International legal regulation of countering maritime piracy

Kove Omar Postgraduate student, Department of International Law, Diplomatic Academy of the Ministry of Foreign Affairs of Russia 119021, Russia, g. Moscow, ul. Ostozhenka, 53/2 stroenie 1 omarkove@gmail.com Other publications by this author

The relevance of this study is justified by the importance of international legal regulation of countering maritime piracy as a phenomenon that negatively affects the state of international logistics routes, which is fraught with significant economic costs for the entire international community. In 2020, according to the International Maritime Bureau, the number of recorded pirate attacks was 195, and in 2021 – 132, of which 88% of attacks by sea pirates were not stopped.

The scientific community has devoted a lot of works to the study of this problem, including works by foreign authors devoted to regional problems of piracy, in particular the region of Southeast Asia. ^{[1, 2, 3, 4, 5]} and the Gulf of Guinea ^{[6, 7, 8]}, as well as domestic authors ^[9].

It should be noted the work of Gliev R.S., devoted to the issue of international legal cooperation of states in the fight against maritime piracy, in which the author defines universal and regional norms for countering piracy ^[10], as well as a scientific article by Katek L.D. ^[11], which analyzes various opinions related to proposals to expand the term "piracy" ^{[12, 13]}. Some of the results of these works formed the basis for writing this article and formed the author's view on many issues related to countering maritime piracy.

Fundamental scientific research is the work of I.V. Maimistova, devoted to the problem of protection from maritime piracy ^[14] and T.A. Zaitseva, which deals with the problems of criminal prosecution of sea pirates ^[15]. I would also like to draw attention to the works devoted to various problems related to the problem of maritime piracy ^{[16, 17, 18, 19, 20]}. The problem of countering piracy is also reflected in Chapter X of the monograph by A.A. Skaridov ^{[21, pp. 356-371]}, which analyzes various categories of crimes at sea, and in the work of S.I. Mitina ^[22].

The emergence of piracy has a deep history. At the same time, it is difficult to give the exact date of occurrence of this phenomenon. There is an assumption that the first definition of the term "piracy" was given by the Greek philosopher Plutarch. In this definition, he included not only robberies on ships that occurred at sea, but also attacks using ships on various settlements located by the sea ^{[21, p. 357]}. It also happened that in ancient times piracy, along with maritime trade, was sometimes considered one of the legal forms of activity, replacing commercial activity in the Mediterranean. At the same time, realizing the perniciousness of this phenomenon, opposition to it began from the moment of its occurrence. Thus, the first regulatory act aimed at combating piracy can be considered the decision of the Greek Congress held in Corinth in 337 BC ^[22].

In different periods and in different regions, the "seekers of happiness" were called differently: djakarei, Dolopians, bakunirs, filibusters, privateers, corsairs, privateers. And the position of these persons in relation to the law in different periods was also different. Thus, the ambiguous attitude of European states to piracy can be understood through privateering, which occurs around the end of the XIII and the beginning of the XIV centuries. In fact, this phenomenon was legalized by various European states of pirate activity in different periods. It was in the service of these States and was finally abolished only by the Paris Maritime Declaration of April 16 , 1856 .

Galiev R.S. in his work "International legal cooperation of states in the fight against maritime piracy" offers a periodization of the process of emergence, formation and development of legal norms aimed at combating piracy, consisting of four periods:

- first period: 337 BC – to 1648;

- second: from 1648 to 1919.;

- the third period: from 1919 to 1945.;

- the fourth period: from 1945 to the present.

The first period: from the Ancient Ages to the end of the Middle Ages, is divided into two stages. The first stage was from 337 BC to VII BC, in which the fight against piracy was not carried out in the sense in which it is perceived today, due to the hostility and permissiveness of states to each other. The second stage - from the VII century AD to 1648 - was characterized by the conclusion of the first norms of the law of the sea, as well as the conclusion of treaties between states.

The second period is also divided into two stages: from 1648 to the Paris Peace Congress of 1856 and from 1856 to 1919. The first stage is characterized by the assertion "in customary international law during the XVII-XVIII centuries. the concepts of the high seas, the territorial sea and the development of the foundations of their legal status", while the second stage "lays the foundations for the consolidation of states in the fight against maritime piracy" ^{[10, p. 27]}.

The third period is associated with the creation of the League of Nations. The author claims that in this period the paradigm of the modern understanding of maritime piracy and the fight against it is being formed.

The fourth period is significant for the adoption of the UN Charter and the Convention "On the High Seas" of April 29, 1958 in Geneva (hereinafter referred to as the 1958 Convention). It was in the 1958 Convention that the main positions in the fight against maritime piracy were fixed ^{[10, pp. 27-28]}.

In fact, the United Nations Convention on the Law of the Sea of December 10, 1982 (hereinafter referred to as the 1982 Convention), which is the main document regulating many issues related to countering piracy at the present time, duplicates part of the norms of the 1958 Convention, namely articles 14-22. In this regard, it seems appropriate to analyze the piracy-related articles of the 1982 Convention.

Article 100 of Section 1. "General Provisions" of Part VII "The High Seas" obliges States to cooperate in countering piracy. Article 101 gives the following definition of the term piracy:

"Piracy is any of the following actions:

a) any unlawful act of violence, detention or any robbery committed for personal purposes by the crew or passengers of any privately owned vessel or privately owned aircraft and directed at:

(i) on the high seas against another vessel or aircraft or against persons or property on board them;

(ii) against any vessel or aircraft, persons or property in a place outside the jurisdiction of any State;

(b) Any act of voluntary participation in the use of a vessel or aircraft performed with knowledge of the circumstances by virtue of which the vessel or aircraft is a pirate vessel or aircraft;

(c) Any act that incites or knowingly facilitates the commission of an act provided for in subparagraph (a) or (b)."

In this case, it is necessary to pay attention to the geographical scope of the term "piracy". The fact is that this article does not consider an unlawful act of violence, detention or any robbery committed for personal purposes by the crew or passengers of any private-owned vessel or private-owned aircraft committed in territorial waters, and reserves the right to regulate this issue for the States in whose territorial waters it is committed.

Katek D.L. in the scientific article "Piracy and armed robbery" ^{[11, p. 304]}, analyzing this issue, considers the opinion of various scientists. The author claims that some scientists propose the inclusion in the definition of the term "piracy" and offenses that occurred in the territorial sea ^[12]. Other scientists suggest expanding not only the geographical scope of this term, but also changing the concept of "piracy" by including all acts of maritime robbery and violence in this definition ^[13].

The opinion of D.L. Katek himself is also interesting, who believes that the problem of countering piracy lies not in the limited geographical application of this term or its non-expanded definition, but in the fact that some states simply do not fight this phenomenon effectively, and some cannot do it.

As a confirmation of the first statement, the author gives an example related to the implementation of Operation Atlant, as a result of which the captured pirates did not want to be judged. This fact subsequently caused concern to the International Maritime Organization, which was reflected in IMO Assembly Resolution 1025 (26) of December 2, 2009.

As for the second reason, namely, the absence of some States of the possibility of a real fight against piracy, that is, the enforcement of their legislation within their territorial waters, the author notes the unacceptability of solving this problem by depriving this State of the rights provided for by the 1982 Convention, which is certainly worth agreeing with ^{[11, p. 304]}.

Article 103 defines the terms "pirate ship" and "pirate aircraft": "A ship or aircraft is considered a pirate ship or a pirate aircraft if they are intended by persons having authority over them to perform any of the actions provided for in article 101. This also applies to a vessel or aircraft that was used to commit such acts as long as they remain under the authority of the persons responsible for these actions." Article 102 indicates that in the event that piratical acts are committed by a warship or a State vessel, due to the fact that the crew of this vessel if he mutinied and seized control of the ship, then his actions are equivalent to the actions of a private ship. That is, the rules that apply to a pirate ship apply to it. At the same time, Article 104 notes the possibility of preserving nationality by a pirate vessel, since the regulation of this issue is approved by domestic law, that is, the national legislation of the state to which the vessel was represented.

Article 105 indicates the right of any State to seize a pirate ship, as well as the arrest of both pirates and property located on this vessel. In case of seizure, the judicial institutions of the State have the right to carry out judicial proceedings in accordance with the norms of their national legislation. At the same time, it should be noted that not every vessel has the right to seize a pirate vessel. In accordance with Article 107, this action can only be carried out by:

- warship;

- military aircraft;

- vessels or aircraft, "which have clear external signs that allow them to be identified as being in government service, and are authorized for this purpose" (Article 107 of the 1982 Convention). If a State has seized a ship, considering it pirated without sufficient grounds, then in accordance with Article 106 it must be responsible for the damage caused and any losses to the State whose nationality the vessel possesses. The right to inspect the vessel is regulated by Article 110. It indicates the possibility of checking the vessel's right to the flag, as well as further inspection on board the vessel, if necessary.

The need to consolidate international forces to combat piracy at sea in order to improve security was reflected in UN General Assembly Resolution 40/60 of December 9, 1985, as well as Resolution 584 (14) of the Assembly of the International Maritime Organization of November 20, 1985. These international legal acts contributed to the conclusion of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of March 10, 1988 in Rome, as well as its Protocol of October 14, 2005 (hereinafter - the Rome Convention / Convention of 1988). It is for this reason that the text of the Convention contains direct references to to the specified resolutions.

In accordance with Article 3 of the Rome Convention, a person commits a crime if he unlawfully or intentionally:

"(a) seizes or controls the vessel by force or threat of force or by any other form of intimidation; or

(b) Commits an act of violence against a person on board a vessel if this act may endanger the safe navigation of the vessel; or

(c) destroys the vessel or causes damage to the vessel or its cargo that may endanger the safe navigation of the vessel; or

(d) places, or performs acts for the purpose of placing, on board a vessel in any way a device or substance that may destroy that vessel, cause damage to that vessel or its cargo that threatens or may threaten the safe navigation of that vessel; or

(e) destroys marine navigation equipment, or causes serious damage to it, or causes serious interference with its operation, if any such act may endanger the safe navigation of the vessel; or

(f) knowingly provides false information, thereby endangering the safe navigation of the vessel; or

(g) Injures or kills any person in connection with the commission or attempt to commit any of the crimes referred to in subparagraphs a-f."

This article also defines as crimes the attempt or incitement to carry out these actions. The Convention also provides for:

- taking into custody or taking other measures in relation to a criminal/alleged criminal located on the territory of the State (Article 7);

- the issue of extradition of criminals who have committed an offense in accordance with Article 3 (Article 11);

- cooperation of States in the criminal prosecution of offenders (Article 12);

- cooperation of States in the prevention of crimes through the adoption of all practicable measures, as well as the exchange of information and coordination of administrative and other measures (Article 13).

I would like to draw attention to some distinctive features of the Rome Convention from the 1982 Convention. The first difference is that the Rome Convention is aimed at regulating a larger range of offenses against the safety of navigation. The second difference is due to the fact that it establishes a competing jurisdiction. That is, it establishes both national and optional jurisdiction of States in terms of countering piracy, and the 1982 Convention is only universal ^{[10, pp. 40-42]}.

It is also necessary to mention IMO Assembly Resolution 738 (18) of November 9, 1993, on the basis of which the organization developed a comprehensive strategy to combat maritime piracy. This strategy includes many elements, including:

- preparation and dissemination of information related to acts of maritime piracy;

- holding seminars and various meetings related to the discussion of the problem of piracy;

- sending missions to regions where the issue of maritime safety is most acute due to the largest number of acts of maritime piracy. It also served as the adoption of many other international legal acts aimed at combating the problem of piracy at sea.

Another international legal document that enshrines the norms related to countering illegal acts against the safety of maritime navigation, including piracy, is the UN Convention against Transnational Organized Crime, adopted by UN General Assembly Resolution 55/25 of November 15, 2000 (hereinafter referred to as the 2000 Convention). In accordance with Article 1, the purpose of The purpose of this Convention is to promote "cooperation in the more effective prevention and combating of transnational organized crime".

In accordance with Article 3 of the 2000 Convention, a crime is transnational if:

"a) it is committed in more than one State;

b) it is committed in one State, but a significant part of its preparation, planning, management or control takes place in another State;

(c) It is committed in one State, but with the participation of an organized criminal group that carries out criminal activities in more than one State; or

(d) It is committed in one State, but its significant consequences take place in another State."

The above-mentioned international legal acts, as well as the difference in approaches to countering piracy, form a request for the need for the international community to adopt a specialized international legal act. This document should reflect a unified approach in understanding the term "piracy", regulate in detail the mechanisms that can be used by the State to combat it, as well as coordinate the actions of States to a greater extent.

All the listed international legal acts are directly related to countering piracy and form a universal level of regulation of this problem. At the same time, it should be noted that there is also a regional level of countering piracy.

Examples of the regional level of regulation of the problem of piracy are the Agreement on Regional Cooperation in Combating Piracy and Armed Robbery against Ships in Asia of 2004 (hereinafter referred to as the Agreement of 2004) and the Code of Conduct on the Suppression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and in the Gulf of Aden of January 29, 2009. (further – the Djibouti Code of Conduct), the goals and areas of application of which are similar. Although it should be noted that among the international legal acts related to the issue of countering piracy are acts of organizations such as the European Union, the Association of Southeast Asian Nations, as well as other regional organizations.

Initially, the Agreement of 2004, which is the first regional agreement aimed at countering piracy and armed robbery against Asian ships, included 16 Asian States. Over time, not only the number of States that have joined this agreement has changed (currently 21 States are parties to it), but also its geographical representation has expanded, as states not only from the Asian region have joined it, but also five states from the European region, including the United Kingdom, the Netherlands, Germany, Norway, Denmark, as well as the USA and Australia.

The agreement of 2004 also provided for:

- extradition of criminals who have committed an act of piracy;

- building the capacity of States to combat piracy at sea;

- planning of joint arrangements;

- creation of an information exchange center.

The Information Exchange Center on Incidents of Piracy and Maritime Robbery was formed in Singapore in 2006. Its work involves the round-the-clock exchange of information between countries in order to prevent acts of piracy, assistance to the work of law enforcement agencies of states, reporting on acts of piracy. When assessing acts of piracy and robbery at sea, the Information Exchange Center is guided by two characteristics: the level of violence and economic costs.

The Djibouti Code of Conduct has been adopted by 20 States. It involves the cooperation of States through the application of various measures, some of which need to be highlighted in order to understand how cooperation is carried out.

The first measure is related to the need to change the national legislation of the participating States in terms of equating piracy to the category of armed robbery. At the same time, unlike the 2004 Agreement, the Djibouti Code does not provide for the extradition of pirates to another State.

The second is the conduct of joint maritime operations of States between States located both within the region and with the involvement of States located outside it, but have joined the Code. An interesting fact is that during the implementation of these operations, officers of another state may be on the ships of one state.

The third measure is related to the creation of an information exchange center. To date, three information exchange centers have been established: the Regional Maritime Information Center in Sanaa (Yemen), the Regional Maritime Rescue Coordination Center in Mumbai (Kenya), and the Rescue Coordination Sub-Center in Dar es Salaam (Tanzania).

Taking into account the urgent need to counter piracy in the most insecure regions of the world, the instrument of the regional level of regulation of the problem of piracy contributes to the effective fight against this phenomenon and acts as a reasonable measure. Subject to the expression of intentions and actions for the comprehensive interaction of participants in regional agreements on combating piracy, a large minimization of acts of maritime piracy is possible. At the same time, as an expression of the effectiveness of the fight, the activities of a regional judicial body that carries out the consideration and resolution of cases related to maritime piracy can act. In this connection, there is a need to create regional courts, the order of their formation and activities.

Conclusion

The historical process of the emergence, formation and development of legal norms aimed at combating piracy consists of four periods. However, it was in the second half of the XX century that the system of international legal regulation of countering maritime piracy began to take shape.

Currently, in international law there is a system of international legal regulation of countering piracy, consisting of two levels of regulation: universal and regional. The universal level is represented by the following international legal acts: the Convention on the High Seas of April 29, 1958, the UN Convention on the Law of the Sea of December 10, 1982, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of March 10, 1988, as well as its Protocol of October 14, 2005., The UN Convention against Transnational Organized Crime, adopted by the UN General Assembly Resolution 55/25 of November 15, 2000, as well as resolutions of the UN General Assembly and the IMO Assembly related to countering maritime piracy. At the same time, it should be noted that the difference in approaches to countering piracy form a request for the need for the international community to adopt a specialized international legal act reflecting a unified approach in understanding the term "piracy", regulating in detail the mechanisms that can be used by the state to combat it, as well as coordinating the actions of States to a greater extent.

The regional level of counteraction began to form in 2000 . Examples of this level of regulation are the Agreement on Regional Cooperation in Combating Piracy and Armed Robbery against Ships in Asia of 2004 and the Code of Conduct on the Suppression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and in the Gulf of Aden of January 29, 2009. However, there is a need to create regional judicial bodies, the main function of which is which should be reduced to the consideration and resolution of cases related to maritime piracy.

At the same time, as an expression of the effectiveness of the fight, the activities of a regional judicial body that carries out the consideration and resolution of cases related to maritime piracy can act. In this connection, there is a need to create regional courts, determine the order of their formation and activities.