Legal Aspects

Piracy in municipal law may differ from the international law definition and for example ‘piracy’ has never been defined in English law.  This has lead to persistent confusion in the media and in the Courts and in arriving at any common understanding of what a lay person may understand to be the ‘piracy problem’.   Thus legislators have over time created an arguably flawed framework – from a practical point of view – in which the nature of the offence does not determine whether a particular type of crime has taken place but the nature of the crime is determined by the locus or place of the event. 

Article 101 - UNCLOS

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).

IMO adopted a code of practice for the investigation of crimes of piracy and armed robbery against ships with regard to Article 101 of the UN Convention on the Law of the Sea (UNCLOS) at the 74th meeting of its Maritime Safety Committee.  This code of practice creates a distinction between piracy and armed robbery against ships with the definition:

‘Armed robbery against ships means 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 the State’s jurisdiction over such offences.’

While the rationale in identifying jurisdiction is clear nevertheless this explains why very few piracy cases have resulted in prosecution and why ‘legal’ misunderstanding and confusion regarding ‘piracy’ persist.

Additionally the International Maritime Bureau (IMB) defines Piracy and Armed Robbery as:

‘An act of boarding or attempting to board any ship with the apparent intent to commit theft or any other crime and with the apparent intent or capability to use force in furtherance of that act.’

This functional and widely used definition covers actual or attempted attacks whether the ship is berthed, at anchor or at sea but excludes petty theft unless the thieves are armed.