Douglas Guilfoyle (ed), Modern Piracy. Legal challenges and responses

• Author: Dr. Michael Underdown
• Position: School of Law, James Cook University
• Pages: 48-50

(2014) 28 ANZ Mar LJ

48

BOOK REVIEW

Douglas Guilfoyle (ed), Modern Piracy. Legal challenges and

responses. Edward Elgar, Cheltenham (2013). xvi, 354 pp.

ISBN 9781849804844

Dr Michael Underdown*

This book contains papers presented at a workshop convened at University College London in 2011 by the

members of the Modern Laws of High Seas Piracy Project. The contributors include judges and former judges,

legal academics, legal practitioners, former naval officers and senior civil servants and thus provides both

private and public law perspectives on this ever challenging issue.

As the title indicates, the book is primarily concerned with the legal challenges posed by modern piracy. The

book is divided into four parts: the first part considers the current situation in Southeast Asia, Somalia and West

Africa and the various bodies involved in the anti-piracy response; the second and third parts are concerned with

public and private law questions respectively; while in the final part the editor highlights some of the major

themes.

One of the most fundamental problems in combating piracy, if not the key problem, is the definition of piracy

itself. As Robert Beckman points out, the definition of piracy in the United Nations Convention on the Law of

the Sea 1982 (UNCLOS III), which itself was largely a codification of customary international law, refers in

Article 101(a) to acts of violence, detention or depredation committed on the high seas by a private vessel

against another vessel for private ends. Even though piracy can also be committed in the Exclusive Economic

Zones (EEZ) of coastal States as specified in Article 58(2), and two other offences constituting piracy under

UNCLOS III have no specific locational restriction (voluntary participation in a pirate craft and facilitating or

inciting piracy) (see page 326), the fact remains that the restriction of piracy to private acts committed on the

high seas means that many instances commonly described as piracy are, in fact, ‘armed robbery against ships’ as

defined by the International Maritime Organization (IMO) in the Code of Practice for the Investigation of

Crimes of Piracy and Armed Robbery against Ships (2009) or offenc es under the Convention for the

Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 (as are also many of the actions

of the Sea Shepherd vigilantes).

Robert Beckman examines offences against ships in Southeast Asian waters and the measures taken especially

by Singapore, Malaysia and Indonesia to suppress attacks on shipping. Although this cooperation has been

largely succes sful, there are still two disturbing trends: ‘theft against ships at anchor in territorial waters’ and

hijacking and ‘re-birthing’ of tugs to order. He sees the way forward as involving improved information

sharing, capacity building, ratification and enforcem ent of international conventions in this area and review of

national legislation against piracy – all suggestions which are equally relevant elsewhere.

Somali piracy has attracted the most attention in recent years. As Douglas Guilfoyle explains, while illegal

fishing in Somali waters is sometimes used as a justification by the pirates for their activity, the reality is that

the breakdown of law and order in Som alia, and particularly in Puntland, has led to the creation of a successful

business model which, with the use of ‘mother ships’, has enabled the Somali pirates to range ever furth er from

the coast. Hijacking of vessels and the taking of hostages for ransom led the UN Security Council to adopt

Resolution 1816 on 2 June 2008, authorising member States to enter Somali territorial waters and use ‘all

necessary means to repress acts of piracy and armed robbery’ (paragraph 7). Subsequently, naval operations

have been conducted by the United States (CTF-151), NATO (Ocean Shield) and the European Union (EU

NAVFOR) and by a number of countries whose shipping has been affected (including India, China and South

Korea). Shortly thereafter, UN Security Council Resolution 1851 of 16 December 2008 authorised a shift

towards law enforcement, including arrangements for the custody and prosecution of pirates and armed robbers.

Many of the problems with suppressing piracy revolve around these last two issues. Taking a warship out of a

naval convoy to transport a few pirates back to Europe, Australia or the United States is both deleterious from a

military viewpoint and not cost effective. At the same time, there is not a lot of inclination to prosecute,

sentence and detain captured Somali pirates.

* School of Law, James Cook University.