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Maritime Piracy: a Critical Analysis of Current Prosecutorial Challenges and Shortcomings of International and Domestic Law

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Maritime Piracy: a Critical Analysis of Current Prosecutorial Challenges and Shortcomings of International and Domestic Law i HOWARD COLLEGE SCHOOL OF LAW Unit of Maritime Law and Maritime Studies Maritime Piracy: A critical analysis of current prosecutorial challenges and shortcomings of international and domestic law. Rohini Pillay Student Number 207509112 Mini Dissertation submitted to the School of Law in partial fulfillment of the requirements of the degree Master of Laws in Maritime Law. 14 December 2012 Supervisor: Mr. V. Surbun 11 TABLE OF CONTENTS ABSTRACT DECLARATION ACKNOWLEDGEMENTS LIST OF STATUTES AND CASES LIST OF ABBREVIATIONS CHAPTER 1: INTRODUCTION ................................................................................. 1 CHAPTER 2: INTERNATIONAL LAWS AND POLICIES .......................................... 6 2.1. United Nations Convention on the Law of the Sea ............................................ 7 2.2. Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation ....... .. ............... ... .. ........................................... ................. 15 2.3. United Nations Security Council Resolutions .................................................. 18 2.4. The International Maritime Organisation .......................................................... 23 2.5. The Regional Cooperation Agreement on Combating Piracy and Armed Robbery against ships in Asia ......................................................................... 27 2.6. The Djibouti Code of Conduct ......................................................................... 29 2.7. The International Maritime Bureau and Piracy Reporting Centre .................... 30 2.8. Comment. ... .... ................. ................................................................................ 32 CHAPTER 3: PROSECUTORIAL PROBLEMS ....................................................... 34 3.1 . Non-Refoulement: The Preservation of Human Rights & Granting Asylum to suspected and convicted pirates ................. ..... ........................................... 35 3.2. The Ad Hoc Tribunals in Kenya ...... .. ............................................................... 38 lll 3.3. Arresting States reluctance to prosecute suspected pirates unless there is a direct national interest .................................................................................. 44 CHAPTER 4: SOUTH AFRICAN LAWS AND POLICIES ............................... ..... ... 47 4.1. Defence Act ....... ................................. ... ..................... ... ............. ............... ...... 47 4.2. The Djibouti Code of Conduct and The Memorandum of Understanding ........ 50 4.3. South Africa's Position on Prosecuting Suspected Pirates .............................. 53 CHAPTER 5: RECOMMENDATIONS ..................................................................... 58 5.1. Promulgating an International Maritime Piracy Convention ............................. 58 5.2. Establishing an International Piracy Court/Tribunal ..... .................................... 60 5.3. International Tribunal for the Law of the Sea ................... .. .............................. 61 CHAPTER 6: CONCLUSION ................................................................................... 64 CHAPTER 7: BIBLIOGRAPHY ............................................................................... 70 ANNEXURES iv ABSTRACT Modern maritime piracy is cause for major concern around the world. Although there have been preventative measures deployed by maritime nations to counter the crime, there is a need to develop an efficient regime to prosecute pirates. The general modus operandi that is employed by arresting-vessels is a 'catch-and-release' procedure, which means that there are no further steps taken to bring these pirates to account for their crimes. The purpose of this dissertation is to analyse the main challenges that face domestic judicial systems in prosecuting pirates of the high seas. Chapter 1 of this Dissertation sets out the parameters of the study, followed by Chapter 2 which will detail current international instruments that specifically relate to the crime of maritime piracy. This would include an examination of the successes and shortcomings of the piracy provisions of UNCLOS Articles 1 00 - 107, the recent UNSC Resolutions, SUA, and the IMO as well as discuss the 1MB PRC and other Regional Agreements in place to counter piracy and provide for the successful prosecution of suspected pirates. Chapter 3 will focus on the prosecutorial problems dealing with the crime of piracy that face judicial bodies around the world. The Chapter will highlight and discuss the various political and human rights issues that have discouraged the majority of states from prosecuting suspected offenders of this crime, as well as their reluctance to exercise universal jurisdiction over piracy. In addition, the recent Kenyan ad hoc piracy tribunal decisions will be discussed in order to assess the lack of uniformity in the interpretation and application of international law piracy provisions as against domestic law. Chapter 4 examines the South African Law and Policies in place that counter­ piracy, and also considers whether South Africa could exercise jurisdiction over piratical matters. Thereafter, Chapter 5 proposes recommendations that may be employed in order to bring about a much needed uniform approach to the successful v prosecution of suspected pirates. Lastly, Chapter 6, shall comment and conclude on the findings of the previous chapters. VI DECLARATION I, Rohini Pillay, declare that: 1. The research reported in this Dissertation, except where otherwise indicated, is my original research. 2. This Dissertation has not been submitted for any degree or examination at any other university. 3. This Dissertation does not contain other persons' data, pictures, graphs or other information, unless specifically acknowledged as being sourced from other persons. 4. This Dissertation does not contain other persons' writing, unless specifically acknowledged as being sourced from other researchers. Where other written sources have been quoted, then: (a) Their words have been re-written but the general information attributed to them has been referenced (b) Where their exact words have been used, then their writing has been placed in italics and inside quotation marks, and referenced. 5. This Dissertation does not contain text, graphics or tables copied and pasted from the Internet, unless specifically acknowledged, and the source being detailed in the thesis and in the References sections. Signed: Vll ACKNOWLEDGEMENTS I wish to extend my sincere thanks and gratitude to the many people who have assisted me during the course of researching and writing of this Dissertation. To my family, particularly my loving parents, Jackson and Kriba, without whose continual encouragement and support, this Dissertation would not have been possible. I am also grateful to them for the many sacrifices they have made towards my education. I am deeply thankful to my brother, Sunkaran, who has been an exemplary role-model in my life especially in realm of academia, displaying qualities of commitment and diligence, which I have always admired and aspired towards. The researching and writing of a Dissertation is a time-consuming process, and as a result, I would not have been able to accomplish such a task without the dedication and guidance of my supervisor, Mr Vishal Surbun. I wish to thank him for his expert advice and efforts in facilitating this Dissertation. I would also like to thank Professor Trevor Jones, Doctor Caroline Goodier, and Doctor Arthi Ramkissoon, who have all assisted me in proof-reading the initial drafts of my Dissertation. I am sincerely grateful for their generous efforts and helpful suggestions towards the fruition of this Dissertation. I am also truly thankful to my friends and colleagues who have supported me during the course of writing this Dissertation. Lastly, I would like to extend my thanks to the School of Law, Howard College, which has provided me with the easily accessible and necessary tools and resources to conduct my research for this Dissertation. viii TABLE OF STATUTES AND CASES International Conventions and Statutes Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation. (Rome, 10 March 1988) Convention on the International Maritime Organization, Geneva (6 March 1948) Geneva Convention On The High Seas (April 29 1958) International Maritime Organization Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (2005) UN General Assembly, 'International Covenant on Civil and Political Rights' (16 December 1966) United Nations, Treaty Series, vol. 999, p. 171 UN General Assembly, 'Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment' ( 10 December 1984) United Nations Treaty Series, vol. 1465, p. 85 UN General Assembly, 'Convention Relating to the Status of Refugees' (28 July 1951) UN General Assembly, 'Protocol Relating to the Status of Refugees' (31 January 1967) UN General Assembly, 'Rome Statute of the International Criminal Court' (last amended 201 0), 17 July 1998 United Nations Convention on the Law of the Sea of 10 December 1982 l X South African Legislation Criminal Procedure Act 1977 (Act No. 51 of 1977) Defence Act No.42 of 2002 Protection of Constitutional Democracy Against Terrorist and Related Activities Act No.33 of 2004 (POCDATARA} Implementation of The Rome Statute of The International Criminal Court Act 27
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