The use of the high sea is enjoyable by all states around the globe; every recognized state has the right and freedom to carry out activities on the high sea. These rights and freedom is enjoyed by both landlocked and coastal states. These rights include; freedom of navigation on the high sea, laying of submarines, pipelines, construction of artificial island, fishing, scientific research and lot more.
When most states through their registered ships navigate on the high sea, there are records of pirate attack against such navigation, and in other to prevent such attack international laws have aided by providing rules in combating and minimizing such violent act.
2.0 MEANING OF PIRACY ON HIGH SEA
Piracy on the high sea consist of any illegal act of violence or detention committed for private ends by the crew of a pirate ship or aircraft and directed on the high sea against another ship or aircraft.¹
It is also pertinent to note that a pirate ship is a ship that is intended by the persons in dominant control to be used for the purpose of committing any illegal act of violence, detention on another ship. A pirate ship² does not bear any flag state as it is not a registered ship.
2.1 REQUIREMENT FOR PIRACY ON HIGH SEA
There are three requirements which can make any violent act on another ship amount to piracy, if these requirements are not seen; therefore such act cannot amount to piracy. These requirements are:
The violent act on another ship must be committed for private ends,³ in the 1998 case of Petrol Rangers, where some Indonesian pirates took over a ship with violence act, put the crew into a lower boat, change the ship and decided to use the ship for piratical activities. It was held that such act amount to piracy. Also any hijacking of another ship for political reasons cannot amount to piracy.
COMMISSION ON HIGH SEA
The violent act or detention of another ship for private ends must be committed on the high sea else it won’t amount to piracy. If it happens on the territorial waters of a state it cannot be seen as piracy.
INCLUSION OF MORE THAN ONE SHIP
For an act to constitute piracy it must involve at least two ships. Therefore the taking over of a ship by members of its crew or passengers cannot amount to piracy even though there was violence.⁴
3.0. CAPTURING OF PIRATE SHIP
3.1 WHO HAS AUTHORIY TO CAPTURE PIRATE SHIPS
Every state may seize a pirate ship on the high sea and can also arrest every person on board such ship. The state can also seize the property on board such ship taken by an act of piracy. The court of the state which carries out the seizure may decide on the penalty to be imposed.⁵ It is also pertinent to note that only war ships, military aircraft or other authorized vessels on government services can capture a pirate ship.⁶
3.3 REQUIREMENT FOR CAPTURING A PIRATE SHIP
Seizing a pirate ship under the power granted to all states indicate the use of force, that is the only way or means for capturing a pirate ship is with the use of force by the authorized vessels or persons. As this was seen in the Operation Atalanta’s , it was stated that ‘Atalanta shall take all necessary means including the use of force in capturing pirate ships.’
But such use of force has certain conditions or requirements and these include that he use of force in capturing pirate ships must be reasonable and necessary.⁷ These conditions shows respects to the human right of the persons involve.
3.4 WRONGFUL GROUND FOR CAPURING OF PIRATE
Where the seizure of a ship on the suspicion of piracy has been effected without adequate grounds, the state making the seizure shall be liable for any damages or loss incurred to the nationality of the affected ship.⁸
The provisions as to regard to what piracy entails under the United Nation Convention on Law of the Sea⁹ are too narrow and restricted in terms of definition. It only includes actions on the high sea and disregards those on other waters.
With the use of the MAY clause in capturing pirate ships under Article 105 of the United Nation Convention On The Law of The Sea 1998,¹⁰ it shows that it is not an obligation on seizing state to capture pirate ships, this means that a seizing ship has the right to interfere in capturing or not.
They may capture or they may decide to fold their hands and allow the pirate ship to go.
The use of force as a requirement in capturing pirate should be given a second thought. As such requirement should only be use in self defense against pirate.
1. United Nation Convention On The Law Of The Sea, article101, 1982.
2. UNCLOS art,103
3. Petro Rangers case 1998
4. Portuguese Ship Santa Maria Case 1961
5. UNCLOS, art.105
6. UNCLOS, art.107
7. See the case of Guyana v Suriname
8. UNCLOS, art.106