Piracy in the Traditional Law of the Sea

This was not always the case. For there is not much disagreement about
the crime of piracy under traditional law of the sea; and there has long
been a consensus, in both public and private international law of the
sea, regarding the powers and obligations of States with respect to acts
of piracy and persons engaged in acts of piracy, in areas within and outside
their jurisdiction. Indeed, until quite recently, it was believed that
the traditional definition of piracy, as contained in judicial decisions and
finally codified in international conventions, constituted an adequate
basis for determining not only the essential characteristics of the offence
of piracy but also for determining the measures which individual States
could legitimately take to deal with acts of piracy, and with persons alleged
to have been engaged in such acts.
The questions raised by the Santa Maria and the Achille Lauro incidents
were not seen as seriously undermining the continued validity of
this consensus. The general view at the time was that the offences
committed in these incidents did not fully fit the parameters established
for piracy under customary international law or in the relevant provisions
of the 1958 and 1982 conventions. For this reason it was considered
necessary to supplement the law with a new regime to deal with
these new offences. The result was the introduction of the new offence
of “armed robbery against ships” as a separate, though related, threat to
international shipping.

Indeed, the Security Council of the United Nations, following the lead
of the International Maritime Organization (IMO) has recognized the
dual nature of the current threat faced by international shipping. In its
resolution 1816 of 2 June 2008, the Security Council emphasized the
need to combat both the traditional acts of piracy, as well as “armed
robbery against ships”.
Armed robbery against ships is defined by IMO as: “any unlawful act
of violence or detention or any act of depredation, or threat thereof,
other than an act of piracy, directed against a ship or against persons or
property on board such ship, within a State’s jurisdiction over such offences”.
This two-facetted approach has been incorporated in the International
Convention on the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation, 1988 (1988 SUA Convention) and its revised version
of 2005. The purpose of these instruments was to ensure that, at
least in theory, there would be no gap in the international law relating
to illegal acts against merchant shipping. Any act that could have an adverse
effect on the safety of navigation at sea, or can be proved to have
been intended to have such an effect, was to be dealt with by reference
to agreed international law procedures, whether or not the act fell
within the strict ambit of the definition of “piracy” under conventional
or customary law of the sea.

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