The security of the oceans is paramount for the humanity. Indeed, oceans are not only important as the platform on which is performed the transport of 90% of goods that sustains the world economy but they provide resources of various sorts (Living and non-living) that supports the livelihood of people on land today and for the future generation. Several activities that guarantee life on land are performed at sea. Hence, order and security at sea, considered as indirect wealth generator, is one of the core pillars for oceans sustainable wealth generation. Unfortunately, order and security at sea have been threatened by illegal and criminal activities among which includes maritime piracy.
In a bid to combat the scourge of sea piracy, the international community took the lead while individual states followed, of drafting conventions that criminalises the act and punish the perpetrators. Following numerous attempts to codify international law provisions on piracy, the Convention on the High Seas was adopted in 1958. The 1958 Convention restates provisions that were considered to be generally declaratory of established principles of international law at that time. The provisions of the 1958 Convention, in turn, formed the basis of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) provisions on piracy.Under the Convention, States enjoy broad universal jurisdiction over those who commit acts that fall within the definition of piracy. States are also under a general obligation to “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”. It is in the light of this obligation that Nigeria among others as a country has some measures in place to tackle the scourge of sea piracy in Nigeria waters, these measures include the use of NIMASA and Nigerian Navy and the initiation of the Piracy and Other Unlawful Acts at Sea (and other related offences) Bill to fully implement the Piracy provisions of the United Nations Conventions on the Law of the Sea 1958 and 1982 (‘UNCLOS’) and the treaty on the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988.
Relevant provisions in UNCLOS are, however, not in all respects comprehensive. Thus, piracy committed in the territorial waters of any State does not fall within the ambit of UNCLOS, nor do criminal acts which are not covered by the definition of piracy. Moreover, UNCLOS does not provide procedures for the investigation or prosecution of pirates or regulate liability issues arising in the context of modern anti‐piracy measures. Other international conventions that may be of relevance in the repression and effective prosecution of piracy include:
(a) The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, (SUA), 1988 and its Protocols;
(b) The International Convention Against the Taking of Hostages, 1979;
(c) The United Nations Convention on Transnational Organized Crime, 2000.
Domestic law plays a critical role in the establishment of a legislative framework that allows for effective and efficient prosecutions of pirates. Both UNCLOS and the SUA Convention require the implementation of relevant provisions into the domestic legislation of States Parties. To facilitate this process, IMO Assembly resolutions have been adopted that provide guidelines and recommendations on how to implement provisions of these conventions on the prevention and effective prosecution of piracy. Inter alia, the United Nations Office on Drugs and Crime (UNODC) has also identified some key substantive and procedural elements that may be included in national law to facilitate full implementation of international conventions applicable to piracy. These elements include: criminalization of piracy; jurisdiction over acts of piracy; participation, conspiracy and attempts; detention and arrest at sea; trials; identifying, tracing, freezing, seizing and confiscating criminal assets; international cooperation.
The international legal framework provides comprehensive and workable provisions to address maritime piracy despite the gaps it create with lack of uniform definition. However, the provided international legal framework will not be effective unless implemented in national legislation as yet national courts remain the usual venue to try suspected offender.
Notwithstanding the existence of laws aim at curbing the scourge of pirates activities at the sea, it appears that these laws are just to fill up the gap of law of piracy but not able to defeat piracy. Here I will provide some suggestions that will make the legislation regarding maritime piracy effective in a bid to control it.
For the purposes of jurisdiction and prosecution, a uniform definition should be sought to create predictability, ensure the principle of legality and maintain the rule of law. This definition would be narrower than what businesspersons contemplate when entering into commercial contracts, and this disparity is acceptable because commercial contracts do not trigger rule of law concerns. Likewise, for the purpose of prevention, there is no risk to the rights of third parties, so an over-inclusive definition that deters all attacks is advantageous for the safety of individual ships and the stability of the shipping industry. For the respective purposes to be achieved, it is imperative that no overarching uniform definition of piracy replaces the multitude of piracies, but this is not to say that some definitions of piracy should not be modified. Indeed, there is a strong argument to be made that the definition in public international law should be expanded to address the various forms of modern piracy that the drafters of the Harvard Draft and UNCLOS never contemplated.If this were to happen, domestic criminal law must also be updated to ensure consistency between the laws conferring jurisdiction and substantive criminal law. Nevertheless, care should be taken to ensure that this convergence of definitions does not lead to complete uniformity, which would be counterproductive to the purposes of the definitions in commercial law and prevention. Even though advocating for a uniform definition of piracy may be a laudable goal, any attempt at uniformity should carefully consider the different purposes of the definitions and this goal should not be sought purely for its own sake.
There should be a sociological approach to resolving the problem of maritime piracy this is done by addressing the reasons why people pursue a career in piracy, these reasons for Nigeria particularly include poverty, unemployment and corruption. Government of Nigeria and other countries should provide employment opportunities and also development of infrastructure should take place to neutralize the attractiveness to follow a career in sea piracy.
There must be some international sea forces to control this crime and all the member states of UN should take part in those forces necessarily. Private security companies should be encouraged to come forward in this regard. The shipping companies must have the permission to hire the private security guards. In the end there must be some international courts to deal with all the crimes of piracy. Its procedure should be same and its punishment should be same for all the pirates of the world. The international community should act against maritime piracy and acts of armed robbery of ships in cases where the State is unable to prevent these acts, as in the case of Somalia, in order to save lives and ensure the free transit of maritime traffic. The international community should make use of UN resolutions that grant them permission to combat piracy in Somalian coastal waters if the situation keeps on escalating. It may become necessary to launch specialized attacks on pirate bases, as these groups are more vulnerable on land. International and regional cooperation to combat maritime terrorism, piracy and acts of armed robbery of ships should continue and increase as positive results have already been experienced. Strong governments and honest representatives, professional and effective law enforcing agencies are required to combat maritime piracy and acts of armed robbery of ships.
For Nigeria, until the Bill is enacted into law, pirates and unlawful actors at sea would not be deterred but would continue to cause havoc and even when arrested, cannot be properly prosecuted, convicted and penalized with the crime name- tagged piracy as the position of the law is no one can be convicted of a crime unless such act is a criminalised and its punishment prescribed under the law. There is therefore an urgent need to have the Bill brought up again and quickly passed by the National Assembly in order to fill the vacuum.
culled from WISTA 2018 Magazine
Oloyede Blessing Iretioluwa
Trizon Law Chambers