Do We Need a New Convention on Piracy and Armed Robbery Against Ships?

Robert C. Beckman*

Introduction

Somali piracy in the Gulf of and has presented a serious challenge to the piracy regime set out in the United Nations Convention on the Law of the Sea, 1982 (LOS Convention).1 This contribution will first outline the LOS Convention piracy regime. It will then address how the regime with- stood developments such as the hijacking of the Achille Lauro in 1985 and the increased number of attacks on ships in Southeast Asia in the early 2000s. The challenges raised by Somali piracy will then be discussed, including whether the United Nations terrorism conventions provide useful tools for combating Somali piracy. Finally, this contribution will address the issue of whether there should be a new convention on piracy and armed robbery against ships.

LOS Convention Piracy Regime

The modern law of piracy is set out in Articles 100 to 107 of the LOS Conven- tion, which are almost identical to Articles 14 to 21 of the 1958 Convention on the High Seas,2 which are in turn based on Articles 38 to 45 of the 1956 Draft Articles on the law of the sea prepared by the International Law Com- mission (ILC).3 The work of the ILC was based to a large extent on the 1932

* Robert Beckman is the Director of Centre for International Law at the National University of Singapore (NUS) and an Associate Professor at the NUS Faculty of Law. 1 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982 (entered into force on 16 November 1994), 1833 U.N.T.S. 397 [LOS Convention]. As of 23 May 2011, 160 States and the European Union were parties. 2 Convention on the High Seas, Geneva, 29 April 1958, 450 U.N.T.S. 82. 3 “Report of the International Law Commission (ILC) to the General Assembly covering the work of its eighth session, 23 April 1956–4 July 1956,” Yearbook of the International Law Commission, 1956, Volume II, 260. 78 Robert C. Beckman draft convention prepared under the direction of Professor Joseph Bingham of Stanford University as the culmination of the exhaustive research that had been undertaken by Harvard Law School.4 The definition of piracy in Article 101 of the LOS Convention is the same as the definition in Article 15 of the 1958 Convention on the High Seas, which closely follows Article 39 of the 1956 ILC Report on the law of the sea. Article 101 reads: Piracy consists of any of the following acts: (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 juris- diction 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 sub- paragraph (a) or (b). The piracy regime in the LOS Convention applies not only on the high seas, but also in the exclusive economic zone (EEZ). While Article 101 defines piracy as an act on the high seas, Article 58(2) provides that Articles 88 to 115 (including Articles 100–107 on piracy) also apply in the EEZ. In other words, the LOS Convention piracy regime applies in any place outside the territorial sovereignty of the coastal State, which is seaward of the outer limit of the 12 nautical mile territorial sea of a State.

Challenges Posed by the Hijacking of the MS Achille Lauro in 1985

The first major challenge to the LOS Convention piracy regime cameasa result of the hijacking on 7 October 1985 of the MS Achille Lauro, an Italian based in , , by four men from the Palestine Liberation Front, in the , off the coast of .5 The four hijackers had boarded the ship as passengers. They took control of the ship, held the

4 Joseph W. Bingham, “Research in International Law: Part IV – Piracy,” American Journal of International Law Supplement: Research in International Law 26 (1932): 739–885 [1932 Harvard Research Draft]. 5 See: Helmut Tuerk, “Combating Terrorism at Sea – The Suppression of Unlawful Acts Against the Safety of Maritime Navigation,” University of Miami International and Com- parative Law Review 15 (2008): 337, 337–338.