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

Danger on the High Seas: Piracy in the Modern Setting and its impact on the Phillipines

Written by: Ruben Ayson[1]

Maritime piracy is a growing global issue today. Eugene Kontorovich of the Northwestern University Law School has characterized modern piracy as an “epidemic.”[2] Until two decades ago, piracy was not seen any more as a menace to international shipping. It has unfortunately come back to haunt us, this time not as the pirates of days past but equally in a very violent way, using modern means and methods to the extent that it has become today a major source of concern for crews, ship-owners, insurers, coastal communities and concerned international organizations. The new face of this historic crime exacts worldwide human and financial costs, and poses an existential challenge to the piracy laws developed throughout the centuries. As with ancient civilizations fighting for survival against the pirate scourge,[3] the proliferation of piracy today poses drastic economic and security threats to many nations.

Piracy today includes new tactics employed to carry out a crime predating recorded history. Speedboats and automatic rifles, rather than frigates and swords, recently became the pirate’s weapons of choice.[4] While looting cargo or stealing ships outright remain standard practice, Somali pirates today also kidnap sailors for ransom.[5]

The modern pirate is different from his historical counterpart in many ways. Modern pirates have adapted to the globalized world in terms technical, political, economic, and social developments. In truth, “today’s pirates are considerably more sophisticated than their counterparts of yesteryear.”[6] Today’s pirates make use of the modern technologies that are available to them. They strategically plan each attack with the help of publicly available information about their target. They “often carry satellite phones, global positioning systems, automatic weapons, [and] antitank missiles.”[7] Some pirates now hijack “mother ships,”[8] which they use as bases from which to launch attacks against other vessels up to more than 1,000 miles from shore using “rocket-propelled grenade[s], ladders and extra barrels of fuel.”[9] The use of modern methods and technology has shifted the character of piracy making them precise and effective operations rather than acts which happen by chance. Therefore, the new face of piracy requires more modern means for combating it.

The shipping industry has long been considered one of the most dangerous in the world. Recently, however, piracy has risen up in the list of menaces faced by seamen.[10] According to the January 31, 2012 figures of the worldwide piracy center of the International Maritime Bureau (IMB), Somali pirates are currently holding captive 10 vessels and 159 hostages.[11] One hundred and two incidents of piracy and armed robbery have been reported to the IMB Piracy Reporting Centre (PRC) in the first quarter of 2012.[12] Eleven vessels were hijacked with 212 crew members taken hostage and four crew killed. A further 45 vessels were boarded, with 32 attempted attacks and 14 vessels fired upon – the latter all attributed to either Somali or Nigerian pirates.[13]

These pirates have a great effect on the world economy and trade. Hundreds of seafarers have been held hostage and forced to suffer physical and mental ill-treatment.[14] The Philippine Coast Guard has said that for the last few years, there were already 5,000 ships worldwide attacked by pirates and more than 1,000 seafarers, including Filipinos, have been taken as hostages, or used as human shields against rescuing government and military forces.[15]

This is a very serious problem, and more so for a country like the Philippines. The Philippines, an archipelago, relies heavily on the shipping industry. The Maritime Industry Authority (MARINA) of the Philippines said the country has 140 ships on the international register, and about 90 percent of these ships pass through the pirate hotspots of the Indian Ocean, Gulf of Somalia and Aden.[16]

Another facet of the issue pertains to the deployment a large number of Filipino seamen in the worldwide maritime industry. Figures from the Philippine Overseas Employment Administration show that in 2010, the Philippines deployed 347,000 shipboard personnel, around 5.06 percent higher than in 2009.[17] Despite the increasing risks of piracy, there does not seem to be any shortage of Filipinos wanting to apply for a job in the maritime industry.[18] Based on the projections of the Philippine manning industry, a record number of 400,000 Filipino seafarers will have been deployed worldwide by the end of 2011 despite the crisis in Europe.[19]

This large amount of Filipino seamen deployed can be explained from an economic standpoint. Filipino seafarers, who are better paid than other overseas Filipino workers, send higher than average remittances. In 2007, seafarers sent home $2.2 billion, about 15 percent of the $14.5-billion total remittances from Filipino workers overseas. That is comparatively huge since they make up only three percent of the 8.7 million Filipinos working and living abroad.[20] MARINA said with the Filipino seafarers raking in more than US$3.8 billion in revenue for the country in 2010 and more this year, the threats of piracy need urgent interventions from stakeholders.[21]

Filipino seafarers, comprising one-third of the world’s seafarers or numbering some 300,000, are among the most exposed to risks in the shipping world.[22] With the Philippines providing a large number of seafarers in the world, their vulnerability to piracy is high.[23]A third of all the world’s seafarers are from the Philippines, so it is not surprising that there is another less welcome statistic – in the past year, more Filipinos have been taken hostage than any other nationality.[24] The statistics prove to be staggering and grim. One Filipino shipping crewmember has been taken hostage every six hours somewhere in the world, according to an official running count by the Department of Foreign Affairs (DFA) of the Philippines.[25] Every time there’s a report of a ship hijacked off the coast of Somalia, almost always there’s a Filipino involved.[26] Since 2006 470 Filipinos have died at the hands of pirates.[27]Out of some 400,000 Filipino seafarers, who make up a quarter of the world’s seagoing workforce, 769 were captured between 2006 and 2011.[28] Filipinos are not being particularly singled out by the pirates, it is just that so many people from the Philippines work in the maritime industry.[29] It is because of this that the Philippines has a great interest in ensuring the safety of its seamen and in the measures, both legal and remedial, for preventing and prosecuting piracy.

Piracy significantly affects modern day society as it causes great damage and loss to world trade and economy. Pirates have acted boldly and without fear as they take advantage of the state’s and international community’s inaction. With many of the world’s goods, especially necessities like oil and fuel, passing through sea lanes, the threat of piracy simply cannot be ignored. It persists as a modern day menace due to a number of factors, primary of which is the difficulty to catch pirates as they can easily escape detection and capture in the vast oceans of the world. Many countries, even the big naval powers, do not have the resources to constantly monitor every square mile of water. Ultimately from the practical point of view piracy will be lessened if there is greater political will to stop it and if there is better coordination and cooperation between states that are affected by it.

But that is only one aspect of the problem. Effective laws and procedures, and their strict enforcement, will go a long way in eradicating piracy. But as it is, the existing legal framework proves to be an insufficient mechanism to alleviate the problem. International laws and treaties have not been fully implemented and are too fragmented. Also, while piracy is covered by universal jurisdiction, there is a seeming lack of cases prosecuted, as states have found it to be too burdensome to proceed with cases which entail additional cost and effort on the part of those who have apprehended or are in custody of pirates.

There must be a concerted attempt on the part of states to improve the existing legal framework on piracy as well as ensure that these improved laws are enforced. The establishment of an international tribunal on piracy will be a very important stride as this will provide a proper venue where affected parties will be able to seek redress. No longer must pirates be able to roam the seas with impunity and evade the long arms of the law. They must be brought before the courts of law, and justice must be meted out against them so that they will realize that they are not above the law. And having such a tribunal will show to modern pirates that the international community is united and is serious is combating piracy.

[1] Ruben S. Ayson Jr., a lawyer from the Philippines and currently works for the government of the Republic of the Philippines as an Associate Solicitor in the Office of the Solicitor General. He can be contacted for further information at: sir.ayson@gmail.com

[2] Eugene Kontorovich, “A Guantanamo on the Sea”: The Difficulty of Prosecuting Pirates and Terrorists, 98 Cal. L. Rev. 243, 243 (2010)

[3] Pirates plagued the coasts of ancient Greece. Sandholtz & Stiles, supra note 3, at 32; Jesus, supra note 3, at 364.

[4] Joshua Michael Goodwin, Note, Universal Jurisdiction and the Pirate: Time for an Old Couple to Part, 39 Vand. J. Transnaional. L. 973, 982 (2006).

[5] Jeffrey Gettleman, Pirates Tell Their Side: They Want Only Money, N.Y. TIMES, Oct. 1, 2008, at A1, available at 2008 WLNR 18637664.

[6] Michael H. Passman, Protections Afforded to Captured Pirates Under the Law of War and International Law, 33 Tul. Mar. L. J. 1, 6 (2008).

[7] Jack A. Gottschalk et al., Jolly Roger with an uzi: The rise and threat of modern piracy 22 (U.S. Naval Institute Press, 2000).

[8] See the International Chamber of Commerce’s Commercial Crime Service website, which maintains a section on Piracy Prone Areas and Warnings, and which is available at http://www.iccccs. org/home/piracy-reporting-centre/prone-areas-and-warnings. As of April 2010, the website warned that Somalis hijack ocean going fishing vessels for piracy operations, using these as mother ships from which to launch smaller boats to attack other vessels.

[9] Joshua Michael Goodwin, Note, Universal Jurisdiction and the Pirate: Time for an Old Couple to Part, 39 Vand. J. Transnaional. L. 973, 982 (2006).

[10] Every 6 hours, pirates seize a Filipino seaman http://pcij.org/stories/every-6-hours-pirates-seize-a-filipino-seaman/, (last visited June 28, 2012)

[11] Anti-piracy group: In last 5 years, 65 seafarers died of torture, disease http://www.filipinosabroad.com/ofw-news/anti-piracy-group-5-years-65-seafarers-died-torture-disease.html, (last visited June 28, 2012)

[12]ICC- IMB Piracy and Armed Robbery Against Ships Report – First Quarter 2012

[13] Ibid.

[14] Supra, note 10.

[15]Threats of piracy beset maritime industry, Filipino seafarers http://www.filipinosabroad.com/ofw-news/threats-piracy-beset-maritime-industry-filipino-seafarers.html, (last visited June 28, 2012)

[16] supra, note 13.

[17] Record number of Pinoy seafarers deployed in 2011, http://www.filipinosabroad.com/ofw-news/record-number-pinoy-seafarers-deployed-2011.html, (last visited June 28, 2012)

[18] Somali piracy takes heavy toll on Philippine sailors, http://www.bbc.co.uk/news/world-asia-pacific-15259042, (last visited June 28, 2012)

[19] Supra, note 16.

[20] Every 6 hours, pirates seize a Filipino seaman http://pcij.org/stories/every-6-hours-pirates-seize-a-filipino-seaman/, (last visited June 28, 2012).

[21] Threats of piracy beset maritime industry, Filipino seafarers http://www.filipinosabroad.com/ofw-news/threats-piracy-beset-maritime-industry-filipino-seafarers.html, (last visited June 28, 2012).

[22] PHL can be model for maritime best management practices to deter piracy, http://www.mb.com.ph/node/300768/phl-can-be-model-maritime-be

[23] Ibid.

[24] supra, note 18.

[25] supra, note 19.

[26] supra, note 18.

[27] Anti-piracy group: In last 5 years, 65 seafarers died of torture, disease http://www.filipinosabroad.com/ofw-news/anti-piracy-group-5-years-65-seafarers-died-torture-disease.html, (last visited June 28, 2012).

[28] Ibid.

[29] Somali piracy takes heavy toll on Philippine sailors, http://www.bbc.co.uk/news/world-asia-pacific-15259042, (last visited June 28, 2012).