Pirates of the Caribbean, a Disney Fantasy or a Real Threat?

file photo
file photo

By Alejandro Guzmán Woodroffe 2019-07-29 18:07:49

Contrary to the version portrayed by Disney in its franchise Pirates of the Caribbean, piracy does not take place in a universe full of adventures and adrenaline. The illusion of a fun “superhero” in the form of a pirate has framed in people’s imagination a picture of a guy with parrots, wooden legs and eye patches. 

Pirates are and always have been not only a significant shipping problem but also the executors of terrible crimes. Piracy has existed alongside maritime trade as far back as commercial history can be traced. Today, the crime of piracy is happening in a context where shipping remains as the most important mechanism for trade and commerce and where the international law stands for the virtues of a globalized world.

The issue of piracy at sea became notoriously important back in 2008 when the crisis on the Somali coast reached its highest level of tension. Approximately 100 acts of piracy were reported every day around the Gulf of Arden. The attacks not only had a major impact on commerce but also they ended with significant economic benefits for the pirates. 

Eight years later, and thanks to the effort of the international community and several organizations, the situation has improved significantly. However, in 2016, the Ocean's Beyond Piracy Organization recorded 27 incidents of piracy and armed robbery in Central and South America and the Caribbean Sea, and in the last three years, the IMO, through GISIS, has received and recorded an increase of piracy attacks and armed robbery in the Caribbean Sea, especially along the Venezuelan coast. 

Definition and Jurisdiction

Piracy must be analyzed in two different contexts, namely, piracy as an international crime and piracy as a domestic crime. As an international crime, the crime of piracy consists of an act against international laws subscribed by a large number of states, while piracy as a national crime, addresses acts against domestic laws. The crime of piracy at sea is contained in Article 101 of the 1982 United Nations Convention on the Law of the Sea, (UNCLOS). The article defines piracy as follows:

Piracy consist 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, person 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 of inciting or intentionally facilitating an act described in subparagraph (a) or (b).

The definition set by UNCLOS repeats, almost in the same way, the definition contained in the Geneva Convention on High Seas 1958. In that sense, countries such as Venezuela, while not bounded by the UNCLOS are indeed, bounded by the Geneva Convention as a matter of customary international law.

Once a crime is committed it has to be investigated, and eventually, the perpetrator of the misconduct has to be prosecuted. The right to prosecute rests on the legitimate interest of the State in the repression of that crime. Of course, there are many ways to establish a connection between the crime itself and the right to prosecute (legitimate interest). For example, if an action that is considered a crime takes place within the borders of a specific country, that State will have the right to prosecute under the principle of territorial jurisdiction.  Another link between the crime and the right to prosecute could be the nationality of the offender or the victim. 

Executing jurisdiction is a right sometimes exclusive, however, some crimes are categorized as so heinous that they are contemplated as crimes against humanity. In those cases, every state has a legitimate interest in the repression of such crime. On December 16, 2008, the United Nations Security Council Resolution 1851 authorized member states to conduct "all necessary measures for the purpose of suppressing acts of piracy and armed robbery at sea in Somali territorial waters." The resolution followed the April 11, 2008 French troops incursion into Somali mainland to capture six pirates in an operation involving the rescue of passengers and part of the ransom obtained by pirates in an attack to the French Vessel Le Ponant.

Causes and Expectations

Piracy is a crime that is directly sponsored by the socio-economic conditions of coastal countries. That is why the Caribbean Sea and the Venezuelan coast is set as the perfect environment for an increase of attacks. The unemployment rate and the economic crisis produced by hyperinflation, the lack of legal consequences and prosecution and the social acceptance of the crime allow us to expect a new wave of incidents in the Caribbean.

Key References

Michael Becker, ‘International Law of the Sea’ [2009] The International Lawyer 915-928.

Gayatrhi & Jayashakar, ‘Trial of Pirates and Armed Robbers: Jurisdiction of States’ in Bimal Patel and Hitesh Thakkar (eds), “Maritime Security and Piracy” (EBC Publishin, 2012) 100.

The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.