CMI tackles Blackbeard

Frank L Wiswall Jr, vice-president of Comité Maritime International, calls for modern and effective national legislation in the fight against piracy and maritime violence

THE word 'pirate' conjures up many images. Errol Flynn or Douglas Fairbanks swinging down from the rigging or perhaps, for the historically minded, Blackbeard or Jean Lafitte. But for those who work at the ICC's International Maritime Bureau outside London or its Kuala Lumpur Piracy Reporting Centre, a very different and nasty image comes to mind.

In the words of Suzanne Williams, detective-superintendent of Scotland Yard, "I have dealt all too often with murder on board ship and…..these murders….have all been committed during piratical attacks. I have spoken to many seaman; some have been so traumatised by pirates that they have never returned to the sea; some have become physically disabled in the course of attacks and left with no financial means of support for themselves or their families. I have spoken to the widows of sea captains; I understand, but cannot answer, their perception of a total lack of retribution and recall of the pirates to justice."

The pirate of 2002 is, in common with his criminal ancestors, a conscienceless thug. What he doesn't have in common is his employer. Instead of being a rogue ex-naval officer or merchant captain, today's 'pirate king' is usually an organised crime boss or corrupt government official of a convenient coastal state. Increasingly, piracy is no longer a small business crime of opportunity but a fully capitalised, well-equipped and skilfully planned and orchestrated operation in which the cargo and/or the ship's stores and equipment is the objective. The vessel is simply a means of delivery to a pre-arranged buyer, and its officers and crew are little more than a hindrance to a hijacking operation and are, therefore, completely expendable.

It is also commonplace for pirates today to be better armed and to possess faster and better-equipped vessels than the naval or coastguard forces of the states whose waters they operate, unless, as in a number of cases in recent years, the pirates are themselves members of those forces. It is possible to conclude from the statistics that the absolute number of attacks is in decline but even if this should continue as a trend there is also evidence that individual attacks are becoming more vicious. There is, however, a fundamental problem with the statistics as it is widely acknowledged that they underemphasise the problem as so many shipowners fail to report unsuccessful or minor attacks out of fear of increased insurance premiums.

If an attack has resulted in the armed robbery of the ship's safe and the crew's personal possessions, but no crew members have been killed or hospitalised, the cold calculation is that it is cheaper to compensate the crew and write off the loss of the ship's cash than to file a report of the incident, much less make a claim, and risk the increase in premium.

Maritime lawyers are taught that piracy is, in international law, a universal crime that every state has a duty to punish as harshly as its law allows. The reality is that most customary international law requires the attack to be mounted from one ship against another, and current conventional international law applies only to those acts of piracy (i) against another ship, (ii) committed on the high seas or outside national jurisdiction. Therefore, those who have secreted or disguised themselves aboard the target vessel arguably cannot be called pirates.

As to piracy in national law, some states have legislated either a defined municipal crime of piracy or an extension of jurisdiction to make an act of piracy, punishable under international law, a municipal crime if committed in waters under national jurisdiction. But there is not the slightest degree of uniformity, and almost no degree of similarity, in such legislation.

Conventional international law achieved a significant expansion of jurisdiction over acts of piracy and maritime violence with the International Maritime Organisation's 1988 Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation. Although the convention and its protocol were intended to combat terrorism, they are equally applicable to acts motivated by greed as to those motivated by politics or religion. There are, however, two problems:

(1) the relatively small number of states parties, and
(2) a small but potentially troublesome ambiguity - the Rome Convention specifically does not apply to "a ship which has been withdrawn from navigation or laid up".
The convention then fails to define exactly what constitutes withdrawal from navigation or lay-up. It has been suggested that the Rome Convention might be held not to apply to acts otherwise criminalised by the convention but directed, e.g., against an anchored vessel without employment but with crew on board.

The fundamental problem with piracy is that the overwhelming majority of incidents occur in waters under national jurisdiction, and all too frequently occur - or the offenders are apprehended - in states whose municipal law is inadequate to enable prosecution. One of the reasons for this is the common failure of governments to enact the necessary legislation to give specific and full implementation to the conventions they have ratified or acceded to. The Rome Convention, for example, is by its terms equally applicable in waters under national jurisdiction as on the high seas, but it cannot apply at all if the state party is constitutionally required to give effect to the convention by national legislation but has not yet done so.

Another reason may be that the state party is a former possession or territory which has inherited provisions of colonial law concerning piracy that are wholly inadequate to deal with today's criminal reality. To their credit, a few states, such as Australia, Sri Lanka and New Zealand, have recognised the difficulty and proposed or enacted modern legislation. Indeed, New Zealand has the most comprehensive and effective national law on piracy and maritime violence of any state, while the laws of the UK and US are amongst the most backward and least effective.

The law of India is largely inherited from the UK, and in the notorious recent case of the Alondra Rainbow the pirate crew were unable to be prosecuted under its provisions. In the recent killing of Sir Peter Blake on board his anchored yacht in inland waters, Brazil was able to charge the pirates with murder but could not charge them under the provisions of its domestic law regarding piracy. These, and a number of other cases, have illustrated the need in most countries for modern and effective national legislation.

The sole object of the CMI is "to contribute by all appropriate means and activities to the unification of maritime law in all its aspects." It was in recognition of the need not only for modern legislation, but uniformity of national law regarding acts of piracy and maritime violence, that led the CMI Executive Council in 1997 to authorise, for the first time in its history, work on a model national law. It also authorised the work to be carried out at the CMI's expense and under its aegis by a working group of representatives of independent international organisations, both non-governmental and inter-governmental. This Joint International Working Group met for four sessions between 1998 and 2000, made a report to and held a symposium at CMI's 2001 Singapore International Conference, and concluded its work at a meeting in London last December.

The result of this, the Model National Law on Acts of Piracy and Maritime Violence, was approved by the CMI Executive Council and distributed in early 2002 to the CMI's 56 national member associations. Each association has been requested to make a draft of proposed legislation based upon the Model National Law, taking into account the present national legislation of its state, to present the result to its government and to lobby for enactment.

While the Model National Law is designed to stand alone as an effective tool to combat piracy, it was also drafted to serve as implementing legislation for the Rome Convention and the relevant articles of UNCLOS. It does, however, extend the scope of national jurisdiction beyond either of those instruments, and applies to an act of piracy or maritime violence committed on board or against any ship registered in or entitled to fly the flag of the enacting state, wherever such ship is located.

The crime of 'maritime violence', which covers a number of defined acts, is also committed "when any person or persons, for any unlawful purpose, intentionally or recklessly endangers or damages the marine environment, or the coastline, maritime installations or facilities, or related interests" of the enacting state. The geographical scope of the Model National Law extends to the territory, internal waters or territorial sea of the enacting state, and, to the degree that the exercise of national jurisdiction is permitted by the relevant conventions, within the exclusive economic zone, continental shelf, contiguous zone or archepelagic waters of the enacting state and on the high seas or in any place outside the jurisdiction of any state.

In addition to piracy, the crime defined by the Model National Law is that of 'maritime violence' rather than the crime of 'armed robbery', which is favoured by both ICC-IMB and IMO. This anticipates the problem that may arise in trying to prosecute a crime of armed robbery when no robbery has, in fact, occurred. It is of little importance to the victim of a violent crime whether the motive of the attacker is one of robbery or of terrorism. It is, however, of great importance to the victim if the offender walks free because the court cannot, or will not, stretch armed robbery to include an act of violence without robbery or, conceivably, committed by superior physical strength without arms.

The Model National Law is designed to combat maritime terrorism as well as piracy and other acts of violence. Since the events of last September, there is a growing awareness that while terrorism is largely a cross-border phenomenon, there is little uniformity of national legislation with regard to definition of the crimes, let alone jurisdiction over or prosecution or extradition of terrorists. It is difficult to think of a better argument in favour of expeditious consideration of the Model National Law.

Adoption of the Model National Law as a package will be impossible for some states whose legislation must, for internal reasons, be enacted in a number of different codes or titles. Likewise, a state may not be able to accept all of the provisions of the Model National Law. For this reason, the preface notes that "content rather than form is the Working Group's concern. While the Working Group feels that its suggestions represent a balanced and coherent whole, states are encouraged to consider adapting any of the ideas herein, as even incremental change is likely to benefit effective legal coverage of this important topic."

Effective solutions to the scourge of modern piracy and maritime violence are certain to be incremental in nature, resulting from national as well as international effort. Meanwhile, an appreciation of the seriousness of the problem, and its inevitable complication in the war against terrorism, is vital. Every maritime advocate has a role to play in urging his or her government to effective action.