Wednesday, March 27, 2013

Defining Piracy


            Most of us likely already have a solid understanding of the definition of piracy on a basic level, as maritime robbery. For the purpose of our in-depth issue area investigation however, it is essential that we analyze various definitions and potential mechanisms of categorization in order to identify a consensus definition, which encompasses all of the factors we wish to consider. In order to settle upon a satisfactory definition let us consider the definition of piracy decided upon at the UN Convention on Laws of the Seas (UNCOLS), the definition posed by the International Maritime Bureau (IMB) of the International Chamber of Commerce (ICC), and finally, a categorization scheme to identify the different types of pirate actors we see adapted from categories of maritime crime proposed by Dana R. Dillon, a senior policy analyst for Southeast Asia in the Asian Studies Center at the Heritage Foundation

(Note: While the writer acknowledges the existence of piracy in forms other than maritime, for example aircraft piracy, or the piracy of copyrighted works or ideas such as software and literature, this investigation focuses primarily on piracy as it relates to physical theft or assault, especially that which is seaborne. While a case may be made for the relevance of the piracy of intellectual property to human security, the piracy group decided to focus its study on piracy in the context of maritime law due to its larger contribution to the study of security in a holistic sense.)
            
            Before launching into the task of defining piracy, let us consider why the issue at hand is a concern in the field of security. Not only does piracy pose the very obvious threats to the individual human security of those who are vulnerable to pirate attack while on the Straits of Malacca or off the coast of Somalia, it also poses great economic threats. For example, global commerce is negatively impacted by piracy due to decreased efficiency when good shipments are prevented/interrupted or when trade lanes become unusable. Piracy also has economic ramifications in relation to ransom payments as well as fees for increased ship security and including guards on vessels. Most importantly, piracy threatens the lives of both naval crews and civilians, and acts as another arena for terrorism, similar to aviation hijacking. (1)

          Now, to move on to defining piracy: According to the UNCLOS definition, 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). (2)

            At first glace this definition, found in Article 101 of the 1982 UNCLOS, seems relatively inclusive, however, it restricts the definition of piracy to include only those acts of aggression that take place on the high seas, and outside the jurisdiction of any state. According to this definition acts that occur within a state’s territorial waters are considered armed robbery at sea, not piracy. This is clearly problematic because defining piracy in this way ignores all cases that seemingly fit the bill: illegal acts of violence against a private ship, but occurred either in ports or in territorial waters, which fall under state jurisdiction. In 2003, only 27% of the more than 450 reported pirate attacks were covered under the UNCLOS; the remaining 330 maritime attacks took place in waters under state jurisdiction and therefore, according to UNCLOS, were not piracy. (3) While this definition covers an adequate variety of actions to be considered piracy (illegal acts of violence on the high seas or on board an aircraft, act of voluntary participation in pirate ship operation, intentionally facilitating an act considered piracy, etc), when utilized in isolation, it is simply not sufficient.  

              The definition followed by the IMB is based largely upon that of the UNCLOS, however, expands to include attempted attacks and is not limited to ships on the high seas. The IMB characterizes piracy 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 the furtherance of that act.” (4)
            

            On its own this definition too, has evident flaws, namely failure to consider all relevant actors in piracy. We can come to understand these shortcomings by considering the various actors that commit the crimes of piracy.  Dana R. Dillon , a senior policy analyst for Southeast Asia in the Asian Studies Center at the Heritage Foundation separates maritime crime into four different categories. I propose that these categories are a great way to breakdown the different actors we can consider to be pirates. Firstly, there are “real pirates” in the traditional sense… the armed men who board ships while they are at sea. These pirates are typically relatively well organized and equipped for the task at hand. They are generally economically motivated. (3)  Pirates of Somalia are a prime modern example of what falls into this first category: they are oftentimes poor fishermen whose livelihoods have been negatively impacted by overfishing in the area. (5) Further, there are heavily armed and oftentimes, “surprisingly well-organized, down to having their own packets of paperwork -- on letterhead -- for their victims.” (6)
           
             Other candidates for committing crimes of piracy are dockworkers and fishermen, or those who simply have the opportunity to steal the unsecured stores of docked shipped. These “opportunistic pirates” are similarly economically motivated but have very different means from traditional pirates. (3) It is important to keep in mind that while these actors do constitute a branch of piracy, the outcomes they cause are not nearly as significant as those caused by real pirates and terrorist pirates. For this reason, they must be clearly identified as a lesser threat. 
            
            Finally, it is important to consider maritime terrorists are candidates of piracy. Their means are far more similar to traditional pirates than they are to those of opportunistic pirates albeit oftentimes less organized and less trained than the former. These “terrorist pirates” are largely motivated by political goals rather than economical. (3) An example of this type of pirates is the Sri Lankan Sea Tigers, a branch of the Liberation Tigers of Tamil Eelam (LTTE) terrorist organization, who, beginning in 1980, targeted Sri Lankan naval ships to destroy vessels and kill soldiers. The motivations are the LTTE are largely political and center upon the desire of the separatist militant group to create an independent state for ethnic Tamil people. 
            
          So, if neither of the definitions, nor Dillon’s categorization scheme is adequate in defining piracy on its own, what consensus can we come to that will enable us to study this issue area with focus and purpose? We must combine aspects of each component considered above in order to be thorough investigators. Thus our consensus is as follows: maritime piracy is an act of, participation in, or incitement of violence, detention or theft against a ship on the high seas, in state territorial waters, or docked in a port, committed  by private actors falling into one of four categories: “real (traditional) pirates,” “opportunistic pirates,” or “terrorist pirates.”



Works Cited
(1) http://digitalcommons.law.seattleu.edu/sulr/vol36/iss1/3/
(3) http://muse.jhu.edu/journals/sais_review/v025/25.1dillon.html#authbio
(4) http://www.google.com/url?sa=t&rct=j&q=%22piracy%20and%20armed%20robbery%20against%20ships%2C%22%20annual%20report%2C%20international%20chamber%20of%20commerce%2C%20international%20maritime%20bureau%2C%20jan.%201-dec.%2031%2C%202003%2C%203&source=web&cd=1&ved=0CDIQFjAA&url=http%3A%2F%2Ffin.nepia.com%2Fmodules%2Fassetlibrary%2Fz_extra%2FgetAsset.php%3Ftype%3Dfile%26id%3D1238&ei=xzJSUaq_B8Wx0QHfq4Bg&usg=AFQjCNHLfSzmoZTU-Hw5hQvapGlipiRoow&bvm=bv.44342787,d.dmQ
(6) http://www.businessinsider.com/somali-pirates-are-surprisingly-organized-2012-8

16 comments:

  1. Do you consider the actions of eco terrorist groups such as Sea Shepard who actively seek to disrupt commerce and cause harm to ships on the high sea as a acts of piracy?

    ReplyDelete
    Replies
    1. Interesting thought, Jeff. My first instinct is to say no, they're not pirates, because I have a tendency to view pirates as having only a negative connotation and it seems as though the Sea Shepherds have purely good intentions, especially since I myself am passionate about ecosystem conservation efforts. However, let's examine them using our consensus definition (see my last paragraph above) to avoid a biased analysis...

      As a nonprofit organization the sea shepherds are definitely private actors. It seems as though their main working domain is on the high seas, and they certainly do incite violence/theft by purposely sinking ships or stealing and destroying drift nets. They appear to fit all of the qualifications of my definition of piracy.

      Placing them in a category is tough. Their motivations are ideological, not economical, so I am inclined to place them in the terrorist category, though I admit it seems a bit too harsh for a wildlife conservation organization. Regardless, I feel that their actions justify the placement of them in this category and do not feel that an exception to our working definition of piracy should be made in this case.

      Do you disagree?

      Delete
  2. I just have a slight clarification question, while separating piracy into three different subcategories I do understand the difference between traditional pirates and terrorists. However, I find myself stumbling a little over the difference between opportunistic pirates vs the traditional type. So I was wondering if you could explain that a little further.

    ReplyDelete
    Replies
    1. Hi Frank, thanks for the question. There is absolutely some overlap between the categories of traditional and opportunistic pirates, namely the face that they are both economically motivated for the most part. The major differences between the two categories lie in their means and their inherent identities. Traditional pirates are usually far more organized and well equipped with gear and weaponry. Though you may recall from Katie's presentation on Friday that weaponry among traditional pirates varies to some degree, they have in common the fact that they do carry weapons of some sort. Opportunistic pirates on the other hand, are often unarmed-aside from any security weapons they may be carrying for another reason. If they are armed they usually carry only knives. They tend to work in smaller numbers and their attacks are most often nonviolent.

      Traditional pirates' plans are usually constructed well in advance, while opportunistic pirates may just see an opportunity for theft and decide to take it on the spur of the moment. These pirates of opportunity are usually those with other full-time jobs, so to speak, that allow them close and regular access to ships docked in a port.

      For some examples of opportunistic pirates, check out this 2011 report frm the International Maritime Bureau. http://psm.du.edu/media/documents/industry_initiatives/industry_reports/maritime_imb_annual-report-2011.pdf

      See the chart beginning on page 42. I think 6, 12 and 13 are great examples of opportunistic pirates(there are actually a lot of good examples of opportunistic pirates, -see robbers- in the chart), while 10 and 11 are good examples of traditional pirates...they include more violence, more weapons and more threats.

      Delete
  3. I have a couples questions regarding the 1982 UNCLOS definition of piracy. Why do you think that the definition of piracy is so specific in the sense that the definition of the act of piracy is so precise, but the territorial restrictions of 12 miles out from the coast is so exclusive of much of what would be considered piracy otherwise? It seems to me that there is some ambiguity in defining territorial waters of states outside of the 1982 definition. Does the UNCLOS set a legal precedent for accurately defining territorial waters of states? Also, by the UN definition, I would imagine that the cases of piracy that do meet all the qualifications of piracy do not occur with nearly as much frequency as robbery at sea. What do you think?

    ReplyDelete
    Replies
    1. I think the 1982 UNCLOS definition defined piracy in that way for a few different reasons. The act of piracy was defined very specifically in order to establish it as a distinct, completely unique phenomena, different from land based operations and therefore requiring different approaches. The territorial restrictions were set primarily to avoid governance issues. Since the UN is a multinational organizations, acting in territorial waters within the jurisdiction of states would likely cause conflict. I see what you mean about the ambiguity of the definition....in all of the scholarly sources I used for my research it was defined as approximately 12 nautical miles (at the maximum), however, Brittanica Encyclopedia describes territorial waters as anything from 6-12 miles offshore, obviously a pretty wide span.
      Finally, you are absolutely right. The numbers that back up that assumption of yours are exactly why I expanded on the UNCLOS definition to include robbery at sea. In my opinion it should be treated in the category of piracy.

      Delete
  4. In your discussion of terrorist pirate you cite the idea that piracy "acts as another arena for terrorism, similar to aviation hijacking," and I'd like some clarification on this. How exactly have terrorists used piracy? Have they just taken hostages and cargo? Have they used the ships as weapons? Have they causes oil spills? Etc.

    ReplyDelete
    Replies
    1. to piggy back on Jenny Sue, does the literature/global environment suggest that these sorts of attacks could occur in the future via pirates?

      Delete
    2. Thanks for the question, Jenny Sue. In response I'd like to turn, again, to the example of the Sea Tigers, a branch of the terrorist organization called the Liberation Tigers of Tamil Elam. Their primary methods of attack were actually not taking hostages or cargo. They functioned mostly to oppose the actions of the Sri Lankan Navy and were well known for their swarm attacks during which multiple Sea Tiger ships would surround a Sri Lankan naval vessel and prevent it from escaping while another Tiger ship came and detonated explosives. I have found no sources referencing their use of oil spills, once again, they caused terror by both sinking and blowing up naval ships. To read more about them, check out this link: https://globalecco.org/learning-from-our-enemies-sri-lankan-naval-special-warfare-against-the-sea-tigers#All.

      Delete
    3. C. Cohen, I am a bit unsure what sorts of attacks you are referring to....in regards to Jenny Sue's last three questions:
      1. Pirates have certainly taken hostages and cargo, if you check out this report you'll see that Somali pirates are currently holding 65 hostages and 5 stolen vessels.
      http://www.icc-ccs.org/piracy-reporting-centre/piracynewsafigures

      2. Ships have been used as weapons in a way similar to suicide bombs. Ships loaded with explosives are often detonated nearby enemy ships. See the link I posted in my reply to Jenny Sue, which discusses how the Sea Tigers used a suicide ship in their swarm attacks.

      3. I have found no evidence of oil spills being used as a means of attack by pirates in the past but see potential for this to emerge as a future issue. It seems that if a terrorist pirate's primary goal is to cause difficulty for their enemy so as to set them back, an oil spill would be an effective way to accomplish this.

      Please let me know if this does not answer your question!

      Delete
  5. I'm currently listening to the podcast assigned for Friday. At around 23:07, Charles Dragonette defines piracy as a land based operation. Would you consider adding this to your definition following our study in class or can you defend your definition posted here?

    ReplyDelete
    Replies
    1. I think you make a good point, however I hold my point that piracy does not include land based operations. Maritime piracy exists as a category on its own for reasons similar to those that explain why our armed forces are divided into categories like the navy, the air force and the army. Land and sea based operations bring about different circumstances that require different methods of intervention. For example, while cities can easily be policed by armed officials to help reduce theft and violence, employing similar defense at sea presents a whole host of complications primarily, the debate over whose job it is to monitor international water. It is also important to consider the vastness of bodies of water in the world and how difficult this makes it to employ similar defense mechanisms to those that have been used on land.

      Delete
  6. Why do you think some countries find it necessary to have narrow definitions of piracy? Do you feel that these countries set up legal blockades for themselves by restricting their definitions? Are there benefits to restricting the legal definition of piracy?

    ReplyDelete
    Replies
    1. Julia, the definition of piracy that I considered was not on a country-by-country basis, but rather an international standard set for by the United Nations. I feel that a narrowly defined definition of piracy does limit the amount of control the global community as a whole has in acting to combat piracy because jurisdiction becomes a sticky subject, and can be difficult to determine since it is based on milage from shore which is not always obtainable information. Perhaps the only benefit I see to limiting the definition of piracy is the fact that the cases that do happen to fall perfectly under the definition are very clear cut and easy to deal with due to the specificity of guidelines set forth.

      Delete
  7. What are the legal differences between armed robbery at sea and piracy? Are the penalties substantially different?

    ReplyDelete
    Replies
    1. Julia, the legal penalties weren't something I focused on my research but a quick search led me to this article: http://oceansbeyondpiracy.org/sites/default/files/obp_penalties_for_piracy_final.pdf
      which gives the average sentence globally for a convicted pirate to by 18.85 years in prison.
      While I wasn't able to find statistics regarding the average penalty for armed robbery at sea specifically, however, this article: http://www.judcom.nsw.gov.au/publications/st/st26
      mentions that post 1999 when a new legal guideline was implemented, the average term served for armed robbery is 32-72 months, or roughly 2-6 years, quite a large difference from the average term served by pirates. Hope this helps!

      Delete