Murphy Martin. Small Boats, Weak States, Dirty Money. Piracy & Maritime Terrorism in the Modern World
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1
WhAT IS pIRACY?
A slippery concept
piracy, very simply, is unlawful depredation at sea involving the use or threat
of violence possibly, but not necessarily, involving robbery. It has been
around for a very long time and this is how it was commonly understood for
a very long time, certainly since the end of the seventeenth century.
piracy, while not a political crime, has invariably been linked to politics
and the expression of state power or, more commonly, weakness. is link-
age has meant that the common notion of piracy has rarely been applied
without some form of caveat or exemption that has changed its meaning.
In the latter half of the twentieth century these changes—amounting al-
most to confusion—have grown as the number of states has grown and
as each of these states has claimed (or been awarded by default) greater
and greater jurisdiction over its territorial waters. is jurisdiction has been
extended by international law through a succession of agreements without
regard to the ability of many states to exercise proper authority over sea
areas that can extend for hundreds of thousands of square miles and touch
thousands of miles of coastline.
Lawyers and diplomats almost certainly would not accept the term
“confusion”. e uK house of Commons Transport Committee in its
2006 report on piracy certainly would. It wrote: “e absence of a single
definition means that the classification of violent maritime incidents can
become a matter of dispute and confusion.”
1
Naval officers, coast guards
and police officers charged with suppressing piracy almost certainly would
1 house of Commons Transport Committee, Piracy, hC 1026, London: e
Stationery Office, 2006, p. 11.
8
small boats, weak states, dirty money
accept it, and so would the victims. For them the act of piracy, which
technically can only occur on the “high seas”, compared to armed robbery
at sea—which technically can occur only within territorial waters—is a
distinction without a difference. Yet the English courts endorsed the defini-
tion of C.S. Kenny, the British jurist, that piracy was “any armed violence
at sea which is not a lawful act of war” as recently as 1934 in the landmark
decision, In re Piracy Jure Gentium.
2
J.L. Anderson echoed this definition
when he characterised piracy as a “subset of violent maritime predation in
that it is not part of a declared or widely recognised war”.
3
e Internation-
al Law Association in their 1970 Report defined piracy simply as “unlawful
seizure or taking control of a vessel by violence, threats thereof, surprise,
fraud or other means”.
4
Furthermore, the International Maritime Bureau
(IMB), which because it is a commercially funded organisation rather than
an international body and therefore does not need to take undue account
of the sensitivities of states, was able to define piracy pragmatically as “An
act of boarding or attempting to board any ship with the intent to commit
theft or any other crime and with the intent or capability to use force in the
furtherance of that act.”
5
In contrast, the united Nations Law of the Sea Convention, 1982 (uN-
CLOS), surrounds its definition with restrictions and limitations. Article
101 describes piracy as:
(a) any illegal acts of violence or detention, or any act of depredation, com-
mitted 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;
2 In re Piracy Jure Gentium, 1934 App. Cas 586, 598, reprinted in 3 BRIT. INT’L.
CASES 836, 842 (1965) and cited in Malvina halberstam, ‘Terrorism on the
high seas: e Achille Lauro, piracy and the IMO convention on maritime
safety’, e American Journal of International Law, vol. 82, no. 2, April 1988, p.
273.
3 Anderson, ‘piracy and world history’, p. 82.
4
p.W. Birnie, ‘piracy: past, present and future’, Marine Policy, vol. II, no.
3, July 1987, pp. 170-1.
5 ICC-International Maritime Bureau, Piracy and Armed Robbery Against Ships:
Annual Report. 1 Jan.-31 Dec. 2005, p. 3 [hereafter referred to using the for-
mula ICC-IMB piracy Report, date ]
9
what is piracy?
(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.
6
is is the definition used by the International Maritime Organisa-
tion (IMO). e IMO is the united Nations agency with responsibility
for maritime issues. e only people who are pleased are the pirates (one
minute) or armed robbers (the next minute) as they skip from one side
to the other of an invisible line that divides the high seas from territorial
seas in order to evade capture.
7
Some of those seeking an explanation for
this confusion would blame it on the greed and competitiveness of states.
Some would perhaps go further and see the problem as being one that
only an internationally agreed law can solve. Others, possibly, would feel
that it is the perfect illustration of the limitations of international law and
a demonstration in microcosm of how inadequate it can be in the face of
practical challenges. It is salutary to recall that the rise of naval power dur-
ing the nineteenth century—particularly the near ubiquity of the Royal
Navy—coupled with the extension of colonies and imperial possessions
around the globe meant that by 1925 it was possible to believe that piracy
was obsolete.
8
6 Available at http://www.un.org/Depts/los/convention_agreements/texts/unc-
los/unclos_e.pdf, p. 61. ere are many problems with this definition, perhaps
the most serious of which is, as Rubin points out, under what legal system is pi-
racy ‘illegal’: Alfred p. Rubin, ‘Is piracy illegal?’ AJIL, vol. 70, no. 1, Jan. 1976,
pp. 92-5.
7 See, for example, Vijay Sakhuja, ‘Maritime order and piracy’, Strategic Analysis,
vol. XXIV, no. 5, Aug. 2000, pp. 923-38 and Sam Bateman, ‘Maritime tran-
snational violence - problems of control and jurisdiction’, paper for seminar on
‘Transnational crime’ at the ApCSS Biennial Conference, honolulu, 16-18 July
2002; peter Chalk, Grey-Area Phenomena in Southeast Asia: Piracy, Drug Traf-
ficking and Political Terrorism, Canberra: Strategic and Defence Studies Centre,
e Australian National university, 1997, p. 37. possibly but not certainly: in
1926 one of the most notorious incidents in inter-war piracy took place when
the SS Sunning was attacked between Amoy and hong Kong: A.G. Course,
Pirates of the Eastern Seas, London: Frederick Muller, 1966, pp. 219-27. In fact,
piracy was suppressed through constant pressure, not as a result of any final de-
feat. A.W. Grazebrook points out that patrolling against piracy was the primary
role of Britain’s China Station right up until World War II. Grazebrook, ‘Naval
forces and the control of piracy in Southeast Asia’, Naval Forces, vol. 6, no. 1,
1995, p. 58.
8 For example Birnie, ‘piracy: past, present and future’, pp. 163-83 where she
cites E.D. Dickinson, ‘Is the crime of piracy obsolete?’ Harvard Law Review,
vol. 38, 1924-25, pp. 334-60. See also James Cable, Gunboat Diplomacy
1919-1991 (3rd edn.), New York: St. Martin’s press, 1994, pp. 152-3.
10
small boats, weak states, dirty money
Arguably the modern world could be content with the narrow uNCLOS
definition. It focuses the attention of the international community on acts of
maritime depredation in international waters. It leaves coastal states with an
unambiguous responsibility to suppress such depredation in their own waters
and to deal with coastal raiding as acts of murder and robbery under do-
mestic law. is book rejects this approach. piracy is complex and although
governments and international organisations are adroit at defining problems
out of existence, this does not make either the problem or the complexity go
away. piracy is distinguished by its mobility and by the often international
character of both its perpetrators and its victims. uNCLOS attempted to
encompass the crime of piracy but failed. Subdividing it permits states to
respond differently (or not at all) to what is essentially a singular problem: the
exploitation of a fluid medium for diverse but violent, criminal acts.
Piracy, politics and corruption
roughout much of history the fortunes of piracy have been intertwined
with the power, fortunes and policies of states, the one often rising as the
other has fallen. States have used pirates but individual pirates have used their
connections with states to advance their interests at the same time as they
have advanced those of their patrons and protectors. By the late sixteenth
and early seventeenth centuries piracy was so associated with England that it
was known as “a nation of pirates”. What was true of Elizabethan England
became true elsewhere: France, pre- and post-Revolutionary America, the
sultanates of the Trucial Coast and Southeast Asia, all were societies where
private and public interests were often as intertwined as they are in many
states today where piracy is allowed to flourish.
Mention of Asian pirates is important. historical understanding of piracy,
and navalism generally, is characterised largely by a narrow Western view.
e world was “discovered” by European navigators. e same can be said
about piracy. e “golden age of piracy” was a Western golden age. But
it was far from alone. In 414 AD Shih Fa-hsien, a Buddhist monk from
Sri Lanka, recorded cases of piracy and marauding in the Malacca Straits
and South China Sea.
9
Chinese sailors kept similar records.
10
From the thir-
9 Chalk, Grey-Area Phenomena in Southeast Asia, p. 23; Adam J. Young. Contem-
porary Maritime Piracy in Southeast Asia: History, Causes and Remedies. Singapore
& Lieden: Institute of Southeast Asian Studies/International Institute for Asian
Studies, 2007, p.26
10 Anderson, ‘piracy and world history’, p. 92.
11
what is piracy?
teenth through to the sixteenth centuries the wakō pirates equipped with
large ships carrying up to three hundred men raided the coasts of China
and Korea.
11
For the pirates of the Malay peninsula, Borneo and the Sulu
islands, which form a chain linking Borneo with what is now the southern
philippines, piracy was an honourable profession, often driven by political
and trading rivalries, that pre-dated the arrival of the colonial powers.
12
e intertwining of private and public creates confusion. Confusion en-
courages corruption and out of corruption comes dependency. It creates
ambiguities where none should exist. Elizabeth was not a weak monarch
but she depended for the defence of her realm upon the sea power she
could not afford. Inevitably, therefore, she depended upon ship-owners,
financiers, commanders and merchants who were involved in maritime
depredation to one degree or other. What was private interest and what was
public often merged. As was noted earlier, a similar merger of interests has
been recognisable in our own times in China, Indonesia and elsewhere.
Piracy in international law
Most law, even most international law, is jurisdictional: it requires a state
to enforce it. is is how it came to be understood in the West, and par-
ticularly in England where interest in how law might apply to the sea was
especially strong. e concept of closed seas—Mare Clausum—was driven
in part by the need to control the activity of pirates or, perhaps more ac-
curately, the piratical temptation experienced by many sea captains. Closed
seas are a fine idea if you are the state doing the closing. ey are not such
a fine idea if you are a state with ships that want to cross the closed seas for
the purposes of trade and in so doing run the risk of being accused of piracy
and boarded. England’s support for closed seas declined as its own trade ex-
panded beyond the confines of the narrow seas it had come to dominate.
Freedom to trade requires the freedom to navigate without interference.
hugo Grotius was the first to formulate a new idea for the jurisdictional basis
of law, Mare Liberum, which gradually found widespread favour based on
a simple division of the sea between territorial waters—which were defined
as a narrow belt over which the coastal state had jurisdiction—and the high
11 In Chinese Wok’ou in Japanese Wakō, both meaning roughly stunted men or
dwarfs: Ralph T. Ward, Pirates in History, Baltimore: York press, 1974, p. 162.
12 Course, Pirates of the Eastern Seas, pp. 84 & 90-1; Adam Young and Mark J.
Valencia, ‘Conflation of piracy and terrorism in Southeast Asia: Rectitude and
utility’, Contemporary Southeast Asia, vol. 25, no. 2, Aug. 2003, pp. 270-1.
12
small boats, weak states, dirty money
seas, where no jurisdiction prevailed (except for that of the flag state over its
own ships). is division was perceived to be of universal benefit. pirates,
who not only threatened this benefit but also attacked voyagers with fear-
ful savagery, were branded as universal enemies, hostis humani generis. On
the high seas, therefore, customary international law established piracy jure
gentium whereby each state had the right and responsibility to arrest pirates
and arraign them under its own domestic laws.
e notion of universality, however, was and is controversial. While
some authorities argue that piracy was a universal crime others deny it ever
could have been, pointing to the lack of an international criminal court
or a specific treaty to which all countries were a party.
13
It is also a notion
that has been misunderstood. As Eugene Kontorovich has demonstrated,
piracy was not condemned for its heinousness. erefore to draw parallels
between it and modern crimes such as genocide is inaccurate.
14
Instead,
it was a practical response to a shared problem. Grotius’ re-formulation
was quintessentially territorial. If its first aspect was to limit the extent of
a state’s territorial waters, its second was to strengthen the idea of a ship
as an extension of a state’s territory so that each one became, in effect, an
“island of territoriality” on the ocean. States, however, were prepared to
accept the encroachment on their sovereignty that the notion of a universal
crime implied because pirates attacked ships of all states and answered to
no one in a part of the world that was beyond the jurisdiction of any state.
Consequently, what might be described rather inelegantly as “qualified
universality” made sense in an era of few states and great empires, most of
which shared a common heritage, with a largely common interest in trade
and peaceful passage to distant colonies.
15
Although the general idea that piracy was in some sense a “universal”
crime was accepted, its interpretation and application in domestic legisla-
tion varied widely. Against this background, and in order to encourage
some limit to this variation, it was hardly surprising that the League of
Nations chose piracy to be one of the first offences for international codi-
13 See, for example, D.h.N. Johnson, ‘piracy in modern international law’, Gro-
tius Society Transactions, vol. 43, 1957, p. 69.
14 Eugene Kontorovich. ‘e piracy analogy: Modern universal jurisdiction’s
hollow foundation’, Harvard International Law Review, vol. 45, no.1, Winter
2004, pp. 183-237.
15 Martin N. Murphy, ‘piracy and uNCLOS: Does international law help re-
gional states combat piracy?’ in peter Lehr (ed.) Violence at Sea: Piracy in the Age
of Terrorism, New York: Routledge, 2007, p. 161.
13
what is piracy?
fication. In 1926 the League’s Committee of Experts for the progressive
Codification of International Law published its Draft Provisions for the Sup-
pression of Piracy. ese were arranged in eight articles that restricted piracy
to the high seas, limited it to private acts, exempted politically motivated
attacks and allowed states to make certain determinations about the status
of belligerents. partly because this Draft failed to secure widespread agree-
ment it was taken no further. Instead a Group assembled by the harvard
Law School agreed to research the whole subject and in 1932 published its
“Draft Convention on piracy with Comments”, now known more usually
as the “harvard Draft”.
16
e Group’s work was comprehensive, and if its
ideas are not reflected in modern thinking to the degree that they deserve
then the reasons for this are twofold. e first is practical: the type of pi-
racy that concerned them most—high seas piracy—had almost completely
disappeared. e harvard drafters, on the other hand, never assumed that
theirs would be the last word on the subject. On the contrary, they believed
their work would be adjusted to suit changing circumstances. It has not
been because of the second reason: complacency. is has had two aspects:
the first is that piracy was seen as a problem out of history, of such little
relevance to the modern world that if it did recur it could be dealt with eas-
ily; the second is that the rights and prerogatives of states have always and
everywhere taken precedence over any measures to prevent and suppress
the problem.
Both attitudes can be seen in the work of the International Law Com-
mission that convened in 1949. e Commission’s purpose was to prepare
a comprehensive maritime law. piracy was not its sole concern; it was mere-
ly one of many that jostled for the attention of the representatives of a large
number of disparate and, in many cases, newly minted states.
17
e proc-
ess concluded with the 1958 Law of the Sea Conference that adopted the
high Seas Convention (hSC), Articles 14-21 of which dealt with piracy.
ese eight articles were based on the harvard Draft, but the Conference
adopted only those parts of the Draft recommended by the Commission
and the Commission recommended only those that it thought the Confer-
ence would accept. As a result, many ideas from customary international
law that the harvard drafters had identified as useful were modified or
16 harvard Research in International Law (hereafter called the harvard Draft),
‘Draft convention on piracy with comments’, AJIL, vol. 26, Supplement, 1932,
pp. 740-885.
17 Barry h. Dubner, e Law of International Sea Piracy, e hague: Martinus
Nijhoff, 1980, p. 38.
14
small boats, weak states, dirty money
dropped. In James Cable’s words the 1958 high Seas Convention “priva-
tised piracy” and marked the date when the “rot set in”.
18
e piracy provisions of the high Seas Convention were incorporated
almost without amendment (Articles 100-107) into the 1982 united Na-
tions Law of the Sea Convention, generally referred to as uNCLOS. If
the high Seas Convention was weak, uNCLOS was weaker. e narrow
definitions of piracy that had been refined through the harvard Draft and
then the International Law Commission followed legal thinking that had
developed over the previous century. is had restricted piracy to acts for
“private ends” as regards purpose, and geographically to the high seas.
19
Restricting the definition of piracy to “private ends” means that acts for
“political ends” are excluded. is is not a serious problem providing that
it is possible to distinguish clearly between the two and that acts for politi-
cal ends are dealt with effectively under separate legislation. e fact is that
they are not and, moreover, it is often impossible to separate the private
from the political.
As far as purely criminal piracy is concerned, the new zonal provisions
in uNCLOS exacerbated the existing geographical restriction. e new
provisions expanded hugely the area of the seas that states could to vary-
ing degrees enclose. Territorial waters had generally been limited to three
miles. In the years prior to uNCLOS there was pressure to widen this
zone. Consequently the Convention agreed to a new limit not exceeding
12 nautical miles (22 kms). All states, moreover, could use the device of
straight baselines (Article Seven) to increase their territorial waters fur-
ther by smoothing coastal indentations and including bays and offshore
islands, although the overall gain as a result of this “smoothing” was not
substantial.
20
Most importantly, the right of hot pursuit into territorial wa-
ters without prior agreement was limited.
21
In addition the Convention
recognised—but once again limited—the claims of several states to en-
close straits used by international shipping, such as the Straits of Malacca.
While the Convention guaranteed free navigation through these straits it
18 Cable, Navies in Violent Peace, p. 92.
19 For a history of these restrictions see Murphy, ‘piracy and uNCLOS: Does
international law help regional states combat piracy?’ pp. 159-63.
20 Birnie. ‘piracy: past, present and future’, p. 171.
21 For a fuller discussion of hot pursuit, reverse hot pursuit and the difficulties that
the extension of the territorial limit has occasioned, see Burdick h. Brittin, ‘e
law of piracy: Does it meet the present and potential challenges?’ in Eric Ellen
(ed.), Piracy at Sea, paris: ICC publishing, 1989, pp. 164-5.
15
what is piracy?
also placed that navigation at risk. By allowing them to be enclosed within
territorial waters it handed control of what were often critical chokepoints
to states that, in some cases, lacked the ability, resources and interest to
maintain security and good order.
Enclosure was particularly egregious in the case of the archipelagic re-
gime. Gaining recognition for this had been a prime negotiating objective
of Indonesia and the philippines. It allowed these states, and subsequently
others, to bring vast ocean areas under their control that, in turn, compro-
mised the operation of jure gentium notions of piracy.
22
As subsequent ex-
perience has demonstrated, in states where the central power is weak—for
example Indonesia and the philippines—this has proved to be a boon for
pirates and a threat to everyone else.
23
e international law of the sea also permits states to create an additional
12 nautical mile zone (above and beyond the 12-mile territorial limit) to a
total limit not to exceed 24 nautical miles. is is known as the “contigu-
ous zone”. Seas within this zone are no longer unambiguously part of the
high seas.
24
Although all states still have the legal right and obligation to
detain any pirates caught in this zone under the high seas regime, a political
equivocality has arisen. e fact that coastal states may exercise powers to
enforce, for example, customs and sanitary regulations but not to control
piracy under their own domestic legislation in this zone can give rise to
political and operational ambiguities, which could in turn deter other states
from enforcing the high seas regime within it.
25
e difficulties for piracy suppression continue, for the wording of the
articles relating to the 200-mile exclusive economic zone (EEZ) (part IV,
Articles 55-57) is also ambiguous when it comes to piracy.
26
Most com-
mentators agree that, in accordance with Article 58(2), high Seas piracy
22 Birnie, ‘piracy: past, present and future’, pp. 171-2.
23 On this specific point and the obstacles to hot pursuit see peter Chalk, ‘Con-
temporary maritime piracy in Southeast Asia’, Studies in Conflict and Terrorism,
vol. 21, no. 1, 1998, p. 95.
24 See, for example, the argument advanced in Joel A. Doolin, ‘e proliferation
security initiative: Cornerstone of a new international norm’, NWCR, vol. 59,
no. 2, Spring 2006, p. 48.
25 International Law Commission, ‘Convention on the Territorial Sea and Con-
tiguous Zones, 1958’ Article 24, available at http://157.150.195.3/LibertyX::vl
r0EkRgQk0TiAM2b6hBwrEbgLbX; see also Birnie, ‘piracy: past, present and
future’, p. 172.
26 See, for example, Zou Keyuan, ‘Seeking effectiveness for the crackdown of pi-
racy at sea’, JIA, vol. 59, no. 1, Fall/Winter 2005, p. 122.
16
small boats, weak states, dirty money
provisions apply fully in the EEZs, and that all states are allowed therefore
to arrest and arraign any pirate found in them under the provisions of the
Convention.
27
Other commentators are less certain. e reason is that the
articles pertaining to piracy are in part VI and, while Article 57 (of part IV)
makes it clear that all states are able to traverse EEZs for lawful purposes, it
limits this by making them “subject to the relevant provisions of the Con-
vention” without making clear what these provisions might be. is ambi-
guity is rooted firmly in the origins of the EEZ concept.
28
at this was not
just a wording problem became apparent when attempts by the uNCLOS
Drafting Committee to clarify its status were rejected. is unwillingness
to seek clarity feeds fears that “thickening” jurisdiction, under which states
seek to regulate activities within their EEZs more restrictively, “creeping”
jurisdiction, whereby the seek to extend jurisdiction beyond the 200-mile
EEZ limit, and the declaration of “security zones”, which international law
does not regulate or define adequately, will gradually transform the con-
tiguous and economic zones into “quasi-territorial seas”.
29
27 See, for example, Barry h. Dubner, ‘human rights and environmental disas-
ter–two problems that defy the ‘norms’ of the international law of sea piracy’,
Syracuse Journal of International Law, vol. 23, no.1, 1997, pp. 11-12; Justin
Chenevier, ‘piracy under the law of the sea convention: Conceptual basis and
practical limitations’, MLAANZ Journal, vol. 15, part 2, 1997, p. 53; h.E. José
Luis Jesus, ‘protection of foreign ships against piracy and terrorism at sea: Legal
aspects’, e International Journal of Marine and Coastal Law, vol. 18, no. 3,
2003, p. 379; Sam Bateman, ‘piracy and the Challenge of Cooperative Security
and Enforcement policy’, Maritime Studies, March/April 2001, pp. 14-15. In
Vaughan Lowe’s view, the EEZ counts as high seas for piracy purposes in line
with Article 58(2). (Correspondence with author)
28 A thorough review of the history of the EEZ concept can be found in George V.
Galdorisi and Alan G. Kaufman, ‘Military activities in the exclusive economic
zone: preventing uncertainty and defusing conflict’, California Western Interna-
tional Law Journal, vol. 32, 2002, pp. 257-68.
29 See, for example, Geoffrey Till, ‘Coastal focus for maritime security’, Jane’s NI,
May 1996, p. 16; Mihir Roy, ‘e sea lines of communication: An Indian Ocean
perspective’ in Andrew Forbes (ed.), e Strategic Importance of Seaborne Trade
and Shipping, papers in Australian Maritime Affairs, no. 10. RAN Sea power
Centre, 2003, pp. 88-9; Juan Luis Suárez de Vivero and Juan Carlos Rodríguez
Mateos, ‘New factors in ocean governance: From economic to security-based
boundaries’, Marine Policy, vol. 28, Issue 2, March 2004, pp. 185-8; Justin
Stares. ‘Eu seeks to extend territorial powers’, Lloyd’s List, 19 July 2006; and
George V. Galdorisi and Alan G. Kaufman, ibid., p. 254. See most particularly
Wayne S. Ball, ‘e Old Grey Mare, national enclosure of the oceans’, Ocean
Development and International Law, vol. 27, 1996, pp. 101-10 and Bernard h.
Oxman’s important paper ‘e territorial temptation: A siren song at sea’, AJIL,
vol. 100, no. 4, Oct. 2006, pp. 830-51.