Legal challenges in combating piracy in the Gulf of Guinea – gaps between national and international law

30 January, 2021

By Mette Kaalby Vestergaard – Research Assistant

The development of piracy in the Gulf of Guinea

The Gulf of Guinea is located in the northeast of the South Atlantic ocean, stretching from the southeastern point of Liberia to Cape Lopez, Gabon’s most western point. Ergo, it covers the coastlines of Côte d’Ivoire, Ghana, Togo, Benin, Nigeria, Cameron, Equatorial Guinea and Gabon.

Trade traffic and shipping in the region has been the fastest growing among the Sub-Saharan countries, increasing its GDP by 14% per year since 1995. Along with this positive growth, has also been an inherent rising opportunity for piracy attacks in the area. What has been called an economic boom is now threatened as a result.

Worldwide, the number of incidents of piracy in territorial waters (also called national waters) are lower than the ones in international waters (also called high seas). Additionally, there has been a growth in the number of attacks carried out in international waters, in contrast to a decrease in attacks on territorial waters, more specifically port areas. A tendency for pirates to target vessels in international waters is seen on a global scale. However, despite this, the majority of attacks in 2020 in the Gulf of Guinea have been carried out in the territorial waters of Ghana, Togo, Benin, Nigeria and Cameroon – numbers that only underline the gravity of the problem. This make the problems concerning both national and international waters relevant in this regards, as pirates do not necessarily stay in their own territorial waters nor away from international waters.

A need for international collaboration

This current situation points to the relevance of collaboration between the coastal states in the Gulf of Guinea and international actors in combating piracy. Consequently, the interplay and subsequent challenges with national and international law become noticeable. Some problems that might at a first glance seem like unwillingness from governments to combat the pirates, will after reading this article appear clearly to the reader as legal obstacles both for the state in question and foreign states assisting operating in the international waters of the region.

Division of the sea under international law

In international law there can be said to be a traditional division of the sea. This traditional set up makes a division between the territorial seas, which is under the costal state’s jurisdiction and the high seas, also called international waters. On the high seas, the main rule is that there is flag state jurisdiction. This means that the state under which the vessel is registered has the jurisdiction for legal matters. There are in United Nations Convention on the Law of the Sea (UNCLOS) set out exceptions to this rule, one of them being piracy.

Defining piracy

The most common consequences for vessels targeted by pirates today is robbery of cargo and technology devices and at times kidnap for ransom of the crew of the vessel. Moreover, piracy is often linked up with other forms of organized crimes such as drug and human trafficking.

In line with the above, we all have a picture in mind of the ancient business when someone mentions piracy. Most people would say that it is the occupation, take-over and robbing of a ship as well as its personnel aboard. While this is not far from the legal definition in 2021, additional elements included and left out has consequences for the exercising of the law.

International legal definition on piracy

With UNCLOS entering into force in 1994, the definition of piracy as we know it today was effectuated. Today, it is commonly accepted as international customary law, which indicates an inherent universal consent to follow it. In the extract presented beneath, some important elements have been underlined for the purpose of this article.

Art. 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”

Additionally, in Article 101, paragraph (b) and (c) includes the crimes of participating in the making of such ships and moreover the incitement and facilitating of the crimes mentioned in the former paragraphs. Some of the things noteworthy from the definition of piracy is that it is for private ends and that it has to take place on the high sea for this definition to apply. That is, unless the state has made a national law referring to the definition as set out in UNCLOS, which then means that it also applies to territorial waters.

Universal jurisdiction

As already mentioned, UNCLOS brought both exceptions and moderations of the traditional legal set up. The most relevant exception to this traditional divide, is that in cases of piracy exists universal jurisdiction.

UNCLOS, Art. 105 reads following:

“On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship (…)”

This means that in the case of piracy, any state has the right to intervene and seize the ship no matter if it is not under their national jurisdiction.

Responsibility, detention and prosecution

One of the most problematic factors in combating piracy in the Gulf of Guinea is the lack of national law defining how piracy should be punished and additional institutional capacity to do so. For explaining this, the following is important to keep in mind.

UNCLOS, Art. 105 on universal jurisdiction continues like this:

“The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken (…)”

As already stated, any state has the right to intervene in cases of piracy on the high seas. Furthermore, we also now know that they subsequently have the right to decide which action to be taken from there, and this has consequences for the handling of the pirates once they are captured.

Issue 1: What to do with the pirates?

Although there is universal jurisdiction, it does not mean that an international court can prosecute it as an international crime, as with other crimes under universal jurisdiction (for example crimes against humanity and war crimes). Hence, there is also no statement of the consequences of piracy, nor a statement of it as an international crime and the means of prosecution. Consequently, the pirates and a potential justice process is the responsibility of the state which has captured the pirates. The legal principle of nulla poena sine lege (no crime without law) is here the dominating factor.

As such, no international law exists on what to do once having exercised the right to capture the pirates. This means that if no national law exists which makes punishment of the crime of piracy possible, they cannot be prosecuted for such crime. In UNCLOS there is no guide on how the transfer of pirates to other states should take place. In that way we can end up in a situation where a British government ship has captured pirates in the territorial waters in Ghana and attempts to hand them over to Ghana, but the state has no law to prosecute them once handed over. Despite the fact that Ghana might have laws that allows prosecutions of piracy under laws, these might then not apply if it took place in international waters. Another option is also that Ghana refuses to receive their nationals for prosecution, leaving the British with nowhere to take the pirates.

Issue 2: International conventions and human rights obligations

Linked to the problem described above, is the additional obligations that a state is under when capturing pirates, both in territorial and international waters. Let’s consider the example of the British ship capturing Ghanaian pirates. Regardless of identifying them in territorial or international waters, the procedure that would make sense in this regard, is a hand-over to Ghana for prosecution.

Countries who are obligated to follow the European Convention on Human Rights have the duty to ensure criminal suspects will get a fair trial. Additionally, countries who are parties to the United Nations’ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment cannot hand over pirates to a state where they are not confident that they will not be tortured. This means that if a British government ship capture pirates in the territorial sea of a state that cannot ensure this, they cannot hand over the pirates for prosecution. Self-evidently, the British state has nowhere else to take the pirates for prosecution but at the host state.

Issue 3: State sponsored piracy and corruption

It says in UNCLOS that piracy has to be for private ends to fall under the definition given – does this mean that if piracy is state sponsored, it cannot be considered piracy? Such state sponsored piracy might for example manifest itself through corruption and consequently economic support, or organization of piracy by corrupt government security personnel. The important element is that some of the gain ends up within government institutions. This question is relevant because of its connection to corruption, which has also been reported as a problem in combating piracy.

This is relevant to discuss in cases where countries have actually taken the step to make an anti-piracy law, but have applied the UNCLOS definition when setting out the crime. If the crime does not fall under the definition as set out in the law, it cannot be prosecuted accordingly. This would mean that if it can be proved that it was state-sponsored, it can mean that the law does not apply at all. An example of such a gap for potential abuse will now be explained.

The example of Nigeria: An attempt at national anti-piracy law

In June 2019, Nigeria became the first country in the region to pass a national anti-piracy law. This showed an increased focus on the issue by the national governments in the region. Even so, there are significant improvements to be made before it can fill out the gap left from the international community. There are also some deficiencies in the law that indicate that it might not be able to fill out some of the gaps left in UNCLOS that play out as obstacles in practice.

The point related to the above description issue of corruption, is that the national anti-piracy law has adopted the definition from UNCLOS instead of defining it in the Nigerian context. This means that the law only applies if fulfilling the criteria of piracy being committed “for private ends.” Along with this, the law makes no mention of corruption prevention or exceptions in such situations. As already mentioned, these two in combination can lead to situations where the law does not apply, even though it is intended to do so.

Other areas to be improved in Nigeria’s new law include how the different government agencies should undertake these new tasks and areas of responsibility they have been given under the law. For example Section 17 Part 3 reads that “law enforcement and security agencies’ shall …” but does not specify further which agencies specifically is responsible. This leaves no answer, which can cause problems for the law to be exercised in practice. Problems of inefficiency are likely, especially when having to collaborate with international actions, in terms of delegating out responsibility of different assignments. The gathering of evidence with the aim of prosecution can be a particular problem if not handled properly. This also includes training of staff for this purpose.

Lastly, there is no focus on recruiting or obtainment of weapons with the aim of piracy and in general laws contributing to preventative work. This is especially relevant for the national laws set out. It is critical as these inherently have to be very contextually and nationally adjusted and therefore cannot be made on international level.

Conclusions

The problematics pointed out in this piece show that while an attempt has been made, there are still legal gaps even when combining national and international law on piracy. While there is no doubt that both national and international anti-piracy laws will lead to better conditions for the fight against piracy, it is evidently important to be aware of the opportunities that national laws have where international law cannot deliver. These gaps should be in focus when making these laws.

When other coastal states in the Gulf of Guinea hopefully follow Nigeria and pass a national law of piracy, there is a need to combine it with broader development and adjustment in institutional capacity. This will both ensure efficiency, but more importantly serve to support a more effective collaboration with foreign nations when dealing with piracy in international waters.

Finally, an opportunity that can hold some potential, is the creation of an international court as seen in other cases of crimes under universal jurisdiction. This would give states a second option, when capturing pirates on the high seas, where states are not able to fulfil the role or demands that enable the pirates to be handed over for prosecution. It should though be mentioned, that there might be a question of the gravity of the crime, where piracy might not have the status to define a jus cogens (compelling law) norm despite its universal jurisdiction principle.

Image: the Gulf of Guinea (via Amcaja/CC BY-SA 3.0)