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The Adequacies and Inadequacies of the Piracy Regime in the Gulf of Guinea Region, an Area That Is Located to the Southwest Coast of Africa

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The Adequacies and Inadequacies of the Piracy Regime in the Gulf of Guinea Region, an Area That Is Located to the Southwest Coast of Africa THE ADEQUACIES AND INADEQUACIES OF THE PIRACY REGIME: A GULF OF GUINEA PERSPECTIVE SAYED MOHAMMED MOHIUDDIN HASAN LL.B. (Hons.), LL.M. A thesis submitted for the degree of Master of Laws (Honours) School of Law University of Western Sydney, Australia March 2014 ABSTRACT Maritime piracy is one of the pressing global issues of the present century. The cost of piracy is human, economic, environmental and political. Recognising the piracy threat, the international community has taken several steps to address the problem. Several international organisations, including the United Nations (UN), European Union (EU) and the North Atlantic Treaty Organisation (NATO) have taken different initiatives to facilitate an international response to piracy. The UN Security Council has adopted a series of resolutions targeting piracy. As part of a military deterrence measure, the presence and coordination of international navies has been increased in high-risk piracy-affected areas, including the Gulf of Aden. However, international initiatives have proven insufficient and ineffective due to most of them primarily addressing the effects of piracy through military means. The initiatives have thus contributed only to reduce the number of attacks and their success rate, while failing to rectify the underlying reasons for piracy or solve the problems ashore in a sustainable manner. The current international framework for suppressing piracy has also been considered as insufficient to curb piracy in the sense that it does not provide any mechanism for the successful prosecution of pirates. In recent years, piracy has emerged as a growing problem in the Gulf of Guinea. The gulf has, in the past years, witnessed a sharp rise in pirate attacks. Alarmingly, both the frequency of piracy attacks and the level of physical violence against seafarers have increased in recent years. Piracy in the Gulf of Guinea has become so prevalent that it is now a growing risk for the states in the region. There are also indications of links in the area between piracy and other types of organised crime such as oil bunkering and drug trafficking. The problem has thus become a recent source of concern for the international community of nations. The states in the region lack the technical and logistical capability or the financial resources to counter the threat effectively. In addition, the limited regional integration in the maritime sphere creates further concern in this situation. In this context, there is a need for establishing enhanced cooperation at the regional level through the formulation of a comprehensive regional strategy. The thesis first outlines the international and regional framework for piracy with special emphasis on the strengths, weaknesses and possibilities of the current legal regime to combat piracy. It explains how the contemporary international legal regime created by i the United Nations Convention on the Law of the Sea (UNCLOS) and the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) has been deficient in addressing the piracy problem, and focuses on some of the cooperative efforts between states in regional initiatives in Southeast Asia and East Africa, to emphasise the growing strength of regional agreements to curb piracy. Thereafter, it addresses the issue of piracy in the Gulf of Guinea by referring to its underlying causes and adverse effects, and finally evaluates the effectiveness of the current anti-piracy initiatives of the region. In doing so, it identifies the problems arising from the lack of coordination among the various organisations engaged in addressing piracy and explores the reasons for these shortcomings. ii DECLARATION The work embodied in this research thesis is, to the best of my knowledge and belief, original except where due reference is made in the text. I hereby certify that this thesis contains no material which has been accepted for the award of any degree at this institution or any other university. Sayed Mohammed Mohiuddin Hasan 2014 iii DEDICATION AND ACKNOWLEDGEMENTS This research thesis is lovingly dedicated to my wife Sarah for her constant encouragement, continuous support and patience. Without her material and moral assistance over the last two years, the completion of the work would not have been possible. I acknowledge and thank the following people who helped and supported me in completing this thesis. First, I am grateful to my supervisors Dr Daud Sm Hassan and Associate Professor Dr Scott Alasdair Mann, who not only provided their help, guidance and understanding during the course of this journey, but also extended their encouragement, care and love to me. I could not have thought of having better advisors for my Master’s study. My heartfelt thanks also go to the University of Western Sydney for allowing me this opportunity to undertake the Master’s Degree. Additionally, I would like to thank Elite Editing for their professional proofreading services, according to the guidelines laid out in the university endorsed national ‘Guidelines for editing research theses’. My sincere and deep gratitude are also due to my parents who at all times kept me in their prayers. Lastly, I would like to thank Mr Awal Khan, who always made available his support in a number of ways. iv CONTENTS Abstract ................................................................................................................................. i Declaration .......................................................................................................................... iii Dedication and Acknowledgements .................................................................................. iv Contents ................................................................................................................................ v List of Figures ..................................................................................................................... ix List of Tables ....................................................................................................................... ix List of Acronyms .................................................................................................................. x I Introduction ....................................................................................................................... 1 A Background .................................................................................................................... 1 B Justification of the Study ................................................................................................ 6 C Research Questions ......................................................................................................... 8 D Research Method ............................................................................................................ 8 E Thesis Structure .............................................................................................................. 9 II History of Piracy ............................................................................................................ 10 A Chapter Introduction ..................................................................................................... 10 B Evolution of the Concept of Piracy .............................................................................. 10 1 Historical Perspective ................................................................................................ 10 2 Definitions of Piracy .................................................................................................. 12 (a) Contemporary Domestic Definitions of Piracy .................................................... 12 (b) Contemporary International Definitions of Piracy .............................................. 15 C Historical Development of Maritime Piracy ................................................................ 17 1 Piracy in the Ancient Period ...................................................................................... 17 2 Piracy after Rome ...................................................................................................... 19 (a) Piracy in the Baltic and North Sea Region .......................................................... 19 (b) Piracy off the North African Coast ....................................................................... 20 (c) Piracy in the Atlantic Ocean................................................................................. 21 (d) Piracy in the Red Sea ........................................................................................... 21 (e) Piracy in Asia ....................................................................................................... 22 3 Modern Maritime Piracy ............................................................................................ 23 D Lessons for Modern Piracy ........................................................................................... 24 E Conclusion .................................................................................................................... 25 III The International Legal Framework in Combating Piracy ..................................... 27 A Chapter Introduction ..................................................................................................... 27 B International Law in Combating Piracy ........................................................................ 27 1 UNCLOS ...................................................................................................................
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