Universal Law and Piracy
( Note on how to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628-6998, https://worldmediation.org/conflict-insight )
This paper reviews how universal jurisdiction has been applied to the international criminal offence of piracy outside the territorial waters of States. It deals with the criminal offence of piracy under customary law as well as the United Nations Convention on the Law of the Sea of 1982 (hereafter referred to as UNCLOS). For these sources, it examines the criminal offence of piracy and comments on its legitimacy as universal criminal law in comparison with other international criminal laws. The Courts handling of international piracy offences will be mentioned as well as enforcement powers provided. Following my review, it is concluded that piracy has attracted universal jurisdiction for both customary law and for UNCLOS. Information reviewed illustrates the criminal law of piracy´s main objectives are to protect commercial activities and people engaged in those activities. The material indicates piracy can be a violent offence which causes human suffering, however, the crime has fallen into the area of universal jurisdiction because of past customary law making it a universal crime due to the disruption of commerce caused by piratical acts and the need for States to have jurisdiction to capture and prosecute pirates and Courts to have jurisdiction over the offence and offender. Universal jurisdiction has allowed States to capture, prosecute and punish pirates without the need to be tied to jurisdictional requirements such as territory or nationality. For almost 500 years, the international community of States has expressed a common interest in capturing, prosecuting and punishing pirates. Events in the twentieth and twenty-first century show piracy to be a serious crime interfering with the free flow of commerce on the high sea and that there is a need to protect people subjected to the violence associated with the piracy offence. As in previous centuries, universal jurisdiction in international law has been extended to the criminal offence of piracy.
Defining the Scope of this Paper – Piracy outside territorial waters
This paper will not address piracy activities in the territorial waters of States but piracy activities outside a State´s territorial waters, commonly referred to as the high seas. The international criminal offence of piracy on the high seas was one of the first international criminal offences under international customary law. Research shows customary law using universal jurisdiction has been in place for almost 500 years. In the twentieth century, UNCLOS codified these customary rules. It is important to recognize that the definition and offence of piracy in Article 101 of UNCLOS requires the acts of piracy take place on the high seas and relate to matters where the pirate is seeking private gain.
The area covered by UNCLOS excludes the territorial sea and airspace over the territorial sea as well as its bed and subsoil as set out in Article 2 in Part II of the convention. The breadth of the territorial sea is set out in Article 3 of UNCLOS. The distinction between the territorial sea of States and the high seas is shown by the following example: resolution 1816 made in 2008 by the UN Security Council allowed access to the territorial waters of Somalia by foreign nations following piracy activities on the high seas involving residents of Somalia.
Sources of International Law for the International Criminal Offense of Piracy
There is no hierarchy of sources, at least as between the two-primary law creating processes, customary and treaty law. Both processes and sets of rules created through them possess equal rank and status.
Customary Law: Antonio Cassese writes that to become a customary rule, two elements must be satisfied. The first element is a subjective element [t]hat a new standard of behavior is necessary or has already occurred. The second element is an objective element requiring the rule to be well settled State practice. Cassese also indicates customary rules develop slowly. Article 38(1) (b) of the Statute of the International Court of Justice defines international custom as evidence of a general principle accepted as law.
To explain more about the two elements, the first requires a general or settled practice has become accepted by States as law. Not only must the acts amount to settled practice, they must be accompanied by the second element, that of opinio jurs sive neccessitatis which refers to States taking such action in accordance with the law or other States in a position to react to the law behaving in such a manner that their conduct is evidence of a belief that the practice is rendered obligatory by the existence of a rule of law. The North Sea Continental Shelf Cases confirmed that both State practice and opinion juris are essential elements for the formation of a customary law.
Academic, Yana Shy Kraytman, writes that historical review of the international criminal offence of piracy shows universal jurisdiction had been applied to piracy for nearly 500 years. Academic, Eugene Kontorovich, comes to the same conclusion, both indicating universal jurisdiction had been applied by customary law to the international criminal offence of piracy. Kraytman provides a succinct summary indicating the nature of universal jurisdiction and why it was applied to the international criminal offence of piracy. Her work shows States were eager to prosecute pirates who were considered hostis humani generis (enemies of humanity), and the concept of universal jurisdiction allowed any state who apprehended a pirate to prosecute the pirate in its courts.: Another article providing an explanation of how universal law has come to apply to piracy is that of Sergie Oudman, in the article “Piracy Jure Gentium and International Law”, where he writes:
Piracy is one of those problems that require a universal approach. As pirates make no discrimination among vessels, it is therefore a common problem, or a problem of all nations. Since the times of Grotius and others, pirates were considered hostis humanis generis. The best basis to address problems of a universal nature is through cooperation or the universality principle. Piracy has, as already stated above, been a problem of all ages, and slowly also of all nations with the expansion of shipping routes.
Kontorovich, Kraytman and Oudman provide extensive historical information about the customary law which governed the international law of piracy until the enactment of UNCLOS in the twentieth century. Kontorovick and Kraytman are critical of the application of universal jurisdiction of piracy being used as a springboard for universal jurisdiction for other international crimes, arguing that the criminal offence of piracy does not have solid foundation on matters of jurisdiction and does not have the same objectives as human rights crimes to which universal jurisdiction is sought to be applied. Kraytman writes,
Since the municipal law of most nations condemned piracy this gave rise to the acceptance of universality and the notion that it is a crime against the law of nations. This is strikingly discordant with the rest of the body of traditional international law because ‘it would make the pirate a direct subject of international law. Whereas, nowadays human rights lawyers now accept the idea of direct individual responsibility for international crimes, in the heyday of piracy, ‘the law of nations’ applied only to nations themselves. In depth analysis of piracy law and criminal jurisdiction came to a similar conclusion, and despite the large body of judicial writings employing the misstatement, it must be concluded that according to strict legal interpretation, piracy was never an international crime but strictly grounds for extraordinary jurisdiction.
Thus, the criminal offence of piracy under customary law is a case where extraordinary jurisdiction has been applied to allow States to capture pirates and prosecute piracy offences with the objectives of repressing acts that impact commerce and can cause injury to people due to the violence associated with piratical acts. This conclusion is also reached by Kontorovick, who indicates that [t]he doctrine of universal jurisdiction holds that a nation can prosecute offenses to which it has no connection at all-the jurisdiction based solely on the extraordinary heinousness of the alleged conduct.” Another legal writer, Mitsue Inazumi, indicates two rationales as to why universal jurisdiction was recognized for piracy under customary law. He indicates the first reason to be the gravity the crime, referring to the concept of hostus humani generis, which recognized not only the interest of the State impacted by the event but the interest of the international community. The second rationale he refers to is the lack of effective jurisdiction given that acts of piracy take place on the high seas which belong to no State. Kontorovich, however, adopts a different approach concluding that the application of universal jurisdiction to piracy to be a jurisdictional exception. Kontorovich writes that “the locus of piracy did not render standard jurisdictional rules inapplicable”. He concludes; however, a jurisdictional exception was created to meet the objectives of the international community who sought to repress piracy by capturing, prosecuting and punishing pirates. He goes on to say piracy can be associated with robbery on the high seas and that the plunder must be undertaken without the permission of a sovereign State. If any of those elements were missing, the piracy prosecution would fail.
Kontorovich´s writes that universal jurisdiction over pirates was a matter of theory, citing the work of Rubin writer of the Law of Piracy which showed only a few prosecutions for piracy depended on universal jurisdiction and noted the importance of the laws of individual States that had the obligation to deal with prosecution and punishment. It is of interest to see how customary law as outlined by Kontorovick is reflected in the provisions of the UNCLOS Articles dealing with piracy.
It is this customary law on which UNCLOS is modelled and for which it sets out the international framework for the universal crime of piracy. Other academic material reviews the gravity of criminal piracy activities showing that while piracy is a serious offence, it is not one of the most heinous crimes. As indicated by Kontorovick, the application of universal jurisdiction to international criminal offences by using the law of piracy by analogy should be critically reexamined. As well, it is submitted that application of universal jurisdiction to the offence of piracy, requires need for adherence to the rule of law and ensuring high standards of proof and procedural rules of criminal offences be applied by Courts dealing with prosecution and punishment of the offence. Given that, Article 105 of UNCLOS, has left this matter in the hands of the courts of the capturing State, it becomes more difficult to monitor State practices although studies regarding how piracy convictions are being dealt with by the Courts provide useful evidence as to what is taking place.
Kontorovich shows that the rational for piracy becoming a universal offence did not relate to the severity or the heinous nature of the crime but was treated as universally recognizable unless authorized as privateering for which the sovereign had provided permission. He provides a thorough analysis of the history of piracy as a universal crime at customary law and suggests attention should be paid to using the crime of piracy as an example of a heinous crime, indicating it is, in essence, unauthorized sea robbery. This is supported by the work of Terje Einarsen, in the book The Concept of Universal Crimes in International Law where it is indicated piracy, considered to be a form of terrorism may not fit the core international crimes, but its severity and the problems caused to the international community justify its inclusion as a universal crime. The objectives of the law of piracy with the intention of suppressing piratical acts on the high seas and to protect seafarers and avoid disruption of commerce are set out by the UN in its Statement, “Piracy and the UN.”
Based on Einarsen theoretical and historical review of the crime of piracy and classification of international crimes, it is concluded that piracy is a grave crime but not the type of crime Einarsen defines as the core crimes, such as war crimes, genocide and slavery.
The UN Convention (UNCLOS)
A United Nations writing which sets out the vision of UNCLOS, states:
Attempts have been made through the years to regulate the use of the oceans in a single convention that is acceptable to all nations. This effort finally culminated with the adoption of the 1982 United Nations Convention on the Law of the Sea, which has gained nearly universal acceptance since its entry into force on 16 November 1994.
The 1982 United Nations Convention on the Law of the Sea provides, for the first time, a universal legal framework for the rational management of marine resources and their conservation for future generations. Rarely has such radical change been achieved peacefully, by consensus of the world community. It has thus been hailed as the most important international achievement since the approval of the United Nations Charter in 1945.
It is important to look at the articles of UNCLOS to determine how it is dealing with the law of piracy. The United Nations Division for Ocean Affairs and the law of the sea sets out what is intended to be effects by the UNCLOS framework in dealing with piracy under international law:
Acts of piracy threaten maritime security by endangering, in particular, the welfare of seafarers and the security of navigation and commerce. These criminal acts may result in the loss of life, physical harm or hostage-taking of seafarers, significant disruptions to commerce and navigation, financial losses to shipowners, increased insurance premiums and security costs, increased costs to consumers and producers, and damage to the marine environment. Pirate attacks can have widespread ramifications, including preventing humanitarian assistance and increasing the costs of future shipments to the affected areas.
UNCLOS provides a framework convention to deal with international piracy. It has been written that the articles are flexible so that UN member States can adapt to developments in the international law. The author, Simon Williams writes that UCLOS provides a legal platform for dealing with piracy but is flexible, so it can adapt to changes in the A summary of the UNCLOS Articles show the objectives of the framework set up to address piracy.
As indicted, Article 100 set out the objective of State cooperation in dealing with piracy. It indicates that, all States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.
Article 101, defines piracy and the criminal offence of piracy. The terms of the Article are specific, indicating the acts required to establish piracy are illegal acts committed for private ends and can consist of any of the acts specified in provisions (a), (b), and (c) of the Article:
(a) any illegal acts of violence or detention, or any act of degradation, 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).
The provision of UNCLOS best illustrating that universal law applies to the international criminal offence of piracy is set out by the actions that can be taken regarding seizure of a pirate ship. Article 105 of UNCLOS provides for the seizure of any pirate ship or aircraft by any States in the following manner:
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.
These Articles show that although the UN has adopted universal jurisdiction to capturing and those defined as pirates by the Article, it has not adopted a uniform or universal approach to establishing a forum or forums to prosecute and punish the offenders. The writer submits this to be a major omission in the framework to equally and effectively with the problem of piracy on the high sea. The need for a Court forum or forums that will adopt uniform criminal procedures and practices in accordance with the universal rule of law for the offence of piracy. This is part of how universal jurisdiction has been applied to piracy under UNCLOS.
The matter of jurisdiction – customary law and UNCLOS
Kontorovich’s work reviews the international law of jurisdiction as it applies to international crimes and universal crimes. He indicates this incorporates he power to lay down laws, the power to adjudicate and the power to punish. It is written that criminal jurisdiction is “co-extensive with the law of sovereignty and most commonly associated with territory. This concept was interpreted in the international law case of S.S. Lotus which adopted a broad approach to the principle of territory and dealt with the territorial principle of “flag jurisdiction”. Another summary of international jurisdiction for criminal offences and extra-territorial jurisdiction is provided by author Ruwanthika Gunarate for the journal, Public International Law She provides material explaining how universal jurisdiction is acknowledged for atrocious crimes such as those in the cases of Eichmann who had organized the death of Jewish people in Germany and Pinochet who had employed torture in Chile. Her definition of universal law is of value in understanding the application of this model to specific types of international criminal offences. While the crime of piracy does not fit the definition of universal crime based on its gravity in comparison with the situations outlined in Eichmann and Pinochet, it is recognized to have been an impediment to safety of persons and the free flow of commerce on the high seas and, as such, is recognized as a universal crime under customary law and in UNCLOS.
In Kontorovich’s explanation of jurisdiction as it relates to piracy, he writes that international law treats criminal jurisdiction as the right of sovereign States and thus is determined by the boundaries of the State national sovereignty. Thus, States will have jurisdiction over offences committed within the State´s territory. He points out that this will give the State jurisdiction over vessels it has registered even when the vessel is outside the State´s borders. This has been seen in the cast of S.S. Lotus where the territorial jurisdiction of flag jurisdiction was acknowledged.
He goes on to describe situations where more than one State can have jurisdiction over offences committed, extraterritorial jurisdiction and how this can lead to concerns about usurping the national sovereignty of States and methods that have been employed to divide jurisdiction in such a way as to prevent jurisdictional problems. One such method is where a State has a clear nexus with the offence that gives that State priority over the offence, i.e., where the crime is committed against a country´s nationals, known under traditional rules of international law as nationality jurisdiction and where the state is trying to protect its nationals when they are abroad by applying its law to person´s who injure them, known as the passive personality principle. This situation can be said to have been applied in the case of Alvarez Machain who was taken from Mexico to attend trial in the United States where it was alleged he had been complicit in the torture and murder of a Drug Enforcement Agent.
Kontorovich explains a controversial category of extra-territorial jurisdiction; the protective principle. This principle provides a State jurisdiction over activities committed abroad that have caused harmful consequences in the State prosecuting the offence. He indicates; however, this principle is rarely used because the passive personality principle can often be invoked.
He writes that “…unlike all other forms of international jurisdiction, the universal kind is not premised on notions of sovereignty or state consent”. He indicates universal jurisdiction does not require the consent of the State to which an offender may have a nexus based on nationality or territory. Kontorovich indicates that “…unlike all other forms of international jurisdiction, the universal kind is not premised on notions of sovereignty or state consent. Rather, it is intended to override them.” Based on Kontorovich´s analysis, there is no need for consent from the government responsible for the offender because the alleged criminal is a citizen of that country. Thus, in the situation of pirates who may be nationals of Somalia, there would be no need for consent from that country which, based on information obtained in research for this paper, had no effective government at the time of the piracy events for which UNCLOS prosecutions have been initiated.
Kontorovich opines that piracy is a jurisdictional exception. In his analysis he points out that even though the high seas lay outside the territorial jurisdiction of any nation, it is not correct to say that universal jurisdiction over piracy existed merely because traditional jurisdictional categories did not cover the crime of piracy. He would, thus, take issue with the conclusion of Mitsue Inazumi whose work was previously referred to indicating that one of the reasons universal jurisdiction was applied to piracy is because of lack of territorial jurisdiction as the high seas do not belong to any State. Kontorovich, on the other hand, indicates that the locus of piracy did not render standard jurisdictional rules inapplicable and the reason that universal jurisdiction was applied to piracy was as an exception to rules of jurisdiction. He points out that the universal jurisdiction over piracy has existed for as long as sovereignty-based principles have existed. Thus, it has a firm basis in Customary law and provides jurisdiction supplemental to that which has been discussed.
One can review how universal jurisdiction is being applied to the criminal offence of piracy given the objectives of the UNCLOS set out by the United Nations Oceans & Development of the Sea, Division of Ocean Affairs and the Law of the Sea statement on Piracy Under International Law. Its statement summarizes impacts of piracy that are sought to be repressed by UNCLOS:
acts of piracy threaten maritime security by endangering, in particular, the welfare of seafarers and the security of navigation and commerce. These criminal acts may result in the loss of life, physical harm or hostage-taking of seafarers, significant disruption to commerce and navigation, financial losses to shipowners, increased insurance premiums and security costs increased costs to consumers and producers, and damage to the marine environment. Pirate attacks can have widespread ramifications, including preventing humanitarian assistance and increasing the costs of future shipments to the affected areas.
The statement goes on to indicate that he framework for the repression of piracy under international law is addressed in in UNCLOS Articles, 100 to 107 and 110.
These objectives are highlighted in an article written by an insurance solicitor reviewing risks associated with piracy. His article reviews the UNCLOS Articles as they relate to merchant or passenger ships. His conclusion, given the uncertainty as to the motives of those who engage in piratical acts, is that it may be necessary to revisit the definition of piracy which, if acts relate to political objectives, may be more in nature of acts of war. He writes of the possible need to re-categorize the risk of “piracy” as “war” rather than as a “marine risk”. This impacts on the question of how universal jurisdiction has been applied to the international crime of piracy it is submitted that application of universal jurisdiction to the crime of piracy opens the door to insurance and business interests dealing with matters such as claims for losses from piratical acts. This is also relevant to legislators and organizations seeking to redefine the crime of piracy for their benefit. It highlights the dangers raised by Kraytman and Kontorovich in their analyses of the application of universal jurisdiction to the crime of piracy. In applying universal jurisdiction to an offence that does not fit the profile of atrocity and gravity required for universal jurisdiction, one opens the door to potential abuse. This becomes more troublesome when the State capturing the pirate ship and pirates have complete control over prosecution and punishment of the alleged offenders in their Courts.
Additional Instruments or Sources of International Law Relating to Piracy
The law of sea regime is supplemented by other treaties and instruments. For example, gaps in the UNCLOS convention have been are filled by the UN Convention on the Suppression of unlawful acts against the safety of maritime navigation, 10 March, 1988. A more recent instrument to deal with the piracy problem is the 2005 SUA Protocol. UN documentation relating to the law of the sea shows the Security Council has issued separate resolutions relating to piracy in different regions. Review of the law shows the Security Council has renewed its resolution calling for investigation, capture and prosecution of pirates of the coast of Somalia. These instruments promote the application of universal law over the international offence of piracy. Deficiencies in the current law have attracted academic attention such as the gap in UNCLOS to ensure the rule of law and international criminal procedures will be applied to alleged piracy offenders.
Piracy Courts, the Rule of Law and Criminal practice and procedures
As set out in Article 105 of UCLOS, States that have captured pirates have the jurisdiction to prosecute and punish pirate offenders. Research shows that several different forums have dealt with prosecution and punishment of piracy offenders under UNCLOS. Despite calls that the International Court of Justice deal with these offences or that regional courts be established, the present situation has left decisions as to the forum for prosecution and punishment of those captured to the capturing State. An analysis by Kontorovich, “The Penalties for Piracy: The Empirical Study of National Prosecuting of International Crime”, shows that national courts are prosecuting and punishing piracy offenders. Kantorovich’s concern about the application of universal jurisdiction to international criminal offences is shown by his study to be valid in relation to what has occurred relating to piracy offences of international Somali alleged offender prosecutions. His study covers 30 separate piratical incidents, 209 defendants and 39 separate sentences. The time covered in his work in from 2006 to 2012. The relevance of his study regarding how universal jurisdiction has been applied to the international criminal offence of piracy outside the territorial waters of States shows that Article 105 of UNCLOS does replicate the common law. This allows the State that captured the alleged pirate to prosecute and punish the matter. It shows that no international forum has been provided to address these offences or that the rule of law or procedural and practical guidelines have been put in place by the international community.
Kantorovich’s research shows offenders have been sentenced by ten nations on four continents His research shows:
… massive variance in sentences imposed in Somali pirate cases around the world, ranging from four years to life for substantively similar conduct. There are roughly two kinds of sentencing jurisdictions – lenient and strict. The former includes European countries, the latter primarily the United States and Asian states. The gulf in sentencing between these two rough groups is quite significant. Finally, regression analysis of sentencing factors shows that the characteristics do not contribute significantly to the variance in sentences. Most variation that can be accounted for can be attributed the characteristics of the prosecuting state.
As indicated, there is no structure to ensure uniform criminal procedures or sentencing policies will be followed in prosecutions or punishment.
There have been calls for the International Court of Justice to handle piracy offence. Yvonne Dutton has suggested that the international criminal offence of piracy, a universal offence, is suited to be included in offences dealt with by the International Criminal Court of Justice. She assesses the positive and negative aspects of using national as opposed to international forums. One of her suggestions is that an international court is more likely to “…apply international laws and rules, and thereby ensure not only that fair procedures are followed, but also that there is uniformity in the application of laws and the sentencing of offenders.” Also recognizing this to be a universal crime, others have called for the establishment of regional courts. Fortunately, UNCLOS is a living convention and may need to respond to calls from the international community to develop a model to ensure that international subjects are entitled to be dealt with in accordance with the international rule of law and international criminal procedures and punishment.
Kantorovich’s research sets out that “… [s]ome sentencing considerations relate directly to the exercise of universal jurisdiction.” He writes:
[o]ne might expect this would be an aggravating factor – universal jurisdiction is thought to be a hallmark of the seriousness of an international crime. Interestingly, the courts have treated this as a mitigating factor, because it involves incarceration in a country far from one’s home with which one has no previous ties. Even in universal jurisdiction cases, some fora will have a greater nexus with the crime than others, and this can impact sentencing. Thus, Seychellean courts specifically take into account, as an aggravating factor, the impact of Somali piracy on their nation’s economy, which has seen tourism and fishing revenues drop sharply. Perhaps surprisingly for an international criminal charge, Seychellean courts have emphasized that Somali piracy “adversely affects our country,” and the judiciary must “play its role” in punishing it with the appropriate severity. Again, this underscores that the choice of nation to transfer pirates to has substantive consequences for the defendants.
In accordance with Article 105, different States have handled prosecution and punishment of alleged offenders. Agreements have been made with national States to prosecute and punish offenders.”
Research shows that UNCLOS does not stand alone in seeking to stop piratical activities. Other maritime organizations are taking a role in dealing with piracy outside the territorial waters of States such as the International Maritime Organization with the Djibouti Code of Conduct, and the International Ship and Port Security Code (the ISPS Code).
In an interview of Douglas Guilfoyle, international legal and overseas piracy expert from the Faculty of Law, University College, London, Guilfoyle outlined the concerns of the international community about piracy. He made it clear in the interview that given current international law, the matter of jurisdiction is not the issue as there is clear international law governing piracy where every State in the world has jurisdiction to prosecute a pirate, no matter who they attacked. He goes on to say that international law needs implementing in national legal systems and indicated that not every country in the world has an adequate counter-piracy law. The article addresses the matter of how universal jurisdiction allows the capture of pirates without jurisdictional barriers but goes on to recognize that this is not enough. He indicates that not only do national laws need to deal with the issue of prosecuting and punishing offenders but methods to gathering evidence and arranging for the transfer of alleged pirate for trial. He has answered the question of how universal law has come to be applied to piracy outside territorial waters, in that every State has the jurisdiction to capture of the pirate but goes one step further, illustrating that the application of universal law is not the answer to the problem of international piracy on the high seas. He indicted in his interview,
the law alone will not solve piracy. Nor will navel deployments. Protecting shipping and prosecuting pirates are important, but the root causes lie ashore in war-torn countries. If we want to end piracy, we need to bring peace to those countries.
Summarizing how Universal Jurisdiction applies to the criminal offense of piracy outside territorial waters.
Customary law has been shown to be a powerful source of law resting on the agreement of International States to capture, prosecute and punish piracy. Due to the will of international states for more than 400 years, this crime was afforded universal jurisdiction. As shown by the research, the law relating to piracy should not be treated in the same manner as the human rights issues that underlie more modern universal jurisdiction crimes. Of interest regarding the application of universal jurisdiction under customary law is Kontorovich and Rubin´s information that there had been few criminal prosecutions for piracy that had depended on universal jurisdiction under customary law.
The reason for this and the question of whether there may have been a different method to deal with the international criminal law of piracy have become moot given UNCLOS and its piracy regime. As well, events in the twentieth and twenty-first centuries have shown that piracy again requires the attention of the international community. Thus, codification of the common law of universal jurisdiction in UNCLOS for the crime of piracy is shown to be of benefit to States capturing alleged pirates. In accordance with customary law, UNCLOS provides that the capturing State can deal with prosecution and punishment of the alleged offender. Regarding how universal jurisdiction is being applied to the international criminal offence of piracy, it is necessary to conclude that the law of the sea regime dealing with piracy reflects customary law in allowing the capturing State to prosecute and punish the alleged piracy offender, however, falls short in not applying modern international law principles to an international criminal law offence to ensure the international rule of law and international criminal practices and procedures are applied to the offence of piracy.
Authors have written about the gap in the UNCLOS piracy legislation and suggestions made as to methods to rectify the problems. Review of the situation by Australian academic, Robin Warner, in his article, “The Prosecution of Pirates in National Courts”, sets out these problems in the UNCLOS Articles. The abstract to his article indicates
The United Nations response to the deficit in criminal justice infrastructure for investigating, prosecuting and punishing Somali pirates through Security Council resolutions, the negotiation of the Djibouti Code of Conduct and the criminal justice capacity building efforts of the United Nations Office on Drugs and Crime is discussed. The principal thrust of these efforts has been to strengthen the capacity of countries in the Horn of Africa region to effectively investigate, prosecute and punish the offenders and to augment the overall efficacy of their criminal justice systems. An argument is made for forging stronger criminal justice cooperation networks in the Horn of Africa region and beyond to assist in gathering the necessary evidence and arresting piracy suspects for investigation and prosecution. The obstacles to tracking and freezing the proceeds of Somali piracy are also examined. The article concludes that although the prosecution of Somali pirates is only one component in the solution to eradicating the complex problem of Somali piracy, it is an indispensable element in ongoing efforts to deter this harmful criminal activity and in reducing its costs to the international community.
It is concluded that universal jurisdiction has been applied to the international criminal offence of piracy both in customary law and pursuant to UNCLOS. The manner in which this has occurred can be explained by development of customary law, meaning both acceptance of a norm by the international community of States recognizing the criminal offence of piracy as being necessary to protect commerce and persons engaging in commercial activities on the high seas as well as a second element, opinio jurs sive neccessitatis, meaning States taking such action or believing that their conduct is evidence that the practice is rendered obligatory by the existence of a rule of law. The paper has reviewed how universal jurisdiction has been applied to the international criminal offence of piracy outside the territorial waters of States under customary law as well as UNCLOS. For both sources, it examines the criminal offence of piracy and comments on its application as a universal criminal law in comparison with other international criminal laws. Matters of jurisdiction of Courts dealing with piracy offences and prosecution and punishment of the offences are reviewed for customary law and for UNCLOS. Information reviewed illustrates the international criminal law of piracy´s main objectives are to protect commercial activities and the people engaged in those activities. Material reviewed shows piracy can be a violent offence which causes human suffering, however, it is concluded that the crime has fallen into the area of universal jurisdiction because in past centuries the International community of States determined there was a need for a norm to protect commerce and persons on the high seas without necessitating traditional international jurisdictional rules be applied.
This has allowed International States to capture, prosecute and punish pirate. International States have expressed a common interest in the twenty-first century, as expressed in previous centuries, for the international offence of piracy to be recognized as a universal crime to stop interference with the free flow of commerce and protect people on the high seas. The shortfall shown in this regime is that of ensuring the international rule of law and international rules of criminal procedure and practice be applied to the international crime of piracy.