When Piracy is Just Armed Robbery
Op-Ed by Herbert I. Anyiam
There is a general consensus in the global maritime industry that the rate of unlawful acts against vessels in the Gulf of Guinea (GoG) has been on the increase in recent years. However, information on the exact nature of such unlawful acts in the region is distorted and unreliable with confusing statistics – hampering efforts to suppress the menace.
There are confusing definitions of piracy and armed robbery at sea, coupled with weak legal mechanisms for dealing with and prosecuting apprehended offenders. There is also evidence suggesting that most unlawful acts against vessels in the region, irrespective of their nature or location, are erroneously being classified as acts of piracy. There have also been various allegations of low prosecution rate for apprehended offenders.
The Nature of Crimes Against Vessels in GoG from a Legal Perspective
It is vital that the exact nature of the unlawful acts against vessels in that region is established from a legal perspective so as to determine whether any counter measures, including apprehension and prosecution of offenders, should be international or nationalistic in approach or a combination of both. It seems that the confusion over the legal nature of crimes against vessels in GoG is due to the different definitions of piracy adopted by the International Maritime Bureau (IMB) and the International Maritime Organisation (IMO).
The IMB is an agency established by the International Chamber of Commerce (ICC) with the support of the IMO for the purpose of collecting, exchanging and disseminating information on maritime crimes for the benefit of international commerce. Until 2009 the IMB defined piracy in its annual reports as:
An act of boarding (or attempted boarding) with the intent to commit theft or any other crime and with the intent or capability to use force in furtherance of that act.
The IMO is the United Nations agency with responsibility for the safety and security of shipping and the prevention of marine pollution by ships. IMO has adopted the international law definition of piracy under the United Nations Convention on Law of the Sea (UNCLOS) 1982. Article 101 of UNCLOS 1982 provides that:
Piracy consists of any of the following acts:
(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).
The IMO clarifies the position further with a separate definition for armed robbery against ships as follows:
1) Any illegal act of violence or detention or any act of depredation, or threat thereof, other than an act of piracy, committed for private ends and directed against a ship or against persons or property on board such a ship, within a State’s internal waters, archipelagic waters and territorial sea;
2) Any act of inciting or of intentionally facilitating an act described above.
It is worthy to note that the IMB’s definition of piracy above makes no distinction as to the nature or location of unlawful acts against vessels, including unlawful acts against vessels whether in internal waters, within or outside port facilities, and whether within or outside territorial waters. On the contrary, the IMOs’ definition recognizes a distinction between piracy as only occurring in international waters and all other unlawful acts within internal and territorial waters and port facilities as armed robbery. For this purpose, international waters means all maritime zones, including the Contiguous Zone, the EEZ, and High Seas, but excluding the Territorial and Internal waters.
Thus the distinction between Territorial Waters and International waters is crucial in establishing whether a criminal act against a vessel constitutes piracy under international law. This leads to the question: what is Territorial Waters? The answer is provided by Article 3 of UNCLOS stating:
Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.
Under UNCLOS, a coastal state may claim right to Territorial Sea of any breadth subject to a maximum limit of 12 nautical miles from the baseline.
The IMB’s definition of piracy above may be useful for commercial expediency. However, in the quest for a strategy to tackle unlawful acts against vessels in GoG (or anywhere); including where to prosecute offenders, a legal definition will be more appropriate. Therefore it is submitted that the IMO’s definition of piracy in accordance with Article 101 of UNCLOS should be the preferred mechanism for this purpose. This is because piracy is an international crime for which every state has the right and duty to fight. Theft and armed robbery within internal waters, port facilities and territorial waters is a national problem properly dealt with under the domestic laws of each country.
Moreover, some of the theft and armed robberies against vessels in GoG and Nigeria in particular, are due to high level of bribery and corruption, such as port and security personnel colluding with criminals. Thus, it is not only inappropriate but it is legally wrong to describe theft and armed robbery against vessels within internal and territorial waters and port facilities as piracy.
Critics to the above position may point out that some countries, such as the United States, are yet to ratify UNCLOS. The answer to such critique is that the definition of piracy under UNCLOS is not a new concept. It is a restatement of the customary international law which was previously codified in similar language under one of the preceding conventions to UNCLOS, i.e. the High Seas Convention (HSC) 1958, to which the United States and other non-UNCLOS countries are parties. Above all, as at 29 October 2013, UNCLOS had either been ratified or acceded to by 166 States worldwide which makes it one of the most widely accepted international conventions of all time.
Further support as to why the definition of piracy under UNCLOS is the most appropriate mechanism for determining whether an unlawful act should be classed as such could be found from the fact that the IMB’s annual reports since 2010 adopts this view. In fairness, it seems that the IMB has taken steps to rectify the confusion with its definition of piracy, but this has not had any impact since its statistics are not broken into separate heads for international waters and territorial waters, whereas most players in the global maritime industry rely on the IMB’s statistics in making crucial decisions, such as designating High Risk Areas (HRA) as well as fixing insurance premiums and freight rates.
Statistics for crimes against vessels in GoG
Having made a case as to why the IMO’s definition of piracy based on UNCLOS should be the preferred mechanism for determining whether or not an unlawful act constitutes piracy to warrant international action, we now look at the IMO’s own statistics to ascertain the legal nature of the unlawful acts against vessels in GoG. Although the IMO’s statistics are described as a Regional Analysis on West Africa, but it relates to the whole of GoG as it includes the few reported incidents of unlawful acts against vessels in central Africa, such as the incident of the MV Kerela which took place in the internal waters of Angola on 18 January 2014.
Below is a table compiled by the IMO for unlawful acts against vessels in West Africa (including central Africa) for the period between 10 August 1995 and 6 March 2014. The table gives a breakdown of location of all reported incidents for that period, indicating the total number of reported incidents for International Waters, Territorial waters and Port area; the status of the vessels at the time of the incident – whether steaming, at anchor or unspecified; number of attackers involved; consequence of the attacks on the crew; nature of weapons used by the attackers; parts of the vessel raided; and other miscellaneous information such as number of lives lost, number of wounded crew, number of missing crew, number of crew taken hostage, number of crew assaulted and whether any ransom was paid.
IMO Regional Analysis of unlawful acts against vessels in West Africa between 10 Aug 1995 and 6 Mar 2014
Location of incident
In international waters 158
In territorial waters 296
In port area 389
Status of ship when attacked
At anchor 457
Not stated 64
Number of persons involved in the attack
1-4 persons 241
5-10 persons 208
More than 10 persons 85
Not stated 290
Consequences to the crew
Actual violence against the crew 277
Threat of violence against the crew 110
Ship missing 1
Ship hijacked 36
None/not stated 223
Weapons used by attackers
Rocket-propelled grenades 2
None/not stated 336
Parts of ship raided
Master and crew accommodation 18
Cargo area 152
Store rooms 261
Engine room 5
Main deck 9
Not boarded 166
Not stated 66
Lives lost 46
Wounded crew 181
Missing crew 7
Crew hostage 519
Total number of incidents reported per area 843
From the IMO’s Regional analysis on maritime crime in West Africa above, it could be seen that a total of 843 reported incidents of unlawful acts against vessels took place in the more than 18 year period between August 1995 and March 2014. Out of the above figure, only 158 reported incidents took place in international waters which could legally be classified as acts of piracy. Of the remaining 685 reported incidents for that period, 296 incidents took place in Territorial Waters and 389 incidents took place in port areas.
Based on the IMO Regional Analysis above, it is clear that more than 81 percent of the reported incidents of unlawful acts against vessels in the West African region (and indeed GoG) should be properly and legally classified as armed robbery, whereas piracy accounts for less than 19 percent of such incidents.
To be Contined.
Herbert I. Anyiam LLB(Hons), BL, LLM, MCIArb is the CEO of Global Maritime Bureau, an international maritime consultancy firm in the UK. He is a dual qualified lawyer in England & Wales and Nigeria and a member of the Chartered Institute of Arbitrators. He is an expert in international maritime and admiralty law, international dispute resolution services and multi-jurisdictional disputes. He is a Supporting member of London Maritime Arbitrators Association (LMAA), member of the International Maritime Statistics Forum (IMSF) and a member of International Maritime Organisation (IMO) Roster of Expert Consultants.
This article originally appeared at CIMSEC and was republished with permission.