A Study On Pirate Laws And Regulations From The Perspective Of International Laws

The 21st century is the century of sea.The global economy has higher and higher demand for resources due to its rapid development,plus the gradual depletion of land resources,so the sea resource demand of each country sharply increases.Technological development creates conditions for human to develop and utilize marine resources.Under this background,sea is of great significance to the development strategies of both coastal states and land locked states in the world.Nevertheless,sea in the 21st century is not at peace.Traditional and non-traditional safety factors such as piracy,armed robbery at sea,terrorist activity at sea and transnational organized crime are intertwined,thus seriously threatening maritime order and safety.Piracy has a long history.It has been with the process of human's conquest of the sea since human started to carry out maritime activities.Although piracy used to subside in certain historical stages,it has not died out and was even more rampant sometimes.Since 1980s,due to the end of cold war and the development of global economy,economic trade contact between countries becomes closer,commercial transportation demand grows increasingly and international shipping industry develops vigorously.In addition,some coastal states or regions are engulfed in civil war,secession and political turmoil and have weak maritime safety force and their people live in hardship.All these factors revive piracy.As a social phenomenon,piracy was not legally prohibited in the early period of human society.Piracy regulation of national and international community is closely related to the improvement of human's utilization of marine resource,the development of human's knowledge of sea and the development of study theory of sea.After the 16th century,with the rise of emerging capitalist countries,the theory of"freedom of the high seas" developed in order to break the monopoly by traditional large marine countries.Piracy directly threatens the navigation freedom described in the theory of "freedom of the high seas",so emerging capitalist countries have changed their attitudes towards piracy from toleration,tacit consent and small-scale fighting into legal prohibition and harsh fighting and also established the international custom that "Pirates are the common enemies of human and each country has universal jurisdiction over piracy".After the 20th century,international community began to formulate and compile statute laws regulating piracy,among which,Harvard Research in International Law,Draft Convention on Piracy with Comments,the result of research on piracy issue conducted by Harvard Law School,is most complete.The draft has many provisions about piracy and becomes the blueprint for relevant international conventions formulated subsequently.The international conventions universally applicable to prohibiting and punishing piracy crime currently used by international community are Convention on the High Seas(HSC)adopted at the First UN Conference on the Law of the Sea in 1958 and United Nations Convention on the Law of the Sea(UNCLOS)adopted at the Third UN Conference on the Law of the Sea in 1982.The greatest contribution to piracy punishment made by HSC and UNCLOS is defining piracy and universal jurisdiction over piracy defined by international law in the form of international statute law.The domestic criminal laws of some countries contain provisions concerning piracy crime,among which,some provisions are the same as HSC and UNCLOS while the range of piracy crime stipulated by some provisions is wider than HSC and UNCLOS.Although UNCLOS is commonly accepted,upsurge of piracy in water areas around Somali and Gulf of Aden and South China Sea since 21st century makes international community doubt the piracy determination standard specified by UNCLOS.The key point lies in that UNCLOS limits the definition of piracy within"for private purpose" and the piracy should happen on the high seas or in any place outside the range of jurisdiction of any country,thereby excluding illegal actions and violence at sea conducted for political purpose or conducted in water areas within the range of jurisdiction of any country from piracy crime specified in international law.The reason why UNCLOS limits the definition of piracy within "for private purpose"is to make UNCLOS universally accepted by international community.Due to differences in political stand and ideology,different countries have different understandings of "political purpose".If UNCLOS highlights the political purpose of piracy,it is bound to result in the discussion on whether "behavioral motive" is just,but international community hardly reaches an agreement with respect to this issue.UNCLOS limits the definition of piracy within "happening on the high seas or in any place outside the range of jurisdiction of any country",which can well solve the conflict between universal jurisdiction and personal jurisdiction,territorial jurisdiction as well as flag state jurisdiction over illegal actions and violence at sea.Additionally,although UNCLOS limits the definition of piracy within "for private purpose" and the piracy should happen on the high seas or in any place outside the range of jurisdiction of any country,it cannot be deemed that UNCLOS denies illegality of other illegal actions and violence at sea apart from piracy specified UNCLOS and legal responsibilities corresponding to such other illegal actions and violence will not be affected.In fact,the criminal law of most countries generally define the criminal responsibilities for illegal actions and violence at sea.Certainly,from the perspective of fighting against illegal actions and violence at sea and maintaining maritime order and safety,the definition of piracy set forth in UNCLOS is imperfect.In this case,some international organizations revise relevant international conventions and some countries sign regional international conventions in order to enlarge the range of illegal actions and violence at sea.For instance,Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia(ReCAAP)has been signed by countries of Southeast Asia.At present,main measures taken by international community to punish pirates include enhancing maritime law enforcement,strengthening regulation measures and perfecting crisis response mechanism.UNCLOS provides that warships,warplanes or other authorized ships or planes working for the government of each country can exercise their right of hot pursuit and right of visit over ships or planes suspected ofbeing involved in piracy activities on the high seas.In addition,in order to solve the upsurge of piracy in water areas around Somali and Gulf of Aden,since 2008,the UN Security Council has adopted a series of resolutions concerning piracy in Somali according to "Chapter 7:Authorization" of the Charter of the United Nations,among which,it authorized each member country and regional organization to enter the territory of Somali and take all necessary measures to fight against pirates according to the rules of international law upon the invitation or consent of transitional federal government of Somali(or federal government of Somali).This is a new measure.However,the UN Security Council also emphasizes that the above resolutions do not constitute a customary international law.Moreover,professional international organizations such as IMO,IMB(International Maritime Bureau),international shipping industry and American,with the support of anti-terrorism work at sea,implement management object risk level assessment and classified management system.Meanwhile,comprehensive piracy preventative measures are taken through perfecting port and ship management system,increasing regulation transparency,strengthening information collection,analysis and distribution,promoting the formulation and application of technical standards,improving ship technology and equipment,enhancing crew training,perfecting crisis response proposal,etc.Some shipping companies even started to equip merchant ships with weapons and armed security guards so as to defend themselves when attacked by pirates.Although IMO and USCG(United States Coast Guard)have developed plans or guidelines concerning "ship security",so far there is no corresponding international convention or domestic law specifying the use condition,procedure,strength and the like of armed security guards and weapons for merchant ships of shipping companies.Therefore,the use of weapons by armed security guards for merchant ships possibly causes a lot of legal issues.At present,equipping merchant ships with armed security guards has not become the common practice of international shipping industry.Piracy trial is currently the most important factor restricting piracy punishment and affecting anti-piracy effect.Customary international law and international statute law provide that each country has universal jurisdiction over piracy defined by international law and the international community has no objection about this provision.However,coastal states where piracy proliferates are unable or unwilling to exercise such jurisdiction due to political disorder,poor judicial ability and the like;in view of high trial cost,difficulty in execution of judgement and the like,other countries arresting pirates are unwilling or unable to effectively exercise such jurisdiction,so most pirates arrested were set free after being disarmed and did not undergo judicial procedure,seriously affecting anti-piracy effect.Although there are international judicial authorities such as International Court of Justice(ICJ),International Criminal Court(ICC)and International Tribunal for the Law of the Sea(ITLOS)and international judicial practices such as international ad hoc tribunal and domestic and international mixed tribunal,most international judicial authorities are not suitable for piracy trial due to scope of jurisdiction,parties or operation mode.If piracy crime is included in the scope of jurisdiction of ICC through revising Statute of the International Criminal Court,it requires complicated procedure and also takes a lot of time but cannot solve the existing problem of piracy trial.Therefore,the international community should strengthen cooperation with respect to trial and execution of judgement and help coastal states where piracy proliferates to really improve their juridical ability.Carrying out piracy trial within the domestic juridical systems of these coastal states is the most ideal and cost-effective mode to solve the problem of "arresting without judging" of piracy cases.China is a large marine country and seas bring considerable political economic and military benefits to China Piracy in water areas around Somali and Gulf of Aden and South China Sea greatly threatens the shipping industry of China and further threatens the energy source safety and foreign trade of China.Consequently,on one hand,China should strengthen cooperation with Southeast countries and international community and participate in anti-piracy activities conducted by the international community.On the other hand,China should perfect domestic criminal law through including piracy crime and based on the need of maritime law enforcement,reform maritime law enforcement organ,strengthen the building of maritime law enforcement force,fight against pirates with multiple policies and measures and maintain the maritime safety and sea interests of China.