Aditya Jha & Ritu Raj*
Introduction
Piracy has been one of the most critical concerns of maritime trade since the attacks of the Lukka people in the 14th century BC.[1] A glance at the statistics from the year 2008, 293 cases of maritime crimes were reported worldwide. Out of which 49 vessels were besieged[2], 889 crew members were taken as hostages by the pirates.[3] This data increased by two-folds in 2009, and in which Somalia has marked the most precarious hub for any naval activity.[4] This upsurge in such illicit maritime activities and crimes can be directly associated with the dearth of a proper international law related to maritime security. The significant detractors in this field like piracy, armed robbery and unlawful acts against the safety of maritime navigation are that these concepts are ambiguous and overlapping. The main reason behind this kind of obscurity is that different normative legislations govern these crimes. The main reason behind this kind of obscurity is that different normative legislations govern these crimes and that maritime law still remains to be a relatively untapped field of legal studies.
The line between conventional deterrent measures against the insecurities posed by other nation-States and maritime crimes is obscure. Hence it is very paramount to know what qualifies as such crimes. Maritime crimes are defined as criminal activities perpetrated at sea and are often directed at vessels or maritime structures, including the transportation of illicit substances or trafficking in persons by organized transnational criminal networks.[5]Drug trafficking, transnational organised crime, slave trade, illegal broadcasting, hijacking, armed robbery, maritime terrorism, and other similar offences are common. A shanghai of petrochemical boats, for example, as well as attacks on other oil and petroleum storage and transportation facilities, will be termed hijacking, which will fall within the jurisdiction of maritime crime.
Nebulousness in the Laws Governing Maritime Crimes
A plethora of acts and provisions have been stipulated to govern and keep a check over maritime crimes; nonetheless, maritime law remains a relatively untapped field of legal studies. The significant laws governing maritime crimes are the United Nations Convention for the Law of the Sea (UNCLOS), Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA), Nairobi protocol for the prevention, control and reduction of small arms and light weapons in the great lake’s region and the Horn of Africa (2004).
- In the Context Of UNCLOS
United Nations Convention for the Law of the Sea (UNCLOS) acts as a foundation stone and is the prime universal treaty governing the oceans. It encompasses a broad spectrum of issues, including maritime boundary delimitation, State jurisdictional authorities and obligations, dispute resolution, and marine scientific research. It also compels the States to take specific measures to tackle copious issues such as piracy and drug trafficking. The main motive of this convention is to forge a stronger bond of tranquillity, security, cooperation, cordial relation among different States in consonance with the principles of equal rights and justice. This convention also tries to facilitate “a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.”[6]Although it acts as the footing for maritime laws and interstate cooperation, it still has many shortcomings. The legislation includes jurisdictional allocation and dispute resolution. However, upon being interpreted solely without the assistance of any other convention, it fails to explicitly mention the provisions for extradition and mutual legal assistance unless generously interpreted to ensure maximum law enforcement within territorial waters. UNCLOS defines piracy as “any illegal acts of violence or detention, or any act of depredation” committed “for private ends” and “on the high seas” against “another ship or aircraft”, which is too restrictive and often criticized world platforms.[7] Article 31 of the Vienna Convention on the Law of Treaties (VCLT)[8], widely regarded as reflecting customary international law, requires treaty provisions to be interpreted “in good faith” and “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
- In the Context of the Sua Convention
The SUA convention mainly deals with specific sorts of threats to ships and navigation, and it institutes “extradite or prosecute” systems for offenders caught by ratifying States. The 2005 Protocols to the Convention went far ahead, criminalizing, among other things, the movement of terrorists and biological, chemical, and nuclear weapons. The 2005 agreements also improve inter-State collaboration and establish a comprehensive framework for boarding questionable boats.[9]
If we delve into the SUA convention, we can perceive that there is much ambivalence in the convention, such as the preamble indicating that this convention would handle unlawful activities, while the main body of the treaty only speaks about offences not the former. The SUA convention deliberates about piracy and armed robbery through the slant of unlawful acts against the safety of maritime navigation. However, this concept has not been appropriately clarified because the correlation between unlawful activity, piracy and armed robbery has not been established accordingly. Even though while this convention gives rise to two new terms, i.e., “unlawful activities” and “offence”, it does justice to none since these are often used interchangeably, and the term “offence” has a very narrow ambit. Plus, apart from having a restricted purview, the definition errs right in its core due to having a circulus in definiendo (a circular definition).
The linkage of the concept of safe navigation with the concept of safety also puts the convention in a dilemma because, in the context of maritime law, safety refers to “preventing or minimizing occurrence of accidents at sea that may be caused by substandard ships, unqualified crew, or operator error” and the definition also exempts unlawful activities such as maritime terrorism due to the paucity of practical measures.
Furthermore, various articles of the convention leave many operations to the discretion of the States. While article 5 of the convention talks about the fixation of exact penalties and article 7 talks about the effectiveness of later investigation and extradition, both of these predominantly depends upon the State’s power and adequacy in terms of national laws.
Interstate Cooperation and Mutual Legal Assistance
A mutual legal assistance treaty is a consensus between two or more nations to exchange information to enforce public or criminal laws. When a suspect resides in a foreign nation, a mutual legal assistance request is routinely used to question the suspect in a criminal case formally. The essential element of these treaties is that the contracting parties need to cooperate in submitting shreds of evidence, extradition request, and providing mutual legal assistance throughout the investigation and prosecution period. There are also certain exceptions related to the assistance in the prosecution process that the request for assistance may be denied if it contradicts that particular State’s national law.
- In the Context of Universal Aut Dedere Aut Judicare Treaties
These are widely accepted criminal law treaties that act as instruments for detailed and express provisions on interstate cooperation. It refers to governments’ legal obligation under public international law to prosecute people who commit severe international crimes when no other country has sought extradition. This treaty provides a clear definition of offences and mandates the State parties to criminalize those particular offences. There is also an obligation on the State parties to exercise their jurisdiction to provide proper extradition and mutual legal assistance procedures. Even though these treaties regulate the discretion of member State to a significant extent, they do provide leeway to these member States to refuse extradition and mutual legal assistance request on “substantial grounds”. Since these grounds cannot be ascertained, there lies a possibility that the onus of a transparent and impartial procedure is sacrificed.
- Concurrent Jurisdiction
There are many instances where only one State carries out the investigation procedure in the context of that particular unlawful act. In most cases, the State that is carrying out the part as mentioned above needs the support of other States during the criminal proceedings because these types of activity always involve two States. In this context, Article 12 of the SUA Convention creates an obligation on the State to assist in the investigation.[10] Furthermore, a custodial State Party may face conflicting demands from several other State Parties attempting to exercise jurisdiction over the matter. This is owing, as previously Stated, to the multiple grounds of jurisdiction recognized under general international law. Furthermore, the aut dedere autjudicare treaties expressly require the following States Parties to exercise jurisdiction over the case: the territorial State, the ship flying the State’s flag, and the State in which the aircraft is registered. Concurrent jurisdiction refers to criminal jurisdiction based only on the nature of the crime, regardless of where the crime was committed, the nationality of the suspected or convicted offenders, the victim’s nationality, or any other relationship to the State exercising such jurisdiction.
Concluding Remarks
The lack of strong political will and significant resources as well as legal framework often mark the improper execution of international laws. There lies a need for adequate and efficient national laws as pillars to support as well as ensure the proper effectiveness of these international instruments.
To tackle other problems, it is necessary to define and delimit the definitions of certain important terms. These range from piracy, to safety, to “substantial grounds”. This is because their generalized, ambiguous and wide ambit leaves a lot of wiggle room and interstices for the different nation States to exploit according to their own interests. The definition of “piracy” should be acts of illegal violence at sea over which universal jurisdiction should be exercised. The fundamental criterion for establishing whether actions are subject to universal jurisdiction (piracy) must not be the offender’s goal, the sort of boarding of a victim ship by criminals, or even the location of the crime. The competence of flag States or coastal states to properly exercise their territorial jurisdiction over unlawful violence at sea must be the fundamental criteria. If the flag State or coastal State, in particular, is unable to effectively exercise territorial jurisdiction over illegal violence at sea, and this problem cannot be solved through other mechanisms, the possibility of applying universal jurisdiction cannot be ruled out, regardless of whether the act is committed for private or public purposes, from one ship to another, or on board a single ship.
While drafting international/national laws on extradition, it should be kept in mind that they are not used as a weapon to prosecute a person on the grounds of their religion, race nationality, ethnic origin, political opinion or gender. Even if a law of a State goes against that of another, equitable comparative and just punishment should be given in place to ensure that this does not act as an excuse to avoid prosecution of that particular crime. For example, often in scenarios where a country has a recourse of death penalty as punishment and the other does not, the extradition process gets hampered. This should not be so and equitable punishment of a life sentence should be given instead.
A second difficulty that frequently emerges in current extradition accords is when state parties refuse to extradite their own people to other countries. This problem was effectively addressed in the instance of the Argentina-US Extradition Treaty, which states in paragraph 3 that “[t]he extradition and surrender of the individual sought shall not be rejected on the pretext that such individual is a national of the Requested Party.”
Hence, as the international community places a greater focus on individual accountability and punishment for major marine crimes such as swift and effective inter-State collaboration with the above-mentioned reforms is increasingly crucial.
About the Author
Aditya Jha & Ritu Raj are 2nd year students at The National Law University and Judicial Academy, Assam.
[1] Angus Konstam and Roger Michael Kean, Pirates: Predators of the Seas 32, (New York: Skyhorse Publishing, 2007).
[2] ICC International Maritime Bureau, Piracy and Armed Robbery Against Ships: Annual Report 1 January – 31 December 2008, London: ICC International Maritime Bureau, 2009 at p. 9.
[3] Ibid. at p. 13.
[4] ICC International Maritime Bureau, Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 30 June 2009, London: ICC International Maritime Bureau, 2009.
[5] Maritime Crime and Privacy, United Nations Office on Drugs and Crime, (May. 26, 2021, 3:31 PM), https://www.unodc.org/westandcentralafrica/en/newrosenwebsite/TOC/maritime-crime-and-unodc.html.
[6] UNCLOS, preamble.
[7] Legal Framework for the Repression of Piracy Under UNCLOS, Oceans and Law of the Sea United Nation, (May. 27, 2021, 5:18 PM), https://www.un.org/depts/los/piracy/piracy_legal_framework.htm.
[8] Vienna Convention on the Law of Treaties art. 31, opened for signature May 23, 1969, 1155 U.N.T.S. 331
[9] The International Legal Framework against Chemical, Biological, Radiological and Nuclear (CBRN) Terrorism, 2016 at p.19.
[10] Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988, Art. 12.
Centre for Maritime Law 