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Piracy and International Law

Petros Siousiouras - Associate Professor, Department of Shipping, Trade and Transport, University of the Aegean

Evi Baxevani - PhD candidate, Department of Shipping, Trade and Transport, University of the Aegean

 

Abstract

Since antiquity, the sea has been a source of wealth and means of trade. Inevitably, intensive economic activity became a big draw for illegal actions and more specifically for misappropriation of shipments, ships or even crew. The birth of the open sea notion, inextricably linked to the notion of free navigation, is traced back to ancient times, while the milestone for its establishment was the work of Hugo Grotius Mare Liberum (1609). Depending on the position of the ship at sea, the legal regime differs, regarding state jurisdiction exercised on the ship as a material object as well as on its crew when it comes to penal or civil jurisdiction. Piracy is defined as a crime committed in the open seas, namely at the sea area where no state has sovereignty. Thereupon, piracy as an international crime can only be when it takes place in the open seas or the Exclusive Economic Zone (EEZ) of a state [art. 58(2) UNCLOS], a zone which follows territorial sea, where state exerts absolute sovereignty. The issue of state jurisdiction is linked to state sovereignty, given that the latter is a necessary prerequisite for the former. Regarding jurisdiction at sea, on the basis of the absence of any state sovereignty in the open seas, the theory of ship territoriality was formerly in place, according to which every ship was considered to be, fictio juris, ground of the flag state. Due to harsh criticism, that theory was abandoned to be replaced by the currently prevailing theory of pertinence and divisible sovereignty. The 1982 Convention incorporated regulations in place since the 16th century (Henry VIII, Offences at Sea Act), defining piracy as an “international crime” (jure gentium) and pirates as “enemies of mankind” (hostes humani generis). It is therefore a crime of global jurisdiction, crystallizing a customary rule of law, of absolute form, insofar as no link of the offenders or the victims to a state is examined. It is noteworthy that, despite the long-term presence of the phenomenon, there is no official international legal definition, and the punishment of those arrested is up to national legislation in force at the time.

 

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