i. Definitional Limitation (High Seas, Private Ends, and Two-ship Re- quirements)
The definition of piracy in the Geneva Convention can be found in article 15 and in the 1982 UNCLOS can be found in article 101. The definitions of piracy in both treaties are the same and define piracy as any of the following acts: a. any illegal acts of violence, 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:
b. on the high seas, against another ship or aircraft, or against persons or prop- erty on board such ship or aircraft;
c. against a ship, aircraft, persons or property in a place outside the jurisdic- tion of any State;
d. 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;
e. any act of inciting or of intentionally facilitating an act described in subpar- agraph (a) or (b) of this article.
The definition mentioned above comprises three main elements: 1. committed for private ends;
2. occurring on the high seas; and 3. involving two ships.
555 United Nations Treaty Collection, United Nations Convention on the Law of the Sea
<http://treaties.un.org/doc/publication/mtdsg/volume%20ii/chapter%20xxi/xxi-6.en.pdf > at 28 April 2010.
97
The 1982 UNCLOS and its commentary do not provide clear explanations of those three main elements. It is therefore necessary to examine the travaux pre-
paratoires of the Geneva Convention, from which the 1982 UNCLOS adopts its
piracy definition.557
J.P.A. Francois, the Special Rapporteur for the International Law Commission that drafted the Geneva Convention, had mentioned that he relied significantly on the Harvard Draft Convention on Piracy and the comment made by the re- porter on the Draft, Professor Joseph W. Bingham.558 There was a very com- prehensive discussion about the definition of piracy during the seventh and eighth sessions of the International Law Commission, which took place from 1955 until 1956. Francois explained that the drafting of the definition of piracy was based on three important principles, namely the principle that animus fu-
randi did not have to be present, which then led to the discussion on the term
‘for private ends’; the principle that only acts committed on the high seas could be described as piracy; and the principle that acts of piracy were necessarily acts committed by one ship against another ship, which ruled out acts committed on board a single vessel. The following section discusses these principles in turn.
A. Animus Furandi and Committed for Private Ends
The discussion of animus furandi, or the intention to steal, started with various arguments mainly favouring the idea that the motive for the acts of violence might not be the prospect of gain. They majority of panel members during the 290th meeting of the International Law Commission agreed that the motive
557 The general rule of interpretation of international treaties appears in article 31 of the 1969 Vienna
Convention on the Law of Treaties, which, it provides, should be interpreted, among other things, in good faith and within the context of the treaty. In addition, article 32 of the Vienna Convention states that recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion. This can be done in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation accord- ing to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is mani- festly absurd or unreasonable. Because the meaning of the three main elements of the definition of pi- racy have not been clarified by the UNCLOS, it is necessary to look at the travaux preparatoires of the UNCLOS or, if there are not any, the travaux preparatoires of other conventions preceding the UN- CLOS, that is, the Geneva Convention on the High Seas.
558
Mr. J.P.A. Francois in 290th Meeting, 12 May 1955, Summary Record of the Seventh Session 2 May-8 July 1955, Yearbook of the International Law Commission (1955 Vol. I) 39.
98
could be gratuitous malice or hatred, or a desire for private revenge. Therefore
animus furandi did not have to be present.
One of the arguments quoted in the discussion was that of M. Matsuda, Rappor- teur of the Sub-Committee of Experts for the Progressive Codification of Inter- national Law.
Certain authors take the view that desire for gain is necessarily one of the characteristics of piracy. But the motive of the acts of violence might be not the prospect of gain but hatred or a desire for vengeance. In my opinion it is preferable not to adopt the criterion of desire for gain, since it is both too re- strictive and contained in the larger qualification ‘for private ends.559
The session then moved to the discussion of the notion of ‘for private ends’. Following the Harvard draft, the draft convention excludes from its definition of piracy all cases of wrongful attacks on persons or property for political ends, whether made on behalf of States, recognized belligerent organizations or un- recognized revolutionary bands. This discussion went on to quote L. Oppen- heim: ‘Private vessels only can commit piracy. A man-of-war or other public ship, so long as she remains such, is never a pirate’.560
The attack on Achille Lauro in October 1985 led to further discussion of the in- clusion of acts committed for public purpose into the UNCLOS definition of pi- racy. Since the objective of the attack was a public goal, the hijackers could not be apprehended on the ground of violation of the piracy provision under UN- CLOS. The attack also failed to meet the ‘two-ship’ requirement in the defini- tion of piracy, discussed later in this chapter.
There have been proposals to change the definition of piracy under article 101 UNCLOS, particularly in relation to the notion of ‘for private ends’. After the incident, prominent scholars such as Constantinople and Halberstam argued that the definition of piracy should be expanded to include attacks such as that
559 Mr. M. Matsuda in 290th Meeting, 12 May 1955, Summary Record of the Seventh Session 2 May-8
July 1955, Yearbook of the International Law Commission (1955 Vol. I) 40.
99
against the Achille Lauro.561 A wider definition of piracy would offer all states broader access to the special jurisdiction, allowing them to take legal action against pirates as hostis humani generis and therefore police acts of political ter- rorism committed on the high seas.562
Most of the supporters of this proposal make their argument on the basis that neither the Geneva Convention nor the Harvard Research Draft defined the term ‘for private ends’. Halberstam argues that on the basis of the travaux prepar-
atoires the term ‘for private ends’ was used in the Harvard Draft to exclude acts
by unrecognized insurgents who limited their attacks to the state from which they were seeking independence, and was used in the Geneva Convention for the same purpose, and also to exclude attacks by state ships.563 However, what remains unclear is whether the term ‘for private ends’ was intended to exclude all attacks motivated by political ends.
To be able to fully comprehend the intention of the drafters of both the Harvard Research Draft and the Geneva Convention, it is useful to examine more closely the comment on the Harvard Research draft made by Professor Joseph. W. Bingham.
It may be thought advisable to exclude from the common jurisdiction cer- tain doubtful phases of traditional piracy which can now be left satisfacto- rily to the ordinary jurisdiction of a state, or of two or three states, stimu- lated to action on occasion by diplomatic pressures. Therefore the draft convention excludes from its definition of piracy all cases of wrongful at- tacks on persons or property for political ends, whether they are made on behalf of states, or of recognized belligerent organizations, or of unrecog- nized revolutionary bands.564
561 See Constantinople, above n 549, 724; Halberstam, above n 510, 291; Philip A. Buhler, 'New
Struggle with an Old Menace: Towards a Revised Definition of Maritime Piracy ' (1999) 8 Currents:
International Trade Law Journal 61, 68-69.
562 Constantinople, above n 549, 724. See also Halberstam, above n 510, 291. According to Hal-
berstam, it is arguable that the definitions of piracy in the Geneva Convention and the UNCLOS were not intended to exclude indiscriminate attacks by terrorists.
563
Halberstam, above n 510, 277.
100
The comment then referred specifically to the term ‘private ends’:
Although states at times have claimed the right to treat as pirates unrecog- nized insurgents against a foreign government who have pretended to ex- ercise belligerent rights on the sea against neutral commerce, or privateers whose commissions violated the announced policy of the captor, and alt- hough there is authority for subjecting some cases of these types to the common jurisdiction of all states, it seems best to confine the common ju- risdiction to offenders acting for private ends only. There is authority for the view that this accords with the laws of nations.565
The Comment on article 16 of the draft also states:
This Article covers inter alia the troublesome matter of illegal forcible acts for political ends against foreign commerce, committed on the high sea by unrecognized organizations. For instance a revolutionary organiza- tion uses an armed ship to establish a blockade against foreign commerce, or to stop and search foreign ships for contraband, or to seize necessary supplies from foreign ships. These acts are illegal under international law, at least if the revolutionary organization has not been recognized as a bel- ligerent by the offended state, and in some cases the offended state has proceeded to capture or destroy the offending ship.566
In discussing the draft of the Geneva Convention the International Law Com- mission took the position just stated. The Special Rapporteur, J.P.A. Francois, cited the comment that although states at times have claimed the right to treat unrecognized insurgents against a foreign commerce as pirates, it seemed best to confine the common jurisdiction to offenders acting for private ends only.567
From the language of both the Harvard Research Draft and the Geneva Conven- tion, it can be argued that the intention was to exclude from the application of the laws of piracy acts by ‘unrecognized insurgents’ exercising belligerent rights without having achieved belligerent status.568 The drafter of both docu- ments took the position only with respect to insurgents whose acts were directed solely against the state whose government they sought to overthrow, not those who attacked ships of all nations indiscriminately.569 In other words, the draft-
565 Ibid 798. 566 Ibid.
567 J.P.A. Francois in 290th Meeting, above n 558, 41. 568
Halberstam, above n 510, 280.
101
ers only contemplated situations in which the danger or damage was directed against a particular state, not against all states.570
The drafters of both documents did not, however, contemplate the situation where the threat or injury was directed against all states indiscriminately, as in the Achille Lauro incident. As mentioned earlier, the 1982 UNCLOS relied heavily on both documents, therefore, the meaning of the term ‘for private ends’ remains unclear. Does it exclude all attacks motivated by political ends? Alter- natively, does it exclude merely those attacks committed by insurgents whose acts are directed solely against the state whose government they sought to over- throw? If it excludes only attacks committed by insurgents who are seeking in- dependence, can it be concluded that attacks committed by insurgents against all nations indiscriminately, such as the Achile Lauro incident, will constitute pira- cy?
Another argument that can be put forward is that the definition of piracy should include terrorist attacks against ships of all nations. The terrorists may indeed obtain no personal gain by committing their acts. However, that does not neces- sarily mean that their motive is political and therefore cannot fall under the def- inition of piracy. Terrorists who have no personal motive can still be catego- rized as pirates because that is consistent with the statements in the Commen- tary to the Harvard Research Draft and the Geneva Convention that the desire for personal gain (animus furandi) is not essential.
The Commentary to the Harvard Research Draft quoted the statement by Hyde that as piracy does not necessarily involve the taking of property, the absence of intent to steal is not necessarily decisive of the character of what takes place.571 The Comment then quoted the statement by Dana that the motive may be gratui- tous malice, or the purpose may be to destroy in private revenge for real or sup- posed injuries done by persons or classes of persons, or by a particular national authority.572 . 570 Ibid. 571 Bingham, above n 548, 806. 572 Ibid.
102
While under this interpretation the Achille Lauro incident can be classified as an act of piracy, piracy so defined might not applicable to terrorist acts in different situations. The Commentary to the Harvard Research Draft and debate during the International Law Commission meetings clearly excluded unrecognized in- surgents whose acts were directed solely against the state whose government they sought to overthrow, and ships acting under public authority or state ves- sels. Terrorist acts motivated by non-private goals were, therefore, never in- tended to be categorized as piracy.
As mentioned, the 1982 UNCLOS repeats the piracy provisions of the Geneva Convention. There is no recorded discussion of these provisions at any of the conferences preceding the adoption of the Convention. There was a proposal from commentators that the definition of piracy should be modified, but the sig- nificance and controversial nature of other issues seemed to preclude considera- tion of piracy.573 Therefore, the term ‘for private ends’ remains unclear and will remain subject to ongoing debate among scholars.
Since the September 11, 2001 terrorist attack on the World Centre Towers in New York City, the debate surrounding terrorism and piracy has grown signifi- cantly. As Young and Valencia noted, although maritime terrorism is distinct from piracy in a very straightforward manner, conflation of the two may oc- cur.574 According to them, piracy is a crime motivated by private gain and therefore predicated on immediate financial result, whereas terrorism is moti- vated by political ends beyond the immediate act of attacking ships.575 The overlap may occur in several ways, in particular as regards ship seizures and hi- jackings.576
Attacks against ships in the Malacca Straits are becoming more violent, and pi- rates are more likely to be armed and crew members are more likely to be killed
573 Halberstam, above n 510, 284. 574 Young and Valencia, above n 355, 276. 575
Ibid 274-275.
103
or injured.577 The escalation towards greater violence in the Straits has invoked the word ‘terror’, particularly in the period soon after the 9/11 attack,578 despite the fact that, as shown in Chapter 2, maritime terrorism is not an imminent threat in the Malacca Straits.
On the other hand, maritime terrorism has certainly taken place in the Southern Philippines. The MILF and ASG have both launched maritime-related attacks, for instance ferry bombings and the kidnapping of Western tourists for ransom. These two Islamic separatist movements have also been linked to terrorist or- ganizations, such as Al Qaeda and JI, which suggests that they aim for major social disruption to achieve their political goals.
In any case, conflation of terrorism and piracy in areas such as the Southern Philippines has led to calls for the UNCLOS definition to be extended to include attacks for political ends, not merely private motives.
B. Occurring on the High Seas
The second crucial element of the definition of piracy is that it must occur ‘on the high seas’. The view adopted in the Harvard Research Draft is shared by the majority of members of the International Law Commission and writers: ‘Piracy as an ‘international crime’ can be committed on the open sea only’.579
The majority members of the International Law Commission agreed that piracy in territorial coast waters had as little to do with international law as other rob- beries within the territory of a state.580 There was an amendment to the Harvard Research Draft proposed by one of the members of the Seventh Session of the International Law Commission, A.E.F. Sandstrom.581 He proposed including within the definition of piracy attacks by pirates on a coast or within the territo-
577 Beckman, above n 101, 317. 578
Ong-Webb, above n 14, 46.
579 Oppenheim, above n 511, 615.
580 292nd Meeting, 16 May 1955, Summary Record of the Seventh Session 2 May-8 July 1955, Year-
book of the International Law Commission (1955 Vol. I) 53.
581
Mr. A.E.F. Sandstrom in 292nd Meeting, 16 May 1955, Summary Record of the Seventh Session 2 May-8 July 1955, Yearbook of the International Law Commission (1955 Vol. I) 53.
104
rial waters of a state but this proposal was rejected because the majority mem- bers of the session agreed that piracy always has its origin at sea. If they com- mitted depredations along a coast, such depredations would come under the ju- risdiction of the local courts.582 A similar opinion was shared by Sir Gerald Fitzmaurice who agreed that predatory acts committed in a place within the ter- ritorial jurisdiction of any state would generally regarded as falling under the ju- risdiction of the local authorities of that state. 583 It can be concluded that alt- hough there was a proposal to include acts of violence which occur in territorial water of states as piracy, this was not favoured because the commission agreed that such acts would remain the responsibility of coastal states.
The UNCLOS piracy definition repeats the piracy definition of the Geneva Convention. It limits the offence to acts occurring on the high seas. In other words, the piracy provisions of the UNCLOS apply to any area beyond the terri- torial sea of a state.584 Hence, the definition significantly limits the geograph- ical location of acts that can be considered piracy under the UNCLOS.
The UNCLOS recognizes three major jurisdictional zones: territorial waters of a state, the exclusive economic zone (EEZ), and the high seas.585 Under the UN- CLOS, a state’s territorial sea may extend up to twelve nautical miles from its baseline.586 Coastal states have the same sovereignty over their territorial sea as they have with respect to their land territory.587 However, ships of all states, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.588 A state can also claim up to 200 nautical miles from its coast- lines as part of its EEZ.589 Within its EZZ, a state has sovereign rights to exclu- sively exploit and explore, conserve and manage natural resources, whether liv- ing or non-living.590
582 Mr. Georges Scelle in 292nd Meeting, above n 580, 52. 583
Sir Gerald Fitzmaurice in 292nd Meeting, above n 580, 52.
584 UNCLOS art 58.
585 UNCLOS art 2, 33, 55, 86.
586 UNCLOS article 3 (stating that: ‘Every state has the right to establish the breadth of its territorial
sea up to a limit not exceeding 12 nautical miles, measured from baseline determined in accordance