03 Legal situation

International and national jurisdiction are growing closer and closer in the context of combating piracy. Nevertheless, there are still gaps in the legal system. These gaps provide a fertile environment for further acts of violence by pirates and there is an urgent need to close them.

It is often the complexity of an individual case that makes criminal prosecution and loss adjustment difficult. What kind of piracy is involved? Where did the attack occur? Which country is investigating the case? Which law applies? Prosecution depends upon international law and national penal and civil law being applicable in full. At the national level, however, there are still considerable weak spots. Even the definition of piracy varies from one legal system to the next.

United Nations Convention on the Law of the Sea of 1982 (1982 Convention)

The 1982 Convention deems it to be a pirate attack, for example, if an act of violence is an illegal act committed for private ends by the crew or passengers of another vessel on the high seas or at a place not subject to state sovereignty. The 1982 Convention only applies to the high seas and thus only covers a small proportion of the incidents with its jurisdiction because some 80% of all attacks occur in territorial waters and in ports. Also, the 1982 Convention says that an attack only qualifies as piracy if it is committed for "private ends". Terrorist acts are therefore not covered by the rights of intervention granted by the 1982 Convention.

Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation of 1988 (SUA Convention)

The purpose of the SUA Convention was to fill the gaps in the 1982 Convention. The definition of an illegal act at sea is much broader in the SUA Convention. It includes the unlawful seizure of vessels, the attachment of materials to or installation of materials in vessels which could lead to damage or destruction of the vessel in question, and the killing of persons on board. Consequently, the SUA Convention, unlike the 1982 Convention, also relates to politically motivated terrorist acts.

In addition, it covers a significantly larger geographical territory than the 1982 Convention. At the time of the illegal act, the vessel can be anywhere at sea. However, the vessel must be in international transit at the time of the illegal act, i.e. it must be coming from foreign territory or the high seas or it must be passing through or heading for such areas. This means that there is still a gap in the law, i.e. if the vessel only transits the territorial waters of one state. That gap could be filled by national laws.

National jurisdiction

National law ultimately plays an important supplementary part in the fight against piracy. It is the only statutory basis for vessels which have been attacked and which only transit the territorial waters of one state and the only statutory basis for criminal prosecution when international law does not permit criminal prosecution (1982 Convention) or international law refers to national law (SUA Convention).

It is in national penal law, however, that the weakest point in the international network of laws to combat piracy is to be found. This is because national penal laws can be interpreted in many ways. Some penal codes demand that a whole variety of conditions be met for an offence to qualify as an act of piracy whilst others do not make any mention of piracy at all. In addition, the security and enforcement authorities in some countries lack the necessary personnel and financial resources to prosecute piracy in adequate measure. All these circumstances are exploited by offenders.

Civil law definition of piracy in insurance law

The specialist literature gives no separate definition of piracy that applies in insurance law. Instead, reference must be made to both the IMB definition and the definition in the 1982 Convention or corresponding national regulations. However, piracy has a much larger geographical scope in terms of insurance law than in terms of penal law. It is sufficient for the act to be at or on the sea. There is no territorial or national limitation. According to insurance law, therefore, an attack in a port or an inland waterway also qualifies as an act of piracy. The only criteria to be met are the use and/or threat of force before or during the act. In addition, the pirates' motives must be of a private nature. From the insurers' viewpoint, therefore, terrorist acts of violence do not qualify as piracy.