S. law dating back to 1819 in more than a century (Gettleman, 2008).
Right of Innocent Passage
The other significant complication for enforcement action against maritime piracy arises in connection with the economic realities of maritime insurance and the concept of the right of innocent passage through sovereign territorial waters (Langewiesche, 2004).
Under the United Nations LOS, unarmed commercial vessels are permitted into the sovereign waters of signatory nations as necessary for reasonable access to established commercial shipping lanes. Those rights are predicated on the assumption that
commercial ships are unarmed and therefore pose no risk to the national security interests of sovereign nations (Langewiesche, 2004). The prospect of arming commercial vessels to safeguard them against piracy is a fundamental violation of current international law and exposes such vessels to denial of entry and even to hostile boarding and seizure by the navies of sovereign nations (Schoenbaum, 2004).
Economic Factors Militating Against Arming Commercial Vessels
Perhaps even more significantly, in terms of its effect on deterring the arming of commercial vessels, is the economic reality in the realm of insurance against loss at sea
(Langewiesche, 2004). Various commercial enterprises do offer protective services for commercial vessels navigating dangerous waters. However, the cost of protecting a typical commercial voyage in this manner is approximately $100, 000 per trip.
Meanwhile, the actual risk of piracy is still comparatively small in relation to the large numbers of commercial voyages undertaken.
Furthermore, the price of equipping commercial vessels with an armed crew of trained anti-piracy teams is approximately the same as the total amount of ransom typically paid to secure the release of captured ships and crew in the event of hijacking at sea. Purely from an economic standpoint, arming commercial vessels in this fashion is
much less feasible than simply factoring the cost of paying ransom in the occasional event of an act of piracy (Langewiesche, 2004).
Finally, the solution of arming the crews of commercial vessels to enable them to protect themselves without the necessity of hiring professional armed paramilitary security professionals raises other issues that are economically prohibitive. Specifically,
the increase in the cost of insurance against loss and liability for bodily injury and death to crewmen and to others arising from any use of deadly force against pirate attacks is prohibitively expensive and not feasible at all without changes to the prevailing concepts of legal liability and vicarious responsibility as they pertain to maritime shipping
Given the current status of international law, the formal definition of piracy, the complete lack of uniformity with respect to the criminal laws of sovereign nations
responsible for prosecuting pirate-like crimes perpetrated within their territorial waters, it is difficult to imagine how modern piracy can be effectively redressed. The vast majority of piracy is perpetrated for financial gain, but because it occurs within the internationally recognized twelve-mile limits of territorial waters of sovereign nations, it does not meet the statutory definition required for international enforcement (Langewiesche, 2004).
Likewise, because financial motivation is a prerequisite for the definition of hostile pirate-like criminal acts, those precipitated by political motivation or purely for terrorism are also exempt from any formal designation of piracy (Banker, 2003).
In that regard, the modern practice of commandeering and permanently seizing entire commercial vessels together with their contents instead of holding them for ransom raises significant concerns about the possible collaboration of pirate networks and international terrorists. The increasing sophistication of pirate attacks using advanced electronic GPS and communications equipment together with real-time information available via the internet only exacerbates the problem and suggests that it will continue to rise in frequency of pirate attacks on commercial vessels. Similarly, there is substantial evidence of the apparent involvement of sophisticated organized crime entities in the planning of piracy and in the training, logistics, coordination of markets for the illicit sale of seized cargo, and the establishment of new identities for captured commercial vessels.
This only further increases the likelihood that well-funded terrorist entities such as al-
Qaeda and other factions loyal to Osama bin Laden will eventually collaborate with those entities to use piracy as a new form of international terrorism with very dire consequences (Maxwell & Blanda, 2005).
Unfortunately, the economic realities of jeopardizing the right of innocent passage through sovereign waters and the relative cost of providing professional armed security forces to protect all commercial vessels in potentially dangerous waters is prohibitive.
Similarly, arming commercial vessel crews is no more feasible for the same reason, by virtue of the exorbitant insurance costs associated with that option. As a result, commercial vessel crews have few options to defend themselves beyond fire hoses and purely defensive equipment such as ballistic bullet-resistant vests (Caldwell, 2009;
Recommendations and Conclusion:
The prevailing threat of maritime piracy requires a new formulation of international law, most specifically in relation to the formal definition of piracy. The inclusion of non-financial motivation for acts of piracy is one necessary element of anti-
piracy legislation. The other necessary component in that regard is a reconsideration of the appropriateness of applying the internationally recognized twelve nautical miles of sovereign territorial waters to the definition of acts of piracy. An exception with respect to piracy would be more appropriate in light of the nature of the threat of the modern style of maritime piracy.
Another useful approach would be a reformulation of insurance regulations to exempt certain specific types of protective measures in connection with the training and arming of commercial vessel crew members. Those measures should also be matched with efforts in the realm of international maritime law to recognize appropriate exemptions from the traditional elements of eligibility for the right of innocent passage for the purpose of facilitating the safety of international trade via commercial shipping routes. Such adjustments could, in principle, be made in a manner that increases the safety of commercial shipping without compromising the national security of sovereign nations. The types of weapons necessary to protect commercial vessels from piracy pose no legitimate threat to the national security of sovereign nations in the manner that small arms might conceivably have at the time that the relatively ancient concept of the doctrine of innocent passage was first adopted internationally (Schoenbaum, 2004).
Finally, the lessons learned by the navies of Britain and France in the late 19th century when they finally took decisive action to eradicate the threat of high seas piracy are well worth reconsidering today. Specifically, they discovered that the only effective way to combat piracy is to target the land bases of the pirates because battling each pirate attack individually is comparatively useless (Little, 2005). That means it will probably be necessary for U.S. And international forces to occupy some of the coastal communities in Africa to root out the pirates directly from the coastal communities that harbor them.
Ultimately, that may be the only realistic manner of eradicating the growing threat of modern maritime piracy.
Banker, S. (2003). Enemies of Mankind: The Developing Threat of Modern Maritime
Piracy and Terrorism. Springfield, MO: Southwest Missouri State University.
Burnett, J. (2002). Dangerous Waters: Modern Piracy and Terror on the High Seas.
New York: Dutton.
Caldwell, C. "No Surrender to Thugs" Time. Vo. 173, No. 16, (Apr. 27/09).
Dershowitz, A. (2002). Why Terrorism Works: Understanding the Threat, Responding to the Challenge. New Haven, CT: Yale University Press.
Gettleman, J. "Somalia's Pirates Flourish in a Lawless Nation" The New York Times,
October 31, 2008.
Langewiesche, W. (2004). The Outlaw Sea: A World of Freedom, Chaos,…