Jurisdiction over maritime piracy in international law

Massarella, Carmino

Abstract

[From the introduction:]
This thesis is an examination of the international law of maritime piracy.1 Its purpose is to explore the content and dimensions of the international law of piracy, and to seek a positive doctrine of the law as it currently stands. The thesis argues that maritime piracy in international law is primarily a question of jurisdiction. The thesis explains that jurisdiction in public international law has two distinct aspects, that of jurisdiction to prescribe, which is primarily a question of international criminal law (ICL), and that of jurisdiction to enforce, which at sea is governed by rules set out in the law of the sea. The thesis expounded here is that piracy was not historically conceptualised as an ‘international crime’ in the sense of one directly proscribed by international law, nor was piracy categorised as what we now know as universal jurisdiction. The thesis argues instead that the real significance of maritime piracy in international law is that it is a special basis of enforcement jurisdiction, an exception to the general rule of the exclusivity of flag State jurisdiction on the high seas. The thesis also suggests however, that this special basis of enforcement jurisdiction is less than adequate to address the contemporary problem of transnational maritime crime.

The thesis will contend that the current theories regarding the international law of piracy are contributing to the difficulties being experienced in bringing pirates to justice. Where prescriptive jurisdiction is concerned, the thesis will argue that the theory that piracy is directly proscribed by international law has created a situation where many State have inadequate or even non-existent municipal law criminalising piracy. Furthermore, the thesis will also contend that the theorisation of piracy as being subject to universal jurisdiction is also contributing to the failure of States to take responsibility for prosecuting pirates, and also runs the risk of encouraging excessive claims to jurisdiction. Consequently, the thesis will propose that piracy is more accurately characterised as a ‘transnational crime’, that is more logically prosecuted under the more normal bases of prescriptive jurisdiction, such as flag State jurisdiction, passive personality, and the protective principle.

At the same time, the thesis also examines the concept of piracy as a special basis of enforcement jurisdiction. It suggests that whilst the extraordinary authority to interdict and seize vessels at sea may have seemed adequate at the time of its codification, that authority may not be as effective today, since the law of the sea has developed away from a paradigm of control by maritime powers, and towards greater control in particular by coastal States in the form of expanded claims over coastal waters. Again the thesis proposes that the development of effective measures suppression of piracy and maritime crime might best be accomplished by a reassessment of the law of piracy, in particular by taking into account the way that measures have been implemented in relation to other areas of maritime law enforcement, including the control of WMD proliferation, drugs smuggling, people trafficking, and fisheries regulation.

The thesis therefore challenges the received wisdom concerning the international law of piracy, and seeks to close a gap between the prevailing doctrine, and actual practice. The thesis argues that that misconceptions about the crime of piracy, and current developments in the law of the sea demand a re-conceptualisation of the law of piracy, away from unilateral enforcement of an international crime subject to universal jurisdiction, to a transnational crime, primarily subject to the protective principle of jurisdiction, and enforced through multilateral regional cooperation agreements, and agreements with flag States.

Citation

Massarella, C. (2013). Jurisdiction over maritime piracy in international law. (Thesis). University of Hull. Retrieved from https://hull-repository.worktribe.com/output/4216050

• Thesis Type: Thesis
• Deposit Date: Nov 25, 2014
• Publicly Available Date: Mar 1, 2023
• Keywords: Law
• Public URL: https://hull-repository.worktribe.com/output/4216050
• Additional Information: Law School, the University of Hull
• Award Date: Dec 1, 2013