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Towards an Effective Legal Framework to Combat Maritime Piracy

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Towards an Effective Legal Framework to Combat Maritime Piracy Hostis Humani Generi: Towards an Effective Legal Framework to Combat Maritime Piracy – A South African Perspective Thobisa Simelane Dissertation presented for the Degree of Doctor of Laws (LLD) at Stellenbosch University Supervisor: Prof. Gerhard Kemp Stellenbosch University https://scholar.sun.ac.za Plagiarism Declaration By submitting this dissertation electronically, I declare that the entirety of the work contained therein is my own, original work, that I am the owner of the copyright thereof (unless to the extent explicitly otherwise stated) and that I have not previously in its entirety or in part submitted it for obtaining any qualification. Thobisa Simelane Date: March 2020 Copyright © 2020 Stellenbosch University All Rights Reserved ii Stellenbosch University https://scholar.sun.ac.za Summary In recent history the international community has witnessed the re-emergence of maritime piracy at an alarming rate such that it has featured in the agendas of multilateral institutions and regional bodies as a security matter in need of urgent attention. Piracy is an international crime under customary international law and its status as such has been crystallised in the United Nations Convention on the Law of the Sea (―UNCLOS‖). The definition of piracy under the Convention is criticised for being vague and thus making it impossible to establish with a degree of certainty what the meaning, scope, and content of piracy is. South Africa incorporated the definition of piracy in the Defence Act 42 of 2002, and by doing so also imported the issues that arise in the interpretation and enforcement of the UNCLOS provisions. This dissertation constitutes an analysis of piracy from both legal and security points of view, thus it focuses on piratical activity and the essential elements thereof – and it also looks at the evolution of law and state policy on piracy which eventually led to the adoption of the UNCLOS. Chapter I introduces the topic of piracy as an international crime and it introduces the research question and also give adequate information about the concepts and principles that will inform the schematic theme of the entire research work. This chapter further highlights the importance of the research project, states the objective of the research project and gives an overall course and stages that the dissertation will take. Chapter II focuses on the history of the crime of piracy and how it has evolved from manner of execution to the way in which sovereign states have dealt with the crime iii Stellenbosch University https://scholar.sun.ac.za historically. The objective of the chapter is to establish a lucid understanding of the historical foundations of piracy, more than that the chapter will discuss concepts such as privateering, letters of marque, piracy on the high seas, and the development of international law to address piracy. Chapter III focuses on the definition of Piracy as provided for by international customary law and codified in the UNCLOS. The primary objective is to determine which internationally proscribed activity falls within the purview of the definition of Piracy, thereby precluding international crimes such as robbery on high seas, maritime terror and so on. This chapter also analysis some of the practical problems in investigating piracy on the high seas and their constitutional implications. Further, there is also an analysis of regional legal and security responses to piracy. Chapter IV constitutes a prognosis on the prosecution of piracy in a South African courts, this is done by analysing the South African approach to international criminal law and justice, recent developments such as the effort to withdraw from the ICC, and the manner in which the courts have interpreted international instruments and legislation providing for international crimes. The analysis is done against the backdrop of the constitutional supremacy in South Africa, and whether the piracy provisions in the Defence Act are aligned with the prevailing South African international criminal law framework. Chapter V focuses on developments in regional and international legal and institutional frameworks. The analysis here is largely on the richness of the international criminal law framework and whether it may offer some solutions to the iv Stellenbosch University https://scholar.sun.ac.za piracy quagmire. Policy from international bodies like the United Nations Security Council and judgments of international tribunals are discussed, particularly how developments at the international level impact on piracy. Chapter VI concludes and makes recommendations for changes from an international and South African perspective. It is argued that the elements of the crime of piracy must not deviate from the essence of the crime the meaning of which is universal. It is further argued that some of the elements in the UNCLOS are outdated and find no relevance to contemporary piracy or modern international criminal law principles, and therefore must be abandoned in favour of a realistic practical elements which address the security threat posed by piracy. v Stellenbosch University https://scholar.sun.ac.za For my folks, my wife, my children, and for Swaziland vi Stellenbosch University https://scholar.sun.ac.za Acknowledgments This research has been a long arduous task, without the support and generosity of the following people I would not have succeeded: My supervisor Prof. Gerhard Kemp whose patience knows no limits. Your guidance, motivation, and generosity has been life to me. When I did not have funds to register in my second year you extended financial assistance that allowed me to do so – that will stick with me for life and I shall pay it forward. For all of this and much more, I thank you. My parents LomaGugu Motsa and Sandile Simelane – I can never say thank you enough, for absolutely everything. My darling wife and star supporter Fundiso. Our worst days are behind us, through it all your love has remained constant. It all worked out girl you deserve it! My dearest children Mandilakhe and Ivakele. Thank you for your kind patience, God bless you eternally. My beautiful sisters Lethokuhle and Netiswa. Thank you guys for your support! My dearestfriends LindaDlamini, Mancoba Mabuza, Mefika Ngcobo, Barbara Mabuza, Njabulo Gamedze, Zwakele Dlomo, Lindelwa Dlamini, and Nadine Hollenstein. I thank you for your unwavering support. Above all – God who assigned me this mountain to show others it can be moved. May He continue to bless the works of my intellect and direct my steps. Always. vii Stellenbosch University https://scholar.sun.ac.za List of Abbreviations ACJHR – African Court of Justice and Human Rights AU – African Union AUSC – African Union Peace and Security Council CGPCS – Contact Group on Piracy off the Coast of Somalia COMESA – Common Market for Eastern and Southern Africa DRC – Democratic Republic of Congo ECHR – European Court of Human Rights EEZ – Exclusive Economic Zone EU – European Union EU NAVFOR – European Union Naval Force ICC – International Criminal Court ICJ – International Court of Justice ICTY – International Criminal Tribunal for the former Yugoslavia ILC – International Law Commission IMO – International Maritime Organisation INTERPOL – International Criminal Police Organization NATO - North Atlantic Treaty Organisation NGO – Non-Governmental Organisation NYWGA - New York Working Group on Amendments ReCAAP – Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia SALC – Southern African Human Rights Litigation Centre SCSL - Special Court for Sierra Leone viii Stellenbosch University https://scholar.sun.ac.za SHADE – Shared Awareness and Deconfliction SUA - Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation UK – United Kingdom UN – United Nations UNCLOS – United Nations Convention for the Law of the Sea UNCTAD – United Nations Conference on Trade and Development US – United States (of America) ix Stellenbosch University https://scholar.sun.ac.za Table of Contents Chapter I Orientation 1 1 Introduction 1 Section A 1 2 Research Statement and Rationale 7 1 3 Methodology 8 Section B 1 4 Relevance of Piracy Today 10 1 5 Piracy as a Security Issue 14 1 6 Piracy Jure Gentium and Piracy Under Domestic Law 17 1 7 Conclusion 22 Chapter II Maritime Piracy – An Historical Primer 2 1 Introduction 24 2 2 Origins of Piracy 25 2 3 Letter of Marque and Reprisal 32 2 3 1 Privateering 34 2 3 2 Reprisals 39 2 4 Piracy after the Declaration of 1856 – 19th Century to UNCLOS 40 2 5 Concluding Remarks 48 Chapter III Scope and Content of the Modern Crime of Piracy 3 1 Introduction 53 x Stellenbosch University https://scholar.sun.ac.za 3 2 Principle of Legality in International Criminal Law vis-a-vis Piracy 59 3 3 The International Legal Framework to Combat Piracy 62 3 3 1 Private Ends 64 3 3 2 High Seas 68 3 3 3 Two Ships Requirement 73 3 4 Universal Jurisdiction vis-a-vis Piracy 76 3 5 Analysis of Comparative Measures to Combat Piracy under the UNCLOS 81 3 5 1 Arresting Pirates in the High Seas 83 3 5 1 1 State Action 83 3 5 1 2 Adequate Grounds 85 3 5 1 3 High Seas 86 3 5 2 Investigation Challenges 87 3 5 2 1 Crime Scene 87 3 5 2 2 Witnesses 88 3 5 2 3 Detention and Incarceration 89 3 5 3 Asylum as a Deterrent 92 3 6 Regional and International Responses 94 3 6 1 EU NAVFOR – Operation Atalanta 95 3 6 2 North Atlantic Treaty Organisation – Operation Ocean Shield 96 3 6 3 Re-CAAP – Asian Response 97 3 6 4 Djibouti Code (Incorporating the Jeddah Amendment to the
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