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Marine Affairstechnical Report 2 MARINE AFFAIRS TECHNICAL REPORT 2 Legal, Institutional and Governance Arrangements for Apprehending and Prosecuting Marine Pirates L. Fanning, H. Williamson & S. Douglas Photo: AP/Farah Abdi Warsameh Marine Affairs Program, Dalhousie University Rowe Management Building, Suite 2127 phone 902.494.3555 6100 University Avenue PO BOX 15000 fax 902.494.1001 Halifax, NS B3H 4R2 Canada [email protected] Dalhousie Marine Piracy Project Legal, Institutional and Governance Arrangements for Apprehending and Prosecuting Marine Pirates This Report should be cited as: Fanning, L., Williamson H., & Douglas, S. (2012). Dalhousie Marine Piracy Project: Legal, Institutional and Governance Arrangements for Apprehending and Prosecuting Marine Pirates. (Marine Affairs Program Technical Report #2). Available at Marine Affairs Program: http://marineaffairsprogram.dal.ca/Publications DMPP: Legal, Institutional and Governance Arrangements for Apprehending and Prosecuting Marine Pirates Contributors The members of the Law and Governance Module Research Team acknowledge with thanks all of the external working group members for their time, effort and subject matter contributions. Those who participated in working group consideration of the research are listed in alphabetical order below: Winston Anderson, Caribbean Court of Appeal Simon Barker, Canadian Bar Association Dr. Christian Bueger, Cardiff University Abbas Daher Djama, Centre for Int’l Peace and Security, McGill University Ted McDorman, University of Victoria Darin Reeves, LL.M Candidate, Dalhousie University Michael Scharf, Public International Law and Policy Group Awet Weldemichael, Université Paris Diderot (Paris); and University of Kentucky Thomas Winkler, Contact Group on Piracy off the Coast of Somalia However, it should be noted that their contribution does not imply endorsement of the report's findings and recommendations, the final authorship and editing remaining the responsibility of the Project Management team. DMPP: Legal, Institutional and Governance Arrangements for Apprehending and Prosecuting Marine Pirates TABLE OF CONTENTS 1. EXECUTIVE SUMMARY .................................................................................................................. 1 2. INTRODUCTION ................................................................................................................................ 4 2.1 Purpose of this Report ......................................................................................................................... 4 2.2 Law and Governance Module ............................................................................................................. 4 2.3 Research Questions ............................................................................................................................. 5 2.4 Methods ............................................................................................................................................... 6 3. PIRACY DEFINED .............................................................................................................................. 7 3.1 Current Legal Definitions of Piracy ................................................................................................... 7 3.1.1 Law of Nations ............................................................................................................................. 8 3.1.2 UNCLOS Definition ..................................................................................................................... 9 3.1.3 International Convention on the Suppression of Unlawful Acts against Navigation ................. 10 3.1.4 Approaches to National Definitions – Application by States in their Criminal Law ................. 11 3.2 Current Practice and the DMPP Definition of Piracy ...................................................................... 13 4. LEGAL AND GOVERNANCE ARRANGEMENTS FOR ADDRESSING PIRACY ..................... 15 4.1 UN-International Models .................................................................................................................. 15 4.1.1 Resolutions of the United Nations Security Council ................................................................. 15 4.1.2 Contribution of the United Nations Division for Ocean Affairs and the Law of the Sea ........... 19 4.1.3 The Role of the International Maritime Organization in Combating Piracy ............................ 20 4.1.4 The Work of the United Nations Office on Drugs and Crime ................................................... 23 4.2 Regional Models .............................................................................................................................. 28 4.2.1 South China Sea and Malacca Strait ........................................................................................ 28 4.2.2 East Africa / Red Sea/ Indian Ocean (Horn of Africa) ............................................................. 31 4.2.3 West Africa (Gulf of Guinea) .................................................................................................... 35 4.2.4 Caribbean Basin ....................................................................................................................... 38 4.2.5 Gulf of Thailand ........................................................................................................................ 42 4.3 National Models .............................................................................................................................. 44 4.3.1 United States of America........................................................................................................... 45 4.3.2 India .......................................................................................................................................... 46 4.3.3 China .......................................................................................................................................... 46 4.4 Other Institutional Arrangements .................................................................................................... 47 5. APPREHENSION OF PIRACY SUSPECTS .................................................................................... 50 5.1 Apprehension and Investigation on the High Seas ........................................................................... 50 5.1.1 Issue of Universal Jurisdiction .................................................................................................. 51 5.1.2 Requirement for a National Nexus ............................................................................................. 52 5.1.3 Consideration of ‘Outside the Jurisdiction of any State’ ........................................................... 52 5.2 Apprehension and Investigation within Territorial Limits ................................................................ 53 DMPP: Legal, Institutional and Governance Arrangements for Apprehending and Prosecuting Marine Pirates 5.2.1 Specific National Laws Dealing with Piracy-Like Crimes......................................................... 53 5.2.2 Entry into Territorial Seas ......................................................................................................... 53 5.3 Catch and Release Problems ............................................................................................................ 57 5.3.1 Obligation to Prosecute Pirates ................................................................................................. 57 5.3.2 Issue of Refugee Claim ............................................................................................................... 58 5.4 Use of force ....................................................................................................................................... 58 5.5 Status of Pirates and Pirate Suspects ............................................................................................... 60 5.5.1 Criminal Status .......................................................................................................................... 60 5.5.2 Quasi-Combatant Status ............................................................................................................ 61 6. PROSECUTION AND INCARCERATION OF PIRATE SUSPECTS ............................................ 63 6.1 Successful Pirate Prosecutions ......................................................................................................... 63 6.2 Venues for Piracy Prosecutions ........................................................................................................ 64 6.2.1 National Courts of Apprehending Nations ................................................................................. 64 6.2.2 Courts Martial or Military Tribunals of Apprehending Nations ............................................... 65 6.2.3 Transfer of Suspects to National Courts in the Region .............................................................. 66 6.2.4 Regional/Special Tribunal ......................................................................................................... 66 6.2.5 International Criminal Court ..................................................................................................... 67 6.2.6 Other International Tribunals .................................................................................................... 67 6.3 Criminal Provisions .........................................................................................................................
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