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Piracy has been a scourge of the seas for millennia, but its definition has become more complex with the evolution of international law. The current primary reference comes from the United Nations Convention on the Law of the Sea, Article 101:[1] " Piracy consists of [inciting, performing, or facilitating]:

  • 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:
    • on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
    • against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
  • 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;

Actions against aircraft may be termed aircraft hijacking; U.S. and other national law defines specific crimes of air piracy.[2]

Imperial Rome defined pirates simply, in the words of Marcus Tullius Cicero, as hostis humani generis, "enemies of the human race." That designation was an early example of universal jurisdiction; it was accepted that pirates were criminals that had put themselves beyond the law of nations, the only existing source of law. At the time, there was no distinction between territorial and international waters, and no source of international law. The idea of hostis humani generis grew to include other categories, such as slavery and genocide, but jurisdictional issues became more complex. There is considerable legal thought about bringing other offenses, such as transnational terrorism, under this doctrine, but that further complicates jurisdiction.[3]

After the Roman Empire fell, pirates remained a real problem. The Viking raiders both operated as sea pirates, but also raided land.

Today, piracy at sea is a very real problem, but counter-piracy enforcement is complex.

Reprisal and Marque

While the usual phrasing of the framework for privateering is "letter of marque and reprisal", the idea of reprisal, or authorizing national merchant vessels to be armed against pirates, preceded the idea of marque, or using nationally authorized private warships used as part of foreign policy. Sir Francis Drake, for example, was a British privateer authorized by Elizabeth I, who still maintained diplomatic relations with Spain while Drake and others ravaged Spanish shipping and ports. In an early example of plausible deniability, she said of Drake, if he "shall at any time or times hereafter robbe or spoile by sea or by lance, or do any acte of unjust or unlawful hostilities [he shall] make full restitution, and satisfaction of all such injuries done." Of course, she subsequently knighted him. [3]

Privateering eliminated

In an annex to the Declaration of Paris (1856), which ended the Crimean War, a number of nations agreed to stop issuing letters of marque and reprisal. By that time, standing national navies existed and were more controllable tools of national policy.

Modern jurisdictional issues

Article 101 of UNCLOS states "On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith." It does not, however, make it clear what authority States have against pirates operating within the territorial waters of another State, or on pirate bases ashore.

Territorial waters

International waters

Air piracy

Current piracy and counter-piracy

Only the United Nations Security Council would have overall jurisdiction. [4]

Straits of Malacca

A major concern of the Association of Southeast Asian Nations (ASEAN), active enforcement by Indonesia, Malaysia, and Singapore, assisted by India, has reduced piracy.

Somalian waters

See also: Somalia

In April 2009, one of the most active areas of piracy includes territorial waters of Somalia, as well as international waters in the area. Most of the pirates appear to be based in Somalia, widely accepted as the archetype of a failed state. Somalia’s interim president, Sheikh Sharif Sheikh Ahmed, a moderate Islamist called for international assistance, but said the problem was “is not on the sea, it’s on the land...only the Somali government can deal with those who are on the land.” [5] China, Libya, South Africa and Vietnam emphasized that their consent applied only to the Somali situation, and they considered UNCLOS still to be definitive.

The United Nations Security Council passed UNSC Resolution 1816 to allow member states to support counter-piracy operations. [6]

The resolution endorsed the European Union's Operation Atalanta, with military forces from France, Britain, Germany and Greece and Spain. Its duties were described as escorting; it is unclear to what extent the force will pursue pirates and attempt rescue.[7] French forces have recaptured at least two pirated vessels.

The U.S. Naval War College held a workshop on the area, led by an expert in international law, CDR James Kraska. [8]

Several international counter-piracy forces are operating in international waters, but not under common command. In addition to Atalanta, Task Force 151 includes warships from the U.S., Turkey, and Singapore; Denmark has been part because it declined to join the EU force but did not want to undermine NATO.

Russian, Chinese, and Indian ships have conducted counter-piracy operations; an Indian warship set one alleged pirate mother ship on fire, which later was said to be a Thai ship seized by pirates.

West Africa

Another area of modern piracy is in the waters off Nigeria.