The document discusses the definition of piracy under Article 101 of the 1982 UN Convention on the Law of the Sea (UNCLOS). It argues the definition is too narrow and does not account for modern forms of maritime violence. The definition requires acts be committed for private ends, from one private ship to another, and on the high seas. This excludes many historical acts of piracy and limits enforcement. The document examines alternative frameworks under the 1988 SUA Convention but notes its limitations. It concludes a new framework is needed to define piracy more broadly and establish clear responsibilities for addressing modern maritime crimes.

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Rethinking the Definition of Maritime Piracy:
UNCLOS Article 101
Spencer Ash
2015

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Maritime piracy has existed as a threat to international trade for as long ships have been
transporting people and goods upon the world’s oceans. Traditionally, piracy has presented a
unique challenge for maritime nations and other third party states due to the expansive nature of
the threat which poses a danger to human life and to the peaceful navigation of the seas (Tanaka,
2012). As a result, pirates have been classified as hostes humani generis (enemies of all
mankind) with acts of piracy regarded as sui generis (universal crime: an offense against the law
of all nations) under international law (Campbell, 2014). The security of both national and
international waterways is of critical importance to all nations as acts of piracy can harm political
and commercial interests where any hinderance to international trade can lead to significant
economic loss (Barrios, 2005). In recent years, maritime piracy has been on the rise with the
levels of global piracy reaching a maximum around 2010-2011 with over 445 attacks worldwide
(IMB, 2014). While modern pirate attacks have been largely confined to four major areas
including: the Gulf of Aden, the Gulf of Guinea, the Malacca Straits, and along the Indian
subcontinent between India and Sri Lanka, there has been a shift away from the classical version
of robbery at sea with the emergence of a new brand of piracy — one that is linked to organized
crime, terrorist groups, and politically motivated dissidents. The current definition of piracy is
highly inadequate to address the emerging threats posed by this new form of violence against
seagoing vessels and a redefinition is required in order to develop a proper framework for
dealing with the issue.
In 1932, the Harvard Research Group, produced a draft convention to address
fundamental differences in the definition of piracy that existed at the time, so as to allow for the
adoption of a single definition to be used for the purposes of international law (Mejia, 2003). The
International Law Commission was influenced by the research of the Harvard Group and

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generated four conventions with respect to the law of the sea, which were introduced in the 1958
Geneva Convention on the High Seas (Campbell, 2014). In 1982, the United Nations Convention
on the Law of the Sea (UNCLOS III) accepted the definition of piracy as drafted by the
International Law Commission:
1982 UNCLOS (Article 101)
“Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private
ends by the crew or the passengers of a private ship or a private aircraft, and directed
(i) on the high seas, against another ship or aircraft, or against persons or property on board
such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge
of facts making it a pirate ship or aircraft;
(c) any act inciting or of intentionally facilitating an act described in sub-paragraph (a) or (b).”
Piracy under the 1982 UNCLOS definition is highly restrictive and subject to a five-point test
which limits the universal jurisdiction of states over any action that does not fall in line with the
narrow formulation. According to the five-point test of the UNCLOS definition, there must exist
1) an illegal act of violence, detention, or depredation, 2) an offense committed for private ends
by private individuals motivated by gain, 3) the involvement of at least two vessels, 4) action
directed against persons and/or property onboard a targeted vessel, and 5) any such act must be
committed on the high seas or outside of the jurisdiction of any state.
The definition of piracy under Article 101 of UNCLOS tends to be too narrow in its
scope and seemingly ignores the broad range of violent activities historically considered by
nations to consist of piracy — actions that initially led to the classification of piracy as being a
universal crime (Barrios, 2005). Under the UNCLOS definition, the Norman Vikings, the
Barbary Corsairs (1600-1830s), and even the Confederate commerce raiders of the American
Civil War (1861-1865) would not be considered to be pirates as most of their actions occurred

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along national coasts and within territorial seas, by government sanctioned individuals, and often
for motivations other than gain (Barrios, 2005; Meija, 2003). From this perspective, it could be
suggested that the adoption of the definition of piracy in Article 101 should be seen as a
departure from the flexible manner in which the international community viewed piracy.
Therefore, the definition under Article 101 should not be considered to be a codification of
existing law as suggested by the Harvard Group as it does not include the full spectrum of acts
the could be traditionally classified as accepted definitions of piracy (Barrios, 2005).
This definition is particularly problematic for the enforcement of laws against piracy as
under the constraints of Article 101, international law only allows universal action to be taken
outside of the territorial seas of a nation which significantly hinders the ability of “hot pursuit”
by a foreign navy or maritime enforcement vessel. All piratical actions that occur within
territorial seas or within the internal waters of a costal state cannot be considered to be acts of
piracy and are further defined as armed robbery under resolution A.1025 (26) of the IMO Code
of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships —
even if that nation is unable to prevent or suppress acts of violence against ships within its waters
(Tanaka, 2012). It is important to note, that pirates often utilize these limitations for their own
benefit and use the territorial sea to evade pursuit in areas such as coastal Africa and near
archipelagic states such as Indonesia. Furthermore, by limiting the piracy to the high seas and
non-jurisdictional areas, the majority of attacks against vessels underway are removed from
punishment as acts of piracy and are then subject to prosecution by the responsible coastal state
which may or may not be able to punish offenders based on the states’ willingness to prosecute
or due to the existence of domestic legislation and judicial processes designed for pirate acts.
Furthermore, attempts to commit illegal action counted in the UNCLOS definition and offenses

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must be conducted by private individuals therefore excluding any act motivated by political
gains such as those conducted by terrorist groups (ie. attacks against the USS Cole in 2000 and
the French tanker MV Limburg in 2002) and political dissidents (ie. the hijacking of the
Portuguese luxury cruise liner Santa Maria in 1961). Under the “two-ship” rule any acts against
a ship that occur internally from either the crew, passengers, or stowaways would be exempt
from classification as piracy even though there exists the same potential for damage to human
life as well as political, economic, and environmental damage (ie. internal hijacking of the luxury
liner Achille Lauro by Palestinian guerrillas in 1985).
Noting the limitations of Article 101 in addressing the issues associated with piracy after
the hijacking of the Italian cruise liner Achille Lauro in 1985 by four armed members of the
Palestinian Liberation Front who had stowedaway aboard the vessel, there was international
pressure though the United Nations and the IMO to create a legal framework for prosecuting
actions that did not fit within the narrow formulation of the UNCLOS definition (Barrios, 2005).
The result was the creation of the Convention for the Suppression of Unlawful Acts against the
Safety of Maritime Navigation (SUA) in 1988 which made it unlawful to take control of a vessel
by threat or force or to perform acts of violence aboard a vessel against a person, cargo, or the
ship itself that would result in a danger to safe navigation. In the text of the SUA convention,
offenses were not restricted to any two-vessel requirements, geographic requirements, or motive
requirements. While the SUA covers some of the gaps that are found in the UNCLOS definition,
it too is highly restrictive as it places emphasis that unlawful acts must pose a danger to safe
navigation. However, unlike UNLCOS which is considered by many to be customary
international law and applicable to all nations, the SUA can only be enforced within the
jurisdictions of states that have signed the convention. Many states have refused to sign in

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objection to requirements concerning prosecution and extradition which would prescribe how a
state is to deal with internal and sovereign matters, limiting sovereign authority (Meija, 2003;
Barrios, 2005).
In light of the regulatory gaps presented by UNCLOS Article 101 and the SUA in regard
to defining and addressing the issues of piracy at the international level, it would seem only
prudent that a new cohesive framework is developed to incorporate the modern development of
criminal activities at sea. UNCLOS should be amended with an expanded definition of piracy
where any hostile attack on a vessel regardless of geographical location, motive, or intent is
included. Under this definition, piracy should be broken down into separate categories of
maritime crime in which resources, approaches, and agency responsibilities could be assigned so
as to remove any ambiguities and complications associated with communication between nations
before, during or after an incident. Responsibilities of nations should be determined through a
treaty process which would allow for increased cohesiveness in enforcement against maritime
crime along the lines of pre-established agreements for cases such as hot pursuit in territorial
waters. A judicial authority and framework for the prosecution of piracy should also be
delineated along with the amended definition that addresses general acts of piracy, armed
robbery, terrorism, and other illegal acts while respecting the complexities of individual state
sovereignty.

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References:
Barrios, E. (2005). Casting a wider net: addressing the maritime piracy problem in Southeast
Asia. BC Int'l & Comp. L. Rev., 28, 149.
Campbell, Penny. "A Modern History of the International Legal Definition of Piracy." Naval
War College Newport Papers: Piracy and Maritime Crime Historical and Modern Case Studies
35 (2014): 35-51. Print.
Dillon, D. R. (2005). Maritime piracy: defining the problem. SAIS review, 25(1), 155-165.
ICC International Maritime Bureau. (2014). Piracy and Armed Robbery Against Ships: Annual
Report 1 January - 31 December 2014.
Mejia, M. (2003). Maritime gerrymandering: dilemmas in defining piracy, terrorism and other
acts of maritime violence. Journal of International Commercial Law, 2(2), 153-175.
Onuoha, F. (2009). Sea piracy and maritime security in the Horn of Africa: The Somali coast and
Gulf of Aden in perspective. African Security Studies, 18(3), 31-44.
Resolution A.1025 (26) “Code of Practice for the Investigation of Crimes of Piracy and Armed
Robbery against Ships”
Tanaka, Y. (2012). The international law of the sea (pp.354-361). Cambridge University Press.
Article 101, United Nations Convention on the Law of the Sea (1982)