THE UNITED NATIONS’ ROLE IN COMBATTING PIRACY AND TERRORISM AT SEA

Sergey Tarasenko1

Abstract The presentation will describe the role of the United Nations in the efforts to combat, on the one hand piracy and, on the other hand, terrorist acts against shipping, offshore installations and other maritime interests both of which are of particular concern to the international community. It will start by setting out the clear distinction between these types of offences and the international legal regimes that apply to them including the relevant international con- ventions and other instruments, such as Security Council and General Assembly resolutions. The presentation will highlight the importance of international cooperation in combating both piracy and terrorist acts at sea, and describe the development of regional and interna- tional cooperation frameworks. It will also highlight some key capacity-building initiatives currently underway and address the role of the United Nations and other relevant actors in this regard. The presentation will conclude by assessing the current challenges facing the international community in addressing these offences.

Introduction

My presentation will seek to establish the fact that though piracy and terrorism are both serious crimes, they are distinct in nature and are governed by differ- ent legal regimes. I will also describe the measures that the United Nations has taken to address both crimes including through the establishment of legal frameworks, cooperation mechanisms and capacity building. In my conclusion, I will explore possible ways forward.

1 sergey Tarasenko is currently the Director of the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs at the United Nations. From 1985 to present he has been at the United Nations Office of Legal Affairs: Treaty Section, Office of the Legal Counsel, Codifica- tion Division and the Division for Ocean Affairs and the Law of the Sea. During 1980–1985 he was at the U.S.S.R. Ministry of Foreign Affairs, Department of Law and Treaties. He earned his Ph.D. at the Institute of State and Law, Russian Academy of Sciences and graduated from the Moscow State Institute of International Affairs, Faculty of Public International Law. The views expressed in this presentation are solely my own and do not reflect the view of the United Nations. 144 Sergey Tarasenko

I. Piracy vs. Terrorism

As just mentioned, piracy and terrorism are distinct crimes governed by differ- ent legal regimes. This is an important point that we all need to keep in mind because it has real policy implications. For this reason, it will be useful to go over some particularly relevant differences between the two types of offenses. In particular, we shall focus on five principal differences: the definition of the crimes, the animus for the crimes, the location of the crimes, the jurisdiction of states, and the requirement for international cooperation. a. No universally-accepted definition The first thing to point out is that while piracy is a well-defined crime under international law, there is still no universally accepted definition of terrorism. The definition of piracy is contained in Article 101 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). This definition is also consid- ered to represent customary international law and has been incorporated into many international instruments, as well as into the national laws of a number of States. On the other hand, the international community has thus far failed in its efforts to adopt a universally accepted definition of terrorism. A numberof definitions have been put forward. For example, the General Assembly’s defini- tion in its 1994 Declaration on Measures to Eliminate International Terrorism (Resolution 49/60) was: Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them. The search for a consensually agreed definition and scope of the crime of piracy remains a major sticking point in the negotiations on a draft comprehensive convention on international terrorism in the Sixth Committee of the General Assembly. Instead, the international community has worked around the need for a definition by regulating specific “terrorist” acts in a series of sixteen global counter-terrorism instruments. b. Motivation: private ends vs. political purposes Piracy is defined in Article 101 of UNCLOS as a crime committed for private ends. On the other hand, although it is generally understood that terrorist acts are committed with a certain intent, such as political or ideological purposes, such an animus is not usually an element of the offences set forth in relevant counter-piracy instruments. As there is no valid justification for committing