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Research Proposal British Institute of International and

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					                                     Research Proposal

                  Piracy and Armed Robbery at Sea:
             A Comparative Study of National Legal Systems

SUMMARY

Piracy constitutes a real threat, not only to the shipping industry and international
trade, but also to the safety of all seafarers and the environment, as a pirate
attack could lead to a major oil spill. A total of 406 incidents were reported to the
ICC International Maritime Bureau’s Piracy Reporting Centre in 2009; up from
293 in 2008. Worldwide in 2009, 153 vessels were boarded, 49 vessels
hijacked, 84 were subject to attempted attacks and 120 were fired upon. A total
of 1052 crew were taken hostage, 68 injured and eight killed in the various
incidents1.

The first six months of 2010 has seen 196 incidents of piracy and armed robbery;
a slight decrease compared with the same period of 2009. This is due to a
reduction in incidents in the Gulf of Aden. Attacks in the Somali basin and the
wider Indian Ocean have however increased. Attacks in the South China Sea
have more than doubled during this period compared with 2009, in spite of
positive action by the Indonesian navy. Indonesian waters and Chittagong port in
Bangladesh have also seen an increase in the number of incidents reported to
the International Maritime Bureau.2

These events have a number of significant impacts on the shipping industry. The
direct danger to the vessels and those on board has resulted in many companies
spending time and resources on training their staff to respond to attacks,
sometimes even hiring private security personnel onboard ships. A successful
attack and subsequent hijacking of the crew can lead a significant capital loss
through delays in shipment delivery, including possible complete loss of cargo
value, as well as payment of ransom and associated (legal and other) fees.3 As a
result, the insurance premiums for companies travelling through dangerous


1
  ICC International Maritime Bureau, Piracy and Armed Robbery Against Ships, Annual Report 1 January
– 31 December 2009.
2
  ICC International Maritime Bureau, Piracy and Armed Robbery Against Ships, Report for the period 1
January – 30 June 2010.
3
  None of the capital paid as ransoms has so far been recuperated. It is estimated that the amount lost is
close to $75 million so far.


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zones, such as the Gulf of Aden, have increased, generating additional costs for
the industry.

The international community has responded to this threat at several levels. In
response to escalating attacks off the coast of Somalia, the United Nations
Security Council has issued a number of Resolutions calling upon States to
repress acts of piracy in conformity with international law (including resolutions
1814, 1916, 1838, 1846, 1851, and 1918 of 2010). The UN Contact Group on
Piracy off the Coast of Somalia has been working since 2009 to co-ordinate
international responses in this region4. The EU has established the Maritime
Security Centre Horn of Africa (MSCHOA) to support these resolutions. This led
to the deployment of military forces through the EU naval operation “Operation
Atalanta” in December 2008 and the establishment of the Internationally
Recognised Transit Corridor (IRTC) by MSCHOA on 1 February 2009. Also
present in the affected area are the CTF151 (Combined Task Force), NATO and
national forces, such as the navies of Russia and China. International efforts can
also be exemplified by the signing of the New York Declaration in September
2009, which includes a “commitment to best management practices to avoid,
deter or delay acts of piracy”5, and most recently by the UN Security Council
debate on piracy and Somalia on 25 August 20106 and the Regional Ministerial
Conference on Piracy in Mauritius on 7 October 20107.

Despite these efforts, it appears that the number of pirate attacks is not
diminishing. One recurring obstacle to the diminution of the number of attacks
consists of the releasing of a large portion of the pirates having been caught and
the fact that they rarely face trial. The release by Denmark in September 2008 of
10 pirates being held on the warship Absalon is demonstrative of the problem. It
was reported that there was no legal basis for prosecution under Danish law and
no other country volunteered to accept the prisoners for trial. This suggests that
military strength alone is insufficient to counter piracy.

Yet States face several obstacles to detaining and trying captured individuals.
National law may only partly criminalise the conduct in question. While some
states have prosecuted pirates on their own territory, many have not, with the
main obstacle being the lack of implementation of their obligations under the
UNCLOS8 and the SUA9 within their national systems. Most countries still have



4
  http://www.icpat.org/index.php/events-archive-mainmenu-81/469-sixth-plenary-meeting-of-the-contact-
group-on-piracy-off-the-coast-of-somalia
5
  http://www.fco.gov.uk/en/global-issues/conflict-prevention/piracy/
6
  http://www.eu-un.europa.eu/articles/en/article_10043_en.htm
7
  See Joint Communique adopted on 7 October 2010 at Grand Bay, Mauritius :
http://europafrica.net/2010/10/07/joint-communique-of-the-ministerial-meeting-on-piracy-and-maritime-
security-in-the-eastern-and-southern-africa-and-indian-ocean-region/
8
  UN Convention on the Law of the Sea :
http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm


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no law on piracy or rather inadequate legislation. Several states, including
France and Belgium, are currently considering bills on the matter. This problem is
further complicated by the categorisation of the offence as either piracy or armed
robbery at sea based on the location of the offence. International obligations, in
particular the requirement to comply with human rights obligations and due
process, also impact upon the ability of a State to capture and try individuals. For
example, it is difficult to satisfy due process requirements, including the right to
be brought promptly before a judicial authority, when the suspect is detained on a
naval vessel on a mission that may last several months. Moreover, non-
refoulement obligations may impact upon the ability of states to transfer captives
for trial in third States in situations where their lives or fundamental rights could
be threatened

The current preferred solution to the question of criminal prosecution has been to
engage courts within the region to undertake trials of offenders captured by
national forces of other States. In December 2008 the United Kingdom and the
United States each signed a bilateral Memorandum of Understanding with Kenya
for the transfer of suspected pirates, to facilitate regional prosecution10. The
European Union has signed similar agreements, and other States are in talks
with Kenya. The Government of The Seychelles signed a Memorandum with the
UK Government in July 2009 to accept the handover of suspected pirates. Other
regional jurisdictions are being considered as possible forums for trials, such as
Tanzania. There are limitations however to this approach.

States therefore need to consider other options, in particular whether national
laws could be bolstered to enable trials by the courts of the detaining State. The
proposed study will analyse the legal basis at the international and national level
for taking action against acts of piracy and armed robbery at sea. In particular,
the study will examine relevant national laws, looking at issues such as how
piracy and armed robbery at sea are defined, the treatment of different maritime
zones, the granting of enforcement powers (military/police/coastguard), use of
force by the boarding party, liability of the boarding party, penalties imposed,
seizure of property, extradition and mutual assistance issues. This will include an
analysis of action taken on both the high seas and within the territorial sea with
consent of the coastal State (as envisaged by the above mentioned UN Security
Council Resolutions).

METHODOLOGY

The project will examine the legal framework governing piracy and armed
robbery at sea, including relevant international conventions and principles of
customary international law. This part of the research will be primarily a desk-

9
  Convention for the Suppression of Unlawful Acts (SUA) Against the Safety of Maritime Navigation,
1988 and its related Protocol: see
http://www.imo.org/newsroom/mainframe.asp?topic_id=1018&doc_id=5334
10
   http://www.fco.gov.uk/en/global-issues/conflict-prevention/piracy/prisoners


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based study. The main focus of the project will be to conduct a detailed
comparative study of national laws. States will be selected on the basis of
several factors, including their involvement or likely involvement in current
enforcement and detention activities and the need to ensure an appropriate
balance of regions and legal systems. The impact of international and regional
human rights instruments will be considered where applicable. This part of the
study will use national questionnaires addressed to relevant government
authorities, international organisations and national rapporteurs in the selected
countries. Interviews will also be conducted by telephone or in person with
relevant officials, as appropriate.

As a result of this comparative study, we will offer an analysis on best practice for
the implementation of relevant international conventions and other legislative
action. We will prepare a set of recommendations and model laws for States to
assist in developing and implementing legislation dealing with piracy and armed
robbery at sea.

RESEARCH OUTCOME

The primary output of the research will be a report. This would be published as a
text by the Institute, which has an in-house publications department. We would
also prepare a shorter document summarising key findings, recommendations
and model provisions. Consideration will be given to holding a seminar to
publicise and discuss the report, in partnership with organisations selected to
contribute to this research.

THE INSTITUTE

The British Institute of International and Comparative Law is the only
independent research centre for international and comparative law in the UK and
one of the leading centres in the world. Its high quality research projects,
seminars and publications encompass almost all areas of public and private
international law, comparative law and European law, and it is at the forefront of
discussions on the many contemporary issues of international and comparative
law. For more than 50 years it has been an independent research body,
unaffiliated to any university, which is committed to the understanding,
development and practical application of international and comparative law. It is
both a limited company under UK law and a registered charity.

RESEARCH STAFF

The project will be supervised by a senior research fellow with extensive
expertise in the practice of public international law, including the law of the sea
and domestic implementation of treaties. Research assistants (2) will also be
engaged. The Institute also has the benefit of access to an impressive range of
members, including leading academics and practitioners in this area, qualified in



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both common law and civil law systems. We will draw upon their expertise and
guidance in completing the project and in publicising our research.

TIMING AND DURATION

The Institute would be able to commence the research shortly after funding is
secured. We envisage that the research could be conducted within a 12-month
period, depending on the agreed scope of the project. The date of
commencement and duration of the project are negotiable.

FUNDING

The Institute is not publically or privately funded by any one government, institution or
person. Research projects are funded by a wide variety of bodies, including law firms,
accountancy firms, national governments, the European Commission, private trusts
and foundations, and non-governmental organisations. Projects may be supported by
donors acting individually or collectively.

If you or your organisation would be interested in sponsoring this project, please
contact Jill Barrett, Senior Research Fellow in Public International Law, on 020 7862
5159 or j.barrett@biicl.org or the Institute’s Director Professor Robert McCorquodale
on 020 7862 5151 or r.mccorquodale@biicl.org

British Institute of International and Comparative Law
October 2010




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