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29 June 2021

Strengthening Universal Jurisdiction for Maritime Piracy Trials to Enhance a Sustainable Anti-Piracy Legal System for Community Interests

and
1
Guanghua Law School, Zhejiang University, Hangzhou 310008, China
2
Law School, The University of Western Australia, Perth 6009, Australia
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Author to whom correspondence should be addressed.
Sustainability2021, 13(13), 7268;https://doi.org/10.3390/su13137268
This article belongs to the Special Issue Preserving Community Interests in Ocean Governance towards Sustainability
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Abstract

Although universal jurisdiction over piracy has long existed in customary international law and international conventions, such as the Convention on the High Seas (HSC) and the United Nations Convention on the Law of the Sea (UNCLOS), the piracy situation has been changing. The subsidence of Somali piracy provides an opportunity for rethinking how to strengthen universal jurisdiction for maritime piracy trials to enhance a sustainable anti-piracy legal system. The incidents of Somali piracy have resulted in some new developments in exercising universal jurisdiction: the separation of seizing, prosecuting, and imprisoning States; the consideration of creative piracy prosecution mechanisms; the increased focus on land-based facilitation of piracy; enhanced international cooperation; and expanded universal jurisdiction. This leads to several main challenges in existing legal frameworks, including weaknesses in UNCLOS, the disharmony among international instruments, and defects in domestic piracy legislation. In order to sustain and improve the anti-piracy legal system, universal jurisdiction over piracy should be incrementally strengthened to support the prosecution of pirates by States. To address the trends and challenges, this article explores how the legal system can be enhanced in two respects: adjusting the basic provisions of universal jurisdiction over piracy and refining the relevant measures in exercising that jurisdiction to prosecute pirates.

1. Introduction

Piracy is the oldest international crime, and yet despite considerable global efforts, it persists and continues to evolve in various ways and contexts. The international community is equally persistent in its response, building on longstanding international legal frameworks and adopting new approaches to meet the challenge. Piracy has significant impacts on multiple aspects of sustainability.
The United Nations (UN) Sustainable Development Goal (SDG) 16 (Peace, Justice and Strong Institutions), for example, seeks to, inter alia, “significantly reduce all forms of violence and related death rates everywhere” (16.1), “significantly reduce illicit financial and arms flows, strengthen the recovery and return of stolen assets and combat all forms of organized crime” (16.4), and “strengthen relevant national institutions, including through international cooperation, for building capacity at all levels, in particular in developing countries, to prevent violence and combat terrorism and crime” (16.A) [1]. According to SDG 16, piracy, which poses a serious threat to freedom of navigation, maritime security, and human life, is the target of repression. Strengthening anti-piracy law will significantly contribute to the achievement of SDG16.
As a transnational organized crime at sea, piracy could impact other SDGs [2]. For example, maritime transport is “fundamental to sustaining economic growth and spreading prosperity throughout the world” [3]. Piracy negatively impacts on economic aspects of shipping and transport. Therefore, it directly affects economic growth in SDG 8 (Decent Work and Economic Growth) [4] and then prevents achieving the goal of poverty eradication (SDG 1: No Poverty) [4]. Since disruptions to supply chains may harm sustainable cities and communities [5], piracy also negatively impacts on SDG 11 (Sustainable Cities and Communities) [4]. Piracy threatens the lives and health of seafarers and passengers, which is related to SDG 3 (Good Health and Well-Being) [4]. When seafarers do not have a safe working environment, the goal of decent work in SDG 8 is affected. Piracy also poses a threat to food security [3]. Just as Somali pirates had an impact on the food transportation of the World Food Program [6], so anti-piracy may contribute to SDG 2 (Zero Hunger) [4]. Furthermore, piracy is potentially environmentally harmful, as vessels are attacked and lost, which leads to negative impacts on SDG 6 (Clean Water and Sanitation) and SDG 14 (Life below Water) [4]. Consequently, the anti-piracy legal system is conducive to achieving these SDGs. The enactment and implementation of anti-piracy laws and regulations needs partnerships among States and international organizations, which itself strengthens partnerships (SDG 17: Partnerships) [4,7]. Under international law, States have universal jurisdiction over piracy [8]. However, with the rapid expansion of Somali piracy, the international community faced tremendous challenges in exercising this universal jurisdiction over piracy. In many cases, approaches have involved “catch and release”, and many pirates have not been prosecuted and have gone unpunished [9]. In this context, it is valuable to explore why this may be the case and how anti-piracy law can be strengthened for the future. Many scholars have researched various aspects of universal jurisdiction over piracy. They have addressed a range of issues including the history and basis of universal jurisdiction over piracy [10,11,12,13,14], definitional issues of piracy [15,16], the conflict of jurisdictions and weaknesses in domestic law [17], and the application and use of universal jurisdiction [18,19,20]. However, this scholarship frequently involves only certain aspects of the universal jurisdiction over piracy and does not analyze the anti-piracy legal system as a whole, nor does it examine the challenges brought by the current situation of piracy and the development trend of universal jurisdiction. The relationship between the anti-piracy legal system and the sustainable development goals, as well as the sustainability of the legal system itself, are not particularly concerned, either.
This article aims to enhance an anti-piracy legal system that is helpful for achieving the goals of the SDGs and that has its own sustainability issues. By investigating the legal provisions and the actual situation, this article comprehensively analyzes the problems of the lack of sustainability of the anti-piracy legal system related to universal jurisdiction and puts forward systematic solutions.
According to the definition of sustainable development in the Report “Our Common Future”, which is considered to be the most accepted definition [3], sustainable development means “development that meets the needs of the present without compromising the ability of future generations to meet their own needs” [21]. The definition emphasizes the intergenerational aspects of development. It can be seen that solutions to sustainability problems need to have a long-term perspective and should be able to cope with new situations that arise, or at least should be agile enough to be adjusted in accordance with the evolving situation. The universal jurisdiction over piracy is stipulated in the Convention on the High Seas (HSC) and the United Nations Convention on the Law of the Sea (UNCLOS). Nonetheless, great changes have taken place in the situation of piracy compared with that at the time of the conclusion of the Conventions (Part Two), and new trends have emerged in the exercise of the universal jurisdiction over piracy (Part Three). In addition to the deficiencies of both international and domestic piracy law (Part Four), the existing anti-piracy legal system cannot fully and effectively respond to modern piracy and lacks sustainability to a certain extent. In this context, it is valuable to explore a long-term and comprehensive solution for the future. Therefore, various relationships must be balanced (Part Five). This article also explores approaches to enhance a sustainable, international anti-piracy legal system and how national level implementation and enforcement can be supported (Part Six).
It should be recognized that there are many factors, other than law, affecting the sustainable exercise of universal jurisdiction over piracy. States may face tremendous financial burdens and capacity issues in prosecuting and incarcerating pirates [18], and they encounter the problem that pirates may seek asylum in these States after their release [22]. Some States even lack political will to take action to counter piracy [23]. Additionally, the rise of piracy is a complicated problem, rooted in poverty and instability, which must be addressed comprehensively if long-term success is to be achieved [24]. All these issues remain important, but the scope of this article is limited to strengthening universal jurisdiction for piracy trials through legal means.
As background, the main international piracy legal framework is set out in Appendix A.

4. Main Challenges in Exercising Universal Jurisdiction over Piracy

Based on the evolution of international law before, and developments after, the spike in Somali piracy, many current challenges can be identified.

4.1. Weaknesses in UNCLOS

The definition of piracy in UNCLOS (Piracy is defined in UNCLOS Art. 101 as follows:” (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)” [42]), especially the elements of private ends, two ships requirement, and geographical restrictions, has been widely criticized for its limitations [62,63,64]. These limitations have been dealt with by other scholars but are explored again here in light of the developments highlighted in the previous section.
Some provisions of UNCLOS relating to piracy are ambiguous. Article 101(a) mentioned “any illegal acts of violence or detention”, without specifying the meaning of the word “illegal”. What kind of law does it refer to, international law or domestic law? If it refers to international law, what are the sources of it? If it refers to domestic law, which State’s domestic law is it? There is no clear answer. There is a view that the word “illegal” here means the absence of either “grounds negating criminal liability despite the use of violence” (e.g., self-defense) or “situations in which private detention may be lawful” (e.g., citizen arrest) [65]. This position lists two situations that should be understood as “legal”, but it does not answer the above questions, such as the reasons for exemption from criminal responsibility and the legal basis for allowing private detention. The draft guidelines for national legislation on maritime criminal acts, proposed by the Comité Maritime International (CMI), has already considered that two categories of acts that may contain violence but with justifications should not be held as maritime criminal acts or piracy. Justifiable violence proposed by CMI includes: (1) “reasonable acts to rescue a person or to recover stolen property or regain lawful control of a ship or maritime structure”; and (2) “reasonable or proportionate acts to protect a person, ship or maritime structure, or related property, against a maritime criminal act or act of piracy”. [66] Nevertheless, these provisions have not been formally endorsed. With the increasing use of privately contracted armed security personnel on board ships to counter piracy, both situations may be more likely to occur as the defensive capabilities of the ship increase. Due to the lack of specific laws on which self-defense is based, the legal meaning is still vague. It is difficult to determine the legitimacy and moderation of self-defense and how to deal with the seized pirates and their property. When a merchant ship seizes pirates as self-defense or for another “legal” reason, does it have the right to hand them over to a warship or the authority of any State, and does the State have the obligation to accept the seized pirates? There is no relevant regulation.
Another ambiguity is whether “private ends” means “private/political” or “private/public” [65]. Recalling the process of codification of piracy-related provisions by ILC, the United States suggested that “acts of piracy are committed in pursuit of private, as contrasted with public ends” [67]. Gerald Fitzmaurice pointed out that submarines without government authorization were considered to be carrying out private ends [68]. It implied that piracy was essentially a crime committed by private individuals, rather than performing government or authorized duties. Zourek also mentioned that if the condition of “private ends” remained, then if the perpetrator could prove that his act was committed under the instigation or instruction of public authority, the act would be considered lawful [68]. Therefore, according to these views, acts for private ends should refer to acts opposite to those of government. Several cases involving environmentalists demonstrate a similar understanding of “private ends”. In Castle John v. NV Mabeco (1986), a Greenpeace ship attacked other ships, claiming that the latter caused pollution [69]. The court ruled that Greenpeace’s act constituted piracy because it was for private ends and “purely in support of a personal point of view concerning a particular problem” [69]. Even if the purpose of the private subject is related to a political reason, it can be classified as private ends [69]. In Institute of Cetacean Research v. Sea Shepherd Conservation Soc., licensed whalers sued environmentalists who interfered with whaling activities. The Ninth Circuit ruled that such environmental activities constituted piracy, since private ends “include those pursued on personal, moral or philosophical grounds” [70]. However, the “private/political” divide has many supporters [8,71]. It is generally agreed that UNCLOS excludes politically motivated terrorist acts from the piracy [72,73,74,75,76]. Somali pirates alleged that they attacked to defend against illegal fishing and dumping of toxic wastes in Somali waters [56], the aim of which was to protect their own rights [77], or was simply to help the poor [78]. Somali armed groups engaged in piracy once considered themselves as coastguards [77], and some Somali pirates were welcomed as national heroes [78]. If the above-mentioned purpose for attack claimed by Somali pirates was true (according to United Nations, the reason for Somali piracy is only a cover-up [53]), and the understanding of “private/political” is accepted, their acts do not constitute piracy. A similar scenario may emerge in the growing piracy tide in the Gulf of Guinea. Some commentators are concerned that maritime attacks in the Gulf of Guinea may be committed for political ends by using piracy as a weapon to influence political developments in specific States in the region [79].
A further issue is relating to the application of universal jurisdiction over piracy in the exclusive economic zone (EEZ). UNCLOS has almost absorbed the provisions on piracy of HSC. At the time of the formulation of HSC, the ocean beyond internal waters was generally divided into territorial seas and high seas, and there was no concept of exclusive economic zones. Therefore, the geographical limitation of piracy could form a logical self-consistency then. There was no intermediate zone between the high seas and the jurisdictions of States. The EEZ system was newly established in UNCLOS, but the provisions on piracy were not adjusted correspondingly. Many scholars believe the geographic scope of Article 101(a) should be read to include the EEZ of any State in line with Article 58(2) [17,63], and many UN agencies hold the same view [46,80]. However, while acknowledging universal jurisdiction over piracy in EEZs, there are still problems to be solved. First, States may still not be obligated under Article 100 to cooperate in the repression of piracy there [17]. Second, in the process of exercising universal jurisdiction, the actions of warships may cause damage to the sovereign rights and jurisdiction of coastal States under special circumstances. For example, (1) the rescue or expulsion by warships of other States may affect the exploration, development, conservation, and management activities of coastal States; (2) the navigation or exchange of fire of warships of other States may cause pollution of the marine environment or may cause damage to artificial islands, facilities and structures, marine scientific research facilities and equipment, etc. or; (3) the actions of warships of other States may be affected by the exploration, development, conservation, management, and activities of coastal States exercising their exclusive jurisdiction. Third, the coastal State’s understanding of the peaceful purpose of the EEZ may affect the enforcement of universal jurisdiction over pirates in this zone. According to UNCLOS, all States enjoy freedoms of navigation in EEZs, and these zones should only be used for peaceful purposes [42]. In other words, non-peaceful navigation should be prohibited. However, there is no unified understanding of peaceful purposes, such as whether it means banning all categories of military activities [81]. Although countering maritime piracy should be through law enforcement rather than military activities, the nature of the act is still easy to be confused because the main resource used to counter piracy is warships [82]. Some States prohibit foreign warships from engaging in military activities in their EEZs [81]. If a State considers that countering piracy has the attribute of military activities, it may be difficult for foreign warships to implement universal jurisdiction over piracy in that State.
UNCLOS does not explicitly criminalize attempts to commit piracy. Some scholars believe that in this case, corresponding acts do not apply to universal jurisdiction [16,76], and only the actual pirate attack can be prosecuted under UNCLOS [83]. The UN Division of Ocean Affairs and Law of the Sea (UN-DOALOS) also stated that attempts to commit piracy do not meet the definition of piracy in UNCLOS [84]. However, the opposite view holds that piracy in international law should include attempts to commit piracy. The UNSC called for all States to emphasize the importance of criminalizing attempts to commit acts of piracy [56]. In US v. Hasan, the court ruled that unsuccessful attempts to commit piracy acts formed piracy jure gentium [85]. Italy, the Netherlands, Germany, and Japan have also regarded attempted attacks as breaches of the law in many cases [86]. In addition, the demarcation between “preparatory” and further action is a difficult point in defining an “attempt to commit piracy” (See section I (I) of English Criminal Attempt Act 1981: “if, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence”). It is easy to understand that if the pirates engage the target ship, their acts can be regarded as attempting to commit piracy, and thus may be punished. In US v. Hasan, the defendants mistook the navy frigate Nicholas for a merchant ship and opened fire [85]. In the cases of Topaz and Nave Atropos in Seychelles, pirate ships launched attacks on other ships, but failed [87,88]. All of those defendants were found guilty. However, the ambiguity lies in whether pursuing a ship for the purpose of carrying out a pirate attack, but not yet in contact with the chased ship, constitutes an attempt to commit piracy. At this time, the pirate ship has shown an obvious intention to attack and has begun to take action against specific targets, but it has not met the standard of “engaging criminal targets”. It is suggested in Oppenheim’s International Law that actually completed violence is not needed and that chasing a ship for the purpose of attacking can constitute piracy [89]. The judgement of the case of Draco in Seychelles demonstrated that a conviction can be successfully achieved for chasing a ship as an attempt to commit piracy [90]. Conversely, some scholars argue that an attempt to attack should begin with some kind of violence [16]. Another scholar holds that if offenders do not use violence but only chase ships and fail to board them, they do not commit piracy under UNCLOS Article 101(a) and are treated as pirates only when it can be proven that they know it is a pirate ship and participate in its operation voluntarily, as defined in Article 101(b) [91]. Cruising at sea with weapons in order to carry out pirate attacks could also be understood as an attempt to commit piracy. Since no specific target has been found and no specific attack has been carried out, this stage is closer to preparation to commit a crime. According to Oppenheim’s International Law, it is not clear whether armed cruising with the aim of committing piracy constitutes piracy [89]. There is also the opposite view that cruising at sea only for the purpose of piracy is not piracy in State practice [16].
There are different understandings on whether the threat of violence, if not actually committed, constitutes piracy. Oppenheim’s International Law holds that piracy is carried out by unauthorized acts of violence, whether such violence is the direct use of force or threat [89]. That is, the threat of violence can constitute piracy. However, in the literal sense, the threat of violence itself is not within the stipulated circumstances of piracy. If the threat of violence is accompanied by detention or depredation, this will undoubtedly constitute piracy because of detention or depredation. If the purpose of the threat of violence is to force the State, organization, individual, or other subject to carry out or not to carry out a certain act, and it is not accompanied by detention or plunder, it does not fall under the definition of piracy. Perhaps because of the lessons of UNCLOS, in order to eliminate such ambiguity, when the IMO formulated the definition of armed robbery, it added “or threat thereof” after “any illegal act of violence or detention or any act of depredation”, which clearly includes the threat act [92].
There are also different opinions on whether there are territorial restrictions “on the high seas” or “beyond the jurisdiction of any State” on the act of Article 101 (b) and (c) of UNCLOS. There is a view that there are no such restrictions in the acts of subparagraph (b) and (c) [93]. Unlike Article 101(a) that clearly defines the region, subparagraph (b) and (c) themselves do not stipulate a specific geographical scope. Therefore, it should be understood that the provisions are not intended to impose geographical requirements [94]. Notwithstanding this, according to Harvard’s 1932 Draft Convention (Art. 3: Piracy “is any of the following acts, committed in a place not within the territorial jurisdiction of any State: …any act of instigation or intentional facilitation (of piracy)….”), to which the ILC mainly referred when drafting the piracy-related provisions of the HSC, all persons, including the perpetrators and facilitators of the attack, must appear on the high seas [95], which seems to reveal the original legislative intent of the provisions. US v. Ali fully reflects the collision of the two views. The defendant, Ali Mohamed Ali, did not participate in the hijacking at sea. Instead, he boarded the ship two days after it docked in Somalia and acted as an interpreter and a negotiator for remuneration. The District Court ruled that it did not have jurisdiction on the ground that his acts did not take place on the high seas [49], while the Court of Appeals held that UNCLOS does not require that subparagraph (c) have a geographical limit, and that incitement and facilitation do not need to take place on the high seas [49]. In US v. Shibin, like Ali, Mohammad Saaili Shibin only played the role of negotiator on Somali land and in territorial waters. He argued that according to UNCLOS, facilitation should take place on the high seas, and the court lacks personal jurisdiction and subject-matter jurisdiction. However, both the District Court and the Court of Appeals found that aiding and abetting (“functionally equivalent” to “facilitating”) piracy can occur anywhere, even in the territory of another State, and that any State has jurisdiction under international law [96].
Further problems arise concerning the facilitation of piracy. Some acts of intentional facilitation usually need to be committed in the specific context of piracy, such as providing financial support to pirates, assisting pirates with taking care of hostages, and translating and negotiating for pirates. The other parts of intentional facilitation themselves are illegal and can constitute independent crimes. For example, providing illicit weapons for pirates involves illegal transportation and arms trafficking, legalizing piracy income involves money laundering, selling or handling depredated property for pirates involves selling stolen goods, and providing an umbrella of protection for pirates by administrative personnel involves crimes of corruption and dereliction of duty. For the latter, if a perpetrator is prosecuted for an independent crime, rather than piracy, it causes controversy as to whether universal jurisdiction can be applied.
UNCLOS does not oblige States to exercise universal jurisdiction [97]. Article 100 only obliges States to cooperate in the suppression of piracy. According to Articles 105 and 110, a State “may” rather than “shall” exercise the right to board, seize, arrest, enforce the law, and impose penalties on pirates. Moreover, UNCLOS does not mention domestic legislation on piracy at all, and this has resulted in a fragmented national legal landscape (discussed in detail below). However, in 2019, Annex C of the ILC Annual Report noted that it could be assessed whether States were obliged, or could only choose, to establish such jurisdiction [98], which means that it is necessary to reconsider whether States must or are simply permitted to adopt national law exercising universal jurisdiction over piracy.
Turning to the adjudicative jurisdiction, according to Article 105, the right to prosecute pirates only applies to the courts of the seizing State. As a result, although a large number of Somali pirates, captured by foreign escort navies, were sent to regional States for trial, some scholars believe this was contrary to UNCLOS [47,99].

4.2. Disharmony among International Instruments

Although both UNCLOS and the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) are vital legal bases for anti-piracy, their relationship is controversial. Mixed views include: (1) Crimes defined in SUA (SUA offences) “are complementary to UNCLOS provisions on piracy [78]”; (2) SUA enlarges the scope of piracy [100]; and (3) The original piracy crime has been replaced with “illegal acts endangering the safety of navigation” in SUA [101].
Relatively speaking, SUA has a broader scope of offences. As for the geographical element, unlike UNCLOS, SUA offences apply if the ships are crossing jurisdictional boundaries, including waters between States [102]. This indicates that it is applicable within the territorial seas. SUA does not stipulate the two ships requirement and private ends. Instead, it regards attempting to commit an offence as an offence [102]. Additionally, unlike UNCLOS, which does not oblige States to adopt domestic anti-piracy laws and exercise universal jurisdiction over piracy, SUA not only requires each State Party to punish the SUA offences but also establishes more detailed operational measures for this purpose, including the circumstances in which a State should and may establish its jurisdiction, as well as the obligation of “extradition or prosecution” [102]. Due to the fact that SUA more clearly stipulates the obligation of States to establish and exercise jurisdiction, it makes up for the deficiency of UNCLOS in this aspect to a certain extent. Therefore, although SUA is not specifically aimed at piracy, and the word “piracy” does not even appear in it, the UNSC resolutions on Somali piracy often require States to establish jurisdiction based on SUA [9].
However, UNCLOS and SUA actually belong to different systems. The original aim of SUA was combatting “the world-wide escalation of terrorism in all its forms” [102]. Seen from the types of SUA offences, these concern the safety of maritime navigation, which is not entirely consistent with piracy. Even if these offences (especially those stipulated in Article 3.1 (a) and (b) of SUA) overlap with piracy under UNCLOS in certain situations, it seems that the interrelation between them has not been considered in drafting SUA [78]. Article 3.1 (a) and (b) of SUA only contain the seizure or control over ships and violent activities possibly endangering the safe navigation of ships. When violent acts against persons or property are not aimed at seizing or controlling ships and are not at a level that endangers the safety of navigation, they may conform with the piracy definition under UNCLOS, but they do not constitute SUA offences.
The nature of jurisdiction determined under UNCLOS is different from that under SUA. The latter does not involve universal jurisdiction over piracy but quasi-universal jurisdiction over SUA offences (The “extradition or prosecution” established in SUA can be regarded as a quasi-universal jurisdiction. According to Anthony Aust, the “universal jurisdiction” that only applies to parties to those treaties is known as quasi-universal jurisdiction) [103]. For example, if an attack takes place on the high seas when the victim ship is scheduled to navigate into a State’s territorial sea, this attack constitutes piracy under UNCLOS and the offence under SUA simultaneously. If the attack is seen as piracy and subject to jurisdiction under UNCLOS (that is, universal jurisdiction), any State has the right to seize and prosecute the pirates in its courts. If the attack is seen as a SUA offence and subject to jurisdiction on that basis, SUA does not provide that the State has the right to seize offenders on the high seas because there is no universal jurisdiction that authorizes the State to enforce the law on the high seas. Although Article 8 of the SUA Protocol of 2005 (SUA 2005 Protocol) specifies the circumstances in which a State Party (the requesting Party) may board a ship flying the flag of another State Party (the flag State) located seaward of any State’s territorial sea, it sets many preconditions. For example, the requesting Party shall require the flag State to confirm the nationality of the ship and obtain its authorization for boarding the ship and taking appropriate measures against the ship. The requesting Party shall not board the ship or take measures without the express authorization of the flag State [104]. The adoption of the SUA 2005 Protocol also needs to be further improved. By 2020, compared with 166 parties to SUA, there were only 51 parties to the Protocol [105,106,107]. Furthermore, according to UNCLOS, the seizing State has the right to prosecute pirates without reporting to any other State, while according to SUA, any State Party should immediately notify the States that have established compulsory jurisdiction and any other interested States (if advisable) after taking the offender or the alleged offender, who is present in its territory, into custody [102].
Except UNCLOS and SUA, other relevant existing international legal frameworks are regional instruments, such as the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), DCoC, the Code of Conduct concerning the Repression of Piracy, Armed Robbery against Ships, and Illicit Maritime Activity in West and central Africa (Yaoundé Code of Conduct), and the Memorandum of Understanding on the Establishment of a Sub-regional Integrated Coast Guard Network In West and Central Africa (MOWCA MOU). Since most of their parties come from corresponding regions, their content mainly concerns the rights and obligations of respective States’ parties. As of 23 February 2019, only 6 of the 20 ReCAAP contracting parties were not regional States [108]. In DCoC, Yaoundé Code of Conduct, and MOWCA MOU, there are few or no States’ parties from outside the region [24,109,110]. These instruments facilitate cooperation between the State parties in each region, but cooperation with non-regional States that bring pirates back for trial, which is typically in the form of exercising universal jurisdiction, is not fully stipulated. Although the two codes of conduct request that the participants cooperate with interested States and other stakeholders to facilitate rescue, interdiction, investigation, and prosecution [109,111], there are no further specific provisions.
The two codes of conduct are comparatively consistent and have drawn lessons from the fight against Somali piracy, so that they are more advanced than ReCAAP in the breadth and details of cooperative measures. For example, in order to clarify the anti-piracy measures at the national level, the two codes of conduct elaborate which kind of national maritime security policies, domestic legislation, practices and procedures, national maritime security committees, or other systems and security plans a State should develop and implement [109,111]. They also build on the “embarked officer” mechanism entitling a State, with the authorization by another State, to nominate law enforcement or other authorized officials to embark on the latter’s patrol ships or aircraft [24,109]. In contrast, ReCAAP mainly focuses on the establishment of an information-sharing center and the sharing of information, transmission, and acceptance of cooperation requests through that center, rather than the specific design of cooperation measures in other areas. It has provisions regarding extradition, mutual legal assistance, capacity building, cooperative arrangements, and protection measures for ship [112]. However, these provisions are relatively simple.

4.3. Defects of Domestic Piracy Legislation

Somali piracy has revealed the shortcomings of domestic piracy legislation in many States [113]. Naval forces were often forced to release suspects without any sanctions, no matter whether there was sufficient evidence to prosecute them or not [9]. That has weakened the international efforts against Somali pirates [53]. Failure to criminalize piracy and to establish universal jurisdiction in domestic law directly results in the lack of a basis for combating piracy at the national level. Even in States that have criminalized piracy and established universal jurisdiction over piracy in their domestic law, there are still various deficiencies in the legislation.
First, the definition of piracy is not uniform among States’ domestic legislation and between domestic law and international law. Scholars have analyzed the definition of piracy in 19 States and regions and found that only 21.2% held two ships requirements; 31.6% required “private ends”; and 26.3% required that piracy occurs outside the scope of national jurisdictions [114]. This inconsistency will lead to operational difficulties in applying universal jurisdiction. Even if an act constitutes “piracy” under domestic law, it does not necessarily mean that universal jurisdiction applies, and there is a need to distinguish whether the so-called “piracy” conforms to the UNCLOS definition. This also means that, if the State signs a new international instrument on piracy with the requirement to implement the instrument in its domestic law, it has to distinguish the applicable part from the existing domestic “piracy” definition first and then amend the domestic law relevant to this part to comply with the instrument. That will increase the difficulty of implementation and can easily confuse.
Second, the sentences imposed on pirates vary greatly between States. The universal jurisdiction prosecutions over piracy are public goods that serve the whole international community [115]. Consequently, it is necessary to analyze the sentences for piracy in different States comparatively. Sentences for similar crimes should not differ largely, otherwise they can lead to unfairness [116]. However, as of 2010, the longest maximum sentence was a life sentence (e.g., in the US, UAE, and Kenya), and the maximum sentence in Seychelles was 30 years, while the ones in Europe were significantly shorter (e.g., 15 years in Germany; 12 or 15 in Holland; 14 or 20 in Italy) [116]. In practice, the sentences for similar piracy offences range from a life sentence to 4.5 or 5 years [116].
Third, the domestic legal basis for universal jurisdiction over piracy is not well established. Many States have not fully adopted domestic legislations and a jurisdictional framework based on the concept of universal jurisdiction stipulated in UNCLOS [117]. Some States tend to exercise universal jurisdiction only when certain links exist [61]. In this respect, it seems that other traditional jurisdiction principles are enough to meet the needs of States to combat piracy, if they are not interested in punishing piracy that has no nexus with them. According to Jack Lang, in light of general international law, the State of nationality of the pirates, the State of nationality of the victims, and the flag State of any ship concerned can claim jurisdiction over the suspected pirates [23]. However, as ships on the high seas are generally considered to be under the exclusive jurisdiction of the flag State, with the universal jurisdiction over piracy and a few other circumstances as exceptions [103], whether there is still the space for other traditional jurisdiction is confusing. Moreover, by using a flag of convenience, the flag State may not be the State of the company that genuinely owns or operates the ship. The legal link between the latter State and the piracy incident may be weak. Therefore, some States prosecute pirates having nexus with them on the ground of universal jurisdiction. For example, Japan’s first piracy trial, which involved an attack on a Bahamian ship operated by a Japanese company, applied universal jurisdiction [118]. A similar but confusing situation existed in the Republic of Korea v. Araye, the first trial of Somali pirates in Korea related to the piracy attack on a Maltese ship operated by a Korean company [119]. The jurisdiction ground of the case is controversial. The court ruled that, according to the domestic criminal procedure law, it has territorial jurisdiction over the case due to the current location of the defendant [19]. One scholar believes that Korea does not recognize universal jurisdiction, and only when the suspected pirates are Korean nationals or the piracy takes place on a Korean ship can they be prosecuted for piracy in its domestic courts [120]. However, other scholars regard the trial as a typical case in which Korea exercised universal jurisdiction over piracy [19]. This issue is important because if there is a positive conflict of jurisdiction, the jurisdiction principles the State applies may affect the priority of different jurisdictions because universal jurisdiction is often considered to be subsidiary [121]. Moreover, if the seizing State does not recognize the jurisdiction ground proposed by other States, it will not cooperate [122]. For example, if the seizing State believes that only flag State jurisdiction and universal jurisdiction are applicable to piracy, and does not recognize other traditional jurisdiction claims, it will not transfer pirates. However, in the current situation of the overall negative conflict of jurisdiction over piracy, regardless of the jurisdiction ground applied, it usually will not incur protests from other States. In special circumstances, it may restrain interested States from asserting jurisdiction over a whole case. In the Republic of Korea v. Araye, because the criminal law of Korea does not clearly provide for universal jurisdiction, there was a debate about whether the criminal acts against foreign crew can be applied under Korean law [123]. Those acts against foreign crew were not ultimately prosecuted [119]. From a global perspective, universal jurisdiction is a justice-based measure [124] and an important means to protect global public goods [121]. Although it is not a legal obligation to establish and exercise universal jurisdiction over piracy, as Cedric Ryngaert claims, there are many jurisdiction principles so that at least one can be applied in any given situation [121]. Positively asserting jurisdiction can be regarded as a responsibility of States in some circumstances [122]. Without a clear stipulation of universal jurisdiction over piracy, negative conflicts of jurisdiction will undoubtedly occur, which is not conducive to the solution of global problems and the realization of SDG 16 (Peace, Justice and Strong Institutions). Fourth, domestic legislation lacks procedural provisions on extraterritorial law enforcement. For instance, in the Republic of Korea v. Araye, the pirates claimed that their transfer to Korea lacked a proper procedural basis [19]. Generally speaking, the essential procedural elements, such as time of detention, the treatment and the rights of pirates in the transfer, the procedures for boarding, and visiting and evidence collection processes, have rarely been included in the domestic law. Failure to deal with those issues may lead to violations of human rights. In the case of Hassan and Others, France was charged with illegality due to the extent of time the alleged pirates were kept in detention [125]. The French courts tried to explain this with “wholly exceptional circumstances”, but the European Court of Human Rights decided that there had been a violation of the right to liberty and security in that case [125].
Fifth, domestic legislation may be unable to meet new trends in exercising universal jurisdiction. The separation of seizing, prosecuting, and imprisoning stages, the proposal of new piracy trial options, and enhanced international cooperation all mean that the exercise of universal jurisdiction is no longer limited to the conduct of a single State. Therefore, cooperation with other States and other international entities (including international organizations and international or regional tribunals) is hindered by differing domestic legislative regimes. Harmonizing the law between States will assist with maritime law enforcement cooperation, the transfer and reception of pirates, the identification of evidence collected by other States, and the application of law before and after the transfer of pirates, which are rarely reflected in existing domestic legislation. Efforts to harmonize laws between jurisdictions can have the further benefit of enhancing global best practice.

7. Conclusions

The international law of piracy has a long history, and it has developed in response to challenges across hundreds of years. As a result, universal jurisdiction over piracy, which existed in customary international law, is reflected in the HSC and UNCLOS. However, it was rarely applied until the fight against Somali pirates. In combating Somali piracy, the anti-piracy legal system related to universal jurisdiction over piracy has also exposed the shortcomings in dealing with practical challenges, which means that the sustainability of the system needs to be improved. The rampancy of Somali piracy should be a trigger to rethink and develop universal jurisdiction over piracy. On the one hand, new trends in the practices of universal jurisdiction over piracy have been revealed and need to be considered in enhancing the law. On the other hand, the emphasis on universal jurisdiction over piracy has required re-examination of the relevant legal system, and it is found that there are several main challenges in exercising that jurisdiction that could usefully be focused upon. In other words, compared with the period when the HSC and UNCLOS were adopted, the current situation of piracy and the demand for combating piracy have changed. Correspondingly, the anti-piracy legal system needs to be adjusted to support sustainable marine security and promote the sustainable development of the shipping industry and the ocean. To address those trends and challenges, as well as to establish a sustainable anti-piracy legal system, it is necessary to strengthen universal jurisdiction, and this article has explored the issues and outlined how this might be achieved. Sustainability is usually associated with SDGs and the phrase “long-term” [149]. Therefore, a sustainable solution should be SDGs-oriented and durable in time or effect. In order to achieve this, a sustainable solution should be responsive to changes, comprehensive in analyzing problems, and diversified in means. It should not only be forward-looking but should also be practical and operable (e.g., both ideal goals and transitional means are needed). Meanwhile, political and economic sustainability should be taken into account [61] (e.g., considering various balance relationships is necessary). Above all, piracy is a crime subject to universal jurisdiction, which needs all States to continue to develop a “comprehensive legal regime to prosecute pirates, consistent with international law” [150]. At the same time, universal jurisdiction is a significant measure but not the whole answer to addressing piracy. As noted in the UNSC resolutions, the international community needs to adopt comprehensive measures to solve the problem of piracy and eliminate its root causes [44], which is also a significant topic related to sustainability.

Author Contributions

Both authors contributed to writing and revising of the article. Both authors have read and agreed to the published version of the manuscript.

Funding

This article is part of a research project funded by China’s National Social Sciences Foundation (18VHQ002).

Institutional Review Board Statement

Not applicable.

Data Availability Statement

The data will be made available upon request to the corresponding author.

Conflicts of Interest

The authors declare no conflict of interest.

Appendix A

Table A1. Chronology of main international piracy legal framework.
Table A1. Chronology of main international piracy legal framework.
DateDevelopmentDetails
1958Convention on the High Seas (HSC)
  • First international convention to define piracy
  • Incorporate universal jurisdiction over piracy
1982United Nations Convention on the Law of the Sea
(UNCLOS)
  • Basically, adopted the provisions on piracy in HSC
  • The most widely accepted international legal basis of universal jurisdiction over piracy (e.g., inter alia, Article 101 definition of piracy, Article 105 universal jurisdiction over piracy)
1988Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation
(SUA)
  • Defined many violent acts endangering maritime safety as crimes
  • Established “extradition or prosecution”
  • The 2005 Protocol revised 1988 SUA, expanding the SUA offences in light of specific forms of terrorist activities
2004Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia
(ReCAAP)
  • First regional anti-piracy agreement
  • For Asia
2008Memorandum of Understanding on the Establishment of a Sub-regional Integrated Coast Guard Network In West and Central Africa
(MOWCA MOU)
  • A regional MOU for West and Central Africa to establish an integrated coastguard network against piracy and other unlawful acts
2008–2018United Nations Security Council Resolutions on Somali Piracy
  • Authorized States and organizations enter the territorial waters and territory of Somalia to repress piracy and armed robbery
  • Relevant resolutions include, inter alia, SC Res 1816(2008), 1838(2008), 1846(2008), 1851(2008), 1897(2009), 1918(2010), 1950(2010), 1976(2011), 2015(2011), 2020(2011), 2077(2012), 2125(2013), 2184(2014), 2246(2015), 2316(2016), 2383(2017), 2442(2018), 2500(2019) and 2554(2020). There are also resolutions on piracy in the Gulf of Guinea, such as SC Rec 2018 (2011) and 2039(2012), which are not as innovative as those on Somali piracy.
2009Djibouti Code of Conduct concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden
(DCoC)
  • A regional anti-piracy agreement for the Western Indian Ocean and the Gulf of Aden
  • The Revised DCoC (“Jeddah Amendment to DCoC 2017”) was adopted in 2017 in Jeddah, widening the scope of the Code to address other aspects of maritime security, such as other illicit maritime activities, and maritime law enforcement
2013Code of Conduct concerning the Repression of Piracy, Armed Robbery against Ships, and Illicit Maritime Activity in West and central Africa
(Yaoundé Code of Conduct)
  • A regional agreement on piracy and other illicit maritime activities for West and Central Africa
The International Convention against the Taking of Hostages, International Convention for Safety of Life at Sea, and UN Convention Against Transnational Organized Crime are also important conventions in fighting against piracy, but they do not directly address piracy. Therefore, this article does not analyze them.

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