MARITIME PIRACY: THE SCOURGE OF THE SEAS AND

INTERNATIONAL LAW

by:

ATTY. ROMEO DAX B. CALAMAYA

Legal Officer, Coast Guard Legal Service,
Philippine Coast Guard

I. Introduction

Since time immemorial the crime of piracy has long been considered by
numerous legal luminaries as a historic problem. It has been existing since the
earliest civilization and has been a scourge and a persistent proble for the maritime
industry for more than a thousand years. It has known to be around as long as the
oceans has been used by mankind as trade routes for shipping purposes and has
existed wherever maritime commerce thrives and preys on the lack of an
established maritime security, an age-long trepidation which has caused fear not
only on sea farers but to their families as well.

The genealogy of maritime piracy can be traced back as early as to ancient

Greeks. Historically, the word piracy originated from the Greek word peirato or
peirata which means robbers or brigands of the sea, but in a sense also evolved to
suggest something that is semi-sovereign, a description that captures the ancient
dilemma over whether piracy was closer to naval warfare than maritime crime.1

It is not surprising that even the Latin word pirata is derived from transire,
a transeudo mare which signifies a maritime knight or a commander at sea. 2 The
word pirata denotes not only criminal marauding but a seafaring way of life based
upon maritime violence. On the other hand, the word piracy was first recorded in
the English Language in 1419, however piracy or piracy jure gentium (piracy by
the law of the nations), as it is known was part of just gentium (law of nations),
under the Roman Law.3

Due to its nature and long history, piracy has become an international crime
by reason of the customary law between the nations of the world. The crime of
piracy can range from being a mere nuisance to being destabilizing threats to
societies with devastating impact to mariners and their families being the hall mark
of maritime piracy as a timeless and resilient crime. In certain periods, the problem
of maritime piracy has spiraled out of control that it had such profound effects
throughout the ages that by the sixteenth century, jurists such as Grotius had
already developed the concept that nationals who committed piracy on terra
nullius (the high seas) placed themselves beyond the protection of any state and
therefore deemed as hostes humani generes (enemies of the human race).

II. The Application of the concept of Universal Jurisdiction

The crime of piracy under international law has been compared to a
breached of jus cogens which is a peremptory norm that all states must uphold. For
this reason, it became the earliest invocation of the concept of universal
jurisdiction which can only be invoked by a State to prosecute general piracy
against those acts that fall within the definition of general piracy tacitly or
explicitly agreed upon by members of the international community.
A pirate can be tried and punished by any state regardless of whether injury
had been caused to the State or its nationals. The rationale behind this is that a
pirate acquires a stateless status and therefore places himself beyond the protection
of any State and the enemy of all mankind, since piracy an offense against the law
of nations, meaning that in its jurisdictional aspects it is sui generis, though statutes
may provide for its punishment. It is an offense against the law of nations and as
the scene of the pirate’s operation is in the high seas, wherein no nation has a right
or duty to police, a pirate is denied the protection of the flag he may carry and
therefore is treated as an outlaw and an enemy of mankind whom any nation may
in the interest of all capture and punish.

Although it does not preclude States to proscribe any number of acts as

municipal piracy but to the extent that such acts do not also constitute general
piracy. Principles of customary international law preclude states from availing
themselves, in prosecuting such offenses, of the universal jurisdiction that applies
to the prosecution of general piracy. The reason behind this is that since general
piracy is created by international consensus, it is restricted in substance to those
offenses that the international community agrees constitute piracy.

For example in the Philippines, prior to its amendment, piracy is defined in

the Revised Penal Code as that committed by any person who, on the high seas,
shall attack or seize a vessel or, not being a member of its complement nor a
passenger, shall seize the whole or part of the cargo of said vessel, its equipment,
or personal belongings of its complement or passengers. The aforementioned
definition is more in consonance with that of general piracy than municipal piracy.
However, with the enactment of PD 532, committed even by the crew or
passengers of the vessel and can occur anywhere within the internal waters of the
Philippines up to the high seas. Such divergence in legal concepts regarding piracy
among coastal states brings about conflicting applications of their domestic laws
which may hinder efforts to curb the effects of piracy.

On the other hand, with respect to international law legal basis for law
enforcement against piracy is set out in Articles 100 to 107 and 110 of the United
Nations Convention on the Law of the Seas (UNCLOS). These articles repeat
almost literally the provisions contained in Articles 14 to 22 of the Geneva
Convention on the High of the Seas of 1958, and that some states, including the
United States as well as Israel, Switzerland and Venezuela, while not bound by
UNCLOS are bound by Geneva Convention, entails that as a matter of either
customary or conventional law, these Articles state the law as currently in force.

To be exact, one of the difficulties in discussing the history of the law of

piracy is the lack of consistency in the use of term. In short, there is little
consistency among the sources as to whether the term pirate is being used: as a
mere term of rhetorical condemnation; to distinguish other legal categories such as
(privateers or insurgents) to refer to a crime at international law; or refer to a crime
at a national or municipal law.

At the beginning of the twenty-first century piracy is best considered a

national crime for which international law provides a permissive rule of
jurisdiction. There has been no serious attempt to establish an international piracy
tribunal. There has been some judicial interest at the national level of some states
to inquire into the meaning of piracy at international law if only to examine the
compatibility of national laws and prosecutions with the provisions of UNCLOS.
However, it appears generally accepted that the function of the international law of
piracy is not to permit prosecutions by forum States lacking any conventional
nexus to the crime rather than to directly criminalize conduct under international
law in the manner of, for example, war crimes.

Historically, the picture is more confused. Many treatments of the subject

tend to conflate very distinct historical practices without appreciating that the
concept of piracy have different meanings in different times and places. For
example, while Cicero is often quoted for the proposition that “pirates are the
enemy of all mankind” it is clear that in ancient Rome piracy is not a crime per se.
It was, rather a special branch of the laws of war. Similarly, the meaning of piracy
in the 17th, 18th and 19th Century was bound up in very different ways with the laws
of war. Broadly, the question was one of state sanction. At a time before States had
large standing navies, it was convenient for majors to have a body of licensed
privateers that they could incorporate into navies in times of war.

Piracy has been a persistent problem for thousands of years, in fact from the
times when ships started to sail the oce