Pirates: And What You Can Do About Them

This is a summary of the research I conducted on maritime piracy for my dissertation, you can read the full article on SSRN. It's a bit boring, though.

Piracy is a big problem. It is unquestionably damaging to the global economy, with estimated annual costs ranging from $7-12 billion,Oceans Beyond Piracy, 'The Economic Cost of Piracy' http://www.ics-shipping.org/docs/default-source/Piracy-Docs/the-economic-cost-of-piracy.pdf accessed 7 April 2019. to upwards of $24 billion.Sami Bensassi and Inmaculada Martínez-Zarzoso, 'How costly is modern maritime piracy to the international community?' (2012) 20(5) Review of International Economics 869, 870. Beyond economics, there is the human cost to consider. Hostage taking is a key concern, and one which carries the very real risk of assault or death.Michael H Passman, 'Protections Afforded to Captured Pirates Under the Law of War and International Law' (2008) 33 TulMarLJ 1, 5.

1 The (Legal) Problems With Pirates

Piracy is in the interesting position of being a transnational crimeAs opposed to an international crime. As such, pirates can be tried anywhere regardless of where they are from, where the crime takes place, or the nationality of the victims. The problem is that piracy lacks a uniform definition, with each state having discretion over their own definition, or the discretion to lack a definition entirely.For instance, piracy was not a crime in Japan until 2009. See Taro Aso, 'Statement by Prime Minister Taro Aso on the Enactment of the Law on the Penalization of Acts of Piracy and Measures against Acts of Piracy' (19 June 2009) http://japan.kantei.go.jp/asospeech/2009/06/19danwa_e.html accessed 5 April 2019 and Moritaka Hayashi, 'Current Legal Developments Japan' (2010) 25(1) The International Journal of Marine and Coastal Law 143. China still does not have a law. See Robert C Beckman and J Ashley Roach, Piracy and international maritime crimes in ASEAN: Prospects for cooperation (Edward Elgar Publishing 2012).

Two major international treaties provide guidance on piracy: the United Nations Convention on the Law of the SeaUnited Nations Convention on the Law of the Sea (opened for signature 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3. (UNCLOS) and the Convention on the High Seas.Convention on the High Seas (opened for signature 29 April 1958, entered into force 30 September 1962) 450 UNTS 11. Both serve as a codification of customary law that concerns international waters. The Convention on the High Seas can be seen as somewhat of a proto-UNCLOS and has arguably become obsolete following UNCLOS' ratification. Given that almost every nation is a party to at least one of the treaties, and because piracy law is uncontroversial, it is not unreasonable to suggest that the piracy provisions in UNCLOS are customary international laws that bind all nations.Jack L Goldsmith and Eric A Posner, 'A theory of customary international law' (1999) 66 U. Chi. L. Rev. 1113, 1118-1119.

Unfortunately, neither treaty was made for the express purpose of creating piracy law; rather as piracy was (and still is) an inevitability on the high seas, it made sense to provide some guidance in the instruments that govern it. This is a major hindrance in the prevention of piracy.

UNCLOS requires states 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".UNCLOS (n 6) Article 100. More helpfully, Article 101 defines piracy as:

"(a) any illegal acts of violence or 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:

(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)."ibid Article 101.

More detail on what these provisions mean can be found in the full article. In less words:

2 Why You Should Be a Pirate

Most contemporary piratesBy that I mean people whose occupation is 'pirate'. The remainder of this article will focus these pirates. did not join the profession out of a love for being at sea, but rather because it makes economic sense. Piracy is a "highly attractive criminal activity ... perceived as a virtually foolproof way of getting rich".Report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia, UNSC (24 January 2011) S/2011/30, 13. That is correct. There is a lot of money in piracy, and that money goes exponentially further in the nations in which pirates reside.For instance, the GDP (PPP) per capita of Somalia is about $626, see Central Intelligence Agency, 'Africa :: Somalia' (4 April 2019) https://www.cia.gov/-library/publications/the-world-factbook/geos/so.html accessed 8 April 2019.

The average ransom payment is around $2.3 million,The Economist, 'More sophisticated than you thought' (31 October 2013) https://www.economist.com/middle-east-and-africa/2013/10/31/more-sophisticated-than-you-thought accessed 4 May 2019. and while only a fraction goes to the pirates, it is more than enough compensation to justify the necessary work and any consequences that may come of it. The Economist notes that "[o]rdinary pirates usually get $30,000-75,000 each, with a bonus of up to $10,000 for the first man to board a ship and for those bringing their own weapon or ladder".ibid. More surprisingly, "mistreating the crew ... often carries a $5000 fine and dismissal".ibid.

Furthermore, there is a kind of pirate 'stock exchange' "where ordinary Somalis can buy shares of a piracy operational account ... in return for payment of a dividend when ransoms are paid".James Kraska, 'Freakonomics of maritime piracy' (2010) 16(2) The Brown Journal of World Affairs 109, 115-116.

Ransom situations have lead to, what can only be described as, surreal instances where pirates have paid hostages "for good cooperation",'Record ransom paid to Somali pirates' (19 January 2010) https://p.dw.com/p/LZlGaccessed 4 May 2019. and "begged Western naval forces for assistance to safeguard the payoff "Kraska (n 24) 114. when a rival gang approached. A pirate told Reuters, "We have risked our lives in hijacking the ship. The [rival gang] cannot deprive us of our rights".Mohamed Ahmed and Abdi Guled, 'Ransom paid for oil tanker, Somalia pirates feud' (17 January 2010) https://www.reuters.com/article/us-somalia-piracy/ransom-paid-for-oil-tanker-somalia-pirates-feud-idUSTRE60G1J420100117 accessed 4 May 2019.

These insights paint the picture that, for many, piracy is more a line of work than a crime. It has an element of professionalism. It is undoubtedly an important facet of Somalia's economy.The Report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia (n 19) 13 notes that Somalia has become "increasingly dependant on piracy".

2.1 People Just Pay Ransoms

Perhaps the single largest contributory factor to piracy is that shipping companies just pay the ransoms. This only serves to enable pirates.Joseph M Isanga, 'Countering Persistent Contemporary Sea Piracy: Expanding Jurisdictional Regimes' (2009) 59 American University Law Review 1267, 1270. That is not to say that if ransoms stopped being paid piracy would end; as pirates could just employ similar tactics, and steal cargo instead of taking hostages, but it would curb its growth.If only because it is much more cumbersome to trade in stolen cargo than it is cash.

It is generally in a company's best interest to pay a ransom. More so if they have kidnap and ransom insurance. Paying a ransom ensures that the crew, cargo, and vessel is safe, and generally works out cheaper than losing them.Vivienne Walt, 'Why the Somali Pirates Keep Getting Their Ransoms' (20 April 2009) http://content.time.com/time/world/article/0,8599,1892366,00.htmlaccessed 4 May 2019.

2.2 Pirates Rarely Face Trial

If, as a pirate, you find yourself captured, you may not need to worry. Depending on who you are captured by and where you are sent, there is a good chance you will never end up in court.

Article 110 of UNCLOS allows naval ships to board a suspected pirate ship.UNCLOS (n 6) Article 110. That ship may be seized under Article 105 of UNCLOS.ibid Article 105. It further states: "[t]he courts of the State which carried out the seizure [of a pirate ship] may decide upon the penalties to be imposed".ibid Article 105. The effect of this is less than desirable. As noted by Isanga, since "the responsibility to prosecute belongs to every state, the practical effect is that no state seems to accept it, apart from those states that have immediate national interests".Isanga (n 29) 1271. This is not helped by states that are unable to prosecute because of their own laws. Denmark, for example, only has criminal jurisdiction if an incident involves a Danish ship or Danish citizens.Oliver Hawkins, 'What to do with a captured pirate' (10 March 2009) http://news.bbc.co.uk/1/hi/7932205.stmaccessed 4 May 2019.

Despite what may be interpreted as a requirement to prosecute in the capturing state's jurisdiction, it is "overwhelming state practice"Tamsin Phillipa Paige, 'The Impact and Effectiveness of UNCLOS on Counter-piracy Operations' (2016) 22(1) JC&SL; 97, 101. to send captured pirates to a third state for trial.A third state being a country unrelated to the defendants, victims, or capturing state. This practice sees support from the UN Security Council.Paige (n 37) 101, citing UNSC Res 1897 (30 November 2009) UN Doc S/RES/1897, Preamble, UNSC Res 1918 (27 April 2010) UN Doc S/RES/1918, Preamble, UNSC Res 1950 (30 November 2009) UN Doc S/RES/1950, Preamble, Res 1976 (n 17) Para 21, UNSC Res 2015 (24 October 2011) UN Doc S/RES/2018, Preamble and para 6, UNSC Res 2020 (22 November 2011) UN Doc S/RES/2020, Preamble and para 5 The most common third states are Kenya and the Seychelles.Paige (n 37) 102.

This practice is, in no uncertain terms, a horribly ineffective method of curbing piracy, if only because some states simply lack the staff to conduct prosecutions.ibid 107-108. Paige gives the example of two cases:

"In the Jelbut 40 case, 25 suspects were captured, however, only eight stood trial ... [o]f the eight who stood trial, one of them had been released without charge during a piracy capture six weeks before this incident ... [s]imilarly, in the Jelbut 48 case ... 16 suspects were captured, 12 ... were released without charge as there was no venue with the capacity to prosecute them".ibid 108.

These statistics are, regrettably, the norm.Nick Hopkins, 'Outgunned Somali pirates can hardly believe their luck' (8 May 2012) https://www.theguardian.com/world/2012/may/08/outgunned-somali-pirates-luckaccessed 5 May 2019.

2.3 Pirates Benefit From Procedural Inadequacies

Getting a pirate to face trial is only the first step. It's another matter entirely to secure a guilty verdict. Achieving a guilty verdict becomes more difficult when there are procedural inadequacies.

There is a significant lack of forensic evidence in piracy cases, and it is suggested that "even rudimentary forensic evidence ... might lead to a higher rate of prosecution".Paige (n 37) 109. Currently there is a "lack of physical capacity on the part of patrolling warships for relevant crewmembers to engage in any form of forensic evidence gathering, including the lifting of fingerprints from weapons".ibid 109. However, evidence packages have seemingly improved significantly over time.ibid 109.

There are also difficulties with producing witness testimony at trial. This includes transporting them and accounting for language barriers.ibid 111-113. In 2013 the Seychelles passed a law that allows for testimonies by video link to alleviate these issues.Criminal Procedure Code (Amendment) Act 2013 (The Republic of the Seychelles), s 2.

Pirates Can Just Bribe the Judge There are, put bluntly, concerns of corruption in the Kenyan judiciary. In an (admittedly dated) report, "five out of nine Court of Appeal justices, 18 out of 36 High Court justices and 82 out of 254 magistrates were implicated as corrupt".International Commission of Jurists, 'Outgunned Somali pirates can hardly believe their luck' (April 2005) https://www.icj.org/wp-content/uploads/2012/04/kenya_judicial_independence_report_2005.pdf accessed 5 May 2019, 3. Isanga suggests this corruption is "persistent, endemic, and quite intractable".Isanga (n 29) 1280. Recent reports would suggest that this problem is ongoing.Walter Menya, 'Damning petition to JSC details bribery claims against top judges' (10 March 2019) https://www.nation.co.ke/news/Damning-petition--details-bribery-claims-against-top-judges/1056-5017332-10vbfowz/index.html accessed 5 May 2019.

Pirates can, and almost certainly do, pay judges to acquit them. This only serves to make the capturing and legal process a tremendous waste of time and money.

Pirates Just Leave Prison If, as a pirate, you have been unlucky enough to have been captured, faced trial against a good prosecutor, and been unable to bribe your judge, there is one last option to avoid staying in prison – leaving it.

This ultimately depends where a pirate is staying. Prisons in the Seychelles have a "20% ... prison population [of] suspected or convicted Somali pirates, and the Seychellois government will only take more suspects if they can repatriate an equal number of convicted pirates to Somalia".Paige (n 37) 104 (internal citations omitted).

If a pirate is fortunate enough to find themselves sent (or repatriated) to a prison in Puntland,Puntland is an (self-declared) autonomous state in north-east Somalia. Incidentally, a lot of pirates live there. they stand a good chance of either walking out, or having someone pay a bribe for their release.Hawkins (n 36).

3 What You Can Do About Pirates

There are two ways of addressing piracy. The first is mitigating the effects of it, the second is a more direct approach of curtailing it.

3.1 Mitigating the Effects of Piracy

3.1.1 Avoiding Pirates

The simplest way to mitigate the effects of piracy is to avoid areas where pirates are known to attack. This may seem obvious, but there is a reason why not everyone does this.

Piracy near Somalia, for example, is common because (for certain routes) it is most optimal to go through the Suez Canal, and passing by Somalia is a necessary part of that. An alternative route that goes around Africa is a much longer distance and, therefore, more costly due to increased fuel consumption. The total cost of re-routing is estimated at $2.4-3 billion a year.Oceans Beyond Piracy (n 1) 2.

An interesting development is the increased prominence of the Northern Sea Route.The Northern Sea Route is a route that runs along Russia's Arctic coast. It is free of ice for two months a year. If the trend of melting ice caps continues, it is likely they will become a much more viable route. While its use is limited to only a few months of the year, it is suggested that transit times can be up to 10 days faster, albeit with a smaller profit margin, than a route going through the Suez Canal.Yiru Zhang, Qiang Meng, and Szu Hui Ng, 'Shipping efficiency comparison between Northern Sea Route and the conventional Asia-Europe shipping route via Suez Canal' (2016) 57 Journal of Transport Geography 241, 248. There is, notably, a distinct lack of pirates when using the Northern Sea Route. Blunden suggests that "the development of a new main sea highway linking Asia and Europe would greatly enhance the security of international shipping".Margaret Blunden, 'Geopolitics and the northern sea route' (2012) 88(1) International affairs 115, 119. Should the Northern Sea Route become more viable, it is highly likely that incidents of piracy would drop significantly.

3.1.2 Insuring Against Pirates

Among the more obvious ways to mitigate the cost of piracy is to insure against it. As mentioned earlier, kidnap and ransom insurance is particularly handy, providing reimbursement for ransoms paid, and often a crisis consultant,See, for example, AIG, 'Kidnap and Ransom Insurance' https://www.aig.co.uk/business/products-and-services/kidnap-and-ransom#pr_cr_inpagetitle_0accessed 6 May 2019 and Hiscox, 'Kidnap and Ransom Insurance' https://www.hiscox.com/brokers/kidnap-ransom accessed 6 May 2019. though its use is somewhat rare and "considered a luxury".Walt (n 31).

Generally speaking, loss from piracy will be covered by the perils clause in the hull policy, unless there is a 'free of capture and seizure' clause, which would require a separate war risks insurance policy.Christoher M Douse, 'Combating Risk on the High Sea: An Analysis of the Effects of Modern Piratical Acts on the Marine Insurance Industry' (2010) 35 TulMarLJ 267, 279.

3.1.3 Securing Against Pirates

A common way to prevent attacks from pirates is to hire private security. Several maritime organisations have published their own guidelines on the use of armed security.Notably, the Chambers of Shipping of America, the International Maritime Bureau, and the International Maritime Organisation. See Jennifer S Martin, 'Fighting Piracy With Private Security Measures: When Contract Law Should Tell Parties to Walk the Plank' (2009) 59 American University Law Review 1363, 1367. The International Maritime Organization's guideInternational Maritime Organization, 'Guidance to shipowners and ship operators, shipmasters and crews on preventing and suppressing acts of piracy and armed robbery against ships' (23 June 2009) http://www.imo.org/en/OurWork/Security/PiracyArmedRobbery/Guidance/Documents/MSC.1-Circ.1334.pdf accessed 6 May 2019. is particularly helpful, as it outlines which practices are seen as acceptable.

Non-lethal methods "such as netting, wire, electric fencing, [water hoses,] and long-range acoustic devices may be appropriate preventive measures to deter attackers and delay boarding".ibid para 56-57. The use of lethal firearms is discouraged, in part because it may conflict with national laws if a ship enters territorial waters, and because "carrying firearms may pose an even greater danger if the ship is carrying flammable cargo or similar types of dangerous goods".ibid para 59. It is discouraged for sea-farers to be armed without additional training, as they are just civilians.ibid para 60.

Ultimately, the guideline suggests that the contracting of private security is a matter for the flag stateThe flag state of a vessel determines which laws govern it. of a vessel to decide.International Maritime Organization, 'Guidance to shipowners and ship operators, shipmasters and crews on preventing and suppressing acts of piracy and armed robbery against ships' (n 63) para 63.

3.1.4 Taking Pirates To (US District) Court

Perhaps the most 'out-there' (and least likely to work) method of mitigating loss from piracy is suing pirates in the United States. The Alien Tort Statute (ATS) states:

"The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States".28 USC 1350.

Because piracy is a violation of the law of nations, through the ATS, district courts have original jurisdiction over civil claims that relate to piracy. Such a law allowed the Japanese plaintiffs in Sea ShepherdInstitute of Cetacean Research and ors v Sea Shepherd Conservation Society and Watson (n 11). to "sue for injunctive and declaratory relief ".ibid 943.

The ATS' effectiveness has been diminished by two key Supreme Court decisionsThe history of, and rationale behind, ATS decisions is far, far beyond the remit of this dissertation.Sosa v Alvarez-MachainSosa v Alvarez-Machain 542 US 692 (2004). and Kiobel v Royal Dutch PetroleumKiobel v Royal Dutch Petroleum Co 133 S Ct 1659 (2004). – but a clear exception for piracy was carved out by both judgments.See Sosa v Alvarez-Machain (n 73) 724, Kiobel v Royal Dutch Petroleum Co (n 74) 1667.

With that said, the chances of a pirate actually appearing in a civil court, let alone paying damages or respecting an injunction, are almost zero. By one account, damages as a result of ATS claims have been paid in 27 of 44 cases.Susan Simpson, 'Alien Tort Statute Cases Resulting in Plaintiff Victories' (11 November 2009) https://viewfromll2.com/2009/11/11/alien-tort-statute-cases-resulting-in-plaintiff-victories/ accessed 6 May 2019.

This option should only really be considered if the pirates have some presence in the United States, as was the case in Sea Shepherd.Institute of Cetacean Research and ors v Sea Shepherd Conservation Society and Watson (n 11) 943.

3.2 Solving Piracy

The above solutions do not address what can be done to solve the problem of piracy. People become pirates because it pays unbelievably well and rarely carries any consequences. For piracy to end, it has to no longer be worth doing.

A major problem with the prevention of piracy is that, before any other potential issue, very few pirates face trial.Paige (n 37) 108. This is, in part, due to the fact that they will almost certainly be sent to either Kenya or the Seychelles which both lack the capacity to prosecute a large number of pirates.See ibid 101, 102, and Hopkins (n 43). While obligating states not to transfer to third states after capture may seem like a good solution, doing so would probably lead to a reduction of overall piracy convictions, as a result of most countries not wanting to be burdened by an obligation to prosecute pirates.Isanga (n 29) 1271. What may work better is a system that discourages third state transfers but also penalises the release of pirates, though such a system may only serve to discourage captures and end up being detrimental to anti-piracy efforts.

3.2.1 Pirate Court

Another, more drastic solution would be an International Pirate Court. While it may be seen as more appropriate to expand the jurisdiction of the International Criminal Court,Yvonne M Dutton, 'Bringing Pirates to Justice: A case for including piracy within the jurisdiction of the international criminal court' (2010) 11 Chi. J. Int'l L. 197. Fry notes that "adding piracy to genocide, crimes against humanity, war crimes and the crime of aggression might dilute the International Criminal Court's focus on the 'most serious crimes'".James D Fry, 'Towards an International Piracy Tribunal: Curing the Legal Limbo of Captured Pirates' (2014) 22(3) African Journal of International and Comparative Law 341, 341. Piracy is bad, but it's not that bad. Further, such an expansion may be ineffective due to the large number of nations not being parties to the Rome Statute.ibid 341.

There is definitely a case to be made for a pirate court. Piracy cases are a tremendous strain on the few judiciaries that have agreed to take them on – Kenya, at one point, had a backlog of over 870,000 cases.Dutton (n 81) 221. This would not only provide relief to those countries but also eliminate the need for third state transfers, as a pirate could be sent directly to the pirate court.

Indeed, "[t]he State of Qatar has written to the Secretary-General to indicate its readiness to host an anti-piracy court and has requested that the United Nations follow up with a view to determining the next steps".UNSC (20 January 2012) UN Doc S/2012/50, 2. However, this "has yet to receive detailed consideration despite the potential it has to implement a court with little cost to the international community".Fry (n 82) 364.

If nothing else, an International pirate Court would bring uniformity to the crime of piracy,ibid 366. something I view as necessary, given its definition, sentence, and evidentiary standard varies between countries, which ultimately defeats the purpose of the provisions contained in UNCLOS.

4 In Conclusion

The crime of piracy ultimately has a differing definition depending on where it is being tried. Generally, UNCLOS is referred to when trying to define piracy, but it, nonetheless, has diverging interpretations.

The typical contemporary pirate has likely joined the profession because it pays well and carries a very low risk of repercussions. This is, in part, due to the payment of ransoms being in a company's best interest, pirates rarely facing trial, a less than desirable justice system, and insecure prisons.

Potential 'remedies' for piracy include avoiding pirates altogether, insuring against them, employing security, or just suing them (which is unlikely to work).

The international community, while active in anti-piracy measures, seems largely disinterested in the prosecution of pirates, or at least being responsible for doing it themselves. Instead, opting to send (relatively few) captured pirates to third states that have, graciously, offered to prosecute pirates for them. These nations, however, simply do not have the resources to take on the herculean task of trying such a high volume of cases.

The above suggestions, I hope, would improve the enforcement of UNCLOS, thereby making piracy less desirable, causing it to be committed less often. Given that Qatar's suggestion of a pirate court was not followed up, I find it highly unlikely that such a court will see an implementation in the near future.

When asked "What can you do about pirates?" I can only respond with a begrudged "not much". At least for the time being.