The Disconnect Between Universal Jurisdiction and Piracy

Kyle Best

Wikimedia_French_ship_under_atack

Hostis humani generis: “enemy of humankind.” The immense weight behind this Latin phrase is well known to those fascinated by either the modern or historical world of piracy. Historically, the status of these universal enemies was well known. According to the masses, pirates had availed themselves of the benefits of society, reduced themselves to a savage “state of nature”, and declared war on all humankind. And so, in this same Hobbesian spirit, humankind responded by categorically declaring war against pirates. Thus, when these enemies would bear down upon a coastal town with rapacious savagery, the town would not stand idle and witness their own demise, but instead rally their troops and defend their livelihood with equal measures of violence. Indeed, because the pirates had been declared enemies of humankind, the town would not only have the right to self-defense, but they were further given the right to punish captured pirates in a brutal manner fitting of this “state of nature.”[1] And so, as if torn from the pages of Leviathan, the law of nature governed the fight against hostis humani generis.

This classical account of piracy paints a picture reminiscent of the so-called “Golden Age” of piracy, one that may be thought of as irrelevant to maritime crime in its modern form. However, a new study by Dr. Matt Garrod suggests that such an antiquated approach to piracy persists in international law. Garrod’s study focuses on the principle of universal jurisdiction. Used for over 400 years to combat piracy, universal jurisdiction gives all countries criminal jurisdiction over certain crimes regardless of normally relevant considerations such as location or nationality. Universal jurisdiction rests on the assumption that there are certain crimes so heinous that they are against the values of all humankind, and because all humankind is affected, all states are given the right to prosecute the criminal and protect international community values. In his study, Garrod researched archival materials and considered the application of universal jurisdiction to the crime of piracy from a historical perspective. He found that lawmakers were not protecting international community values, but instead pursuing their own interests:

“[T]he original lawmakers were powerful sovereigns protecting their own interests, not least their sovereign right to freely navigate the high seas and develop colonial trade and settlements and ultimately grow their own empires uninhibited. They weren’t interested in protecting all mankind. Pirates were even sometimes described as ‘heinous’ because their activity was destructive of the colonial trade of sovereigns.”[2]

This study points towards a significant incongruity between the application of universal jurisdiction and its underlying rationale. However, can this criticism be applied to modern maritime crime? Garrod argues that it can, stating that there is no evidence to suggest that the fight against piracy in Somalia is a result of states attempting to protect international community values. This is a strong stance to take on the issue, and is likely to be challenged by organizations such as the UN, who describe the fight against piracy as a collective international responsibility.[3] Indeed, the applicability of universal jurisdiction to crimes like piracy and genocide has been a subject of debate before the UN General Assembly since 2009, and both sides are far from reaching an agreement on the matter. Regardless of one’s stance on this issue, Garrod’s research raises a legitimate question as to the underpinnings of universal jurisdiction, and continues to fuel the debate surrounding this 400-year-old law.


[1] Ellms, Charles. The Pirates Own Book (2004). Available online: http://www.gutenberg.org/files/12216/12216.txt

[2] Garrod, Matthew. http://www.port.ac.uk/uopnews/2014/08/05/laws-against-piracy-seriously-flawed/

[3] http://www.un.org/apps/news/story.asp?NewsID=45281#.U_YalEhEDEU

Private Maritime Security in West Africa

Kyle Best

Source: http://gcaptain.com/shipping-industry-iso-standard-for-private-security/

Source: http://gcaptain.com/shipping-industry-iso-standard-for-private-security/

Private Maritime Security Companies (PMSCs) have proven to be an effective means by which ship owners can deter pirate attacks. In 2013, between $767,144,000 and $876,736,000 was spent on armed guards aboard ships in East Africa alone.[1] These significant sums of money were not expended frivolously, and because PMSCs have achieved results, many shipping companies are eager to make use of them in regions of emerging piracy. One of these regions is West Africa. However, unlike East Africa, West African laws are highly restrictive as to the use of PMSCs in their territorial waters. In some cases, these laws create a situation where ship owners must, in their efforts to bolster security, turn to either (1) security personnel sanctioned by the state or (2) national forces such as the navy. This approach to maritime security has been fraught with difficulties, two of which are detailed below.

Jurisdictional issues:

The United Nations Convention on the Law of the Sea (UNCLOS) provides that the sovereignty of a state extends to the territorial sea, which is measured 12 nautical miles from the baseline. Thus, as long as a ship is within the territorial sea of a West African state, that state may prohibit private security aboard the ship without contravening international law. However, there have been reports of these laws being enforced beyond the territorial sea in Nigeria. A recent statement made by the Baltic and International Maritime Council (BIMCO) warned all of its members operating vessels within Nigeria’s Exclusive Economic Zone (EEZ) that “[t]he Navy has seemingly begun enforcing its alleged authority to prevent the employment of armed guards”. The authority of the Nigerian Navy is described as “alleged” because international custom does not allow a state to apply its national law throughout the EEZ. As per UNCLOS, the EEZ extends 200 nautical miles from the baseline, and gives a state exclusive jurisdiction over the exploitation of the resources therein. Thus, while Nigeria has exclusive rights over fishing, oil, and gas in its EEZ, enforcement of national laws beyond territorial waters is contrary to international law. This issue brings to light the overall uncertainty faced by the maritime industry: not only do seafarers and ship owners face the risk of unpredictable pirate attacks at sea, but they are further subject to the arbitrary exercise of jurisdiction by littoral states.

“Blue on blue” incidents:

One solution to the problem of jurisdiction would be to rely exclusively on security either sanctioned by or provided for by the littoral state. However, even this approach has proven to be problematic, and has resulted in a number of “blue on blue”, or friendly fire, incidents. One notable incident occurred in 2013, where members of the Nigerian police opened fire on a small ship, believing it to be in the process of committing an act of piracy. In fact, the crew of this ship belonged to the Nigerian Navy, and, as a result of the initial attack, a standoff between the two sides ensued, forcing the policemen to lock themselves inside of the citadel for multiple days. The Nigerian Navy has asserted that the police only have jurisdiction over riverine territory, and they have expended efforts to enforce this ban. However, these efforts continue to result in clashes between the Nigerian authorities, and have further contributed to the uncertainty and lack of coordination in the region.

PMSCs have become a significant part of the maritime industry, and their continued use by shipping companies facing tight budgets suggests that it is a successful method of deterring maritime crime. However, much like piracy clauses, it must be kept in perspective that this counter-piracy measure is preventative. In order to address the problem of piracy directly, we must not only protect the lives and livelihoods of seafarers through such security measures, but further address the root causes of piracy that exist both ashore and at sea.


[1] Oceans Beyond Piracy, State of Piracy Report 2013, page 18.

Commercial Contract Law as a Counter-Piracy Measure

Kyle Best

1,288 days. This is the unfathomable amount of time that 11 crewmembers of the MV Albedo were held hostage since Somali pirates hijacked their vessel in 2010. News of their release surfaced earlier this month, and is accompanied by footage of the crew going on an African safari, an excursion that they had initially planned in 2010 before they were taken hostage. As they traverse the planes of Africa, the expressions on their faces are ones of excitement and elation, expressions that stand in stark contrast to the enduring pain that these individuals suffered for almost four years prior.

MV Albedo Crew, following release. source: http://www.marsecreview.com/2014/06/albedo-crew-and-families-aftercare/

Crew of the MV Albedo, following their release. Source:http://www.marsecreview.com/2014/06/albedo-crew-and-families-aftercare/

The plight of these seafarers provides a human face to the problems that arise from maritime piracy, however, this human element is not always sufficient to elicit a timely response. This was true for the crewmembers of the MV Albedo. The owner of the ship, believed to be uninsured, abandoned his efforts to pay for the release of the crew early in the negotiations (link). While this type of abandonment is not uncommon in hostage situations, many ship owners nonetheless prioritize crew safety. However, even under the guardianship of such a responsible owner, ships are often chartered by larger corporate entities with a financial interest in sending that ship through an area at risk of piracy. Thus, seafarers are left in a particularly vulnerable state, and the question remains as to how they can be protected from piracy. One possible solution may reside in an unexpected area: commercial contract law.

Consider for a moment the CONWARTIME 1993 clause, known within the industry as a “piracy clause”. This is a standard contractual clause drafted by the Baltic and International Maritime Council (BIMCO), and can be applied when a vessel is ordered to travel through an area that threatens the safety of ship and crew. In short, this clause creates a legitimate means by which an owner of a ship can protect his or her crew when commanded to travel through an area at risk of piracy. Indeed, the clause was recently invoked to protect seafarers in the case of Pacific Basin IHX Ltd v Bulkhandling Handymax AS, heard at the Commercial Court of the High Court of Justice in England.

In this case, Pacific Basin IHX Ltd. chartered a vessel from Bulkhandling Handyman AS, and ordered them to sail through the Gulf of Aden, which was the fastest route to its destination. However, Bulkhandling did not wish to sail this route due to the increased reports of piracy in the area, notably one in which a vessel had been hijacked and its crew taken hostage the previous month. Faced with this legitimate concern, the owner of the Bulkhandling ship was forced to choose between putting workers at risk of being attacked, and going against the orders of its charterer. Bulkhandling chose to protect its workers, and sailed instead through the Cape of Good Hope, incurring an extra cost of $462,221.40 USD. Pacific’s claim in court was that Bulkhandling should incur this cost because it acted against Pacific’s orders. These costs are significant and, under such financial pressure, it is conceivable that Bulkhandling might risk traveling through an area of noted piracy. However, Bulkhandling countered Pacific’s claim by invoking the CONWARTIME 1993 clause, demonstrating how commercial contract law stands to protect seafarers.

The Court’s ruling on this matter provides significant guidance as to when an owner can invoke this clause, and reject his or her charterers’ order to travel through an area affected by piracy.

1)    The owner must first judge that there is a real likelihood that the Vessel will be exposed to acts of piracy.

2)    Secondly, the owner must judge that there is a real likelihood the acts of piracy will be “dangerous” to the Vessel, her cargo, crew or other persons on board the Vessel

3)    The owner’s judgment must be “objectively reasonable”, and the owner is required to make all necessary enquiries before deciding to avoid the risk.

While these requirements are abstract and somewhat meaningless in isolation, a closer look at how the Court interprets the term “real likelihood” provides some clarity. A “real likelihood” risk of piracy would include something that has less than 50% chance of occurring, however the chances of it occurring must be greater than a “bare possibility”. This standard is not overly stringent, and in practice it provides owners with considerably greater leeway to invoke piracy clauses than the comparably rigorous standard of “more likely than not” (which requires greater than 50% chance of occurring). Beyond this, it is crucial, when invoking this clause, to prove that the area in question is in fact “dangerous”, a point that has been noted by BIMCO in its 2013 revisions of the piracy clauses.

Most significantly, this case confirms the possibility to invoke piracy clauses as a means to protect seafarers at risk of an attack. Indeed, a recent case heard by the same Court confirmed an owner’s right to invoke a piracy clause, and further removed a debilitating requirement that precluded certain claims. Despite this progression, the legal community has noted that there is likely to be further judicial development on the subject.[1][2] As the courts move forward on this issue, concerns relevant to the plight of the seafarer include:

  • Piracy clauses require owners to make a decision to ignore a charterers’ order, a decision that courts must deem “objectively reasonable.” However, Oceans Beyond Piracy has noted that there are continuing challenges in both reporting and information sharing with regards to piracy. Such an environment obfuscates both the owner’s ability to make this decision, and his or her ability to prove its objective reasonableness in court.
  • Piracy clauses serve as a strictly preventative tool. Providing owners with this discretion may reduce the possibility of an attack, but it does not eliminate the risk.
  • Owners, not seafarers, exercise the discretion granted by piracy clauses. In an industry where the cost of transportation often amounts to significant sums, financial pressures exerted by charterers stand to outweigh some owners’ concern for the safety of their crews.

Footnotes:


[1] http://www.steamshipmutual.com/publications/Articles/conwartime-1993.htm

[2] http://www.nortonrosefulbright.com/knowledge/publications/59912/the-threat-of-piracy-deviation-and-conwartime-1993-war-risk-ruling-to-be-reassessed

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