships have begun to hire armed guards. While this tactic can be quite effective, however, there is not yet a process for regulating these guards, creating potential legal complications. The killings of pirates by security companies, as the one of 2010 when the private security contractors shot dead a Somali pirate, raises questions over who has jurisdiction over a growing army of armed guards on merchant ships flying flags from many nations.[15] A piracy expert Roger Middleton, from the British think tank Chatham House, cautions, that : ”there’s currently no regulation of private security on board ships, no guidelines about who is responsible in case of an attack, and no industrywide standards”. Therefore, the shipping industry and national governments should better coordinate their response to the threat of piracy.

The international community has taken a number of steps to tackle piracy when it emerged as a threat to international maritime security several years ago. In 2008, the UN Security Council passed a series of measures targeting Somali piracy, including Resolution 1816, which authorized states to undertake enforcement actions against piracy and armed robbery in Somalia. Following this and other UN resolutions, NATO, European Union, and United States started naval patrols operations in the Gulf of Aden.[16] This has improved security in that narrow body of water and pushed pirate activity into the broader Indian Ocean, making attacks more costly and risky for pirates, but also making it more difficult to counter attacks across such a vast area.[17]

Similarly, in 2011, Indonesia and Malaysia deployed two warships to the strait as part of a joint patrol targeting pirate attacks. The countries have also developed an “Eye in the Sky” operation with Singapore and Thailand, by which they jointly carry out air patrols.[18] However, not all navies, especially in the Gulf of Guinea have the resources to fight piracy far out at sea, so criminal gangs shift to other areas.[19]

Nonetheless, despite these efforts, it is realized that piracy cannot be solved by military means alone. The amount of ocean to patrol is too vast to protect every ship and, as risk analysis shows, pirates have responded to the increased naval presence by moving attacks farther out to sea. Piracy is most often just one symptom of the general collapse of law and order in the failed state. As a result, the attacks on shipping will continue as long as there is no central government capable of taking on the well-armed and well-paid pirate gangs.[20] Thus, tackling the root causes of piracy, supporting local communities and improving prosecution have a key importance for the rescue of the seas from pirates.

The UN Convention on the Law of the Sea makes piracy a universal crime, and subjects pirates to arrest and prosecution by any nation.[21] Taking the example of Somali’s piracy, the root of problem here has been the lack of an effective central government tied with limited economic opportunities throughout the country, where piracy became a mean of survival. In addition, Somalia is composed of a large number of clan groups, and the law is largely implemented at the local level. For many of these groups, piracy provides an economic lifeline, and so they are not willing to prosecute pirates.[22]

Indeed, pirates usually operate as a part of an organized crime network, such as JakartaGlobe in Indonesia. The warlords have intervened sending a good deal: traffickers living in Dubai or Yemen and fisherman are hired by gangs of pirates to execute criminal business. Foreign warships patrolling the area are creating some difficulties but the business is too lucrative to stop the traffickers.[23] Thus, it is clear that, if convictions of pirates in courts will not be successful, with many pirates walking away free, the threat of going to prison will not be a credible deterrent from piracy.

Furthermore, to combat piracy effectively means not only focusing on the pirates operating at sea but also changing the risk-reward equation for the ringleaders, clans providing support to pirates and agents providing intelligence from African ports. Further, it means reducing the freedom of movement pirates currently enjoy despite the private, national and international efforts. Piracy cannot also be defeated without the active cooperation of all the actors involved, including the regional governments.[24]

Pirates are well organised and resourced criminals. They rapidly adjust their tactics and manage to avoid naval patrols by operating farther offshore. Therefore, the holistic approach and the measures including military sea and land based anti-piracy action, preventive techniques used by the merchant vessels, strengthening law enforcement for the affective arrest and prosecution of pirates in the coastal countries, increasing cooperation between all counter-piracy actors and optimizing their efforts should be the priority to tackle evolving pirate trends and tactics. Equally, more significant impact should be made to eradicate the roots of piracy by building-up the capacity of the states and accelerating social and economic development. These measures in long term perspective can mitigate new developments in piracy, reduce its recent effect and contribute to the final defeat, enabling to declare that mare is liberum once more.

[1] United Nations Interregional Crime and Justice Research Institute, Freedom from Fear 3, Pirates of the XXI Century on the Treasure Hunt, April 2009, p. 31.

[2] Ibid., p 48.

[3] United Nations Convention on the Law of the Sea, 10 December 1982, Article 101.

[4] International Chamber of Commerce, Piracy & Armed Robbery News & Figures,3 December 2012,available at: http://www.icc-ccs.org/piracy-reporting-centre/piracynewsafigures, [accessed 19 December 2012].

[5] International Chamber of Commerce, IMB Reports Drop in Somali Piracy, but Warns Against Complacency, available at: http://www.icc-ccs.org/news/811-imb-reports-drop-in-somali-piracy-but-warns-against-complacency,[accessed 19 December 2012].

[6] Ibid.

[7] International Chamber of Commerce, Piracy & Armed Robbery Prone Areas and Warnings, available at: http://www.icc-ccs.org/piracy-reporting-centre/prone-areas-and-warnings, [accessed 18 December 2012].

[8] International Maritime Bureau, Global Piracy Report 2011, available at: http://www.ibm.com/investor/pdf/2011_ibm_annual.pdf, [accessed 19 December 2012].

[9] Supra note 8.

[10] Ibid.

[11] Supra note 5.

[12] Council on Foreign Relations, Combating Maritime Piracy, available at: http://www.cfr.org/france/combating-maritime-piracy/p18376,[accessed 18 December 2012].

[13] Supra note 5.

[14] One Earth Future, The Economic Cost of Maritime Piracy, Working Paper, December 2010, available at: http://www.cfr.org/france/combating-maritime-piracy/p18376, [accessed 18 December 2012].

[15] World, Private Guards Kill Somali Pirate For First Time, 24 March 2010, available at: http://www.huffingtonpost.com/2010/03/24/private-guards-kill-somal_n_511143.html, [accessed 19 December 2012].

[16] Supra note 14.

[17] Council on Foreign Relations, Smarter Measures in Fight Against Piracy, 10 December 2010, available at: http://www.cfr.org/somalia/smarter-measures-fight-against-piracy/p23611, [accessed 19 December 2012].

[18] Supra note 14.

[19] Supra note 5.

[20] Supra note 15.

[21] Supra note 14.

[22] Ibid.

[23] Supra note 1, p. 13.

[24] Supra note 17.

* Photo of Mohamed Dahir / AFP – Getty Images

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